you your honor may please the court my name is neil reynolds and i represent the commission in this deal i will be doing the opening presentation by appellant mr stewart has reserved three minutes for a bottle i'd like to reserve a minute for a bottle as well thank you if you know from the brief your honour's this case has had a long and complicated procedural history but in the commissions you present this court with a straightforward issue did the commission provide substantial evidence for it affirmative sunset review findings for the ball bearings from u k in japan and when in our view we think that it presents an equally straightforward answer yes the commission did certainly after the commission has provid court felt that had compelled us to enter negative at that point but i think it's very clear from the court's decisions in this case five this case six judge o'malley's it the court's belief that it hadn't compelled us was premised explicitly on the idea that know are you supposed to just look and see if there were seven things cited in support of something or is the question really whether in light of the entirety of the record is the evidence sufficient be substantial and it seemed that the trial cour here was simply saying there's a lot of evidence that you didn't consider so yes you've considered some evidence and yes you've pointed to some things but what about all this other stuff and i think the court was simply trying to say respond to that evidence  language and here in an escape for an escape fine it seems to us pretty clear that the court said that the only thing you can do here you know where to move forward and get an affirmative is to reopen the records in obtain additional data in order to our options on remission by limiting our options on remit it was telling us in telling you i think that she didn't intend to give us the typical remey and instruction of please go back take a look at the other information the record that i think sufficient to find u k discernible and it's not sufficient find the cumulated imports with japan to be likely to cause so injury to the us was there evidence out there that the the court of international trade i  indeed we are to read this as their intent only being that the commission had the option of what other evidence i mean what was there is there anything that anybody can point to that would have been necessary to look at that wasn't already in the record  well that was part of our issue your own is when when when we looked at the court's instructions there were thirty two issues here the first was that the court itself didn't tell last in a specific way what type of information you thought we should gather further on dreams if we reopen the record us typically in a case when we have we reopened record you don't need to be a feely clear indication from the court that it thinks one aspect of our analysis and records is incomplete and we should that she didn't if she had told to at the c i t had told the commission to go we open the records then there'd be a substantial evidence well known to do the issue is that the way the court's instructions were framed is that the currently the can discernible and japan her her discussion of this was clear that she felt that the record as a whole could not support a finding perfect example isn't that because what she believed is that director in the record as a whole there were a number of important factors that you had no data on and no data to address such as that's right by kate major industry that's what's interesting about your honor i'm glad you brought that up because the issue of the as you will see in a sunset review we had a very good record we'd actually obtained information on the tripartite competition between non subject subject and the domestic product we had reopen the record first review process to obtain specific data on foreign staff city production shipments and we have gone pretty good data on pricing visa v for the not subject easy imports subject imports and domestic products in the market so when was looking for in the different as he has you know from our briefs the difference here is that we disagree that we didn't address the idea of tripartite competition in the market we conducted a seventeen to eighteen page discussion of all of the facts that show did not subject and subject important and the domestic products were all wealthy to be competing with each other there was substitutable they were competing across the market in all and few sectors the market  there was the existing record data for the period of investigation for the period review in the second period combined with the record data from the period investigation from original investigation all show that the subjects the non subject and the domestics were going to be competing with each other aggressively on price you know specially the subjects when it will come to work but how do you respond to your friends on the other side make the argument that in connection with the petition as it related to chinese imports the commission made some pretty specific findings about what who was taking market from home and about price elasticity of demand and that those findings are really contrary to the ones that you're making here now i think that they're not they're not contrary at all what happened in that situation is the the chinese imports investigation focuses solely on china and at that point during the investigation period for that record the investigation showed the chinese actually at that point had a very modest amount the market it was an evidence of actual price suppressing effect that point time from the chinese imports compared to the other imports in the market which include the subject imports here and that there had been an obvious impact on the industry so you've got a situation where you're looking at a slightly different imports a different data showing different prices affecting price impacts for that particular country during he'll during the period of investigation and you're comparing shows a very different set of trends for price and volume you're saying well you need to do extrapolate that to this situation and say that therefore there might not be injurious impact from an entirely different set of imports different countries different prices affect different pricing data different market share so the commission explains in its decision there's a footnote that we referred to in our briefs very clearly why we thought the chinese data that the chinese decision be the water in the dumping duties are no longer place but the entries of the imports are still subject merchandise are subject to suspension of liquidation and the reason for that is that should like is it the it would be the commission's position that if we were to reverse that that they orders would go back on yes that's exactly what was there at twenty ten review because the orders were still on as of twenty ten right i actually i don't know that i think you can ask this to it but i know that if the war is won in fact i believe that the war is revoked you know and i don't want to say something that's  o'malley let me answer your question there was a twenty ten review for the nine japanese nine u k producers and the orders were allowed to sunset respect to the european producers and there's been no review sought of that market here changes dramatically so there's a a bit of surrealism in analyzing this market as of two thousand and five minutes unfortunately the nature of the beast that we that we deal with just cross i want to start with the question of whether this should be abuse of discretion or clearly erroneous and i think actually does a mentally put a finger on it when she said this is shit because the judge here i think is as clear as humanly possible has consistently said look i just want you to explain it in a way that i can i can connect the dots and timing and then to pay five she says the record cannot support from the finding of material into that's what this judge if that's what the judge did but it was also said at the beginning of that same opinion with this most recent conclusions the commission has declined to provide a genuine that that it was based on the c i t decision the commission must conclude that the revocation blah blah blah but not likely do it just isn't that's the spin that your lawyers put on this when you look back at the commision that was the spin we put on it but i don't think just for a lot of thought that i don't think i was for perspective and all and indeed you asked the question what evidence was in this record that could have been evaluated i don't think you have to look any further than pages nine and ten of time comes brief in this case where they go through a great deal of analysis of situations where the where the market operates with only two competitors and how that goes and how that works out of course we think and involve the put that analysis before the commission and the commission and bother to try to analyze it to see whether that would have in fact again because because they didn't they don't put it together that way and make a presentation to the commission and the commissions and analyze it we never had a full opportunity obviously a response to it so it shouldn't but what it does show is that there is plenty of evidence in this record from which the commission if it had bothered to go through that that process could have in fact tried to connect the dots in a way that i suspect ultimately would have been upheld by judge barnes like of that it couldn't be the judge wasn't very specific about what she wanted to be just kept saying go back and try to get mean wine why isn't there a clear record on that the trial court saying these facts need more data to win but them report these implications mean more data or about it and she didn't say it that way  it's not exactly that way but i think there's sort of two responses that one is in the very first order that she issued saying you know it didn't take china into account at all she didn't say and this is what you need to do in order to accomplish that commission went back on its own reopen the record you brought in a whole bunch of data and the belt was dealt specifically with this problem now as it turns out those data basically demonstrated that the china it was was an extraordinary position visa v the rest of the market and on pricing but but think she's going to what she did is the same thing there that she's done all the rest of the way through but the second point and i think this really is something that the commission could have figured out which is what she was complaining about is the commission's consistent reliance exclusively on the fact that the that the subject producers maintain some market share and in fact that increase the market share but what she wanted at least i think the clear reference is analyze those data and explain to me that that's because the subject producers are underselling the non subject producers and are winning or is there some other explanation on this record i can't tell so go look at those at that situation because the truth is if that's a place where we're consistently consistently beating the non subject producers and beating them on price that will suggest that the domestics are going to lose and therefore that would that would fill in the blanks isn't it is it not we're reading the record in the entirety to conclude it was just a fundamental difference in the perception and the way the c i t analyzed that and the way the i t c with them was that that the stack seeing the impact that the not a large shared by the non subject users was having on all of this in the c i t says if the producers lowered their imports the non subject juice is almost certainly will drop their prices as a result the non subject imports likely to date any potential significant adverse impact the lower price point and the i t c clearly just thought another way and they lied on its stance significant evidence in the record as to what had been the impact of the competition between the non subject porters are underpricing the subject of the non subject importers and winning market share what the commission in fact put forward that said you know there are there are a lot of situations that ten percent of the situations where we can compare the prices that the subject under under price all all of the non subject them but i thought that in the timken spray says it was forty out of what a hundred forty or something i've been to the the key to that is the semantics in forty situations it is true we underprice the subject importers underpriced song non subject importers but only in two instances do we underprice all non subject ample resources to commissions on view of the world out here offering somebody else a lower price right we've got i mean look at the actual transact what exactly been and these are transaction by transaction allies is unfortunately the these come and aggregations by the quarter and i agree with you that's exactly what they should have done it should  en at the end of the day it's pretty important to recognize that this is a very anti consumer statute ok and i understand if you're trying to protect true domestic production that outweighs that but if all the commission has effect done here is is injure the consumers for the benefit of non subject producers and importers that that clearly is not what the statute is designed to accomplish but that's what judge bars alive believed the commission was allowing happen unless the commission could show in a concrete way the opposite to be true she was within her rights within her exercise of discretion to make the underlying economic assumptions of ford that the entire exercise that we're going through are that consumers will not necessarily have free open supply and of corey recourse isn't that the gift right but but but normally and frankly if the way the commission analyzed this case for the most part which is you know you're dealing with sort of two party fights and there's no eight hundred pound gorilla out there was a third party this not subject any regulation of these services and two parties i think it's pretty easy to do exactly what the commissions and the incentives saying is that things are not change dramatically at all in the past in the past year not surprisingly i mean look the reality is if the market shifts i mean people get purchased there's a consolidation in the in the business an obviously the economy is not in the context of the fact that non subject imports are substantial and growing presence in the u s market u k imports from the smallest by value of the total of all the subject imports so please take another look at that question the commission did that on its first three men came back to the court in s k three hardly again said i'm sorry but you didn't answer the question that i asked which is what is it about the u commission made some very specific findings about about the u k s being more interested in being an export or then an importer and that there was some capacity that was available i mean they made an escape for was export oriented but where and in the records of the export orientation was to europe and to other countries not to the united states is that partly because of the existence of the order to what the record data also shows that the k industry had been substantially restructured during this time here that there was a very very some significant decline in capacity in the u k that there was a very sharp increase in capacity utilization the u and a shift an increasing shift in focus towards european customers so the u s market was not the focus of the u k producers that had nothing at all to do with the order being in place or not coupled with the fact that the non subject imports ha become a substantial presence in the u s market so the judge planescape or outfit way into the commission where is the incentive to draw any additional u k production to the u s market the fact that the u s market i you can't rely on that as as as a basis for inferring that additional u k product would come to the u s market what were you saying should have been done differently for the well so what the commission ultimately orders just because that they had a japanese affiliate that was included in their appeal does not automatically mean their appeal was limited to the job japan or only in fact if you look at their complaints their complaint only contains general references to the i p c c determination as a whole and it doesn't contain any country specific but you have to look at who they filed it on behalf of i mean there were two requests one on behalf of japan and one on behalf of u k i mean you could have filed a request right you're right we could have found the request but if you look at each of those complaints the u k complaint specifically has a country specific count regarding ditching elation it would therefore make sense for them to find out the specific complaint for u k only and for a complaint a second complaint for the remaining countries that were cumulus isn't this just really an effort to tag on with somebody else of successful arguments provides an independent basis to challenge we could certainly intervene for purposes of making arguments that would support the relief that was sought but you can't intervene and seek some different kind of relief can you that's and that's not what in fact happened to the trial court in fact found that even if it had granted our it had granted our request of enjoying the injunction that the case would not be enlarged at all and it wouldn't be enlarged at all because a accumulated case proceeds below the entire case proceeds as a single proceeding in all intents and purposes the purpose of the data is a single sided data the arguments the countries make the companies make is not on review specific and most importantly the interview terminations is applied equally each of those works so it's your position that any time i have to see uses cumulated data that every party that's in that cumulation is automatically entitled to the released thought even if they've never filed any kind of petition or claim when we will we have two positions the first is you don't need to make that claim here because each of these parties and estate corporation and others were parties to the proceeding and had standing going to be here to me quickly try to address judge mary's question about what happens if you reverse a decision the orders would be put back into place there would be a new sunset review that would get started if parties chose to do so if there was no sunset review pursue that point in time there would be a revocation from whatever the effective date should have been if the sunset review had occurred in a normal time frame so there is no twenty ten cents or it would be that twenty ten sunset review started then it would have an effective date back to whenever the two thousand and ten sunset review should have should have occurred at this point it could not include the other european countries where the european countries were revoked from the twenty ten day but that but what you have tied up in the courts are all the entries from two thousand and five two thousand pounds but there's later decision here you have decisions on the protesters no case before this court there been four where them or has reviewed a decision under protest for substantial evidence always looked at the underlying decision o phillips referred to that we had submitted in our brief it was submitted during the context of the of the remans the commission indicated that all of that information strongly supported what they had already found but they felt that they could not address that we had asked the trial court to consider remaining the case to the ide at to the i t c so that they could consider those things that mr phillips said wears were so convincing and that obviously would would have been helpful to the court in doing that so one option for the court if you view this is a major stumbling block would be to remain with instructions three minute to the commission to permit them to examine the issues of the commission felt they could not examine and finally  one of the impenetrable barrier issues that was in the staff report of the commission from the very beginning pricing is very important in invariants but there are thousands and thousands of  numbers if you look at the joint appendix public the public page one one six two you will see how purchasers viewed the most important issues pricing is the second most important issue the first most important issue is quality footnote for says when asked how often they purchased the ball bearings offered from the lowest price to them at the lowest price no purchaser said always fourteen said usually twenty two said sometimes and fourteen said never the reason that the date on nine and ten why there's a segmentation in the market where there is competition only between subject and domestic for certain types of customers subject what the pricing information that is being talked about as though it is so persuasive that that that subject would would destroy the subject imports if you took off the  ten partners ten at a fountains and so the coverage as you would expect would be quite small the coverage is reported in the i t c staff report where this review on the subject was somewhere between a half percent for domestic numbers so there's the question how much data can you go out and collect when the purchasers and the importers all identified subject imported being significantly below domestic producers in many cases and that is also in the staff report there's a table that geo what whether they view domestic is higher or lower and virtually all of the purchasers identified the subject imports as below the best they also identify non surgical as below domestic so there are lots of information from the commission is a question of what can a commission do in a normal investigation they did an enormous amount in this case have is to remain to the commission to undertake the very analysis the commission already refused to undertake based on their construction of what they believe port had told them to do they were trying to what they did say in their decision we agree with all these things attempt and i said and they are more support for the position we've already taken but we don't read the court's reman as letting us going to put that right now the judgment that's in front of us that it's constricting us from actually responding further with explanation because we had to reopen the record if you feel like we misinterpreted that and certainly that negative determination which as no one else were behind it you could theoretically as i think of a less good alternative remitted back to the court and give us an opportunity to provide further explanation if the court was in fact telling us that we should do that but that is not what the believed that that was going to dictate a particular outcome when we entered which is a negative determination and approach so i think it's important to really take that into account it's not just our view but what the court is saying is what the court itself is describing was limited and could be relied on those two things are very different data sets we weren't looking at the u k underselling data to assess the attractiveness of pricing we were looking at testimony from purchasers and other peace markets entirely of this issue after two remittance after an original determination after lengthy analysis what happened between the commission the court is that we just disagreed on the weight of the evidence and as you know the idea idea here in the did in the first and second reams and you come to the conclusion that we did credibly comprehensive exhaustive sackville job of explaining all the issues the court raised and i think we need to be affirmed here and you need to reverse and vacate the court's