[00:00:00] Speaker 03: The first case for argument this morning is 15-1344 Catfish Farmers of America versus United States. [00:00:08] Speaker 03: Mr. McConkie. [00:00:19] Speaker 02: May it please the court. [00:00:20] Speaker 02: My name is Matthew McConkie from the law firm of Mayor Brown, and I am here today on behalf of Appellant VinHuan Corporation. [00:00:27] Speaker 02: So this is an appeal related to an anti-dumping case, specifically the sixth administrative review of the order against certain fish fillets from Vietnam, a country deemed to be a non-market economy by the Department of Commerce. [00:00:40] Speaker 02: As such, the issues that we're presenting today all relate to various surrogate values that were used to calculate dumping margins from a client. [00:00:48] Speaker 02: The surrogate values being contested are just two. [00:00:50] Speaker 05: What is fish waste good for? [00:00:53] Speaker 02: Lots of different things. [00:00:54] Speaker 02: People make collagen out of it. [00:00:56] Speaker 02: And often many different Asian places, they use it for soups and for cooking. [00:01:02] Speaker 02: It's a delicacy. [00:01:02] Speaker 02: Fish bladders and things like that can be considered a delicacy. [00:01:07] Speaker 02: In certain other countries, sir. [00:01:09] Speaker 02: So the two values being contested today are first, the fish byproducts, which are values that are used to reduce one's normal value in the dumping calculation. [00:01:19] Speaker 02: And the second is surrogate financial ratios, values that are used to build up one's normal value. [00:01:25] Speaker 02: So I understand and I trust that the panel has read the briefs in this case. [00:01:28] Speaker 03: So what's the standard review here? [00:01:31] Speaker 02: It's an open from the CIT. [00:01:36] Speaker 03: Question of law? [00:01:37] Speaker 02: Question of law. [00:01:41] Speaker 02: Correct. [00:01:42] Speaker 02: But I'd like to give a little short summary of the proceedings, because I think it's important. [00:01:47] Speaker 02: So March of 2011, the final administrative decision was issued in this review. [00:01:52] Speaker 02: And my client was deemed not to be dumping it. [00:01:56] Speaker 02: So with respect to the issues that are relevant to this appeal, the department, after considering the facts on the record and the arguments set for an underlying administrative case briefs, the department made two underlying administrative decisions that are impacted here. [00:02:09] Speaker 02: First, they decided to value my client's byproducts using import statistics. [00:02:13] Speaker 05: I want to go back to the standard of review. [00:02:15] Speaker 05: We look right through, while respecting the CIT's decision, we look through it and review commerce's decision, right? [00:02:24] Speaker 05: Yes. [00:02:24] Speaker 05: And why isn't that for substantial evidence? [00:02:26] Speaker 02: It is for substantial evidence. [00:02:29] Speaker 02: I apologize. [00:02:30] Speaker 02: Substantial evidence. [00:02:31] Speaker 02: Thank you. [00:02:32] Speaker 02: That's what the CIT looks, and you do look at it yourself. [00:02:34] Speaker 02: Apologize. [00:02:36] Speaker 02: So in that administrative process, in the administrative final decision, the department used import data to value my client's byproducts. [00:02:44] Speaker 02: And for our surrogate financial ratios, they used the financial statement of an integrated company, a Bangladesh seafood company, called Fine Foods. [00:02:53] Speaker 02: And they did not ingest the inventory movements when they calculated those ratios. [00:02:59] Speaker 02: Again, the decision was that my client was not dumping. [00:03:03] Speaker 02: So you understand, in the process, there were two mandatory respondents in this case, an integrated company, which was VinHuan, my client, and a non-integrated company. [00:03:11] Speaker 02: The department looked at and used different financial statements for those two sets of companies. [00:03:16] Speaker 02: They used non-integrated financial statements, two of them for this company that was non-integrated, and then Find Foods, which is an integrated company for my client. [00:03:26] Speaker 04: Are you telling us that their choice was bound to reach the wrong result, or that it simply was not the right choice of comparison? [00:03:37] Speaker 02: It was not the right choice. [00:03:38] Speaker 02: And the key thing, I think, with this [00:03:40] Speaker 02: issue of financial ratios is in the administrative decision, the department made the right choice. [00:03:46] Speaker 02: And in a reaction to a ministerial errors letter filed by petitioners in this case, the department again supported its choice and said, yes, we're going to use fine foods, but no, we're not going to adjust the inventory because we meant to do that. [00:04:01] Speaker 03: This happens not infrequently in these cases where the CIT sends it back to commerce and commerce does. [00:04:08] Speaker 03: a do-over. [00:04:09] Speaker 02: I understand. [00:04:09] Speaker 03: And it re-evaluates the evidence and looks at it in different ways. [00:04:13] Speaker 03: So that's where you're left. [00:04:14] Speaker 03: So can you, you want to call out what is really the highlights, since we all agree what the standard of review is, the highlights of where commerce went wrong. [00:04:24] Speaker 03: It's kind of very difficult for us to get into the weeds and to put ourselves in the loop. [00:04:29] Speaker 02: I understand it. [00:04:29] Speaker 02: Okay. [00:04:29] Speaker 02: So let's just jump forward then. [00:04:31] Speaker 02: So let's, can I, I'll take the two issues separately. [00:04:33] Speaker 02: I still wouldn't buy products. [00:04:35] Speaker 02: So there was two, there's [00:04:36] Speaker 02: two competing sets of possible surrogate values at issue here. [00:04:42] Speaker 02: The import statistics, which is, again, what they used in the administrative process, and then what they ended up reverting to pursuant to the CIT's litigation. [00:04:52] Speaker 02: So they made certain decisions and made certain pronouncements in the administrative process that I believe they have never responded to appropriately at the CIT area during the remand process there. [00:05:05] Speaker 02: They made the comment in the administrative process that this vital rich price quote is not contemporaneous. [00:05:11] Speaker 02: They made the comment that this price quote does not represent a broad market average. [00:05:16] Speaker 02: And then they were said, and this price quote's not publicly available. [00:05:20] Speaker 03: That was the first time. [00:05:20] Speaker 03: That was the first time in the administrative process. [00:05:22] Speaker 03: And then the second time they rely on it, and of course they spoke to it. [00:05:25] Speaker 03: They mentioned in the brief here, whatever, why they think that their initial assessment was not the right one, and what they're relying on here to get them by the effective use of that. [00:05:37] Speaker 03: What's wrong with what they've done? [00:05:39] Speaker 02: Because I believe that while they have tried to support, post-hack, tried to support their subsequent decision, [00:05:46] Speaker 02: I also believe that they try to support their subsequent decision by various attacks on the data that they originally used, the import data, which are not accurate, which are not truthful and are not established on the record. [00:06:01] Speaker 02: So let me turn to why. [00:06:02] Speaker 02: In all honesty, I believe that their sudden change to the VitaRICH price quote isn't because of any new love for the VitaRICH price quote. [00:06:11] Speaker 02: It's because they all of a sudden decided that there are certain problems with the import data. [00:06:14] Speaker 02: And I don't believe the record supports their conclusions with respect to the problems with the import data. [00:06:20] Speaker 02: And that's where I think there's a problem. [00:06:24] Speaker 02: So first of all, with respect to the import data, the department said this in their remand. [00:06:33] Speaker 02: After reviewing the information on the record and considering the approach we have adopted in recent determinations in this and other aquaculture cases, [00:06:41] Speaker 02: We find that seafood byproducts are generally not internationally traded commodities and would be reflected in import statistics. [00:06:48] Speaker 02: So this is one of the reasons why we were wrong to use the import stats in the first place. [00:06:53] Speaker 02: Well, that statement that these byproducts are not internationally traded and therefore wouldn't appear in import statistics is simply not true and is contradicted by evidence on the record. [00:07:02] Speaker 02: My client, during the administrative process, [00:07:05] Speaker 02: submitted information to the department on its byproduct production. [00:07:08] Speaker 03: This comes out in the briefs. [00:07:09] Speaker 03: I mean, they didn't say it was never traded internationally. [00:07:12] Speaker 03: They said it was not generally traded internationally. [00:07:14] Speaker 02: Understood. [00:07:15] Speaker 02: But my client put out information on the record that some of its byproducts were traded. [00:07:20] Speaker 03: The fact that some of its byproducts were traded doesn't mean that these byproducts are generally traded internationally, right? [00:07:30] Speaker 02: Understood. [00:07:30] Speaker 02: But I guess I don't understand the government's [00:07:34] Speaker 02: I don't understand what the point of that statement is then, that they're generally not in a trade. [00:07:38] Speaker 02: They were using that to attack to say, we can't use import statistics because they're generally not international traded. [00:07:43] Speaker 02: Well, if that's not true, then they can use import statistics for this. [00:07:48] Speaker 02: Right? [00:07:49] Speaker 03: No. [00:07:49] Speaker 03: Well, first of all, I don't answer the question, because I asked the question. [00:07:53] Speaker 02: I apologize. [00:07:54] Speaker 02: I apologize. [00:07:55] Speaker 02: Rhetorical right, OK? [00:07:57] Speaker 02: So they're making a bold statement here saying, we can't use these import statistics because these kind of byproducts are not generally internationally traded. [00:08:05] Speaker 02: But that's not true, and the record doesn't support that. [00:08:10] Speaker 02: I believe that undercuts the government's argument. [00:08:12] Speaker 02: What's the main deficiency in your view? [00:08:15] Speaker 02: Is it by tariff? [00:08:16] Speaker 02: Viterich? [00:08:17] Speaker 02: Viterich? [00:08:17] Speaker 02: Price quote? [00:08:18] Speaker 02: The fact that one, that it's a price quote, which means it's a price in a certain period of time, right? [00:08:25] Speaker 02: It's one quote from one company. [00:08:27] Speaker 02: that's used to value all of my clients' byproducts. [00:08:31] Speaker 02: Generally, the department's preference is to take a broad market average with surrogate values, generally, if they can, for the whole period of review, which would be a one-year period. [00:08:39] Speaker 03: Yes, you're right, if they can. [00:08:41] Speaker 03: But if they don't, this is the best evidence they have, then they're entitled to use it. [00:08:45] Speaker 02: Understood. [00:08:46] Speaker 02: But they also have import statistics, which the department has a state of preference to use import statistics when they can, because import statistics are from a broad [00:08:53] Speaker 02: market average because the information is provided on a monthly basis and it meets the rest of their requirements, where the department generally has a state of preference to use import statistics when they do. [00:09:06] Speaker 04: So what should they have done in your view? [00:09:09] Speaker 04: What should they have done that was so significantly different that the result would have been significantly different? [00:09:16] Speaker 02: I believe that they should have stuck with their original decision from the administrative process and stuck with the import statistics. [00:09:27] Speaker 02: The other issue they have, and this again, the department and the government have sorted this in their briefs to your honors about other reasons why they didn't want to use this import statistics. [00:09:39] Speaker 02: They believe, for example, they said that they believe that the use of these import statistics would distort the normal value calculation. [00:09:46] Speaker 03: Right, so that the value would be more than the value of a whole fish for waste products. [00:09:51] Speaker 02: Correct. [00:09:52] Speaker 02: And that's one of my points. [00:09:54] Speaker 02: I really do not understand the relevance or significance of that, why fish skin can't cost more than a whole fish. [00:10:05] Speaker 02: This is not comparing fish skin, for example, to the finished product and saying, well, it's crazy to have a byproduct that's more than the finished product. [00:10:13] Speaker 02: But the whole fish is an input into the production process. [00:10:16] Speaker 02: To get fish skin from a whole fish, [00:10:18] Speaker 02: You've got to kill it, you've got to bleed it, you've got to skin it. [00:10:20] Speaker 02: Things have to be done to get to that fish skin. [00:10:23] Speaker 02: So this concept that it's crazy to use a value that is more than whole fish, which is just a raw material, is non-sequitur to me. [00:10:36] Speaker 02: And they also said it has a higher value, so it distorts the normal value of calculation. [00:10:41] Speaker 02: I don't know how a byproduct necessarily distorts the normal value of calculation. [00:10:45] Speaker 02: I also don't understand why [00:10:47] Speaker 02: didn't this value distort the normal value when they use it in the final? [00:10:53] Speaker 02: So at the end of the day, I still believe, I submit that the department's original decision to use import statistics to value these byproducts was the correct one. [00:11:03] Speaker 03: Why don't we save the remainder of your time? [00:11:05] Speaker 03: Sure. [00:11:05] Speaker 03: Thank you. [00:11:12] Speaker 03: Mr. Westerkamp? [00:11:16] Speaker 00: Good morning, and may it please the court. [00:11:17] Speaker 00: Substantial evidence supports the trial court sustaining Commerce's determinations in the two issues before the court. [00:11:23] Speaker 00: First, on remand, the trial court properly upheld Commerce's selection of the Vita Rich price quotes for the fish waste, broken meat, and fish. [00:11:30] Speaker 03: So what was the difference between the first and the second time? [00:11:34] Speaker 00: Between the initial determination and the remand results? [00:11:37] Speaker 00: Yes. [00:11:37] Speaker 00: The first time around, Commerce determined that the import statistics, that's what it would go with. [00:11:43] Speaker 00: And then when that [00:11:46] Speaker 00: determination was appealed to the CIT, the CIT actually specifically instructed Commerce to look at the VitaRICH price quote. [00:11:55] Speaker 03: But you had already looked at it, right, and rejected it? [00:11:57] Speaker 00: Well, they looked at it, but more specifically to determine what the affidavit and whether it was publicly available information. [00:12:05] Speaker 00: And even in the initial IDM, Commerce had actually said as far back then, and this is on pages 32, 74 of the record, that we recognize that the VitaRich price quote may be more specific to fish waste. [00:12:18] Speaker 00: And so then when Commerce took a second look at this, which as your honor had indicated, they are permitted to do, they took a second glance at the VitaRich price quote [00:12:27] Speaker 00: and determined that it was better information for what they had on the record rather than the broader market statistics data. [00:12:35] Speaker 00: And an important missing factor in that broader market statistics data was that Commerce wasn't even really sure if the byproducts that issued here, so broken meat, fish skin, and the third, whether that was actually even in the market statistics data that they were citing from, which they were pulling from, and Commerce had found [00:12:56] Speaker 00: in the remand results, which is at pages 36 and 47 of the record, that we find that valuing fish waste using import statistics results in fish waste surrogate value, which is higher than that of the whole fish. [00:13:09] Speaker 00: And it continues on that the VitaRICH price quote satisfies our criteria of whether the surrogate value data is publicly available, includes terms of payment, and is tax and duty exclusive. [00:13:21] Speaker 00: And Commerce also recognized, so they continued, while a price quote from one company may not reflect a broad market average, this concern is outweighed by its far superior specificity and the fact that it meets the other SV selection criteria. [00:13:35] Speaker 00: And so Commerce did take a second look at the data and determined that what it had before it was this price quote that was actually pan-JCS byproducts fish waste. [00:13:46] Speaker 00: Whereas the impact market statistics, they weren't even sure if the pangeas fish and all these byproducts were included in there, and that this was just better information that they had on the record. [00:13:56] Speaker 05: Isn't it your view that we don't have to decide which time they were correct, but just determine whether in their second determination they had reasonable evidence? [00:14:09] Speaker 00: That is correct, whether commerce's decision was reasonable. [00:14:12] Speaker 03: And they don't have to explain a change? [00:14:14] Speaker 03: Because ordinarily, when we're reviewing even deferentially, don't our cases say that if there's a change, you have to explain the change itself? [00:14:23] Speaker 00: Well, here they did explain the change, and they did actually go through and address Van Juan's arguments as to why the lighter-rich price quote was still deficient. [00:14:30] Speaker 00: And as the trial court had specifically instructed it to look at the price quote, commerce had continued that, because originally part of the issue was that commerce had said that the price quote wasn't publicly available. [00:14:45] Speaker 00: But once commerce took a second look at that affidavit, it determined that that affidavit accompanying the price quote actually explained that they were obtained as publicly available information. [00:14:57] Speaker 00: that again pertains to the production and sales of Pangeasius fish in the Philippines, which is the exact type of species we're looking at here, and that the affidavit also details the sales terms, the party offering the price, and the manner in which the price quote was obtained. [00:15:10] Speaker 00: The affidavit also states that the price quotes were requested on an ex-factory and tax-exclusive basis. [00:15:17] Speaker 00: And so it did go through [00:15:18] Speaker 00: And this is at pages 36, 71 of the record. [00:15:22] Speaker 00: Commerce did go through and specifically address everything that Van Juan said was still wrong with this price quote, but determined at the end of the day that this was still the better information from which to base the surrogate value of the fish waste byproducts. [00:15:39] Speaker 00: And again, the trial court found that, actually acknowledged too, that Commerce found that there still were flaws in the price quotes, but had again determined that this was just the better information that was available on the record. [00:15:54] Speaker 00: And then turning to the second point, the trial court had correctly sustained Commerce's findings that the fine foods financial statement did, in fact, contain sufficient information to account for inventory changes. [00:16:07] Speaker 00: And this is because the changes in the inventory of fingerlings, which I understand to be the baby fish, which are sometimes also sold as finished goods, reflected the actual sale of fingerlings. [00:16:19] Speaker 00: And this was, again, when commerce and the remand results [00:16:24] Speaker 00: determined that again commerce is allowed to take a second look and determine if they made a mistake and commerce found here that looking back at the financial statements that when they, because they're obviously overwhelmed with work, they took a second look and found that, and this is on page 3652 of the record, that after further review we find that the financial statements do in fact contain the detail necessary to account for changes in inventory. [00:16:50] Speaker 00: And [00:16:52] Speaker 00: It also found, and the court agreed, that Commerce's explanation was adequate and that Commerce had simply taken a second look at these financial statements and with the accounts on staff that they have, which I'm not, determined that they could actually trace the finger links through the changes in inventory and were able to make that calculation. [00:17:13] Speaker 03: Can I just ask you, I understand this is outside the record, but just for my own information, this was the sixth administrative review [00:17:19] Speaker 03: And this happened in 2011, and it was based on years 2008, 2009, right? [00:17:23] Speaker 03: That is correct. [00:17:26] Speaker 03: Are we on a seventh administrative review now? [00:17:29] Speaker 00: I believe we're on the tenth administrative review now at this point. [00:17:34] Speaker 00: These take a while, I guess, to wander their way through the courts. [00:17:41] Speaker 05: One wonders why one would want to keep on looking at fish waste. [00:17:45] Speaker 00: You know, Your Honor, I'm subbing for someone, so I don't know why. [00:17:51] Speaker 00: But really what you have here is that Cummers had requested to take a second look at both of these two issues on remand, and then upon remand had determined that [00:18:05] Speaker 00: At the end of the day, again, the Vita Rich Price quote was the better information by far. [00:18:09] Speaker 00: It was actually specific to kanjaceous fish waste to use, and that moreover, that it could trace those changes in inventory with the fine foods financial statement. [00:18:20] Speaker 00: And if there are no other questions from the court, we would respectfully request that the court affirm the trial court's decision upholding Commerce's remand results in their entirety. [00:18:29] Speaker 04: Thank you. [00:18:44] Speaker 01: Good morning. [00:18:45] Speaker 01: Ms. [00:18:45] Speaker 01: Zach McOcter of Cassidy-Levy Count on behalf of the Catfish Farmers of America, Plain to Fat Palis. [00:18:53] Speaker 01: I'm going to just briefly address some of the things that the court was addressing. [00:18:58] Speaker 01: What are we looking at here? [00:18:59] Speaker 01: This is about fish waste. [00:19:00] Speaker 01: We're looking at broad HTS categories that contain a lot of products that aren't specific to fish waste. [00:19:08] Speaker 01: And then we have a price quote that's very specific to the type of fish waste [00:19:12] Speaker 01: that's generated and sold by Vinh Hoang, the respondent. [00:19:16] Speaker 01: The court asked a little bit earlier about what are the fish waste used for? [00:19:20] Speaker 01: I think I heard the word delicacy. [00:19:23] Speaker 01: This is fish waste. [00:19:24] Speaker 01: What we're talking about is fish waste that's generated once the fish is cut up, picked up from the table or the factory floor, and just sold. [00:19:33] Speaker 01: the stuff spoils very quickly. [00:19:37] Speaker 01: So that's why commerce decided it's not generally traded internationally. [00:19:41] Speaker 01: And this stuff is unfit for human consumption. [00:19:44] Speaker 01: Commerce has repeatedly determined in subsequent determinations, based on record evidence before, that this stuff is unfit for human consumption. [00:19:53] Speaker 01: So it's really not used as a delicacy. [00:19:57] Speaker 01: Really, commerce, procedurally we talk about [00:20:02] Speaker 01: What has changed in commerce's practice? [00:20:05] Speaker 01: Look, commerce just simply got it wrong. [00:20:07] Speaker 01: That's why we appealed to the Court of International Trade. [00:20:10] Speaker 01: And commerce does get things wrong, as the court pointed out. [00:20:12] Speaker 01: It gets things wrong routinely. [00:20:15] Speaker 01: When commerce is issuing its prelim and final determinations, it's got tons of briefs, hundreds of pages of briefs by parties, a lot of legal issues. [00:20:24] Speaker 01: And these analysts are doing the best that they can of flipping through everything, trying to get it right. [00:20:28] Speaker 01: And sometimes they overlook evidence. [00:20:30] Speaker 01: Sometimes they misconstrue evidence and don't really take it considerate of the way they should. [00:20:35] Speaker 01: Mistakes happen. [00:20:36] Speaker 01: That's why we appealed. [00:20:38] Speaker 01: And that's why Commerce took the opportunity to take a voluntary remand to really evaluate, reevaluate its decision. [00:20:44] Speaker 01: And we believe, based on substantial, substantial record evidence, price code specific to fish waste versus a broad HTS category, given Commerce's statutory mandate to calculate anti-dumping margins as accurately as possible [00:20:58] Speaker 01: and to use the best available information, commerce reached the correct result. [00:21:04] Speaker 01: Vinhuan has argued that it has exported, and the court talked about this earlier, that it's exported fish waste. [00:21:15] Speaker 01: The record shows, and we said in our brief, that the fish waste that Vinhuan exported is frozen fish waste. [00:21:21] Speaker 01: That's why commerce's determination that fish waste generally [00:21:24] Speaker 01: unfrozen fish waste isn't internationally traded. [00:21:27] Speaker 01: As I mentioned, it spoils quickly, so there's no market for it. [00:21:30] Speaker 01: And generally, as to the point that there's no market for it, this is just not a fit for human consumption. [00:21:37] Speaker 01: As a side note, this stuff generally goes into animal feed. [00:21:41] Speaker 01: And given the prices and costs of international shipping, and if you want to prevent the stuff from spoiling, you have to have refrigeration costs. [00:21:50] Speaker 01: This stuff isn't internationally traded. [00:21:51] Speaker 01: Benchmark prices, in fact, show that fish waste [00:21:54] Speaker 01: sells domestically for just pennies, and so it doesn't make sense to internationally trade the stuff. [00:22:00] Speaker 01: Record shows fresh fish waste isn't internationally traded based on the few select samples that it provided on the record. [00:22:09] Speaker 01: Only Vinhuan trades its frozen fish waste internationally. [00:22:15] Speaker 01: A few last points about the HDS. [00:22:16] Speaker 03: Is there a distinction? [00:22:18] Speaker 03: We're talking about both frozen and unfrozen, right? [00:22:21] Speaker 03: We're talking about the valuation of fresh fish waste. [00:22:25] Speaker 03: So it does not include frozen? [00:22:27] Speaker 01: We're not talking about frozen. [00:22:28] Speaker 01: We're talking about fresh fish waste. [00:22:29] Speaker 01: And the price quote is specific to fresh fish waste. [00:22:32] Speaker 01: Problems with the HDS descriptions, in addition to the ones we talked about, it's not for fish waste at all. [00:22:38] Speaker 01: The descriptions say that it's for other fish meat of marine fish, or flowers, meals, and pellets of fish or crustaceans. [00:22:44] Speaker 01: it's not covering fish waste at all. [00:22:47] Speaker 01: But even more sort of probative of this issue, the countries that are exporting fish waste into the country's failed Philippines and Bangladesh that are at issue, these aren't Pangaea's producing countries. [00:22:58] Speaker 01: So the surrogate values isn't even, whatever the fish products are in getting exported, they're not inclusive of Pangaea's fish waste. [00:23:06] Speaker 01: And the values are two times the price of the whole fish input. [00:23:10] Speaker 01: When this stuff is just [00:23:12] Speaker 01: generated from cutting, picked up from the table, picked up from the factory floor. [00:23:16] Speaker 01: Nothing else is being done to it. [00:23:18] Speaker 01: Just common sense dictates that it cannot, it should not be valued 2.5 times higher than the price of the whole fish input. [00:23:25] Speaker 01: So I'm out of time. [00:23:29] Speaker 01: Thank you. [00:23:33] Speaker 03: Got some time left on the bottle. [00:23:38] Speaker 02: So I'm a little unsure of how to handle this. [00:23:40] Speaker 02: I think maybe I'll talk a little bit of rebuttal on fish waste with your permission. [00:23:46] Speaker 02: Then I'll finish up the last little bit of my direct there. [00:23:49] Speaker 02: Just respect to fish waste here, it's not just fish waste, which the department valued and which is under litigation here. [00:23:54] Speaker 02: There was fish waste. [00:23:55] Speaker 02: There was also broken meat, which is more valuable, and fish skin, just to clarify the record. [00:24:03] Speaker 02: Also, just remember, when the department talked about specificity, when the department and the administrative process looked at those import statistics, they deemed them to be specific. [00:24:12] Speaker 02: So the arguments about which is more specific, the court may want to get into that, but both had been deemed by the agency at some point in this proceeding to be specific. [00:24:24] Speaker 02: Also, with respect to, let's talk a little bit now about, back to some of my direct here, what goes through this issue, which is actually, in all honesty, more important [00:24:33] Speaker 02: to my client in this case, this issue of the financial statements. [00:24:38] Speaker 02: So the government today actually made a couple times saying, well, the government took, or the department took a second look at the financial statement and then decided it could make the inventory changes. [00:24:48] Speaker 02: Well, with all due respect, it wasn't the second look. [00:24:51] Speaker 02: It was like the fourth. [00:24:53] Speaker 02: In the final administrative decision, the department used fine foods. [00:24:56] Speaker 02: That's not being challenged here. [00:24:59] Speaker 02: And they didn't make any changes due to inventory movements. [00:25:02] Speaker 02: Petitioners filed a ministerial errors allegation and said to the department, hey, with your financial statements, you unintentionally didn't make changes for inventory movement. [00:25:14] Speaker 02: You should have done that because that's your course. [00:25:16] Speaker 02: The department responded back to the ministerial errors allegation. [00:25:19] Speaker 02: And this is what they said with respect to my clients, the financial statement used from my client, fine foods. [00:25:26] Speaker 02: We find petitioners' allegations are methodological in nature and not ministerial. [00:25:31] Speaker 02: The treatment of changes in inventory is done on a case-by-case basis, and Fine Foods financial statements lack sufficient detail to determine the proper treatment of changes in inventory. [00:25:42] Speaker 02: Thus, the department intentionally excluded any change in inventory from the racial calculations." [00:25:48] Speaker 02: So that was the second time they looked at it in the final. [00:25:50] Speaker 02: They looked at it in the ministerial errors allegation. [00:25:53] Speaker 02: When we were in front of the CIT, when the government filed its response briefs, it continued to deport and say, listen, we've looked at these Fine Foods financial statements. [00:26:01] Speaker 02: We can't make the inventory changes because there's not enough detail in these financial statements. [00:26:06] Speaker 02: So that was like the third time. [00:26:08] Speaker 02: Issues get remanded back from the CIT back to the department. [00:26:12] Speaker 02: The department issues a draft remand. [00:26:14] Speaker 02: In that draft remand, they continued to assert, we can't make these changes to the fine food financial statements because there's not enough detail. [00:26:23] Speaker 02: Both petitioners and I were allowed to submit comments per the normal course to the department. [00:26:27] Speaker 02: When the department then issued its final, [00:26:30] Speaker 02: final remand to the court, all of a sudden they change it. [00:26:33] Speaker 02: So they've had like four looks at this thing. [00:26:37] Speaker 02: I disagree. [00:26:37] Speaker 02: And this is in the weeds a bit, right? [00:26:40] Speaker 02: You have to look at that financial statement. [00:26:42] Speaker 02: The department all of a sudden said, wait a minute, we can make these changes because of fingerlings, right? [00:26:48] Speaker 02: We can trace that fingerlings are being sold as a finished good. [00:26:52] Speaker 02: Therefore, they are part of the finished goods inventory movement, and they're where we can make the change. [00:26:58] Speaker 02: They do that. [00:26:59] Speaker 02: The surrogate financial ratio goes up for my client to over 65%. [00:27:03] Speaker 02: A number has never been seen before or since in this case. [00:27:07] Speaker 02: The non-integrated financial ratio, it's 6%. [00:27:12] Speaker 02: So there's a factual misunderstanding or a factual distinction here. [00:27:18] Speaker 02: Those fingerlings, this company, the reason they use fine foods against my client and my client only is because my client is integrated. [00:27:24] Speaker 02: Integrated fish company means [00:27:26] Speaker 02: They buy these baby fingerlings. [00:27:28] Speaker 02: They put them in ponds. [00:27:29] Speaker 02: They feed them. [00:27:29] Speaker 02: They grow them into whole fish. [00:27:31] Speaker 02: Then they process these whole fish or sell the whole fish. [00:27:34] Speaker 02: So those fingerlings are an input to the production process. [00:27:39] Speaker 02: They may sell some, possibly. [00:27:41] Speaker 02: But to deem that all of those fingerlings were part of the finished goods and part of finished goods inventory, they were all to be sold, the record simply does not support that. [00:27:51] Speaker 03: Thank you. [00:27:52] Speaker 03: Thank you. [00:27:52] Speaker 03: We thank both parties and cases submitted.