CIT Tells Commerce to Add Ministerial Error Allegation to Judicial Record

The Court of International Trade on Sept. 26 ordered the Commerce Department to add exporter The Ancientree Cabinet Co.'s ministerial error allegation to the record of a suit on the 2021-22 review of the antidumping duty order on wooden cabinets and vanities from China. Judge Mark Barnett gave Commerce until Oct. 7 to add the allegation to the record (The Ancientree Cabinet Co. v. U.S., CIT # 23-00262).

In the review, the agency rejected the ministerial error allegation as being untimely, because the identified error was discoverable earlier in the proceeding but not raised before the agency. Commerce's regulations say the record will include a copy of a rejected allegation solely for documenting the basis for its rejection, if the allegation was rejected for containing untimely filed new factual information.

The regulations also say that comments on ministerial errors made in a review's preliminary results should be included in a party's case brief and that ministerial error allegations regarding the agency's final determination must be filed within five days of Commerce releasing disclosure documents to that party. In the review, Ancientree's submission seemingly fell within this five-day rule, but Commerce rejected it since it should have been raised in its case brief. The agency didn't include the allegation on the judicial record.

"Therein lies the problem," Barnett said. "The court cannot review whether Ancientree’s allegation was untimely without seeing the argument -- and that requires record documentation, not merely the parties’ say-so, even when that party is the Government," the order said. Commerce's decision on the untimeliness of the claim "cannot be substantiated 'by means other than retention of the submission,'" the court said.