and next case is tension steel industries versus the united states a p r member seventeen twenty five twenty six mr di francesco whenever you're ready thank you in the morning your honor may please the court and robert de francesco on behalf of l it matter to corporation as we indicated in our briefs we believe the lower court in this case overstepped its authority in rejecting the department's one standing practice regarding how it evaluates respondents rebates and lower court in this case and lee excepted what we believe is a flawed court of international trade determination koehler e g regarding the department's practice and its regulations we believe that both decisions by the court and tension one and the court in color a g to require commerce to blindly accept all reported rebates by respondents contradicts the agency's interpretation of its regulations its past practice and without providing the proper amount of  regulations to reach this conclusion both courts in those cases improperly interpreted the term that outlay in the apartments regulations to mean the department must accept any and all rebates paid by responder regardless of how dubious those rebates investigation as opposed to from thank you are i think to get to the question of whether there's manipulation you still have to get over the first hurdle does the department's regulation allow it to go behind what's going on with the the ambiguity at least in the regulation is there's a portion of the regulation actually in two places within the regulation that say the respondent or the person coming in and claiming the adjustment has the burden of proof to demonstrate to the satisfaction agency that you carry that burden that they're satisfied at the same time the court's interpretation of net outlay these are the this particular rebate says well even if i find that you haven't satisfied the commerce that you are entitle to this rebate i have no choice but i have to accept it beyond that the department's practice as it relates to rebates has always been before the regulations were written and after the regulations were written to say if the terms of the rebate are not known at the time of the sale i will deny the rebate and in this situation going to your other point visibly the really the merits and fi analyze the facts is there room for manipulation in this case and we have a scenario where there is no overarching document outlining a rebate program if you will the only documents that identify that a rebate will be granted if any are in the sales documents in the contract of sale and they don't appear in every contract of sale they occasionally appear in a few contracts of sale and then what we have happen later on is the respondent in this case says in within the contract t sale it says if i get a price adjustment from my quite a supplier remember this is a pipe that we're welding coil back and if i get a price adjustment for my coral supplier i will pass not it doesn't say how much if any of that benefit on to my customer it only says that in a few of the sales contracts not all however in this case where there were price adjustments given some of which three years before the gathered all these different price adjustments and then allocated them across all of those sales and in certain instances there were price adjustments or rebates that were granted were no price adjustment on the coil is granted at all so they didn't that the customers are aware of and that the customer would know i have done something to satisfy this benefit and can actually enforce it contractually that that doesn't exist here all this is simply a means of the respondent being allowed to right there's any number of reasons why you might provide certain benefits to the customer i might give the customer stanley cup tickets i mean that that relates to the particular sale x given him something of value to dollars and cents on when money was  program itself and said in that case you know i'm going to look at the terms did you follow the terms was the customer aware of this or what they're looking for a manipulative behavior correct and we believe that does exist purely to get  substantial evidence that which is correct you're overlooking i just don't understand the way you're living in both ways but like i said the their practice their form of commerce is practice is how they look at these rebate program says existed over a very long period of time and hasn't changed in the preamble to chosing to not be here today and they've chosen to modify their brain function correct or are correct but throughout both in the original determination in this case and even in the regulation when they modified it they said explicitly they didn't agree with the court as the term an action they did it without prejudice when they were modifying it and they didn't think it should be taken as well we i don't know where they are going to mean it is it is interesting that they chose from the very adjustment you made after the sales that you're taking this initial sale in the home market right it's very very important for the whole scheme and the law allows that to be tampered with after the fact so moment to god what's going to happen  but and that's the reason you highlighted about the extra scrutiny for these sorts of post sale adjustments and it it applies not only through rebates and talk the regulator also talks about discounts and talks about other sorts of  obviously a great possibility for manipulation correct and so that's the laser i am with her when they're doing a lot of it is looking for potential manipulative behavior correct and that frankly your honor it's that reason for that additional language within the and so that language is there to allow them to have that additional scrutiny which they applied we believe properly in the original investigation in this instance when they looked and said we'll grant some but not all because those terms were not outlined in all of these it not if it wasn't if it isn't paid then the credit is going to be given for it and the company has the burden of demonstrating in its books and records what that amount was how much was paid to the customer  tie rebates provided to us customers to particular sales transactions that work commerce was able to verify that information and it wasn't something where they took a big pot of rebate money in the financial accounts and then distributed that somehow randomly among the consistent interpretive interpretive tool that allows them to decide which rebates are illegitimate and which ones are and your ever solution what's wrong with that  and decide whether a reasonable interpretation of that language critics food requirement that the customer happy the customer and the parties to transaction have knowledge of the rebates terms and conditions at the time of sale the regulation as long as you can demonstrate a rebate was actually paid the nature of the thing with a rebate because congress remember has has the in their inherent authority to maintain the integrity of its proceedings and if congress determines that there is evidence of manipulation  after the fact going on congress has the discretion to say no we're we're not satisfied that you've demonstrated that these are rebates that were not intended a discretion chip to probe that to develop the record around it to decide how far to probe it whether or not to bear it try to attempt to verify it but certainly at all times well it certainly of companies watch to have their rebate accepted by commerce moving forward i think they're going to have to document rebates perhaps more rigidly more heavily i can't speak for every and you know i have to say in my experience representing respondents for last fifteen years that rebates are not very common thing in general that you happen in certain industries more than others but it's not i would say it's not a common practice and it's an every once in awhile sort of issue that can crop up so i think that maybe part of the reason why there isn't a whole lot of rebate related precedent i mean there are some and certainly you know the i mean just because congress had a practice of requiring a very very longstanding practice let's say of requiring knowledge of the rebate terms and conditions at the time of sale doesn't necessarily mean that that was a consistent that was an interpretation of the regulations that was consistent with the regulations themselves just so happens that when someone finally challenge that practice in light of the language of the regulations congress on itself getting up it overturned its requirement of the knowledge overturned and we have to judges now in agreement on that you just quickly to your question about verification of work it's i would direct your attention to page six of the verification report it's a p p x zero zero one four eight seven some of that information is proprietary obviously so but it does talk about what commerce looked at it verification they did verify that rebates were pay my assertion is that what they were able to verify is when there were price adjustment on situation where the when these cases were filed this was one of nine cases filed at the same time there were allegations of critical circumstances that went along with those and within those allegations are critical circumstances part of that critical circumstance fissions  there was knowledge of these cases were coming early on and that that's why we filed the critical circumstances petition itself to address those types of things so anybody any respondent paying attention would know they would need to adjust things to quote unquote dumb proof their sales to prevent that and in fact again going back to the verification report where it says and this is public you know we asked tension to reconcile this fact with the claim that even granting rebates on sales of those if you do since two thousand and nine and she clarified that it granted rebates on sales made in two thousand and nine but that the rebates weren't paid until much much later so it's granting a rebate but then holding on to that money for a long period of time and then suddenly granting it all at once just for the case file in our mind that is manipulation there was substantial evidence for commerce to deny the entire program instead what they did here was say you didn't satisfy the terms there wasn't a legitimate rebate program at least for a portion of the sales and denied those and you're correct your honor judge stance his interpretation of the regulation would make it would be very easy to manipulate