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Fishy Ruling? Ministerial Error Not Abuse of Discretion

By Robyn Hagan Cain on September 14, 2011 | Last updated on March 21, 2019

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.

The Federal Circuit Court of Appeals issued a 24-page opinion on fish prices this week in QVD Food v. U.S. The case, which involved an anti-dumping duty calculation, addressed the question of whether the Department of Commerce properly valued a nonmarket economy’s fish.

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.

Both QVD and the Catfish Farmers of America appealed Commerce’s final results to the Court of International Trade (CIT). The CIT found that there was no abuse of discretion because Commerce had made a reasonable choice given “imperfect alternatives.”

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.

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