police court circumstances of this case are unique just like they were getting when this case was before this court two years ago the commission's threat determination is based entirely on forty  determination of dumping is based entirely on dumping margins for fifty five grams not forty eight the commission refused to take those worksheets into account in its original determination not on appeal two years ago this court remanded and said the commission has to take into account the unique circumstances of this case this unusual fact pattern to make an equitable determination so one of the commission do it did four things to number one the entire cluster current the commission said the commission cannot analyze the threat from only the subset of the market merchandise but have to decide based on the entire class or time but they argue that two years ago and this court rejected that argument that's why the court ordered the commission to analyze the credit sector their commission tried to dismiss the commerce worksheet by saying that the negative dumping margin for forty eight grand is not a finding but the commission admits repeatedly that the worksheet show that none of the forty eight gram product was sound this parsing is just a really argument and their assertion two years ago that the commission has to confine itself to the four corners the federal register notice against this use and that they have to consider all subject matter with respect to which commerce is made an affirmative determination that that is correct or what does that require them to look at that point ayers them to it still requires them to connect the injury or threat of injury to the downgrade so on you would say beef for you even look at that you're looking at the by reason of language exactly exactly by reason and this is commerce worksheets they tried to dismiss the commerce one by saying that the negative dumping margin for forty eight gram is not a finding but the commission admits repeatedly that none of the forty eight gram was dumped it's just a re argument of the they made before and they lost before now sir they tried to dress up a triple negative and call it substantial evidence they say that even though there were no dems sales of forty a gram in the past there is no basis to conclude that it would not be done in the future mind you the commission presented no positive evidence whatsoever that that color would done in the future none whatsoever so the commission tries to make poll or disprove the negative about the future no less i'm sorry that's not substantial evidence the only evidence on the record is that color did not done forty eight gram crop finally they tried to point to a new appleton plant that would live legit legally to change conditions in the future and claiming that this shows the commission is weighing the evidence but there is no weighing here the commission is wrong as a matter of law the extent to which polar would compete with appleton in the forty eight gram segment of the future says nothing i repeat nothing about whether coal or wood dumped in the future it is entirely irrelevant dumping is not a question of what koehler's prices are in the us market versus appleton's prices in the us market dumping is a matter of what are polars prices in the u s market versus koehler's pric in its own german home market there is no evidence on the record that in the commission's determination that analyzes german home market prices they can't make that inference without having driven her home market price where do you have evidence on the record about german home market prices in the commerce printed out the commerce printed out that says there's no dumping even if the pork except what the commission says here it's not substantial evidence is just confusing apples and oranges finally this board should reverse it's been forty years since the original determination and it's been two years since we were here the first time around we've now gone through we've gone through a ministry review we're going through this torture year after year after year and you know if you send this back down with very general instructions they're going to dance around it again investigated were in nanda transactions during the period of commerce dumping investigation which was july two thousand and six to june two thousand and seven at those dates for important because in this substantial changes in market conditions concerning lightweight their own paper in the us and the reason is for them business is it by reason of dumping that these market changes happened or is that the reason given in the dissenting opinion of of the commissioners there are enough peers and ok where they said it and by the way i couldn't even find it in the record i had to go find this on my own you can put this in the record the dissenting opinion and they said the u s markets already begun and will continue to shift towards the lighter then or forty eight gram product because when they go on the say it's less costly and it has increased in efficiencies the market is moving there not because of dumping it's because it's a better product your honor there was basing the guess anon dump products where is the sense of this what what this is a statute that precludes dumping not protects against future conditions and they project isn't differently now that is not unusual information determination that their projections of future market conditions it is important to remember that three of the three dissenting commissioners did not rely on any of these arguments concerning the worksheet and what they contain they found differences in life and i think that the likely value that that was litigated before the court of international trade in two thousand  appeal those aspects of the court of international trade two thousand and ten ruling to this court it simply it what it did was it limited appeal to the question of the commission have to commit you have to consider these worksheets so the commission considered the worksheet on remains the again the three dissenting missioners dissented without having need need to resort to the worksheet so this examined pursuant to this sportscar opinion was whether there was a disconnect between the imports threatening injury dances the that's a turing language requiring to look at the process because it says by reason of this is right back to gerald metals and subsequent cases that emphasizes that language doesn't that say here is the dump product you're looking at gerald nettle in case in fact color concedes that are found that the merchandise here including the forty eight gram product was septic merchandise if this was septic merchandise on you the statute where the commission is having to make a determination concerning the import of that merchandise and so we the result would be taking your reasoning is that we would impose dumping margin remedies on fairly traded goods because they were grouped into a subject matter category with unfairly pressure priced goods so we're going to just because we lump them all together and we found one category one outlier category was done we're going to penalize the whole category even though they were not responsible for any market harm or threat is that what you're trying to tell me what i said that's not entirely what i'm trying to tell you noted but i really but what you're telling me as i tell you what part of  trying to tell you in this case is there is nothing in the record indicating that during the period after october two thousand and eight because the forty eight grand imports were not down there and there's nothing to say they were either we don't have german prices under the interpretation vance bicolor the commerce ruling these commerce compilation would have a perspective that they act on the commission that they do not have in common who do i believe do i believe the three who say the threat is simply a change in the market they're going to less costly more efficient products or do we believe the three who say well in the subject matter category some evidence standard that's not an appropriate inquiry for the appropriate worry is not which is a better reason determination it is whether the determination of the three who voted affirmative is supported by the cia and i love many of the statute which says by reason it says it doesn't say by reason of dumbing it says by reason of import you know with respect to which the administrative authority has made an affirmative determination now again the affirmative determination is such that is what is basically congress characterizes the affirmative determination to be number one and that was the lack of time of lightweight term paper and number two  congress me calculations on several different product models they conclude forty eight gram fifty five grams some other weights as well the finding was the calculation for the period july two instructed to do examine all the evidence in the record and it took this information as one set and one of several relevant in for relevant factors it just found it did not outweigh the other factors  believe that terminations supported by the scandal evidence in accordance with law thank you thank you mr bernstein mr joyce stewart has four minutes and then we'll hear from like your hon articulated nippon steel family there was substantial evidence for the commission's determination and i'll get back to that the minute the third thing i want to point out is the equity that shifted since we were here in september two thousand collect cash deposits on all like weight thermal paper including forty eight gram paper since the problem is you seem to have to learn to quickly well we have think going back to earlier questions i guess the question is what is the determination that the commerce to it was just it was nowhere in the record that they could see that cannot be a finding and that's one of the points the commission makes in its remaining terminations the other point the commission made is that the finding of done transactions had very limited utility in the context of what it was trying to do in looking towards the future the commission was trying to determine the impact of subject imports from germany looking for after october two thousand  this computer printout line i am going to cern transactions back in two thousand and six two thousand and seven that might have been something the commission were given way to if it is made injury terminations covering that period of time is that there is no basis for congress to make a legally binding determination with a spec to forty eight grams because it is not done the tests that are required to determine whether what the normal value would be forty eight gram product may congress didn't forty eight it only applies to the whole market viability tests for the class or kind of merchandise and that's why it's a terminations which is limited to the classic kind of merchandise and the statute makes clear the commission is supposed to look at  ultimately you left the forty years into the in the same category with fifty five conceivably to get a lower dumping margin because you knew that the you had dealt less evidence of dumping in that category actually stuck with your margin and that helps you more because at that time the fifty five was the bigger product since then it shifted to the forty eight and that's why you're here and my eagerness right no your honor because the i t c said all along that the fifty five wasn't a problem all of their arguments and threat of the truth injury not on the dumping margin but they're basing it upon the the pricing series and what they see is a trend based on some point in the future about forty eight brand products well the marriage has everything to do with that with calculating the dumping margin if you look at page thirty eight ninety nine of the of the joint appendix this is the computer printout this is the relevant page at the lower right hand corner is the per cent margin this is where they calculate a dumping margin for each one of the models see if there is one two three four one two three four that are positive they're in the right hand corner and then there's one that  by model basis in other words they compare one variety of fifty five in the in the u s market to one variety fifty five grand in the in the home market and then they took a look at another type of fifty five and then the when the very minute is a comparison the forty eight that shows the last line to this computer printout is the comparison of the forty eight gram prices in the u s market versus the home market and you'll notice there is a normal value here there is a per cent margin here and that number is negative which means there is no dumping now the commerce department later goes on and comes up with the overall weighted average dumping market but that does not erase the like to point to a couple things that mr gore said that appleton didn't know that the forty eight grams wasn't dumped and so it couldn't appeal of course it could we made this argument before the i c c because the pull in their determination showed  exactly the same thing that was in the record both that's why they made the argument below that that that the commission has to take this into account and makes no sense whatsoever with regard to viable home market test again keep in mind that this is something that the that the commerce department computes wants for the entire placer time once they do that they don't then do a separate five a whole market test for each individual model and they didn't do that here they computed normal value say computed in actual dumping margins fine mr gore wants to talk about what to do some monday morning quarterbacking about what happened in the subsequent administrative use that's not before the or what he doesn't also point out is