                              Slip Op. 12- 110

           UNITED STATES COURT OF INTERNATIONAL TRADE




FAR EASTERN NEW CENTURY CORP.,
                                          Before: Donald C. Pogue,
                 Plaintiff,                       Chief Judge

          v.                              Court No. 11-00415

UNITED STATES,

                 Defendant.




                                OPINION


[Plaintiff’s motion for judgment on the agency record GRANTED in
part and DENIED in part].


                                                 Dated: August 29, 2012


          Peter J. Koenig, Squire Sanders LLP, of Washington, DC,
for Plaintiff.

          Ryan M. Majerus, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of
Washington, DC, for Defendant. With him on the brief were Stuart
F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Claudia Burke, Assistant Director. Of counsel on
the brief was Whitney Rolig, Attorney, Office of the Chief
Counsel for Import Administration, U.S. Department of Commerce,
of Washington, DC.
Court No. 11-00415                                           Page 2

          Pogue, Chief Judge: In this action, Plaintiff Far

Eastern New Century Corp. (“FENC”), challenges the United States

Department of Commerce’s (“Commerce” or “the Department”)

determination in its administrative review of an antidumping duty

order on certain polyester staple fibers (“PSF”) from Taiwan.1

Specifically, FENC challenges: 1) Commerce’s stated revision of

FENC’s Selling, General, and Administrative expenses (“G&A

expenses”);2 and 2) Commerce’s use of its “zeroing” methodology

in calculating the relevant dumping margin.   For the reasons

discussed below, the court will remand to Commerce on the first

issue and sustain Commerce’s determination on the second issue.



                           BACKGROUND

          Commerce initiated an administrative review of the

antidumping duty order concerning PSF from Taiwan in June 2010.

During the review, FENC submitted a G&A ratio calculation for

Commerce’s use in its calculation of normal value in August,


     1
       Certain Polyester Staple Fiber From Taiwan, 76 Fed. Reg.
57,955 (Dep’t Commerce Sept. 19, 2011) (final results of
antidumping duty administrative review) (“Final Results”), and
accompanying Issues & Decision Memorandum, A-583-833, ARP 09-10
(Sept. 19, 2011), Admin. R. Pub Doc. 8, available at
http://ia.ita.doc.gov/frn/summary/TAIWAN/2011-24010-1.pdf (last
visited August 28, 2012) (“I & D Mem.”) (adopted in Final
Results, 75 Fed. Reg. at 57,955).
     2
       G&A expenses are also known collectively as “financial
ratios[.]” See, e.g., Dorbest Ltd. v. United States, 30 CIT 1671,
1674, 462 F. Supp. 2d 1262, 1266 (2006).
Court No. 11-00415                                           Page 3

2010, Prelim. Results Analysis Mem., A-583-833, ARP 09-10, (Apr.

14, 2011), Admin R. Con. Doc. 8 [Pub. Doc. 35], (“Analysis

Mem.”), and, in December, 2010, a revised G&A ratio which

reflected the Taiwan Generally Accepted Accounting Principles

(“GAAP”). Def.’s Resp. to Pl.’s Mot. for J. on Agency R., ECF No.

44, at 2 (“Def.’s Br.”); FENC Supp. Questionnaire, A-583-833, ARP

09-10 (Dec. 21, 2010), Admin. R. Con. Doc 3 [Pub. Doc. 23].

Commerce published its preliminary results of the administrative

review in April of 2011. See Certain Polyester Staple Fiber From

Taiwan (preliminary results of antidumping duty administrative

review), 76 Fed. Reg. 22,366 (Dep’t Commerce Apr. 21, 2011)

(“Preliminary Results”).   In calculating FENC’s cost of

production for the Preliminary Results, Commerce used FENC’s

August G&A ratio instead of the revised December ratio. Analysis

Mem. at 11.   Also in the Preliminary Results, Commerce employed

its zeroing methodology in calculating FENC’s dumping margin.3


     3
       Zeroing is the practice of “treat[ing] transactions [or
sales] that generate ‘negative’ dumping margins (i.e., a dumping
margin with a value less than zero) as if they were zero.”
Timken Co. v. United States, 354 F.3d 1334 at 1338 (Fed. Cir.
2004) (holding that 19 U.S.C. § 1677(35) is ambiguous and that
zeroing is a reasonable interpretation). Under this approach,
only sales at less than normal value contribute to the
calculation of the dumping margin. In contrast, when using
offsetting, “sales made at less than fair value are offset by
those made above fair value. This means that some of the dumping
margins used to calculate a weighted-average dumping margin will
be negative.” U.S. Steel Corp. v. United States, 621 F.3d 1351 at
1355 (Fed. Cir. 2010) (holding that 19 U.S.C. § 1677(35)(A) is
ambiguous and that offsetting is also a reasonable
interpretation).
Court No. 11-00415                                          Page 4

          In the Final Results, Commerce stated that it had

agreed with FENC and substituted the revised, corrected G&A ratio

in it final normal value calculations. Final Results, 76 Fed.

Reg. at 57,955.   Commerce also maintained that its use of zeroing

was correct.

          Claiming that Commerce had erred in implementing its

decision, FENC submitted a ministerial error allegation pursuant

to 19 C.F.R. § 351.224(c)(2)(i).   FENC claimed that Commerce had

not properly incorporated the G&A ratio into the cost of

production calculation. Nonetheless, Commerce concluded that the

final cost of production did not contain errors. Allegation of

Ministerial Error, A-583-833, ARP 09-10 (Sept. 29, 2011), Admin.

R. Pub. Doc. 5.   Accordingly, Commerce affirmed its revised

calculations and methodology.

     FENC filed this action on October 18, 2011.   The court has

jurisdiction pursuant to 28 U.S.C. § 1581(c).

          Currently, Plaintiff submits that Commerce did not

revise the G&A ratio as intended, and that Commerce improperly

used zeroing in its administrative review.   For the reasons

discussed below, the court will remand the first issue to

Commerce to consider the ministerial error, and will deny

Plaintiff’s motion on the second issue, as Commerce’s

determination to use zeroing in this matter was reasonable.
Court No. 11-00415                                            Page 5

                        STANDARD OF REVIEW

            When reviewing the Department’s decisions made in

administrative reviews of antidumping duty orders, the Court

“shall hold unlawful any determination, finding, or conclusion

found. . .to be unsupported by substantial evidence on the

record, or otherwise not in accordance with law.” 19 U.S.C.

§ 1516a(b)(1)(B)(i).4



                            DISCUSSION

           1. G&A Ratio Revision

           In effect, Commerce and FENC are in agreement about an

alleged ministerial error made in the calculation of the G&A

ratio.   Commerce stated its intent to revise the G&A ratio based

on updated data it received from FENC.    (“We have examined the

record and have determined that we made an error in using the

original G&A ratio in the Preliminary Results . . . . [W]e

neglected to incorporate [the revised ratio] in our

calculations”). I & D Mem. Cmt. 2 at 5.

           FENC challenges that the revised data was not

ultimately implemented, and Commerce admits that it “may not have

used the corrected normal value . . . in its calculation of the

final weighted-average dumping margin.”   Def.’s Br. at 17.


     4
       Further citations to the Tariff Act of 1930 are to Title
19 of the United States Code, 2006.
Court No. 11-00415                                            Page 6

          Ministerial errors, under 19 U.S.C. § 1675(h), include:

“errors in addition, subtraction, or other arithmetic function,

clerical errors resulting from inaccurate copying, duplication,

or the like, and any other type of unintentional error which

[Commerce] considers ministerial.” 19 U.S.C. § 1675(h).   Commerce

has established administrative channels for the correction of

ministerial errors; but once an action has been filed with the

court, the court has jurisdiction and Commerce may not revise its

Final Determination without the court’s permission.    See Zenith

Elecs. Corp. v. United States, 884 F.2d 556, 560–61 (Fed. Cir.

1989) (“[O]nce [the Court of International Trade's] exclusive

jurisdiction has been invoked, Commerce may correct clerical

errors only with the court's prior authorization.”).

          Thus, Commerce may request a remand to correct a

ministerial error.   The court will grant this request only when

so doing would not result in prejudice to any party.   See 19

U.S.C. § 1675(h); 19 C.F.R. § 351.224.   Here, because both

parties agree that the issue should be remanded, the court will

grant Commerce’s request and this issue is remanded to Commerce

for further consideration.



          2. Zeroing Policy

          Turning to Commerce’s zeroing methodology, this court

has recently determined that Commerce’s explanation regarding
Court No. 11-00415                                             Page 7

this same zeroing methodology has not been rejected by the

Federal Circuit. Grobest & I-Mei Indus. (Vietnam) v. United

States, 36 CIT __,   2012 WL 3104900, *1-6 (2012).      In addition,

the court found that Commerce gave a reasonable interpretation of

an ambiguous statue. Id. at *3.    As Commerce’s explanation here

is in line with its explanation in Grobest, as a matter of

efficiency this court will follow its recent opinion in Grobest

on the issue of zeroing and affirm Commerce’s explanation as

reasonable.



                              CONCLUSION

          For the reasons discussed above, the court grants

Plaintiff’s motion regarding issue one and will remand to

Commerce on this issue.   The Final Results are otherwise affirmed

in all respects.

          Commerce shall have until October 15, 2012 to complete

and file its remand redetermination.       Plaintiff shall have until

October 29, 2012 to file comments.    Defendant shall have until

November 9, 2012 to file any reply.



          It is SO ORDERED.

                                            /s/ Donald C. Pogue
                                       Donald C. Pogue, Chief Judge

Dated: August 29, 2012
       New York, N.Y.
