morning your honors may please the court i'm roger at all one thing is clear at the outset of this argument and that is that the appellants and the appellate international trade commission for in complete agreement that the original affirmative threat of injury determination of the  substantial evidence therefore the only things that we and the appellee i t c disagree about are the two issues before this court first did the court below find that the affirmative threat determination by the i p c c was unsupportive by substantial evidence and whether by doing so was that really wing of the evidence incorrect under the standard of review  supported the commission's determine hypothetically a c i t decision reversed certain fact findings for lack of substantial evidence and then for completely different  what do you think our standard review should be for a c i t decision like that then clearly your honor it should be the nippon and this case in review in fact that's almost exact but but nippon didn't rule on that particular kind of fact no s k did nippon in fact was the whole most identical to this case in the nippon case a judge respondent said i reviewed all the data on underselling and i believe the commission is completely wrong and i'm sending this back to you and you better do it the way i tell you to do it and this court said you know you should be reworking the evidence but even if you're correct you still didn't look at the decision as a whole look at them all these other facts i don't  c i t did was send it back and say you must make a negative injury finding or reopen the records in this case what the what the court said is there's a couple of facts that i don't think are supported by substantial evidence it appears that it rel heavily on those facts go back and look at it again maybe it's really weighing you'll still conclude that there that there should be a negative interest determination but the court didn't direct entry of that determination so i would agree but as as you said you judge that i need more i need more explanation and if we manage on that and as i say your honor those ribs very minor if you reading as i know you have the overall decision of the court you have ten or twelve pages saying these are all the reasons when i reread the evidence and on the main part of your determination i find that it's not supported by substantial evidence and by the way on two minor things that are completely incidental to their decision of inventory that's another minor fine yeah i think those are my a five i would say in the context of the decision because it's all about choosing periods so it was well you find that there are substantial when the majority looks at the first half of ten compared to the second half of nine versus the minority timing comparing the first half of nine to the first half of ten it was a question of which period someone should choose and please explain to me further how this interacts with your determination on how substantial i guess one thing i don't understand is your argument presupposes an all or nothing approach to review in this case then we get lots of the decisions where there multifaceted and also different courts and we apply the appropriate standard of review to each separate decision that's made within those opinions so why wouldn't you be right about the first twenty argue for all or nothing they say because the latter part of the decision sprinkle some of the dust of diamond saw blades or taiwan semiconductor and says i'm sending this back for further consideration that this court should look treat and different determinations by the court and apply what we think are the appropriate standards entire entirely comfortable your honor i believe that you can look at in part as in fairness that diamond club laid does support the proposition that it you really are supposed to fall within that one one side or the other whether we ultimately agree with that it's it seems to say that over a pretty big arrest and that's what troubles me i really believe that the dissent was correct but that i'm very concerned that this court does not overrule to absolutely critical decisions the entire practice in your determination before the i p c which are nippon and m s k which say in the incredibly complicated cases we have to defer to the commission to weigh all this evidence they're they're getting these hundreds of questionnaire responses it's being whittled down by their staff they have hearing with all these witnesses with all its examination and we can allow c i t judges to become the seventh commissioner in every case so what i don't want to see is a practitioner besides arguing this individual somewhere i say i'm sending this back for reconsideration ok do you agree with that on the back signing or remanded for further explanation when it came to substantial market share and ramp up of inventories we should be reviewing the c some kind of for a through in the sales to large purchases large domestic purchasers what was wrong with the cia he's finding when it concluded that the commission the administrat record lack substantial evidence to support the completely with the evidence i would make two points first in the commission's determination at the preliminary phase where it did not have purchased or questionnaires  largest u s purchasers had multi year contracts with domestic producers their evidence in the record that three of the a large purchasers in fact it purchased the imported pipe back and seven and that of course came out later ok the final determination so now that the question is and here's where the court really in two thousand and ten how many large purchasers purchased pipe i'm forty i believe combination of a sale and swap to the largest purchaser in the united states which the second largest u s producer testified to hearing that that had been their largest customer for years and the loss of that single largest customer led them to lay off a third of their workforce and yet the commissioners in the minority said well we don't really look at that as a sale because there was a swap involved and the court said yeah i agree with those  commissioners a minority and i would say that's very weighing the evidence was there a scintilla of evidence to support the three commissioners conclusions that this gigantic hard to explain how do you explain that there was some kind of breakthrough against a prior major limitation to access to large purchasers when in the beginning of the period investigation there were three large purchasers by that supported by and then by the end of the period investigation there was only one i would say that the term is large and small are are just terms the question is when in among the large quantities involved are significant i mean analysis of those quantities largest purchasers yet in this ng only the only seven yeah that's in the size of a billion dollar market that's not really tremendous but at the end we're talking about the largest purchaser buying their entire an needs from a chinese importer instead of from the second largest domestic producer and and stuck commissioners majority who current all the evidence who weighed it said i find that this means that these chinese he's relying on and s k and nippon goes over both cases were clearly distinguishable from the facts here they involve the two option remains in this case doesn't it all so you're urging that we fact finding by the commission that the ca t v rejected as lacking substantial evidence might wonder why wouldn't you be urging that we should review that fact finding lack of substantial evidence as well and in the shoes  said three times here that the key was not precluding the commission from reconsidering those or any other findings that's on his opinion on ca twenty two that is in his first opinion it's in his second opinion it's a fifty six fifty seven  contested determination relied in part on two factual findings that were not supported by substantial evidence on the administrative record and also directed the commission to provide further explanation with respect to other aspects of the affirmative direct  clear i didn't say is opinion was clear he said his opinions are as i said to toot on two issues they're clearly on their face the inventories on the subject imports are clearly on the subject market check on the third issue you could have been perhaps more clear but his last word my main ultimately come to the same conclusion again just supporting it with more evidence yes it was it was even after those two facts he didn't he didn't he said in in on is on page twenty two point zero nine the appendix and his last opinion  reconsideration in this case the court did not assign weight to the various pieces of evidence supporting an affirmative threat the term nation or the various other pieces of evidence detracting from such a determination the court appropriately left that task to the i disagree with you what if we disagree with you ok then what's the standard for well then the standard of review would it still it's still a discussion because clearly at least on on to other issues i'm talking about this one pri reconsider your threat determination and you may not consider these two fact finding since they're not one of essential evidence you know that's not the way you think we should read the opinion but presuming that we do accept it as a hypothetical if you will assuming that's the way we read it isn't there a real problem here because how in the world could we possibly affirm the current c i t decision if we think the commission was forced to look at this the issue and affirmatively forced to exclude from their consideration certain things that maybe they should have been allowed to include well if it were a if you were directing he didn't and if you don't think he did i said assume it as a hypothetical because i don't want you to keep arguing with me about something that was never going to agree it was one of if one is one of the grounds property coming back to the commission now it's coming back to the commission and they're being forced to re evaluate the determination and not allow under my hypothetical to consider certain things that they found highly relevant and in fact to solve this before and if i think that decision was wrong and how in the world could i affirm the current one because they had to make it with their arm twisted behind their back prime uncle i'm so intrigued here because the  sume for the moment that the commission made twenty independent fact and let's assume that the c i d determine that nineteen of those facts findings are not supported by sits at eleven but the twentieth one needs further explanation so that it gets remanded back to you representing the commission do not want us to give deferential review to the nineteen fact findings and look at that a new under th this court to review the c i to use choice to send that case back to the commission on an abuse of discretion standard i find that really striking well that's a that's a very in the hypothetical you've the into much into hypotheticals on that that the record here is clearly not you know not that not that record i mean i think let me see if i can follow what i can hear you say in the but know that you think the first determination w supported by substantial evidence other findings need to be remanded for further explanation in that in that kind of hybrid situation you urge that we review all of those choices made by don't believe this is a hybrid situation if you believe that the hybrid situation in a hybrid situation you would still have to one by definition one or two of those issues would have come back to jim it lead to the commission and therefore the commission would have had you know the new several questions about the fact findings and whether they were supported by substantial evidence could you tell me your thoughts on that please and commission them why they in fact were yes we largely agree with mr chairman as to the large customers basically attribute a fine to the commission that the commission never made when the commission was take talking about change to large customers it was talking about the difference between what happened in the problem unary phase of the investigation and the final phase of the investigation those are two different investigations two different records and when we talk about a breakthrough we were talking about in the preliminary phase the respondent had put forward evidence that the subject imports were limited to sales to smaller customers are hard that changed in the final dependence i think i read this portion of the i p c decision referring to limitation on access to large purchases he does he does discuss he does discuss we went so far over with mr goldfine i have to make it even for him for along the standards of what he's going to get in rebuttal certainly only try to try to limit yourself to additional or different issues and not just retread the same ground yes thank you needed further explanation in order for the court to properly evaluate the agency's action here what if what if those two findings that he said they couldn't rely upon anymore but if those were the  breakthrough of a prior limitation sales to large u s purchasers was one of those findings and it's apparent that the record needed further explanation regardless of what your chance to set the c i c saw based on the language which was a reasonable reading that there was no that there was no break for in two thousand and ten based on the record evidence there remains a sense clarify that the actual breakthrough occurred in two thousand and seven which if you read the clearly concluding that there was no substantial evidence in this record to support this fact finding about a breakthrough against a major part of imitation and the c i he took away from the commission on  considering that as a potential factor to support a threat to a domestic industry well we would like is there a standard for review in a situation like this which i'm referring to for now is a hybrid situation do we look at that  the you've already explained why at least as of one point even the defense later explained that it had to give more evidence to justify what it was saying what about the other finding the other findings clearly need explanation the given tories as well as the share of substance ports over the p o y and when that was also permissible under you know judge dancer needed clarity on those issues as well and i would go back to  prior breakthrough the issue here is the commission was never forced to completely drop that finding in fact in the remand dissent the commission revisited it just dance it did not say you the i t c understood itself to be able to come back on these two findings with the identical evidence and use those to support its germination well i think that it had to give at least further explanation on that finding it was clear from the record there was confusion yes you saw no breakthrough agreement sent came back with additional explanation saying that the breakthrough occurred two thousand and seven if the commission had thought they could not come back with that plenty at all he would not have even tried to explain that and as to the well you're over here five times that we need to hear from thank you helen will restore your full five minutes of rebuttal that doesn't make it exactly even if you need to go longer you can  fact very similar to nippon then take a shorter bordering going negative the language in the remand order itself says the quirk directs the i p c c to reconsider its affirmative threat determination on the whole you can't rely on these two things but why why did the defense then come back and say well we'll give you more explanation and more data and in fact clarify what was clearly a confusing point in their original opinion and that's unfortunate but i know what would have happened if the dissent was actually just a new majority in they came back with that opinion we would be just like nap on then the judge below would say i told you not to do this so now i'm directing you to go to negative that's exactly what happened in the i think in his decision his first decision he said absent those findings and conclusions he's telling them it's it's invalidated i think given the severity of his remember language the idea that he would have just said oh well thank you very much but we wouldn't be in a different position today so i do believe in the end this court's going the right way in terms of saying we have a substantial part of the threat determination upon which he decided it needed more explanation the a p a sense in order to review you look at this country evidence you took this one through the time snapshot but if you took this other period i don't understand and then in the other issue they point out that the dissenters show you know no significant increase in inventories by looking at this one chart you cite the other chart that you failed to do any a p requires every agency to do this is to address all the arguments right like really you have to get some dressed everything so what if that doesn't feel like it use discretion on those factual point where are we now i think probably we're at a place that you agree with which is we probably maybe we can affirm maybe if that's the case we can affirm the current decision because when it went back to the commission they were told not to include thing but we but maybe the remand order is itself ok because they've use where do we end up how do we handle the cases that will you well that's where i believe that you send the case back and you say we can affirm the ties you made these mistakes on substantial amounts and i do believe and this is where there's tension and you could see a lot of that  tension and some of these later decisions after nippon and then s k and that is i believe nippon and his case stand for even if you find any substantial evidence issues before you send it back to the commission tell us that you've looked at the record as a holes and i find in this initial twenty two pages cision that the court never said let me see if the record as a whole let me see if the other things you relied upon are enough and i believe that's a differential standard that this court has always had but you know that it rod what the court did and said i need more explanation on these other factors only on the other factors but at the heart of this decision i don't i don't even think you can have a change other than a change in members of the commission i don't think can possibly be asking the three of us to do that now in the first instance are you are you suggesting that now our role is to look at all the record evidence  articulated that it was doing that it's still would have remitted because it needed more information on specific items and we look at that for an abuse of discretion and as the government points out once they get on remand they can say whatever they want it look at this decision based on the record as a whole and i can find that there's enough here given the the differential since there's enough here that it supports your decision so are you saying that we should look at this decision and the explanation minimal we should at least look at it as we're not certain that the court would have remanded for more of a nation if it had gotten the first part right yes the latter you're telling us we don't have to tell the c i c what it has to do but but tell it to take a fresh look in light of this and make a film assessment first since yes based on the record as a whole that's correct thank you very much