there's nothing in here that we need to be concerned about in terms of confidentiality please the court my name is david bond partner with waiting case and i'm appearing this morning on behalf of hyundai heavy industries or appeal presents two issues the first is whether the circumstances presented before the c i t presented out a little bit of the history of what happened in the case and it seems to me that it makes a pretty good showing that in the final decision and in the amendments to the final decision that there was some confusion and back and forth and it kind of struck believe that under those circumstances the c i t did not abuse its discretion in saying i'm going to send it back out and no one disputes that those papers i think i would direct the court to page six of our reply brief where we discussed the actual complaint that a b b raised initially before the c i t the specific programming language with with respect to the treatment of commissions in the commission also which is exacerbated sadly precisely the same language which was presented in the preliminary results there is no difference whatsoever in the way that the commerce department treated us commissions and it second amended final results compared to the preliminary results and there is no difference in the way of treated the commission offsets and therefore in the evolution from the preliminary results to the second amended results there were some changes and descriptions and things like this as to what was going on but the central claim as it was stated the specific programming language that was identified in the complaint was precisely the same as the programming language and the preliminary results but as she was not raised in any way in the case i'm not i have the burden of reviewing commerces determination that it didn't sufficiently explain itself or clear  giving an adequate explanation for that which was the basis for the c i t hree mandan maybe you want to well at the time the preliminary results were issued the programming language was the way the language were able to interpret what the commerce department was doing and yet there's no mention of the judge in their case it seems to me odd that we would excuse them from the obligation to have raised timely issues with respect to the political results in their case brief case brief it had the programs in front of it the programs clearly identified here which it later raised at the c i t so while things that happened after the preliminary results in the case were filed may have added no further points for discussion in that appeal the core issue which was whether the commerce department was correctly accounting for the commissions and the offsets was perfectly clear in the preliminary results let me if i could just switching from the from the abuse of discretion issue to the merits other differences in the circumstances of sale and i understand the argument you're making about the commission offsets your but my question is was there what if any apart from your argument about conditional offsets what if any justice were made in this case under the circumstances of sale vision well there are a variety of factors that relate to some expenses in particular that are accounted for through a circumstance of sale adjustment for example warranty claims would be why there are adjustments made with respect to differences in the credit period in each market the credit period being the time of those what you're describing made in this case yes that's what what in other words what circumstances of sale of just one were made in this case and if you don't want to use time rattling them off you can direct us to where in the record which on the way if the programming language w research that i'll provide the information during my rebuttal time if that's ok that's for me the basic point however is that various circumstances sell it just ones are made to bickley and were made in this case for concepts aside from the commission view the commission issue really boils down to one of fairness and accuracy it's quite clear that the statute directs the prices for export to the united states and exports that are prices that are being used for normal value be adjusted to an ex factory basis the net price and then in doing so in order to arrive at a fair calculation there has to be a symmetric adjustment or a allowance to each side to account for the same sorts of expenses so with respect to commissions in  argument on the regulation by three five while we take the next one no we take the next step your honor which is that the commerce department has correctly recognized that really a commission is accounting for a selling function it's accounting for the effort the expense that a company makes to sell the product and so in a circumstance where you have commissions being pushed back to one market but not the other it's appropriate to arrive at a symmetric comparison to account for the selling expenses in the market where commissions aren't being paid you offset the commissions in one market with the selling expenses being made in the other market to sort of equally account for the selling function is being performed which is why if you look at the regulation the only condition of the regulation here at the condition must have been paid or incurred in the foreign market with respect to a sale our view is that the statute speaks clearly to fairness and cemetery in terms of the calculations and but here for whatever reason the commerce department has interpreted that unreasonably and only one circumstance not to apply and that circumstances where the commissions paid with respect to u s sales are incurred in the united states as opposed to outside the united states ultimately the result is that in every single dumpy calculation of this particular sort whereas the c p p c p transaction which means that the us sells made through an affiliated reseller where the commissions are incurred in the united states will artificially have the dumping margin increase substantially in our case just with respect to this one review it's over a million dollars and over the course of multiple reviews it will be many many millions of dollars in our view it's on reasonable there's nothing in the statute that results vary directs the commerce department to make the sort of asymmetric adjustment there are places in the statute where commerce is specifically directed to make asymmetric adjustments in particular with respect to profits that are incurred on affiliated i would say the most direct evidence is the discussion or a case brief with respect to the commission all of sudden the six scenarios that we've had and essentially you get to six different scenarios because you have situations in the u s where you have  wasn't exactly the question i was trying to get at i was trying to get at is there any inconsistent behavior by commerce because of the this exact censorship prior to our case and prior to i think one case before that the commerce department had granted commission  under these circumstances about a year or so before our case they decided to stop doing that without any particular explanation and certainly no change in the regulation of the law that would warrant it so prior in time yes there are inconsistent treatments of the same issue explain give me an example and explain exactly how that's working so our listeners know what you're saying but i want to have a clear picture of my mind of exactly what happens there you need concrete examples so we have  situation where you have a u s sale where there's a commission incurred outside the united states commerce puts that in the field they call us com then they have they're comparing that to the normal value so that's the sale you they get they sell it for in their home market the sale of the same product in the rocket same park in the home market these big pieces of equipment yes these power transformers so you're comparing what they sell it for in the home market to what they sell the same product for the u s that's the goal of the fair comparison of the statute if you have a commission occurred in the home market for normal value want to sale to it what customer in the home market the way the commission also is going to work you're going to compare the commission they're getting when they sell it in it's added to the normal that in the home market right so that you know make it and then he wants the next step where there's this offset based on army outside the u s so you have a commission incurred outside the united states for a customer if the commission on the sale to the u s customer is less than the commission that they pay for the sales in home the market that's an offset that makes the normal value go higher which and essence would mean that they're more of a dumping margin if the commission for the us sale is higher than the commission they're paying on the home market sales then there's again the whole market christian offset that makes the normal value go lower fifty thousand what happens as it does of sac we get factored into this normal aren't so in that case you're saying that the commission on the u s sale to curt outside the united states is less than the home market commission you under that situation  get as accurate a comparison between what sales are like in the home market what sales are like in u s market and this is how commerce is approaching that would that would factor in that fifty thousand dollars right and that they expressed that through their change around the the amount of adjustment in the normal market which in the home market which is on the normal values side because it's not making an adjustment based on economic activities occurring in the home market if the economic activities are occurring in the united states commerce made the decision that you don't then go back and adjust the amount of commission in the whole market you're just doing it in your adjustment of u s price based upon their reading of the statute based upon  their reading of the statement of ministry of action which talks about economic activities occurring in the united states and if you do mr bond that there were in this case certain circumstances of sale adjustment that were made yes and we would direct the court to the the remand the initial final results would go through probably the bulk of those there is also an issue in decision memorandum associated with those also the second and then a final result ages in the appendix for  adjustment release one being discussed so again the remained results from that the court case which the court has asked us about during the oral argument would be another place to look but in terms of other distinction but commerce is interpretation was reasonable and the trial court's determination that congress determination was was correct for the reasons stated there first the statement of administrative action speaks very explicitly to economic activities technique only applying the offset when the commissions are incurred outside the united states that was a reasonable interpretation of the statute in light of those provisions they hyundai also talks about three fifty one point four ten subsection e saying well let's talk about commissions incurred in one market not the other it doesn't say what market so then you must have to do the same thing everywhere again that's not supported first that regulation was promulgated pursuant to the normal value statute so it doesn't it's not under the us price statute also the situation we're talking about here at home our commission off that there are commissions in both markets is just it how commerce chooses to analyze those in order to reach a fair comparison and commerce is determination based upon that analysis was reasonable  programming language that's an expressive methodological decision that is something that commerce is charged with doing hyundai has not shown the commerces analysis was unreasonable or contrary to the precise language of the statute such that commerce is language in for those reasons that report concludes that it should reach the issue of commission offset then we respectfully request that the court affirm the decision of the court of international trade with respect to that  increasing or decreasing any difference between export price or constructors price and the price of this and the normal value price described in one b of the section so t the constructed export price is calculated by deducting commissions incurred in the us first so the c e p t that's being compared to normal value no longer has those commissions in it since there are no commission still included in the constructed export price there is no basis on which to make the circumstances ala just met in that instance there were no home market commissions to balance it seventy seven b it cannot grant a a right that the statute didn't give it which is there must be something in the us price against which to offset and it's not there anymore based on the plain language of the statute so and then of course the statement administrative action draws that distinction to the statement of a straight action for states versus those that are not where you have expenses not related to economic it to united states you go to the circumstance of sale adjustment because you won't have already deducted those in the calculation of c a expenses that were paid outside the united states would be subject to a circumstance of sale adjustment mr total was describing force yes they get that there are setting for the difference in selling expenses when mr bond has been arguing is that since there are no home market commissions there were other indirect selling expenses in the home market that should be adjusted for but he's thank you i'd like to focus on the commission issue with my remaining two minutes just two comments first i think it's very important to focus on the fact that there are two separate issues involved here the first is the treatment of commissions paid on u s sales under the statu and the statute makes a distinction as to how that adjustment is made based on whether the commission is incurred in the united states or incurred outside of the united states so the entire discussion that we just heard about whether you deduct it from the  us price or you make a circumstance of sell a judgment relates to the proper accounting of the commission paid on u s sell it tells you absolutely nothing about whether a commission offset should be made with respect to that u s commission our point is that a commission off that should be made regardless of whether the u s commission is incurred inside or outside the united states as mr barrett just described it's perfectly clear that with respect to a c e p t cell where a commission is paid on that u sale and it's incurred outside the united states a commission also that is made for the selling expenses incurred on a domestic sale in the domestic market but inexplicably the commerce department has decided that that very same adjustment won't be made simply in cases where the commission is incurred inside the united states with respect to the very same sale that this distinction as to whether the check is written in korea for the commission versus the united states is distinguishing whether commission is offset whether commission off is made for selling expenses incurred in the united states it's a completely arbitrary distinction particularly in light of the commerce department's logic that an offset is required in any case that's appropriate in any case where commissions are incurred with respect to sales and one market