See U.H.F.C., 916 F.2d at 701 (holding that Commerce erroneously used BIA based on respondent's failure to submit the product's COP data, when that data was not relevant in the adjustment calculations). Similarly, SKF misreads Koyo Seiko Co. v. United States, 92 F.3d 1162 (Fed. Cir. 1996). SKF asserts that Koyo prohibits the disparate treatment of billing adjustments in FMV calculations. SKF's Mem. Supp. Mot. J. Agency R. at 19.
This court has documented the details of Commerce's administrative reviews of TRBs in dozens of opinions. See, e.g., NSK Ltd. v. United States, 115 F.3d 965 (Fed. Cir. 1997); Koyo Seiko Co. v. United States, 92 F.3d 1162 (Fed. Cir. 1996); Torrington Co. v. United States, 82 F.3d 1039 (Fed. Cir. 1996); Koyo Seiko Co. v. United States, 66 F.3d 1204 (Fed. Cir. 1995). Therefore, this opinion need not repeat a historical review of Commerce's investigation.
An exception is the "Roller Chain" rule. Under this rule, Commerce excludes from its dumping analysis imported merchandise used in finished products which are sold to an unrelated person, where the imported merchandise constitutes an insignificant percentage of the finished products. See H.R. Rep. No. 93-571, at 70 (1973); Koyo Seiko Co., Ltd. v. United States, 92 F.3d 1162, 1165-66 (Fed. Cir. 1996). The Roller Chain rule is not implicated in this appeal.
To calculate the appropriate dumping rate for second-tier firms, Commerce selects the higher of (1) the firm's less-than-fair-value margin for the subject merchandise, or (2) the highest calculated rate in the current review for the class or kind of merchandise from the same country of origin. See Koyo Seiko Co. v. United States, 92 F.3d 1162, 1167 (Fed. Cir. 1996). Guangdong was accorded first-tier BIA treatment in this case.
Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1583 (Fed. Cir. 1993). See also Koyo Seiko Co. v. United States, 92 F.3d 1162, 1166 (Fed. Cir. 1996) ("The burden of production is appropriately placed on the party deemed to control the information."). Further, the Commission is prohibited from drawing adverse inferences — which it effectively has done here against the U.S. producers — where parties have not been shown to have failed to cooperate to the best of their ability.
However, Commerce must explain why its comparison of "similar merchandise" is reasonable and appropriate. See Mitsubishi Heavy Indus., Ltd. v. United States, 24 CIT 275, 277 (2000) (citing Ad Hoc Comm. v. United States, 914 F.Supp. 535, 19 CIT 1398, 1401 (1995); NTN Bearing Corp. v. United States, 905 F.Supp. 1083, 19 CIT 1221, 1238-39 (1995); Koyo Seiko Co., Ltd. v. United States, 898 F.Supp. 915, 19 CIT 1085, 1091-92 (1995), aff'd in part, rev'd in part, 92 F.3d 1162 (Fed. Cir. 1996)). Viraj I instructed Defendant to explain its basis and reasoning for comparing ASTM and DIN standard flanges and to clarify how it determined that these products made to differing industrial standards were comparable. 283 F. Supp. 2d at 1352.
Under prior law, when considering a non-adverse (or "second tier") facts otherwise available situation, Commerce would ordinarily use the higher of the original LTFV margin determined for the respondent's merchandise or the highest calculated margin during the review at issue for the same class or kind of merchandise. See, e.g., Koyo Seiko Co. v. United States, 92 F.3d 1162, 1167 (Fed. Cir. 1996). In this proceeding, because Viraj was not a party to the original LTFV investigation, Commerce utilized as non-adverse facts otherwise available the LTFV all-others rate, a weighted-average of a verified margin of 3.87% found for Grand Foundry, a cooperative respondent, and a derived margin based on the petitioner's allegations of 21.02% determined against Mukand, an uncooperative respondent.
Id. Commerce is required to "fairly request" the data it seeks from respondents. Helmerich Payne, Inc. v. United States, ___ CIT ___, 24 F. Supp.2d 304, 308 (1998); Koyo Seiko Co. v. United States, 92 F.3d 1162, 1165 (Fed. Cir. 1996). At oral argument, YUSCO conceded it does not argue that there was any ambiguity in either the statute or in Commerce's instructions to it.
Instead, Commerce referred to its twenty percent "difmer" guideline. Under the difmer guideline, where the difmer adjustment to normal value exceeds twenty percent, Commerce does not make a finding that the home-market product is reasonably comparable to the exported good, unless it can explain how the comparison is nevertheless reasonable. See Policy Bulletin 92.2; see also Ad Hoc Comm. v. United States, 19 CIT 1398, 1401, 914 F. Supp. 535, 540 (1995); NTN Bearing Corp. v. United States, 19 CIT 1221, 1238-39, 905 F. Supp. 1083, 1097-98 (1995); Koyo Seiko Co., Ltd. v. United States, 19 CIT 1085, 1091-92, 898 F. Supp. 915, 921-22 (1995), aff'd in part, rev'd in part, 92 F.3d 1162 (Fed. Cir. 1996); Certain Stainless Steel Cooking Ware From the Republic of Korea, 58 Fed.Reg. 9,560, 9,561 (Dep't Commerce, Feb. 22, 1993) (final results admin. review) ("the Department normally does not consider merchandise to be reasonably comparable if the difmer adjustment is greater than 20 percent of the cost of manufacturing the product sold in the United States"); Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, 57 Fed.Reg. 28,360, 28,367 (Dep't Commerce, June 24, 1992) (final results admin.
Specifically, Hoogovens posits that Commerce's resort to facts available was improperly predicated on the absence of information Commerce never requested. Continuing, Hoogovens contends that since Commerce failed to ask for the pertinent information it says is now lacking in the record, Hoogovens should not be held responsible for any deficiency in its responses to the questionnaires, citing Queen's Flowers de Colombia v. United States, 981 F. Supp. 617, 628-29 (CIT 1997) (citing Olympic Adhesives, Inc. v. United States, 899 F.2d 1565, 1572-75 (Fed. Cir. 1990)), and Helmerich Payne v. United States, 24 F. Supp.2d 304 (CIT 1998), (citing Koyo Seiko Co. v. United States, 92 F.3d 1162, 1165 (Fed. Cir. 1996)). Hoogovens further maintains that Commerce failed to give proper weight to evidence that Hoogovens' expert visited all major customers in the United States in each customer category on a regular basis, and failed to treat as highly probative — indeed compelling — that Hoogovens performed essentially the same services for end-users and service center customers in the United States. Commerce, however, found that the evidence of the visits "not useful."