this court should reverse the court of international trades holding that that apartment of commerce is required to forgo the imposition of countervailing duties on these chinese tires because the same tires are also subject to any dumping duties calculated under the non market economy methodology for calculating and dumping duties the court of international trade did not err in rejecting the argument raised by g p x into trick in this case the statute says any determined going back to two thousand and seven investigation line paper in china which was the subject of the georgetown steel memo that you see in the joint appendix that despite the fact that prices in china are generally too distorted to allow for the calculation of dumping duties using market economy methodologies that there is nevertheless  transitional economy that is present in china these days that does allow for a benefit from the government to be a has a finite amount out that you are avoiding answering my question pretty decidedly here talking about general theories of whether or not china is changed but how do you computer subsidy now at least with then dumping you've got something to compare it with you've got surrogate countries you've got market prices in one place prices another place you've got comparisons you can make your guessing about how you computer subsidy archer they're not guessing your honor  it's very how can you be otherwise when it's a government run into two you don't know what part of what the government is is running a from the government and what part is induced by the enterprise aspect of what they're doing how do you separate the evening before this determination your honor there has been to it's been determined by the department of commerce that individual chinese producers are not part of a large conglomerate of the government that's the reason why chinese producers have for many years been given separate rates in any dumping determinations rather than simply and all china dumping margin so there is  a test which is applied to producers to determine whether they are subject to the jury or de facto government control such that they shouldn't be allowed to work so all that really well in an anti dumping context where you are comparing market prices in one place in another place here now just looking at the chinese business tell me how you know what part of that is subsidy and what part of it is not well what they've done is and it's shown in the record in this case they've identified the subsidies by references to benchmark prices either  in china itself is what is the subsidy i mean i didn't get clear picture of that from what is the subsidy how was it granted excuse me on which side is the subsidy we're talking about that the right what are the might be the persian of loans at favorable rates from home from chinese banks state you know they go to the generally this is the government and in each instance th department very carefully looked at the nature of the transaction involved considered what as a benchmark would be used to determine the amount of that benefit to the particular chinese producer and then following the command of the statute which is very clear as your honor pointed out any country determined that they were required to countervail those benefits because congress has very specifically directed that whenever the commerce department can identify and measure countervailing subsidy that they are required to countervail the entire amount of that and notably and this subsidies was flowing down into the prices of that chinese producers such that the there is a need to coordinate how us is different from the claim that there was subsidies from state o government to the private company in many instances and this is reflected again in the georgetown steel memo where were the transitional nature of china's economy was first  recognized by the department of commerce is allowing it to identify these subsidies which at the time for example the georgetown steel decision dealing with the soviet bloc countries in the one nine hundred eighty s it was viewed that the command nature of those economies was such unlike china today that it was impossible to identify any division between the government government owned enterprise and any other producer in those let me read from just one line i could read many as you know but let me read one line from the georgetown case even if one were to label these incentives as a subsidy and that's in quotes in the loose the sense of the term the governments of those market economies when it affects be subsidizing themselves has that changed yes that has changed and that's what's identified in commerce and but has that changed as a i'm asking the question has that changed as a matter of law i understand you'd like to construe that as a factual question and make it  something you can resolve without the court's help is is this a factual or legal what is this well it was an analysis that went into courts of holding part of commerce is determination on a chevron to type analysis in determining that the department was reasonable at that time in determining that they could not identify a county or grant the it had been provided by the soviet union is good law for the purpose of holding that where it's impossible because of the nature of the economy that's being considered to identify and measure a subsidy that commerce is not required to impose should we then adhere to this as long as you can't convince us you can measure a subsidy that seems to be what judge or a stan he did she looked at this with great detail and said you're not telling me what a subsidy is and what a subsidy has been identified in economic terms why don't we uphold her on that why i think you're missed quoting from her reasoning your honor in fact judge a study actually in one of the remain determinations and went so far as to actually asked the department of commerce to further countervail additional subsidies that hadn't been the subject of commerce's original determination because they had been provided earlier than the cutoff date that department had identified for measuring subsidies so in a sense that wasn't the court's problem with our position the court problem was not that she couldn't identify that commerce is able to identify and measure subsidies something which is very discretionary and is certainly supported by sixteen actual evidence and promises decision what her problem was with this analysis was the perceived double remedy problem which and i can see my time is up but as we've pointed out in our brief these are separate remedies for separate problems any dumping law deals with the problem of price discrimination countervailing duty law deals with the problem of government provided benefits there isn't a coordination problem but alright i ask you one other question and that is on the website ratification issue i read the hundred legislative history in the one nine hundred ninety four legislative history it seems to me that the congressional committees dealing with the legislation that both of those times are approving the georgetown decision in saying legislative history relates to a bill which i guess was ultimately vetoed by president reagan but there was a version that reenact it later so it seems to me it's relevant legislative history yes but the legislative history does not identify how any of the members briefs particularly in this solid waste agency case to find a legislative ratification basically this sort of thin reed is inconsistent with supreme court precedents which have basically said that both  agency practice and legislative history relating to prior decisions are generally not going to be sufficient to find that congress intended to government council there are eight programs that were found to be kind of real subsidies in this case they go from tax forgiveness a different different tax rates type of programs that are typically found to be counted real in many countries they're subsidizing that was self correct the if you go back to the eighty four decisions of the agencies which were found by the court which you will find is that you had a monolithic state at the time in the soviet union in east germany and the language in the georgetown case indicates that in the rubric of a single entity that control all imports costs and all export costs of finished product cost control where when what and to whom products were sold you had a single entity controlled west central planning if you look at the georgetown steel limo what you find is that the price trading and doing the production and making the allocation of resources you know how have hundreds of thousands if not millions of companies that are engaged so your position is that the statement  monolithic soviet style countries that is not the case in in the situation of china as the georgetown still memo makes makes very clear that the agency relies on one theory there is some suggestion i n the legislative history is there not that that language was considered fairly broadly perhaps not entirely in context with nothing less considered fairly broadly and considered to reflect a a proper standard if certainly you have some some use from the agency and you have the agency that has really examined the underlyin inconsistency in the in the statement that the wall and the interpretation of this court in georgetown steel would still be good law if you still have countries that operated  economy and another right the commerce department at that time that was consistent with commerce is a position that they simply looked at they treated them all as monolithic states and that flows from the georgetown underline cases themselves because that was the construct from which they moved in the direction of three prong thank you mr stewart just mr mr durning we're going to return to mr y a a minute his rebuttal and so will give you an additional three minutes because we went over with mr wright and we're giving him a minute back so if you need to use it you'll have eighteen minutes is the agency is trying to escape from the consequences of having designated china as a non market economy with all due respect the decision to georgetown steel started with this is a promise georgetown steel specifically states that commerce designated certain countries as not market economies that is the starting point the court did not go behind the designation because they chose not to then and since then the statute is made clear that's not amish wants to go behind it now they want to say there is some kind of market economies you treat one way and this one is changed that's correct your honor but the statute only permits one bright line the statute says a country's either on non market economy it's treated in this way or it's a market economy and then a different set of rules apply and that's the framework that commerce presented to this court twenty years ago that's the framework that this court accepted in georgetown steel and that's the framework that congress ratified twice in one thousand nine hundred eighty and in one thousand nine hundred four so we have a framework that was presented based on the statute and the operation of the statute i think it's particularly important to note that in georgetown steel the court took pains to point out both the definition of not market economy which was found to page thirteen fourteen of the reported decision page thirteen fourteen where the definition of non market economy it was the agency definition is a country that has prices and costs determined on a non market basis and that's the language that ultimately was codified in the statute as  what this statement that we've been alluding to in georgetown steel about subsidizing themselves is in a paragraph that refers to the iron curtain countries yes but w those countries your honor but what the agency is trying to do here is create a third category a category of hybrid countries which is not permitted by the statute because the statute draws just one line and it is a unseasoned term petition based on chevron there's language the in the opinion that could support both points of view if it's a chevron deference case you have a problem right because agencies can change their minds in region differen t conclusions there are a recognized the georgetown steele has language that would permit either interpretation in our view the analysis set forth in the first four pages of the georgetown steel decision for zen's a basic framework for addressing this question that was appropriate then and it is appropriate now it is an appropriate way to think about how you construe the statute and you interpret the statute to discern congressional intent in our view what the first part of georgetown steele was all about was basically trying to ascertain congressional intent and for all the reasons the court gave congressional intent was quite clear then and using the same a an unreasonable interpretation first because the agency is engaging in and inconsistent interpretation basically the agency is trying to say that if the same is true when the agency change their mind but is not inconsistent over time your honor is inconsistent in that having designated china as a non market economy in other words having made a factual finding that markets do not operate in china having made that factual finding they can't then turn around and say that well but markets are operating a little bit the definition of a non market economy is quite emphatic markets do not operate and so you can't say that markets do not operate and then impose special anti dumping rules on that basis and then with the next breath say well ok but markets are operating a little bit and so we're going to create this hybrid category they're creating a hybrid category that is fundamentally inconsistent with  designation of china in this case as a non market economy so that's one problem under product two the second problem under prong two as judge responding developed at some length is the situation of a double remedy you cannot due respect there have been a number of cases where courts have addressed the issue of double remedies i think most prominently in week when tube where the court made very clear in the context of whether it's permissible to essentially have section two a one duties and then anti dumping duties as well the court made very clear and said that it would not be appropriate to remedy substantially overlapping injuries twice now mr durning can you properly remedy this under anti dumping laws absolutely ironic absolutely when congress adopted this when congress ratified this scheme debt forgiveness yes absolutely because the way the non market economies rule rules work your honor is it's not the precise calculation that's being done under the normal dumping statute what happens is commerce goes outside of the non market economy country they go out to a market economy to calculate an event and how that works and so they're going out and  it a kind of blunt sort of way what is a fair price and then they're saying ok the fair price is this this is the u s price is the u s price lower than the fair price your honor it is admittedly a blunt instrument but it's the interment congress gave for dealing with this problem this is the tool that congress gave the agency for dealing with the problem of distorted u s prices from non market economies the agency has what you're assuming is that there's  pass through into the export price right not necessarily your honor because it's simply a question under the non market economy rules we're not struggling with a comparison with prices in the home market we're not struggling with how to calculate the p difficult to measure the amount of pass through ok ok so but the question is if you're not sure so if it's complete passthrough then indeed dumping load doesn't provide a complete run no your honor with all due respect it does provide a complete remedy because the purpose is not the purpose of the antidumping law is not to calculate the precise amount of the dumping or the precise amount of a subsidy the purpose of non market economy rules is to have this kind of blunt offsetting duty so congress recognized the challenges of trying to ascertain and measure a subsidy in the context of a non market economy where the whole definition of a subsidy is do you have some distortion from a market norm i mean that's the very definition that georgetown steel cited that what is a subsidy a subsidy is when you have a distortion of market processes that's a page thirteen fifteen of the georgetown steel decision so if the definition of a subsidy is you have a departure from the market and you have an agency determination that markets do not operate in a country that's the definitional conflict which georgetown steel addressed and even if you're not convinced on the terms of the statute that this is chevron prong one we would submit that that fundamental inconsistency makes the agency interpretation here and reasonable the agency hasn't reconciled how it can at the same time say markets don't work and we can calculate the amount of a subsidy they simply have not have not shown that your honor but in our view this case could be decided under either chevron prong one or  because we have the irrational interpretation we have the double remedy and we also have your honor and agency interpretation that is so at odds with the twenty years of history i recognize they can change their mind but this is this is a different situation with the passage of time your honor because this isn't a case where you have a judicial interpretation that's out there and is never acknowledged and is never recognized this is a case that clearly meets the plainly raised standard that was raised in the us in the us brief was this issue plainly raised before congress and it clearly was it was raised not once it was raised twice it was not raised in people just stating it was raised and then codified in the committee reports and even more importantly your honor in the statement of administrative action a particularly definitive form of legislative history when congress with revisiting the issue of the statute when people propose to give commerce the authority they now assert congress said no comment or turning how will this ever change what if this tire company divorces itself completely from the government and does business on a total market basis how will we ever because they happen to be located in china are they exempt then from the rest of the rules no your honor there are not exempt from the rules there are a number of options that would be available ok option number one if china truly has changed the agency can revisit the designation of china as a non market economy they revisit that designation and they can apply all of the rules exactly in the way that congress contemplated for countries that are a market economy option number two they have the discretion under their practice to say that a particular industry has become sufficiently market oriented that they will now apply the market economy rules and again when you look at those agency decisions again this this bright line distinction comes through consistently if we say that in industry it's market oriented then will apply market oriented dumping and will apply market oriented kind of a link to the law or even more recently there's a new practice we could have a market oriented company converses never actually found one but that does exist under their discretion this is a case where the agency did not reconsider its designation the country did not find a market oriented industry didn't find a market oriented enterprise they just said everything in this case is non market markets don't work but even so we're going to say that for purposes of the kind of daily duty case all of a sudden markets exist even though we've just found that the markets don't exist and so in our view the statute really interpret it interpreted holistically taking into account both the definitions of non market economy the definitions of subsidies taking into account all of the congressional history on this issue is in fact a a clear congressional intent there is a clear congressional intent here not to apply the countervailing duty law to those countries that have been designated as not market economies and that the test of chevron prong one is there a clear congressional intent we submit that there is a clear congressional intent here but even if you don't agree with that your hon to the agency interpretation here is unreasonable they are saying there is no need to make any adjustments at all judge respond any gave the case back to them gave them clear guidance to address the issue of double remedy to make the jointed ministration reasonable and the agency said we can't the agency says the statute ties our hands and so we can't make any adjustments so the agency refused to make adjustments and that's what led judge responding to what was a reasonable ultimate conclusion that is if if you say you can't make any adjustments if you can't deal with the double remedy problem and make your interpretation reasonable then you simply can't impose the kind of veiling duties when you find a way to reasonably impose kind of veiling duties then the agency may have discretion in our view a judge or a study was right for both   have one minute make it brief your honor the first point i want to make is that where g p x is arguing in a way that is inconsistent with the statutes entirely is this idea that because there isn't any designation for the purposes of any dumping law that that has some relevance to the application of the countervailing duty statute an entirely different remedy for an entirely different problem there is no impact on the countervailing duty law based on a distortion in price which is what you heard counsel refer to in a number of instances and also said there is some in precise dicked in the georgetown steel opinion it also refers to price stated in the definition of a subsidy in section sixteen seventy seven that there is a subsidy to be measured without regard to an impact at all so whether it makes a benefit affects the producer in any particular way that results in a lower price either domestic price or export price we're talking about entirely different things so this coordination is unnecessary for that tha