Exporter's Ministerial Error Allegation Came Too Late, Was Properly Rejected, US Says

The U.S. said Aug. 12 that the Commerce Department doesn’t have to consider a ministerial error allegation regarding the final results of a review because the error went unnoticed in the preliminary results (The Ancientree Cabinet Co. v. U.S., CIT # 23-00262).

Chinese cabinet exporter The Ancientree Cabinet Co. filed a motion for judgment in June saying that, in the final results of a review of its products, Commerce failed to increase its U.S. sales by the amount of a countervailed export subsidy it received from the Chinese government (see 2406030054).

It noted that the department didn’t deny that the error was ministerial, nor that statute required such an adjustment -- rather, Commerce pointed out that the error had been present in the review’s preliminary results, too, but Ancientree hadn’t filed a ministerial error comment then. As a result, the department said, Ancientree hadn’t exhausted its administrative remedies.

According to federal regulations, parties are allowed to submit comments on Commerce’s preliminary review results, the government said in its Aug. 12 brief. However, it said, those comments “‘must present all arguments’ that would be relevant to the final results.”

The statute also gives Commerce the power to establish its own procedures for correcting ministerial errors, it said. And the regulations that resulted require that “[c]omments concerning ministerial errors made in the preliminary results of a review should be included in a party’s case brief,” it said.

Ancientree doesn’t dispute that it could have found the alleged error in the preliminary results; nor does it dispute that it didn’t mention the alleged error in its comment on those initial results, the U.S. said.

Therefore, Ancientree’s error allegation was untimely, it said, and Commerce is correct to reject it because “the requirement of administrative finality necessarily outweighed [the] belated concern for correctness.”

The exporter also doesn’t meet any of the requirements that would exempt it from the exhaustion doctrine, the government said.

The issue doesn’t raise a “pure question of law,” it said: The “undisputed fact,” as Ancientree claimed, that its imports were subject to the countervailed subsidy hadn’t been on the record because the exporter hadn’t raised it, it said.

Commerce also didn’t have another “opportunity to consider the issue at the administrative level” when accepting comments on its final results, it said. If it had, it said, that “would undermine the purpose” of the deadline regulations entirely.”