[00:00:00] Speaker 04: Will you approach the podium? [00:00:03] Speaker 04: It is my pleasure to move the admission of Daniel J. Klein to the bar of the Court of Appeals for the Federal Circuit. [00:00:12] Speaker 04: Mr. Klein is a member of the bar in good standing of the highest court of the state of New York. [00:00:19] Speaker 04: I have knowledge of his credentials. [00:00:21] Speaker 04: I am satisfied that he possesses the necessary qualifications [00:00:26] Speaker 04: Mr. Klein has been my law clerk for some time, and I have personally observed his qualities of diligence and competence. [00:00:34] Speaker 04: So if you will proceed to the clerk, he will administer. [00:00:39] Speaker 01: I think the left of the panel gets to debate on this. [00:00:46] Speaker 01: I was trying to force it all back. [00:00:48] Speaker 01: Judge Newman is conflicted on this issue. [00:00:50] Speaker 01: Do you agree that we should? [00:00:53] Speaker 01: allowed his admission? [00:00:55] Speaker 06: If Judge Newman says it's good enough for me. [00:00:58] Speaker 02: Should we take a vote that we have unanimously granted our motion? [00:01:16] Speaker 04: Thank you and welcome to the bar. [00:01:22] Speaker 04: The commission proceeds with the order of proceedings. [00:01:25] Speaker 04: The first object of the case this morning is number 14, 1814, Swift Train Company against the United States. [00:01:34] Speaker 04: Mr. Perry. [00:01:40] Speaker 05: Good morning, Your Honors. [00:01:43] Speaker 05: Besides the issue of the court's role in this case, which is something the commission has raised, [00:01:49] Speaker 06: The major question in this case is, does the by reason of language and the anti-dumping and countervailing duty law impose a requirement of... Mr. Perry, when you say in your briefing that the Court of International Trade quote on its own motion in an apparent effort to affirm the Commission's determination and so on, where's that motion in the record? [00:02:11] Speaker 05: Well, what I'm saying about own motion is that basically the Court of International and Judge Musgrave came up with a substantial factor test. [00:02:19] Speaker 05: Um, we had not briefed it. [00:02:21] Speaker 05: The ITC had not briefed it. [00:02:22] Speaker 05: Well, where's the motion? [00:02:23] Speaker 05: That's what I meant. [00:02:24] Speaker 05: I'm not saying, well, I'm, I'm using that as a metaphor. [00:02:26] Speaker 05: There's no real motion. [00:02:28] Speaker 06: It was a metaphor too when you said it was an apparent effort to affirm. [00:02:33] Speaker 05: Yeah, I think so. [00:02:34] Speaker 06: So you're saying the court was biased. [00:02:36] Speaker 05: Well, no, no, I'm not trying to say it's biased at all. [00:02:38] Speaker 05: And please excuse me if that's what I'm trying to get across. [00:02:41] Speaker 05: But I do believe that the court tried to pull, the commission refused to address the state, the Supreme court cases in this case. [00:02:49] Speaker 05: The Supreme Court cases are very important. [00:02:52] Speaker 05: The Barrage case is extremely important. [00:02:55] Speaker 05: In that case, Justice Scalia, for unanimous Supreme Court, said, by reason of standards, statutes require a contraction. [00:03:03] Speaker 06: You're moving away from my question. [00:03:05] Speaker 05: But the point I'm trying to get at is, your question was, did he, I believe he did it on his own. [00:03:11] Speaker 06: He used the language of apparent efforts to affirm. [00:03:15] Speaker 05: He basically was trying to rationalize or deal with the situation where the Commission refused to respond to many of the arguments regarding the Supreme Court cases. [00:03:25] Speaker 05: I mean, there were actually no citations to Price Waterhouse in the record. [00:03:29] Speaker 05: I mean, this is the whole point. [00:03:31] Speaker 05: In the Mitel case, the Court of Appeals to the Federal Circuit said, you've got to do a but-for test to determine causality and laid out the whole Price Waterhouse language. [00:03:41] Speaker 01: But in the Howe case, we specifically said that there was no precise methodology that had to be followed. [00:03:46] Speaker 01: And in Price Waterhouse, it's not. [00:03:48] Speaker 01: The Supreme Court said we find it difficult to believe that because of the simple use of the words, because of, that Congress meant that you had to have a detailed analysis of employment motivation. [00:04:01] Speaker 05: Well, I'm not saying there are different ways to ask and answer the question, the counterfactual but poor question. [00:04:09] Speaker 05: But I think that no doubt about it, if you take a look, especially remember the Barrage case takes place in 2014. [00:04:15] Speaker 05: That is after the Mitel decision. [00:04:19] Speaker 05: And it's incredibly important because basically Scalia is saying across all these statutes, by reason, the lowest causation standard we can have is but for cause, a counterfactual but for cause. [00:04:32] Speaker 05: What's going on is the changes at the Supreme Court. [00:04:36] Speaker 01: I mean, it's interesting because the court also, even the substantial factor test... We don't even have to look at the substantial factor test, because given our standard of review, we're not bound by anything the Court of International Trade said. [00:04:52] Speaker 01: We find it to be very useful and often very thoughtful, but if the Court of International Trade said something that was different than the Commission said, we are to review what the Commission's decision is, correct? [00:05:05] Speaker 05: Yes, of course. [00:05:06] Speaker 01: But I also believe... The essential factor is not what the Commission says. [00:05:10] Speaker 05: I agree. [00:05:11] Speaker 01: All right. [00:05:11] Speaker 01: So we should look at what the Commission says. [00:05:13] Speaker 05: I agree. [00:05:15] Speaker 05: But I think the other side of this is the Court has to be cognizant of what's going on in the Supreme Court. [00:05:21] Speaker 05: Of course. [00:05:21] Speaker 05: And I believe that this... We do try. [00:05:24] Speaker 05: Huh? [00:05:25] Speaker 05: We do try. [00:05:26] Speaker 05: I understand that. [00:05:28] Speaker 05: But what I'm trying to say is that if you take a look at something like the Barrage case, [00:05:33] Speaker 05: It basically says, across the by reason of statutes, we have to use a but for task. [00:05:39] Speaker 05: That's the lowest. [00:05:40] Speaker 06: Would you, and Mr. Perry, would you point me to exactly where in SWIFT-TRAIN 2 the CIT introduces the Substantial Factor Test as the Substantial Factor Analysis to support its observations? [00:05:55] Speaker 05: I don't have it right here off the top of my head in where they said it. [00:06:02] Speaker 05: But the point I'm trying to do is... You don't have it right there because they didn't say it. [00:06:08] Speaker 06: They did say a substantial factor. [00:06:11] Speaker 06: They did not introduce the substantial factor test. [00:06:14] Speaker 06: They provided a detailed interplay between but for causation and a substantial factor analysis. [00:06:21] Speaker 06: Right. [00:06:21] Speaker 05: And, you know, it's very interesting because we would also suggest you look at the Supreme Court page 890 in the Barrage decision. [00:06:31] Speaker 01: So are you saying that Baraj is overruling Price Waterhouse without actually saying so? [00:06:37] Speaker 05: No. [00:06:38] Speaker 05: I think in the Price Waterhouse case, what Justice Scalia said in a footnote, and you can find it, and I can give you that one, you can see Justice at footnote four, when he was speaking for a unanimous court, the three opinions of the six justices in that case, Price Waterhouse, [00:06:59] Speaker 05: did not eliminate the but for cause requirement imposed by the because of statutory language. [00:07:06] Speaker 05: The question was a shift in burden question, not a decision to eliminate but for cause requirement imposed by the because of language in the statute. [00:07:13] Speaker 05: That's a fold. [00:07:16] Speaker 05: I'm also suggesting that you take a look. [00:07:18] Speaker 01: What are we supposed to make of a footnote if that's different than the actual holding of the case? [00:07:24] Speaker 05: But the holding of the case was basically a shift. [00:07:27] Speaker 05: I think the holding, that's what I'm trying to get at. [00:07:30] Speaker 05: The Barrage case comes after Price Waterhouse, 2014. [00:07:35] Speaker 05: A unanimous court holding. [00:07:38] Speaker 05: Now, basically you can say, well that wasn't because they list a whole string of statutes with my reason of language in them. [00:07:47] Speaker 05: And, you know, it's very interesting because one of the issues, which is a core belief, always, that I thought was a contributing cause standard. [00:07:56] Speaker 05: And Justice Scalia, you know, references this. [00:08:01] Speaker 05: You can basically say, what's the term? [00:08:12] Speaker 02: Excuse me. [00:08:15] Speaker 05: specifically addressed in Germany because of the actual. [00:08:17] Speaker 05: See at 891 of the Braj case where Justice Scalia says, taken literally, it's the government's contributing cause test. [00:08:26] Speaker 05: would treat as a cause, in fact, every act of omission that makes a positive incremental contribution, however small, to a particular result. [00:08:35] Speaker 01: Well, what we're doing, I mean, you're taking a bunch of cases that come out of, that are not in the trade context. [00:08:41] Speaker 01: Right. [00:08:42] Speaker 01: And that have a full background of common law. [00:08:46] Speaker 01: And you're trying to tell us that that is supposed to be an overlay on a statutory interpretation of the trade case. [00:08:53] Speaker 05: I believe that that is true, because of the changes in statutory interpretation by Justice Scalia and other people on the Supreme Court. [00:09:01] Speaker 01: Okay, so we're supposed to say that Justice Scalia, who was in dissent in Pricewaterhouse, issued a later decision in a different manner. [00:09:10] Speaker 05: I don't know if he was in dissent in Pricewaterhouse. [00:09:12] Speaker 01: Yes, he was in dissent. [00:09:13] Speaker 01: So you couldn't know that your quota was from the dissent in Pricewaterhouse, not from the majority. [00:09:18] Speaker 01: putting that aside. [00:09:20] Speaker 05: No, the footnote I quoted from was from the Barrage decision where he was writing for a unanimous court. [00:09:27] Speaker 01: Right, but the point is they don't say they're overruling Pricewaterhouse. [00:09:31] Speaker 05: Yes, I know that. [00:09:33] Speaker 01: Right, and in Pricewaterhouse they were talking about statutory construction of words because of [00:09:40] Speaker 01: Correct? [00:09:41] Speaker 01: That's true. [00:09:42] Speaker 01: All right. [00:09:42] Speaker 01: So are we supposed to ignore how the Supreme Court did a statutory construction of that kind of language? [00:09:51] Speaker 05: I don't think you ignore it. [00:09:52] Speaker 05: But the whole point is he's listing a whole series of cases. [00:09:57] Speaker 05: He's basically saying that because of the by reason of language within the statutes of all these different statutes, the Supreme Court is holding that they must do a minimal counterfactual but for test. [00:10:11] Speaker 05: I mean, disagree with me. [00:10:14] Speaker 05: I mean, you can take a look at the Barrage case, but if you read it, that's what I'm reading. [00:10:18] Speaker 05: The point is, the more I started to study the Supreme Court cases, the more issues I found. [00:10:25] Speaker 05: I mean, go back to what Kennedy said in Price Waterhouse. [00:10:32] Speaker 05: I mean, I think it's very important, because he says, what we turn butt for a cause is the least rigorous standard [00:10:38] Speaker 05: that is consistent with the approach to causation our precedents describe. [00:10:44] Speaker 05: And it's not just tort or criminal or anything. [00:10:46] Speaker 05: It's across a whole panoply of different statutes. [00:10:49] Speaker 05: That's what I'm trying to get across here. [00:10:53] Speaker 05: And I thought, and maybe I'm wrong, but that in Mitel, probably I am, and the Mitel case, those are a panoply [00:11:07] Speaker 06: of different theories of the law, Mr. Perry, and you know that perfectly well. [00:11:11] Speaker 06: No. [00:11:11] Speaker 06: We're dealing with specific statutory language with an SAA and with direct interpretation by this court, which had never been impacted or overruled by the Supreme Court. [00:11:24] Speaker 05: No cases ever gone up to the Supreme Court. [00:11:27] Speaker 05: But the whole point I'm saying here is that in, I think it was believed in Mattel, when they required the butt-four test, they said it's not inconsistent with the essay. [00:11:38] Speaker 05: statements of administrative action. [00:11:41] Speaker 05: I believe that maybe I'm wrong here, again, but I think the court is basically, you've got legislative history on one side, what the commission is doing on one side, but you've also got the situation where there are changes going on in the Supreme Court. [00:11:53] Speaker 05: And there's tremendous emphasis now on statutory interpretation. [00:11:58] Speaker 05: And do the words mean what they say? [00:12:01] Speaker 05: And what basically Scalia is saying, when you do a by reason of, you're putting it into the Congressional, into a statute, and it has a meaning. [00:12:09] Speaker 05: And that meaning is basically but for cause. [00:12:12] Speaker 05: That's the least causation standard we have. [00:12:17] Speaker 05: Now, what the Commission is saying, we don't care. [00:12:21] Speaker 05: We're going to do our own thing. [00:12:22] Speaker 05: Discretion is less to us, and you're to affirm us. [00:12:26] Speaker 05: The Court is to affirm us on substantial evidence grounds. [00:12:28] Speaker 05: I don't believe that's true. [00:12:30] Speaker 05: I believe that the court is the one who eventually sets the statutory standard here. [00:12:36] Speaker 05: And so that's my point here. [00:12:39] Speaker 04: Okay, let's hear from the government and we have your final time to wrap it up. [00:12:46] Speaker 00: Mr. Fischberg. [00:12:48] Speaker 00: Thank you, Your Honor. [00:12:49] Speaker 00: May it please the court? [00:12:50] Speaker 00: My name is David Fischberg on behalf of the US International Trade Commission. [00:12:57] Speaker 00: I think [00:12:59] Speaker 00: Let's take you back to the language of the trade statute, because there's a long line of cases from the Federal Circuit in which the Federal Circuit has told us the exact causation analysis we should perform here. [00:13:13] Speaker 00: Unlike what Mr. Perry was saying, we don't have unfettered discretion. [00:13:17] Speaker 00: There have been a number of cases interpreting our trade statute in which this Court has told us specifically that we need to show that in [00:13:27] Speaker 00: This court said in reviewing an affirmative determination for substantial evidence, this court requires evidence on the record to show that the harm occurred by reason of less than fair value import, not by reason of a minimal or tangential contribution to material harm caused by less than fair value goods. [00:13:45] Speaker 00: That's the exact analysis we did in this case. [00:13:49] Speaker 01: Well, what's your response to your friend on the other side when he says, well, that might be all well and good, but all of those cases essentially have been overturned, or at least the Supreme Court has now told us that they're wrong? [00:14:07] Speaker 00: Judge Umali, I would agree with your skepticism during the affirmative presentation. [00:14:11] Speaker 00: I mean, Burrage was a criminal law case. [00:14:15] Speaker 00: So there's a totally different standard of review there. [00:14:18] Speaker 00: We don't have a beyond a reasonable doubt standard. [00:14:21] Speaker 00: I think in that very case, Justice Ginsburg said she may have found differently, but she had to deal with the rules of lenity. [00:14:29] Speaker 00: Those are concepts that are not at all involved in our trade statute. [00:14:35] Speaker 04: So what's the source of your definition of by reason of? [00:14:40] Speaker 00: Well, the language of the statute, the legislative history of our statute, as well as this court's interpretation, going back to Nippon, Gerald Meadow, Bratz, Mittal, this court has a long history of telling us exactly the type of analysis we should perform. [00:14:57] Speaker 00: The statute tells us, you know, it doesn't leave us in a vacuum. [00:15:02] Speaker 00: In order to meet the causation standard, the commission shall consider volume, price effects, and impact of subject imports. [00:15:12] Speaker 00: In this case, we did exactly that. [00:15:15] Speaker 00: We go on, based on the guidance of this court and the statute, to ensure that we're not attributing injury from other factors that might be occurring in the marketplace to the subject imports. [00:15:25] Speaker 00: So in this case, we examined such issues as demand, substitute products, non-subject imports. [00:15:32] Speaker 00: And there are various ways of doing that. [00:15:34] Speaker 00: As this Court has said, we're not going to impose a specific methodology on us. [00:15:39] Speaker 00: But of course, this Court's going to review our findings based on substantial evidence. [00:15:44] Speaker 00: So if we get it wrong, if we say there's a trend occurring, if we don't adequately explain how we are not achieving [00:15:51] Speaker 00: injury from these other factors to the subject imports. [00:15:54] Speaker 04: Do you agree with what I understand in Mr. Perry's concern that other factors are not to be considered by reason of analysis? [00:16:07] Speaker 00: I would disagree with that. [00:16:09] Speaker 00: This Court has told us you are to consider other factors, because in order for us to ensure that we're meeting the causation threshold, that subject imports are more than just a minimal or tangential cause, not only do we look affirmatively at the actual effects that the subject imports are having, we also have to look at what else is going on in the marketplace. [00:16:30] Speaker 00: So there might be other things that are going on, demand issues, [00:16:34] Speaker 00: non-subject imports that might make what we thought was a material cause of the harm immaterial. [00:16:42] Speaker 00: So that's why we do what's called our non-attribution analysis where we need to look at those factors and ensure that we're not attributing injury from those factors to the subject imports. [00:16:53] Speaker 00: And that's exactly what the FAA told us to do. [00:16:57] Speaker 06: The core difference between you and your opposing counsel is that he believes you must do a counterfactual analysis and you believe you may do a counterfactual analysis. [00:17:10] Speaker 00: That's true. [00:17:10] Speaker 00: I think there's a big difference in terms of what's required on the statute and what is permissive on the statute. [00:17:16] Speaker 00: There are certain basic requirements that the statute spells out. [00:17:20] Speaker 00: We must consider volume. [00:17:21] Speaker 00: We must consider price effects. [00:17:23] Speaker 00: We must consider impact. [00:17:25] Speaker 00: We must ensure we're not attributing injury from other factors to the subject import. [00:17:29] Speaker 00: Nowhere does it say we must conduct a counterfactual. [00:17:33] Speaker 00: In fact, I would suggest it doesn't really make much sense because we actually have a record that we can look at. [00:17:39] Speaker 00: We can look at actual evidence on the record as opposed to conducting a counterfactual where you get into the realm of hypotheticals, which is where this court has warned us you get into some trouble when you start ignoring the empirical data. [00:17:53] Speaker 00: In our five-year reviews, where we're looking forward and where there's an order already in place, [00:17:59] Speaker 00: In the SAA, Congress told us specifically, there you must conduct a counterfactual review. [00:18:04] Speaker 00: So where Congress has wanted the Commission to conduct a counterfactual review, it has told us to do it. [00:18:13] Speaker 00: In a five-year review, it makes sense because you have an order in place that is already affecting the market. [00:18:18] Speaker 00: So there's an artificiality to the marquee. [00:18:20] Speaker 00: We don't know why subject imports may have left the market. [00:18:24] Speaker 00: So therefore, you have to counter the factual of an order being in place. [00:18:28] Speaker 00: In an original investigation, there is no order in place. [00:18:31] Speaker 00: We get to look at a pristine period of investigation where we can look at what actually occurred in the market during that period. [00:18:39] Speaker 01: But is it really that you don't have to do a counterfactual analysis or that, in fact, you essentially did one? [00:18:46] Speaker 00: Well, if you consider our non-attribution accounts at Fastwell where we're looking exclusively at other factors, then I would say yes. [00:18:54] Speaker 00: But do we do the one that I think Mr. Perry is suggesting where we have to go back and ignore the reality of what actually transpired in the market? [00:19:04] Speaker 00: I would say no. [00:19:11] Speaker 00: That's all I have for your honor. [00:19:13] Speaker 00: If you have any other questions, I'd be happy to respond. [00:19:16] Speaker 01: We ask that you affirm the... Other than, just other than your statement that garage is a criminal overlay, you don't even respond in your rhetoric by citing to it at all, even though he cites to it several times in his blueberry. [00:19:31] Speaker 01: So do you have any other basis for distinguishing [00:19:35] Speaker 00: Well, again, I think the courts, in the litany of cases that appellants have cited in sort of the tort criminal law context, I think the courts have been very clear to say that those cases stand for the proposition that you need to look at the context of the statute that you are examining. [00:19:53] Speaker 00: So to try to impose requirements from interpretation, statutory interpretation, [00:19:59] Speaker 00: dealing with very different statutes. [00:20:00] Speaker 00: In fact, as you pointed out, Pricewaterhouse wasn't even a but for case. [00:20:06] Speaker 00: So the court has gone back and forth in terms of what that language actually means. [00:20:11] Speaker 00: To try to impose requirements when you have our very statute telling us what we should be doing I think is incorrect. [00:20:19] Speaker 00: So that would be our response. [00:20:21] Speaker 01: There is at least some language in Bragg where it says that this kind of use of language, because of, or on account of, or it goes through a whole series of various statutory phrases and says that absence of congressional statements, that substantial factor would be enough, we don't accept that proposition. [00:20:44] Speaker 00: I guess taking a step back, I would think that we, the commission, although it doesn't explicitly use the language but for, I think by conducting the type of analysis that we conduct, if we do it properly, and again, that's for this course to determine, by looking at the actual effects of the subject imports and then not attributing the effects of other factors to the subject imports, I believe we've satisfied the principle of a but for causation analysis, where again, we're showing that the domestic industry would not be in the same exact shape [00:21:12] Speaker 00: with or without subject imports in the market by actually looking at the record evidence of what actually occurred during the period, we are explaining how these subject imports are having an effect on the marketplace. [00:21:26] Speaker 00: Again, for instance, in this case, there were significant volumes of subject imports that undersold the domestic industry. [00:21:34] Speaker 00: There were significant market share shifts that occurred. [00:21:36] Speaker 00: The domestic industry was negatively impacted by the subject imports. [00:21:40] Speaker 00: I mean, it's all there in our analysis. [00:21:44] Speaker 00: And this court's responsibility is to review that analysis and ensure that what we are citing to you is supported by substantial evidence on the record. [00:21:52] Speaker 00: So again, I think that the commission satisfies the principle of but for if it does a correct analysis of its statutory factors as well as ensuring it's not attributing injury from other factors to those subject and boards. [00:22:09] Speaker 03: Thank you. [00:22:09] Speaker 00: Thank you very much. [00:22:10] Speaker 03: Mr. Perry. [00:22:16] Speaker 06: I think Mr. Perry that raises an interesting question and that is the Commission came up with pretty muscular findings in looking at the impact on on domestics and you're sort of [00:22:36] Speaker 06: dealing with theory, but not with facts. [00:22:38] Speaker 06: No, I think we did. [00:22:39] Speaker 06: So hit those today. [00:22:42] Speaker 05: I mean, we set forth the first. [00:22:45] Speaker 05: I mean, first, the issue here is causation in fact. [00:22:48] Speaker 05: I mean, that's what we're talking about. [00:22:50] Speaker 05: I mean, one of the problems, let me just finish the point. [00:22:52] Speaker 05: You're talking about contributing causes or not weighing causes. [00:22:56] Speaker 05: But what Scalia is doing is trying to get into the statutory language and clarify that it has to be a legal cause of injury. [00:23:03] Speaker 05: We put forward a scenario. [00:23:06] Speaker 05: Basically, you had the problem during 2008 to 2011, 2012, the period of investigation of the largest housing crash in history. [00:23:16] Speaker 05: If you look from 2009 forward, what do you see? [00:23:20] Speaker 05: You say increased imports, increased US shipments, profitability kind of going up in the US industry, demand static or flat. [00:23:30] Speaker 05: And basically, the prices themselves are not going down. [00:23:35] Speaker 05: I mean, this raises the issue. [00:23:37] Speaker 01: Now, let me put it... The Commission's analysis was very careful to analyze the difference between the two industries and said, okay, yes, everybody went down, but there was a difference in percentage in terms of the domestic industry versus the subject imports. [00:23:56] Speaker 01: And then when things got better, the domestic industry didn't get better at the same percentage rate as the subject imports. [00:24:03] Speaker 01: And that's a fair comparison, is it not? [00:24:06] Speaker 05: Well, I would disagree. [00:24:08] Speaker 05: I think that basically your prices are flat during this period. [00:24:12] Speaker 05: I mean, you're still caught in on this, is that there's so much trade speak going on you can't cut through and look at the statutory language. [00:24:20] Speaker 05: We have to go down back to the counterfactualized fact. [00:24:24] Speaker 05: Trade speak, contributing cause of injury, temporal cause, this one, that one. [00:24:29] Speaker 05: I mean, that's the point. [00:24:30] Speaker 01: That's why I think... Because even in the Supreme Court cases that you cite, to the extent that they talk about but for accusation, they never define it as a pure counterfactual analysis. [00:24:40] Speaker 05: No, but the counterfactual analysis is based in what might tell on the statement by basically Justice Kennedy. [00:24:46] Speaker 05: That's counterfactual. [00:24:48] Speaker 05: Assume the factor is present. [00:24:50] Speaker 05: Assume the factor is absent. [00:24:53] Speaker 05: What is the impact on the industry? [00:24:54] Speaker 05: We're also looking basically at, we've got to come up with a scenario. [00:24:58] Speaker 01: The commission has different... Isn't that what the commission ultimately did in its last step? [00:25:02] Speaker 05: No, they didn't do it. [00:25:04] Speaker 01: Why? [00:25:04] Speaker 05: And that's the point. [00:25:06] Speaker 01: Because you keep avoiding the actual facts. [00:25:07] Speaker 01: You want to just argue theory. [00:25:09] Speaker 01: Let's talk about the fact of what the commission actually did. [00:25:12] Speaker 05: Okay, but the commission actually did was basically say, let us look at the statutory criteria, imports are up, the industry is hurting, we're going to ignore the fact that it's rising. [00:25:25] Speaker 05: Prices, we'll look at this one piece of price, the hand-scrapped wood flooring over here, and we'll say that basically prices were down. [00:25:34] Speaker 06: Where did they say they were going to ignore that? [00:25:36] Speaker 05: Well, I believe that there's all facts on the record. [00:25:39] Speaker 05: We did a price index to show that when you looked at all the prices across the entire period, there was more overselling than underselling. [00:25:50] Speaker 05: So the commission focused on one price itself. [00:25:53] Speaker 05: But my whole point again, once you do the counterfactual, once you follow the statutory standard, this is but for a cause. [00:26:02] Speaker 05: is required by the reason. [00:26:03] Speaker 05: It is not a methodology. [00:26:05] Speaker 05: It is a statutory standard. [00:26:08] Speaker 05: And you can use the statutory questions. [00:26:10] Speaker 05: The question must be asked and answered. [00:26:13] Speaker 05: Now, you could have different methodologies for answering that question. [00:26:17] Speaker 05: But this court can't review it until it knows that the question has been asked and answered. [00:26:23] Speaker 03: That's the point I'm trying to make here. [00:26:28] Speaker 03: OK. [00:26:28] Speaker 03: Thank you. [00:26:28] Speaker 04: Thank you, Mr. Brown. [00:26:29] Speaker 04: Thank you both. [00:26:30] Speaker 04: The case is taken into submission.