neil corporation mid continent was the original petitioner in the ne dumping investigation that's addition here and still nails from the united arab emirates that was filed a petition in march of two thousand and eleven original regulation no commerce went through with a notice and comment procedure that was intitled of the non application of the withdrawn regulation and they gave notice and comment went through a notice and comment proceeding and formally continued not to apply the withdrawn regulations of commerce has not applied withdrawn regulation in any case since the time it was withdrawn other than are being managed in a few cases from the regulation there was a proceeding after the first court of international trade case that said there was a problem with the original e p a procedure commerce went through another a p a procedure to withdraw the regulation prospect of lee that was in two thousand fourteen i believe and what's that kind of what's the outcome of that and so the up was that it was it was deemed that they would continue to have the regulation as withdrawal that they haven't withdrawn the regulation yes they have they did through it in a formal proceed in a formal proceeding they went through eight other is that final now yes it is so the regulations withdrawn so the regulation is withdrawn and we're just talking about the effect of the old regulation that is correct and what's that period so the period of time would have been from when the regulation was originally withdrawn which is december two thousand and eight op i would if i would assume that would go up until two thousand and few that have been raised in the court of international trade the judges of the court of international trade of taking different positions on that my understanding is that all the other cases of not participating in them my understanding is all the other cases want up being resolved  so i believe the the withdrawal of the regulation i think also needs to be put into the context of a lengthy proceeding which is actually still ongoing in which the commerce department has developed the alternative average to transaction methodology that was provided for for the first time in the one nine hundred ninety four euro by round agreements act so to implement the w t o proceeding commerce actually used to use the average to transaction methodology in all investigations and reviews beginning in one thousand nine hundred four to implement the w t o agreements connor switched to using an average the average methodology in original investigations with the exception that it could use the average transaction methodology in some cases and until two thousand and seven it was hardly ever used it was hardly even looked is probably heard about more about zero in that it ever wanted to in order to implement that commerce began to more actively use the average to transaction methodology and in fact this court in the us still case in two thousand ten when it first approved commerce moving away from using zero in the average to average methodology said well the reason commerce always said it needed to do that was to deal with the problem of vast dumping where some piccolo cost are causing injury and we don't want that to be offset by certain sales that are above fair value we want to be able to focus on the problems of the sales at less than fair value when that's appropriate to do so and this court said well congress gave you the alternative average to transaction methodology to deal with that situation so as to what is suppose we were to say ok we agree just hypothetically that we agree with the c i p that i guess i would say there were there are several things first of all one question is whether that be the failure to withdraw properly actually caused injury let's assume the other side also if it's not just as harmful short ok well then in that case so then the so the regulation is a place the regulation did impose any obligation on any private party the regulation simply said congress shall normally do that on the remaining commerce interpreted the old regulation as requiring the result that it reached are you challenging that commerce determination what we're challenging what we said actually what commerce said was if we applied the old regulation in the way that we regulation actually gave commerce the flexibility given the changes that the regulation she's made the regulation as commerce originally envisioned it and described it in the preamble to the nine hundred ninety seven regulation that's how should be we're reviewing even though what was on the protest that's the decision which we review that is correct however the decision itself says we disagree with the statutory interpretation of which we are making this decision that we are making and up we have to disregard that because that's reasoning where as they made the decision correct me have to review the decision that's correct and i believe i believe that decision is is is arbitrary and capricious and contrary to law because it is contrary to commerce is interpretation of the statute and the requirements of the statue which is deserving of chevron deference sales but there may be times when it's necessary in order to address mass dumping so what and and so comer said this is a case where it is necessary to apply more broadly to address mas to be in the appendix now we would be beginning so page twelve of the remain beginning at page ninety four of the appendix so they they state that they it begins with under the department's position it say does ninety four v the rationale that we said is you say you say even in the original regulation even in the preamble to the original regulation there may be cases where we need to apply the average t ransaction method more broadly there may be cases and we said well this is one of those cases you said it needs to be done in cases where the application of the of the method more broadly is necessary to to to effectuate the statutory intent and you commerce have sad in your withdrawal of the regulation that you need to do that in certain cases you said in the original final determination here that this is one of those cases and what they're saying here is that the are and this would not be on page fourteen page ninety six of the appendix the first full paragraph at the bottom of the page here or actually if you if you go back to the to the final sentence of the of the of the previous paragraph with the experience  bacon in that sense i think what congress should have done if they were forced to apply the regulation is to is to reinterpret the word normally in light of everything that had developed all the developments and converses practice in the five years since they had repealed the regulation and what they said was we knew about those are all relevant considerations however the department the court found withdraws there therefore the the department must satisfy different standards as a particular to the nine hundred ninety seven regulations id that this public expense of as described in the preamble so we're going know that there is one case that's in the middle of remember proceeding before the c r t c this is the beijing high case in which the harmless error issues raised that case has yet to reach this court subject its substantive rulemaking of which a revocation is a to public debate and also to form a record of its reasons for promulgat given we think the c i t was correct in this case and in the several other cases addressing this issue in concluding that it was uncertain whether the outcome would have been the same if proper notice and comment had been provided and that's our position as well the judge thought that the c r t c concluded that no one could really know what the outcome would be notice and an opportunity was not provide so we think that there certainly was error that was was not harmless and in the context of those circuit court cases that address harmless error in a room making context it's clear that the court must look at not only the outcome that the potential for a different outcome but also is not a very satisfactory yes well in our view we think this case isn't isn't it isn't difficult to come to the conclusion that this was a really bad or certainly a fundamental error on the part of the agency because the the very reason that congress gave in its revocation that the only indication we have for why it did this in the revocation notice in trying to justify good cause it said that we think that  that our current regulation may impede the proper relief to domestic industries so the only indication we have is that statement by the commerce department not providing any opportunity for notice and  t the department did not subject that question to debate did not subject that question to comment by interested parties did not pursue that question yet instead just moved immediately to revoke a substantive regulation and we think however you characterize that on the really bad to not so bad scale there's no question our mind that that is a fundamental harmful air because it goes right to the heart of what was repeal you lose we don't believe so your honor why not because the that the statute does not provide the specifics of a methodology and how targeted dumping is to  be calculated or analyzed and the remaining regulations that were not repealed here under also do not provide i don't understand what you're saying how can how can you the commerce department originally said the regulation repeal and with the repeal with a regulation repeal we find that we shouldn't apply this methodology to all say well your honor so if the regulation if th the targeted dumping methodology which the c i t did not reach the c i t put those aside and focused only on the one argument we raised about the invalidity of higher education and and so if there if the court were to reverse the c i t we don't necessarily lose we think there are meritorious arguments that we did present to the c i t which were state which go to the heart of the methodology that the department applied in the targeted dumping analysis so that c i t hasn't had a chance to visit those arguments and issue a decision soon so you go back to where you were several years ago i suppose so your honor yes  but we don't think that that's the right outcome here given the clear record of an agency revoking a substantive regulation without prior notice and opportunity for comment  and for the reasons that we discussed in our briefs in our brief and here we don't think that there's any merit to a claim that this was simply a harmless error and furthermore we also i think the record clearly shows that the rounds of comments that the agency conducted in two thousand and seven and two thousand and eight don't satisfy the procedural requirement of notice and comment on the withdrawal of this sub regulation congress never mentioned even hinted that it was proposing changing withdrawing modifying its regulations during those two thousand and seven and two thousand and eight rounds indeed if you look in the appendix out what commerce was inviting parties to do was to comment on its analytical framework within the existing context of the statute and the existing regulations so no party engaged in that comment process  was put on notice that a modification to congress regulations was even contemplated so in the end we think that there's a clear case of failure to provide a proper notice when doesn't the fact that congress will commit really did engage in a formal proceeding and repeal this regulation show that this thing would have happened the first time around if they'd applied the proper  congress ultimately repealed the reading of the ultimately convey that and that's become flying right correct ok so why doesn't the fact that that is what happened when they applied proper procedures show that that would have been what happened if they deployed proper procedures in the first place because those parties affected by cases that occurred from the moment that they unlawfully withdrew the regulation until that later point were were harmed law goes to the question and we think the case law does not support the premise that a leader fix a later sure of proper notice and comment regarding the same regulation is sufficient now we're going to do it the right way and take notice and comment and go through the procedures that's that's simply not a cure for what was wrong in the first place and and we believe that does go to the harmless error  question we think that in december two thousand and eight when they took this action it was not certain what would be the outcome with a proper notice and comment proceeding the question that they never presented to the parties was we have a concern about this particular regulation we're proposing withdrawing it we want your your input and there was no substantive debate it is not harmless error to conclude th thank you your honor if i could just briefly address a couple of points the issue that no one could have predicted in two thousand and eight what the outcome would have been it is i think i think a bit difficult to believe for a couple of reasons one is just like this pointed out that when congress did actually look at this and actually the citations are in opposition it's brief actually page twenty nine no footnote seven as the citations to the two thousand and thirteen proposal and two thousand and fourteen final with final on an application of the withdrawn regulation but even more is that what they were by withdrawing the regulation commerce and this is in the context of  this and when withdrawn the regulation commer said we are not necessarily changing our practice we are simply on tying our hands so we can make a case by case determination in the future if we need to and in two thousand and ten they did exactly the withdrawal of the regulations so for our preliminary determination we will continue to apply the old regulation and then in two thousand and ten and a year before we even filed our petition in two thousand and ten commerce said all right we've heard all the comments where everyone were adopting the new practice that is inconsistent with the old regulation and we're going to continue to apply that new practice that practice was applied in this case precision and to by wire made arguments in this case that this new practice was a bad idea and inconsistent with the statute and congress rejected those arguments that's paid is fifteen eighteen of the decision memorandum or pages seventy seven to eighty of the appendix so it's clear that even if commerce had followed the correct procedure if in december two thousand and instead of saying this is a final rule that applies in thirty days they said this is a proposed rule and then in two thousand t when they published it in the federal register their new practice they said all right from now on this is our new practice we're putting into effect the withdrawal of your rule nothing in this case would have been changed all of that happened a year before we filed petition and so it's clear what would have happened if in fact commerce had follow the standard thirty days notice and comment and not found that it had good cause to to to to waive it almost