represent united states steel is a very important case hard real steel is the most widely made of all flat rolled products japan and brazil have very large car rolled industries so let me let me get to the point when the spammer case isn't this a substantial evidence this case the commission a basic fundamental errors of fact which cannot allow the opinion to be sustained first the commission assumed that rising demand in asia would reduce the incentive the japanese mills to this market this is extremely important fact in the case extremely important assumption by the commission because one of the key issues in the case was whether or not you can use access to pass the ship our old steel to the united states in fact the record showed that despite rising demand in asia japan's excess capacity was expected to increase that it was they would not be serving the rising demand in asia that demand would be served by other sume which he did but it was over to asia because the facts go the other way once again we were reviewing a substantial evidence base is not an issue that's correct and we're not asking that you what we have here  situation where there is a fundamental mistake which is a factual flaw in the decision they write in the decision we're not worried about your i used to pass you because we think you're going to be able to ship morning asia the there is record evidence that they never discussed it never addressed never respond to it showing that they're not going to be able to do that but these are going to be more capacity in japan asian markets not going to take effect pastie there was then to the argument on this by the parties relationships they didn't address any of that briefing they simply assumed that because there had been sales increasing sales to these customers in the past they would be increasing sales to these customers in the future again record shows that's  that issue another issue relates to the situation of vulnerability we have a situation here where the domestic industry faces two big problem poor demands either not making very much money they're making about one or two percent a year in the last year the peer to review commission says we don't think you're vulnerable because we think the man is going to improve again the relevant question though is how much  the other words do they have evidence in the record showing that the man will improve by a sufficient amount that it will actually make a significant difference in the vulnerability a lack of own ability of the domestic industry is drawn you want to save a couple minutes  factually that they thought they assumed the demand in asia was rising japanese producers would benefit from that demand factor that right so what what is it where in the record do you say that that it that that evidence shows that that the japanese could not capitalize on the projected increase how you can see you can see this in their brief if you look at their brief on page thirty one they can see commission coun twelve i mean that's that's fact right there i mean if they're available capacity is growing then they're not able to take advantage of growing asian demand in order to work off the excess capacity that they already have  my first six just expired  part just so i'm clear you don't object to the fifty pants finding you're only addressing brazil we object to the japan finding and we briefed that but i'll be addressing japan pricing  simply failed to acknowledge much less discuss certain critical material record evidence and arguments that detract from its conclusions raising the question of whether the agency in fact considered that information at all or important aspects of the problem before it the agency's approach to likely japanese pricing is a case in point the agency relied on what its counsel conceded are limited data with respect to japanese prices in the u s market during the review period ignoring record evidence showing that japanese producers are selling in other export markets a crisis far lower than the prevailing u s market prices agency council has argued that their country export pricing simply irrelevant to the commission's analysis citing sections sixteen seventy five day three of the tariff act but that provision simply says that in some sectors view the commission is to consider the extent to which subject producers likely future pricing in the united states will undermine  prices for the domestic like products there are any number of types of evidence that might be relevant to that analysis and nothing in the statute indicating that foreign producers prices and third country markets are irrelevant per se to the inquiry and particularly here where there was a posse of data on the record with respect to what japanese producers were actually charging in the united states during the review periods of a different shipping to the united states with high end identity than place the third country data was relevant and if think it's relevant but you know so even if you accept the fact that it's relevant the question is how much relevance could it possibly have if that's not the determination that we're attempting to make it how can you translate what what they charge in third countries to what they would likely charge in the united states at least provides you with some input as to what the floor pricing is how low are they willing to go in export markets how high do they go and export markets to their prices change in relation to volume do they not there some relevan here and if the commission decided it wasn't around wasn't relevant it needed to at least explain why it wasn't relevant and couldn't just maintain a perfect silence on the issue silence is not an explanation or similar issues with respect to  piece of evidence it's merely a data point and may not carry by choice so they have to fight to every single piece of evidence that they that might be relevant even if they don't feel that it's meaningfully changes the analysis the amount of relevance of particular data point or piece of information it's going to depend on what other evidence you have in the record and what evidence they had in the record here with respect to japanese pricing in the u s market was very little data in the given the paucity of the data our perspective what japanese japan j producers are actually charging in the u s market during the review period they had to broaden that analysis they couldn't just assume well i guess you can really sell at prices below the us market they had evidence before them that was apparently relevant if they didn't think it was relevant or needed at least acknowledging mentioned this is why we're not going to consider this evidence or this is why we don't think it's persuasive here at the door and it leaves this core and leaves the parties unable to understand what the commission's analysis really was and understand whether it was in fact based on the entire record or not the commission's approach to japanese volume the survival of the draft but i do i also mentioned that in considering like japanese audience the commission created all of asia as a single unified market destination for japanese products but treated all latin american countries a single individual market as a desperate treatment care why is asia one giant market prices as the court so question indicated even if they were potentially relevant it's the commission's jobs to wavier that and determine what what grade to put on it the commission gave expensive explanations not only for these factors which are lost yes well there's a lot of times when the commission doesn't explain every piece of information on the record but in this case with explain on the other side was arguing he was saying that that in fact there is evidence in the record that show that somehow japan could not ship to these other asian countries i don't i don't recall seeing that doesn't believe that there is such as they expand to satisfy the asian market they won't continue to have excess capacity the they will continue to assess capacity what the commission found was that was that was the commission's finding that excess capacity hadn't been used for that purpose of knowledge in markets for significant influence and there wouldn't be used in future thing outside the united states that that the japanese employed what's your response to that the commission imports there had been over selling rather than under selling those instances of underselling occurred during the asian financial crisis in during which there was no  domestic products so in find there's no it was no history of pervasive underspent underselling in the commission looks first back to what happened in the original investigation there wasn't substantial underselling in that timeframe in the current review although it was under the discipline of an order in all sorts of things that was over strongly rather than underselling in the prior review it was two and two over over another their arguments show that there was an alternative approach that may have been adopted but that fact is legally irrelevant to the fact that an alternative approach would have been possible they also point to isolated elements of the provisions of analysis he liked the volume analysis was very complex the commission found that the the the japanese were focused on the asian markets that their presence there had grown that compact that demand was likely to grow in the future that they had long term relationships with customers that they had not difficultly increased exports to non asian markets in the past indicating that they weren't likely to ship to the united states in the event of an event provocation we also found that all those u s prices were pretty high compared to other markets they weren't sufficiently high under the circumstances of the asian focus to cause a shift that focus now mr mr von says well these relationships to mission should've looked into them further the commission had before that the japanese producers explanation of the relationships between two different to have a long term relationships will put you in a more likely posture to bake sales then with the absence of long term relationships in the united states so it's a sort of a red herring when they argue this this good will in the form of long term relationships would prove irrelevant to the future on vulnerability commission acknowledged that there is a trend the relationship between demand trends and the industry performance industries performance had been very good early in the period performance was lackluster but not not so terrible in light of the demand traditions now they seek to have a label attach vulnerability but they did they don't make clear how doing so would alter the commission's analysis which fully reflected took account of the industry's condition the label vulnerable with not carotene affirmatives particularly where as here the commission found for both japan and brazil that likely volume of imports would not be so significant simply that in the meeting it's required that it look at what happened in the original investigation the commission did emphasize in the volume findings that the reason we have a steep indeed the contrary was the case that of the demand in in the asian markets was steeply increasing and therefore we were going to have this push across the ocean mr von that both the issues of japanese exports to asia and unused capacity in japan were very significant issues below in fact these were extensively briefed argued in tottered in the commission's decision or simply we should  o'malley let me turn first to your question as to what the reference once it is the worst the evidence in the record that the japanese respondents could not increase their shipments to asia our response to that would be quite to the contrary there was substantial evidence  the record show those shipments could increase in the future we've outlined in our grief for example the record of increasing long term customer relationships in asia the dynamic nature of those relationships which not only grew in numbers but add capacity over time we pointed as did the commission in its opinion to the substantial increase in exports to the asian markets over the period of review and the forecast of continued strong growth in those markets and as i understand th commission found that the evidence showed that the increase in that asian demand of us going to outstrip the increase in excess capacity is that right i think it's fair to say yes but the commission looked at the entirety of the record saw that there was this history of increasing shipments saw that demand was projected to remain strong that the japanese producers had these relationships in place and had a strategy of continuing to grow those relationships and determined reasonably that they would be able to continue to do so now mr von approaches i think it's very common but incorrect way of challenging these conditions decisions he picks one piece of evidence out of the record a source that they prefer and say we can calculate an unused capacity amount from that source and the commission should have created that as the gospel truth and turned its entire decision around that and that that was an option that was available to them it was just an option they didn't choose that was not the only piece of record had evidence that despite growth and all the asia for example the japanese producers have been consistently successful in creating their exports over the period and from that it was reasonable to project they can continue i think you put your finger on the whole key to this appearance which is issue of what was going to happen to the japanese excess capacity as what you have not heard these other guys tell you all just stations given by the i t c fall apart you know demand is growing in asia yes but your unused capacity is going up they have these long term relationships yes but your unused capacity is going up you are analysis of the likely going on japanese imports rests on a presumption is as you rightly said junction is is that the excess capacity would be going down but there's compelling evidence in the record that that's not going to happen and they going to be as much as you pair was experience extensive there where there was extensive back and forth between the parties in terms for example of what was going to happen with some of these long term relationships we put evidence on record they put evidence on the record committee just didn't address thank you please the court just a few points in a bottle to mr st charles first mr st charles appears to fall from the floor for not having analyzed latin american markets on an aggregate basis but it's the commission that raised this entire question treating two different regions separately or differently without explanation asia becomes one giant region not a collection of individual country markets whereas latin america somehow each of these countries maintained its political identity for purposes of the commission's review where the age of becomes this giant blob that japan just stuff to instead of a bunch of individual markets so why the disparate treatment is not addressed by the commission they don't even acknowledge that they're treating these two regions differently secondly i question their data the very questionnaire data that mr st charles cites from the japanese producers show that they were expanding their sales to nine asian markets at a greater clip than their sales to asian markets over the period of review this further raises the question why are we looking only at asian markets why is that the end all be all of the commission's analysis and then as to the pricing data mr st charles appears to concede that there was very limited pricing data with respect to japan's actual import pricing into the united states during the review period equates to the original investigation data in which there was  that it could have looked at it didn't look at it or if it there's a look at it didn't acknowledge it so we don't actually know what the commission did with this data other than say it's irrelevant to the state of the record demanded a greater explanation or at least acknowledged and if the stated in the commission which puts us in a position where we have great difficulty in ascertaining what the commission's true reasoning was silence as i said before is not an