[00:00:00] Speaker 05:
We have four argued cases this morning.

[00:00:05] Speaker 05:
The first one is number 17, 2523, tri-union frozen products versus United States.

[00:00:13] Speaker 05:
Mr. Goslick, am I pronouncing that right?

[00:00:15] Speaker 05:
That's correct, sir.

[00:00:25] Speaker 04:
Go ahead.

[00:00:25] Speaker 04:
Good morning.

[00:00:25] Speaker 04:
May I please the court on this rainy day?

[00:00:28] Speaker 04:
I'm Rob Goslink from Trade Pacific here today on behalf of Mazetta Tri-Union Cora Cal and Quoc Viet Seafood Processing.

[00:00:37] Speaker 04:
This appeal challenges commerce's decision in the eighth administrative review of the anti-dumping duty order on frozen warm water shrimp from Vietnam to value respondents' white vaname consumption in the production of subject merchandise with black tiger species shrimp.

[00:00:57] Speaker 04:
In non-market economy proceedings such as this one, commerce calculates normal value.

[00:01:02] Speaker 04:
How do they actually do the calculation?

[00:01:05] Speaker 04:
Commerce requires the respondents to report to them what it takes.

[00:01:10] Speaker 05:
I understand, but specifically how do they calculate the value of the white shrimp?

[00:01:17] Speaker 04:
The white shrimp in this case were not used by commerce, but the calculation is they look for surrogate values in surrogate countries

[00:01:27] Speaker 04:
and take those values wherever they might be from publicly available information and apply those values.

[00:01:32] Speaker 05:
I don't understand all that, but I'm just, how did they value the shrimp here?

[00:01:37] Speaker 05:
They used the black shrimp, right?

[00:01:41] Speaker 05:
Correct.

[00:01:41] Speaker 05:
And that's your objection, but what was the... The basis for the... No, I'm looking to what the details of the calculation were.

[00:01:51] Speaker 05:
There were various sizes of shrimp.

[00:01:54] Speaker 04:
There were two different kinds of shrimp.

[00:01:55] Speaker 05:
How did they do the calculation?

[00:01:57] Speaker 04:
Commerce had values for black tiger shrimp from a study by the Network for Aquaculture Centers of Asia Pacific that identified specific shrimp costs in specific size categories for black tiger shrimp.

[00:02:14] Speaker 05:
So they just assumed that the black shrimp cost and the white shrimp cost were the same?

[00:02:19] Speaker 05:
Is that what they did?

[00:02:20] Speaker 04:
In this case, that is the exact assumption.

[00:02:23] Speaker 04:
They assumed that they would apply black tiger species shrimp to white Vanamay consumption of the mandatory respondents.

[00:02:30] Speaker 04:
And that is the challenge that I am making in this appeal.

[00:02:34] Speaker 04:
It has always been commerce's practice and the law, in fact, to value normal value based on the factors of production using the best available information

[00:02:44] Speaker 04:
regarding the valuation of those factors in a market economy country or countries.

[00:02:48] Speaker 02:
So looking at the factors of production, why was it not reasonable for Congress to use count size over, say, species?

[00:02:59] Speaker 04:
I think they should use count size, but I think they should also take into consideration the species of the product.

[00:03:04] Speaker 04:
Count size has a big impact on the cost of the shrimp and also on the ultimate prices.

[00:03:10] Speaker 04:
But record evidence demonstrates in this case

[00:03:12] Speaker 04:
that species of the shrimp also has an incredible important impact on the cost of the product.

[00:03:20] Speaker 04:
In our joint appendix, we provided data from that same exact study that Commerce used that showed that on average,

[00:03:27] Speaker 04:
Prices for white Vaname shrimp in Indonesia were 15% lower than comparable size shrimp in... So what's your argument today?

[00:03:35] Speaker 01:
Is your argument today that what commerce should have done is to use the black shrimp data from Bangladesh and use the white shrimp data from Indonesia?

[00:03:43] Speaker 01:
That is exactly my argument.

[00:03:45] Speaker 01:
I am not arguing... Okay, and then the problem is that Indonesia in this particular segment of review was determined not to be a comparable economy.

[00:03:53] Speaker 01:
Is that right?

[00:03:55] Speaker 04:
Commerce department did not deem Indonesia to be on its list of comparable surrogate producers, but the law does not stop with just that.

[00:04:04] Speaker 04:
The law says that we should use the best available information for valuing the factors of production and determining which country they should use as a surrogate country.

[00:04:14] Speaker 04:
Commerce should use to the extent possible countries that are an economic level of development comparable to Vietnam that are significant producers of subject merchandise.

[00:04:24] Speaker 04:
But the law specifically says to the extent possible.

[00:04:28] Speaker 04:
But had they used the Indonesian data before?

[00:04:31] Speaker 04:
They used Indonesian data in the previous review, a year earlier, where they did calculate separate factor valuation methodologies for the white and black shrimp.

[00:04:41] Speaker 05:
So what do you contend that they should have done here?

[00:04:45] Speaker 05:
I think they should have done the exact same thing.

[00:04:47] Speaker 05:
Wait, wait.

[00:04:48] Speaker 05:
You can't interrupt me.

[00:04:50] Speaker 05:
The word not.

[00:04:52] Speaker 05:
from Indonesia data for white shrimp of the larger sizes, correct?

[00:04:58] Speaker 05:
That's correct, but that's primarily because... What did you suggest that they do in the absence of that data?

[00:05:04] Speaker 04:
The reality is that there is no... What did you suggest that they do?

[00:05:09] Speaker 04:
They don't need to do anything, Your Honor, because the reality is that there is no need to have white shrimp in those particular sizes.

[00:05:19] Speaker 04:
White shrimp grows in smaller sizes than black tiger shrimp, and the finished white products that are produced are predominantly and almost entirely in the smaller sizes.

[00:05:31] Speaker 04:
The lack of the smaller size white baname shrimp is not an obstacle to using the white shrimp in this case, pardon me, in the larger size.

[00:05:41] Speaker 01:
Are you saying in the prior segments, Indonesia data was used, right?

[00:05:45] Speaker 01:
In the previous, in the exact previous administrative review.

[00:05:49] Speaker 01:
In that particular review, was Indonesia recognized as a comparable economy?

[00:05:54] Speaker 01:
Correct.

[00:05:55] Speaker 04:
Okay, but this time it wasn't.

[00:05:57] Speaker 04:
Indonesia was not recognized as one of the six primary countries under consideration for determining what should be the primary surrogate country.

[00:06:07] Speaker 04:
But just because a country is not on that list does not mean its data is not useful.

[00:06:12] Speaker 04:
Again, commerce has departed from the primary surrogate country.

[00:06:17] Speaker 01:
In this case... Well, it requires more calculations and extrapolation when you're trying to use and take data from a country that's not a comparable economy and apply it to this particular economy.

[00:06:32] Speaker 04:
With respect, I don't think there's any difference in the calculation or the extrapolation necessary.

[00:06:36] Speaker 04:
They could use the Indonesian white vaname cost exactly the same way as they used the black vaname cost.

[00:06:42] Speaker 01:
So then the whole exercise of trying to identify comparable economies is a useless exercise?

[00:06:47] Speaker 04:
It's not useless at all.

[00:06:48] Speaker 04:
So then why do they do it?

[00:06:51] Speaker 04:
The law requires commerce.

[00:06:52] Speaker 04:
It directs them to the extent possible to use values in a surrogate country that has an economic development comparable.

[00:06:59] Speaker 04:
But the primary goal

[00:07:01] Speaker 04:
is to search for the best available information.

[00:07:04] Speaker 04:
And the best available information must be defined as what is most product specific, most contemporaneous, tax exclusive, representative of a broad market average, and that value might not be in the primary surrogate country.

[00:07:20] Speaker 04:
In this case, commerce, in fact, in this very appeal

[00:07:24] Speaker 04:
commerce after two remands decided that it would depart from the primary surrogate country and value labor costs using India as agreed to by both of the defendant appellees in this case.

[00:07:36] Speaker 04:
They did not use Bangladeshi labor costs because they believed Bangladeshi labor costs were unreliable.

[00:07:42] Speaker 04:
Commerce departs from the primary surrogate country when those values are unreliable, aberrational, or in this case, unavailable.

[00:07:51] Speaker 04:
they used the scrap shrimp cost from Indonesia because there was no scrap shrimp cost in Bangladesh.

[00:07:56] Speaker 04:
And that is exactly what I'm asking you to consider today.

[00:08:00] Speaker 01:
But in the end, this is not a de novo review by us, right?

[00:08:02] Speaker 01:
We have to give quite a bit of deference to commerce's choices here in trying to decide which surrogate country to take surrogate values from.

[00:08:13] Speaker 04:
Correct.

[00:08:13] Speaker 04:
You will uphold me.

[00:08:14] Speaker 01:
And so you have to convince the court that it's entirely unreasonable

[00:08:20] Speaker 01:
for commerce to have elected to use one surrogate country to get these data from the shrimp.

[00:08:27] Speaker 04:
I don't disagree with the choice of the surrogate country.

[00:08:29] Speaker 04:
We are not contesting Bangladesh as the primary surrogate value.

[00:08:32] Speaker 04:
But you cannot produce white frozen shrimp from black product.

[00:08:37] Speaker 04:
You cannot produce a finished good with material inputs that do not go into that.

[00:08:43] Speaker 04:
And if you want to value that production, you need to start with the actual inputs that go into that production.

[00:08:49] Speaker 05:
What percentage of the inputs here were the larger size white shrimp?

[00:08:57] Speaker 04:
I would say probably less than 5% in the white shrimp sizes.

[00:09:01] Speaker 04:
In the black shrimp sizes, it was more like 33%, I believe, if I'm not divulging proprietary information.

[00:09:09] Speaker 05:
And the smaller white size shrimp, what proportion are they?

[00:09:12] Speaker 04:
Those were the vast majority.

[00:09:15] Speaker 04:
I would say that if you combine the Bangladeshi surrogate values for black tiger and the Indonesian surrogate values for white vaname, you would basically be able to value the shrimp production by the mandatory respondents by at least 90% without extrapolation.

[00:09:34] Speaker 04:
I'm not understanding that.

[00:09:37] Speaker 05:
The inputs, the cost of the product, the cost of the raw shrimp.

[00:09:42] Speaker 05:
What percentage?

[00:09:43] Speaker 05:
Probably about, I would say, 75.

[00:09:45] Speaker 05:
Wait, wait, wait.

[00:09:45] Speaker 05:
Sorry to interrupt.

[00:09:47] Speaker 05:
What percentage of the commerce figure is attributable to the white shrimp?

[00:09:55] Speaker 04:
At this point, none of the... Well, they're using the black shrimp instead.

[00:10:01] Speaker 05:
Correct.

[00:10:01] Speaker 05:
But in terms of the product, the actual product, what percentage?

[00:10:05] Speaker 04:
About 50%.

[00:10:06] Speaker 04:
About 50%?

[00:10:07] Speaker 04:
About 50%.

[00:10:09] Speaker 04:
the both men and correspondents sold about half and half, white and black.

[00:10:15] Speaker 02:
Did you submit any evidence on Indonesia's level of economic development?

[00:10:20] Speaker 04:
We do not have any information on Indonesia's level of economic development.

[00:10:26] Speaker 02:
But once again... I was asking whether you had submitted... No, no we did not.

[00:10:29] Speaker 02:
And that's an important consideration in picking the surrogate country, right?

[00:10:33] Speaker 04:
It's important, it's a quintessential

[00:10:35] Speaker 04:
important point in picking the primary surrogate country, but it is not an important point.

[00:10:41] Speaker 02:
Commerce normally tries to pick, to limit as much as it can all the different factors to one country.

[00:10:52] Speaker 04:
All things being equal, if commerce is faced with the choice between equally comparable surrogate values that are equally contemporaneous, equally product-specific, that are tax-inclusive, that both represent a broad market average, commerce

[00:11:06] Speaker 04:
wants to pick the price in the primary surrogate country.

[00:11:10] Speaker 04:
In this case, there is no material value for white Vanime shrimp in Bangladesh.

[00:11:17] Speaker 04:
Commerce has nothing to pick from Bangladesh.

[00:11:20] Speaker 04:
So their options are either to extrapolate and to guess and to put on this black tiger cost or to use white Vanime costs that are on the record from Indonesia.

[00:11:31] Speaker 04:
That represent the exact same size

[00:11:34] Speaker 05:
The exact same species... Well, they don't represent the exact same size because the larger sizes, there isn't any Indonesian data for them, right?

[00:11:43] Speaker 04:
They do represent the same size.

[00:11:45] Speaker 04:
The overlap in the available Vietnamese, pardon me, the overlap in the Indonesian white baname and the products used that were produced from those size inputs is significant, substantial, I would say.

[00:11:59] Speaker 05:
And for commerce to basically... That may be true, but there is still missing data for the larger white shrimp.

[00:12:07] Speaker 05:
So even under your theory, what?

[00:12:09] Speaker 05:
They'd have to use the black shrimp as a substitute for the larger size of white shrimp?

[00:12:15] Speaker 05:
At a minimum, commerce should use... You're gonna use my question, is that right?

[00:12:19] Speaker 04:
They would have to make a decision.

[00:12:20] Speaker 04:
They'd have to say, what is better to use?

[00:12:22] Speaker 04:
We should extrapolate the white smaller size or to substitute the black for the larger size.

[00:12:27] Speaker 05:
Which did you propose?

[00:12:29] Speaker 04:
We think they should use the white for everything, because white... And extrapolate to the larger sizes?

[00:12:34] Speaker 04:
Because the record evidence demonstrates... Yes.

[00:12:37] Speaker 04:
Because the record demonstrates that there is a significant price difference between white and black species.

[00:12:44] Speaker 04:
And just assigning an extrapolated black cost as opposed to an extrapolated white cost, you still would get a better match with the white because of the species specificity.

[00:12:56] Speaker 05:
Okay.

[00:12:56] Speaker 05:
You want to save the rest of your time here?

[00:12:58] Speaker 05:
Sure.

[00:12:58] Speaker 05:
Thank you very much.

[00:13:04] Speaker 05:
Mr. Camp.

[00:13:07] Speaker 00:
Good morning, and may it please the court.

[00:13:08] Speaker 00:
I think I'll just start with the point that Commerce did make a decision and did select the best available information on the record to value the raw shrimp input.

[00:13:17] Speaker 00:
And I would note that for the two largest count sizes that were missing in the Indonesian data, that is a significant percentage.

[00:13:23] Speaker 00:
That information is confidential but is on page 14 of our brief.

[00:13:26] Speaker 05:
Can you give us a range that wouldn't be confidential?

[00:13:31] Speaker 00:
Not really, Your Honor, but it is on page 14 of our brief.

[00:13:35] Speaker 00:
And then to go off of that as well, what was also missing with the Indonesian data, as Congress explained on page 2315 of the record and 2337, was that not only was there no information on the record as to Indonesia's economic comparability, which as Your Honors know, the party has a responsibility to build the record and pursue it to QBD food,

[00:13:58] Speaker 00:
But there was also no information about Indonesia's surrogate value as to financial statements or the cost of labor.

[00:14:05] Speaker 00:
And Commer simply explained that basically any gains in accuracy from trying to combine these different sources of data, it was basically just missing any information as to whether Indonesia on this record was economically comparable.

[00:14:20] Speaker 00:
And yes, Indonesia in the prior review was the primary surrogate country, but that was the only time

[00:14:25] Speaker 00:
in eight years that it had been selected as such.

[00:14:27] Speaker 05:
What does Commerce say here as to why this was different from the prior review?

[00:14:32] Speaker 00:
So Indonesia was not listed on the primary surrogate country list, and that's at page 2308 of the record.

[00:14:38] Speaker 00:
But more importantly, none of the parties submitted information to the record for Commerce to consider Indonesia as the primary surrogate country.

[00:14:47] Speaker 00:
And as counsel represented,

[00:14:49] Speaker 00:
none of the parties actually challenged Bangladesh as the, what's not on appeal is Bangladesh being the primary country.

[00:14:54] Speaker 01:
Commerce sits something along the lines of just because Indonesia was used as a surrogate country in a prior review, that doesn't mean that commerce intended for it to be used for all future reviews or something like that.

[00:15:10] Speaker 00:
That's correct.

[00:15:11] Speaker 00:
And commerce did, in order to value the raw shrimp scrap, which is the waste, that is a byproduct.

[00:15:18] Speaker 00:
There was no information on the record in Bangladesh as to that value.

[00:15:22] Speaker 00:
And so, yes, Commerce did look to Indonesia for that one very small byproduct value from Indonesia.

[00:15:28] Speaker 00:
And that's also at page 2315 of the record where Commerce explained why it had to go to Indonesia for that one small value.

[00:15:34] Speaker 05:
In this review or the prior review?

[00:15:36] Speaker 00:
In this review.

[00:15:37] Speaker 05:
Even in this review, they used Indonesia for one purpose.

[00:15:41] Speaker 00:
For one purpose only and a limited purpose being to value the byproduct of shrimp waste.

[00:15:46] Speaker 05:
And what was the Indonesian data used for in the prior review?

[00:15:50] Speaker 00:
In the prior review, Indonesia was the primary surrogate country.

[00:15:54] Speaker 00:
And that information had been placed on the record by the parties.

[00:15:57] Speaker 00:
And one of the vital pieces of information is the gross national income.

[00:16:01] Speaker 00:
And again, not only was that not on this record about Indonesia, but there was no information about financial statements.

[00:16:08] Speaker 00:
There was no information about the surrogate value of labor.

[00:16:11] Speaker 00:
And that's obviously important when you're trying to calculate

[00:16:14] Speaker 00:
the value of raw shrimp and how is it being produced and what is it costing to produce that value of raw shrimp.

[00:16:19] Speaker 00:
And again, commerce explained that although there were the two missing count sizes, which again is at page 14 of our record as to the exact percentage of those count sizes, commerce explained that if it were to have to extrapolate that data, and this is at 2337 of the record, then that inherently basically takes away from

[00:16:41] Speaker 00:
any kind of better accuracy that could have been derived from using the Indonesian prices otherwise.

[00:16:49] Speaker 00:
And then, in addition, I would note that on page 2314 of the record- Commerce's calculation assumed that the white shrimp should be priced at the same level as the black shrimp?

[00:17:02] Speaker 00:
Commerce chose the Bangladeshi data, which did only have black tiger shrimp.

[00:17:07] Speaker 05:
So there was no adjustment of that data to account for the fact that it was black rather than white shrimp?

[00:17:13] Speaker 00:
That's correct, Your Honor.

[00:17:14] Speaker 05:
And at page 2314... Why wouldn't there be some adjustment made in the black shrimp price to account for the fact that there are pricing differences between white and black shrimp?

[00:17:27] Speaker 00:
The answer to that, Your Honor, is that, and it's at 2337 and 2314 of the record, where

[00:17:34] Speaker 00:
Count size actually matters more than species, and so the price of shrimp is driven more on, you know, if you've got bigger shrimp, it's going to cost more.

[00:17:42] Speaker 05:
I understand that, but it still doesn't explain to me why you wouldn't make some sort of adjustment to take account of different species.

[00:17:49] Speaker 05:
I mean, that could be done, right?

[00:17:51] Speaker 05:
You could have used the black shrimp data from Bangladesh and still adjusted it to take account of the fact that some of the product, some of the inputs were white shrimp.

[00:18:04] Speaker 00:
And that is what the appellants are asking the court to have commerce go back and do.

[00:18:10] Speaker 00:
But the standard of review here is substantial evidence.

[00:18:13] Speaker 05:
I thought that was not what they were asking.

[00:18:15] Speaker 05:
I thought what they did ask was to use the Indonesian data for the white shrimp, rather than to make an adjustment in the Bangladesh black shrimp data.

[00:18:24] Speaker 05:
Am I mistaken?

[00:18:25] Speaker 00:
It was a little unclear to me as to exactly what they would be asking commerce to do on remand.

[00:18:31] Speaker 00:
But what I would note is that

[00:18:33] Speaker 00:
as long as commerce adequately explains and it's a reasoned analysis as to why a source of information was better than the other.

[00:18:39] Speaker 00:
And here commerce said these are both imperfect choices.

[00:18:43] Speaker 00:
They're both missing information.

[00:18:44] Speaker 00:
Bangladesh is missing white vanamai prices.

[00:18:47] Speaker 00:
Indonesia is missing the two largest count sizes, which are very important.

[00:18:51] Speaker 00:
And so commerce made the decision.

[00:18:53] Speaker 02:
You mentioned you're missing the financial statements from Indonesian companies as well?

[00:18:57] Speaker 02:
Correct.

[00:18:58] Speaker 02:
So without that, just without the financial statements, it gets very difficult

[00:19:03] Speaker 02:
to build your surrogate price.

[00:19:05] Speaker 00:
Is that right?

[00:19:07] Speaker 00:
That is correct, Your Honor.

[00:19:08] Speaker 00:
And it wasn't just species versus count size.

[00:19:11] Speaker 00:
Commerce considered that in its analysis as to why Bangladesh was better than Indonesia.

[00:19:16] Speaker 00:
And that is at 2337 of the record.

[00:19:18] Speaker 00:
And even the trial court had previously recognized, and this was an allied Pacific food, that count size is an important consideration to make when, specifically for shrimp, trying to select the surrogate value.

[00:19:29] Speaker 02:
Overall in the shrimp industry,

[00:19:31] Speaker 02:
Is it the case that size drives the price as opposed to species?

[00:19:37] Speaker 00:
Yes.

[00:19:37] Speaker 00:
And even the NACA data, Your Honor, recognized this is a 2314 of the record.

[00:19:42] Speaker 00:
The NACA study itself said that count size was a key indicator.

[00:19:46] Speaker 00:
So if you go to the grocery store, you go to Harris Teeter or Whole Foods, if you get bigger shrimp, it's going to cost more versus little tiny shrimp that cost less.

[00:19:55] Speaker 02:
And that's true even within the species, right?

[00:19:58] Speaker 02:
Correct.

[00:19:59] Speaker 02:
So the bigger the shrimp are, the costlier they are.

[00:20:03] Speaker 02:
Correct.

[00:20:05] Speaker 05:
Yes.

[00:20:06] Speaker 05:
How would the missing financial data affect the validity of the white shrimp input value with respect to Indonesia?

[00:20:15] Speaker 00:
Well, I don't think it's solely just the missing financial statements, Your Honor.

[00:20:18] Speaker 00:
It's the fact that on this record, there is no information whatsoever as to whether Indonesia is economically comparable.

[00:20:25] Speaker 00:
And as to, in commerce explained,

[00:20:28] Speaker 05:
So the missing financial statements don't affect the input value for the shrimp.

[00:20:34] Speaker 05:
That's a different factor, right?

[00:20:35] Speaker 00:
Well, there's shrimp, but then also the factors of production for that shrimp.

[00:20:40] Speaker 00:
If you're using Indonesian data for shrimp, then you would need to look at, to the extent possible, financial statements as well as the cost of labor.

[00:20:49] Speaker 00:
And all of that was missing in this record.

[00:20:52] Speaker 02:
Is that because the price itself is unreliable?

[00:20:56] Speaker 02:
And so what you're trying to do is you're trying to rebuild a price using these different factors of production.

[00:21:02] Speaker 00:
Correct.

[00:21:02] Speaker 00:
And, Your Honor, that's at 2337 of the record.

[00:21:05] Speaker 00:
And the trial court also noted that at page 100 of the record, where there's basically an absence of information as to the shrimp price structure between, and I'll quote here, Indonesian black tiger prices and Vietnamese prices, and whether those would be the same or even similar.

[00:21:19] Speaker 00:
There were just, I mean, these are apples and oranges.

[00:21:21] Speaker 00:
And commerce had no way to compare even

[00:21:25] Speaker 00:
or to build or to construct a certificate.

[00:21:27] Speaker 05:
Are there any other circumstances in which commerce has used inputs from two different countries?

[00:21:33] Speaker 00:
If it has to, commerce does.

[00:21:34] Speaker 00:
And here, commerce did.

[00:21:35] Speaker 00:
Commerce did use Indonesian data to value the byproduct.

[00:21:39] Speaker 00:
But when it came to the primary input, which for shrimp is raw shrimp itself, commerce determined that out of these two imperfect sources of information, that it would go with Bangladesh rather than Indonesia, and reasonably explained why it made that choice to do so.

[00:21:54] Speaker 01:
Would it have been reasonable for Commerce to have gone the other way here and to actually have used the Indonesian data for white shrimp?

[00:22:03] Speaker 00:
Commerce would have to explain its decision.

[00:22:05] Speaker 01:
And here, based on the record that we have in front of us, do you think that would have been a reasonable choice by Commerce?

[00:22:12] Speaker 00:
Although I can't speak for Commerce, likely not, because Commerce itself explained that Indonesian data was lacking for those three reasons, being the GNI, labor, and also financial statements.

[00:22:23] Speaker 05:
I'm not understanding that answer because the proposal here is not to use Indonesia as the primary surrogate country, but to use one set of data from Indonesia the way you do for the byproduct.

[00:22:37] Speaker 05:
You use the data for the byproduct as part of the input even though you don't have the financial data from Indonesia.

[00:22:44] Speaker 05:
So, correspondingly, you could use the shrimp price from Indonesia here

[00:22:51] Speaker 05:
without having the financial data, right?

[00:22:54] Speaker 05:
Yes or no?

[00:22:56] Speaker 00:
Yes, Commerce Code, Your Honor.

[00:22:57] Speaker 00:
But to explain that a little bit further, this is a complex methodological choice.

[00:23:02] Speaker 00:
And as the trial court noted on page 99 of the record, there's actually no authority that Commerce is required to cobble together different sources of information from another.

[00:23:12] Speaker 01:
Well, we understand that, that there isn't some, that Commerce is not compelled to find from a dozen different countries

[00:23:19] Speaker 01:
you know, factors of production data and then cobble them all together.

[00:23:23] Speaker 01:
The only question I had was, it's a hypothetical one, would it have been reasonable, would it have been supported by substantial evidence, a choice by commerce to have elected to use the white shrimp data from Indonesia based on the record we have in front of us?

[00:23:37] Speaker 00:
Likely not considering that commerce explained that that data was defective for other reasons.

[00:23:43] Speaker 05:
And the other reasons being?

[00:23:44] Speaker 00:
The fact that there was no information as to whether Indonesia was even a comparable country economically to Vietnam, as well as the missing financial statements and the surrogate value of labor.

[00:24:01] Speaker 00:
And if there are no further questions, we respectfully request that this court uphold the results in their entirety.

[00:24:12] Speaker 05:
Mr. Rickard?

[00:24:20] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:24:22] Speaker 03:
My comments today focus on economic comparability.

[00:24:26] Speaker 03:
And one of the things I guess I would like to highlight is that Commerce explains on page 16 of its issues and decision memo, which is page of the appendix 2315, that there were surrogate values on the record from Bangladesh for every factor of production except shrimp waste, which the agency described as, quote, a negligible portion, unquote, of total normal value.

[00:24:50] Speaker 03:
Commerce further explained that it had used an Indonesian value as a surrogate for shrimp scrap waste in all prior administrative reviews.

[00:24:57] Speaker 03:
Commerce used an Indonesian value as the surrogate because there was no other option on the record.

[00:25:02] Speaker 03:
It had used the same value in every prior administrative review of this anti-dumping duty order, which was implemented in February of 2005.

[00:25:10] Speaker 03:
There's no question that a decade-old value from administrative proceedings regarding an anti-dumping duty order on a different product from a different country is a poor surrogate.

[00:25:19] Speaker 03:
But it was the only information on the record regarding that particular value.

[00:25:23] Speaker 03:
So there is no other option available here on on shrimp, which is the factor of production is whole shrimp.

[00:25:35] Speaker 03:
There are two values that are available on the record.

[00:25:38] Speaker 03:
There is not the data relating to Bangladesh, which is just black tiger shrimp of five different count sizes.

[00:25:44] Speaker 03:
And then there is NACA data from Indonesia, which involves white shrimp of three count sizes and black shrimp of four count sizes.

[00:25:51] Speaker 03:
And Commerce chose between those two data sets to determine what was the best available information on the record.

[00:25:57] Speaker 03:
They do that in the context of building up a surrogate value that has 37 different components in terms of the ferret factors of production that were in place.

[00:26:05] Speaker 03:
And at the time they made this decision, 36 of those components were from Bangladesh.

[00:26:09] Speaker 03:
There was one, the shrimp scrap value, that was Indonesian in nature.

[00:26:13] Speaker 03:
Now, we have litigated and separately against, which is not up on appeal here, we litigated the labor value as representatives of the domestic industry.

[00:26:21] Speaker 03:
And following the Court of International Trade's remands back to the Commerce Department, Commerce then used the labor value from India rather than from Bangladesh.

[00:26:32] Speaker 03:
In that proceeding, you can see on the appendix of the record is how much information we put on the record to demonstrate that this was an unreliable data source by which to build a surrogate value.

[00:26:42] Speaker 03:
There is nothing like that on the record for this case.

[00:26:45] Speaker 03:
What you have instead is a series of assertions that there is a difference between Vanami prices and Black Tiger prices based on a comparison of the Indonesian surrogate values on species at comparable count sizes.

[00:26:58] Speaker 03:
And that's it.

[00:26:59] Speaker 03:
So overall, our belief is that what commerce has done is an appropriate and reasonable choice based off the information that was available at the time between two different surrogate values within the context of how they built surrogate values because

[00:27:12] Speaker 05:
Is there data available for Indonesian black shrimp?

[00:27:15] Speaker 03:
There was data available for Indonesian black shrimp.

[00:27:17] Speaker 05:
And how does that compare to the Bangladesh data for black shrimp?

[00:27:22] Speaker 03:
I do not know the answer to that question about how they compare to each other in terms of, you mean like in actual prices or in count sizes.

[00:27:28] Speaker 03:
There was greater... No, no, no.

[00:27:29] Speaker 03:
For the same count size, the black shrimp from Bangladesh and the black shrimp from Indonesia.

[00:27:35] Speaker 03:
I don't have that offhand.

[00:27:36] Speaker 03:
I'm sorry.

[00:27:37] Speaker 03:
But I would say again that one of the things that happens with an Indonesian value is that it's adjusted as you built the surrogate value by a series of other Bangladeshi values to come to that concept, where the financial ratios are important, because that's what's added to the Indonesian values overall.

[00:27:51] Speaker 03:
So what the court is being asked to do is take an isolated value from Indonesia and drop that within the context of Bangladesh without first demonstrating that Indonesia is an appropriate place to do any of this evaluation.

[00:28:05] Speaker 03:
Thank you, Your Honor.

[00:28:10] Speaker 04:
Specificity is probably the most critical factor that commerce is concerned with when it chooses surrogate values.

[00:28:19] Speaker 04:
It is why commerce in the wooden bedroom furniture case does not value sleigh beds made of birch with oak values.

[00:28:27] Speaker 04:
In fish fillets, it does not value catfish production with sea bass or tuna.

[00:28:33] Speaker 04:
In the mushroom from China case, it does not value button mushrooms with truffles.

[00:28:38] Speaker 04:
Species affects cost

[00:28:40] Speaker 04:
and cost affects prices.

[00:28:42] Speaker 04:
The record is very clear that there are differences in the cost of black tiger versus white van may shrimp in Indonesia, and we went further.

[00:28:50] Speaker 04:
We showed that the prices to the United States of the Vietnamese exporters, if you

[00:28:57] Speaker 04:
eliminate all factors.

[00:28:58] Speaker 05:
Do you know how the black shrimp prices from Bangladesh and Indonesia compare for the same size?

[00:29:04] Speaker 04:
In fact, I do.

[00:29:05] Speaker 04:
The black tiger prices in Indonesia and the black tiger prices in Bangladesh are virtually identical.

[00:29:12] Speaker 04:
On page 883 of our joint appendix, you have the black tiger prices for Bangladesh.

[00:29:21] Speaker 04:
And on page 866, you have the black tiger prices for Indonesia.

[00:29:26] Speaker 04:
Commerce calculated an exchange rate of about 10,000 rupiah to one.

[00:29:30] Speaker 04:
If you move the decimal place four to the left, you will find month by month, size by size, virtually identical black tiger pricing in Indonesia and in Bangladesh, which to me indicates that there must be something that affects the price of white Vaname, which brings it down.

[00:29:49] Speaker 04:
And the Vietnamese export price, when you eliminate all size, all processing, if you just look at

[00:29:55] Speaker 04:
identical products sold with only a species difference, there is a significant difference in the U.S.

[00:30:03] Speaker 04:
selling price.

[00:30:05] Speaker 04:
Once again, species affects cost, cost affects pricing.

[00:30:09] Speaker 04:
If commerce does not use surrogate values that are specific to the input being valued, then they're going to calculate incorrect normal values and they're going to calculate incorrect dumping margins.

[00:30:20] Speaker 04:
It is critical in this case to commerce value the surrogate

[00:30:25] Speaker 04:
costs exactly to the inputs that are being used.

[00:30:29] Speaker 02:
And Trump is not sure... Is there an argument that commerce should disregard whether the country that's the surrogate country being considered or a country that's being considered a surrogate country be of the same economic development or those factors, the factors that are alleged to have been missing here, are those important?

[00:30:48] Speaker 02:
Is selecting a surrogate country or not?

[00:30:51] Speaker 04:
Absolutely important.

[00:30:52] Speaker 04:
All other things being equal, commerce should use surrogate pricing in a country that is economically comparable.

[00:30:59] Speaker 02:
Unless that information is known, then we're not sure as to the pricing.

[00:31:05] Speaker 02:
I mean, the artificial factors can drive the pricing other than the market, correct?

[00:31:10] Speaker 04:
But the primary consideration is best available information.

[00:31:13] Speaker 04:
You want to match the surrogate cost to the input being valued.

[00:31:16] Speaker 04:
In this case, commerce departed from Bangladesh.

[00:31:19] Speaker 04:
What are the standards of review for best information available?

[00:31:23] Speaker 04:
Well, I think this is where commerce does have a lot of deference.

[00:31:26] Speaker 04:
But certainly, they have established a precedent of looking at factors.

[00:31:30] Speaker 04:
Product specificity, contemporaneity, tax exclusiveness, broad market averages.

[00:31:36] Speaker 04:
All of these go into looking at whether or not the Indonesian and Bangladesh data are the same or different.

[00:31:41] Speaker 04:
And in this case, it's from the same study.

[00:31:44] Speaker 04:
equally valid surrogate values.

[00:31:46] Speaker 04:
They are both the best available information, but for the fact that Bangladesh does not have any white Vanamay pricing.

[00:31:55] Speaker 05:
Shrimp is not a shrimp is not a shrimp.

[00:31:57] Speaker 05:
Thank you very much.