and nine twelve seventy four i'm and saw blades against the united states while people are getting settled let me see if i understand the sequence that we're going to pursue here we'll hear first from mr gold fader is that right and then  situation in which the court of international trade exceeded its authority in the application of the substantial evidence standard or review to the commission's original negative injury determination that's all its dumping investigation before unquote and instead and instead of performing this substantial evidence for you remember merely for additional explanation but that's not what happened here kind of suggests that there's another way of looking  that what the core of the national training is that he has a problem because the international trade commission has made a finding attenuated competition a word that uses repeatedly throughout the opinion i don't see that the your national trade commission made any finding in you we did competition it made the finding of limited competition and whether you regard the competition is limited or substantial or sort of a difference between the glass half empty and glass half full and so maybe the determination is that the tribute into the i t c be substantial evidence to support that such a find but that's not the finding that the i p c c many wrote the commission's findings was about limited competition where they looked at the to date and this was a complicated issue that was dealt with through extensive briefing at the hearing and what the commission ultimately determined in was that when you look at the volume and the prices of imports and the condition of the industry what you see or what you don't see is causal nexus between imports and the condition of the industry and the commission's finding was of limited competition that that because in the trade commission has to make a material injury finding that material injury is injury that is not in consequential or tangential and the commission what recognizing that yes there was a large problem an important yes the prices of imports work well below the prices of domestic production still what you saw was a very healthy industry throughout the period of investigation every commissioner who looked at this line of cases where where the courts this before the supreme court decide when reviewing a duty determinations you look at the determination and see now whether the court would have come to a different conclusion already or whether the conclusion that competition issue as part of its causation else has said you know when we look at the conditions of competition we see that competition is limited by three factors by the differences in the diameters of the blades imports sell  and that's the decision was made when you consider all these factors they all work in combination to limit competition between imports and u s producers but when it got to the court of international trade the court didn't fit the determination based on that proceeded in reviewing this determination not looking in saying well did the way in which the commission analyzed it was even if i disagree and even if i would have looked at it differently is it still supported on  as it stands and that's not what the court international trade it and it says the same approach on the place effects analysis which was a separate issue you had the determination where the commission was  observation that the commission made and said well i'm not going to determine that and i kind of process was not supported because i don't agree with this observation the commission made but the the law is well they please the court i'm charles st charles on behalf of the international trade commission as you explained to brief the commission believes that both the original negative determination and your from a determination on remain and are supported by substantial evidence notwithstanding any analytical differences between the two decisions each of the eight commissioners who addressed this case in either the original determination or even on the present material which they differed only on the issue of threat both of these decisions are supported but under the court's precedent you the court need not address the riemann determination if it but like to point out initially that we agree with the appellants that this is is this is substantial evidence case the the court you understand that the court of international trade did the first time around why important issue when you really when you read the summary of what the commission found the court summarizes our finding as one of limited competition but for some reason when it reaches the analysis it interject to the top petition and you're quite correct that was not the divine the finding was that competition was was limited did you understand the court to be using the word the i don't remember your making point of this in your brief that maybe we have we have a footnote saying that although we we use the word limited they used the word tenuous you point that out but you don't i don't recall your drawing anything mistake which was not to be harmless there in other words the commission made various finding out the decree of competition in the larger sizes that if we competition in the lower side through the different the court did not find them to be factually on support he nonetheless to court nonetheless use the language that each of them was on supported but the reasoning for instance to kill a diameter not that the record did not support our plate size difference finding the court said this is why we say the court was reweigh so the commission had not shown how the overlap in the mid size range show attenuated competition very young and that is that is not what we were doing of course the overlap was not that showed tenure weighted competition that limited competition the overlap was where there may have been tougher titian there was also evidence supporting the blade size differences the court said it wasn't supported because in the bit size range again the way to focus heavily on the mid size in the mid size range the majority seem to be all of a play types seem to be of the same pla differences between the concentrations of subject imports generally and the concentrations of the of the domestic like products even though the majority of both across the spectrum market as a whole but the commission reasonably found based on substantial evidence that this was a was a rational distinction within the mid range that the court want to focus on there was this distinction as well the court however simply found it wasn't supported because within the mid range the majority were of what type ignoring that even in the big range tough position was limited by plate type differences even looking at the table it takes sixteen of the first court decision you see that if you look between what the bit bricks referred to as between ten inches and fourteen inches and you find that there continues what the court international trade is doing here is identifying specific findings that were wrong it's just a question of emphasis in other words the the core of international trade seems to be thing you should have paid more attention to the mid range holding a specific finding the international trade commission and i'm mistaken well first of all it was one of the question was one of emphasis and that is of course majority of both subjects and domestic plays were of one type but the the narrowing of the competition is shown first by diameters further by plane type diameter finding it's the it's the conclusions that are drawn about competition from that i couldn't agree with was more and it's it's it's course a why didn't you argue it that way when we do argue that the consistent was was your question your honor we did say this is something other than applying the correct standard i think it's an initial matter then just as the questions by the sport regard to the difference between limited competition an attenuated competition misses the mark the ultimate conclusion by the commission was that there was no causal connection between the presence and subject imports in the marketplace and the deteriorating performance of the domestic industry and it's our position that that bad conclusion is both not supported by substantial evidence but more importantly the review of judge miscreant's opinion should be done under the abuse of discretion standard there are certain facts that no parties can test year there was a large increase in imports during the period of investigation by value they how you get from this cited evidence to this conclusion you cite a chart for the proposition that there is no causal competition no causal can't connection that there is no competition but that  shows that majority of imports aren't seeing market segment as my put the mid range so you're saying there's competition in the mid range and i find that more significant than the commission knew now i would respectfully disagree i think what the court said is under that you're citing a chart that actually contradicts what you're saying the commission concludes what there's no causal connection whatsoever between the presence of growing imports which are  at the end of the first discussion discussing the commission's conclusion in regard  of the product there's and i think that's the bottom line it's there is never perfect competition competitors never compete exactly the same way in a marketplace like the i t c found was more than not differences in competition when i look at these subsidiary findings there's just a lack of discussion i don't understand how you can get from a chart that shares they both compete in the heart of the marketplace for the proposition that there's no causal connection i do the differences between a discussion of center and saw blades as being supportive of the connection that there is no competition between the majority of salt plates that are sold in the united states which are laser welded  middle range that doesn't further attenuate competition that doesn't completely remove a causal connection i don't understand how you can cite the fact that customers are restricted hers don't agree on the their old mint customers are for the proposition that they sell a completely different basis and i understand hal you can do that by stating to producer an importer questionnaires for the proposition that distributors you don't agree on what a professional construction company is equals that they sell to different folks so there's no determination by the court of international trade that any of the find that any of the commission subsidiary findings were not supported by your brother he found that he uses language in regard to substantial evidence and a lack thereof in regard to  facts and the extent the competition analysis by the court over and over again and probably twelve or thirteen different places since the failure is to provide a rational explanation a discussion between the facts cited from commonsense point of view if the question is whether the domestic industry is competing against imports we would not be here today after five years splitting asking for this remedy over simplify this and then tell me if it's so simplified that it's distorted but the essence of what i understand on the competition issue and setting aside for a moment the limited versus attenuated competition point th referred to the essence of what i understood judge musgrave to be saying is that commission bifurcated the analysis characterized this market as having two components well it doesn't have just two components he says you look at the evidence that was before the commission which is the chart and other evidence he says it has three components and the middle range is a component in which to all appearances the arguments about limits factors that would limit competition are not present because the diameters are the same by definition in that middle range the manufacturing process is the same and there's no indication that the channels of distribution have an effect in that range on on competition is that a fair characterization which  range in any significant degree but i would be remiss if i didn't make an initial observation that the domestic industry has never looked at their decreased presence in small  but rather a manifestation of continuing injury it has always been our proposition that the domestic industry has been moved out of the sale of if you start the year the clutch is one that we haven't seen anywhere in the case as far as i can see i think what he connection yet the chart shows you guys are both concentrated in the same area you're saying that you don't compete based on different manufacturing processes but that doesn't further distinguish the heart of the industry where everybody's competing you say that they're traveling through channels of distribution but these artificial constructs in an attempt to segment market in reality don't exist the kind of like a disagreement with the ultimate conclusion about  part of the market i don't believe his opinion is saying that it was a lack of explanation i find his opinion suggesting a lack of substantial evidence of my wrong  is that these things for sighted to say that there is literally no causal connection between their presence in the marketplace and the performance of the domestic industry and that their failure to provide the commission's failure to provide an adequate discussion know there's not very much competition because there's a lot of competition in the mid range exactly they looked at the market as a whole which is what they were required to do by statute they looked at the entire range of blades and said you know there's all these limiting factors on the competition plus they also  saw the impact on the industry and great to see the limit it will limit limited effect that it had on the on the domestic industry but he stepped in and said you know leave aside the small size part of the big part look at the middle look there's competition i think there's competition i not enough for me that there's that is that there is hope that there's not our position here there's not a competition there i need to look at this little range and i think this is enough to find there is competition and that's the judge stepping into the shoes of the agency and basically making its own determination about what is a limited competition or what is an attenuated competition or what word you use he was applying a very different higher bar lower bar or whatever whichever direction you want to put the bar for what amount of competition was enough to find that there was there was a limited impact from the imports on the on the domestic industry i think you you zeroed in on that in terms of it's clear that he's applying a very different yardstick than the warrant on that you're seeing is going to be would your position be the same if the evidence showed that only ten percent of the market was and what we've been calling the small blades ten percent was the fourteen inch plus sized blades my my my hypothesis is that the commission doesn't address anything about the eighty percent of the market that's in the mid range but simply focuses on the small and the large portions of the market and there is a significant portion of those bleeds that are made by the koreans particular that are that are centered none in the range apparently so far as we can tell the mid range i thought there would it was pretty clear that in the mid range not but i think if you especially if you go back and look at mr st charles brief he lays out what that number is what the percentage of korean production was at midrange that was centered and it is not a small number but i'm not going to say it in open court because i can't remember whether it's proprietary protecting the nation or not but i think it's in mr st charles river and it's it is it is a a not insignificant portion of the korean imports and then you have the sales to different different producers i mean that you can argue about distributors right but there's they're selling basically to different customers which also obviously is a limit to competition judge the judge city judge decided that that wasn't evidence enough for him of limited competition but it was for the eye to see and i think again rick you're going back to what the standard is it's the agency that is the expert in this matter is the agency that's happened here in this agency that was able to judge all the witnesses credibility and determine whether there's competition and that's what that's what they did they did you divide it into this this and this and that look and see and find there's competition in the middle they are required to look at the entire market if they want to change to bifurcated and sort of hive off part of it decide that part didn't complete they could have done at the beginning of the case and only