                         Slip. Op. 12-149

           UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Nicholas Tsoucalas, Senior Judge
___________________________________
FISCHER S.A. COMERCIO, INDUSTRIA    :
AND AGRICULTURA AND CITROSUCO       :
NORTH AMERICA, INC.,                :
                                    :
          Plaintiffs,               :
                                    :
     v.                             :    Court No.: 11-00321
                                    :
UNITED STATES,                      :
                                    :    PUBLIC VERSION
          Defendant,                :
                                    :
          and                       :
                                    :
FLORIDA CITRUS MUTUAL, and          :
CITRUS WORLD, INC.,                 :
                                    :
          Defendant-Intervenors.    :
                                    :

                        OPINION and ORDER

Held: Plaintiffs’ Motion for Judgment on the Agency Record is
denied because the final results of the Antidumping Duty
Administrative Review issued by the Department of Commerce were
supported by substantial evidence and were otherwise in accordance
with the law.

                                         Dated: December 6, 2012

     Kalik Lewin, (Robert G. Kalik and Chelsea S. Severson) for
Fischer S.A. Comercio, Industria and Agricultura and Citrosuco
North America, Inc., Plaintiffs.

     Stuart F. Delery, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Joshua E. Kurland); Office of Chief Counsel
for Import Administration, United States Department of Commerce,
Mykhaylo Gryzklov, Of Counsel, for the United States, Defendant.

     Barnes, Richardson & Colburn, (Matthew T. McGrath and Stephen
W. Brophy) for Florida Citrus Mutual and Citrus World, Inc.,
Court No. 11-00321                                                        Page 2

Defendant-Intervenors.
     TSOUCALAS, Senior Judge:           This matter comes before the court

upon the Motion for Judgment on the Agency Record filed by Fischer

S.A.   Comercio,    Industria    and    Agricultura    and    Citrosuco      North

America,   Inc.    (“Fischer”    and    “Citrosuco,”      respectively,      and

“Plaintiffs”       collectively).            Plaintiffs      contest    certain

determinations made by the United States Department of Commerce,

International Trade Administration (“Commerce”) in Certain Orange

Juice from Brazil: Final Results of Antidumping Duty Administrative

Review, Determination Not To Revoke Antidumping Duty Order in Part,

and Final No Shipment Determination, 76 Fed. Reg. 50,176 (August

12, 2011) (“Final Results”). Commerce and defendant-intervenors,

Florida Citrus Mutual and Citrus World, Inc., oppose this motion.

For the reasons set forth below, the court finds that Commerce’s

determinations     are     supported    by   substantial   evidence    and    are

otherwise in accord with the law.

                                  BACKGROUND

       On March 9, 2006, Commerce issued an antidumping order on

certain orange juice from Brazil.              See Antidumping Duty Order:

Certain Orange Juice from Brazil, 71 Fed. Reg. 12,183 (Mar. 9,

2006).   At Fischer’s request, Commerce initiated an administrative

review of the order for the period beginning March 1, 2009 and

ending February 28, 2010.              See Initiation of Antidumping and

Countervailing      Duty    Administrative      Reviews      and   Request    for

Revocation in Part, 75 Fed. Reg. 22,107 (Apr. 27, 2010).
Court No. 11-00321                                                        Page 3

     During the preliminary review, Commerce requested certain

information from Fischer in order to calculate the normal value

(“NV”)1   and   export    price     (“EP”)2   of    the   subject   merchandise.

Commerce requested that Fischer report information on “all sales of

the foreign like product during the three months preceding the

earliest month of U.S sales, all months from the earliest to the

latest month of U.S. sales, and the two months after the latest

month of U.S. sales.”          Memo from Analyst/IA to File (Apr. 28,

2010),    Public   Rec.   14   at    §   B.II.A.3     This   request   included

information on sales occurring during the period of review (“POR”)

as well as sales from the so called “90/60-Day Window Period”




     1
       “Normal Value” refers to “the price at which the foreign
like product is first sold (or, in the absence of a sale, offered
for sale) for consumption in the exporting country, in the usual
commercial quantities and in the ordinary course of trade and, to
the extent practicable, at the same level of trade as the export
price or constructed export price.” 19 U.S.C. § 1677b(a)(1)(B)(i)
(2006).
     2
       “Export Price” refers to the “price at which the subject
merchandise is first sold (or agreed to be sold) before the date of
importation by the producer or exporter of the subject merchandise
outside of the United States to an unaffiliated purchaser in the
United States or to an unaffiliated purchaser for exportation to
the United States.” 19 U.S.C. § 1677a(a).
     3
       Hereinafter all documents in the public record will be
designated “P.R.” and all documents in the confidential record
designated “C.R.” without further specification except where
relevant.   Additionally, the abbreviation “I.A.” will refer to
portions of the confidential and public records filed in Commerce’s
electronic filing system, I.A. Access.
Court No. 11-00321                                                Page 4

(“Window Period”), as defined in 19 C.F.R. § 351.414(f) (2012).4

P.R. 14 at § B.II.A.      The Window Period stretches up to three

months prior to and two months after a month without comparable

home market sales.   19 C.F.R. § 351.414(f)(2), (3).       Accordingly,

Fischer provided information on home market sales that occurred

during the POR as well as sales outside the POR during the Window

Period.   See P.R. 63 Ex. 4.

      Additionally, Commerce requested information on Fischer’s

international   freight   expenses.     Fischer     reported   that   its

affiliate, Citrosuco, paid $[[        ]]/MT for shipments to the U.S.

during the POR, comprised of a base freight rate of $[[           ]]/MT

and a bunker fuel surcharge of $[[        ]]/MT.    See P.R. 71 Ex. 3.

Fischer also reported that its affiliate [[

          ]] operated most of the vessels that transported subject

merchandise to the U.S.        See P.R. 104 at 1.        Per Commerce’s

request, Fischer provided a Sea Transport Service Agreement (“STS

Agreement”) between Fischer’s affiliated shipper and a third party,

[[                                                 ]].   See P.R. 55 Ex.

9.    Fischer also provided an invoice from that agreement dated

within the POR indicating that [[       ]] charged [[                  ]]

$[[       ]]/MT, comprised of a base freight rate of $[[          ]]/MT



      4
      At the time Plaintiffs submitted their brief, this provision
was located at 19 C.F.R. § 351.414(e)(2).        As part of the
amendments to the regulation effective April 16, 2012, the
regulation was moved but the provisions remain unaltered.
Court No. 11-00321                                                  Page 5

and a bunker fuel surcharge of $[[        ]]/MT.     Id. Ex. 8.

     Commerce     released    the   preliminary      results   of     the

administrative review on April 7, 2011.       See Certain Orange Juice

from Brazil: Preliminary Results of Antidumping Duty Administrative

Review and Notice of Intent Not To Revoke Antidumping Duty Order in

Part, 76 Fed. Reg. 19,315 (Apr. 7, 2011) (“Preliminary Results”).

Commerce determined that Fischer’s shipping arrangement was “not at

arm’s length,” and selected the $[[           ]]/MT rate from the STS

Agreement as a surrogate rate from which to calculate Fischer’s

international freight expenses.     Id. at 19,318.    Commerce used the

resulting value to reduce EP of the subject merchandise pursuant to

19 U.S.C § 1677a(c)(2)(A).     See Preliminary Results, 76 Fed. Reg.

at 19,318.    Additionally, for months of the POR with no comparable

home-market sales, Commerce calculated a constructed value (“CV”)

as a substitute for NV pursuant to 19 U.S.C. § 1677b(a)(4).         Id. at

19,317.      Commerce determined the profit component of the CV

calculation using information from the Window Period sales that

occurred outside the POR.     Id. 19,317; P.R. 103 at 17.      Commerce

determined Fischer’s weighted-average dumping margin (“WADM”) to be

3.96%.    Preliminary Results, 76 Fed. Reg. at 19,321.

     Following the Preliminary Results, Fischer submitted a case

brief raising three issues: (1) the inclusion of the bunker fuel

surcharge    in   the   surrogate   freight   rate   when   calculating

international freight expenses, (2) the use of zeroing to calculate
Court No. 11-00321                                                      Page 6

WADM, and (3) the use of sample sales to calculate profit ratio for

not-from-concentrate orange juice.      See P.R. 116 at iii.

     On August 12, 2011 Commerce issued the final results of the

review.   See Final Results, 76 Fed. Reg. 50,176.         Commerce lowered

Fischer’s WADM to 3.97%, id. at 50,178, but specifically rejected

Fischer’s    arguments   concerning   zeroing     and    the   bunker    fuel

surcharge.   See Issues and Decision Memorandum for the Antidumping

Duty Administrative Review on Certain Orange Juice from Brazil,

Inv. No. A-351-840 (Aug. 5, 2011) at 4–8, 23–24 (“I&D Memo”).

     After Commerce released the Final Results, Fischer filed

ministerial error comments with Commerce.               See I.A.P.R. 17.

Fischer contended that Commerce “committed a ministerial error when

it neglected to include specific programming language in its

[Analysis of Comparison Market Sales] to exclude home market sales

occurring outside the [POR].” Id. at 3. Concluding that Fischer’s

comments did not actually concern a ministerial error, Commerce did

not amend its calculation.     See I.A.P.R. 19 at 2.

     Plaintiffs     raise   three   issues   on   appeal:      (1)   whether

Commerce’s decision to include the bunker fuel surcharge in the

surrogate freight rate was proper, (2) whether Commerce’s use of

Window Period sales outside the POR to calculate CV profit ratio

was proper, and (3) whether Commerce’s use of zeroing to calculate

WADM was proper.    See Pls.’ Br. at 1–2.

                  JURISDICTION and STANDARD OF REVIEW
Court No. 11-00321                                            Page 7

     This Court has jurisdiction over this matter pursuant to 19

U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c).

     This Court will uphold Commerce’s determination unless it is

“unsupported by substantial evidence on the record, or otherwise

not in accordance with law.”     19 U.S.C. § 1516a(b)(1)(B)(i).

“Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’”    Huaiyin

Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374

(Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,

229 (1938).

                            DISCUSSION

                     I. Bunker Fuel Surcharge

     Commerce calculated Fischer’s international freight expenses

using a surrogate rate from the STS Agreement, see Preliminary

Results, 76 Fed. Reg. at 19,318; I&D Memo at 24, which included a

bunker fuel surcharge of $[[      ]]/MT.   P.R. 55 Ex. 8.   Pursuant

to 19 U.S.C. § 1677a(c)(2)(A), Commerce calculated a constructed EP

for the subject merchandise using Fischer’s international freight

expenses as a deduction.   See Preliminary Results, 76 Fed. Reg. at

19,318.   The bunker fuel surcharge increased the international

freight expenses, lowering the constructed EP even further and,

therefore, its inclusion made a finding of dumping more likely.

See 19 U.S.C. § 1677(35)(A); Florida Citrus Mutual v. United

States, 550 F.3d 1105, 1110 (Fed. Cir. 2008).     Plaintiffs argue
Court No. 11-00321                                                   Page 8

that Commerce overstated Fischer’s international freight expenses,

and thus its dumping margin, by including the bunker fuel surcharge

in the surrogate rate.      See Pls.’ Br. at 8.    Plaintiffs insist the

surrogate rate should be limited to $[[           ]]/MT, reflecting the

surrogate value for the base freight rate.        Id. at 11.    Plaintiffs

offer two arguments in support of this claim: either (1) Fischer

did not incur a bunker fuel surcharge during the POR, or, (2) if

Fischer did incur a bunker fuel surcharge, it would have been

reimbursed by its U.S. customers.      See id. at 8–14.

     When calculating EP, Commerce is permitted to reduce the value

by   “the amount, if any, included in such price, attributable to

any additional costs, charges, or expenses, and United States

import    duties,   which   are   incident   to   bringing   the    subject

merchandise” to the U.S.       19 U.S.C. § 1677a(c)(2)(A).         Commerce

adjusts EP to create a “‘fair, ‘apples-to-apples’ comparison’

between U.S. price and foreign market value ‘at a similar point in

the chain of commerce.’” Florida Citrus, 550 F.3d at 1110 (quoting

Torrington Co. v. United States, 68 F.3d 1347, 1352 (Fed. Cir.

1995)).    The goal of the adjustments is to satisfy Commerce’s

mandate to calculate EP as accurately as possible.             See Florida

Citrus 550 F.3d at 1111.

     Plaintiffs argue that Commerce unlawfully overstated Fischer’s

international freight expenses because Fischer did not incur a

bunker fuel surcharge during the POR.             Pls.’ Br. at 9–12.
Court No. 11-00321                                            Page 9

According to Plaintiffs, Fischer does not incur a bunker fuel

surcharge unless bunker fuel rates exceed a certain price.    Id. at

10.   Plaintiffs indicate that under Fischer’s sales contracts a

“bunker fuel surcharge is passed along to its U.S. customer via a

bunker fuel adjustment.”     Id. at 10.   Fischer reported that its

U.S. customers did not pay a bunker fuel adjustment during the POR.

Id. at 11. Because Fischer never assessed a bunker fuel adjustment

on its customers, Plaintiffs assert that Fischer never incurred a

bunker fuel surcharge.     Id.   Furthermore, Plaintiffs insist that

the bunker fuel surcharge from the STS Agreement should not have

been included in Fischer’s surrogate rate because “the conditions

triggering the additional bunker fuel surcharge specific to [[

       ]] differ from those specific to Fischer’s U.S. customers.”

Id.    Accordingly, Plaintiffs conclude that the “inclusion of

[[              ]] bunker fuel surcharge . . . is arbitrary and

contrary to record evidence.”     Id. at 12.

      Plaintiffs’ argument is misleading and contrary to record

evidence. Plaintiffs essentially argue that Fischer never incurred

a bunker fuel surcharge because it never reported passing that

charge to its U.S. customers.       However, bunker fuel surcharges

differ from bunker fuel adjustments – a shipper levies a bunker

fuel surcharge on its customer under their transport agreement,

whereas the shipping customer levies a bunker fuel adjustment upon

its own customers under a separate agreement.      See Pls.’ Br. at
Court No. 11-00321                                                      Page 10

10–11.    Accordingly,    the    bunker     fuel   surcharge    in    Fischer’s

shipping arrangements are distinct from the bunker fuel adjustments

in Fischer’s U.S. sales contracts.          The fact that Fischer did not

report the receipt of a bunker fuel adjustment during the POR does

not mean that Fischer or its affiliates did not pay a bunker fuel

surcharge.     Just as Commerce concluded during the review, here

Plaintiffs “conflate[] the bunker fuel surcharge at issue here with

the bunker fuel adjustments.”          I&D Memo at 24.    Thus, Plaintiffs

fail to identify any evidence demonstrating that Fischer did not

incur a bunker fuel surcharge.

      Moreover, record evidence clearly indicates that Fischer did

in fact incur a bunker fuel surcharge during the POR.             See P.R. 71

Ex. 3.   As noted above, Fischer submitted an invoice from the POR

indicating that [[       ]] charged Citrosuco, Fischer’s affiliate,

$[[      ]]/MT for shipments to the U.S., including a bunker fuel

surcharge of $[[        ]]/MT.     Id.     The invoice indicates that the

total cost of shipping was $[[                      ]], including a bunker

fuel surcharge of $[[                  ]] for shipments to the U.S.          Id.

The   record   also   contains     a    partial    payment,    id.,    and     an

accompanying explanation indicating that Fischer still owed payment

on the full outstanding balance.          See id. at 3.       Fischer neither

challenged the $[[              ]] bunker fuel surcharge on the invoice

nor indicated any intention to refuse payment.            See id.       Because

record evidence indicates that Fischer incurred a bunker fuel
Court No. 11-00321                                                   Page 11

surcharge, Commerce’s decision to include that charge in the

surrogate rate was supported by substantial evidence.

        Alternatively, Plaintiffs argue that “Commerce could deduct

[the bunker fuel surcharge] only if Fischer’s U.S. customers did

not reimburse the expense.”          Pls.’ Br. at 12.     Plaintiffs contend

that the bunker fuel surcharge should not be included in the

international freight expenses because Fischer would have been

reimbursed by its U.S. customers, resulting in a net expense of

zero.    Id. at 13.    Accordingly, they insist that the international

freight expenses should only include the base freight rate from the

STS Agreement.       Id.     Essentially, Plaintiffs argue that Commerce

should have offset the bunker fuel surcharge with the bunker fuel

adjustment that would have been paid as a reimbursement.            See id.

        When adjusting EP under 19 U.S.C. § 1677a(c)(2)(A), Commerce

is   permitted    to       offset   expenses   incurred   with   refunds   or

reimbursements for those expenses.             Florida Citrus, 550 F.3d at

1111. The rationale for granting offsets is the same rationale for

making any other adjustment to EP under the statute: “because the

resulting amount accurately represents the importer’s overall duty

liability.”    Id.

        Plaintiffs ask the court to apply the holding in Florida

Citrus and remand the instant case so that Commerce may recalculate

Fischer’s international freight expenses with an offset for an

unreported bunker fuel adjustment.             Pls.’ Br. at 13.     However,
Court No. 11-00321                                                      Page 12

Plaintiffs’ reliance on Florida Citrus is flawed.                    In Florida

Citrus, the plaintiffs, a domestic industry, challenged Commerce’s

decision    to   offset   import   duties     with     drawback    duties5   when

adjusting EP under 19 U.S.C. § 1677a(c)(2)(A). Florida Citrus, 550

F.3d at 1108.       The Court of Appeals for the Federal Circuit

(“Federal   Circuit”)     held   that   19    U.S.C.    §   1677a(c)(2)(A)     is

ambiguous as to whether “import duties” meant “gross import duties”

or “net import duties.”        Id. at 1110.    In light of this ambiguity,

the Federal Circuit found that granting offsets for reimbursements

“enable[d] a fair ‘apples-to-apples’ comparison” between EP and NV,

resulting in a more accurate measurement of dumping margin. Id. at

1111. Accordingly, the Federal Circuit upheld Commerce’s decision,

concluding that the drawback duty refunds were “contingent upon and

related to importing merchandise because they cannot be claimed

without first importing the merchandise and paying the duties to

Customs.”    Id.

     Conversely, in the instant case, the interests of accuracy and

fairness    would   not   be   served   by    offsetting     the   bunker    fuel

surcharges with the hypothetical reimbursement Plaintiffs claim.

Here, the record indicates Fischer incurred a bunker fuel surcharge



     5
       The drawback program “permits importers to claim
reimbursement of 99 percent of U.S. duties paid on imports when
‘commercially interchangeable’ merchandise is either (1) exported
from the United States, or (2) destroyed within three years of
the date of importation.” Florida Citrus, 550 F.3d at 1109
(citing 19 C.F.R § 191.32(a)).
Court No. 11-00321                                                    Page 13

during the POR.    See P.R. 71 Ex. 3.      But, as Plaintiffs admit in

their brief, Fischer did not receive a bunker fuel adjustment

during the POR.      Pls.’ Br. at 12.      Put simply, Plaintiffs are

asking for a reduction in expenses for a reimbursement that did not

occur. Granting an offset in the instant case would be contrary to

the holding in Florida Citrus, as it would neither “enable a fair

‘apples-to-apples’    comparison”   nor    result   in   a   more   accurate

dumping margin.    Cf. Florida Citrus, 550 F.3d at 1111.        Commerce’s

decision not to offset the bunker fuel surcharge with an unrealized

reimbursement was reasonable.      Thus, Commerce’s decision to adjust

the EP based upon the full rate from the STS Agreement, including

the bunker fuel surcharge, was supported by substantial evidence

and otherwise in accord with the law.

                       II. Window Period Sales

     Commerce     calculated   Fischer’s     CV     profit    ratio    using

information from all of Fischer’s reported home-market sales,

including the Window Period sales that occurred outside the POR.

See Preliminary Results, 76 Fed. Reg. at 19,317. Plaintiffs allege

that Commerce’s use of sales outside the POR to calculate CV profit

ratio violated 19 C.F.R. § 351.414(f) and Commerce’s own internal

guidelines.6    Pls.’ Br. at 14.     However, Fischer failed to raise

     6
         Commerce’s Antidumping Manual states:

     Where no sales of the like product are made in the
     exporting country in the month of the U.S. sale,
     [Commerce] will attempt to find a weighted-average
Court No. 11-00321                                                Page 14

this   issue   before   Commerce   in   the   proper   manner,   and   thus

Plaintiffs are precluded from raising it before the court.         See 28

U.S.C. § 2637(d).

       As a general rule, this Court “shall, where appropriate,

require the exhaustion of administrative remedies.” Id. The Court

of International Trade (“CIT”) “has ‘generally take[n] a strict

view of the need [for parties] to exhaust [their] remedies by

raising all arguments’ in a timely fashion so that they may be

appropriately addressed by the agency.”        Corus Staal BV v. United

States, 30 CIT 1040, 1048 (2006) (not published in the Federal

Supplement), aff’d 502 F.3d 1370 (Fed. Cir. 2007), (quoting Pohang

Iron & Steel Co. v. United States, 23 CIT 778, 792 (1999) (not

reported in the Federal Supplement)) (alterations in Corus Staal).

“In the antidumping context, Congress has prescribed a clear, step-

by-step process for a claimant to follow, and the failure to do so

precludes it from obtaining review of that issue in the [CIT].”

JCM, Ltd. v. United States, 210 F.3d 1357, 1359 (Fed. Cir. 2000)

(citing Sandvik Steel Co. v. United States, 164 F.3d 596, 599–600

(Fed. Cir. 1998)).

       The exhaustion requirement is subject to limited exceptions,


     monthly price one month prior, then two months prior, and
     then three months prior to the month of the U.S. sale. If
     unsuccessful, we will then look one month after and
     finally two months after the month of the U.S. sale.
Import Administration, Antidumping Manual, ch. 6, p. 7 (Oct. 13,
2009).
Court No. 11-00321                                                        Page 15

which include:

     (1) [P]laintiff raised a new argument that was purely
     legal and required no further agency involvement; (2)
     plaintiff did not have timely access to the confidential
     record; (3) a judicial interpretation intervened since
     the remand proceeding, changing the agency result; (4) it
     would have been futile for plaintiff to have raised its
     argument at the administrative level.
Corus Staal BV v. United States, 30 CIT at 1050 n.11 (citing Budd

Co., Wheel & Brake Div. v. United States, 15 CIT 446, 452 n.2, 773

F.Supp. 1549, 1555 n.2 (1991)).            Additionally, where a party

properly challenges a ministerial error following the final results

of an administrative review, that party will be deemed to have

exhausted its administrative remedies with regards to that error.

See 19 U.S.C. § 1673d(e) (“The administering authority shall

establish procedures for the correction of ministerial errors in

final     determinations   within    a     reasonable      time       after    the

determinations are issued under this section.”).

     It is undisputed that Fischer did not challenge Commerce’s use

of Window Period sales outside the POR in its case brief before

Commerce. See Pls.’ Reply Supp. Mot. J. Agency R. at 4 (“Pls.’

Reply”)    (“Fischer   presented    this   to   Commerce    .     .   .   in   its

ministerial error comments.”); Def.’s Br. at 15. Further, none of

the recognized exceptions to the exhaustion requirement apply. The

timeliness of Plaintiffs’ access to confidential records is not at

issue.    Commerce’s determination was not altered by an intervening

judicial opinion.      The exception for purely legal questions does

not apply because Plaintiffs do not challenge the legality of 19
Court No. 11-00321                                                   Page 16

C.F.R. § 351.414(f) or Commerce’s internal guidelines in and of

themselves. See Fuwei Films (Shandong) Co. v. United States, 35 CIT

__, __, 791 F. Supp. 2d 1381, 1384 (2011) (The purely legal issue

exception “only might apply for a clear statutory mandate that does

not implicate Commerce's interpretation of [a] statute”). Finally,

the   futility   exception   does    not   apply   because   there    is   no

indication that Fischer would have been “‘required to go through

obviously useless motions in order to preserve [its] rights.’” See

Corus Staal BV v. United States, 502 F.3d at 1379 (quoting Bendure

v. United States, 554 F.2d 427, 431 (Ct. Cl. 1977)).                 Fischer

should have raised this issue in its case brief, even if Commerce

was unlikely to accept it.    See id. (“The mere fact that an adverse

decision may have been likely does not excuse a party from a

statutory or regulatory requirement that it exhaust administrative

remedies.”).

      Instead, Plaintiffs argue that Fischer properly raised the

Window Period sales issue as a ministerial error.        See Pls.’ Reply

at 6–9.   As noted above, Commerce rejected Fischer’s ministerial

error comments because they did not describe a ministerial error.

I.A.P.R. 19 at 2.    Plaintiffs make the same claim here, alleging

that the inclusion of the Window Period sales, insofar as it

violates 19 C.F.R. § 351.414(f) and Commerce’s internal guidelines,

must be a ministerial error.        See Pls.’ Reply at 8.     Plaintiffs’

argument must fail for two reasons: First, Commerce’s decision to
Court No. 11-00321                                                       Page 17

reject Fischer’s ministerial error comments was reasonable, and

second, allowing Plaintiffs to use the ministerial error procedure

in order to avoid claim preclusion on a substantive issue would

allow the ministerial error exception swallow the administrative

exhaustion requirement.

       By definition, “ministerial errors” are “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 the administering authority

considers ministerial.” 19 U.S.C. § 1673d(e). “Ministerial errors

‘are    by    their   nature    not    errors    in    judgment    but    merely

inadvertencies.’”      SGL Carbon LLC v. United States, 36 CIT __, __,

819 F. Supp. 2d 1352, 1363 (2012) (quoting NTN Bearing Corp. v.

United States, 74 F.3d 1204, 1208 (Fed. Cir. 1995).                 This Court

affords      substantial   deference      to    Commerce’s       determinations

regarding ministerial error.          See Shangdong Huarong Gen. Corp. v.

United States, 25 CIT 834, 848, 159 F. Supp. 2d 714, 727–28 (2001)

aff’d 60 Fed. App’x 797 (Fed. Cir. 2003) (“Statute, regulations,

and case law largely leave the question of what constitutes a

‘ministerial error’ to Commerce's discretion.”).

       Commerce properly determined that Fischer’s Window Period

sales claim did not concern ministerial error.              In its ministerial

error     comments,   Fischer    argued      that     Commerce    “committed   a

ministerial error when it neglected to include specific programming
Court No. 11-00321                                                Page 18

language . . . to exclude home market sales occurring outside the

[POR].”    I.A.P.R. 17 at 3.      Commerce concluded that “Fischer’s

allegation involve[d] a methodical issue,” I.A.P.R. 19 at 2, and

refused to alter the final results. Id.       Indeed, Commerce’s use of

Window Period sales was not an inadvertent computer programming

error, but rather a method for calculating CV profit ratio.           See

id.; Certain Steel Wire Rod from France, 63 Fed. Reg. 30,185,

30,187 (June 3, 1998) (using a respondent’s Window Period sales to

calculate CV profit ratio).       Fischer mischaracterized the issue

before Commerce — and again in its reply brief — as an inadvertent

mistake so that it would fit within the definition of ministerial

error.    By questioning Commerce’s intentional decision to measure

CV profit ratio using sales outside the POR, Fischer actually

challenged Commerce’s interpretation of 19 C.F.R. § 351.414(f) and

its own guidelines.      See SGL Carbon, 36 CIT at __, 819 F. Supp. 2d

at 1363.     Because Fischer’s argument did not concern clerical

error, miscalculation, or other ministerial error, Commerce’s

decision to reject it was proper.      See 19 U.S.C. § 1673d(e).

     Furthermore, the court will not allow Plaintiffs to make an

end run around the exhaustion requirement by entertaining an

unexhausted substantive issue disguised as a ministerial error.

Because    ministerial   errors   concern   clerical   and   mathematical

mistakes, the ministerial error procedure is not the appropriate

method for a party to raise a new, substantive legal argument. See
Court No. 11-00321                                                    Page 19

19 U.S.C. § 1673d(e); Ta Chen Stainless Steel Pipe, Ltd. v. United

States, 28 CIT 627, 644, 342 F. Supp. 2d 1191, 1205 (2004) (“The

prescribed remedy for challenging Preliminary Results issued by

[Commerce] is to file a case brief with the agency setting forth

objections.”). Plaintiffs may have phrased their argument in terms

of   inadvertent   error,   but   they    actually   offer    a   substantive

interpretation of 19 C.F.R § 351.414(f) and Commerce’s Antidumping

Manual to support that argument. See Pls.’ Br. at 14–17. Allowing

Plaintiffs to make this argument before the court betrays the

purpose of the ministerial error procedure and undercuts the

exhaustion requirement.      This would enable a party to preserve a

substantive legal challenge to Commerce’s determination using the

protection   of    the   ministerial     error   process,    thus   depriving

Commerce of its opportunity to defend its decision at the proper

time. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S.

33, 37 (1952) (“[O]rderly procedure and good administration require

that objections to the proceedings of an administrative agency be

made while it has opportunity for correction in order to raise

issues reviewable by the courts.”).              Plaintiffs can challenge

Commerce’s ministerial error decision, but they cannot abuse that

opportunity by introducing a new substantive legal claim before the

court. See 19 U.S.C. § 1673d(e); Ta Chen, 28 CIT at 644, 342 F.

Supp. 2d at 1205.        Accordingly, Plaintiffs are precluded from

arguing their Window Period sales claim.
Court No. 11-00321                                                              Page 20

                                        III. Zeroing

       Plaintiffs allege that Commerce’s use of zeroing was wrongful

because Commerce failed to provide an adequate explanation to

justify its practice of zeroing to calculate WADM during reviews

but not investigations.              Pls.’ Br. at 20.       In response, Commerce

argues      that     inherent      differences     between     investigations         and

reviews,        as   explained      in    the   I&D    Memo,   provide    sufficient

justification for its practice of zeroing during reviews while

offsetting during investigations.                Def.’s Br. at 20–31.7

                                     A. Background

       “Zeroing”       refers      to    a    method   of   calculating        WADM    by

aggregating          only    the    positive     dumping    margins     from     dumped

transactions and assigning all non-dumped transactions a dumping

margin of zero.             See Timken Co. v. United States, 354 F.3d 1334,

1338 (Fed. Cir. 2004).              Alternatively, Commerce also calculates

WADM       by   offsetting         positive     dumping     margins   from       dumped

transactions          with    negative       dumping   margins   from     non-dumped

       7
       In its brief, Commerce also raises two additional arguments
which were already rejected by the Federal Circuit: (1) the Federal
Circuit previously upheld zeroing as a reasonable interpretation of
19 U.S.C. § 1677(35); and (2) it only changed its zeroing policy in
order to comply with an adverse WTO ruling. In Dongbu Steel Co. v.
United States, the Federal         Circuit held that Commerce’s
inconsistent interpretation of the statute was a novel issue so it
was not bound by earlier decisions upholding zeroing as a
reasonable interpretation of 19 U.S.C. § 1677(35). See 635 F.3d
1363, 1371 (Fed. Cir. 2011). The Federal Circuit also held that
the adverse WTO determination, on its own, was insufficient to
justify an inconsistent interpretation of 19 U.S.C. § 1677(35).
See id. at 1372.
Court No. 11-00321                                                         Page 21

transactions at the aggregation stage.

     At one point, Commerce calculated WADM using zeroing during

both investigations, where it compares the average NV with the

average     EP       of     subject         merchandise      (“average-to-average

comparisons”), as well as administrative reviews, where it compares

the average NV with the EP of individual transactions (“average-to-

transaction comparisons”).               See Corus Staal BV v. Department of

Commerce, 395 F.3d 1343, 1347 (Fed. Cir. 2005) (holding that

zeroing is permissible during investigations); Timken Co., 354 F.3d

at 1342 (holding that 19 U.S.C. § 1675(35) neither requires nor

prohibits    zeroing       during     administrative      reviews).    Recently,

however, Commerce decided to abandon its practice of zeroing during

investigations involving average-to-average comparisons following

a determination by the World Trade Organization (“WTO”) that this

practice    violated       the     U.S.’s    international    obligations.    See

Antidumping      Proceedings:        Calculation     of   the   Weighted-Average

Dumping     Margin        During    an      Antidumping   Investigation;     Final

Modification, 71 Fed. Reg. 77,722 (Dec. 27, 2006).                      Commerce

continues to use zeroing to calculate WADM during administrative

reviews, Def.’s Br. at 29, resulting in an inconsistent application

of 19 U.S.C § 1677(35)(A) as between administrative reviews and

investigations.8


     8
       Although WADM is codified in 19 U.S.C § 1677(35)(B), the
definition of an individual “dumping margin” in 19 U.S.C §
1677(35)(A) will control what dumping margins are being aggregated
Court No. 11-00321                                             Page 22

     Following this policy shift, the Federal Circuit held that

Commerce’s inconsistent interpretation of 19 U.S.C § 1677(35) was

arbitrary and required Commerce to either explain why its approach

was reasonable or adopt a consistent approach.      See JTEKT Corp. v.

United States, 642 F.3d 1378, 1384–85 (Fed. Cir. 2011); Dongbu, 635

F.3d at 1373.    In JTEKT Corp., Commerce explained that it zeroes

during     reviews   because   they   involve   average-to-transaction

comparisons, whereas during investigations it offsets because it is

making average-to-average comparisons.      See JTEKT Corp., 642 F.3d

at 1384.     The Federal Circuit rejected Commerce’s explanation,

holding that “[i]t is not illuminating to the continued practice of

zeroing to know that one phase uses average-to-average comparisons

while the other uses average-to-transaction comparisons.”      Id.

     Following Dongbu and JTEKT, this Court upheld Commerce’s

inconsistent interpretation of 19 U.S.C. § 1677(35) in Union Steel

v. United States, 36 CIT __, 823 F. Supp. 2d 1346 (2012) (appeal

pending).9    Accepting Commerce’s argument that there were inherent


in the WADM calculation under 19 U.S.C § 1677(35)(B).
     9
       This Court also upheld Commerce’s explanation for zeroing
in Grobest & I-Mei Indus. (Vietnam) Co., Ltd. v. United States, 36
CIT __, 853 F. Supp. 2d 1352 (2012), which was decided after the
defendant and defendant-intervenors’ filed their briefs.
Specifically, this Court found that during investigations
offsetting is reasonable because “Commerce adopts a methodology
intended to capture overall pricing behavior for the purpose of
determining who should and should not fall within the purview of an
antidumping order,” id. at __, 853 F. Supp. 2d at 1361 while during
reviews, Commerce zeroes because “a methodology that establishes
the antidumping duty with greater accuracy is warranted both
Court No. 11-00321                                             Page 23

differences in the way dumping margin is calculated as between

reviews and investigations, respectively, this Court concluded that

such differences were “sufficient to permit different approaches.”

Id. at __, 823 F. Supp. 2d at 1358.    The issue before the court is

whether Commerce adequately explained why differences between

reviews and investigations justify calculating WADM differently in

each stage — as it did in Union Steel — so as to satisfy the

standard set out in Dongbu and JTEKT.

                            B. Analysis

     Commerce argues that the use of zeroing to calculate dumping

margin during reviews but not investigations is reasonable because

inherent differences between the two processes permit it to treat

non-dumped transactions differently.    See I&D Memo at 4–8.    During

administrative reviews, Commerce interprets 19 U.S.C. § 1677(35)(A)

in the following manner: “[A] dumping margin exists only where NV

is greater than export price. . . . Because no dumping margins

exist with respect to sales where NV is equal to or less than EP or

[Constructed EP], [Commerce] will not permit these non-dumped sales

to offset the amount of dumping found with respect to other sales.”

I&D Memo at 4–5. Commerce disregards non-dumped transactions at the

aggregation stage so that it can detect and counteract the effects

of masked dumping – selling at high prices to disguise other sales


because the importer must actually pay the resulting antidumping
duty and because it serves to uncover masked dumping.” Id. at __,
853 F. Supp. 2d at 1361.
Court No. 11-00321                                                    Page 24

at less than fair value – which would otherwise be obscured by high

priced sales.   Id. at 5.     Non-dumped sales still impact WADM as the

aggregated dumping margin is divided by the total value of U.S.

sales, which includes both dumped and non-dumped sales.                 Id.

      During investigations, on the other hand, Commerce includes

the non-dumped sales because it calculates dumping margin “at an

‘on average’ level” for all U.S. sales.          I&D Memo at 6.   Commerce

explains that it “averages together high and low prices for

directly comparable merchandise prior to making the comparison.”

Id.    Commerce calculates a dumping margin for each group by

comparing NV with an EP reflecting the average price of all sales

in that group, including non-dumped transactions.               Id.      Each

group’s dumping margin inherently includes non-dumped sales, id.,

and therefore Commerce offsets positive margins with negative

margins to determine the average extent of dumping activity.             Id.

Because   dumping    margin    is   calculated    differently   during    an

investigation than during a review, Commerce contends that its

approach to 19 U.S.C. § 1677(35) is justified.         Id. at 5.

      Plaintiffs contend that Commerce’s explanation was already

rejected by the Federal Circuit in JTEKT Corp. and thus fails to

justify the continued practice of zeroing during reviews but not

investigations.      Pls.’ Br. at 20.       When assessing Commerce’s

interpretation of 19 U.S.C. § 1677(35), this court undertakes the

two-prong analysis from Chevron U.S.A. v. NRDC, 467 U.S. 837,
Court No. 11-00321                                                 Page 25

842–43 (1984).    The first issue is “whether Congress has directly

spoken to the precise question at issue.”               Id. at 842.      If

Congressional intent is clear, “the court, as well as the agency,

must    give   effect   to   the   unambiguously    expressed   intent   of

Congress.”     Id. at 842–43.      However, “if the statute is silent or

ambiguous with respect to the specific issue, the question for the

court is whether the agency's answer is based on a permissible

construction of the statute.”          Id.    at 843.   For the following

reasons, this court accepts Commerce’s explanation of its zeroing

practice.

       Congress has not spoken directly on the issue of zeroing. See

Dongbu, 635 F.3d at 1366; Timken Co., 354 F.3d at 1342. Therefore,

the issue is whether Commerce’s inconsistent interpretation of 19

U.S.C. § 1677(35) is reasonable.             See Nat’l Org. of Veterans’

Advocates, Inc. v. Sec’y of Veterans’ Affairs, 260 F.3d 1365,

1379–80 (Fed. Cir. 2001) (where an agency offers inconsistent

interpretations of the same term, it “must explain the rationale

for the different interpretations”).          While a term should not be

given contradictory meanings throughout the statute, “terms may be

interpreted differently in different contexts.”          Union Steel, 823

F. Supp. 2d at 1358 (citing FAG Kugelfischer Georg Schafer Ag v.

United States, 332 F.3d 1370, 1373 (Fed. Cir. 2003)).

       Here, Commerce provides a sufficient explanation justifying

its policy of zeroing during reviews but not investigations.             In
Court No. 11-00321                                               Page 26

JTEKT Corp., Commerce merely pointed out that reviews involve

average-to-transaction    comparisons     while    investigations      use

average-to-average comparisons, see JTEKT Corp., 642 F.3d at 1384,

but, in the I&D Memo, Commerce demonstrated how these differences

impact the WADM calculation. See I&D Memo at 4–6. During reviews,

where Commerce is considering the sales of a respondent subject to

an antidumping order, Commerce looks at the dumping activity at the

transactional level in order to uncover masked dumping. Id. at 5.

It is reasonable for Commerce to disregard non-dumped transactions

– that is, to zero – at this stage because it enables Commerce to

determine the actual extent of dumping activity, without the

obscuring effect of non-dumped transactions.       This interpretation

of 19 U.S.C. 1677(35)(A) is consistent with the goal of the

antidumping   statute,   which   seeks   to   remedy   dumping   and   the

resulting injury to domestic industries.       See Chaparral Steel Co.

v. United States, 901 F.2d 1097, 1103 (Fed. Cir. 1990) (citing

Imbert Imports, Inc. v. United States, 331 F. Supp. 1400, 1406

(Cust. Ct. 1971), aff’d 475 F.2d 1189 (C.C.P.A. 1973).       This Court

accepted a similar justification for zeroing in Union Steel,

concluding that “when it comes to reviews, which are intended to

more accurately reflect commercial reality, Commerce is permitted

to unmask dumping behavior is a way that is not necessary at the

investigation stage.”    Union Steel, 36 CIT at __, 823 F. Supp. 2d

at 1359. Zeroing during reviews is also justified because “it is
Court No. 11-00321                                                            Page 27

not    unreasonable     for     Commerce      to    counteract    as   much   dumping

behavior as possible.”          Id., 823 F. Supp. 2d at 1359.

       In    the   context    of     an   investigation,       Commerce   looks    to

determine an average level of dumping activity rather than isolate

dumping activity.            I&D Memo at 6.            Zeroing is not necessary

because, unlike the individual dumping margins Commerce aggregates

during       reviews,     the       margins        Commerce    aggregates      during

investigations already include non-dumped transactions.                         Id.

Offsetting is reasonable because the resulting WADM reflects the

overall average level of dumping Commerce is looking for at this

stage.      This Court accepted this rationale for offsetting in Union

Steel,      recognizing      that    “[s]pecificity       is   less    important   in

investigations” because Commerce was comparing “broad averages.”

Union Steel, 36 CIT at __,            823 F. Supp. 2d at 1359.

       Given similarities between Commerce’s explanations in Union

Steel and in the instant case, the court finds that Commerce

adequately explained its inconsistent interpretation of 19 U.S.C.

§ 1677(35)(A).       Because it demonstrated that inherent differences

between reviews and investigations justify interpreting 19 U.S.C.

§ 1677(35)(A) differently in each context, Commerce provided a

reasonable explanation for the continued practice of calculating

WADM     using     zeroing    during      reviews      while     offsetting   during

investigations. See Nat’l Org. of Veterans’ Advocates, 260 F.3d at

1379–80.
Court No. 11-00321                                             Page 28

                              CONCLUSION

     For the foregoing reasons, the court concludes that the Final

Results are supported by substantial evidence and are otherwise in

accord with the law.

                                ORDER

     In accordance with the above, it is hereby

     ORDERED that the determination of Commerce is SUSTAINED; and

it is further

     ORDERED that this action is dismissed



                                           /s/ NICHOLAS TSOUCALAS
                                             Nicholas Tsoucalas
                                                Senior Judge
Dated:    December 6, 2012
         New York, New York
