CIT Says Commerce Can't Require Party to First Raise Ministerial Errors in Case Brief

However, the judge upheld the agency's decision not to use facts otherwise available against respondent Caseamex (the Can Tho Import Export Seafood Joint Stock Company) related to its reporting of its packing costs in the 2021-22 administrative review of the AD order on frozen fish fillets from Vietnam.

In the review, Caseamex was assigned a $0.18/kg dumping margin, while the other mandatory respondent, Vinh Hoan Corporation was given a zero margin. Five days after the final determination was filed, the petitioner, the Catfish Farmers of America, filed a submission asking Commerce to correct various ministerial errors in the calculations that related to marine insurance.

The agency rejected the submission as untimely, finding that the alleged error was "discoverable earlier in the proceeding (i.e., immediately following the preliminary results)" but wasn't raised in the petitioner's case brief. Thus, the agency found the submission to be untimely according to Commerce's regulations, 19 CFR 351.224(c)(1) and 19 CFR 351.309(c)(2), and "controlling judicial percent."

Stanceu ultimately found that this application of the agency's regulations was contrary to Section 751(h), which concerns the filing of ministerial error allegations regarding final determinations.

The statute says Commerce shall establish procedures for correcting ministerial errors in final determinations within a reasonable time after the determinations are issued. Meanwhile, the agency's regulations say comments on ministerial errors made in the preliminary results of a review should be included in a party's case brief and that comments should be made within five days after Commerce discloses its calculations to the interested parties.

While the Supreme Court has held that courts shouldn't defer to agencies' interpretations of ambiguous statutes, it has held that such deference should be given to agencies' interpretations of their own ambiguous regulations. Stanceu said that while aspects of Commerce's regulations at issue "may be seen as ambiguous on the issue of whether the ministerial error allegation was untimely," the issue here is that the agency's interpretation of its regulatory scheme conflicts with a statute, and in such cases, "the statute must control."

Stanceu said that, in this case, the agency didn't decide whether the alleged error was "in" a final determination of the type identified by the statute. Contrary to the statute's directive, Commerce also failed to "ensure" the petitioner had the "opportunity ... to present their views regarding" what they alleged to be a ministerial error in the final determination.

The agency's regulations also failed to "give effect to the use of the unambiguous term 'any such errors'" in the statute. Instead, Commerce only allowed parties to raise only some allegations of ministerial errors in final determinations, "those that could not have been discovered in time to be raised in the case brief," after the final determination was issued. "In these several respects, Commerce applied procedures that did not satisfy the express requirement of Section 751(h)," the judge said.

The U.S. argued that the court must reject the petitioner's challenge as a "facial challenge to Commerce's regulatory scheme," adding that such a claim must fail unless the petitioner can show that "no set of circumstances exists under which the {regulation} would be valid." Stanceu rejected this notion, finding that the petitioner stated its claim "in general terms" and that it didn't seek the invalidation of the regulations at issue, making it not a "facial challenge" to the regulatory scheme.

The government also said the petitioner misinterpreted Section 751(h), which doesn't mandate the agency to "entertain all allegations of ministerial errors in final results in every circumstance." Stanceu said it's the government and not the petitioner that misinterprets the statute, since the rejection of the petitioner's ministerial error allegation "contradicted the plain language of the statute." Section 751(h) "refers only to ministerial errors in final determinations" and only uses the "unambiguous terms 'in,' 'ensure,' and 'any.'"

Thus, to satisfy the statute, the agency's procedures "must 'ensure' that an interested party has the 'opportunity ... to present' its 'views' after, and not necessarily before, the determination is issued," the court held. Stanceu added that the petitioner wasn't required to exhaust its administrative remedies in raising its error allegations in its case brief, since Congress very well could have required such a step but chose not to in enacting Section 751(h).

Separately, Stanceu held that Commerce reasonably decided not to use facts otherwise available against Caseamex for its alleged failure to provide "global packing data" as Commerce requested. The agency reasonably decided that global factors of production data wasn't necessary to its packing costs calculation, the judge said, adding that Commerce wasn't bound by one of its policy bulletins which purportedly requires "all-inclusive reporting to avoid potential manipulation of the dumping margin."

(Catfish Farmers of America v. United States, Slip Op. 25-152, CIT # 24-00082, dated 12/15/25; Judge: Timothy Stanceu; Attorneys: Maureen Thorson of Wiley Rein for plaintiffs led by Catfish Farmers of America; Collin Mathias for defendant U.S. government; Robert LaFrankie of Crowell & Moring for defendant-intervenor Can Tho Import Export Seafood Joint Stock Company)