Qvd Food Co., Ltd. v. United States
2011 U.S. App. LEXIS 18811
| Fed. Cir. | 2011Background
- This is the fourth administrative review of an antidumping duty order on Vietnamese pangasius fillets, involving QVD and other Vietnamese manufacturers.
- Commerce valued whole pangas fish using Bangladesh as surrogate, initially at 45 Tk/kg based on Gachihata FY2006-07 data for the preliminary results.
- For the final results, Commerce inflated the FY2000-01 Gachihata price from 68 Tk/kg to 98 Tk/kg using a CPI-based inflator after deeming the FY2006-07 data unreliable.
- The FAO 2007 report was added to the record late, with two days for comments; parties argued for both accepting and excluding it.
- QVD and CFA challenged both the use of the FAO data and the reliance on FY2000-01 data, as well as the general expense ratio, in post-final briefing and administrative proceedings.
- The Court of International Trade upheld Commerce’s final results, including the surrogate value selection and the inflated price, and denied ministerial-error corrections relied on by QVD.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce properly declined to rely on the FAO report | QVD argued FAO was best surrogate value and should be used. | Commerce lacked time to validate FAO reliability and considered CFA's critiques timely. | Commerce did not abuse discretion; did not rely on FAO in the fourth review. |
| Whether using FY2000-01 Gachihata data (inflated to 98 Tk/kg) was supported by substantial evidence | QVD contested reliance on outdated data and inflation as improper. | Commerce reasonably rejected contemporaneous data due to reliability concerns and used inflation to update. | Yes; substantial evidence supported using FY2000-01 data inflated to 98 Tk/kg. |
| Whether Commerce reasonably rejected FY2006-07 data as a source for surrogate value | QVD argued FY2006-07 data were more contemporaneous and reliable. | Gachihata Directors' Report and overall finances undermined reliability of FY2006-07 data. | Yes; Commerce reasonably rejected FY2006-07 data. |
| Whether QVD’s ministerial-error challenge to the general expense ratio was timely and cognizable | QVD argued there was a ministerial error in double-counting general expenses. | The issue is a methodological challenge, not a ministerial error, and untimely. | No; not a ministerial error and not timely raised. |
Key Cases Cited
- Ad Hoc Shrimp Trade Action Comm. v. United States, 618 F.3d 1316 (Fed.Cir.2010) (wide discretion to value production in nonmarket economies)
- Nation Ford Chem. Co. v. United States, 166 F.3d 1373 (Fed.Cir.1999) (wide discretion to determine best available information)
- Sango Int'l L.P. v. United States, 567 F.3d 1356 (Fed.Cir.2009) (consideration of entire record in substantial evidence review)
- Dorbest Ltd. v. United States, 604 F.3d 1363 (Fed.Cir.2010) (ministerial errors and timing in antidumping determinations)
- Tianjin Mach. Imp. & Exp. Corp. v. United States, 806 F.Supp. 1008 (Ct. Int'l Trade 1992) (record-building burden on interested parties; agency discretion)
- Co-Steel Raritan, Inc. v. Int'l Trade Comm'n, 357 F.3d 1294 (Fed.Cir.2004) (scope of judicial review in antidumping matters)