i agree that what they're doing is a shortcut and it's not following what the statute says they should do it's simply a shortcut if you look at the statute you ministering authority must explain why such differences and that's different dumping what congress has as indicated in the essay which is to alleviate conceal dumping that which is hidden and so the question is can it account for that and in the examples i gave you sometimes it can and sometimes it can't that's whether it's hidden so when you break out the average price to the individual transactions you can reveal dumping that here and that situation cannot account for that can only know by breaking all the transactions out right in every averaging group but what what congress is doing is they are simply taking a shortcut and assume that no matter where the sale is whether it's within an average or whether it's in different averaging groups any negative dumping margin is masking a positive campaign and what we're saying is that's not necessarily true you have to actually look at the evidence you have to look at the record you have to look at the patterns and you can't just automatically provide those offsets on one side which then eliminates all of your positive dumping and i take their point that that's the way they normally do the calculation but that doesn't mean that they need to do that calculation the same way when they're doing the comparison because it's a different question it becomes self fulfilling and i realize as tech has listed some cases where the two comparisons do not yield a meaningful difference on what looks like a lot of cases i want piece of paper compared to all the cases that are conducted it's a minuscule portion and yes there could be some cases where it's not going to make a difference if every sale is dumped which doesn't happen very often it's not going to make a difference but i don't have statistics to back it up most of the time it's going to make a huge difference because you're just automatically taking a shortcut and assuming that any time there is a non dump sale which generates a negative dumping margin you're just assuming that that is masking dumping in another sale and we're saying that's just not necessarily true it  congress has said this in their decision memos that they equate offsets to mask and they use the terms implicit masking and experts and asking what does that mean that tracks the example i gave you implicit masking is within the average and that is when you break the transaction out you can reveal individual crisis like ten in the fourteen you then unhide the dumping from the average we agree that that implicit masking is masking that's what if you look at union steel that's what you need to deal says mass dumping within an average they are never tartini deal has never talked nor has the federal circuit talked about the other type of masking which is the explicit mask which is across the average groups and we've congress has taken that position so if nothing else this want to clarify we do i realize maybe actually back in those thirty minutes ago of steel that was eight feet long and one that was two feet long you would compare and do them separately so that's the averaging group then you might have all these different products compared in one case so the averaging group tends to be within a specific product so th you would have only specific products compared to each other but what that that's the point though is that implicit masking is within an average group like when you're taking  prizes of identical craft and averaging them together and then you split them out you might actually reveal that the exquisite masking is going across average in groups and good answer in the groups here are different rather different products that in this case they're all shrimp but you might have some with a head on with a head and so but that's actually an interesting point what they're doing the commerce department is doing is assuming that the negative dumping on the other product across the average in groups is masking dumping on a different product and we're just saying that's not necessarily true and even their term explicit masking if you think about the difference between implicit and explicit  chosen to abandon zeroing under the age method so it's a policy choice so back to the statute we would argue that eight accounts for the difference it accounts for it it shows other then within an averaging group we can see the age cannot account for it there it's hidden right you can see it is twelve the twelve maybe maybe i didn't notice it is do you make an argument in your grief about the difference between averaging of the same product in averaging between different i don't think you make that specific i know that's what i'm explaining you here we make the argument that legally it's distort of and you made of the bridge is that they are just automatically assuming that every time there is negative dumping which is no dummy wherever it is that it is masking dumping somewhere else and we're just saying that's not that's not true so this court has should decide is this should there be a difference between an explicit and implicit is that really what the statute was intended a legally sanctioned allowable negative dumping margin it's got nothing to do with masking and the point i was making originally was that  argument your honor is that the whole point of the targeted dumping provision was to get to the difference of eight and eighty because of averaging within an average in group and what's difference between the two was the averaging within that averaging group when you split out the twelve to the ten in the fourteenth that if you look at the essay that's what talks about concealed by averages that's was commerce using ciro in an unequal manner to distort the results they were also running their test all sales what i mean by all sales is those that were found to be targeted and those that were found to not be t the test three different times against every sale use that i've used an example of if you put like a bunch of quarters on the table every sale has a chance to pass this test three times either by customer by region or by t sales but they do the test within the same average in groups that i was talking about before so they do it by control over it by a unique product and i think that's significant because what they're looking at in their pattern analysis they are comparing for high and low prices within the average in a group and they're deciding that for the average in group as a whole right ok there's a pattern or they're not so they compare i see my at the end where he was talking out of an individual sale doesn't pass a bucket that's not quite how it works commerce compares whole groups of sales to a particular purchaser region over time period to the rest of the sales and if that route of sales exhibits a significant price difference than that group passes the cones detest and i think that's that's important to know in the context of these two cases being for before the court together because the differences in the test is what result for example of a much higher percentage of sales that pass differential pricing versus conan does versus the nails test in the nails test is a very a bunch of very stringent criteria so uniformly you get much lower numbers of percentages of sales that pas eighteen methodology with zeroing to determine whether there's a meaningful different has never understood the numbers are there they have to be there in zero why don't you just push a button on the computer and say we're going to treat this is a group eighteen methodology of the don't get within a methodology is because there are a whole bunch of sales that were sold here at less than fair value that were don't let that get masked because of the offsetting function couple reasons first because commerce only switches to looking at the ada team methodology as a potential comparison if it reaches that precondition of there being a pattern of suggest a pattern of significant price differences under sixteen seven seven f one d one b if you have a situation with promises hey wait a minute we're looking at this and we see a pattern of price differences to a particular purchase or region or time period that shows  that there are potentially a mass dumping situation going on then it's appropriate for us to look at the it it's the methodology which the statute authorizes us to to look at in those circumstances it can all  commers i don't i don't know that it didn't see this case but in some other case i was trying to i guess in my own mind construct a simple minded market economic story  judge newman's question if there is a you know if prices that if x if apex is selling in california have fourteen is selling in the rest of the country at twenty seven that's probably telling you something about a difference in market conditions in california and the rest of the country and therefore probably telling you something about domestic setters the beneficiaries of this whole whole regime so that in some actually meaningful antitrust type sense this would be a separate market segment and therefore when you find a pattern here is reason to say if you can otherwise show jumping which now introduces the home market price that you can compensate for that because the group harm sellers domestic sellers is probably different if there is a sufficient difference disparity within the u s by either by customer by time period or by region of the of the prices is that this is largely what's going on here given to this commerce ever or congress in coming up with this regime or somebody say here is why there's actually a connection between intrigue us price disparities and what we're going to do about targeting sales and and there is no remedy because elsewhere in the country you're overpriced but where there is a pattern for us price disparity the statute says that's when we can single out and actually for doing that there's one very other very important statutory argument for for me to articulate here we've mentioned this a couple times in our brief in the court picked up on it in this case in the pureed case which is that it's been widely point is that the statute provides for both of these revenues and so it's a it's a it's a well known can inspect reconstruction than congress is the congress actually isn't providing for more people remedies if they're all really the same thing and that's been one of the rationales doing right i mean there was not a lot of target trumping allegations premiums test was a really really this phenomenon and in fact you know this goes to some of the limiting rule issues that we haven't even discus the status of the regulatory the second attempt at a regulatory withdrawal believe it or understand that happened in two thousand and fourteen i'm not aware of any cleavage i believe so i'm not aware of it you know i see cases i'm not aware of any litigation briefly again on the difference between the seventh and eighth yes since this is a separate appeal yes there are both differences in the eight eight eight and i think can account for it they're saying that the remedy stage you should be able to plot all sells and there are a number of good arguments why that was wrong it's a judge goldberg explain why it wasn't consistent with the relevant part of the statute  commerce explain why you're not getting that in the nails test contacts you're not getting the whole pattern because the nails test is only looking at the lower sales and it's only looking at individual sales as opposed to whole groups and so in order to get up in that seven three mills text context in phase but they're saying you can't look at all sales at during the meaningful difference cast and that's a bad argument it what they're trying to do is kind of manipulate the data to make it to make it look the way they want it to look what i mean by that they're saying well if you just look at the dump sales and don't zero then we find similar amounts of dumping with the  eighteen but that just proves our point right because what they're doing is saying hey there's a whole bunch of dumping going on and in fact there was as we knew in our brief seven figure amounts of dumping going on when you do it that way and second that's not the way the a  method ever you know ever works the whole point is that the a has this offsetting function which in the context of when you have this pattern offsetting is masking it's taking sales with positive margins and wiping out the dumping margins that result from sales that are actually dumped and so you know that that that's their argument here it's wrong because you're obviously if you're saying well is there a difference between the way we apply these two methodologies you want to look at the way the actually would be a plot not saying well if we take the pinky of this thing and the pinky of this thing in a book then there's not much of a difference between them i mean that just proves a point to clarify this i think and i think i think there was some material in your  about this and i'm just not remembering so once you've identified from the the of these sales and say let's take the average of the u s prices in those comparative than the normal price and figure out or if there is dumping or did it say well this is a group you know eighty percent of the sales there are seriously underpriced twenty percent not let's zero the twenty percent and then do that yeah so unfortunately the answer to your question slightly complicated and i want to make sure i get it give it to you sir i appreciate the leeway to do so i think there are i think there are two different ways you know there is during the actual differential pricing tats which deals with groups so congress is saying hey if this group passed a differential pricing pass that all of the sales in that group are going to be price i'd so look whole part of the point of a d t is that they're not averaging they're looking at an average of the normal values and comparing that to the individual transactions in the united states and that's part of what helps reveal what's called with congress term the input implicit masking an expletive masking where they say implicit masking they're talking about masking that occurs because if you're using a you're doing averaging so you're already smoothing out some of the differences there might be dump sales  we aggregate the results that may be the one final difference between this case and the previous cases there's a so called double zero an argument at the tail end of the tail end of  california you said you were doing individual transactions so every single sale in california you would compare to the you know the twelve dollar price in in the home in the home market and presumably you'd find you know a think it is and i maybe i just need to figure out it best explain if you're on a there's if you had if you had ten sales in california and eight of them were and say you know the normal price of the normal value is is ten if eight of the ten sales were at five dollars and two of the sales were at fifteen dollars congress would identify you identify the dumping the average transaction method would compare the ten to the eight cells that have would have five in each of those would be done by five dollars it would compare the ten to the two sales that were fifteen and find that there was no dumping that's what you want to get your sales that were masked by you know their view they were dumping margins like five bucks on on those sales because you're comparing to individual transactions if you're using an average to average methodology then you would average all those good morning and later arrival ma'am please the court and i will be rolling on behalf of the ad hoc shrimp trade action committee and i just wanted to highlight one additional nuance that appears in the interview as opposed to the arguments raised in the seventh review and that is  the exhaustion argument that we raised in our brief where apex is trying to belatedly claim that it has a chevron line argument with respect to the differential pricing analysis that is incorrect they are trying to avoid question in all of this if their congress acted reasonably by trying to say that the statute was unambiguous they failed to articulate that theory below to the agency and commerce should have had the opportunity to refute that reasoning at the outset  this is particularly important because apex has entire chevron one argument relies on extra statutory terms such as targeted dumping targeted sales as opposed to the statutory term of significant price differences we just want to make sure that the court rejects that attempt outr and goes directly to the question of whether commerce interpreted the statute reasonably and again this goes to the idea of whether congress can determine whether eighty eight accounted for tuesday exactly exactly so again what congress is measuring is how if when they apply aid to all the sales as they do when they measure dumping overall how does that compare to when they comparison for example having zeroing or not zeroing in both sides which as has been explained extensively today just doesn't make sense as a logical matter so again commerce acted reasonably and evaluating the significantly price significant price differences and how a accounts for those in the context of all sales because that's how it's actually going to measure dumping overall apex has tried to say the statu say that that is not true that they would not always be the same if you zero on both sides they would not be number one and number two if you do we propose which is to limit the test to the targeted sales the results would not be the same  that the comparison with the home market price and you take the difference and so our point is that you cannot zero under eight with any averaging group because it hit where you can zero is across the averaging groups one point i want to make is the result will not always be the same as was articulated i wanted to pick up on another point that your honor made which was that sometimes masking is fine yes sometimes masking is fine but if we're ever bad not all masking is prohibited under the statutory approach only that tied to the significant price differences and the one broad point we're trying to make is that congress isn't doing that analysis it's taking shortcuts it's making assumptions it's simply using a zero in methodology to amplify the differences between these two margins and thereby assuming that every non don't sail we negative down sale is masking impermissibl advances and not that's not always true they need to do they need to look at it and what we're saying is it's not only the zero and they're also combining that distortion by running the calculation of all sales including those that are targeted and those that are not specific rule ever been applied in a review context before it had not appeared so you your argument is that because at the time relevant here it was on the books read by its terms fickle to investigations it should be applied in fact for the first time to review yes that's correct or at least explain why it's not being applied now because you know because it was a variable i mean for the same reasons that if they repealed we would argue is a good rule right but it is it is it is at least a reason as with precedent to say we'll leave it alone for where it is but we actually think it's not that so we're not going to extend it's a reason why they never gave  reason greater they thought the rules repealed but they had acted illegally in repealing it and be interested to hear what the reason would be why they would treat a review differently now than an investigation when they're not treated the same so i mean to that point we think there's a complete unfairness in that right i mean congress had promulgated they had interpreted the statute at one point to say ok we should only apply this remedy now talk about the remedy phase generally apply the remedy to the targeted sales then they withdrew the rule and for a small time period including both of at  least one of the first case here there seven case they then started applying the remedy to all sales now when they switch to the differential pricing analysis they've sort of thrown out that across the board approach and now if you're within a certain pattern they will only appl