please the court this appeal concerns the unlawful application united states international trade commission of the trade preferences extension act of two thousand and fifteen or t p s the congress passed the t p a on june twenty ninth two thousand and fifteen as the commission was in the final stages of its passenger vehicle and light truck tires from china final injury terminations are you arguing on appeal that there was an error here because the i t about the t p a factors before the agency and you didn't do that you didn't file any comments about so why wouldn't that be a bar rather is a few factors here that are relevant one is that the t p s was passed on june twenty nin two thousand and fifty the commission then and hence june july second report indicated that it would not be applying the t p m the only opportunity that we had to provide comment you are were comments on the factual record which were due on july tenth in terms of the administrative exhaustion argument your honor as the commission and my colleagues at the bar from the petitioner side quite health professional actually raised the question of whether the t p a was in fact a political having raised  changed the result because it was apparent that you were prepared to legislation had been enacted it has gone through both houses list ready for the president and it was signed and according to the record apparently you are prepared to respond to those aspects however in the end they were relied on but if you're not arguing that the result would have been different would brief we actually have we actually have a chart where we detail the four factors that i was just mentioning to judge newman there wasn't fact information on the record three of the factors the commission addressed in a very cursory manner they simply said it's not surprising i don't think also strongly favors my client's position it was no redress in the commission's decision it was addressed in a footnote in the staff but there is nothing in the commission's decision itself that talks about that particular provision so for the first time the  to service that there is no information on the record about that whatsoever to answer your your honest question the commission could have gone back and issued questionnaires if we pointed out their brief they actually did that in this very case they get the parties five days to collect new information they could have done domestic producers were increasingly profitable during appeal all right this is not unexpected and that's all they said about profitability and a major portion of our grief addressed the fact that during the p o r this industry w making record profits objective lay as an industry and also compared to other industries so it's it's up orating proudest its net profits its return on assets return on investments on we're all going through the roof now we didn't put that in the context of the new law but we said this is what the commission is required to look at when you look at an industry whether industry is being insured whether it whether to hold whether the horse is not about what was going on in the market to the c e o of a good year this is the appendix page two for ninety four and he's going to say i will tell you when that market we have to stay true to our north american strategy or our company strategy of stay and you see that in the record fourth quarter and you see that in the record for your results so you are managing it very well what was going on in this industry with the industry made a conscious decision not to commission said the industry is being insured because the revolution lower but what the domestic industry was shame is we don't want to chase revenue our ideas not to chase revenue anymore what we want to do is we w profitability these are worldwide companies they're not that just making tires in the united states these companies are producing tires throughout the world so when you look at their capacity in the united states the i g said also that that capacity  fires well they didn't have capacity to produce the tires they wanted to produce and you know i could change the whole i'm value toyotas and you look at every single one of these domestic producers and what they're saying is we had a good year we have more demand for a tree products that we can fill good year again global demand for h p tires of man which in some cases exceeds our supply cooper we're in are being imported by domestic producers from third countries that are being imported totally from china the domestic industry has rationalized worldwide production they're profitable you're looking  warm term growth and to do that they don't want to increase revenue by producing inexpensive tires in your domestic facility that doesn't that's not healthy for the industry which only sounds like a fine  and what the commission said is that the course you have less revenue you're being injured and domestic into it we said we don't want that revenue we want to make these low priced low cost capacity and what commission did is they just they ignored the statements but the c e o s they just rushed off the fact that the industry was making record profits by shape this is not unexpected and capacity exhaustion  the court of international trade correctly noted that they could have made arguments and they and should and the judge emphasized that they declined to make these arguments and even though they conceded that they could have and should have they had an opportunity to comment on the commission said it all what the commission did it and you can see the staff report the staff report is primarily the the it's the commission staff taking all of their record evidence analyzing it and distilling it into a single document so that's a huge volume of record factual evidence so the commission didn't say it wasn't a file that it didn't say that at all what it did was while it's in the process of finalizing the staff or the bar changed and the commission it perhaps it erred in not dimension it mentions them but even but there's nothing in the t p a that requires anything more and that's if i can i before i move on to that point i just want to briefly point out that  addition to the the problems with exhaustion and the arguments i just also want to point out that i did you the most reason for the first time this idea that the commission should have a team to the evidence on the ability of the domestic industry those raised for the first time in the reply or if they did not raise that in their opening brief and they did not raise that before the court of international trade that argument should be waived what about the argument that the producers really were councils characterization of them not chasing revenue but that's what companies are in the business to make money they're even saying they're trying to maximize profitability and if you look at the domestic industry here at the domestic industry did not seek the market share brands that they're offering they're offering different brands and all the price  vote no i mean that is the argument but that's not what the record shows and you can look in particular one of the biggest manufacturers on appendix the one sounds like dennis buys the tires that they're producing in the united states the overwhelming majority are the ones that they are that are being produced not in the tier top tier but in the secondary and the third tier so those lower value types that's the largest producer one of the largest producers in the domestic industry said the bulk of our market is going to those tears so that and the commission found that they were competing against each other no matter how you define brand the commission found reasonably that the domestic industry was serving all those aspects of the market and they whilst market share so it doesn't make sense the commission noted they have to be obtaining some of the growth because all the parties agree that the growth here is in the  the in the area of the higher value tires so if they're gaining market share then they're necessarily produce participating in that growth if they kick if they're brave if they're confined to the lower tier of the market how are they gaining market share  statute provides that the commission shout in each case consider the bottom price and impact and explain its analysis with respect to those factors section further provides that if the commission considers factors outside of that i specifically address the rate of return on assets it is it explains in the staff report that that's a function of this profitable industry there's no debate they were plotted it will industry but not was to their profitability throughout support notice theory they haven't really any argument about how these new factors undermine the commission's analysis at all they mean they point to their reply brief and they say that they put the statute those factors the evidence from the staff report in a chart but they haven't made any argument other than point at those factors and the commission to manage those factors all they're doing is i mean they haven't made any argument the commission acknowledged that the domestic industry was profitable by every measure but that doesn't mean they're not injured and the commission in and excuse me council has not articulated any way that the rate of return about it or the profitability undermines prevent a party from raising factual arguments but that i mean new facts but facts are distinct from legal arguments and nothing in the commission rules preclude a party from raising you know arguing about the probative value and that the parties can make the request in any particular time you're absolutely right they never did that and i got even told the reply brief of the did this even come up they've never requested that the commission seek additional  i talked a little bit about the competition the competition the commission's findings on competition are supported by substantial evidence i also want to address the capacity of the commission's finding that the domestic industry had additional capacity is supported by substantial evidence the commission observed that notwithstanding the excuse me the commission observed that as the rate of subject imports flowed from twenty twelve to twenty thirty excuse me i'm sorry the me starter the commission reasonably found that the record showed that they had additional capacity so it imports surged into the market from twenty twelve to twenty thirteen at the expiration of the safeguards and they more than doubled imports slowed in twenty fourteen the capacity to zation increase that along with the additional questionnaires along with the the fact that in the  state guard investigation they had achieved substantially higher capacity solution rate all is evidence substantial evidence that they had additional capacity from which they could have from which they could have  should the domestic industries importing you get as we point out in our brief when the rate of subject imports slowed the volume non subject imports increased only incrementally while the production and the shipments of the domestic industry actually increased every other way so in conclusion neither i did you vote nor the c r a have provided any legitimate legal or factual basis for this court to disturb the lower tires or lower tiers in the market arguments like that i would like to point out that lots of evidence to the contrary and record for example in the hearing transcript which is of this particular section that i mentioned pillar of the market and that's the reason why you see a lot more of the kelly brand etc etc and then he says goodyear is manufacturing tires kelly tires play to specifically play  part of the market and then at eight hundred seventy eight and eight hundred seventy nine it describes the efforts of goodyear to do the same thing with regard to the same issues i would also  this is not just for tires many products have the same marketing strategies that are you know use it doesn't mean that they somehow are lower tier or higher to a segment and i hope the segment is insulated from competition you know that is simply not the case with lots of other things and so since profit was an issue from day one in this investigation since the industry was profit everybody everybody including our client that is utmost best to talk about profit now of course they have a different activity didn't we try to minimize it right so we talked about visited the study in the pre hearing brief where we talked about the industry's ability to earn back its cost of capital right that myth that that's not a list of factors everybody had the same opportunity and to come up at the very last moment and cory's with their fabricated deus ex mark in a kind of argument that somehow or another they did not have an opportunity to argue this is simply impossible people did argue whatever they could about the profit issue and that is the only thing that really is important and the and the commission to these arguments into account including argument and found a that includes making the decision of whether to open the record when there's no information on the record about a particular factor that was a new record by the congress but you never have to reopen the record for the if you know you are really not as as i said the th contest statute was passed on june twenty ninth final comments as i said we're doing on july second i disagree with my colleague at the bar i believe that you're only allowed to make comments on the factual record you know allowed to raise new legal arguments for the first time in your papers domestic industry i'm talking about the companies producing college in the united states we have great respect for the unions but i'd wager employment or critically important but the companies producing tires in the united states