[00:00:00] Speaker ?: Okay. [00:00:43] Speaker 03: OK, the next argued case is 14-17-25, Siemens Energy Incorporated against the United States. [00:00:58] Speaker 03: Mr. Schar. [00:01:31] Speaker 05: May it please the Court. [00:01:33] Speaker 05: My name is Mike Smarr, Council for Siemens Energy, Inc. [00:01:37] Speaker 05: There are three broad points that I'd like to make in the argument today, Your Honors. [00:01:41] Speaker 05: The first is that Commissioner Pinkard's threat to determination relies on a false fact, a downward pricing trend for subject imports in 2012 that is unsupported by the data tables upon which he relied. [00:01:53] Speaker 05: The Court of International Trade deferred to that finding without looking at the evidence that Commissioner Pinkard claimed in support. [00:02:02] Speaker 05: Now on appeal, the government's defense is that Commissioner Pinkert did not mean what he said. [00:02:08] Speaker 05: His stated findings, however, are unambiguous. [00:02:11] Speaker 05: There could be no deference for a factual finding that is unsupported by substantial evidence. [00:02:16] Speaker 05: The second point, Your Honors, is that the injury and price suppression findings of Commissioners Williamson and Aronoff likewise are unsupported by substantial evidence as reinforced by the fact that those findings were rejected by the other four commissioners. [00:02:31] Speaker 05: Even Commissioner Pinkert, one of the four, found no price oppression saying, quote, there is no indication that the subject imports placed a ceiling on domestic prices, whether by means of a price cap or otherwise. [00:02:44] Speaker 05: That's a JA 110. [00:02:47] Speaker 05: Third, the government asked the court to defer to the injury findings of commissioners Williamson and Aronoff based on the tie vote provision at 19 USC 1677 11. [00:03:00] Speaker 05: But there is no tie vote on injury, nor is there a tie vote on threat. [00:03:05] Speaker 05: The government has avoided the fact that Commissioner Pinker joined Commissioners Pearson, Johansson, and Broadbent, rejecting injury by a vote of 4 to 2. [00:03:17] Speaker 05: In judicial review of agency determinations, the court defers to the expert fact finder. [00:03:22] Speaker 05: And this court has said that the expert fact finder is the majority of presidentially appointed [00:03:29] Speaker 05: Senate approved commissioners. [00:03:31] Speaker 04: Okay, let's start with your last point. [00:03:32] Speaker 04: You've got a very good roll going there, since you had three points, all of which had a bunch of sub points, but we'll try to let you at least outline your argument first. [00:03:42] Speaker 04: But let's go to your discussion of the tie vote provisions and what your focus is. [00:03:51] Speaker 04: You spent an awful lot of time talking about the [00:03:55] Speaker 04: general versus specific rules and the statutory provisions that govern divided votes under those circumstances. [00:04:05] Speaker 04: Is that really relevant to the tie vote provision that's before us now? [00:04:12] Speaker 05: Well, Your Honor, the tie vote provision tells you when you have enough affirmative votes in order for an order to issue. [00:04:23] Speaker 05: It does not tell you [00:04:25] Speaker 05: And it tells you that if you have at least three affirmative votes, assuming that you have votes from all six commissioners, that that is an affirmative determination. [00:04:34] Speaker 04: So we have an affirmative determination here. [00:04:36] Speaker 04: You don't dispute that, right? [00:04:37] Speaker 04: No, we do not. [00:04:38] Speaker 04: All right. [00:04:38] Speaker 04: So then the Substantial Evidence Review simply relates to the determination, right? [00:04:47] Speaker 05: Well, under 1516A, [00:04:50] Speaker 05: The role of the court is to look not only at the determination, but also the findings and the conclusions of the commission. [00:04:58] Speaker 05: So the court has to look at the factual findings underlying the determination. [00:05:04] Speaker 04: So we have to find out if there's substantial evidence to support the determination. [00:05:10] Speaker 05: If there's substantial evidence for the factual findings in support of the determination. [00:05:15] Speaker 05: Yes, ma'am. [00:05:16] Speaker 05: Now, you may have an affirmative determination. [00:05:20] Speaker 05: that may not be supported by substantial evidence. [00:05:23] Speaker 05: Clearly, we reverse determinations all the time. [00:05:29] Speaker 05: My point in saying that, Your Honor, is that the tie vote provision doesn't tell you how to give deference to factual findings of the Commission. [00:05:38] Speaker 05: The role of the Court is to defer to the factual findings of the Commission, whether supported by substantial evidence and whether reasonable. [00:05:48] Speaker 05: So the question is? [00:05:50] Speaker 05: But the question is, really. [00:05:52] Speaker 04: So I'll tell you what the question is. [00:05:53] Speaker 04: The question is, we have to give substantial evidence. [00:05:57] Speaker 04: We have to find substantial evidence and determine whether there is substantial evidence that supports the determination. [00:06:06] Speaker 04: Right? [00:06:07] Speaker 04: Yes, Your Honor. [00:06:07] Speaker 04: So we have a determination here. [00:06:09] Speaker 04: Now, I grant you that we're supposed to look at all the evidence [00:06:13] Speaker 04: and all the findings from both sides. [00:06:14] Speaker 04: So you look at the evidence that supports it and you look at the evidence that doesn't support it. [00:06:19] Speaker 04: But in terms of the findings, what we're supposed to find is whether there's substantial evidence that supports the ultimate determination, right? [00:06:28] Speaker 04: Not whether there's substantial evidence that might support a contrary determination. [00:06:32] Speaker 05: Well, the reason in 1516A, the court has to look at the findings and conclusions of the commission in support of the determination. [00:06:42] Speaker 05: So what are the findings of the commission? [00:06:45] Speaker 05: What did the commission find with respect to injury? [00:06:50] Speaker 05: What did the commission find with respect to price suppression and injury? [00:06:55] Speaker 05: Four of the commissioners found that there was no injury because they could find no adverse price effects from subject imports. [00:07:02] Speaker 05: Now if the court were to say, well, we're going to take the findings of the two commissioners over the findings of the majority of the commission, [00:07:13] Speaker 05: that's substituting the judgment of the court for the findings of the commission. [00:07:19] Speaker 01: So there's never really an affirmative determination in a tie vote? [00:07:24] Speaker 05: Well, it depends on the factual findings, Your Honor, because the vote does not necessarily equate with the factual findings. [00:07:34] Speaker 05: And that's really the problem, I think, presented by this case, is that the factual findings don't align [00:07:40] Speaker 05: with the votes that give you an affirmative determination. [00:07:44] Speaker 04: Isn't really the analysis that we have to find that there's substantial evidence to support that I don't know whether you call it the majority determination because it's hard. [00:07:56] Speaker 04: Essentially it becomes the majority by operation of statutes but whether there's factual findings to support the determination of the two commissioners and then factual findings to support [00:08:09] Speaker 04: and substantial evidence to support the findings of Commissioner Pinkert and then ultimately, if there are, isn't that enough? [00:08:19] Speaker 05: Well, if there's not substantial evidence, then the findings of Commissioner Pinkert or the findings of Commissioner Williamson-Aronoff are not sustained on that basis. [00:08:31] Speaker 05: But if there's substantial evidence in support of, let's say, a finding of price suppression [00:08:38] Speaker 05: which commissioners Williamson and Aronoff found. [00:08:41] Speaker 05: And there's also substantial evidence to support the findings of the four commissioners on the commission to say that there was not price suppression. [00:08:49] Speaker 05: Then the court is presented with substantial evidence on both sides. [00:08:54] Speaker 05: What does the court think? [00:08:55] Speaker 05: And let's assume that there is substantial evidence and both of the conclusions could be reasonable. [00:09:00] Speaker 05: So what does the court do in choosing between the two of them? [00:09:04] Speaker 05: The role of the court is to defer [00:09:06] Speaker 05: to the findings of the expert fact finder. [00:09:09] Speaker 05: And as I understand the language from Nippon Steele, and I'll grant the court, it's dicta. [00:09:16] Speaker 05: But to me, that dicta is very clear, that the expert fact finder is the majority of the commission. [00:09:23] Speaker 05: And it would be logical too, Your Honor, because when the role of the commission is to find the facts in the case, [00:09:31] Speaker 05: The commission has a certain expertise and it's on the front line of determining what those facts are. [00:09:37] Speaker 05: So if four of the commissioners find certain evidence persuasive and two don't, that would be the finding of the commission. [00:09:45] Speaker 01: So do you disagree then with the underlying premise that once there's an affirmative determination, our role is simply defined if it's supported by substantial evidence? [00:09:58] Speaker 05: I do to this extent, Your Honor. [00:10:03] Speaker 05: The 1516A requires you to look at the factual findings and the conclusions. [00:10:08] Speaker 05: And the fact of the matter is that you have two different analyses when you're looking at injury versus threat. [00:10:17] Speaker 05: Under the statute, you have specific factors that you have to go through for threat. [00:10:22] Speaker 05: And for injury, you have the three primary factors, the volume of imports and the price effects, the impact. [00:10:30] Speaker 05: So because those are different inquiries and may involve different facts, they have to be treated separately. [00:10:36] Speaker 05: They have to be looked at separately on judicial review, even though you have an affirmative determination that would give you an order assuming that it's not overturned. [00:10:45] Speaker 04: Right. [00:10:45] Speaker 04: Doesn't that increase the burden on the government to sustain the finding? [00:10:51] Speaker 04: because they have to sustain it under all of those elements and factors. [00:10:56] Speaker 05: Well, Your Honor, four of the commissioners looked at both tests. [00:11:01] Speaker 05: They looked at whether there was injury and they looked at whether there was threat. [00:11:05] Speaker 05: Now, two of the commissioners did not, Williamson and Aronoff. [00:11:08] Speaker 05: They just found injury and they didn't say anything about threats. [00:11:11] Speaker 05: But I don't see anything in the statute that precludes them from making threat findings. [00:11:16] Speaker 04: Well, is it necessary for them to make a threat finding if they find a material injury finding? [00:11:22] Speaker 04: Shouldn't we assume they likely would have found a threat finding? [00:11:25] Speaker 05: Well, it depends on the vote. [00:11:26] Speaker 05: I don't think we should assume that. [00:11:28] Speaker 05: Because if they don't make that finding, let's suppose that the court finds there's not substantial evidence for injury. [00:11:37] Speaker 05: So if they make an implicit threat finding, then they have implicitly, I suppose, applied the factors under the statute for threat. [00:11:46] Speaker 05: And there's no way for the court to review an implicit threat finding and the analysis under the implicit factors that they applied to get to that conclusion. [00:11:57] Speaker 05: It would prevent the court from reviewing that conclusion if you allow them to make an implicit threat finding. [00:12:05] Speaker 03: Okay. [00:12:05] Speaker 03: Let's hear from the other side. [00:12:07] Speaker 03: We'll save you a rebuttal time. [00:12:23] Speaker 03: Are you Mr. Holdenstein? [00:12:26] Speaker 03: Correct. [00:12:36] Speaker 00: Please. [00:12:36] Speaker 00: May it please the court, Michael Holdenstein for the International Trade Commission. [00:12:41] Speaker 00: Siemens would have the court believe there was something unusual about this case because the commission's determination was based on a mixed vote. [00:12:50] Speaker 00: Two commissioners found material injury and one [00:12:52] Speaker 00: found injury to be imminent, but mixed votes are a common occurrence at the commission. [00:12:57] Speaker 00: That's why there's a tie vote provision to take account of a split commission vote. [00:13:02] Speaker 04: Yeah, but this is a pretty unusual one. [00:13:04] Speaker 04: I mean, three to three maybe is not unusual, but one where four commissioners make specific findings that are inconsistent with the ultimate judgment seems a little unusual, isn't it? [00:13:20] Speaker 00: Well, it's not unusual to have a dissent. [00:13:23] Speaker 00: And as Judge Barnett pointed out, the exact same voting pattern occurred in Meadowhark. [00:13:30] Speaker 00: And the court there rejected the notion that it should defer to the dissenting commissioner simply because they had more votes on certain findings. [00:13:41] Speaker 00: So it has been considered before. [00:13:43] Speaker 00: And there's often a dissent. [00:13:45] Speaker 00: This court has made clear that [00:13:48] Speaker 00: It doesn't matter whether the findings are a threat or present injury, it is an affirmative determination of the commission. [00:13:58] Speaker 00: Siemens would like this court to change the standard review for mixed vote cases, but it's long settled that the merits of the dissent are not the focus of substantial evidence review. [00:14:12] Speaker 04: Wouldn't it be better though if we had had at least three commissioners making [00:14:18] Speaker 04: a one determinative finding? [00:14:22] Speaker 00: I don't think it would be better. [00:14:23] Speaker 00: The statute provides for the situation. [00:14:28] Speaker 00: So I think it's intended to provide for an affirmative determination. [00:14:34] Speaker 00: And as you were alluding to, a finding of material injury and pliability is a finding of threat. [00:14:42] Speaker 00: And that's what Judge Gordon indicated [00:14:46] Speaker 00: the wind towers case below. [00:14:47] Speaker 04: So should we remand and ask commissioners Williamson and Aronoff to make a determination with respect to threat? [00:14:56] Speaker 00: No, they found material entry and that's what's required under the statute so that would be contrary to remand for further findings. [00:15:05] Speaker 00: We have three affirmative determinations by the commissioners. [00:15:13] Speaker 04: So assuming that [00:15:16] Speaker 04: we agree with you. [00:15:17] Speaker 04: And it's the findings of those three that we're supposed to focus on. [00:15:25] Speaker 04: There are some, at least, fair weaknesses that have been pointed out with respect to those findings. [00:15:33] Speaker 04: The first is Commissioner Pinker's price finding. [00:15:37] Speaker 04: Now, I understand that you say he misspoke at some point, and that you have to look at the totality of what he said. [00:15:44] Speaker 04: But do you agree with your [00:15:46] Speaker 04: your friend on the other side that that's essentially your position. [00:15:48] Speaker 04: He didn't mean when he said the second time around. [00:15:51] Speaker 00: No, I don't agree with that. [00:15:55] Speaker 00: The only finding he made was that there was a convergence in the delivered cost bid prices. [00:16:03] Speaker 00: It's on JA 116, page seven of his opinion. [00:16:08] Speaker 00: It's the downward trend in the gap between the bid prices. [00:16:17] Speaker 00: It's also important to remember. [00:16:18] Speaker 00: Which suggests increased competition. [00:16:20] Speaker 00: Suggesting increased competition. [00:16:22] Speaker 00: And he, along with Commissioners Williamson and Aronoff, found no price depression. [00:16:28] Speaker 00: So Commissioner Pinker was not assessing price trends, only the difference in the bid prices. [00:16:35] Speaker 04: OK, so when he referenced a downward pricing trend in the second paragraph on that page that you're referencing, he was referring back to the differential? [00:16:45] Speaker 00: That's correct. [00:16:47] Speaker 00: And that also can be viewed as a trend into incremental costs of the subject imports. [00:16:57] Speaker 00: If you take a look at that table that he cited, and it's table 5-2, it's a JA 176, it shows the comparison to incremental costs, the incremental cost of the subject imports. [00:17:22] Speaker 00: And that is what he's indicating is that the difference went from, I believe, is twenty percent to eleven percent. [00:17:36] Speaker 00: There are percentages here on the right side of the incremental incremental cost per import tower. [00:17:41] Speaker 00: And that was going down. [00:17:44] Speaker 00: So that's the that's the trend. [00:17:48] Speaker 00: It's the same as the trend in the gap. [00:17:52] Speaker 00: getting smaller as competition increased. [00:17:56] Speaker 04: But you have to concede that he misspoke then, that you believe he misspoke in the second paragraph when you referred to a downward pricing trend. [00:18:04] Speaker 00: Well it was downward in the sense that the incremental cost per imported tower was going down. [00:18:10] Speaker 00: Okay, but he didn't say that the second time around. [00:18:13] Speaker 00: This is the exact same finding that the other commissioners made and they did say that that's the way they phrased it as an incremental cost [00:18:22] Speaker 00: was going down. [00:18:23] Speaker 00: So it was a downward trend in the subject imports, and that's why he phrased it like that. [00:18:30] Speaker 00: If you look at the footnote 200 of the majority, and that's JA101, it refers to the incremental cost, the trend in the incremental cost. [00:18:47] Speaker 00: So although the language could have been more precise, perhaps, [00:18:51] Speaker 00: because it wasn't an assessment of the prices of the subject imports. [00:18:59] Speaker 00: He was referring to the only trend that he identified. [00:19:03] Speaker 04: Okay, let me ask you about the conclusion that Commissioners Williams and Aronoff reached where they cited one email, or at least that's what your opponent said. [00:19:13] Speaker 04: They cite one email and one email only to demonstrate that original equipment manufacturers were putting [00:19:21] Speaker 04: pressure on the domestic producers to renegotiate and I've read that email backwards and forwards and other than somebody saying, you know, explain these prices to me. [00:19:35] Speaker 04: I don't see how that, is that the only basis that they had for that conclusion or do you think there's something more? [00:19:42] Speaker 00: No, there was, as Judge Burnett found, there was a lot of evidence of price competition. [00:19:46] Speaker 00: It wasn't just an email, that's what a [00:19:50] Speaker 00: But the Commission noted the instances of the original equipment manufacturers pressuring domestic producers to rein in their prices. [00:20:00] Speaker 00: That's in footnote 194, JA100. [00:20:05] Speaker 00: The records show that domestic producers were given pricing targets. [00:20:10] Speaker 00: That's at a hearing at page 37, JA613. [00:20:16] Speaker 00: And the domestic producers were told that import prices were lower. [00:20:21] Speaker 00: That's not JA-607. [00:20:25] Speaker 00: It's also true that the 509 purchasers said that price was very important in buying decisions. [00:20:31] Speaker 00: That's a JA-97. [00:20:32] Speaker 00: So there was more than just that email that indicated that price was important in purchasing decisions. [00:20:38] Speaker 00: That email, I guess I would characterize it as a red herring. [00:20:43] Speaker 00: It's just one communication indicating that [00:20:51] Speaker 00: that purchasers did care about price. [00:20:53] Speaker 00: These wind towers cost hundreds of thousands of dollars, so, I mean, it just wasn't true that prices didn't matter, and that's what, below that's what Siemens was arguing, that price was really essentially irrelevant, that only delivery, that only the cost of delivery was what mattered. [00:21:10] Speaker 00: So that's why the commission decided that email, but it wasn't just that email. [00:21:17] Speaker 03: Okay, let's hear from you, Hallie. [00:21:33] Speaker 03: Okay, Mr. Pinkert. [00:21:34] Speaker 02: Good morning, Your Honors. [00:21:39] Speaker 02: I think Mr. Heldenstein did an excellent job representing our views, and I think these issues are well briefed. [00:21:46] Speaker 02: I think there are two specific, two general issues I'd like to address. [00:21:51] Speaker 02: The arguments in regard to majority, minority, and deference to those opinions, as well as whether Commissioner Pinkert made factually incorrect findings. [00:22:03] Speaker 02: But I think what I'd like to do, with the course of permission, is specifically address Judge O'Malley's two of your most recent questions. [00:22:11] Speaker 02: First off, in regard to whether it's our position that Commissioner Pinkert misspoke when he was talking, absolutely not. [00:22:21] Speaker 02: It has been our position that Commissioner Pinkert was discussing a gap in prices. [00:22:27] Speaker 02: And what's the strongest evidence that he was discussing a gap in prices? [00:22:31] Speaker 02: It's the fact that he uses the term gap of prices. [00:22:35] Speaker 02: And then when he goes on to talk about the trends, he literally uses the words, the trends in convergent prices. [00:22:41] Speaker 02: And then he goes on to talk about this trend in downward pricing, following up on those previous statements. [00:22:49] Speaker 02: So, and that's what the record showed. [00:22:51] Speaker 02: The record showed that there was in fact a convergence in prices, which was cited because it was indicative of increased import competition. [00:23:00] Speaker 02: on more macro level. [00:23:03] Speaker 02: This court obviously reviews for purposes of substantial evidence. [00:23:06] Speaker 02: And as the court has also acknowledged, really this review has to do with whether the determination is unreasonable. [00:23:17] Speaker 02: And here, Commissioner Pinkert's statement in regard to price trends is one sentence in a very thorough analysis. [00:23:25] Speaker 02: That's probably about his 11th or 12th point in where he's [00:23:30] Speaker 02: facing his finding of threat of material injury in regard to the evidence of the volume of imports, the increase in capacity of the farm producers, their past history of serving into the market. [00:23:45] Speaker 02: And on that basis, I would suggest that is a very reasonable approach. [00:23:51] Speaker 02: And to regard your specific question regarding the email, again, that certainly was not the only evidence that was relied upon by the commission. [00:23:59] Speaker 02: And it wasn't the only evidence that was put forward by our clients. [00:24:03] Speaker 02: That email was submitted in conjunction with sworn testimony of our witnesses in regards to the price pressures from OEMs. [00:24:13] Speaker 02: And it was, of course, the role of the commissioners to evaluate the credibility of the witnesses who appeared before it. [00:24:19] Speaker 02: And the domestic industry showed up and testified under oath that they were faced with downward pricing pressure from the OEMs and that [00:24:30] Speaker 02: subject import prices, even though they weren't always privy to the exact prices, were used as leverage to force their prices down. [00:24:38] Speaker 02: And this is supported by the actual factual findings in regards to the profitability of the domestic industry. [00:24:45] Speaker 02: All the parties conceded that the end of the period of investigation was a period of very high demand for wind tower. [00:24:52] Speaker 02: But what happened to the domestic industry is their profitability plummeted. [00:24:57] Speaker 02: And if you look at it specifically in regard to cost of goods sold relative to net sales values, the percentage basically of cost is to sales, it increases throughout the period of investigation. [00:25:10] Speaker 04: Would including Vestas in that analysis skew those results? [00:25:17] Speaker 02: We think it's more appropriate to exclude Vestas from certain domestic industry data. [00:25:24] Speaker 02: And we've always taken the position [00:25:26] Speaker 02: The answer to your question is no. [00:25:28] Speaker 02: Either way, I think you can get a reliable indication of the domestic industry's health. [00:25:33] Speaker 02: However, there were certain issues that were problematic with Vestas, not least of which is that, and this is all public information, that a large percentage of its production were internally consumed. [00:25:43] Speaker 02: So we have suggested, and consistent with what's called the captive consumption provision, that it's most probative to look at what was going on in the merchant market [00:25:55] Speaker 02: as compared to the total market. [00:25:57] Speaker 02: But at the end of the day, the results are the same. [00:25:59] Speaker 02: There's a huge increase in the volume of imports over the POI. [00:26:03] Speaker 02: They take significant market share directly from the domestic industry. [00:26:07] Speaker 02: The COGS is a ratio of net sales increased dramatically over the period of investigation, which is supportive of finding out price suppression. [00:26:16] Speaker 02: And the health of the domestic industry plumps. [00:26:18] Speaker 02: By the end of the period of investigation, it's lost market share. [00:26:23] Speaker 02: It's operating at a loss. [00:26:25] Speaker 02: and facilities are sitting idle. [00:26:29] Speaker 02: The commission thoroughly discusses that. [00:26:31] Speaker 04: It's lost a percentage of market share, but its total sales have gone up, right? [00:26:39] Speaker 02: Its total sales have gone up, but it's, yes, correct. [00:26:42] Speaker 02: What's happened to its profitability? [00:26:44] Speaker 02: Right, at the cost of its profitability. [00:26:48] Speaker 02: Not only did it lose market share, but it lost market share subject to imports. [00:26:52] Speaker 02: And as a result, the profitability of the domestic industry goes from the black to the red. [00:26:57] Speaker 04: To the extent anything's sitting idle, it's not because they've got an ability to satisfy a demand and aren't getting the deals. [00:27:12] Speaker 02: If I understand your question correctly, [00:27:14] Speaker 02: there absolutely were facilities that sat completely idle during the period of investigation because they did not, they lost out opportunities to sell to the domestic or sell to the OEMs, right? [00:27:26] Speaker 02: So there were a variety of evidence that was submitted in regard to the low capacity utilization of the domestic industry. [00:27:34] Speaker 02: And one just public example is the fact that Broadwind, which was a domestic producer of subject merchandise and a petitioner, [00:27:44] Speaker 02: spent millions of dollars to open up a brand new facility in Brandon, South Dakota, which never produced one wind tower. [00:27:51] Speaker 02: This was a period of huge increasing demand, and that demand was captured by the subject imports at the cost of the domestic industry. [00:28:00] Speaker 02: Under the standards that are applied by the commission, that is more than immaterial, inconsequential, or insignificant by reason of import. [00:28:13] Speaker 02: There was a direct tie-off. [00:28:15] Speaker 02: And to the best of my knowledge, nobody's argued against this, that the lost sales from the domestic industry were captured by wind towers from China and Vietnam. [00:28:27] Speaker 04: There were specific findings that at least four of the commissioners made that that's because the domestic industry wasn't able to satisfy a lot of the demand in certain geographic regions. [00:28:38] Speaker 02: I would say that there were at least three commissioners in the dissent who found this. [00:28:43] Speaker 02: And I guess I know my light's on. [00:28:45] Speaker 02: Perhaps I could just wrap up very, very quickly. [00:28:48] Speaker 02: In regard to the substantial evidence review, 1677 sub 11 clearly indicates Thai votes become affirmative determination. [00:28:58] Speaker 02: 19 USC 1516A says it's the responsibility of the reviewing courts to examine [00:29:05] Speaker 02: the determination of the Commission and thus the Commission made an affirmative determination. [00:29:14] Speaker 03: Thank you. [00:29:28] Speaker 05: Your Honor, if I had more time on rebuttal, I would read Commissioner Pinkert's page at JA 116, because it seems clear to me and unambiguous that he was talking about a downward pricing trend. [00:29:42] Speaker 05: Why should he be in subject import? [00:29:44] Speaker 05: And why should he be talking about that? [00:29:47] Speaker 05: Well, that's what the statute requires. [00:29:48] Speaker 05: One of the factors for the threat analysis is that you look at the prices of subject imports entering the market at that time, [00:29:58] Speaker 05: to see what the effect of those prices is on the domestic towers. [00:30:04] Speaker 04: So if he wasn't looking at the prices of subject imports at that time... Is your position that he, that because he stated this and there wasn't downward, that the prices weren't going down overall, that therefore he's wrong, or is your position that it was impermissible for him to look at [00:30:28] Speaker 04: the price differentials? [00:30:30] Speaker 05: It's fine to look at the price differentials, but that can't be the end of the inquiry. [00:30:34] Speaker 05: You have to see what the prices are doing. [00:30:36] Speaker 05: The prices for imports, he says there's a change at the end of the period, and that there's a downward pricing trend. [00:30:42] Speaker 05: And why would that matter? [00:30:44] Speaker 05: If the prices of the imports are coming down, it's putting pressure on the domestic producers' prices for selling power. [00:30:51] Speaker 04: But my question is, is it sufficient if the price differential is going down? [00:30:56] Speaker 05: No, it's not. [00:30:57] Speaker 05: because what happened, and I would refer the Court to page 28 of our opening brief, the prices in 2012 for subject import towers rose, rose substantially. [00:31:08] Speaker 05: The prices of the domestic producers' towers also rose substantially. [00:31:12] Speaker 05: Now, that isn't evidence that suggests price suppression. [00:31:17] Speaker 05: If you're going to draw a trend from it, I mean, it would be absurd to say that... So you're saying as a matter of law that [00:31:25] Speaker 04: a decrease in price differential could never satisfy a finding of price depression. [00:31:31] Speaker 05: No, you have to see what the prices are doing. [00:31:35] Speaker 05: I believe there are cases that say you could have import prices falling and domestic tower prices rising and that might be considered evidence of price depression but those are not the facts here. [00:31:46] Speaker 05: I think Commissioner Pinkert assumed those were the facts but he assumed incorrectly. [00:31:50] Speaker 01: But when you [00:31:51] Speaker 01: say that you would read all 116 into the record, you'd also read his statement that although the purchaser's average additional cost for the subject imports over the cost of the domestic product was 28% for projects with installation dates between 2009 and 2011, the gap in prices shrank. [00:32:16] Speaker 01: The gap in prices. [00:32:17] Speaker 05: Yes, the gap in prices shrank. [00:32:19] Speaker 05: He then goes on to say... [00:32:22] Speaker 01: But you can't leave off that part. [00:32:25] Speaker 05: Oh, not leaving it off at all, Your Honor. [00:32:27] Speaker 05: It's appropriate for him to look at the shrink in the gap, but it's not sufficient of itself. [00:32:34] Speaker 05: You have to look at what the prices are doing that cause that gap to shrink. [00:32:38] Speaker 05: Is it shrinking because import prices are coming down and domestic prices are coming down too, but the import prices are coming down faster? [00:32:46] Speaker 05: Or here the facts are that the import prices rose substantially and the [00:32:51] Speaker 05: domestic power prices rose substantially too. [00:32:54] Speaker 05: That's not evident to price suppression. [00:32:59] Speaker 05: It's important too, the notion that this is just one of the things that Commissioner Pinker looked at. [00:33:06] Speaker 05: This is important because it goes to the causation question. [00:33:11] Speaker 05: The prices of imports actually causing a threat of harm in the future. [00:33:16] Speaker 05: I don't think you have causation if you can't show some sort of price effect. [00:33:20] Speaker 05: in the future. [00:33:23] Speaker 05: In regard to dismissing the email is not part of the evidence. [00:33:30] Speaker 05: First thing I would ask is where are all of the other emails from Siemens or GE to these producers saying, hey, can you match the price of your foreign competitors? [00:33:42] Speaker 05: This email appeared very prominently. [00:33:44] Speaker 05: That's the one they seem to rely on. [00:33:47] Speaker 05: The other evidence they talked about, the cost of goods sold [00:33:50] Speaker 05: ratio to net sales, well, Commissioners Williamson and Aronoff said that those ratios were high, and that suggests that the domestic producers weren't able to raise their prices. [00:34:03] Speaker 05: But if you look at whether that ratio correlates to imports, you have to remember that in 2012, that's the big boom year for demand. [00:34:12] Speaker 05: You have all these imports coming in. [00:34:14] Speaker 05: And regardless of which of the two data numbers you use, you see that the [00:34:19] Speaker 05: the cost of goods sold to net sales revenue ratio fell in 2012 when under their theory you would expect it to go very high because you have all these imports coming in supposedly suppressing prices. [00:34:33] Speaker 05: There was a reference to there being lost sales and commissioners Williamson and Aronoff found that there were no lost sales or couldn't find evidence sufficient to support lost sales. [00:34:43] Speaker 05: That's JA99 footnote 190. [00:34:47] Speaker 05: And the final point I would make is that Commissioners Williamson and Aronoff found that Vestas at JA 74 to 76, they decided that Vestas had to be included in the data that were provided. [00:35:02] Speaker 05: So on the one hand, they say that Vestas should be included with that data, and then they use the ratios to justify price suppression excluding that data. [00:35:12] Speaker 05: And that conflict is just not rational and shouldn't be sustained. [00:35:17] Speaker 03: Anything else for Mrs. Snohar? [00:35:19] Speaker 03: Anything else? [00:35:20] Speaker 03: Thank you. [00:35:21] Speaker 03: Thank you all. [00:35:22] Speaker 03: The case is taken under submission. [00:35:24] Speaker 03: That concludes the argued cases for this morning.