Qvd Food Co., Ltd. v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

QVD FOOD CO., LTD.,
Plaintiff-Appellant,

v.
UNITED STATES,
Defendant-Appellee,

and
CATFISH FARMERS OF AMERICA, AMERICA’S
CATCH, COUNTRY SELECT CATFISH, DELTA
PRIDE CATFISH, INC., HARVEST SELECT
CATFISH, INC., HEARTLAND CATFISH COMPANY,
PRIDE OF THE POND, AND SIMMONS FARM
RAISED CATFISH, INC.,
Defendants.
__________________________

2010-1541
__________________________

Appeal from the United States Court of International
Trade in consolidated Case Nos. 09-CV-0157 and 09-CV-
0158, Judge Leo M. Gordon.
___________________________

Decided: September 12, 2011
___________________________
QVD FOOD CO v. US 2

MARK E. PARDO, Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP, of Washington, DC, argued
for plaintiff-appellant. With him on the brief were NED H.
MARSHAK and ANDREW T. SCHUTZ.

MELISSA DEVINE, Trial Attorney, Civil Division,
Commercial Litigation Branch, United States Department
of Justice, of Washington, DC, argued for defendant-
appellee. On the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, FRANKLIN E.
WHITE, JR., Assistant Director, and RICHARD P.
SCHROEDER, Trial Attorney. Of counsel on the brief was
DAVID W. RICHARDSON, United States Department of
Commerce, Office of Chief Counsel for Import Admini-
stration, of Washington, DC.
__________________________

Before NEWMAN, BRYSON, and LINN, Circuit Judges.
Opinion for the court filed by Circuit Judge BRYSON.
Dissenting opinion filed by Circuit Judge NEWMAN.

BRYSON, Circuit Judge.

I

This case concerns the fourth administrative review of
an antidumping duty order on imports of frozen fish fillets
from Vietnam. The fish that are the subject of the order
are of the genus pangasius (“pangas fish”), which compete
with domestic catfish in the retail fish market in this
country. The period of review covered August 2006
through July 2007 and resulted in the assessment of
duties against several Vietnamese manufacturers, includ-
ing appellant QVD Food Company, Ltd.
3 QVD FOOD CO v. US

The Department of Commerce calculates antidumping
duty margins by comparing the “normal value” of the
goods in question with their actual or constructed export
price. 19 U.S.C. § 1677b(a). If the normal value exceeds
the export price, Commerce imposes an antidumping duty
on imports equivalent to the percentage difference be-
tween those two values, i.e., the dumping margin. Id.
§§ 1673, 1677(35)(A).

Commerce treats Vietnam as a “nonmarket economy”
country. See 19 U.S.C. § 1677(18). Because it is not
always possible to determine the normal value of goods
from nonmarket economy countries in the manner out-
lined in 19 U.S.C. § 1677b(a)(1), Congress allows Com-
merce to value the factors of production for such goods by
looking to the best available information from appropriate
market economy countries, referred to as “surrogate
countries.” See id. § 1677b(c)(1); Dorbest Ltd. v. United
States, 604 F.3d 1363, 1367 (Fed. Cir. 2010). For the
fourth administrative review of the antidumping order in
this case, Commerce chose Bangladesh as the primary
surrogate market economy country to use in valuing the
factors of production. Commerce used information gath-
ered from producers in Bangladesh to determine the value
of whole pangas fish.

In the preliminary results of the fourth administra-
tive review, Commerce valued whole pangas fish at 45
Takas/kilogram (“Tk/kg”). That figure was based on the
financial statement of Bangladeshi pangas fish producer
Gachihata for the 2006-2007 fiscal year (“FY2006-07”).
Commerce determined that Gachihata’s financial state-
ment for that year contained the best available informa-
tion in the record as to the price of the fish. Commerce
used the FY2006-07 financial statements of two other
Bangladeshi seafood producers to calculate financial
QVD FOOD CO v. US 4

ratios for “general expenses” to ascribe to Vietnamese
exporters. See 19 C.F.R. § 351.408(c)(4). Based on those
values, Commerce preliminarily found that QVD should
be assigned a de minimis dumping margin.

After publishing its preliminary results on September
8, 2008, Commerce gave all parties until September 28,
2008, to place information relevant to the valuation of
factors of production in the administrative record. See 19
C.F.R. § 351.301(c)(3)(ii). Commerce also gave the parties
an opportunity to file comments and respond to comments
submitted by others. Commerce was statutorily required
to issue final results of the fourth administrative review
within six months of the publication of the preliminary
results, i.e., by March 9, 2009. See 19 U.S.C.
§ 1675(a)(3)(A).

In February 2009, both QVD and appellees Catfish
Farmers of America et al. (“CFA”) submitted written
comments addressing the preliminary results. CFA
argued that the FY2006-07 Gachihata financial statement
was an unreliable source for valuing whole pangas fish.
CFA pointed in particular to the Gachihata Board of
Directors’ Report for FY2006-07, which painted a grim
picture of the company’s financial condition. The Direc-
tors’ Report described Gachihata as being “in dire need of
fund[s]” and “dying day by day.” QVD argued in a rebut-
tal brief that the FY2006-07 Gachihata data continued to
constitute the best available information in the record for
valuing whole pangas fish. Following the briefing, Com-
merce held an administrative hearing at which the par-
ties addressed the issue of fish valuation.

On March 3, 2009, six days before the deadline to is-
sue final results, Commerce placed in the administrative
record a 2007 report by the United Nations Food and
5 QVD FOOD CO v. US

Agriculture Organization (“the FAO report”). When
offering the report into the record, Commerce explained
that it might be an appropriate source of information for
valuing whole pangas fish. The report cited an average
price of 42 Tk/kg based on a survey of 60 Bangladeshi fish
farms between October 2005 and February 2006. Com-
merce invited the parties to comment within two days on
“the appropriateness of basing the surrogate value of the
whole live fish input” on the FAO report.

QVD and CFA both commented on the FAO report
two days later. QVD argued that Commerce should adopt
the whole pangas fish price quoted in the report as the
best available information as to the surrogate value of the
fish. CFA, on the other hand, argued that the FAO report
should be removed from the administrative record be-
cause Commerce had not given the parties the same
amount of time to comment that would normally be
available after new factual information was placed in the
record. CFA also argued that there were significant
questions as to the reliability of the FAO report, noting
several difficulties encountered by the surveyors. CFA
further contended that the data in the report may have
been based on anecdotal evidence and that it was unclear
whether the reported prices were contemporaneous with
the survey that was conducted for the report.

On March 10, 2009, two business days after the par-
ties submitted comments, Commerce publicly announced
the final results of the fourth administrative review.
Commerce valued whole pangas fish using an inflation-
adjusted value from the FY2000-01 Gachihata financial
statement. The FY2000-01 statement priced pangas fish
at 68 Tk/kg, and Commerce adjusted that price upward
for inflation to 98 Tk/kg. Commerce calculated the infla-
tor by dividing the average Bangladeshi consumer price
QVD FOOD CO v. US 6

index (“CPI”) for the months encompassing the period of
review by the average CPI for the months encompassing
Gachihata’s 2000-01 fiscal year. Commerce did not alter
the financial ratios used in the preliminary results. As a
result of those calculations, Commerce assigned QVD an
antidumping duty margin of 0.52%.

Commerce explained the differences between the pre-
liminary and final results in a decision memorandum. It
stated that it had attempted to locate new data relevant
to whole pangas fish pricing after the parties expressed
concerns about each of the potential data sources in the
record. The last-minute introduction of the FAO report
into the administrative record was the result of that
research effort. The decision memorandum went on to
explain that, while the FAO report might be deserving of
consideration in subsequent proceedings, it was not an
appropriate data source for the fourth administrative
review because of its late addition to the record and the
lack of time to assess the reliability of the information in
the report. Commerce highlighted the concerns raised by
CFA regarding the data in the report, “including the
timing of the data and supporting documentation.” The
agency concluded that “additional time is necessary for
both the interested parties and the Department to con-
sider the merits and detailed information contained
within the FAO report.”

Turning to the FY2006-07 Gachihata financial state-
ment, Commerce determined that the Gachihata Direc-
tors’ Report for that year “cast considerable doubt on the
reliability of using [that statement] as the basis for calcu-
lating a whole fish input surrogate value.” Commerce
raised several concerns about the data in the FY2006-07
statement and concluded that it was an unreliable source
for valuing whole pangas fish. Once the FY2006-07
7 QVD FOOD CO v. US

statement was deemed unreliable, Commerce determined
that the market price quoted in the FY2000-01 Gachihata
financial statement was the best available information in
the record to value whole pangas fish. Commerce’s deci-
sion to use the price in the FY2000-01 statement echoed
its decision to use that same price in the initial antidump-
ing duty determination and the first two administrative
reviews. Commerce had chosen to use the FY2006-07
Gachihata financial statement data for the third adminis-
trative review, but the Directors’ Report was not on file
for that review.

After the final results were announced, QVD alleged
that Commerce had committed “ministerial errors,”
including miscalculating the financial ratio for general
expenses ascribed to Vietnamese exporters. Specifically,
QVD argued that Commerce had double-counted certain
general expenses reported by the Bangladeshi surrogate
companies because QVD had reported those expenses
separately as sales expenses. Commerce refused to
change its financial ratio calculation because it did not
view QVD’s alleged errors as “ministerial” in nature.

Both QVD and CFA appealed Commerce’s final re-
sults to the Court of International Trade. QVD contested
Commerce’s determination as to the surrogate value of
whole pangas fish and the general expense ratio assigned
to QVD. In a preliminary order, the court determined
that it would not consider any argument by QVD that
referenced administrative proceedings after the final
results of the fourth administrative review, and it sus-
tained Commerce’s decision not to rely on the FAO report
with regard to the valuation of whole pangas fish. In a
subsequent opinion, the court sustained Commerce’s
valuation of whole pangas fish in its entirety. The court
agreed with Commerce that the Directors’ Report pre-
QVD FOOD CO v. US 8

sented a “very grim and unsettling picture of Gachihata’s
financial condition” in FY2006-07 and provided reason-
able grounds for Commerce to favor the FY2000-01
Gachihata financial statement data over the more con-
temporaneous data. The court found that Commerce had
made a reasonable choice given “imperfect alternatives.”
The court also agreed with Commerce that QVD’s chal-
lenge to the general expense ratio was “a substantive
challenge to Commerce’s assignment of certain expenses
to the surrogate ratio calculations” rather than a ministe-
rial error and therefore was raised too late.

II

On appeal, QVD argues that Commerce erred in
treating the FY2000-01 Gachihata financial statement as
the best available information for valuing whole pangas
fish in the fourth administrative review. QVD first con-
tends that Commerce improperly refused to consider the
FAO report, and that, had it been considered, the report
would have been the best available information in the
record. In the alternative, QVD argues that Commerce
should have used the market price from the FY2006-07
Gachihata financial statement instead of the price from
the FY2000-01 statement. Finally, QVD asserts that even
if Commerce permissibly used the FY2000-01 Gachihata
data, it should not have inflated the price of whole pangas
fish because the record suggested that the price of pangas
fish had fallen between FY2000-01 and the period of
review.

A

With respect to Commerce’s decision not to consider
the merits of the FAO report, QVD notes that the agency
did not identify any specific flaw in the FAO report and
9 QVD FOOD CO v. US

that Commerce found the report potentially useful enough
to be considered in future proceedings. QVD argues that
Commerce cannot refuse to consider information having
strong indicia of reliability simply because future investi-
gation might alter Commerce’s view about the quality of
that information.

Commerce responds that it was reasonable not to rely
on the FAO report to value whole pangas fish given the
time constraints on its decisional process. The statutory
deadline to issue final results was less than a week away
when the FAO report was placed in the record. Com-
merce argues that the concerns raised by CFA in its
comments were sufficient to call into question the reliabil-
ity of the report, and that without more time to assess
those comments, the agency reasonably decided to rely on
other data in the record for valuation purposes. Com-
merce further contends that its decision to use the FAO
report in a subsequent new shipper review is irrelevant to
the question whether its time-driven decision in the
fourth administrative review was reasonable.

We review Commerce’s antidumping determinations
for substantial evidence. 19 U.S.C. § 1516a(b)(1)(B)(i).
Our inquiry “takes into account the entire record, which
includes evidence that supports and detracts from the
conclusion reached.” Sango Int’l L.P. v. United States,
567 F.3d 1356, 1362 (Fed. Cir. 2009). However, Com-
merce has broad discretion to determine the best avail-
able information for an antidumping review, given that
the term “best available information” is not defined by
statute. Ad Hoc Shrimp Trade Action Comm. v. United
States, 618 F.3d 1316, 1322 (Fed. Cir. 2010); see Nation
Ford Chem. Co. v. United States, 166 F.3d 1373, 1377
(Fed. Cir. 1999) (Commerce is afforded “wide discretion”
to value factors of production in nonmarket economies).
QVD FOOD CO v. US 10

We hold that Commerce did not abuse its discretion by
declining to use the FAO report to value whole pangas
fish in the fourth administrative review.

QVD and CFA timely filed several pieces of informa-
tion with Commerce both before and after the publication
of the preliminary results, and both parties discussed the
appropriate source for valuing whole pangas fish in briefs
and at an agency hearing. Most of the submitted infor-
mation had already been considered in the previous
administrative review, where Commerce had the benefit
of extensive comments by the parties to this case. In
earlier reviews, Commerce had been comfortable using
certain of Gachihata’s financial statements as the best
available information for valuing whole pangas fish.
Those sources were well vetted.

However, at a hearing two weeks before the final re-
sults were due, interested parties continued to raise
concerns about the contemporaneity of the FY2000-01
statement and the overall reliability of the FY2006-07
statement. In hopes of addressing those concerns, Com-
merce undertook a final effort to find other sources of
potentially reliable information. That effort produced the
FAO report, which Commerce introduced into the record a
week before the final results were due. Unsure whether
that data source was reliable, Commerce invited com-
ments by interested parties within two days. The agency
promptly received comments from CFA complaining of
flaws in the report’s methodology. Given virtually no
time to digest the adverse comments from CFA, Com-
merce chose not to rely on the FAO report in light of the
well-vetted data from the FY2000-01 Gachihata financial
statement.
11 QVD FOOD CO v. US

In conducting an administrative review, Commerce
must consider all information timely filed by interested
parties, 19 C.F.R. § 351.301(c)(3)(ii), and it must provide
all parties with an opportunity to comment on that infor-
mation, 19 U.S.C. § 1677m(g). The agency also must give
parties an opportunity to submit case briefs and rebuttal
briefs addressing any information submitted, 19 C.F.R.
§ 351.309, and it must hold a hearing when requested, 19
U.S.C. § 1675(e); 19 C.F.R. § 351.310(d)(1). While Com-
merce may not have been legally required to solicit com-
ments from interested parties on information that the
agency itself placed on the record, it was permissible for
Commerce to decline to rely on that information given the
agency’s lack of a full opportunity to assess the reliability
of that evidence in light of the parties’ comments.

Moreover, QVD is in an awkward position to argue
that Commerce abused its discretion by not relying on
evidence that QVD itself failed to introduce into the
record. The FAO report is dated 2007. There is no sug-
gestion that the report was not publicly available in late
2008, when Commerce invited QVD and other interested
parties to submit relevant factual information for valuing
factors of production. Although Commerce has authority
to place documents in the administrative record that it
deems relevant, “the burden of creating an adequate
record lies with [interested parties] and not with Com-
merce.” Tianjin Mach. Imp. & Exp. Corp. v. United
States, 806 F. Supp. 1008, 1015 (Ct. Int’l Trade 1992); see
NTN Bearing Corp. of Am. v. United States, 997 F.2d
1453, 1458-59 (Fed. Cir. 1993). QVD clearly would not be
in a position to contest Commerce’s refusal to consider the
FAO report had QVD itself attempted to introduce it into
the record a week before the deadline for final results.
See 19 C.F.R. § 351.302(d) (stating that Commerce will
not consider untimely filed materials); see also id.
QVD FOOD CO v. US 12

§ 351.104(a)(2). QVD’s argument therefore turns on the
fact that it was Commerce, not QVD, that placed the FAO
report in the record in the first instance. But because
Commerce could have declined to place the report in the
record due to concerns about the short time available to
assess the report’s reliability, we see no unfairness or
impropriety in Commerce’s decision to submit the report
into the record for the parties’ comments and then, based
on those same concerns, to decide not to rely on the re-
port. In this setting, the difference between deciding not
to place the report in the record and deciding not to rely
on it after placing it in the record is a technical distinction
that should not be given dispositive weight.

QVD points out that in a new shipper review con-
cluded in June 2009, Commerce found the FAO study to
be a more reliable data source for whole pangas pricing
than the FY2000-01 Gachihata financial statement.
Judicial review of antidumping duty administrative
proceedings is normally limited to the record before the
agency in the particular review proceeding at issue and
does not extend to subsequent proceedings. 19 U.S.C.
§ 1516a(b)(2)(A) (defining scope of record for review in
proceedings before the Court of International Trade); see
S. Rep. No. 96-249, at 247-48 (1979) (judicial review of
antidumping proceedings is based on “information before
the relevant decision-maker at the time the decision was
rendered”); see also Co-Steel Raritan, Inc. v. Int’l Trade
Comm’n, 357 F.3d 1294, 1316-17 (Fed. Cir. 2004) (holding
it improper for the Court of International Trade to con-
sider Commerce’s actions in subsequent antidumping
proceeding). In any case, even if we were to consider the
later proceeding, it would not alter our conclusion that
Commerce’s decision not to rely on the FAO report in the
fourth administrative review was supported by substan-
tial evidence.
13 QVD FOOD CO v. US

For the final results of the subsequent new shipper
review, Commerce chose to rely on the FAO report to
value whole pangas fish. In its decision in that review,
Commerce emphasized that the parties had ample time to
submit comments on the FAO report and that the agency
had fully considered all the comments. In contrast to the
fourth administrative review, interested parties were
given several weeks to submit comments, case briefs, and
rebuttal addressing the FAO report. Commerce’s decision
to use the FAO report as the best available information
for the subsequent new shipper review was based on all
the record evidence in that proceeding, which included
those comments and arguments regarding the integrity
and relevance of the FAO data. The fact that Commerce
later determined, after more than three months of study,
that the FAO report provided better information than the
FY2000-01 Gachihata financial statement does not un-
dermine Commerce’s decision not to rely on that report in
the fourth administrative review, when Commerce had
only a week to consider it.

B

Apart from the exclusion of the FAO report, QVD ar-
gues that Commerce’s decision to rely on the FY2000-01
Gachihata financial statement rather than on the more
contemporaneous FY2006-07 statement was not sup-
ported by substantial evidence. QVD asserts that Com-
merce’s reasons for rejecting the FY2006-07 statement are
not rationally related to the whole pangas fish price
quoted in that statement. In response, Commerce points
out that new evidence justified its decision to conduct a
reevaluation of the data in the FY2006-07 statement and
ultimately to reject that statement as a source of surro-
gate valuation information.
QVD FOOD CO v. US 14

We agree with the Court of International Trade that
it was reasonable for Commerce to reexamine the
FY2006-07 financial statement in its entirety in light of
the Gachihata Directors’ Report for that year, which made
clear that Gachihata was in serious financial trouble
during that period. For example, Gachihata’s sales of
pangas fish were listed as 115.5 metric tons in FY2000-01
but only 6.0 metric tons in FY2006-07, a drop of nearly 95
percent. The Directors’ Report described the company as
in “crisis” and in “dire need of fund[s] to restart its pro-
duction” at the close of FY2006-07. The Report further
noted that the company “suffered heavily due to op-
erati[ng] loss[es].” Gachihata’s situation was so bleak
that the Board of Directors offered to resign for the good
of the company. As the Court of International Trade
pointed out, in light of those facts Commerce might have
found it difficult to defend the reasonableness of relying
on the FY2006-07 statement.

In the memorandum explaining its decision, Com-
merce raised specific concerns with the FY2006-07 Gachi-
hata financial statement as to (1) the continued
deterioration of Gachihata’s financial condition; (2) the
Bangladeshi government’s refusal to provide financial
assistance to the company; (3) Gachihata’s default on
bank loans because of cash flow problems; (4) penalties
imposed on the company’s directors by the Bangladeshi
Securities and Exchange Commission; and (5) all-time
lows in Gachihata’s production due to capital shortages
and operating losses. QVD argues that those circum-
stances do not directly affect the market price for pangas
fish quoted in the report, and that Gachihata’s pangas
production in FY2000-01 was also well below capacity
levels. However, Commerce’s decision not to rely on
Gachihata’s FY2006-07 financial statement was not based
on any direct connection between Gachihata’s financial
15 QVD FOOD CO v. US

situation and the pangas fish prices reported in that
statement. Rather, Commerce determined that the
company’s problems, taken together, undermined the
reliability of the data in the FY2006-07 statement gener-
ally. We sustain Commerce’s decision in that regard; in
so doing, we agree with the trial court’s conclusion that
Commerce reasonably reached a different conclusion in
different administrative reviews “when confronted with
an evolving administrative record, after wrestling with
competing considerations of contemporaneity on the one
hand, and quality and reliability on the other.”

QVD argues that a 2007 report from Gachihata’s
auditors allays any concern that the whole pangas price
quoted in the FY2006-07 financial statement was inaccu-
rate. The auditors’ report states that Gachihata main-
tained proper books and that the company’s balance sheet
and income statement were in agreement with account
books. Those statements, however, do not necessarily
dispel doubts about the reliability of financial statements
generated by a company on the verge of financial collapse.
QVD also cites to a document entitled “Notes to the
Accounts” for FY2006-07. That document states that
“[t]he amount of revenue was fixed at fair value” and
“[t]he quantity of goods delivered were measured relia-
bly.” QVD’s position appears to be that Commerce should
have trusted the amounts quoted in the FY2006-07
statement because Gachihata stated that its accounting
was accurate. However, there does not appear to be any
reason for Commerce to have placed more trust in the
“Notes to the Accounts” document than the FY2006-07
financial statement itself.
QVD FOOD CO v. US 16

C

Finally, QVD contends that Commerce should not
have inflated the whole pangas fish price from 68 Tk/kg to
98 Tk/kg, because other information in the record sug-
gested that the price had dropped in absolute terms
between FY2000-01 and the period of review. In addition
to the FAO report and Gachihata’s FY2006-07 financial
statement, discussed above, that information consisted of
Gachihata’s financial statements from FY2001-02,
FY2002-03, and FY2003-04; a 2004 study by the Asian
Development Bank (“ADB study”); and a 2007 price quote
from Bangladesh Catfish Ltd. (“BCL quote”).

Commerce found each of those sources of information
less reliable than the FY2000-01 Gachihata financial
statement. We have already discussed the FAO report
and Gachihata’s FY2006-07 financial statement. QVD
contends that even if the FAO report and the FY2006-07
Gachihata financial statement are not the best available
information for valuing whole pangas fish, those sources
should have been considered when Commerce determined
whether to inflate the value from the FY2000-01 state-
ment. The problem with QVD’s position is that Com-
merce not only found that those sources were not the best
available information but also that it would be inappro-
priate to rely on them at all in the fourth administrative
review for whole pangas fish pricing data. Because that
determination was based on substantial evidence, Com-
merce was not required to consider those sources in
deciding whether to inflate the value from the FY2000-01
statement.

With respect to Gachihata’s financial statements from
FY2001-02, FY2002-03, and FY2003-04, Commerce had
found those statements unreliable in previous adminis-
17 QVD FOOD CO v. US

trative reviews because the independent auditor’s notes to
those statements called into question Gachihata’s internal
control procedures and valuation of assets. Commerce
determined that the auditor’s notes were sufficient to cast
reasonable doubt on the reliability and accuracy of the
overall statements. QVD did not challenge those findings
of unreliability in the fourth administrative review.
Instead, in its rebuttal brief before Commerce, QVD used
the absence of the same comments by the auditor to
support its argument for the reliability of the FY2006-07
statement.

In the third administrative review, Commerce refused
to rely on the BCL price quote because the record con-
tained no information about how or when that quote was
obtained or whether the company that supplied the quote
produced pangas fish in commercial volumes. QVD does
not suggest that any of those problems were remedied
when it resubmitted the same price quote for the record of
the fourth administrative review. Similarly, Commerce
declined to rely on the ADB study in the second and third
administrative reviews because that study did not provide
a market price reflecting actual pangas fish transactions
and because there was no evidence of the timeframe of the
survey that led to the price quoted in the study. QVD did
not place additional information in the record in the
fourth administrative review that would have prompted
Commerce to reconsider the reliability of the ADB study.

The dissent reproduces a table from QVD’s brief that
contains each of the potential sources for pangas fish
prices placed in the record. The dissent argues that the
inflation-adjusted price of 98 Tk/kg is unreasonable
because it is outside the range of prices in those data
sources. As we have discussed, however, Commerce had
reasonable grounds for not relying on any of those data
QVD FOOD CO v. US 18

sources other than the FY2000-01 Gachihata financial
statement to value pangas fish. Two of the sources listed
in the table (the FAO study and the FY2006-07 Gachihata
financial statement) are sources that we have already
examined in detail. As for the remaining sources, Com-
merce did not consider any of those sources for reasons
that it explained in previous administrative reviews, and
QVD has not challenged those explanations in this pro-
ceeding.

In sum, QVD has not come forward with any evidence
that undermines Commerce’s findings that all of the
possible data sources in the record for pricing whole
pangas fish, with the exception of the FY2000-01 Gachi-
hata financial statement, were not reliable sources to use
in the fourth administrative review. This was not a
situation in which Commerce ignored several reliable
sources in making its determination. Commerce had
substantial evidentiary support for its finding that only
the FY2000-01 statement was reliable enough to serve as
the basis for valuing whole pangas fish in the fourth
administrative review. Having selected the data from
FY2000-01, Commerce reasonably chose to inflate that
value using a standard methodology that QVD has not
challenged. We therefore agree with the Court of Interna-
tional Trade that Commerce’s valuation of whole pangas
fish is supported by substantial evidence.

III

QVD also appeals from the trial court’s rejection of its
challenge to Commerce’s financial ratio calculations.
QVD notes that Commerce’s regulations prohibit double-
counting of adjustments made to normal value in anti-
dumping proceedings, and it contends that its objection to
that double-counting should have been sustained as a
19 QVD FOOD CO v. US

“ministerial error” even though QVD did not raise that
issue until after the final results were announced. Al-
though Commerce refused to address the double-counting
claim on the ground that it was not a “ministerial error”
and therefore could not be raised after the final results
were announced, QVD argues that the error is cognizable
as a “ministerial error” and should be corrected.

The term “ministerial error” is defined to mean “er-
rors in addition, subtraction, or other arithmetic function,
clerical errors resulting from inaccurate copying, duplica-
tion, or the like, and any other type of unintentional error
which the administering authority considers ministerial.”
19 U.S.C. § 1675(h); see 19 C.F.R. § 351.224(f). Commerce
concluded that “QVD’s arguments with respect to [the
general expense ratio] are methodological in nature
because QVD essentially disagrees with the Department’s
assignment of certain expenses to the calculation of the
. . . ratio.” The trial court viewed that statement as clear
evidence that Commerce had intended to characterize the
disputed expenses as “general expenses.” We agree.
QVD’s argument is not that Commerce inadvertently
included certain items in its list of general expenses, but
that Commerce was wrong to think that it could do so.
Because the error alleged by QVD is not an arithmetic or
clerical error or similar inadvertent mistake, it does not
fall within the statutory definition of “ministerial error.”

Even if the error alleged by QVD were ministerial in
nature, Commerce’s failure to correct it would not consti-
tute an abuse of discretion because QVD did not raise the
issue in a timely fashion. In Dorbest Ltd. v. United
States, we held that a ministerial error made by Com-
merce that was reflected in its preliminary antidumping
duty determination need not be corrected when no inter-
ested party pointed out the error in a timely manner. 604
QVD FOOD CO v. US 20

F.3d at 1376-77. In the present case, any alleged error in
Commerce’s calculation of the general expense ratio in the
final results was necessarily present in the preliminary
results, because Commerce made no change to the finan-
cial ratio calculations. Commerce’s regulations specify
the procedure by which ministerial errors in the prelimi-
nary results of antidumping duty administrative reviews
may be challenged. Commerce discloses any calculations
made in the preliminary results to interested parties, 19
C.F.R. § 351.224(b), and interested parties must point out
any ministerial errors in their case briefs, id.
§ 351.224(c)(1); see also id. § 351.309(c)(2) (“The case brief
must present all arguments that continue in the submit-
ter’s view to be relevant to the Secretary’s final determi-
nation or final results . . . .”). In its case brief following
the preliminary results, QVD alleged certain ministerial
errors, but it failed to allege any error concerning finan-
cial ratios. Commerce’s refusal to make a ministerial
correction is not reversible error when the alleged mis-
take was discoverable during earlier proceedings but was
not pointed out to Commerce during the time period
specified by regulation. Dorbest, 604 F.3d at 1377. For
that reason as well, we conclude that the trial court
properly rejected QVD’s challenge to the financial ratio
calculations.

AFFIRMED
 United States Court of Appeals
for the Federal Circuit
__________________________

QVD FOOD CO., LTD.,
Plaintiff-Appellant,

v.
UNITED STATES,
Defendant-Appellee,

and
CATFISH FARMERS OF AMERICA, AMERICA'S
CATCH, COUNTRY SELECT CATFISH, DELTA
PRIDE CATFISH, INC.,HARVEST SELECT
CATFISH, INC., HEARTLAND CATFISH COMPANY,
PRIDE OF THE POND, AND SIMMONS FARM
RAISED CATFISH, INC.,
Defendants.
__________________________

2010-1541
__________________________

Appeal from the United States Court of International
Trade in Consolidated Case Nos. 09-CV-0157 and 09-CV-
0158, Judge Leo M. Gordon.
__________________________

NEWMAN, Circuit Judge, dissenting.

I respectfully dissent from the court’s endorsement of
Commerce’s methodology. While any reasonable valuation
QVD FOOD CO v. US 2

methodology may be supported, one that is blatantly unrea-
sonable warrants judicial alteration, not automatic affir-
mance. Commerce selected the Gachihata 2000/2001
pangas sales price of 68 takas per kilogram, adjusted to 98
takas for inflation, as the surrogate fair value for pangas
whole fish for the period covered by the fourth administra-
tive review, from August 1, 2006 to July 31, 2007. Not only
is the 2000/2001 figure devoid of any evidentiary support as
the 2006/2007 value, even by inference, but unchallenged
evidence shows that it is conspicuously outside of any rea-
sonable range of the actual value for the period of review.

Commerce selected the nation of Bangladesh, and the
Bangladesh company Gachihata Aquaculture Farms, Ltd.,
as the surrogate for determining the fair sales value of
pangas fish in Vietnam. There was no contradiction to the
record that Gachihata had not sold pangas fish at 68 takas
since 2001. For the third administrative review of the QVD
dumping order, for the period August 1, 2005 to July 31,
2006, Commerce had used the Gachihata value of 45 takas
for FY 2006/2007. Now, for the fourth administrative
review, Commerce used the 2000/2001 price of 68 takas,
which Commerce inflated to 98 takas. The following table,
from QVD’s brief, summarizes the pangas prices in the
Commerce record:
3 QVD FOOD CO v. US

QVD Br. 10.

Even if Commerce were now concerned about the fidel-
ity of the Gachihata data, for the government states that
Gachihata was subject to economic difficulties, the record
contains no support for selecting Gachihata’s 2000/2001
sales price to measure market value in 2007. QVD proposes
that at least two other values are more reasonable than the
2000/2001 value selected by Commerce. QVD points to the
value of 45 takas from the 2006/2007 financial statement of
Gachihata as used by Commerce in its third administrative
review; or the 2007 FAO Study (the United Nations Food
and Agriculture Organization) at 42 takas. The FAO Study,
entitled “Economics of Aquaculture Feeding Practices in
Selected Asian Countries,” contains a section on farming
pangasius in Bangladesh that states that the farmgate price
was approximately 42 takas, derived from research of sixty
separate fish farms. Commerce’s belated rejection of the
FAO Study is not credibly explained, for Commerce had
placed it in the record and invited and received commentary
from all concerned. 1 QVD also points to the 2004 ADB
(Asian Development Bank) study reporting the price of 55
takas. Instead, Commerce not only selected the most out-
dated value in the record, but inflated that value by an
additional 44%, despite the evidence of steady price decline
since 2001.

1 The FAO Study was credited by Commerce in other
cases. On June 22, 2009, about three months after issuance
of these Final Results, Commerce relied on this FAO study
in Certain Frozen Fish Fillets from the Socialist Republic of
Vietnam: Final Results of the Third New Shipper Reviews,
74 Fed. Reg. 29,473 (June 22, 2009). Commerce extolled the
quality and reliability of the FAO Study. Decision Mem.
(June 15, 2009), at Cmt. 3.
QVD FOOD CO v. US 4

Substantial evidence does not support 98 takas as the
surrogate fair value for the fourth administrative review of
imported pangas whole fish. From my colleagues’ endorse-
ment of this inappropriate process, I respectfully dissent.