RESTANI, Judge:
This matter is before the court on plaintiff’s challenge of the final determination in a section 751 annual review of a countervailing duty (CVD) order. Tariff Act of 1930, as amended, 19 U.S.C. § 1675 (1982 & West Supp.1985); 49 Fed.Reg. 9,923 (1984). On April 4, 1980, the International Trade Administration (ITA) of the United States Department of Commerce published a CVD order, pursuant to 19 U.S.C. § 1303 (1982), on pig iron from Brazil.
45 Fed.Reg. 23,-045 (1980). The excessive remission of Brazil’s value-added Industrial Products Tax (IPI) was among the subsidies found to be provided by the government of Brazil for exports of Brazilian pig iron. Prior to issuance of the CVD order by ITA, however, the Brazilian government announced that this excess credit would be eliminated as of December 12, 1979, and the subsidy determination was reduced accordingly. Consistent with the conclusion of the Treasury Department, ITA’s estimated duties for the eight largest exporters were calculated on a company-specific, rather than average, basis reflecting the varying bene
fits received by each of the companies from the subsidies. In both its first and second annual reviews, however, ITA switched from its company-specific CVD assessment to an average assessment, which thereby required each pig iron exporter to pay countervailing duties at the same rate. In addition, in its second annual review, ITA announced that it had learned that although the Brazilian government had begun to impose a tax to offset the IPI export credit premium, collection of that tax had been delayed. ITA concluded that the delay in collection conferred a benefit akin to an interest free loan to Brazilian pig iron exporters. ITA calculated the
ad valorem
benefit of the delay in collection of the offset tax and increased the aggregate countervailing duty rate accordingly in its second annual review, covering entries made during 1980.
Only plaintiff’s challenge of ITA’s second annual review is before the court. Plaintiff alleges that the decision to assess countervailing duties on an average basis rather than a company-specific basis was unlawful. In addition, plaintiff asserts that ITA’s second annual review was untimely and therefore contrary to law. Further, plaintiff claims that adjustment of the CVD rate due to the lag in collection of the IPI export credit premium offset tax constituted the imposition of a CVD without first establishing that such delay is in fact a subsidy. Finally, plaintiff contends that even if this delay in tax collection constitutes a subsidy, ITA’s calculation of the IPI export credit subsidy based on credits earned rather than received, required it to similarly consider the date of offset tax assessment rather than collection.
I.
Participation in Comment Period as Jurisdictional Prerequisite
Defendant raises the same jurisdictional defense, failure to exhaust administrative remedies, to plaintiff’s first two claims. Specifically, defendant maintains that plaintiff was required to participate in the comment period following the issuance of the section 751 preliminary review before seeking judicial relief. Under section 751, as it read during the period in question, ITA was required to conduct annual reviews of each CVD order.
Accordingly, the agency published its notice of “Preliminary Results of Administrative Review” concerning Brazilian pig iron. 48 Fed.Reg. 54,091 (1983). This notice invited interested parties to comment on the preliminary results.
Id.
Written comments could be submitted within thirty days of the date of publication of the notice (November 30, 1983). Parties could also “request disclosure and/or a hearing” within ten days of publication.
Id.
at 54,093. The first question confronting the court is whether plaintiff was required to submit comments or request a hearing before raising issues in this court that could have been raised before the agency.
“The general rule is that ‘administrative exhaustion of remedies is required before a litigant will be allowed to raise a claim via a civil action.’ ”
Allen v. Regan,
9 C.I.T. -, Slip Op. 85-126 at 6 (Dec. 10, 1985) (quoting
Rhone Poulenc, S.A. v. United
States,
7 C.I.T. -, 583 F.Supp. 607, 609 (1984), citing
United States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952)). Procedures governing section 751 reviews are set out in 19 C.F.R. § 355.41 (1983), promulgated by the Secretary of the Treasury. Section 355.41(d) specifically lists the various procedures that ITA set forth in its preliminary order. Thus, to have exhausted its administrative remedies, plaintiff should have either requested a hearing or offered written comments on the proposed changes. Under normal circumstances, only then would it be able to raise those issues at the judicial level.
L.A. Tucker Truck Lines,
344 U.S. at 37, 73 S.Ct. at 69 (“as a general rule ... courts should not topple over administrative decisions unless the administrative body not only had erred, but has erred against objection made at the time appropriate under its practice”);
Unemployment Compensation Commission v. Aragon,
329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136 (1946) (“[a] reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented”);
Meglio v. Merit Systems Protection Board,
758 F.2d 1576, 1577-78 (Fed.Cir. 1984) (failure to raise claim before administrative body constitutes effective waiver of right to contest).
A plaintiff’s failure to exhaust its administrative remedies is not always fatal to its case, however. This court is not required by statute to consider full exhaustion of administrative remedies a jurisdictional prerequisite to an action contesting the final determination of an annual review of a countervailing duty order. Instead, in this situation, the court “shall,
where appropriate,
require the exhaustion of administrative remedies.” 28 U.S.C. § 2637(d) (1982) (emphasis added).
See Rhone Poulenc,
7 C.I.T. at -, 583 F.Supp. at 611 (exhaustion required “where appropriate” if plaintiff satisfies prerequisite of participation under 19 U.S.C. § 1516a(a)(2)).
With regard to the average versus company-specific CVD rates issue, plaintiff contends that it should be excused from the requirement of raising the issue at the administrative level because the law, as interpreted by this court just after publication of the preliminary section 751 review, prohibited ITA from retroactively assessing countervailing duties. The day after the section 751 preliminary review was published, this court issued its decision in
Ambassador Division of Florsheim Shoe Co. v. United States,
6 C.I.T. -, 577 F.Supp. 1016 (1983),
rev’d,
748 F.2d 1560 (Fed.Cir.1984). In
Florsheim,
this court interpreted section 751 and held that ITA could not, pursuant to a periodic review, suspend liquidation of entries and impose a retroactive assessment of countervailing duties. Plaintiff’s position is that it was entitled to rely on the expectation that Commerce would act in accordance with this court’s decision in
Florsheim.
Pursuant to
Florsheim
(prior to reversal), Commerce could not have switched from the lower company-specific rates to the higher average assessment because to do so would be the retroactive assessment of countervailing duties which was barred by
Florsheim.
Defendant contended at oral argument that although
Florsheim
was arguably favorable to plaintiff, the case did not specifically address the company-specific versus average issue and was, therefore, distinguishable from plaintiff’s case. Plaintiff was, according to defendant, obliged to bring to ITA’s attention the applicability of that decision to plaintiff's case and, presumably, to raise any additional objections to the assessment of CVDs on an average basis.
The court cannot agree with defendant’s argument. It is true that
Florsheim
did not specifically address the company-specific versus average issue. The holding of that case, however, invalidating the suspension of liquidation and retroactive assessment of countervailing duties pursuant to a section 751 review, clearly would have con
trolled the case at bar had it not been reversed subsequently. Although the
Florsheim
decision was not final, in the sense that time for appeal had not run, it was sufficiently final to constitute applicable precedent.
See Rhone Poulenc
7 C.I.T. at -, 583 F.Supp. at 612 (an appealed decision remains valuable precedent until reversed). In the final results of the section 751 review in question, ITA did not deny the applicability of the lower court decision in
Florsheim.
Rather, ITA responded to a comment of the Brazilian government noting the applicability of
Florsheim
by stating, “[t]he Department [of Commerce] has appealed the
Florsheim
decision. The Department believes that its practice of retroactive collection [of CVDs] is correct and will continue to operate on that belief pending the outcome of the appeal.” 49 Fed.Reg. at 9,924. Thus, this is a situation in which ITA refused to apply the clearly applicable precedent and not one in which a party failed to argue for adherence to possibly distinguishable case law.
Even in such a situation, plaintiff might have the burden of presenting alternative arguments to ITA prior to raising those arguments to this court, but further aggravating factors exist. Plaintiffs argument to this court challenging the legality of ITA’s switch to a company-specific assessment of CVDs is based on facts available only in the confidential administrative record. The deadline for seeking access to the confidential administrative record had passed by the time plaintiff received notice of the deadline.
Nonetheless, absent the situation created by ITA’s disregard of the lower court opinion in
Florsheim,
which plaintiff had no reason to anticipate, plaintiff would not be relieved of the obligation to seek additional time to obtain access to the confidential administrative record, which it needed to make presentation of alternative arguments possible. Separately, neither of these factors necessarily tips the scale against requiring exhaustion of administrative remedies, but the result is clear if they are weighed together. The court considers it inappropriate to require plaintiff, under the doctrine of exhaustion of administrative remedies, to argue to ITA for adherence to clearly applicable precedent, to anticipate disregard of the precedent and to then raise alternative arguments to the agency, the basis for which plaintiff could not know. Thus, plaintiff is not barred by a failure to exhaust its administrative remedies and its claim that ITA’s switch to an assessment of CVDs on an average, rather than company-specific, basis is properly before this court. The court must, therefore, determine whether this decision of ITA in the section 751 review that is before this court is supported by substantial evidence on the record and is otherwise in accordance with law. 19 U.S.C. § 1516a(b)(l)(B) (1982).
II.
Company-Specific Versus Average CVD Assessment
As noted, although ITA calculated estimated CVDs on a company-specific basis in its CVD order, it then switched to an average assessment in the section 751 reviews. Plaintiff contends that ITA’s fail
ure to explain its departure from the company-specific deposit rates necessarily determines that ITA’s decision was unlawful. Defendant responds that although ITA is required, in conducting preliminary and final countervailing duty determinations, to state any material differences in the benefits received by separate enterprises, 19 C.F.R. §§ 355.28(a)(3) and 355.33(f) (1983), no such requirement exists for section 751 reviews.
In addition, defendant claims that, even if company-specific assessments might be required in particular instances, the decision to use an average assessment in the case at bar was imminently reasonable because of the lack of material differences in the benefits received by various companies. Finally, defendant argues that to require company-specific assessments in section 751 reviews would impose an unfair burden on ITA.
To begin, the fact that 19 C.F.R. §§ 355.-28(a)(3) and 355.33(f) may be inapplicable by their terms to the form of final published results of section 751 reviews does not enable ITA to disregard these regulations in conducting such reviews. Sections 355.-28(a)(3) and 355.33(f) unquestionably require company-specific benefits to be stated in preliminary and final determinations made prior to a section 751 review if companies receive materially different benefits. It cannot have been intended that ITA, once having made such a finding, simply ignore any material differences in benefits received in conducting a section 751 review. In conducting such a review, ITA is specifically required to publish “a revised Countervailing Duty Order, including any revised bases for the assessment of duties on the merchandise.” 19 C.F.R. § 355.41(d) (1983). The switch from company-specific deposit rates to an average assessment of CVDs falls within this requirement. Although the fact that an average assessment would be used was stated in both the preliminary and final results of the section 751 review, there is no indication on the record of ITA’s justification for this change to an average assessment. Whether or not ITA’s initial use of company-specific CVD deposit rates was based on a finding of “material” differences in benefits received, ITA evidently concluded that the differences were sufficiently large to warrant company-specific deposit rates.
To then
ignore such differences in the section 751 review without explanation on the record
{e.g.,
of an unavailability of the requisite data or of a discovery that such differences, in fact, do not exist) results, as here, in a determination made contrary to law.
“ ‘[T]he failure of an administrative agency to articulate the reasons for a particular decision makes meaningful review of that decision impossible.’ ”
SCM Corp. v. United States,
84 Cust.Ct. 227, 233, C.R.D. 80-2 (1980) (quoting
Public Media Center v. FCC,
587 F.2d 1322, 1331-32 (D.C.Cir. 1978), quoting
American Smelting & Refining Co. v. FPC,
494 F.2d 925, 945 (D.C.Cir.), ce
rt. denied,
419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974)).
III.
Deemed Liquidation
Plaintiff’s second claim is that the merchandise at issue should be liquidated by operation of law at the rate specified by plaintiff when it was entered because Customs failed to complete the annual review within the statutory deadline of twelve months. Plaintiff’s argument is as follows: An entry of merchandise not liquidated within one year from the entry of such merchandise is deemed liquidated at the rate of duty, value, quantity, and amount of duties specified by the importer at the time of entry unless the Secretary extends the time for liquidation. 19 U.S.C. § 1504(a) (1982 & West Supp.1985). One of the situations in which extension is allowed is when liquidation is suspended as required by statute. 19 U.S.C. § 1504(b)(2) (1982 & West Supp.1985). Plaintiff argues that although liquidation in this case was originally suspended for the periodic review,
Ambassador Division of Florsheim Shoe v. United States,
748 F.2d 1560, 1563 (Fed.Cir.1984), the suspension automatically terminated at the end of the twelvemonth period allowed for the review. Once a suspension terminates, an entry is liquidated within ninety days. 19 U.S.C. § 1504(d) (1982 & West Supp.1985). Plaintiff contends that pursuant to this scheme, the merchandise was liquidated on July 4, 1983.
In several other contexts courts have recognized that statutory time periods are directory, as opposed to mandatory, when no restraint is affirmatively imposed on the doing of the act after the time specified and no adverse consequences are imposed for the delay.
Usery v. Whitin Machine Works, Inc.,
554 F.2d 498, 501 (1st Cir. 1977) (Secretary of Labor’s decision on petition for trade adjustment assistance);
Fort Worth National Corp. v. Federal Savings & Loan Insurance Corp.,
469 F.2d 47, 58 (5th Cir.1972) (Federal Savings and Loan Insurance Corp. decision on application for acquisition of institution insured by the Corp.);
Katunich v. Donovan,
7 C.I.T. -, 594 F.Supp. 744, 748-50 (1984) (same program as
Usery)) Alberta Gas Chemicals, Inc. v. United States,
1 C.I.T. 312, 315-16, 515 F.Supp. 780, 785 (1981) (Treasury determination regarding dumping complaint)
;
Diamond Match Co. v. Unit
ed States,
44 Cust.Ct. 67, 74-75, 181 F.Supp. 952, 959 (1960) (notification by Customs collector of filing of protest),
aff'd,
49 C.C.P.A. 52, C.A.D. 796 (1962). As discussed above, the statute in question in this case does not purport to restrain ITA from acting after the twelve-month period has passed. The more problematic issue is whether the statute imposes the adverse consequence for the delay, which plaintiff seeks to have imposed on ITA. The Court of Appeals for the Federal Circuit has noted “that both § 1504 and the provisions respecting countervailing duties, such as § 1675(a), were enacted as in
pari materia
, both being amendments to ... the Tariff Act of 1930, and therefore a legislative intent to have them work harmoniously together, and for neither to frustrate the other ... is very much to be inferred.”
Florshiem,
748 F.2d at 1565 (discussing 19 U.S.C. §§ 1504 and 1675(a)). Although these two provisions are to be read in tandem, and the suspension is to be implied, there is nothing in the statute or legislative history that compels the conclusion that the implied suspension automatically terminates at the close of the twelve-month period specified in section 751. Thus, in this situation, the court is unable to conclude that the statute imposes a penalty of deemed liquidation for the delay. Although ITA’s failure to comply with the statutory time limit is not condoned by this court, this failure to act in a timely manner did not deprive ITA of jurisdiction to complete the section 751 review.
IV.
Lag in Collection of Offset Tax
Plaintiff alleges that ITA’s treatment of the lag time in collection of the IPI export credit offset tax is not supported by substantial evidence and is not in accordance with law. Plaintiff contends that the benefit conferred due to the lag time between Brazil’s assessment and collection of the tax is not a countervailable subsidy. In the alternative, plaintiff claims that even if this is a countervailable subsidy, ITA was not justified in imposing a CVD for this gap in collection. The CVD assessment on the IPI export credit program was based on the time at which credits were earned rather than received. To be consistent with the assessment of CVDs based on credits earned rather than received, plaintiff argues that the impact of the offset tax should be determined from the date the taxes were assessed rather than collected. Defendant offers two alternative arguments to counter plaintiff’s contentions here.
Defendant first argues that plaintiff is barred from a judicial challenge to the assessment of CVDs based on export credits earned rather than credits received because plaintiff failed to raise this issue at the administrative level. ITA did not take account of this lag in offset tax collection, however, until its final decision concerning the section 751 review under consideration. Therefore, insofar as plaintiff argues for consistency in ITA’s assessment of CVDs, there was no opportunity to raise the issue at the administrative level. Thus, even if the
Florsheim
decision, and other events discussed previously, had not intervened, plaintiff would not be barred from raising this issue before the court.
In the alternative, defendant asserts that its treatment of the lag in tax collection was within ITA’s statutorily prescribed discretion under 19 U.S.C. § 1677(6)(C) (1982) to calculate an allowance for taxes imposed by the foreign government to offset a subsidy.
Thus, defendant charac
terizes the treatment of the lag in tax collection
not
as the imposition of a distinct CVD but rather as an adjustment in the allowance for the offset tax. In enacting this provision, Congress stated that “[i]n determining the amount of offsets which are permitted, it is expected that the administrative authority will only offset amounts which are
definitively established by reliable, verified evidence.”
S.Rep. No. 249, 96th Cong., 1st Sess. at 86,
reprinted in
1979 U.S.Code Cong. Ad.News 381, 472 (emphasis added). Defendant argues that the use of the word “may” in section 1677(6)(C) places within ITA’s sole discretion the decision of whether to allow an offset in calculating the net subsidy.
The government seems to argue that the manner of the calculation of the offset is, therefore, nonreviewable. The court doubts that that is truly the intent of Congress here. ITA undoubtedly has discretion in deciding whether to allow an offset, but discretion as to its manner of calculation is not unlimited. As stated by the Supreme Court, judicial review is precluded only “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ”
Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945) (legislative history of APA)). This court has recognized that “judicial review of final agency action is not precluded unless there is persuasive reason to believe that this was the intention of Congress.”
Maple Leaf Fish Co. v. United States,
5 C.I.T. 275, 278, 566 F.Supp. 899, 902 (1983) (citing
Overton Park, supra; Data Processing Service v. Camp,
397 U.S. 150, 156-57, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970);
Abbott Laboratories v. Gardner,
387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (judicial review under APA allowed absent “persuasive reason to believe” Congress intended otherwise)).
In the area of international trade, agency and executive determinations have generally been found to be nonreviewable, or reviewable only for procedural irregularities, only in areas where there truly is no law to apply such as the “multifaceted judgmental decision to settle a claim,”
Montgomery Ward & Co. v. Zenith Radio Corp.,
69 C.C.P.A. 96, 108, 673 F.2d 1254, 1262 (Fed.Cir.1982) (Secretary of Commerce’s settlement agreement in antidumping matter), and in those areas fraught with foreign affairs considerations.
See Florsheim Shoe Co. v. United States,
744 F.2d 787, 793 (Fed.Cir.1984) (decision regarding duty-free treatment under Generalized System of Preferences is “intimately involved with foreign affairs”);
Sacilor, Aciertes Et Laminoirs De Lorraine v. United States,
9 C.I.T. -, 613 F.Supp. 364, 369-70 (1985) (allowance of additional imports under “short supply” exception is within realm of foreign affairs),
appeal docketed,
No. 85-2706 (Fed.Cir. Aug. 26, 1985). The decision in question, the manner in which an offset is calculated by ITA, falls within neither of these categories and, in fact, Congress not only specifically pro
vided for judicial review in this area, but also gave guidance as to the type of evidence that would support an offset. The court concludes that there is “law to apply” to the manner in which ITA calculates an offset under this section and, as such, if an offset has been allowed it must be calculated in a way that does not amount to an abuse of whatever discretion is allowed.
See Montgomery Ward,
69 C.C.P.A. at 107, 673 F.2d at 1261 (“If an action is discretionary but there is law from which a court may determine that the exercise of discretion is arbitrary or capricious, or not in accordance with law, the decision itself may be reviewed on that limited basis.”)
ITA initially allowed an offset in this case because it believed that an export tax, which nullified the IPI export credit subsidy, had been assessed on June 26, 1981, by the Brazilian government. Prior to issuance of its “final review” in the second section 751 review, however, ITA discovered that the Brazilian government did not begin to collect the offsetting export tax until December 31, 1982. ITA concluded that “the lag in collection was
equivalent to an interest free loan
in the amount of the tax owed rolled over monthly until the tax was actually paid.” 49 Fed.Reg. at 9,925 (emphasis added). The “loan” was deemed to have been made on the date on which the tax was due, which, under current practice, was determined to be forty-five days after the end of the month in which the shipment earning premium occurred. ITA calculated the
ad valorem
benefit of this delay to be .95 percent, using the monthly Banco de Brasil rate for discounts of accounts receivable of 4.97 percent.
Id.
Plaintiff asserts that what ITA did here was to impose a CVD based on the lag in tax collection without first establishing that such lag constitutes a eountervailable subsidy. At oral argument, defendant claimed, to the contrary, that its reference to the lag in collection as an “interest free loan” was merely by way of analogy and that ITA was, in fact, adjusting the offset allowed under 19 U.S.C. § 1677(6)(C) to reflect the fact that the offset tax imposed was not collected immediately rather than recognizing another form of subsidy. The administrative record provides no guidance as to whether ITA did in fact treat the lag in tax collection as a separate eountervailable subsidy or whether ITA simply adjusted the offset allowed under section 1677(6)(C). Inasmuch as this matter is remanded for a related purpose, and inasmuch as plaintiff had no opportunity to comment on this late-arising issue, the court deems it appropriate for ITA to review this aspect of its order as well. It appears to the court that if ITA treats the lag in tax collection as an interest free loan justifying imposition of a CVD, it must first be established that such lag is in fact a eountervailable subsidy within the meaning of the statute.
Compare, e.g., Carlisle Tire and Rubber Co. v. United States,
5 C.I.T. 229, 564 F.Supp. 834 (1983) and
Cabot Corp. v. United States,
9 C.I.T. -, 620 F.Supp. 722 (1985) (limits of eountervailable subsidies based on general availability). In the alternative, if ITA treats the alleged .95 percent
ad valorem
benefit of the delay between imposition and collection of the offset tax as an adjustment to the CVD offset allowed under section 1677(6)(C), ITA should address the arguments raised by plaintiff concerning its methodology.
V.
Conclusion
For the above reasons the court concludes that the second annual review was not conducted in accordance with law. This matter is remanded to ITA for further action consistent with this opinion.