Slip Op. 10-101 

UNITED STATES COURT OF INTERNATIONAL TRADE 

Before: Leo M. Gordon, Judge 

Consol. Court No. 09-00157 

[Administrative review results sustained.] 

Dated: September 1, 2010

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Mark E. Pardo, Andrew

T. Schutz) for Plaintiff QVD Food Co., Ltd. 

Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Franklin 

E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice (Richard P. Schroeder); and Office of the Chief Counsel for 

Import Administration, U.S. Department of Commerce (David W. Richardson), of 

counsel, for Defendant United States. 

Akin, Gump, Strauss, Hauer & Feld, LLP (Valerie A. Slater, Jarrod M. Goldfeder, 

Nicole M. D’Avanzo, Natalya D. Dobrowolsky) for Defendant-Intervenors Catfish 

Farmers of America, America's Catch, Consolidated Catfish Companies, LLC, d/b/a 

Country Select Fish, Delta Pride Catfish Inc., Harvest Select Catfish Inc., Heartland 

Catfish Company, Pride of the Pond, Simmons Farm Raised Catfish, Inc., and Southern 

Pride Catfish Company, LLC. 

 

OPINION 

Gordon, Judge: This consolidated action involves an administrative review 

conducted by the U.S. Department of Commerce (“Commerce”) of the antidumping duty 

order covering certain frozen fish fillets from the Socialist Republic of Vietnam. See

Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 74 Fed. Reg. 11,349 

(Dep’t of Commerce Mar. 17, 2009) (final results admin. review), as amended, Certain 

QVD FOOD CO., LTD., 

 Plaintiff, 

 v. 

UNITED STATES, 

 Defendant. 
Consol. Court No. 09-00157 Page 2 

Frozen Fish Fillets from the Socialist Republic of Vietnam, 74 Fed. Reg. 17,816 (Dep't 

of Commerce Apr. 17, 2009) (amend. final results admin. review) (“Final Results”); see 

also Issues and Decision Memorandum for Certain Frozen Fish Fillets from the Socialist 

Republic of Vietnam, A-552-801 (Mar. 9, 2009), available at 

http://ia.ita.doc.gov/frn/summary/vietnam/E9-5744-1.pdf (last visited Sept. 1, 2010) 

(“Decision Memorandum”). 

Before the court are motions for judgment on the agency record filed by QVD 

Food Co., Ltd. (“QVD”), and Catfish Farmers of America, and individual U.S. catfish 

processors, America's Catch, Consolidated Catfish Companies, LLC, d/b/a Country 

Select Fish, Delta Pride Catfish Inc., Harvest Select Catfish Inc., Heartland Catfish 

Company, Pride of the Pond, Simmons Farm Raised Catfish, Inc., and Southern Pride 

Catfish Company, LLC (collectively “Catfish Farmers”). The court has jurisdiction 

pursuant to Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. 

§ 1516a(a)(2)(B)(iii) (2006),1 and 28 U.S.C. § 1581(c) (2006). 

After the opening briefs were submitted, but before response briefs were filed, 

the court ruled on several issues to help expedite the disposition of the action by 

narrowing the focus of the litigation to issues that the court believed had sufficient merit 

to warrant a response from the Defendant. See QVD Food Co. v. United States, No. 

09-00157 (USCIT Feb. 16, 2010) (order). This opinion addresses the remaining issues, 

which include: (1) QVD’s challenge to Commerce’s surrogate value selection of a 

 

1 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of 

Title 19 of the U.S. Code, 2006 edition.
Consol. Court No. 09-00157 Page 3 

Bangladeshi fish producer’s 2000-2001 financial statement to value whole live fish 

rather than the same producer’s 2006-2007 financial statements; (2) Catfish Farmers’ 

challenge to Commerce’s surrogate value selection of Indonesian data for broken fish 

fillets rather than Bangladeshi data; (3) QVD’s challenge to Commerce’s handling of 

QVD’s freight expenses on a net weight basis, which differed from prior reviews in 

which Commerce used QVD’s reported gross weight; and (4) QVD’s challenge to 

Commerce’s alleged failure to make ministerial error corrections. 

I. Standard of Review 

For administrative reviews of antidumping duty orders, the court sustains 

determinations, findings, or conclusions of the U.S. Department of Commerce 

(“Commerce”) unless they are “unsupported by substantial evidence on the record, or 

otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, 

when reviewing agency determinations, findings, or conclusions for substantial 

evidence, the court assesses whether the agency action is reasonable given the record 

as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 

2006). Substantial evidence has been described as “such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.” Dupont Teijin 

Films USA v. United States, 407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence has also been 

described as “something less than the weight of the evidence, and the possibility of 

drawing two inconsistent conclusions from the evidence does not prevent an 

administrative agency's finding from being supported by substantial evidence.” Consolo 
Consol. Court No. 09-00157 Page 4 

v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966). Fundamentally, though, “substantial 

evidence” is best understood as a word formula connoting reasonableness review. 

3 Charles H. Koch, Jr., Administrative Law and Practice § 10.3[1] (2d. ed. 2009). 

Therefore, when addressing a substantial evidence issue raised by a party, the court 

analyzes whether the challenged agency action “was reasonable given the 

circumstances presented by the whole record.” Edward D. Re, Bernard J. Babb, and 

Susan M. Koplin, 8 West’s Fed. Forms, National Courts § 13342 (2d ed. 2009). 

Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural 

Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984), governs judicial review of 

Commerce's interpretation of the antidumping statute. Dupont Teijin Films USA, LP v. 

United States, 407 F.3d 1211, 1215 (Fed. Cir. 2005); Agro Dutch Indus. Ltd. v. United 

States, 508 F.3d 1024, 1030 (Fed. Cir. 2007). “[S]tatutory interpretations articulated by 

Commerce during its antidumping proceedings are entitled to judicial deference under 

Chevron.” Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1382 (Fed. 

Cir. 2001); see also Wheatland Tube Co. v. United States, 495 F.3d 1355, 1359 (Fed. 

Cir. 2007) (“[W]e determine whether Commerce's statutory interpretation is entitled to 

deference pursuant to Chevron.”). 

II. Discussion 

A. Surrogate Value Selection 

When valuing the factors of production in a nonmarket economy proceeding, 

Commerce must use the “best available information” in selecting surrogate data from 

“one or more” surrogate market economy countries. 19 U.S.C. § 1677b(c)(1), (4). 
Consol. Court No. 09-00157 Page 5 

Commerce's regulations provide that surrogate values should “normally” be publicly 

available and (other than labor costs) from a single surrogate country. 19 C.F.R. 

§ 351.408(c) (2007). When making its surrogate value selections (and when comparing 

and contrasting various data sets), Commerce considers “the quality, specificity, and 

contemporaneity of the available values.” Certain Frozen Fish Fillets from the Socialist 

Republic of Vietnam, 73 Fed. Reg. 52,015, 52,020 (Dep’t of Commerce Sept. 8, 2008) 

(prelim. results admin. review) (“Preliminary Results”). Commerce prefers data that 

reflects a broad market average, is publicly available, contemporaneous with the period 

of review, specific to the input in question, and exclusive of taxes on exports. Certain 

Pneumatic Off-the-Road Tires from the People’s Republic of China, 73 Fed. Reg. 

40,485 (Dep’t of Commerce July 15, 2008) (final LTFV determ.) and accompanying 

Issues and Decision Memorandum for Certain Pneumatic Off-the-Road Tires from the 

People’s Republic of China, A-570-912 (July 7, 2008), cmt. 10 at 26, available at 

http://ia.ita.doc.gov/frn/summary/PRC/E8-16156-1.pdf (last visited Sept. 1, 2010). 

When reviewing substantial evidence issues involving Commerce’s selection of 

the best available surrogate values, the court evaluates “whether a reasonable mind 

could conclude that Commerce chose the best available information.” Goldlink Indus. 

Co. v. United States, 30 CIT 616, 619, 431 F. Supp. 2d, 1323, 1327 (2006); see 

also CITIC Trading Co. v. United States, 27 CIT 356, 366 (2003) (“while the standard of 

review precludes the court from determining whether [Commerce’s] choice of surrogate 

values was the best available on an absolute scale, the court may determine the 

reasonableness of Commerce's selection of surrogate prices.”). 
Consol. Court No. 09-00157 Page 6 

1. Whole Live Fish 

 In the Preliminary Results Commerce used the 2006-2007 financial statements of 

Bangladeshi fish producer, Gachihata Aquaculture Farms, Ltd. (“Gachihata”), to set a 

surrogate value of 45 takas per kilogram for whole live pangas fish (a primary input for 

the subject merchandise). Prelim. Surr. Val. Mem. at 4, PD 106.2

 Commerce followed 

this same approach in the immediately preceding administrative review. See Certain

Frozen Fish Fillets from the Socialist Republic of Vietnam, 73 Fed. Reg. 15,479 (Dep't 

of Commerce Mar. 24, 2008) (final results admin. review), as amended, 73 Fed. Reg. 

47,885 (Dep't of Commerce Aug. 15, 2008) (“Third Administrative Review”) and 

accompanying Issues and Decision Memorandum for Certain Frozen Fish Fillets from 

the Socialist Republic of Vietnam, A-552-801 (Mar. 17, 2008), cmt. 4 at 10-14, available 

at http://ia.ita.doc.gov/frn/summary/vietnam/E8-5889-1.pdf (last visited Sept. 1, 2010) 

(“Third Review Decision Memorandum”). 

 For the Final Results Commerce changed course and used Gachihata’s 2000-

2001 financial statements to derive the surrogate value for whole live fish (inflating the 

2000-2001 prices to the period of review), ultimately valuing whole live fish at 97.89 

takas per kilogram. Final Surr. Val. Mem. at 2, PD 137. QVD challenges this surrogate 

value choice, arguing that the best available information to value whole live fish was the 

pricing information contained in the more contemporaneous 2006-2007 Gachihata 

financial statement that Commerce used in the Third Administrative Review. In 

selecting the 2000-2001 financial statements, Commerce explained: 

 

2 “PD__” refers to a document contained in the public administrative record. 
Consol. Court No. 09-00157 Page 7 

From the less-than-fair-value (“LTFV”) investigation through the 

preliminary results of the third administrative review, the Department 

valued the whole fish input based on the sales value contained within the 

2000-2001 Gachihata financial statements. In the final results of the third 

administrative review, the Department had both 2000-2001 and the 2006-

2007 Gachihata financial statements on the record and relied on price[s] 

from the 2006-2007 Gachihata financial statements to value the whole fish 

input. In the final results of this second new shipper and fourth 

administrative reviews, we have the same two financial statements on the 

record. However, the record of the instant review also contains the 

Director’s Report for the 2006-2007 Gachihata financial statement in 

addition to pangas fish pricing information from a paper submitted to the 

United Nations Food and Agriculture Organization (“FAO”) regarding the 

economics of aquaculture in Bangladesh. For these final results, we have 

determined that the Gachihata 2000-2001 financial statement is the most 

appropriate basis for calculating the whole fish input surrogate value. 

Section 773(c)(1)(B) of the Act directs the Department to use “the best 

available information” from the appropriate market-economy country to 

value FOPs. In selecting the most appropriate surrogate values, the 

Department considers several factors including whether the surrogate 

value is: publicly available, contemporaneous with the POR, represents a 

broad market average, chosen from an approved surrogate country, are 

tax and duty-exclusive, and specific to the input. The Department’s 

preference is to satisfy the breadth of the aforementioned selection 

criteria. However, where all the criteria cannot be satisfied, the 

Department will choose a surrogate value based on the best available 

information on the record. 

On February 3 and 10, 2009, the Department received the parties’ case 

and rebuttal briefs, respectively, and on February 25, 2009, the 

Department held public and closed hearings for the administrative and 

new shipper reviews. In the briefs and during the hearings, parties 

presented their concerns with using the 2000-2001 and the 2006-2007 

Gachihata financial statements as the basis for calculating the whole fish 

input surrogate value. Based on those presentations, the Department 

found it appropriate to make one final research effort for other potential 

whole fish surrogate values. On March 3, 2009, the Department placed on 

the record of this review pangas fish pricing information from a paper 

submitted to the United Nations FAO regarding the economics of 

aquaculture in Bangladesh. 

 
Consol. Court No. 09-00157 Page 8 

However, after considering the parties’ March 5 comments on this new 

data, we agree with Petitioners that additional time is necessary for both 

the interested parties and the Department to consider the merits and 

detailed information contained within the FAO report. Specifically, while 

QVD argues that the FAO study is a high quality report that satisfies the 

Department’s criteria for finding the best information available, Petitioners 

raise several questions regarding the report, including the timing of the 

data and supporting documentation. Therefore, we do not find it 

appropriate to use the FAO report to calculate the whole fish input 

surrogate value in these reviews. Notwithstanding this, we find that the 

data contained within the FAO report is deserving of consideration in 

future proceedings where the Department and interested parties have 

sufficient time to fully consider the data gathering methods, pricing 

information, etc. As such, we intend to place the FAO information on the 

record of future and on-going proceedings so that it can be fully 

considered as a potential basis for calculating the whole fish surrogate 

value in those segments. 

We agree with Petitioners that the 2006-2007 Gachihata financial 

statements, in particular the Director’s Report, illustrate numerous 

financial concerns that, when taken together, cast considerable doubt on 

the reliability of using it as the basis for calculating a whole fish input 

surrogate value (e.g., (a) the financial condition of the company had 

continued to deteriorate from prior years, (b) the Bangladeshi Government 

refused to provide financial assistance to overcome the company’s losses 

despite Gachihata’s pleas, (c) the company defaulted on bank loans due 

to cash flow, (d) the Bangladeshi SEC imposed penalties on the company 

directors for securities violations, (e) production of the company was at alltime lows because of shortage in working capital and operating losses). 

Therefore, based on the concerns discussed above with the paper 

submitted to the United Nations FAO that the Department has had 

insufficient time to consider and concerns regarding the 2006-2007 

Gachihata financial statements, we find that the 2000-2001 Gachihata 

financial statement is the best available information on the record of this 

review for calculating the whole fish surrogate value. While both financial 

statements are publicly available and specific to the input in question, the 

2000-2001 financial statement contains more reliable pricing data. 

Although less contemporaneous that the 2006-2007 financial statement, 

consistent with our practice, we will inflate the value to the POR. 

Decision Memorandum at 9-10. 
Consol. Court No. 09-00157 Page 9 

 QVD challenges Commerce’s choice of the surrogate data for whole live fish as 

unreasonable given the available record information, arguing that the best available 

information for this surrogate is not the 2000-2001 inflated data, but the more 

contemporaneous 2006-2007 data. More specifically, QVD argues: 

The record evidence in the instant case demonstrates that the price of 

whole pangasius fish in Bangladesh steadily declined for the six years 

between 2001 and 2007, as reflected by the whole fish price contained in 

the Gachihata financial statements for this period: 

2000/2001: 68 takas/Kg. 

2001/2002: 50 takas/Kg. 

2002/2003: 49.7 takas/Kg. 

2003/2004: 48 takas/Kg. 

2006/2007: 45 takas/Kg. 

QVD’s Br. in Supp. of Pl.’s R. 56.2 Mot. for J. on Agency Rec. at 12 (“QVD Br.”). The 

problem with this argument is that it does not fairly or accurately portray the record 

evidence for whole live fish that Commerce had to choose from during the 

administrative review. QVD’s argument ignores Commerce’s previous determination 

that the whole live fish data in Gachihata’s 2001-2002, 2002-2003, and 2003-2004 

financial statements were unreliable because “the independent auditor’s notes in those 

statements called into question Gachihata’s internal control procedures and valuation of 

biological assets.” Third Review Decision Memorandum at 13; see also Certain Frozen 

Fish Fillets from the Socialist Republic of Vietman, 71 Fed. Reg. 14,170 (Dep’t of 

Commerce Mar. 21, 2006) (final results of first admin. review) and accompanying Issues 

and Decision Memorandum for the 1st Administrative Review of Certain Frozen Fish 
Consol. Court No. 09-00157 Page 10 

Fillets from the Socialist Republic of Vietnam, A-552-801 (Mar. 13, 2006), cmt. 3A at 13-

14, available at http://ia.ita.doc.gov/frn/summary/vietnam/E6-4070-1.pdf (last visited 

Sept. 1, 2010) (finding unreliable Gachihata’s 2002-2003, 2003-2004 financial 

statements). 

 Nobody argued that Commerce should use the 2001-2002, 2002-2003, 2003-

2004 data. It was understood to be unreliable. These considerations alter QVD’s 

pricing table: 

2000/2001: 68 takas/Kg. 

2006/2007: 45 takas/Kg. 

Commerce’s analysis focused on the two relevant options: the 2000-2001 and 2006-

2007 data. The 2000-2001 was reliable, but not contemporaneous. The 2006-2007 

data was contemporaneous and had been used in the immediately prior review, but new 

record information, the Director’s Report, cast a pall on the overall reliability of the 2006-

2007 financial statements. Once Commerce determined that the 2006-2007 Gachihata 

financial statement was too unreliable from which to draw data, Commerce was left with 

the 2000-2001 data. 

QVD argues that Commerce wrongly focused on Gachihata’s poor financial 

condition, which QVD maintains is irrelevant to the price of pangas because of an 

auditor’s statement that the company’s books (and product sales) were market-based. 

QVD Br. 18. This is a fair observation. The 2001-2002, 2002-2003, and 2003-2004 

financial statements were rejected because they contained a caveat about suspect 

internal control procedures and valuation of biological assets. The 2006-2007 
Consol. Court No. 09-00157 Page 11 

statements did not have this caveat. This was an important reason Commerce selected 

the 2006-2007 data to derive the live fish surrogate values in the prior administrative 

review. The instant administrative review, however, presented Commerce with new 

evidence in the Director’s Report that was not on the record in the prior review. After 

analyzing that evidence Commerce concluded that the 2006-2007 financial statements 

were too unreliable as a whole to derive surrogate data. 

The court has reviewed the Director’s Report. It portrays a very grim and 

unsettling picture of Gachihata’s financial condition (see PD 78, Ex. 4), so much so that 

the court, like Commerce, would have been leery about relying on it to derive any

surrogate data (and defend the reasonableness of that choice on judicial review). In 

short, the court cannot fault or find unreasonable Commerce’s determination that 

Gachihata’s 2006-2007 financial statements were too unreliable as a whole to derive 

surrogate values. 

 In the court’s view, this is not a case in which the agency arbitrarily changed its 

mind from one review to the next, but of Commerce reasonably reaching a different 

result 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. Commerce knew that the 2000-2001 and 2006-2007 financial 

statements presented imperfect alternatives, finding it “appropriate to make one final 

research effort for other potential whole fish surrogate values.” Decision Memorandum

at 10. That effort uncovered additional information in the form of the UN FAO report, 

but Commerce also acknowledged (with the deadline for the final results only days 
Consol. Court No. 09-00157 Page 12 

away) that there was insufficient time for Commerce and the parties to vet the new 

information. Id. Commerce was left with a choice between imperfect alternatives. 

Commerce exercised its prerogative to choose the best available information after 

applying its selection criteria, and Commerce’s choice, as explained above, was 

reasonable given the administrative record. The court must therefore sustain 

Commerce’s surrogate value selection for whole live fish. 

2. Broken Fish Fillets 

 QVD reported broken fish fillets, a fish byproduct, as a factor of production. See 

QVD Sec. D Quest. Resp. at 4 and 18, PD 51. When calculating factors of production 

for subject merchandise, Commerce typically allows an offset for the value of the byproduct. The record contained four potential surrogate values for the by-product of 

broken fish fillets. 

Commerce placed on the record the 2007 World Trade Atlas Indonesian data for 

“Other Fish Meat of Marine Fish,” which indicated an average value of Indonesian 

imports of broken fish fillets to be $2.34 per kilogram (170,827 kilograms for $400,552, 

rounded). Prelim. Surr. Val. Mem. at 8 & Att. 9, PD 106. Catfish Farmers submitted the 

2003 UN COMTRADE data for Bangladeshi imports (HTS 0304.90.100 “Fish Meat 

Other Than Fillets”), which indicated a price of approximately $.25 per kilogram (372 

kilograms of imports valued at $75 = $0.20), adjusted for inflation. See Catfish Farmers’ 

Surr. Val. Subm. at 4 & Exh. 4-5, PD 74. Catfish Farmers also suggested, as an 

alternative, that Commerce select the 2003 World Trade Atlas Indonesian data used in 

the Third Administrative Review. Catfish Farmers’ Admin. Case Br. at 32, PD 121. 
Consol. Court No. 09-00157 Page 13 

Finally, QVD proposed a valuation of $3.13 per kilogram, taken from 2007 UN 

COMTRADE data for imports into Indonesia (“[f]ish meat & mince, except liver, roe & 

fillets, frozen”). QVD Surr. Val. Subm. at 4 & Exh. 5 (showing $3.1326), PD 75. 

For the preliminary results Commerce selected the Indonesian 2007 World Trade 

Atlas data. Prel. Surr. Val. Mem. at 8, PD 106. Catfish Farmers challenged that 

selection in its administrative case brief: 

In the Preliminary Surrogate Value Memo, the Department stated 

that it relied upon Indonesian import statistics from HS#0304.90.100, 

"Other Fish Meat of Marine Fish," to derive a value for broken/trimmed fish 

meat of $2.34 per kilogram. However, the price of broken meat used in 

the Preliminary Results is so high that the Department cannot reasonably 

consider it to be suitable for use. In particular, Petitioners placed on the 

record the import data for broken meat from Bangladesh - the primary 

surrogate country - showing that the price was only $0.25 per kilogram. In 

other words, the price that the Department used from a secondary 

surrogate country was nearly ten times greater than the value from the 

primary surrogate country and the surrogate country from which it derived 

the whole live fish price, underscoring the unreliability of the Indonesian 

import price. Accordingly, the Department should use the Bangladeshi 

price in the Final Results because it is more reasonable than the price 

used in the Preliminary Results. Alternative [sic], the Department should 

use the Indonesian import price used in the 3rd Review Final Results. 

Catfish Farmers’ Admin. Case Br. at 31-32 (footnotes omitted). Catfish Farmers 

therefore tried to persuade Commerce as a factual matter that the Bangladeshi 

data was more reliable than the Indonesian data. The point heading in their brief 

makes this clear—“The Department Should Use a More Reliable Price for Broken 

Meat”. Catfish Farmers’ Admin. Case Br. at 31. Catfish Farmers even 

suggested, as an alternative, that Commerce should use other Indonesian data. 

 In the Final Results Commerce reasonably addressed Catfish Farmer’s 
Consol. Court No. 09-00157 Page 14 

factual argument about the reliability of the Indonesian data:

Although Petitioners argue that the value of $2.34 per kilogram for broken 

fillets is high, we find that it is appropriate given the similarity between it and 

regular fish fillets. In the Section D Questionnaire Response (“SDQR”), QVD 

refers to the byproduct as “broken fillets.” See SDQR at page 18 and 

supplemental section D questionnaire response at exhibits SD 16, 17, and 

19. No party has disputed that the broken fillets are anything other than 

broken fillets. While broken fillets are not whole fillets, the Department finds 

that they do not fall into the category of fish meat other than fillets. As the 

Department finds the Indonesian data to be a more appropriate value to use 

than that of other fish meat other than fillets. Because the Indonesian data is 

contemporaneous with the POR, comes from a country that is economically 

comparable to Vietnam, and represents a broader market average because 

the value of sales from Indonesia is based on over $[4]00,000 in sales while 

the Bangladeshi value is based on total sales value of $75, the Department 

finds it to be the best information on the record. Moreover, the data source 

from which we derive the broken fillets surrogate value is an updated value of 

the same source used in the last review. The source value was from 2007, 

updating the value used in the Fish 3rd AR Results which was from 2003. 

Petitioners’ effort to discredit the reliability of the 2007 value in favor of 

returning to the same source, but with values from 2003, is undermined by 

the fact that the value comes from the same source; it is simply a more 

contemporaneous value. Therefore, we will continue to use the Indonesian 

import statistics value used in the Preliminary Results. 

Decision Memorandum at 11-12. 

 In their briefs before the court, Catfish Farmers raise two brand new arguments 

challenging Commerce’s surrogate value selection. First, Catfish Farmers invoke the 

antidumping statute’s requirement that Commerce “utilize, to the extent possible,” 

surrogate values from countries that are not only (1) economically comparable to 

Vietnam, but that are also (2) “significant producers of comparable merchandise.” 19 

U.S.C. § 1677b(c)(4). Catfish Farmers contend for the first time that Commerce never 

determined Indonesia was a “significant producer of comparable merchandise,” and 
Consol. Court No. 09-00157 Page 15 

therefore, Commerce could not use any Indonesian data. Catfish Farmers’ Reply Br. at 

1; Catfish Farmers’ Mem. In Supp. of R. 56.2 Mot. for J. on Agency Rec. at 17, 18 

(“Catfish Farmers’ Br.”). This is a curious argument from a party that advocated using 

Indonesian data in the administrative proceeding. See Catfish Farmers’ Admin. Case 

Br. at 32 (“Alternative [sic], the Department should use the Indonesian import price . . . 

.”). Catfish Farmers’ other new argument is that Commerce violated an alleged 

administrative practice of using secondary surrogate country information only when 

primary surrogate country data is “unavailable,” a condition Catfish Farmers allege was 

not satisfied here. Catfish Farmers’ Br. at 17; Catfish Farmers’ Reply Br. at 2-3.

 Problematically, Catfish Farmers failed to include these arguments in its 

administrative case brief. As noted above, Catfish Farmers focused on a factual 

argument about the reliability between the Bangladeshi and Indonesian data sets. 

Catfish Farmers did not cite, mention, or discuss 19 U.S.C. § 1677b(c)(4) (which 

governs surrogate values and countries), nor did Catfish Farmers cite, mention, or 

discuss Commerce’s own rules (19 C.F.R. § 351.408(c)(2)) or any administrative 

precedents addressing Commerce’s use of information from a country other than the 

primary surrogate. Catfish Farmers’ Admin. Case Br. at 31-32. The time to do so was 

in their administrative case brief because the issue of the lawfulness of utilizing 

Indonesian data as opposed to Bangladeshi data (as violative of the statute, regulation, 

or administrative practice) was squarely in play—Commerce used the Indonesian data 

in the Preliminary Results. The excerpt from Catfish Farmers’ administrative case brief 

makes clear that Catfish Farmers failed to properly raise and argue those legal issues 
Consol. Court No. 09-00157 Page 16 

before Commerce. See 19 C.F.R. § 351.309(c)(2) (“The case brief must present all 

arguments that continue in the submitter’s view to be relevant to the Secretary’s final 

determination or final results . . . .”). 

 When reviewing Commerce's antidumping determinations, the Court of 

International Trade requires litigants to exhaust administrative remedies “where 

appropriate.” 28 U.S.C. § 2637(d). “This form of non-jurisdictional exhaustion is 

generally appropriate in the antidumping context because it allows the agency to apply 

its expertise, rectify administrative mistakes, and compile a record adequate for judicial 

review—advancing the twin purposes of protecting administrative agency authority and 

promoting judicial efficiency.” Carpenter Tech. Corp. v. United States, 30 CIT 1373, 

1374-75, 452 F. Supp. 2d 1344, 1346 (2006) (citing Woodford v. Ngo, 548 U.S. 81, 89 

(2006)). By failing to raise their arguments about the legal standards governing 

utilization of secondary surrogate country information at the administrative level, Catfish 

Farmers deprived Commerce of the opportunity to address those issues and make a 

“determination, finding, or conclusion.” 19 U.S.C. § 1516a(b)(1). As a result, 

Commerce did not have the opportunity to “apply its expertise,” potentially “rectify 

administrative mistakes,” or “compile a record adequate for judicial review.” Carpenter, 

30 CIT at 1374-75, 452 F. Supp. 2d at 1346. Therefore, the court will not consider 

Catfish Farmers’ new arguments regarding Commerce’s surrogate value selection for 

broken fish fillets. Instead, the court will sustain Commerce’s decision. 

B. QVD’s Freight Expense 

 In the Final Results Commerce acknowledged and corrected an error in its 
Consol. Court No. 09-00157 Page 17 

margin calculation for QVD. Catfish Farmers argued, and Commerce agreed, that 

adjusting QVD’s constructed export price with a gross weight international movement 

expense, when all other adjustments were made upon a net weight basis, distorted the 

calculation. Decision Memorandum at 15-16. 

 Commerce offered the straightforward, common sense rationale “that there [was] 

an inconsistent unit of measure that would generate a distortion if [Commerce] 

deduct[ed] freight expenses from the unit price when these two components [were] not 

on the same basis.” Decision Memorandum at 16, PD 136. Commerce further 

explained that “[t]o correctly calculate the freight costs, [it] should deduct the freight 

expenses based on a net-weight basis similar to the weight basis for the unit price and 

the other price adjustments and movement expenses.” Id. Accordingly, Commerce 

adjusted QVD’s international freight expenses to a consistent net-weight basis. Id.

 QVD challenges Commerce’s correction, arguing that Commerce’s explanation is 

a conclusory statement. QVD Br. at 29. The court disagrees. Commerce’s statement 

that it would use freight expenses calculated on the same unit basis is not, as QVD 

suggests, an unreasonable conclusory statement, but a simple, lucid, common sense 

explanation for what appeared to be a necessary correction. The onus is on QVD to 

explain to the court why Commerce’s correction fails to produce a more accurate 

dumping margin than the prior method. This QVD has failed to do. Commerce’s 

adjustment to QVD’s freight expenses must therefore be sustained. 

C. Alleged Ministerial Errors 

 To compute the financial ratios for SG&A and overhead expenses for the factors-
Consol. Court No. 09-00157 Page 18 

of-production, normal-value calculation, Commerce initially used the calculated average 

financial ratios from the 2006-2007 financial statements of Apex Foods Ltd. (“Apex”) 

and Gemini (“Gemini”). Prel. Surr. Val. Mem. at 10, PD 106. In response both Catfish 

Farmers and QVD focused upon the issue of which financial statements should be used 

to calculate the surrogate financial ratios. See Catfish Farmers’ Admin. Case Br. at 18-

31, PD 121; QVD Admin. Rebuttal Br. at 14-21, PD 122. Neither party argued that 

adjustments should be made to the financial ratio calculations. In the Final Results

Commerce continued to use—as the surrogate values for the SG&A ratio and 

overhead—the averages of the calculated ratios from the 2006-2007 financial 

statements of Apex and Gemini. Final Surr. Val. Mem., Att. 1, PD 137. 

 After Commerce issued the Final Results, QVD for the first time claimed that 

Commerce had made a ministerial error by allegedly failing to adjust the SG&A and 

overhead financial ratios to exclude certain expenses—laboratory testing, sales 

promotion, sales commissions, and bank charges—from the SG&A financial ratio 

calculation, thereby allegedly double-counting them. QVD Minis. Error Alleg. at 4-7, PD 

142. Commerce concluded that QVD’s allegation was not ministerial and denied the 

claim. Analysis of Minis. Error Alleg. Mem. at 8, PD 145. 

QVD challenges Commerce’s denial of the ministerial error allegation. QVD Br. 

39. A ministerial error is “an error in addition, subtraction, or other arithmetic function, 

clerical error resulting from inaccurate copying, duplication or the like, and any other 

similar type of unintentional error which the Secretary considers ministerial.” 19 C.F.R. 

§ 351.224(f). Importantly, Commerce included the disputed expenses in their 
Consol. Court No. 09-00157 Page 19 

respective ratios in the preliminary results and QVD raised no objections during the 

administrative proceeding to cause Commerce to reconsider its calculation of these 

ratios. See QVD’s Case and Rebuttal Briefs, PD 119; PD 122. 

Commerce properly concluded that QVD’s claim regarding the surrogate financial 

ratios was a substantive challenge to Commerce’s assignment of certain expenses to 

the surrogate ratio calculations. There was nothing unintentional or inadvertent about 

Commerce’s treatment of these expenses. A determination of whether such expenses 

should or should not be included in the financial ratio expenses is a complex issue and 

can involve, among other things, an analysis of whether there is sufficient record 

evidence to demonstrate that the surrogate producer’s basis for the expense exactly 

correlates with the NME producer basis for the expenses. See Shanghai Eswell Enter.

Co. v. United States, 31 CIT 1570, 1579-81 (2007), opinion after remand, 32 CIT ___, 

___, (2008), 2008 WL 4921375, at *6 (Nov. 18, 2008), aff’d without opinion, 350 Fed. 

Appx. 473 (Fed. Cir. 2009). Thus, although QVD suggests that these alleged “errors” 

are ministerial, they are not. Accordingly, Commerce’s denial of QVD’s request for 

ministerial error corrections must be sustained. 

III. Conclusion

 For all of the foregoing reasons, the court will enter judgment sustaining the Final 

Results. 

 /s/ Leo M. Gordon 

 Judge Leo M. Gordon 

Dated: September 1, 2010 

 New York, New York