clients targeted not the methodology in this case we raised several issues in our brief about this but i'd like to focus today on one issue in particular and that is the commerce department is unlawful use of zero as part of its threshold meaningful difference analysis so i know the court has dealt with zero in many times in the past but that has been in a different context which is mostly in the context of the marching calculation what we're talking about here primarily is the use of zero in earlier as a threshold determination to see whether they can use your own later as part of the calculation were making is that it's fundamentally unfair it's unreasonable it's arbitrary and it's contrary to the statute upon which they were like to use zeroing as part of a threshold determination to decide later whether to use serially we have argued that not only is it contrary to the language of the statute which talks about the analysis being that you must account for price differences so you must account for differences in prices but what the comment before employing the alternative remedy however what the commerce department is doing is simply accounting for zero in differences between the two methods that then allows them to use the alternative methodology with zeroing as part of the margin calculation now we have never disputed that the commerce department may use zero and once  deployed as part of its calculation what we have said is they can't use zero in the way they're using it in an even manner as part of their threshold calculation so what they're doing is to determine fundamentally you're doing it in  analysis which is the first phase of their targeted dumping analysis to decide whether they can use their alternative methodology they they compare the normal calculation which is the average the average methodology without zeroing they run the calculation they run the margin without zero which means they use offsets they then get a result which in this case was zero when they compare it to when they run the calculation on all sales they then run the was a good question actually what they're trying to find is that they find whether the methodology accounts for significant price differences and that's where we think they're going wrong what this methodology is doing is it simply accounting for serial differences it's not accounting for first the how do you going to know whether or not that pattern deserves you know nothing new in what you can measure the domestic prices against the homework right well that's the ultimate calculation but at this park they were in the threshold determination whether they're pattern deserves an unopened beauty yes that's the ultimate end game here right so first we have to decide whether there's a pattern or whether it's significant that's one that's one calculation we're not disputing that part of calculation it's the next part to determine what if it's because it's not actually getting to whether there's masking going on there's just other places it explicit assumption that there's masking going on all they're doing is taking two methodology and running the calculation and comparing one half of ours who are used to find out where they're masking was actually happening the methodology we would use is we don't have a problem with them using the meaningful difference test we have a challenge that that's that's the test they've come up with the test that they have devised is to determine whether to use the alternative methodology they may calculate margins alternatively under a day which is the way they normally do it and then under eighty and they decide if there's a meaningful difference between those two margins as they calculate which they define as either going from below minimum which is what happened here which then they will they will then decide that their normal methodology cannot take account of those price differences and then they apply the alternative methodology so we don't necessarily have a problem with that methodology what we have a problem with is when they do the comparison there is zero in only on the eighty comparisons and not on the age comparison so what they're doing is they're allowing offsets on the  parents which means that any time there is a non dump sale which has a negative margin that will that will reduce the positive dumping margin market you have an average it's just and it's always just an average price so let me give you the simplest example you might have a home market price of twelve dollars and then you might have let's keep it simple two u s sales one for  fourteen dollars one for ten dollars and so the eight to a then in the us you would average these two prices together and make twelve you have twelve against twelve so there will be no dumping there eighty comparison you with and split that out fourteen to fourteen in the ten and compared to the twelve right that is true masking you then split out that comparison to reveal the average reveals dollars twelve to twelve individual calculation reveals dumping of two dollars on one and negative two on the other that is mask number now you would zero that out under eighteen by just not counting the negative numbers now your question ron or how you would apply that in an average the average case that's what offsetting is so the complications are very delicate very complicated so they're called averaging groups and so what the example i gave you is for one controller so that's one that's where the average in the group can be but you're not complaining about the group either we're not complaining about the group averag say you have one control member where there is that's dumping another one where there is not where it's negative now under eight to eight because of the w t or rules and because of what the u s government has agreed to they no longer zero that's called an offset so you have an offset from a different average in group our view is that that is not masking that is simply offsetting across averages true masking is actually the example i gave you with the with the ten and the twelve and fourteen within an average and the reason that so is even the if you look at union steel that case talks about masking being masking within an average and group and that is also the situation which is the whole reason that congress an activist actually in the first place was to switch from an eight to eight from eight to teaching aids and the concern was masking within an average and group not across average in groups and so the point i'm trying to make as i see my time is running out is that what congress is doing fundamentally by using zero in at this first money and people here this first stage of the calculation there a every every offset across with just under eight a is masking dumping and we're saying that's just not true they shouldn't make that assumption injured in your example the two sales different customers fourteen and ten could ten fit the first requirement for targeted dumping namely be a reflect a pattern of selling at a distinctly low price a particular customer if it could reflect the pattern although if you then used the statutory language for a two by definition of which in which there is no zero point the statutory language is just weighted averages of the us prices then you would that would disappear that would disappear under under  so who wouldn't be a no i just said under a day oh i'm sorry and under a day would not disappear because it would remain averaged so you would have a you would have identified t statute says you've identified a pattern and we don't have a dispute about that here right you cannot because you nails here and in the other case the other test there is a separate sub market and we have to say what that is here is that secret that this is a time period target group yes that's fine and then we're talking about the second requirement and commerce explained why the difference between in your case the fourteen and the ten is can't be accounted for by simply taking what the statute refers to as comparing the weighted average of the normal value the weighted average of the export prices are now we're just averaging the u s price how does that take account of the fact that we've already identified the ten as a separate targeted pattern like what we would argue that by comparing the two different margins which is what they're doing right that if they can result under eight and under eighty that difference within the average they they can account they do you account for by switching to its they split it out and it reveals that individual dumping that they would not reveal and so they do the comparison well do i mean i i truly may be confused and i'd love to be enlightened ten and fourteen home costs twelve ten is identified as a pattern of disparate prices under under the whatever the you know the the one or something so that's a targeted customer if it's identified as such you're right answer and then you and that and then the second step is if you just do statutory a day which is x a plea averaging fourteen in ten you're going to come up with a zero don't think margin right because the average of the twelve and we go to that whole market price was twelve that's correct so how could that possibly account for what you've already determined to be the ten as a target we're saying within that average that's the correct way to do the comparison so we wouldn't track disappear and you you would be using the the average ing because overall averaging method so as to say we determined that there was a targeted customer but never mind no beauty yes within the average that's ok what we're saying is that happens maybe fifty times a thousand times you have all the different control numbers in your example there were two that's correct you just explain the big your position results in a finding that the ten is a target but zero damping margin that what we're saying is that what congress is doing is looking at all of the other that's just one example but because there's averaging groups by all the different control members this may happen twenty more times and in another situation because it's what happened here there may be a situation where there is no masking at all within that bridge that would be if i take the same example let's say it's ten in the whole market and let's  fourteen fourteen and fourteen those were all averages fourteen and that would show no double plus plus plus negative for actually right and then if you broke it out to the transaction specific it might it would still be fourteen fourteen and fourteen so in that case there would be no mask dumping well in your average working working working in them a good work you know it's above twelve and there is no will we argue that we're on what it's showing and what it's showing is negative dumping in that situation and so what congress does is in that situation when they do the comparison between eighty they just set all those back to zero without actually considering whether there was mass dumping or not so in a sense they are negative dumping margins to zero so in that example that the second example i gave you which would be ten fourteen fourteen and fourteen that would be a negative don't be margin because there's no dumping ten min zero right so that they are just the point is they're making an assumption that there is masking across the averaging groups when in fact that may or may not be true that our position is it's not true that masking according is that it reveals dumping that is otherwise masked by the averaging and offsetting features of the ada a methodology and i can briefly try to clear up some some information about the history of   not something called to say which is not in the statutes i'd like you to explain to me how this statutory language means anything other than simply comparing the weighted average of the normal using zero oring or not it then with this court judge prince is focused on is a section of the statute i believe that six hundred seventy seven thirty five it's certainly cited in the background legal discussion in our brief where it talks about the dumping margin methodology because now that the ada a methodology both incorporates averaging and offsetting the type of offsetting that at that your honor is discussed with counsel for apex is exactly what commerce is seeking particularly both u s steel and union steel recognized that zeroing it in extra complete link for the with the eighty methodology so the whole idea is that the methodology is you're different that's why you're using the lose the fact that you've identified the target market market as or target customer target time period and you win easy so that if you start say oh well this a day can fridays some of which include zeros then i don't understand why none of them can take a chemical your honor we one hundred percent agree with your reasoning and i need to emphasize doesn't do it and that's why your honour's reasoning is exactly correct because the way congress applies it in a methodology and the way that a tax with i want congress to apply that it a methodology open ultimately is with the offsetting to he has argued to be fair to him he has argued that the appropriate way to compare the eighty methodology is might be using a with viewing but that's totally just totally illogical that that's that's not how it's applied grandstand and then you have is that i understood him to be arguing that and i think that's completely illogical because it's not how how that how it works and it's defeating the point i mean of course if you use your o where where the where the agent see applied the meaningful difference task just the way it does here and determine that there was not in fact a meaningful difference between eight and eighteen not talking so it doesn't always result in a finding a have a simple scheme that it just a way and example i don't mean pointing to a case just talk about an example in which under your view the account for vision might actually result in deciding oh this does account for sure and those are those are all the cases a twenty to twenty three i don't want to hear about referee ok says i want you to explain it in some sort of american example like is ten fourteen short well for example you could have an instance where the even though there is a pattern of targeted dumping that has been identified when when you openly imply that any team methodology it's  area sure it let's say you have two targeted sales and everything else is is is not hard the difference between the eight and the eighteen method that you're going to get even if even if those couple sales and  engaging the parties not engaging in dumping if there's a pattern of significant price differences but it turns out that it's it's it's not actual dumping they could i mean they're all for and they're all well or maybe even higher maybe they're all above the normal value following the statute congress commerce it has articulated into reasoning one question on this they were not at the patent stage we're not looking at dumping we're looking at the statutory criteria of whether there's a pattern of significant price differences which  very clear on this that in forty three it says it may mean that there's that there's targeted dumping similarly the statute doesn't say the difference is it says such differences so the pattern serves as kind of a red flag that hey we see a pattern there seems to be targeting going on here it's only when congress ultimately applies the methodology that get that determines the dumping because that's where it's comparing us prices and normal understood your honor it likewise here it's appropriate to defer to the agency because it's reasonably using zeroing to reveal maps dumping as it has which where they do not  zero i think it's also important to say that when we're talking about what we're trying to do is we're trying to decide whether there is mass dumping and we have in this court has decided that it is zeroing that reveals the mass dumping and it are very tangible form the result is different with or without tearing i gather in these cases and that certainly is a matter of concern with respect to statutory compl yes i understand that but again it you know it's not the zero it's not necessarily a short cut i don't think i think they're doing it is just a methodology that actually reveals what's going on what it what it what's going on under lying when here's a price we're not going to zero it whoever's are going to zero they got the prices so we can really figure out ok what's going on down below where is there dumping and how can be sure that's not being masked by prices above does seem to import some notion of underpricing but the definition is patent thing could be identified areas in which there is for example  about which is a have to be in u s prices and that says nothing at all about the relation of those u s prices to the prices in the home country that's correct so why does meaning a difference between the two and then right so prices in california are one standard deviation away from prices in the rest of the country so far we haven't said whether there is any dumping anywhere well if you have ok sure you could do that ok now explain if that's what the patter is what's the range of permissible meanings of a cannot account for that well there is a a you've now suddenly introduced something about the relation to the home prices ok so then when you're doing your dumping margin yes you if you do introduce the home prices when you on that next phase where it was figure out what the dumping margin is but in the case of i think that you were just talking about prices were higher and as such are you to still or if they were lower than yes you can say ok with this they're dumping in california versus some other places or is it a regional difference and then you have higher prices someplace else you say ok well here's what the pattern just now in order to make sure that