We love fresh fish.

Ideally, we would purchase all of our fish from an ocean-side fishmonger, but most of the time that’s not in the cards. Instead, we have to go to restaurants. While the restaurant arguably involves less hassle, it presents a financial obstacle: the market price. We feel awkward asking waiters about the market price, and we usually either choose a lesser fish with a noted price, or cross our fingers that we haven’t blown our rent on a single meal.

After reading this week’s Federal Circuit Court of Appeals opinions, we now realize that we simply need to befriend a Federal Circuit judge or a federal trade employee for future fish-dining outings, because they are well-versed in fish pricing.

When determining the normal value of goods from a nonmarket economy country, Congress allows Commerce to value to factors of production for such goods by looking to the best available information from appropriate market economy countries, referred to a “surrogate countries.”

In this case, Commerce used Bangladesh as a surrogate country to determine the normal value of pangas fish from Vietnam, a nonmarket economy.

After a back-and-forth process publishing preliminary results, reviewing comments, and issuing final results, 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.

On appeal, the Federal Circuit Court of Appeals ruled this week that Commerce’s refusal to correct a ministerial error did not constitute an abuse of discretion when the alleged mistake was discoverable during earlier proceedings, but was not pointed out to Commerce during the time period specified by regulation.

Related Resources

  • QVD Food v. U.S (FindLaw’s CaseLaw)
  • Adoption of International Trade Agreement Not Changed Country Condition (FindLaw’s Ninth Circuit blog)
  • “McCurry” Infringing on an International McTrademark? (FindLaw’s Free Enterprise)
  • Corporate Counsel Center: International Trade and Investment (FindLaw)

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