thank you our next cases you know incorporated versus the united states morning here on ars there are two fundamental issues in this case the commission's failure to determine the lie products it accords with the statute and the commission's failure to take into account factors unrelated to dumping shouldn't that be given some sort of deference your own arrival under the under the case law of the court here is to step into the shoes of the court of international trade and ensure that the court context of the business cycle and conditions and competition and the definition of like the product is the foundation of that market based analysis so what's the most important argument that these are different products do you think i think the most important argument is that when you look at the facts there is no question that the products are absolutely distinct in the market why don't you just say what you just said the price is so different it's not just prices but what isn't the price of probably the best indicator of difference in the marketplace what's what's the best indicator i'm helping out here right prices the price is certainly one indicator everything tells you that these products have absolutely no relationship with the market price distribution customer base production not them is the same and so you reach the fundamental point that what you have is a situation in which i have no impact on the consumer tissue market because the relationship of the products in the market as as you can see and the six factor analysis is so distinct that there is no mechanism within the market for one type of import to impact the other the other industry and so that's why i'm saying that in that sort of a situation when you look at the case law i see that market based analysis where when you have that kind of a situation like with auto glass or gift boxes and they're going to tell us in just a second that forty three percent of the market is all white tissue paper anyway the two products that are in the market are packages old core consumer  that is sold in the market is either a package of consumer tissue folds that is consumer ready for retail or put on display versus a big carton full tissue paper that you can bring in a store supplier it doesn't matter what the sheet size color is in that carton you can not use it for if you are a retailer looking for a consumer ready product you cannot buy that product there tissue box i don't care what's inside but in this seems true if you are looking for bolt issue as a supply addict you are not going to go out and buy two hundred three hundred or four hundred packs of consumer ready to shoot no matter what color really are you if i understand how far your argument goes in this direction suppose that we're talking about breakfast cereal of some sort cornflakes for lack of a better example and that would you say that the corn flakes exactly the same fl but on the one hand category eight flakes that are sold in very large containers to institutions schools are part hospitals or whatever and on the other hand flakes that are sold in grocery stores in smaller boxes are different will depend on the facts it will depend on how you see not just the not just the packaging that's one factor but you would have to look at other factors such as how they're distributed and who's making them and what the price differential are and all of those things because what you are looking for is their relationship such that if you're going to look at the imports of one kid in the market impact of those imports excuse me is there a mechanism where those that impact can be transmitted from one product to the other if it can be which is what the commission found for example in bicycles high end bikes and low and bikes but they said you know there's enough of a there's enough of an in a sea it's nothing it's still a consumer item it's once a year it's a very small segment of the market but they're still not competing they're still not competing for the business supply i have is that the department stores are b investigation partly domestic industry but in the last couple of years of the commissions of people investigation period they shut down production because of the disruptions to their two critical supplies as a consequence of the shutdown the business and financial performance indicators show declines metal climbs and production capacity ship sales profits employment and so  it developed the plan to use its newly acquired production facility in kentucky to supply proximately eight percent of its customers to farmers about three months later something totally not for reasons which we've discussed in our graysmith much of which are related to very confidential information under protected worse off i'm not at liberty to go into too much detail regarding that they reached a decision that they could not continue to produce in the united states and they made a decision of closing down production and they had to turn to imports to satisfy the requirements of their customers the majority and still they were left with the question of why would a clear haply of the injured by important speech really was injured by this disruption to the supply even if its management decision was wrong it doesn't indicate that there was a cause of this injury it was due to increased imports the imports came afterwards after cleo determined that it could not produce with the existing supplies reverse of thank you  and then the second about this is about in terms of the forty percent price difference isn't that pretty indicative of the difference in product is a good question try says one factors six and in fact when you have a job but it's a pretty important factor in a marketplace isn't that what better indicates a market segment than what the consumers acknowledge is the price well twelve producers use exclusively one of the other consumer bulk packaging is different which calls into play our folding boxes case only three of twenty purchasers that were surveyed thought that they were interchangeable we're starting to look now at more factors than just price right and i think i think that the proper way to approach the issues from the ground up is not starting from different markets here let's apply that and let that color our judgment is expected it's really a ground up analysis starting from just what physical use is in characteristics the idea that you ignore that the that the one of twelve produce one of the other end of case right you lose right there except your honor when you consider the production their share of production quantity it's not simply a matter well let's are eleven or twelve in fact in this case it's a very significant portion even if you look at the end of the period and that number actually jumps way up if you look at zero one you know to get all that information to be in the record and it so in terms of the domestic actually i think the domestic producers that's a factor that really weighs heavily favor in that consideration so i am actually looking at the same facts and i appreciate that different characterization well it's yes it's a question of what you're asked ultimately is an injury it is an industry being injured and the industry products don't compete with each other generally h industry being injured well that's just it if you're not competing at all subject employers are competing with a domestic like product then you've got a serious causation question but here remember we're looking at a domestic product and we're saying we're because we've got a product that corresponds to to this go we're looking with in the domestic industry should there be lines drawn should there be one more product what we're actually looking at domestic domestic pieces of  wages we haven't even gotten to the question what about the domestics purse is the important product and on that question i would submit i completely disagree with with the suggestion that that there's a lack of substitutability here there's a whole argument i think that if the like product analysis we don't win on that and it's you have to think of this market is strictly segmented and of course the commission didn't find that and i think part of the problem is when industries well i guess you're right and i'm racing ahead into my market segment who's ation the ultimate question of competition here let me let let me bring you back to retail and the importers only import book and the they're sold in entirely different channels two entirely different people the prices are wildly different because of the cost of packaging which is most of retail cos three so what do you advise us to do and doesn't this really bring the standard of review into kinda question well actually i was in a whether it's a three three if we're just looking at the commission and you can do that i'm whole crystal argument is predicated on your opposing counsel winning on the separate product issue right because once the products refuted sustain the net it that issue takes on if not the bulk of their case goes on the testimony of their president mr kelley who said the reason we did this was because of our ability to get these supplies and what did the commission do this is a classic he said she said case if you look at the other evidence my clients close actions after the case was filed the suit is the case was filed magically clear was able to resume operations it was able to get jumbo rolls it was able to get whatever it resumed production in the united states now it was not able to get these very next sentence of arguments and they go on through or very close examination of each of those in a confidential hearing of the type that we have here and i think that you should ignore that i think that's something to be considered as well when you're looking at what the lord but i do agree alternately you are reviewing the commission's decision and here that's critical because what did the commission do the commission assessed the credibility of witnesses who spoke to them they could look at them they could assess their credibility the commission looked at the physical samples of the it look at x last and look at industry more broadly and that's what they did here and i can see you have a couple of minutes remaining brief with that the bracketed number is the correction factor correct ok the reason is i'm familiar with it so i just wanted to make sure i was on the right page literally yes ok secondly with regard to the related party provision that  i recognize that representations are made to various parties in exchange for their cooperation in the course of the investigation etc but unlike the court of international trade of course we don't do  confidential and non confidential opinions so this poses a problem for us let me ask first if there is any possibility that the council i have a feeling i know what the answer to this is and i have a feeling that the answer is going to be no but i'll ask anyway there's any possibility among council that we can restrict and some generic form the scope of the requests for confidential treatment that are made in the briefs often we ask that question and people will say well this really isn't anything we care about i take it from the references to deep confidential material that there are things that people care about is there any way to limit the scope of what we're precluded from talking about because it frankly there's so much confidential information here that in any opinion we would write it you would have it we would have minefield to walk through frankly and it would be very easy to trip over something or just not to be able to write an opinion that would make any sense to a reader that's not fully advised just to what stands behind these gentle today questions to bulk out yeah i'm asking every had much more experience  would you like to comment  want to impose a had enormously burdensome process on you but perhaps if you could meet maybe even now to see if there is some form of general  restriction of the identification of confidential materials that would would help us reduce the amount of pertinent material that we have to avoid referring to that would be helpful if it turns out that there isn't any global way to save all material that is described in part two of the brave or whatever if there's no way to do it in a global way and all you would be doing is saying well you know this particular number comes from two thousand and one and i guess nobody cares about that and that number comes from two thousand and two and therefore that's all right but anything after that no then that probably isn't worth