us we originally had four cases for argument today and for a variety of reasons we have no collapsed down to two cases for argument which is unusual for us but the first case in which is china and austria you're not feeling the decision to cumulate these imports are you know your honor young though they were cumulated for purposes of the materials for an injury that's right your honor in fact our position as the commission got it right for purposes of material injury they did examine the data on accumulated basis and our position is that as the post petition the facts were examined properly in fact they would continue to examine on accumulated basis and we think that would have resulted in an affirmative injury to finding for both austria and china which ultimately would have resulted in anti dumping orders imposed on both countries is it your position that the post petition a fact for austria would be different than they would be for injury but our position is that the commission got it right accumulate from material injury and exposed position effects are looked at properly material injury would have been found and cumulated basis and just to make sure we've closed the loop here you're not appealing the determination with respect to threat of injury that informatic soft that's correct your honor ok so what is a substantial evidence review whether the petition had effect on the post petition behavior we think it's both in this case we think as a matter of law the commission did not comply the statute to consider the post petition effect not only because it just didn't say enough is right and it did not analyze it enough it didn't address all the information adequately that we had provided in support of post additional facts and then as a matter of evidence as well that we think the evidence does show host to pay attention to facts and then that would have triggered the second part of the statutory provision which would have allowed the commission to reduce the weight if it so chose for the petition effect and i  showing purchasers approach domestic produce of with sales inquiries after the petition was filed the record shows no apparent changes and subject important volume and pricing behavior and some evidence there's no citation to  exactly were they considering to be some evidence it looks to us like maybe that was a couple of statements by the domestic producers but we think there's a lot of other evidence on the record from purchasers from importers themselves talking about the changes that the petition was filed there was now short supply they couldn't get everything that they wanted to get they shifted purchases to the u s producers because of changes in sales terms the u s producers are saying hey  i think you know looking at the plain meaning of the word consider which is you know carefully review something i think that there is enough here that it wasn't that it's not clear that they consider you're right maybe on remand they would walk through more of the data and we have to let it rest but we think at this point with all of the information all the evidence on the record this is not this does not meet the standard of considering well even if they even if they had some obligation to cite specific things in the records there is a big difference between inquiries and actual volume and price effect is there not yes there is and we think certainly everyone agrees that the domestic producers were able to sell a lot more in two thousand and twelve and they had a two thousand and eleven where we think where we think the postposition effect would really impact a material injury decision is on the market share analysis it's clear that ultimately this case was about market share the commission agrees that volume was increasing on an absolute basis they agreed that there was significant underselling but what the commission found was because market share remained stable then the u s industry could not have been seeing currently materially injured from imports and our position is market share only was remaining stable in two thousand and twelve because of  so again the most important pieces of evidence we think that shows that there were post petition is that a large purchases and from a domestic producer that the purchaser as acknowledges in their questionnaire response they were like going to purchase from the chinese supplier and said they have been to the domestic producer and that large quantity is quite a huge swing in the market share a matter of remembering right that there was no testimony from th reason for the have to shift of of want to purchase i think the purchaser said that they couldn't get that from china as they were told that it was not available and you know and availability could mean  that the chinese sellers didn't have the stock which would be roughly speaking innocent poor it could mean that the chinese sellers were withholding it so as not to administrative action allows the commission to apply a presumption that if there has been a change in volume that that change is related to the pendency of the investigation and and if the the commission can then decide to reduce the weight it is a rebuttable presumption but that we reserve statement of administrative action as allowing the commission to make that presumption so you see a change that has occurred after the petition was filed with no other information other than they shifted shift to your figures show is significant or not screaming for an explanation or really that's pretty small well i mean in terms of the one  change that several percentage point change the kind of thing that in like you see practice in general is often viewed  significant or is often viewed as not significant what i'm trying to figure out is it seems to me the word considered probably needs to be applied based on how many questions are raised by the evidence and if this small percentage shift is the kind of thing that in general doesn't raise very many questions than it might be easier to conclude that the commission's saying we just don't see the effect of the petition on the post petition change that would be material i believe the commission does typically find these kind of percentage shifts in market share to be significant coupled with increasing volume coupled with significant underselling but if it's true that they knew he was sentient dealing with a double discretionary to clues in here i mean the commission that's supposed to consider it there's no there's nothing that defines what the level of consideration must be and then once they consider it they have the discretion to discount it or not that's right your honor  first with respect the issue of consideration as to just start a question point out the statute says it will work hard to consider where there's been any change in the data and that's exactly what we did here the foot cites to the appellant briefs which where they laid out all of the arguments that they're making exactly here in fact the same chart that that in their brief to this court about the market share shift is in the post here in brief that we cited in the opinion so and it was address the statute says whether there's been any change because it isn't a provision tells us to look at whether there's been any change in the volume price or impact data that's what we do in these cases we look for changes in the data we do that we do agree that switched because of the petition when as we've explained briefly the record evidence here plainly contradicts that showed the purchaser identified a supply shortage there was nothing about the petition for the bill and that presumption to it says that the counter we don't do counterfactual suppose petition is based on what were the trends before and after the petition was filed can read and we can't call subject imports domestic sales subject important or subject important so in this case  the pricing but the underselling was exactly the same before and after the petition with their hand your comparison is not worth the price increases i mean there were more price increases after the position than price decreases after the petition if i think there's just one there's one difference what happened was when you look at it in terms of comparing the first and second half of two thousand and twelve there might be more price decreases but that's the opposite of what you'd expect in a post edition fight every single piece of detracting evidence and within the tracking evidence at all because as i explained the main purchaser that they're relying on here didn't identify a petition it's a reason for the change but even if you were to do it at the track the evidence we every little piece of evidence doesn't mean we didn't consider it a duck you see a difference between every little piece of evidence and pieces of evidence period i mean you say they're brief but i mean wouldn't it have been more appropriate to have a little bit more of a fulsome analysis to say ok congress tells us we're supposed to consider post petition a fact we're looking at these post petition and facts and this is our new assignment as opposed to simply saying in a footnote warranted particularly in a case like this where these were the trends on their face or so are so obvious can you just go over again you probably have said it already knew her very specific response to the point about  a couple of percentage point shift as a result of what i guess is just one one purchaser well that a couple of points or one is the purchaser that's that shit is based on the presumption that purchaser switched due to the filing of the petition all we have on the record here is their questionnaire and that's what the commission has before when it's analyzing the record here the questionnaire doesn't identify the petition as a supply short if you were to find it due to the petition which it wasn't but if you work off the commission has the discretion to decline to give that information like weighted can't really do the math there as there is and there's no statutory basis for that or for anything case driven or anything so so we look at them that the data that we have the commission didn't specifically talk about that purchase shift right in the footnote we can we talk about volume and pricing behavior the purchase shift was limited to just tell you what i tell you it is for me that they feature this one couple of percentage point shift in purchase one might find that significant or not according to what one thought the reason for the shift was and one might find it significant or not according to how large in the scheme of things this couple of percentage point shift is and one might demand an actual explanation focus specifically on the reason if that several percentage point shift was in the scheme of things significant and the commission just didn't talk about any of this which it seems to me is pretty much what this comes down to is this percentage shift the kind of thing that in general the commission would look at and say we really ought to figure out why why it on to follow leads to faulty presumptions and mainly three one that it was due to the fish and two that it was except that the again and correct me if i'm wrong the commission did not say we look at that purchase and we find it was not proven to have been caused by the petition it didn't say that in the in the opinion but it's that's part of the record here well it's part of the record in the sense that you say that they don't identify a shortage but i mean what is the economic assumption that underlies the statute that says you have to consider this and then that post petition does they assume that what that domestic producers will be afraid to buy subject imports the volume after a petition is filed because of the restraining effect of the pilot of the station here the operator so it couldn't that have been the reason for them lack of chinese supply welp again we we had the there was there was no no one to demand the purchases there are pointing to didn't identify i mean as far as lee said i've got less supply i mean why couldn't that that that presumption be got less supply because there  one thing to say they have not proved that the commission would have made a contrary finding had you see it and not made the now by assumption the state regard it was not in any substantial doubt here because the record in there was there was no volume price or impact on whether you even if you knock out twenty it's still a very strong negative determinator this was the unanimous commission determination by the way there was no can it can i  me that could mean either of two things in the natural in this context causation question it is a comparison to what would have happened in the absence of the titian that's how you figure out whether petition that the findings which is of cause a change in that is we've looked at volume price and impact we've done our analysis with they're not challenging the my main findings there then we does do a basically a double check you look at the post petition for any changes in the data there weren't any changes in the data here and i think i have not communicated my my question earlier there's the petition there is dated before data after so one question is how do those two things compare there's a different question before data after and the different question is how does the data after compare to what the data after would have been in the absence of the petition that seems to me to logically relevant question to ask if you're trying to figure out whether the post petition data is of significance to the underlying material injury question right i think we're just not there which is not in the statute it's not in the legislative history has not in the case law itself that would be had we ever rejected that because it seems to me the statute does not answer that question the statute does not an ambiguous lee say compare yesterday to today regardless of the judge and it changes to whether there's been a change in the data the change in the buying price volume price impact i mean whether let's let's not argue about the statute have we ever said time that inquiry is limited to change from yesterday to today as opposed to today is what today would have been well you have indorsed the commissions and so is the court of international that's fine so that we said it is ok for the commission not to ask the counterfactual question i'm not aware no there's no case i'm not aware of that because it hasn't been done before it hasn't been argued so there isn't  any change in volume price and impact we've heard that repeatedly since the finally end of the petition that indicates to me that the commission is to look at volume price impact since the petition w parked to see if there are any changers logically the commission in evaluating her there any changes is going to look at what happened before the petition was filed what happened before this act which of so much concern to the congress to do amended the statute to instruct the commission to consider post petition fax because it was concerned that the filing mere filing of a petition could so matched the injury that the domestic industry was mixed syrians seen that the commission could make a negative determination when in fact it was the petition that was driving increased domestic shipments reduced imports increased but the understand my maybe it's the fifth confusion on my part but it seems to me that pretty nicely the congressional concern you just described logically requires an inquiry into a comparison between what happened after the petition and what would have happened after the petition that's how you figure out whether the petition had an effect i respectfully disagree because one has because just doing before and after completely ignores exegesis changes in the market well i don't i'm not sure the congress was concerned about executive exchanges in the market the congress was concerned about a petition was filed the congress is concerned that after the filing that would position for producers constrict their exports to the united states and raise their prices in order to trying to respond to the petition it's not going to affect the outcome incidentally because periods of investigation both the commerce department and the international trade commission terminate with the commissioners with the petition is five so it doesn't change that data what it might change as the commission is looking in its final determination is whether or not the domestic industry had a boost after the petition was filed and looks far better than it would have otherwise have looked now the commission those two counterfactual analyses and sunset and different cases but that's because it's looking forward it's trying to speculate what would happen if an order is revoked what would happen if we did not make a threat finding given the factors that we're looking at in terms of foreign producers behavior and  domestic industries performance speculation and the commission acknowledges that record which is that it's looking into the future here the commission has actual data and the actual data is overwhelming to be the commission all consistently focuses on price and volume and i keep saying that the response we looking at what does it impact me separate from price and volume it's a third word used in the statute couldn't that has to do with since the percentages of the market or other factors that are less concrete well i wouldn't say less concrete your honor but indeed impact is changes in price and volume are going to impact market share right but then are you saying that impact has no independent meaning other than changes in price and volume impact is looking largely at the domestic industry at its operational performance at his financial performance and the domestic industry yet yes if the post addition of fact is that the foreign producers stop shipping and increase their prices yes then the domestic industry looks better than it otherwise  subject of so much concern this morning with edge and you were correct your honor it's a couple of percentage points it's not several percentage points be that as it may that producer was only one of thirty three producers who submitted a questionnaire responses i can on behalf of the palace just to get back to our least in oil field the purchaser we do have the other side of the story we have evidence on the record from the domestic producer from whom that purchase  made which where the domestic producer puts forth its point of view that is that purchase was made to the petition filed so we do have two sides to the story there regarding the well let's let's look at what we have made the connection based on the totality of having the domestic producers information on the record coupled with this purchase coupled with the presumption that that is allowed that the commission may apply around so i mean even if they choose to apply the presumption then it's for but a little but they don't have to apply the presumption that's correct we think they have the discretion to apply the presumption we think in at least one o case they did specifically reference the presumption one of the commissioners mentioned the presumption as well during questioning at the hearing but we think that i mean just just to we did we did look at the whole two thousand and twelve period and that was in that chart that we put together because we had the annual data of all imports coming in and it matched you know exactly with what the commission's staff report that petition was filed in june two thousand and twelve and contrary to mr tidd i t c counsel position we actually are not necessarily saying the commission should completely disregard two thousand and twelve we actually think the commission could look to continue to keep on the record of the six months of two thousand and twelve before the petition was filed and then discount if they choose to do so discount the weight of the evidence for the second half of two thousand and twelve after the made it a market share decision they said yeah this volume is increasing which normally frankly would have resulted in an affirmative maturely injury but they say that by even though it's increasing we have a relatively a say market share and they s significant underselling on the underselling has not resulted in capturing market share from the domestic industry so i think in this case which i think is unique i mean i really also i come down to market share and for and for us  the commission's lawyer assume for a minute with me the statutory language leaves open whether the commission is supposed to consider yesterday versus today or today versus what today might have been have we addressed the question we've been presented a contention that the commission by looking only at the day versus today comparison failed to fulfill its obligation to consider a change in the sense of change from what would have occurred in the absence of potential i cannot think of a  that question ok and one other precedential question i know that there are statutes all over the u s code detail he just has to consider something are you aware of in the cases of other courts of  remarks constitutes consider race evidences consideration and when it doesn't i don't recall that we necessarily looked into that a i'm hoping it's because it wasn't out there but i thought we were just relying on the plain meaning of the statute of the word consider what does it mean and they're being shoved overlaid to this well i think i consider considered to be plain language the plain language of the statute is to consider it and then you look at the evidence that was presented and whether the evidence was considered and here we think the evidence was not sufficient and the citation to your briefs where all the evidence was laid out is not enough no because all they ultimately hung  had on was some added in that domestic producers were approached and we laid out a lot more than just some evidence of that so i don't i don't think that was sufficient ok thank you