Commerce’s Rejection of Ministerial Error an Abuse of Discretion, Cabinet Exporter Claims

A Chinese cabinet exporter, alleging that the Commerce Department unlawfully rejected its ministerial error comment on a review’s final results “because the error was present in the Preliminary Results as well,” filed a motion for judgment May 29 (The Ancientree Cabinet Co. v. U.S., CIT # 23-00262).

Exporter The Ancientree Cabinet Co. said in its motion that the department erred in both its preliminary and final results of a 2021-22 antidumping review by failing to increase its U.S. sales price by the amount of an export subsidy -- the Chinese government’s Export Buyer’s Credit Program -- found countervailable in a sister CVD review. Its refusal to correct the error, meanwhile, was an abuse of discretion, it said.

“Notably, the Department did not disagree that the ministerial error was ministerial in nature and also did not disagree that the adjustment for the EBC program was required by statute,” it said. “The Department only rejected Ancientree’s ministerial error because Ancientree did not raise it in a case brief.”

As a result, the department knowingly applied a double remedy to Ancientree, the exporter said. This occurred even though Commerce is required to calculate margins as accurately as possible, it said.

The exporter argued the exhaustion requirement should be waived because it is “appropriate” under the circumstances. The doctrine is intended to uphold administrative processes, protect agency decision-making and aid judicial review and economy, it said. But there is a judicially recognized exception to the exhaustion doctrine “where a court is asked to consider a ‘pure question of law’ and ‘Commerce has not persuasively articulated ... how additional proceedings would further develop the interpretation offered,’” it said.

This is the situation here, it said. It called its case “a clear matter of pure law” that doesn’t need any more factual interpretation.

It also said that another exception to the exhaustion doctrine, allowing consideration of an issue that an agency “in fact had an opportunity to consider” during administrative proceedings, could apply.