with regard to my st issue price of facts and underselling at the administrative stage the commission found significant and widespread underselling all not considering certain domestic industry prices as according to the commission inclusion of those prices would not have significantly affected the underselling calculations however before the court of international trade commission took a contrary position to commission st introduced each was pricing behavior from the pulmonary seventy seven percent of the final period of investigation but their job is correct is it not that you didn't raise this issue about the west pricing data  and that oral argument is this is judge prose is that really the way it's supposed to work here i mean for me i'm a little i have a little bit of reservation just be clear to me because there were some confidential ok but why isn't it a waiver because you didn't raise that before that well according to this court this court if a poli raises an issue material moment that that excuse you're not raising it earlier before the c i t but the whole purpose of the exhaustion doctrine is to is that you raise the issue before the agency so that the agency has a chance to however before the c r t c they decided it didn't matter yeah but they they basically say in any event respondents do not argue that prices were some much lower than the other domestic producers prices that inclusion of its pricing data would have technically affected the underselling calculation spoke about it in our response relief and we also spoke about it at oral argument but you did not speak about it before the i c c for the i k c we did not know you're o bayview because he's blessed and still in business including as well as pricing behavior in the commissions underselling analysis changes the results such that the commission's underselling analysis was unsupported by substantial evidence the commission's underselling suppression prices of the domestic flight product ended the period of investigation higher than that started regardless of whether it's less punishing behaviors included to avoid that fact the commission truncated the last quarter of the final period of investigation use such analysis is hardly fulsome given that the commission's entire price depression argument depended upon it as such that part of the commission's analysis was not in accordance with law in its brief before this court the commission commission recognize such when it truncated the period of investigation for purposes of its parts to person analysis but you know sir i appreciate the argument you're making in the once you've made your brief but they're substantial evidence review here and this is complicated stuff and there's an enormous amount of material here to be analyzed and it's a little difficult for us here at the  really evaluate everything that the commission did with respect to the importance and they value the way of the various factors so i assume you appreciate that i do  on trying to make it as is as clear as possible to him clarity is not the issue the problem is the difficulty is that there's a lot of evidence in the record the commission considered it we assume they considered all of that they analyzed it and maybe not enough detail to your liking but they did analyze all the factors and weigh all the factors and it just seems to me that it's difficult here at the appellate level under substantial evidence people to start nd guessing them and reevaluating the entire record understand your of the period of investigation is a testament to that fact hardly a surprise and certainly not anomalous on one hand the commission truncated the final period of investigation because of privacy law materials drive  profitability those two dollars positions cannot be reconciled particularly when you consider the movements in the ratio of the cost of all materials to total net sales however for the court to table success one on appendix pa truncating that period of investigation the commission's price depression argument boils down to some weekly reports issued by line throughout the year that stated that the prices of surgical imports were lower than lines prices in its brief into lowering contract prices based on subject imports lower contract prices that's impossible monthly contract prices are not known until immediately prior to or during the month of shipment and are entirely dependent upon changes in the market prices were never it is you during the investigation you'll hear today that low price subject imports forced the domestic industry to lower its contract conversion tree thereby affecting industry profitability what's the source of those low prices analysis then supported by substantial evidence with regard to the impact although the domestic industry is in a poor condition subject important not the cause of such condition to conditions impact analysis was predicated on its underselling price depression analysis including that subject important allegedly the cause of the most industries poor condition however the commissions underselling and price to press analysis employ an erroneous methodology in other words the commissions impact behavior on the us market for no less than seventy seven percent of the period of investigation and we can only infer that east west continued such behavior but the remaining twenty three percent of the period clients suffered from an admitted cost price squeeze due to the high relative increases in cost of all materials a circumstance that the commission failed to address why it also self inflicted injury by applying damaging pricing baby related to sales for which there was little or no competition from periods here but that case also emphasized the importance of including the most recent time period and what's the why is the commission's decision to exclude the st quarter of and seventeen which is the most relevant recent time period appropriate well as the commission found and almost conditions existed during the st quarter of two thousand and seventeen that directly impacted domestic prices and because of the commission's high material costs it was an anomalous spike in raw material costs so what's happening with raw material costs they were fluctuating  and were declining but in the st quarter of two thousand and seventeen you see a dramatic spike and given that the published prices of raw materials were directly tied to the variable component of the domestic industries contract pricing formulas this anomalous spike was directly responsible for the sharp spike and run with a sharp spike and domestic prices and given given the phenomenal condition of the device the commission was reasonable and focusing commission uses in analyzing price depression we see we want to look at whether anomalous conditions exist in the st instance that are impacting domestic prices before the commission even continues its analysis and determining whether subject imports were having a six significantly depressing domestic prices commission was entirely reasonable and and focusing its price depression analysis within this time when it wasn't the argument that the twenty seven dollars data should not only be used for price trends but also for determining comparative that's correct and the commission did use a st quarter and thirty two dollars correct would that's correct and what did they say here so this is all relegated to a footnote and what they say is there are now  report set out a table that showed the raw material costs and how they were fluctuating and declining and then you see a huge spike in raw material costs and that set forth the percentile increase and that percentile increase is as a business partner information but it was it was significant and it was anomalous but i don't like to point out here that raw material costs only impacted the domestic industries the variable component and did not have anything to do with the domestic industries fixed fee components which covered the domestic industries profits and other costs and so while the wall prices domestic prices may be impacted by raw material costs this fails to explain the substantial cuts that were made to the fixed fee component of the domestic industries contract pricing formulas and as  demonstrated there was substantial evidence from purchasers informing the domestic industry of the low price subject imports that its prices were too high compared to subject imports and requesting it to me twenty seven dollars p data was only in connection with the price trends analysis and i can understand the argument that those prices were distorted by material costs that might not be imports under sold a domestic product and one hundred and fifty of two hundred and eighteen quarterly price comparisons and holding eighty five of the quantity of imports hundred and fifty dollars out of two hundred and eighteen dollars quarterly comparison moving to so in addition to these purchase or communications that were on the record exerting this pricing pressure on the domestic industry to reduce the sixty dollars component of the contract pricing formula the record also demonstrated that during the contract negotiation process that purchasers would negotiate the fixed fee although never max argues that it was impossible for purchasers to negotiate a fixed fee because contracts were negotiated and signed a month prior to them taking into effect and that different the different purchaser are different suppliers use different pricing formalised to different published prices of raw materials these arguments are actually directly contradicted by the statements that respondents including dr max made to the commission during the administrative proceedings below  because as commission explained the data that the commission actually collected from domestic producers and us importers in the final phase of the investigation representative specifically they collected data from lyon and goodyear which not only accounted for the majority of domestic production but also counted for the majority of shipments made during the period of investigation ok but i don't find that particularly convincing when you have data for rd entity which is a major player in the domestic market it seems to me that you risk data manipulation by excluding respectfully disagree because st of all there is no statutory basis for the commission to aggregate preliminary phase data with final phase data nor did  is pointed out the most recent time period moreover there was a pricing product that was included in the final phase of the investigation pricing products for that was not included in the  data collected was representative of domestic industry accounting for the majority of shipments of the domestic like product the commission was entirely reasonable  finding the data to be representative analysis and in that phase in the preliminary phase where the commission actually considered east west pricing data within the context of the appropriate period of investigation and  of products the commission found that subject imports still significantly under sold the domestic product and seventy out of one hundred and twenty seven dollars quarterly comparison imports had a significant adverse impact on the domestic industry and conclusion respectfully request that this court upholds a court of international trade decision sustaining commission's final ferment of material injury determination couple of quick points st the appellant's understanding of statutory requirements to make two separate inquiries is not quite clear underselling and price depression are two separate inquiries the commission did just that because two separate for the underselling analysis although east west did not submit a questionnaire response the commission's final decision did comment on that company's prices as as miss kempsey just pointed out as reported during the preliminary investigation observing the same for the industry considerable resulting underselling by when looked at as a whole with respect for price suppression suppression the commission has broad discretion to decide which data they deem most appropriate in this case we agree the anomalous conditions were an extremely high spike unusual spike in raw material costs which had an impact on everybody's prices nonetheless like the data used by the commission were representative of the domestic industry as a whole as required by the statute they're not required to look at individual company impacts with respect to contract pricing commission identified that that pricing is partially because a department weather data are representative don't you have to compare the data other than the data the two chosen to use so that you can make a conclusion that the data that you've chosen to use is in fact represented if it varied a great deal from the as submitted during the laminaria investigation and found of the trends were the same it was not significantly different and at the end of the day they're still going to have to average and wait average prices not looking at individual company to company impacts but looking at the industry as a whole based on what they have in front of them as has been pointed out what they had at least in the final from the two companies that submitted mine and goodyear they had  majority of the industry in that and also i believe attempted to point out that for the one company they didn't have final information from they took a look at the same trends for that company for the preliminaries which they did have  and found that the trends were the same the nd way i thought i think it's important commission identified that contract pricing is partially tied to a cost of raw materials but they also identified that this conversion fee is a critical component of the contract which is not affected by raw material costs so there's substantial evidence in the record that that critical pressure point for price competition is is what is important and there was significant amount of information finally record evidence and pricing competition we believe is not correct they conclude that purchasers leveraged suppliers off of each other but not that suppliers use the price of subject imports the price of subject imports as leverage get in their brief to the commission they admitted that purchasers could manipulate all suppliers to achieve desired prices during the contract negotiation process process so it's seemingly implausible that purchasers did not use price of fungible subject imports as leverage what else what other honor a couple of points four points in the bottle when i would like to see some conclusion or remarks as far as what the counsel for the commission stated that  then also the commission and line both do not talk about any objective purchasers saying that they had to are there is no information on the record supporting that objective purchasers reduce the prices i mean who would use the low price of subject imports as leverage they said that it's a knitter of process so you get subject imports you get  product you play the two both off each other no where in the record does it say that they use subject imports as a starting point in fact only one in twenty purchases reported also we talked about the commission talked about the final three quarters and there's no information number one as i said in my argument before you have ten quarters of  pricing behavior photos last three you can only infer that each west continued that price and buy it it's all for bankruptcy at the end of the peel why as far as the pricing product that's missing from the primary from east west as we state that product i well i'll just leave it it's confidential information but that product really doesn't matter in the grand scheme of things no art from the commission on lions arguments that price is such a good ports affected the price you must apply product and adversely affected the condition of the domestic industry however those arguments exactly equal the decrease in the cost of raw materials considering the argument today i urge the court to remember three facts st there's no objective support in the record u s prices are u s domestic flight product conversion fees so to me those are subject imports on page five thousand and sixty six objective purchasers identified east west in lyon as a price leaders the conversion phase of the domestic product