commerce down to mandatory responded it dust did not receive ten available benefits by selling electricity electricity to the turkish government at more than adequate remuneration or em sold electricity in two ways to the turkish government either in the form of direct bilateral contract sales or through sales to the grid with regard to the direct contract sales the agency found that the contract prices to the turkish government were not at m tar because it represented discounts from the prices established in turkey's national price schedules however commerce failed to consider that the prices in the national price schedules are set by a turkish government agency a fact that reasonably calls into question whether those price schedules reflect a market but is it isn't it true i know there are two separate issues here as of the growth of the government's involvement but is it doesn't the fact that isn't it correct that freak consumers were free to choose to  provider at any price yes in the system and therefore i'm having a hard time getting around the fact that this is market based if the price was higher than what the electricity was worth you'd think in this kind economy some other provider would come in and undercut that price that's the way the market based economies work and so reading as much as i could or much as i could understand about this it seems to me that's the way the system wor so you have a system that's heavily dominated by the turkish government you have a price national price schedule that's set by a turkish government agency the commerce department in its a because that's who we need to look to is out of the commerce department analyze this issue it said without any support the turkish national price schedule there's no reason to think it's not a market   under commerce precedent and regulations it's required to go through a benchmark analysis it never did that it never looked at whether there was a market base price you could use to turkish government in terms of electricity is there a world market price we had put up a world market price on the record commerce never looked at it never talked about it never mentioned it if that wasn't available then it w are to go to what's called the tier three analysis never any discussion of that so in terms of of the way congress handled this issue it completely ignored in its own its own precedent is on regulations well it's regulations specifically are directed to el tardo mto right so and there appears to be at least some authority as it looked to me like it was somewhat mixed but some authority for the proposition that they would not necessarily apply that regulation to m t r situations as opposed to so here i would respectfully disagree with that if you take a look at the preamble to the regulations congress commerce says we're not well i laid it to suggest that it is we may apply the tar analysis but right now we don't have enough experience with the m t r situation to feel that we want to lock ourselves into the regulation so that that's a little too restrictive your honor my view and saying we're going to generally apply the l t r analysis but beyond that it actually has done that in other cases as we've cited your rainy i'm from france case for example that's what it's done in the limited cases that are out there it has discounted price below the n p s must not be market and i didn't see that as a necessarily following but it's not discounted by x amount i gather that it's it's a product of negotiate d transactions so so our concern was the way the commerce applied its analysis in this case it said again without any evidence or analysis at the national price schedule was market base therefore since these other prices were last that was sufficient it now so if so for example let's assume and i think we put this in our in our brief you have you know a price this two dollars a kilowatt for the national price schedule and the actual market price should have been a dollar so the fact that it say it das is selling to the government at a buck fifty a kilowatt that is still tar so sure but why why would you expect if these discounted prices are the product of negotiated transactions that the price that the two parties would reach would be a dollar charging cannot be attempted our that's the sum total of their analysis so that's so what i'm saying is you have to go through this under the statute start to requires congress to look at prevailing market conditions and it has in my view the preamble and addition to that it's on precedent in terms of the cases where it is applied and are asked to go through this benchmarking interior analysis to figure out whether those sales are in m tar and it simply did not do that secondly in terms of sales to the grid commerce found that sales of the grid are made through wholesale market run by the turkish government agency tailless acknowledge that it  dollars which specifically authorizes tayo to purchase electricity on the grid secondly under the regulations the balancing settlement regulations under article three it's it actually the regulation in terms of its and alice as to whether or not the purchased electricity it simply points to an article nine in the regulations which helping payments settlement issues and the like and we don't we don't disagree with that the problem is that's that article mine doesn't address the the the other obligation of tailless which is to make sure there's no shortfall on the grid and to do that it purchases electricity so that demands on the grid are met and that's the whole point of this  provision under article eighty one dollars in the law and under article eighty three in the balancing and settlement regulations so commerce never says anything about good morning or others may it please the court commerce reasonably determined that the government of turkey provides no counter bailable benefit to produce of electricity by way of the two channels that are under review here tricity is sold in turkey the between power producers or generators and distributors and tell us is a government entity that facilitates that exchange prices are not set by us tax not disagree with that  rather task creates a market by which bid and offers are made a day ahead of the transactions being made and then again in a balancing market happens just hours before the actual transactions are made to account for any the reason for that is simple it's because these transactions that are made on the grid are double blind so buyers and sellers of electricity never know who the other participant is tass is the middleman sub speak and so the seller of it is a clearing house of sorts and the argument is that by way of this balancing market that is secondary to the primary day ahead trading market task does have a role in ensuring that there's a lot enough electricity in the market so there is not a shortfall but again there's no record evidence and in fact there is direct market opens up to the contrary that ever purchases send signals or instructions to a generator to say generate more power within a certain window and that's one of the bounds of tools that uses in the primary in the secondary reserve market but again that is not the same as purchasing and on this record we don't have any evidence that a purchase was made the only evidence that our tech sides to the contrary is inferences from these regulations that gives the task the authority right but that's the prices end up being in a discount from the m p s but you say there's they don't depend on the and p s n correct because the whole purpose of the free contracts or the free consumers is that they're not knows you know it's the position of burden to make the record here that there's anything other than the market rate that's being used so even if we were to engage in that less than adequate remuneration in a regulatory analysis there there has to be some indication that this price does not reflect a market rate and that market rate does not have to be in accordance with you know free market principles that we may be accustomed to here in the united states that they haven't pointed to anything  instead are attack assumes because there is a price schedule i think what's important what is left out of the price schedule the discussion of it that our tech makes is that it's not one price that applies to all consumers of different categories of consumers and different subsidy but suppose you have a country in which the government has decided that they will subsidize energy by setting all prices much higher than the market price would be are you saying that in that setting there would be no countervailing subsidy i mean there's no subsidy of a large producer that is getting the benefit of that increased price that's being paid i think it depends on the imports that go into determining that price if that is in fact a price that's just assumed make it really simplistic i must assume that there's the government decides everybody offset the losses that they would otherwise sustain are you saying that's ok and that that would indicate there's no subsidy i think that's what the whole purpose of the tears three analysis is is to see if the prices that are said to they cover losses do they cover the costs that are being encouraged to produce whatever those goods services are they are they applied uniformly to to all participants in that market ok now that leads to the question of whether  didn't need to be applied here because we're not talking about all time we're talking about more than that right and he said his saying that m t r was by the terms of the preamble intended to be included at least in the spirit of the regulation if not by letter we don't disagree that congress would have been for it you know by the by the preamble of that regulation would have been free to adopt such an approach but it didn't need to do so here and the reason is because it looked at the process by which these contracts were negotiated in the those prices were reached and it said there couldn't have been more than adequate ring the in aeration because there was no non market price that was influencing court starting with the picking up on the last topic the topic of the sales to the free consumers and there has been discussion on whether the anti regulations the  and unlike my colleague here we have a slightly different reading of the preamble and the preamble does a is not as forceful and stating that the charming relations should apply to this situation and if that were the case there probably referring to the lower price that it pays to acquire the thing provided by the government or the increased revenue it receives as a result of the government action now if we apply this principle to the transactions here then it's they don't describes they don't describe the sales of electricity by it dashed to the free consumers because it in fact received more revenue selling to parties that are not affiliated with the government because the prices were negotiated and what the record actually shows is that some of the prices that it was sold to to private parties were higher so the discount was lower than what it offered to the government to does three government related of turkey entities counted for less than twenty five percent of the total electric power generation during the period of review and that is out appendix page two hundred and twelve dollars in addition in the market the there are producers that are both private and public so we're not in a situation where you have a market that is dominated by the government where there is a distortion because of that there are market forces not only because there is a negotiation of the prices from the from the terrorist schedule but also because the bridges a bent the availability of of this good comes from both public and private sources so in some sense  there is no act no need to go through the tier three benchmark that my colleagues have this cost goes there are actually private transactions in the country at issue that could be used  for an analysis of whether there is a benefit and the government found based on the evidence before it well these transactions are for more more revenue to make a dash there can be no benefit prese art so st in terms of sales to the crit this is not an inference we are making if you look at again the legal structure in turkey pulls under the law and the regulations tejanos is authorized and in fact is mandated to purchase electricity to make up for any potential shortfalls in addition it does itself is it mated that  listed as a customer there is no explanation that somehow this is because they're a go between they're listed as a customer of it das i think the combination of the law the regulations and that fact are should be definitive in determining whether or not tails makes purchases on the grid with regard to what do you do about the government of turkey declaration that says that's not so well so t the turkish government says that obtains electricity they admit that but they claim it doesn't purchase it i'm not sure how you obtain it without purchasing it when in fact the turkish regulations and law electricity from them and it just doesn't wash with the evidence i think that's the problem with the turkish government's position that that tale's obtains if it doesn't pay for it's just inconsistent with everything else on the record including it does his own sales listings and then in terms of the the free consumer market in terms of the price schedules that are set by emira we did show that there is evidence on the record that those are not market based prices st they're set by the government nd the statute itself that talks about setting those prices doesn't say anything about their market based they'll be set based on price you know supply and demand anything along those lines in addition it says that the reason they're instituting it is one reason is to eliminate price differences among regions in the country and that's not a market based position in terms of how those prices are being set in addition there's evidence on the record that those market that that the national price schedules are sent to a limb or to transfer funds from distributors that are making money to those that are losing money again that's not to cleave market based rationale and then terms of it does his arguments about the relative prices of some of the sales it makes is you know in terms of its some of the free consumer prices commerce never touched on that i mean you get a look at and see what commerce is analysis was commerce simply said again the national price schedule there's no reason to think it's not market based despite all the evidence i just indicated that that there is a lot of evidence that it is not market based and then simply said the other prices are less therefore that sufficient for our analysis without doing