decisions have considered other provisions of the statute they are not binding precedent in this case in as to the issue we are presenting the two cases that are the key cases that you decide case and the courts one case in ten can this court consider to be relied solely on the statutory definitions of dumping margin and weighted average jumping margin in section six hundred seventy seven thirty five of the statute that case cannot possibly constitute binding precedent on whether section six hundred seventy seven f one d of the statute which the provision that we were lying on requires zero one because itis she was never even presented to the court much less decided by the court in this decision and the court's reference in  ninety four amendments that speaks to it is there well in one thousand nine hundred four measure anything in the legislative history speaks to zero there is nothing in the legislative history that speaks to zero or are actually i think that alone is actually significant because commerce zeroing for decades prior to the euro gray round agreements act and there were no assumed that zero in would probably continue that may have been the assumption might be my or but that's not the same thing  continue amount to the direction the continued what they dictated congress dictated in section sixty seventy seven when the that weighted average us prices would be used in or investigations and that was a change i understand but what's the answer my question why why can't it just be that they assumed that congress would continue to use zero rather than that they directed it there are two there are two possibilities one of them is just an assumption and one of them is the direction otherwise if they weren't requiring that zero and be used then they're changing the statute in requiring that weighted average us prices be used to calculate why the change in the statute shows that congress require which require an zero because otherwise they would not have had any reason to change the statute it would have had no effect whatsoever for them to do so because they were clearly anticipating that there would be different margin results using their weighted average u s prices which is what they required in section sixty seven seven f twenty or transaction specific u s prices which were used under the which they're working if the administrative approach changes the statute doesn't have any significance what's the problem with that well this court and the supreme court have been very clear that you cannot interpret a statute to render meaningless even a single word or phrase  meaningless if it still has meaning of con commerce continues to use zero and if the agency changes its mind then it doesn't have meaning but that's not to say that the whole statute is devoid of meaning it has it has an important purpose of commerce continues to use your own the drone of that's exactly right though it only has meaning if congress continues to use zeroing if it if they do not continue to use your own then that statutory provision is actually it is if you consider each one of the different scenarios in the this section of the of the statute and if you specifically focus on normal investigations without party dumping which is the type of investigation we have in this case if commerce does not use eroding you get the same margin result regardless of whether you use weighted average u s prices or transaction specific u s prices weighted average prices were what were required in th transaction specific u s prices that would result in a different market in a normal analysis in a normal investigation that is correct but what about the other two scenarios in six hundred seventy seven though if you can see if you consider each one of those on a tone you considered ministre to reviews which is another of the scenarios the statute specifies that transaction specific us prices are to be used and forbid weighted average us price however if you don't use hearing and in this thread of review you get the same other side is argued on this is to say well we're wrong in saying that you would get the same result in a normal investigation that you would get in a targeted dumping investigation if you don't that is not our argument argument is not based on a comparison of the results that you get in a normal investigation versus a targeted dumping investigation our analysis based on so it would just look at what would happen in a normal investigation if you considered that on its own commerce would get the same result of it does not here whether it uses we did average us prices which the statute requires or transaction specific us prices which is what was going to stand the commerce was using zero for now is not using zeroing and there's a different answer there's a different result well it is a different result but now that they're not using zeroing you would get the same exact result whether you  regardless of the basis for us price for the use weighted average u s prices without sharing or transaction specific prices without fear when you get exactly the same result and that completely notifies the change in the statute that was me i congress your honor may appease the court as an initial matter we do concur with all of the arguments just presented by mr garish but in addition commerces elimination of zero ing must also be reversed because u s law does not allow in particular the t require zero ing and the interpretation adopted by commerce and by this court in timken is inconsistent with the statute we respectfully submit inconsistent with how other appeals courts have ruled on th you we're asking you to revisit him and then that would have to be done in an ongoing process i will point out though that the timken court wrestled with this question and found that it was a very close question as to whether or not zero one was required by  use section one twenty nine to eliminate zero and commerce was required to go through congress to amend the law rather than to try and short circuit the process so let me explain why the statutory definition of dumping margin has only one meaning and it requires zero one section six hundred seventy seven thirty five a defines the term dumping margin as the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise and in tim court examine to the word exceeds in the definition set it was a very close question a close question and then held that that section did not manifestly require zero one we do respectfully disagree in our view the federal circuit's interpretation is  and if this court determines that if it's reversed him going on bank is required that is correct so just to say give some context the word exceed has only one meaning in the statute and that is to be more than or greater than or to surpass we submit it has only one meaning for purposes of the definition of dumping margin and has only one meaning for purpose of the dumping law and it only has one legal meaning from the us constitution article one section two watch three i'm down through all us laws and regulation and case law onstott to use the word cedes it does article one section two the last three says that the number of representatives shall not exceed one for every thirty thousand we think that the meaning of that provision is clear we think the meaning of the provision in thirty five a is also clear and we would say that the mathematical examples that  excess well because the definition of the terms dump and dumping makes no sense if a dumping margin can exist for sales made at more than fair value so you really cannot have a negative number that would be aggregated in i'm saying that there is first a calculation made of individual dumping margins and those margins are only the amount by which the normal value exceeds us price and that number is a positive number or zero it does not it cannot equate to a negative number on those that's correct i'll also note different years the u s government also argued before this court and others that the antidumping law required zero and required zero in the statu so based on that definition of dumping margin it's not permissible for commerce to calculate a negative margin or to include that value in a weighted average company margin to answer your question your honor while the w c l has now issued multiple rulings in contradiction the problem is that u s law as it stands requires the practice and finally as a matter of practice i would just point out that this is critically important purposes of the dumping law dumping is potentially injurious whenever it occurs just ask you to consider the example of two sales sales for wal mart that's done a sale to target that is not the sale to wal mart that is done is still injurious to a u s industry regardless of the fact of the please the court i'll start first by responding to us deals presentation by pointing out that commerce still uses zeroing in most instances congress made a limited change in response to an adverse to b t o report and that and certainly the parties have noted over the years zeroing is nowhere written in the statute it's it's an unwritten practice even of commerce is it's not written in any particular regulation or or anywhere else as the section one twenty three notice is the first time that commerce is uses zeroing are not used during appears anywhere in any kind of formal any kind of formal statement so it's something it's a methodology that commerce he used it's nowhere written in the statute it's fair to assume perhaps that congress that the commerce that commerce would use it but it's if if congress didn't see fit to put it in the statute and if congress was silent on it then that's a gap and it's down to the commerce beyond this court reach it is that issue and champions the court intent and spoke very clearly on this issue and it said at least in a mathematical context accedes does not unambiguously preclude the calculation of a negative dumping margin we're bound by that we think the court is bound by that and that's what we have to say about it as mr brightman pointed out yes we made the opposite argument for tempe and we tried to convince the court that the statute required zeroing is that is the purpose of that to find out the margin for the calculation of dumping duties on individual transactions is that the primary purpose of that definition of something more well that the purpose of the what i'm wondering is whether or when he talked to thirty five b talks about aggregate pumping margins does that necessarily mean that the aggregate not the margins have to be computed in the same way that the individual be calculated the same way and i think maybe it's it's helpful to look at the difference between the way congress does the calculation in an administrative review versus the way it does it in an investigation and helpful it in a big picture way to recognize that even when commerce uses zero laying it uses it differently in an investigation where commerce is using weighted average as of on both sides of the transaction and vs and ministry to review where commerce is using the  weighted average normal value and just comparing to one export sale i'm not sure that answers your question but i think it depends upon what commerce is doing it i guess  mistake is whether even assuming the domestic industries interpretation of the word exceeds thirty five is it still not possible that thirty five b when it talks about that yeah i mean i suppose that's one way to look at it it's certainly not and it's not anything that congress has articulated it's not an interpretation that commerce has put forth the way that commerce  abuse the word exceeds is limited only to section six hundred seventy seven thirty five a and in in terms of whether congress things that it can use yearly i don't think congress has ever articulated an interpretation of the statute that moves on section b and i mean the argument that the court is making but it certainly possible new the way that it now does the calculations as it goes to the statue it looks to see what kind of comparison it thinks it should be doing and then it's guided by this court's determination int in which us deal relies are cases and which an argument has not even been presented to the court it hasn't been presented to the court and then it hasn't been addressed by the court and in those instances the court has felt that it is not bound by the previous decision that's obviously not the case here the basically what us still saying is that is that the court did not review the whole statute which is obviously not the case because corus specifically mention six hundred seventy seven affirmative presentation both dealing with section sixteen seventy seven f one first appellants contend that this court has not considered that provision in the context of zeroing that is untrue indeed in steel's reply brief they concede as much admitting that they've raised this exact argument before this court in a number of cases us steel's apparent point of contention is that the court did specifically reference that statutory provision in its determinations but rather uses language such as considering the statue as a whole considering the legislative history as a whole in point of fact however this court has considered appellants precise arguments on section sixty and seventy seven have warned the on a number of occasions on each of those occasions they subsequently analyzed commerces actions under prong two of chevron finding that and i dumping statue is ambiguous as to zero turning to the substance of their specific arguments under sixteen seventy seven f one this is the calculation examples that they  provide provide for that namely that the three comparison methodology is provided in sixteen seventy seven f one d would render the same results if zero in were not used that is also untrue and it's a flawed analysis basically what us steel has attempted to do is still a very complex and i dumping calculation into a one page summary the example totally  number of specific methodology and policies that are employed by the department of commerce that would render that incorrect for example us steel example ignores the time periods over which weight averages are calculated for average to average transactions that time period is the entire period of investigation whereas for average to transaction calculations that time period is monthly buck clearly when you work when you're calculating averages over different periods that would result if it's the same period of the same result that that if that could be true but that is not how the and i dumping laws are drafted  the department calculates an anti dumping margin and that's just one example other examples are the contemporaneous tales requirement how you compare the individual transactions to the average the monthly bucket or the p t o why wide bucket the the in the average to transaction comparison methodology that would result in specific transactions being compared to specific monthly buckets however in an average the average transaction there is only one bucket so there's not going to be any difference as to which specific us sales are true are compared to that average or normal value in the calculation and this is this totally ignores the transaction transaction methodology that's also provided for in sixteen seventy seven appellants don't even address the third comparison methodology that's provided for in that in that statutory provision and that is because when you do individual to individual transactions don't use a weighted average in the same so the elimination of zero ing would still result in a difference with respect to that comparison methodology but there seem to me to help very well if their argument as i assume it is that that whole statutory provision is rendered meaningless well the as many times with the whole provisions rather it was part of the chain as they still have a point and that's assuming that targeted dumping is not use assuming that the specific calculation methodology that the department employees are ignored i think if you simplify the transaction or the and i don't think calculation into a one page comparison that has no concept in reality then appellants may be true but the fact of the matter is in reality there's a number of specific detail argument completely falls apart the and if you factor in the transaction to the average transaction person methodology that's undertak targeted dumping if the appellant's argument is further voided because in targeted dumping investigations instead of using all the sales transactions at issue specific subset a subset of the targeted sales and so that fact alone renders that average to transaction methodology that appellant's are specifically discus discussing that makes their whole argument fall apart the last point that i wanted to make that has not been addressed at this morning is this court's jurisdiction to consider the section one twenty three determination the jurisdiction of this court and the court of international trade below is such fourth in sections fifteen eighty one c and in turn fifteen sixteen those statutory provisions do not provide or jurisdiction to for judicial review  to demonstrate it with absolute mathematical certainty we've done that using an example of a mathematical proof in our brief it has never been disputed not once in this case and in fact mr bieber made arguments here that he's never presented in any  he has not disputed it once that you get the same result but you don't want to take our word for it or don't understand the math on this and that's because us government has repeatedly made this argument and relied on the fact that you get the same margin result if you don't use your own before the same i couldn't have said it any better myself now mr bieber also indicated that our argument was raised in considered by the court in course walk that is not the case for her we made the argument it was never addressed not one word about r u it was mentioned in the court's decision the court completely ignored our argument in this course been very clear in saying that unless the decision squarely and explicitly decides and issue there is no binding precedent on that issue there is no binding precedent here and this court must consider our human under section sixty seven seven and twenty one final point work for the government indicated that  there is a fair assumption here to be made that congress thought the congress would continue to use iran but there's nothing in the statute there's a gap there to be filled by commerce where they cannot fill the gap here in a way that results and it entire provision of the