Full opinion text
On Motions for Judgment on the Agency Record and for Remand Opinion and Order MALETZ, Senior Judge: In 1982, the International Trade Administration of the Department of Commerce (“ITA” or “agency”) issued a final determination revoking a dumping finding on tapered roller bearings and component parts (“TRBs”) made in Japan by NTN Toyo Bearing Company (“NTN”) and distributed by NTN's subsidiary, NTN Bearing Corporation of America (“NBCA”). Plaintiff, The Timken Company, an American manufacturer of TRBs, commenced the present action, challenging the ITA determination. Upon motion by the government, unopposed by Timken, the court remanded for further consideration by the ITA. The ITA’s recalculation upon remand revealed only de minimis dumping margins. The case again came before the court on motion by Timken and, upon request of all parties, the court again remanded to the ITA. Timken Co. v. United States, 10 CIT —, 630 F.Supp. 1327 (1986). In its order of remand, the court directed the ITA to (1) collect and review additional home market sales data for the period of time that had previously been reviewed by the ITA, April 1, 1978 through November 14, 1978; (2) collect and review data for an additional period of time extending up to the date of the ITA’s preliminary determination, February 27, 1981; (3) reassess proper TRB model comparisons; (4) review the accuracy of all pertinent NTN production costs; (5) correct all errors previously made; and (6) recalculate dumping margins. 630 F.Supp. at 1350. Upon remand, the ITA found a margin of 7.79 percent for NTN for the period April 1, 1978 through February 27, 1981, and so rescinded its earlier revocation of the dumping finding. Final Results of Second Redetermination on Court Remand, The Timken Company v. United States, Court No. 82-6-00890, at 38 (Jan. 28, 1987) (‘‘Second Redetermination ”). The case is again before the court, with all parties seeking yet another remand to the ITA. Timken, although approving the rescission of the revocation, argues that the agency made methodological and other errors. NBCA contends both that the agency made numerous errors and that it erred in rescinding. The government acknowledges that the ITA made certain errors in its calculations. Upon consideration of the entire record, the court concludes that another remand is necessary. 1. Best Information The court, in its previous order, directed the ITA to collect additional home market sales data and cost of production data for April 1, 1978 through November 14, 1979 (“earlier period”), and for November 15, 1979 through February 27, 1981 (“later period”). 630 F.Supp. at 1332-41, 1350. Upon remand, the ITA was advised that NTN had disposed of all its home market sales data for the earlier period, but had available home market sales data for the later period. United States sales data for both periods was already on the agency record or placed on the record. Cost of production data for neither period was available but was available for March 1, 1984 through September 30, 1984. Because NTN was unable to provide requested home market sales data for the earlier period and was unable to provide cost of production data for either period, the ITA relied on “best information available” to calculate dumping margins. See 19 U.S.C. § 1677e (1982 & Supp. III 1985); Second Redetermination 3, 13-16. It used as best information the home market sales data and United States sales data provided by NTN for the later period, November 15, 1979 through February 27, 1981, and the cost of production data for March 1 through September 30, 1984. Dumping margins calculated on the basis of this data were used as margins for the entire period under review. See Second Redetermination 3. The agency verified all information relied upon. Both NBCA and Timken contend that the ITA erred in its determination of what constituted best information. A. NBCA’s Contentions NBCA asserts that the verified home market and United States sales data for the earlier period that was already on the agency record should have been used as best information for that period. However, a primary reason for the last remand was that the home market data for the earlier period, although verified, was so incomplete as to prevent the agency from making statutorily mandated determinations of what constituted “most similar” merchandise. See 630 F.Supp. at 1336-40. Had the ITA nonetheless relied upon that data on remand, it would have perpetuated the error the case was remanded to correct. Nor did the ITA err in deciding not to use the complete United States sales data on the agency record for the earlier period. That decision was based on the reasonable conclusion that margins were best calculated by comparing contemporaneous data, rather than by comparing United States data with home market data from a later period. See Second Redetermination 16; Matsushita Electrical Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (question is whether administrative conclusion is rational); cf. Ceramica Regiomontana, S.A. v. United States, 10 CIT —, —, 636 F.Supp. 961, 967 (1986) (where information provided by foreign government proved inaccurate in important respects ITA was under no obligation to use it), affd, 810 F.2d 1137 (Fed.Cir.1987). B. Timken’s Contentions Timken argues that the ITA should not have used any data provided by NTN as “best information.” However, nothing in 19 U.S.C. § 1677e, requiring use of “best information,” precludes reliance on a respondent’s data. See 19 U.S.C. 1677e; Budd Co. v. United States, 1 CIT 67, 75, 507 F.Supp. 997, 1003-04 (1980) (“best information available” may include all information that is accessible or may be obtained, whatever its source). Moreover, the agency determinations cited by Timken merely establish that the agency has often relied on data other than a respondent’s data; they do not establish, as Timken contends, that there is an agency policy of never relying on a respondent’s data. Indeed, ITA decisions indicate to the contrary that the agency has used verified respondents’ data as best information. The ITA was therefore not barred from using NTN’s data as best information nor did it abuse its discretion in relying on that data. Timken argues that in any event better sources of information were: (1) a market research report Timken had submitted; (2) certain information on home market sales contained in “Section A” of NTN’s original questionnaire response; or (3) the highest dumping margin of another respondent. However, the ITA not unreasonably concluded that Timken’s market research report was unreliable and that use of the Section A information would have been inappropriate because it contained only aggregate figures reflecting sales of merchandise which were not all of the same general class or kind as the merchandise under review. See Second Rede-termination 14-16. With regard to Timken’s contention that the ITA should have used the highest dumping rate of another respondent, the record shows that the ITA was under the impression that no specific dumping rate was available, id. at 15; Timken did not bring the existence of such a rate to the agency’s attention. Timken therefore acts too late in only now bringing the existence of an applicable rate to the agency’s and the court’s attention. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952) (courts should not topple over administrative decisions unless administrative body not only erred but erred against objection made at time appropriate under its practice). Moreover, the ITA’s selection of best information was a reasonable exercise of its discretion. See Matsushita Electric Industrial Co., supra, 750 F.2d at 933. 2. Deflation of Production Costs Because production cost data for the period under review was not available, the ITA used production cost data from 1984. NBCA argued that those 1984 costs should be deflated to more closely approximate actual costs from 1978 through 1981. The agency refused to use the suggested deflation ratios on the ground that it could not verify their applicability to NTN’s own experience. Second Redetermination 32-33. This was reasonable particularly since NTN could provide no cost document that would have enabled the agency to ascertain that inflation rates in Japan had indeed been reflected in NTN’s actual costs. 3. Authority to Rescind The Second Redetermination states: Under section 776(a) of the Tariff Act of 1930, as amended ... and the Department’s practice, the Department must verify all information relied on in making a revocation.... Since the data from this period are necessary for an affirmative determination to revoke, and since those data are unavailable for review and verification, the Department is rescinding the partial revocation. Second Redetermination 2 (emphasis added). NBCA asserts that the ITA improperly relied upon section 776(a), which provides that the ITA shall verify all information it relies upon in revoking an antidump-ing duty order. Tariff Act of 1930, § 776(a), as amended by the Trade Agreements Act of 1979, 19 U.S.C. § 1677e(a) (Supp. III 1985). The portion of section 776 so providing did not become effective until 1984. Pub.L. 98-573, tit. VI, § 626(a), 98 Stat. 3042 (1984), 19 U.S.C. § 1671 note (Supp. III 1985) (amended 1986). NBCA contends that only those verification requirements in effect as of 1982, when the dumping order was revoked, should have been relied upon, and claims that the ITA’s reliance on section 776(a) therefore gave that section an improper retroactive effect. The court need not determine whether section 776 has retroactive effect because verification was required in 1982 as well as in 1984. The 1982 revocation was made during a section 751 annual review proceeding; verification was required in such proceedings. 19 U.S.C. § 1677e(a) (1982), amended by 19 U.S.C. 1677e(a) (Supp. III 1985); Tariff Act of 1930, § 751, as amended by the Trade Agreements Act of 1979, 19 U.S.C. § 1675 (1982), amended by 19 U.S.C.A. § 1675 (West Supp.1987); Al Tech Specialty Steel Corp. v. United States, 745 F.2d 632 (Fed.Cir.1984) (section 1677e(a) requires verification in section 751 proceedings). Consequently, even assuming, arguendo, that the ITA erred in relying on section 776(a), that error did not affect NBCA’s substantive rights. 4. Use of Similar Merchandise Both Timken and NBCA object to the methodology that the ITA used to determine what constituted “such or similar” merchandise. Timken argues that the ITA’s reliance on “dynamic load rating” as a criterion for selecting similar merchandise was unreasonable and that the agency should have relied instead on “system life.” NBCA argues that the ITA acted improperly in treating “special feature” bearings sold in the home market as “similar” merchandise. A. Dynamic Load Rating — System Life Before establishing the criteria for choosing similar merchandise, the ITA held discussions with both Timken and NBCA. Subsequently, it settled on three characteristics significant to model matching of TRBs: (1) inside diameter; (2) outside diameter; and (3) dynamic load rating. Second Redetermination 10. Dynamic load rating is the number of hours of performance that can be expected from a given bearing under a standard number of revolutions per hour. It is a function of such bearing features as width, number of rollers, length of rollers, angle of rollers, and metallurgical content. Id. at 11. Timken contends that system life would have been a better third criterion, arguing, inter alia, that bearings which have similar dynamic load ratings can have vastly different system lives and that system life, not dynamic load rating, is the criterion most relied upon by customers. The government acknowledges that system life might have been a reasonable method for determining similarity but argues that: (1) use of dynamic load rating was also reasonable; (2) the agency’s initial decision to use dynamic load rating was based in part on the fact that Timken itself had appeared to equate dynamic load rating with system life; and (3) Timken did not bring system life to the agency’s attention in a sufficiently timely manner to permit it to take system life into account, and failed to provide the ITA with sufficient information on system life. The question before the court is not whether system life would have been a reasonable criterion for determining similarity but rather whether the ITA's reliance on dynamic load rating was reasonable. The court finds that it was. See Melamine Chemicals, Inc. v. United States, 732 F.2d 924, 928 (Fed.Cir.1984) (agency’s interpretation of statute sustained unless unreasonable). As noted, dynamic load rating is a function of a number of significant bearing features. Also, it is a standard rating within the industry and NTN could be expected to maintain model-by-model data regarding it. What is more, on the facts of this case, it appears that Timken acted untimely in bringing its contentions to the agency’s attention. B. “Special Feature” Bearings NBCA contends that the ITA, in determining what constituted “similar merchandise,” failed to consider one of the statutorily required factors, namely “commercial value.” 19 U.S.C. § 1677(16) (1982). It argues that certain “special feature” bearings should not have been considered similar to bearings sold in the United States because they were different in, among other things, commercial value. The relevant statute provides that to be deemed “similar,” merchandise must be produced in the same country as the subject merchandise; be like the subject merchandise in component materials and in the purposes for which used; and be “approximately equal in commercial value ” to that merchandise. 19 U.S.C. § 1677(16) (emphasis added). As noted, the ITA used inside diameter, outside diameter, and dynamic load rating as its three criteria for determining similarity, with dynamic load rating reflecting a number of other significant characteristics. The Second Redetermination does not indicate that “commercial value” was among the factors considered. It may be that the agency considered commercial value to be a function of the criteria that it specifically enumerated, so that a finding of approximately equal commercial value is implicit in the ITA’s determination of similarity. However, the court cannot determine from the record whether the agency did in fact consider commercial value. The case is therefore remanded for a determination of whether merchandise compared was of approximately equal commercial value. NBCA further alleges that the ITA improperly placed a burden on it to establish that its special feature bearings did not constitute similar merchandise, thereby abdicating the agency’s responsibility to itself determine similarity or lack of similarity. The court cannot agree that the ITA placed an improper burden on NBCA. The agency had made an initial and reasoned determination of what constituted similar merchandise. Having made that determination, it was not then improper for the ITA to require a party contesting its chosen method to present evidence in support of its contentions. Cf. Administrative Procedure Act, 5 U.S.C. § 556(d) (1982); Environmental Defense Fund, Inc. v. E.P.A., 548 F.2d 998, 1013-18 (D.C.Cir.1976) (proponent of a rule or order or the denial thereof has burden of coming forward with evidence), cert. denied, 431 U.S. 925, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977). 5. Level of Trade On the last remand the ITA selected what constituted most similar merchandise for purposes of comparison with merchandise sold in the United States. In doing so, it did not intend, in determining similarity, to consider the level of trade at which the merchandise had been sold, but rather intended to later make appropriate adjustments for any differences in level of trade. However, a computer error caused level of trade to in fact be considered as a factor in the agency’s determination of similarity. The government and Timken both ask that the case be remanded for correction of this computer error. NBCA argues against such a remand, contending that level of trade is indeed a relevant factor in a determination of similarity. According to NBCA, sales of home market merchandise at a level of trade different from that at which United States merchandise is sold may reflect differences in “commercial value” such that the merchandise may not be considered similar. See 19 U.S.C. § 1677(16); 19 C.F.R. § 353.19. The ITA’s decision not to consider level of trade in ascertaining similarity was reasonable. Nothing in the statute setting forth the criteria to be considered by the agency in determining similarity indicates that level of trade is a relevant, much less a determinative, factor. See 19 U.S.C. § 1677b(a)(1)(A) (Supp. III 1985); id. § 1677(16) (1982). However, since the computer error undermined the agency's methodology on this score, the case is remanded for correction of the error after which the ITA will make any necessary allowance for differences in level of trade. 6. Splitting of Sets A. NBCA’s Contentions Each TRB possesses a cup and a cone. In the United States market, NBCA sells some cups and cones separately and some in sets. In the home market, however, the bulk of TRB models are sold in sets. Because of this, when the ITA sought to compare the prices of cups and cones sold separately in the United States with prices of “such or similar” home market cups and cones, it found in a number of instances that such or similar models had been sold in the home market only in sets. The agency then compared prices of the cups or cones sold separately in the United States with the prices of cups or cones sold in sets in the home market by prorating the value of sets according to the relative production costs of the component cup and cone. Second Redetermination 7-8. NBCA contends that by treating home market sales of sets as sales of individual cups and cones for purposes of establishing a home market price, the ITA failed to follow the guidelines contained in 19 U.S.C. § 1677b(a)(l)(B): In the ascertainment of foreign market value for the purposes of this subtitle no pretended sale or offer for sale, and no sale or offer for sale intended to establish a fictitious market, shall be taken into account. 19 U.S.C. § 1677b(a)(1)(B) (1982). In effect, NBCA argues that there is no “price” for either a cup or a once sold as part of a set, but only a “price” for the set as a whole. Consequently, says NBCA, the ITA, by assigning prices to individual cups and cones based on relative production costs, created “pretended sale(s)” and “sale(s) ... intended to establish a fictitious market,” in violation of the statute. According to NBCA, there are no home market sales of individual cups or cones at any non-pretended price, and the ITA therefore should have used constructed value for all home market sales. See 19 U.S.C. § 1677b(e) (1982 & Supp. III 1985). NBCA is incorrect in asserting that by splitting sets the ITA used “pretended sale(s)” to determine foreign market value. The sales of the cups and cones in the home market were not pretended; they were legitimate sales to legitimate customers that actually took place. Nor can section 1677b(a)(l)(B) reasonably be interpreted as preventing the ITA from determining prices of home market merchandise whenever that merchandise was sold together with other merchandise for a single price. That section appears intended to prevent foreign manufacturers from using misleading invoices or other practices to circumvent the anti-dumping law. See H.R.Conf. Rep. No. 79, 67th Cong., 1st Sess. 11 (1921) (purpose of section is to prevent the establishment of a fictitious market value by other than bona fide sales). Not only does the ITA’s interpretation, permitting it to split sets, not permit such circumvention, it discourages it. In the absence of the agency’s practice of splitting sets and determining prices based on relative production costs, NTN could have compelled use of constructed value simply by selling sets in one market and single cups and cones in the other. See Certain Electric Motors from Japan, 49 Fed.Reg. 32,627, 32,628-29 (Dep’t Comm.1984) (final admin, review) (ITA chose system sales as the basis for comparison to prevent the possibility of disguised margins). The court declines to read section 1677b(a)(l) to permit such control by foreign manufacturers of the manner in which foreign market value is determined. NBCA argues in the alternative that if the ITA’s splitting of sets was lawful, the ITA should have combined sales prices of the cups and cones sold individually in the home market to determine a weighted average foreign market value for sets. The ITA responds that it was willing to aggregate prices in this fashion but could not do so because NBCA did not supply a list of models to be aggregated. The court has reviewed the administrative record and finds that the ITA requested the necessary information and that NBCA neither provided it nor requested additional time to do so. Consequently, NBCA cannot now complain of the ITA s failure to aggregate the prices of individual cups and cones. B. Timken’s Contentions Timken supports the ITA’s practice of splitting sets, but challenges aspects of the ITA’s actual calculations. The government responds that the agency is in the process of ascertaining whether the errors alleged by Timken in fact occurred and asks for a remand to permit it to correct any such errors if they occurred. Consequently, the court directs the ITA to consider upon remand the allegations of error made by Timken in sections IV. A. and IV. B. of its confidential brief, pp. 38-46. 7. Usual Commercial Quantities NBCA argues that certain of the home market sales used by the agency in calculating foreign market value were not “in the usual commercial quantities” or “in the ordinary course of trade.” See 19 U.S. C. §§ 1677b(a)(l)(A), 1677(17) (Supp. III 1985); id. § 1677(15) (1982). The agency had declined to consider NBCA’s arguments on the ground that they were untimely raised. The basis for the agency’s conclusion was its understanding, persisting up to the time of oral argument, that the questionnaire sent by the agency to NTN had included a question on whether any of NTN’s home market sales were not in the usual commercial quantities. In the agency’s view, NTN’s silence on this point had permitted a conclusion that all sales were indeed in the usual quantities. Second Redetermination 37; Government memorandum 28; Transcript of oral argument 58. In fact, as the government conceded during oral argument, the questionnaire included no such question. Transcript of oral argument 78-80. Because the agency’s conclusion that NBCA’s arguments were untimely was based on an incorrect assumption, the case is remanded for consideration of NBCA’s contentions regarding usual commercial quantities an-dordinary course of trade. 8. Constructed Value and ESP Offset Under Section 773 of the Tariff Act of 1930, as amended by the 1979 Act, 19 U.S.C. § 1677b(a), the foreign market value of imported merchandise may be established in one of three ways: (1) on the basis of sales data of such or similar merchandise sold in the home market; (2) on the basis of sales data of such or similar merchandise sold in a third country; or (3) on the basis of constructed value. 19 U.S. C. § 1677b(a). Constructed value consists of the cost of materials, the cost of fabrication or processing, general expenses, a reasonable profit, and the cost of packing and readying the merchandise for shipment to the United States. 19 U.S.C. § 1677b(e). The ITA determined that for various TRB models sold in the home market the appropriate basis for determining foreign market value was constructed value. However it is calculated, foreign market value is compared with United States price for purposes of calculating dumping margins. United States price, in turn, may be calculated in two ways, either as “purchase price,” or as “exporter’s sales price” (“ESP”). 19 U.S.C. § 1677a (1982 & Supp. Ill 1985). The antidumping law provides that certain adjustments be made both to United States price and foreign market value for the purpose of accurately comparing their values to determine if there are margins. See 19 U.S.C. §§ 1677a(d), (e), 1677b(a). 19 U.S.C. § 1677b(a)(4KB) requires that foreign market value be adjusted for “differences in circumstances of sale” (“differences”). Id. at § 1677b(a)(4)(B). The ITA has interpreted the “differences” section to permit the so-called “ESP offset,” which is set forth in section 853.15 of its regulations. 19 G.F.R. § 353.15 (1986). Timken argues that the “differences” adjustment is not applicable when foreign market value is based on constructed value and, more specifically, that the ESP offset is not applicable. Under the Antidumping Act of 1921, constructed value was not, technically, within the definition of “foreign market value.” Rather, the definition of constructed value was set forth in a separate statutory section that did not provide for a “differences” adjustment. See 1921 Act, as amended by Pub.L. No. 85-630, § 3, 72 Stat. 584-85 (1958), 19 U.S.C. § 165 (1976). Under the 1979 Act, which repealed the 1921 Act, the definition of “foreign market value” was changed to include constructed value as well as price-based value, and all the methods for determining foreign market value were set forth in section 773, entitled “foreign market value.” 19 U.S.C. § 1677b. Specifically, in subsection (aX2) of section 773, the statute provides that in the event foreign market value cannot be determined by price, “the foreign market value of the merchandise may be the constructed value of that merchandise.” 19 U.S.C. § 1677b(aX2). The method of determining constructed value is then set forth in subsection (e). Subsection (a)(4) of section 773 requires the agency to make adjustments to “foreign market value” for “differences in circumstances of sale.” 19 U.S.C. § 1677b(a)(4). Because foreign market value is defined to include constructed value, the “differences” adjustment, by the literal language of the statute, must be applied to constructed value as well as to price-based foreign market value. Timken argues that despite this literal language, Congress did not intend the agency to make the “differences” adjustment — including the ESP offset — when constructed value is being used as foreign market value. Timken relies in part upon the legislative history of the 1979 Act which indicates that Congress’s inclusion of “constructed value” in the foreign market value section was “not substantive and is intended solely to simplify the law.” S.Rep. No. 249, 96th Cong., 1st Sess. 95, reprinted in 1979 U.S.Code Cong. & Ad. News 381, 481 (“S.Rep. No. 249”). As a general rule, the literal language of a statute will control, absent clear conflicting legislative intent. Mills Music, Inc. v. Snyder, 469 U.S. 153, 164, 105 S.Ct. 638, 645, 83 L.Ed.2d 556 (1985) (when there is conflict between statute’s literal language and its legislative history, court assumes that the ordinary meaning of the language Congress employed accurately expresses the legislative purpose); Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772, 104 S.Ct. 2105, 2110, 80 L.Ed.2d 753 (1984) (absent a clearly expressed legislative intention to the contrary, literal language controls); American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982). Timken argues that the literal statutory language — under which the adjustment for differences in circumstances of sale is applicable to constructed value— conflicts with legislative intent that there be no substantive change in existing law. It relies on the fact that prior to 1979, there was no clear statutory provision for an adjustment to constructed value for differences in circumstances of sale, and argues that to read the 1979 Act to include such an adjustment is to read the Act as having effected a “substantive change” in the law. The court cannot agree, that the legislative history indicating that the 1979 Act made no “substantive change” necessarily indicates a congressional intent that the “differences” adjustment not apply to constructed value. The ITA had interpreted the 1921 Act to permit an adjustment to constructed value for differences in circumstances of sale, and had applied the ESP offset to constructed value. 19 C.F.R. 153.10 (1979), 41 Fed.Reg. 26,204 (1976). Consequently, Congress may have understood the 1921 Act as permitting that adjustment. If so, Congress’s expressed intent that no substantive change be effected by the 1979 Act’s inclusion of constructed value in “foreign market value,” section 773, does not necessarily indicate that Congress did not intend the “differences” adjustment to apply to constructed value. Cf. S.Rep. No. 249, at 107, reprinted in 1979 U.S.Code Cong. & Ad.News 493 (administrative and judicial precedents regarding 1921 act to apply under 1979 Act). Moreover, both the 1921 Act and the 1979 Act must be read to allow for a “differences” adjustment if there is not to be an absurd result. See Crooks v. Harrelson, 282 U.S. 55, 59-60, 51 S.Ct. 49, 50-51, 75 L.Ed. 156 (1930). Consequently, the court upholds the ITA’s practice of making adjustments to constructed value for differences in circumstances of sale. Statutory Scheme The definition of constructed value requires the inclusion of “general expenses,” 19 U.S.C. § 1677b(e)(lXB), which the ITA understands to include selling expenses. According to Timken, it is illogical for the agency to dedupt selling expenses from constructed value under the ESP offset, because it has added selling expenses in order to make an initial computation of constructed value. A subsequent offset adjustment to this constructed value is not, however, inconsistent with the statutory objective, which is to establish a proxy for price-based foreign market value. The offset is simply a device to enable the agency to fairly compare the foreign market value of imported merchandise with the United States price, which has been reduced in accordance with the requirements of section 772(e), 19 U.S.C. § 1677a(e)(2). The section defining constructed value refers to the “constructed value of imported merchandise.” 19 U.S.C. § 1677b(e)(1) (emphasis added). Timken contends that this reference to “imported merchandise” indicates that the value to be calculated is the value of merchandise already “imported” into the United States, and so is a value that already represents the value of United States merchandise, without need for further adjustment. This contention is without merit since the very same reference to “imported merchandise” also appears in the subsection pertaining to price-based foreign market value, as to which the “differences” adjustment is clearly applicable. See 19 U.S.C. § 1677b(a)(1). Timken’s remaining argument is that constructed value does not relate to specific sales, so that it is illogical to deduct an amount, such as the offset, which is related to specific sales. However, the statutory objective, regardless of the method used to determine foreign market value, is to establish the value of certain goods; fairness may require a deduction from that value, and does require such a deduction in the case of the ESP offset. Smith-Corona Group, Consumer Products Division, SCM Corp. v. United States, 713 F.2d 1568, 1579 (Fed.Cir.1983). Without that deduction foreign market value would be unfairly weighted and lead to an inequitable result. 9. ESP Offset When the ITA deducted selling expenses from foreign market value under the ESP offset, it calculated the adjustment on the basis of the absolute dollar amount of indirect expenses in the United States market, thus deducting from foreign market value the same dollar amount that had been deducted from ESP under 19 U.S.C. § 1677a(e)(2). NBCA claims that the agency should have based its ESP offset adjustment on the percentage of selling expenses in the United States market, and deducted a similar percentage for home market selling expenses. The ITA responds that the regulation under which the ESP offset is administered, 19 C.F.R. § 353.15(c) (1986), requires that circumstance-of-sale adjustments can be made up to the actual “amount” of selling expenses incurred in the home market. Since NBCA acknowledges that the regulation makes no reference to percentages, the dispute turns on the meaning of the word “amount.” The word “amount” appears extensively throughout the regulation pertaining to adjustments to ESP. See, e.g., 19 C.F.R. § 353.10(d) (1986). NBCA asserts that all of these adjustments are made by the ITA on a percentage and not on an absolute basis. The ITA, in contrast, states that its practice is to make all adjustments on the basis of actual expenses, if the necessary data is available. In construing administrative regulations, the agency’s interpretation is controlling unless it is plainly erroneous or inconsistent with the regulation. United States v. Larionoff, 431 U.S. 864, 872-73, 97 S.Ct. 2150, 2155-56, 53 L.Ed.2d 48 (1977). Here, the Commerce Department drafted the regulation in dispute and understands that regulation to require adjustment by absolute dollar amounts rather than percentages. The court does not find this an improper exercise of agency authority. As such, the court holds that the ITA did not improperly calculate the ESP offset cap, limiting deductions from foreign market value to actual selling expenses incurred in the home market. 10. Foreign Market Value: Differences in Circumstances of Sale The ITA treats direct selling expenses as “differences in circumstances of sale” under 19 U.S.C. § 1677b(a)(4), which provides: In determining foreign market value, if it is established to the satisfaction of the administering authority that the amount of any difference between the United States price and the foreign market value (or that the fact that the United States price is the same as the foreign market value) is wholly or partly due to— ****** (B) other differences in circumstances of sale ... ****** then due allowance shall be made therefore. 19 U.S.C. § 1677b(a)(4) (emphasis added). Under agency practice, if purchase price is being used as United States price, the agency will adjust foreign market value for the net amount of differences in circumstances of sale in the home and United States markets. In effect, if direct selling expenses are uniquely associated with the circumstances of home market sales, the ITA will adjust foreign market value downward by the amount of those expenses; if direct selling expenses are uniquely associated with the circumstances of United States sales, the ITA will adjust foreign market value upward by that amount, if it is using purchase price as United States price. See U.S. Dep’t of Commerce, Study of Antidumping Adjustments Methodology and Recommendations for Statutory Change 19-20 (1985). If the agency is using ESP rather than purchase price, it makes the adjustment for direct selling expenses attributable to United States sales, not to foreign market value, but to ESP. See id. at 20 n. 10, 42 (in ESP situations, agency subtracts the unique costs associated with the United States goods from ESP rather than adding them to the foreign market price). It is this practice which NBCA vigorously contests. For instance, if there are direct selling costs of $100 in the United States, the agency will adjust ESP downward by that amount, rather than adjusting foreign market value upward. In the present case, the ITA used ESP as United States price, and so reduced ESP by direct selling expenses attributable to United States sales. The agency apparently makes this adjustment pursuant to the differences in circumstances of sale provision of section 1677b(aX4), quoted above. However, this is not entirely clear from the present record; it is possible that the ITA makes this adjustment to ESP under 19 U.S.C. § 1677a(e)(2), which provides for deduction from ESP of “expenses generally incurred by or for the account of the exporter in the United States in selling identical or substantially identical merchandise.” NBCA argues that: (1) direct selling expenses, whether attributable to home market or to United States sales, should be treated as “differences in circumstances of sale” under section 1677b(a)(4)(B), not as “expenses generally incurred” under section 1677a(e)(2); and (2) those differences should be taken into account in the agency’s determination of foreign market value, not in its determination of United States price, even if ESP is being used as United States price. Under this view, the ITA, instead of adjusting ESP downward for direct selling expenses attributable to United States sales, should have adjusted foreign market value upward for those expenses. NBCA’s proposed methodology would result in absolute margins identical to those arrived at under the ITA’s method, but would result in lower weighted average margins. Timken, on the other hand, asserts that direct selling expenses incurred in the United States should never be treated as “differences in circumstances of sale” but rather must be viewed as “expenses generally incurred by or for account of the exporter” that may only he deducted from ESP under section 1677a(e)(2). This argument is unconvincing. First, section 1677a(e)(2) has been understood to refer to indirect, not direct, expenses. See Consumer Products Division, SCM Corp. v. Silver Reed America, Inc., 753 F.2d 1033, 1036-38 (Fed.Cir.1985). Also, because section 1677a(e)(2) by its own terms applies only to ESP, Timken's interpretation would deprive the agency of any statutory basis for making adjustments for direct expenses attributable to United States sales if purchase price, rather than ESP, were being used as United States price. Finally, legislative history indicates that Congress understood direct selling expenses to constitute differences in circumstances of sale. See Hearings Before the Senate Committee on Finance on H.R. 6006, An Act to Amend Certain Provisions of the Anti-dumping Act, 1921, 85th Cong., 2d Sess. 19 (1958) (Explanatory Memorandum of the Treasury Department for the Senate Finance Committee, submitted by A. Gilmore Flues, Assistant Secretary of the Treasury) (“Senate Hearings”); Hearings Before the House Committee on Ways and Means on H.R. 6006, 6007, and 5120, Bills to Amend Certain Provisions of the Antidumping Act of 1921, 85th Cong., 1st Sess. 33, 39 (1957) (Treasury Department memorandum and statement of David W. Kendall, Assistant Secretary of the Treasury) (“House Hearings”). Consequently, Timken’s argument that direct selling expenses attributable to United States sales are not “differences in circumstances of sale” under section 1677b(a)(4)(B), is without merit. In view of the fact that direct expenses attributable to United States sales should be treated as “differences in circumstances of sale,” the question remains whether the agency may permissibly adjust United States price, and, specifically, ESP, for those differences. The literal language of section 1677b(a)(4) indicates that the “differences” adjustment is to be made “[i]n determining foreign market value it does not indicate that the adjustment may instead be made in determining United States price. 19 U.S.C. § 1677b(a)(4) (emphasis added). See Board of Governors of Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 106 S.Ct. 681, 688-89, 88 L.Ed.2d 691 (1986) (courts must give effect to the unambiguously expressed intent of Congress). Also suggesting that the adjustment is to be made only in determining foreign market value is the fact that adjustments to United States price are set forth in a different section, 19 U.S.C. § 1677a, which does not include a “differences” adjustment. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1197 (6th Cir.1983). It could perhaps be argued that the language of section 1677b(a)(4), “due allowance shall be made,” is nonetheless sufficiently broad to permit adjustment to either foreign market value or to United States price, given the fact that the concept of “differences” in circumstances of sale implicitly requires evaluation of both the United States and the home market, so that the adjustment could logically have been placed in either the United States price or in the foreign market value statute. This argument might provide support for an agency practice of adjusting United States price rather than foreign market value, were it not for legislative history indicating that Congress understood the statute to mean what it says, namely, that the adjustment should be made “[i]n determining foreign market value.” The “differences” adjustment, added to the Antidumping Act of 1921 in 1958, was drafted by the Treasury Department, and Treasury Department officials provided specific examples of how the adjustment would operate. In those examples, adjustments for differences in circumstance of sale were made to foreign market value even when those differences were attributable to United States sales. See Senate Hearings 19; House Hearings 39. In view of this legislative history, which is consistent with the literal statutory language, the ITA’s practice of making an adjustment for direct selling expenses attributable to United States sales to ESP is contrary to the statute. The case is remanded for correction of this error. See Zenith Electronics Corp. v. United States, 10 CIT —, 633 F.Supp. 1382 (1986) (where statute required subtraction of certain tax from ESP, ITA could not instead add that amount to home market price). 11. Selling Expenses: Direct or Indirect It is to a foreign manufacturer’s advantage to have United States selling expenses characterized as indirect, rather than as direct. If they are direct, the ITA will make an adjustment for them as “differences in circumstances of sale” under 19 U.S.C. § 1677b(a)(4)(B). See supra, at 509-12. That adjustment will have the effect of increasing dumping margins. If United States expenses are characterized as indirect the ITA will similarly make an adjustment for them, under 19 U.S.C. § 1677a(e)(2), which requires adjustment to ESP for “expenses generally incurred by or for the account of the exporter.” That adjustment will also have the effect of increasing dumping margins. However, the ITA will “offset” that increase by reducing foreign market value by the amount of the indirect United States selling expenses. Because the indirect selling expenses are subject to this ESP “offset," see supra, n. 18, the foreign manufacturer will benefit if United States selling expenses are characterized as indirect. The foreign manufacturer benefits by having United States expenses characterized as indirect. It also benefits by having home market expenses characterized as direct since as a general rule only if home market expenses are direct will foreign market value be adjusted for them as “differences in circumstances of sale.” See Consumer Products Division, supra, 753 F.2d at 1036-38. If they are indirect, foreign market value will be adjusted for them only up to the amount permitted by the ESP offset. See supra, n. 18. The ITA placed the burden on NBCA of showing the indirectness of United States expenses, and the directness of home market expenses. By way of example, this resulted in certain United States advertising expenses being treated as direct expenses although home market advertising expenses as to which similar information had been provided to the agency were treated as indirect. NBCA in both cases had failed to prove the exact nature of the advertising, although it had established that the expenses were incurred. Despite the seeming oddity of a method under which expenses as to which the ITA has similar information are treated differently depending upon the market in which they were incurred, the ITA acts reasonably in placing the burden of establishing adjustments on a respondent that seeks the adjustments and that has access to the necessary information. Were the ITA to act otherwise, respondents would have an incentive to destroy or to fail to produce the more detailed information that would either support or rebut their own assertions regarding directness or indirectness of various expenses. 12. Sales Below Cost of Production: Ten-Ninety Percent Rule Section 1677b(b) provides that sales made at less than the cost of production in the home market shall be disregarded in the determination of foreign market, value if they (1) have been made over an extended period of time and in substantial quantities, and (2) are not at prices which permit recovery of all costs within a reasonable period of time in the normal course of trade ****** 19 U.S.C. § 1677b(b) (1982). If the agency disregards below-cost sales under this statute and remaining, above-cost, sales are “inadequate as a basis for the determination of foreign market value,” the agency is to use another method of determining foreign market value. Id. To implement these statutory directives, the ITA uses the so-called “ten-ninety percent” rule. Under this rule, if less than ten percent of home market sales (in this case, of a particular TRB model) are sold below cost during the review period, none of those below-cost sales are disregarded. If ten percent through ninety percent of the home market sales are below cost, those below-cost sales, only, are disregarded. If more than ninety percent of home market sales are below cost, all home market sales are disregarded and constructed value is used to determine foreign market value. Second Redetermination 6, 33-35. According to the government, the ten-percent aspect of this rule represents longstanding agency practice. See Second Redetermination 34; Tubes for Tires, Other than for Bicycle Tires, from Korea, 49 Fed.Reg. 26,780, 26,782 (Dep’t Comm. 1984) (final determination) (Department has generally applied a ten-percent rule in determining whether to disregard below-cost sales). Government counsel represents, however, that if in a particular case application of the rule were not appropriate, it would be adjusted accordingly. Transcript of oral argument, August 5, 1987, at 50-51. Thus, in cases involving perishable vegetables, a fifty-percent test is applied because below-cost sales are a more common occurrence in such instances. See id.; Southwest Florida Winter Vegetable Growers Ass’n v. United States, 7 CIT 99, 103-05, 584 F.Supp. 10, 15-16 (1984); Fall-Harvested Round White Potatoes From Canada, 48 Fed.Reg. 51,669, 51,670 (Dep’t Comm.1983) (final determination). NTN contends that the ten-ninety percent rule does not implement the requirements of section 1677b(b), and, in the alternative, that the rule should have been promulgated in accordance with the notice and comment procedures of the Administrative Procedures Act (“APA”). See 5 U.S.C. § 553 (1982). The ITA counters that not only does the rule implement the statutory scheme, it is an “interpretive rule” and so not subject to notice and comment requirements. See id. at § 553(b). The APA requires notice and comment procedures in connection with agency rule-making but makes an exception for “interpretative rules.” Id. Interpretative rules are “ ‘statements as to what the administrative officer thinks the statute or regulation means.’ ” Cabais v. Egger, 690 F.2d 234, 238 (D.C.Cir.1982) (quoting Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C.Cir.1952)). They clarify or explain existing law, rather than creating new law, rights, or duties, Southern California Edison Co. v. FERC, 770 F.2d 779, 783 (9th Cir.1985); Carlisle Tire & Rubber Co. v. United States, 10 CIT —, —, 634 F.Supp. 419, 428 (1986), and are to be distinguished from so-called "legislative rules.” Unlike legislative rules, which have the force of law if reasonable and validly promulgated, interpretative rules do not bind a court and a court is free to substitute its judgment for the agency’s, although it may defer to the agency’s interpretation. See McKenzie v. Bowen, 787 F.2d 1216 (8th Cir.1986); American Trucking Ass’n v. United States, 688 F.2d 1337, 1342 (11th Cir.1982); 2 K. Davis, Administrative Law Treatise § 7:13, at 59 (2d ed. 1979); cf. Batterton v. Francis, 432 U.S. 416, 424-25, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977). A. Ten-Percent Test — Substantial Quantities Against this background, we review first the ten-percent component (“ten-percent test”) of the ten-ninety percent rule. Section 1677b(b) provides that below-cost sales shall be disregarded if, inter alia, the sales have been made “over an extended period of time and in substantial quantities.’’ 19 U.S.C. § 1677b(b)(1) (emphasis added). The agency practice of disregarding below-cost sales that represent less than ten percent of total home market sales in effect constitutes an interpretation of the term “substantial quantities.” Below-cost sales of ten percent or more are considered substantial; below-cost sales of less than ten percent are considered insubstantial. In this respect, then, the rule is interpretative and not subject to the notice and comment requirements of the APA. Turning to the merits of this interpretation, legislative history indicates that section 1677b(b) is “designed to ensure that sales made at less than cost of production will not automatically be excluded from consideration,” H.R.Rep. No. 571, 93d Cong., 1st Sess. 71 (1978) (“House Report No. 571”), but provides little guidance as to what specific quantity of sales should be considered “substantial.” Nevertheless, the agency must, as a practical matter, give some concrete interpretation to that term. To do so, the agency has picked a percentage that can reasonably be understood as “substantial” — ten percent — and applies it unless particular circumstances indicate its inappropriateness. In the court’s view, this is a reasonable and perhaps the only practical way of interpreting and administering the statute. The court is aware of the fact that Congress’s use of the term “substantial” rather than of a specific percentage figure may indicate that a case-specific analysis was intended. Cf. Toho Titanium Co. v. United States, 11 CIT —, —, 657 F.Supp. 1280, 1285 (1987) (use of phrase “extended period of time” in section 1677b(b) indicates that agency determination should be made after review of industry under investigation). However, the ten-percent test is consistent with this intent, given the vagueness of the term “substantial”; the likelihood that usually there will not be industry characteristics sufficient to support fine distinctions between cases on the basis of “substantiality”; and the agency’s use of the ten-percent test as a benchmark only, to be applied absent indication on the facts before it that use of the percentage will not implement legislative intent. The court therefore upholds the agency’s use of the ten-percent test insofar as it interprets the term “substantial.” However, as is discussed below, the court finds the ten-ninety percent rule invalid in all other respects. B. Ten-Percent Test — Sales Made Over Extended Period Section 1677b(b) provides that below-cost sales may be disregarded only if they “have been made over an extended period of time ” as well as in substantial quantities. 19 U.S.C. § 1677b(b)(1) (emphasis added). The ITA apparently relied on the ten-percent test to satisfy the “extended period of time” requirement, as well as the substantiality requirement. But it does not follow from the fact that more than ten percent of a product has been sold below cost, that those sales occurred over an “extended period of time.” And while it is true that the ITA reviewed a period of more than a year, the court cannot ascertain from the agency’s determination whether the below-cost sales were made over that period. Cf. Toho Titanium Co., supra, 657 F.Supp. at 1285 (court found that sales were made over extended period of time, where they were made in each of the six months under investigation). Consequently, the agency’s use of the ten-percent test to satisfy the “extended period of time” requirement is disapproved, and the case is remanded for a determination as to whether below-cost sales disregarded by the agency under section 1677b(b) were made over an extended period of time. C. Ten-Percent Test — Recovery of Costs Section 1677b(b) provides that, for below-cost sales to be disregarded, the sales must not only be substantial and made over an extended period of time, but must also be at prices that will not permit “recovery of all costs within a reasonable period of time in the normal course of trade.” 19 U.S.C. § 1677b(b)(2). The ITA claims that the ten-percent test satisfies this statutory requirement as well. Specifically, it asserts that “the [ten-percent] test reasonably presumes that if below-cost sales comprise more than 10% of all sales ... their costs cannot be recovered within a reasonable period of time so that the below-cost sales must be disregarded in order to carry out the intent of Congress.” Government brief 42 (emphasis added). No argument or evidence is adduced to support this “presumption,” which appears unwarranted. Logic suggests that in order to determine whether costs will eventually be recovered by sales at below-cost prices, it is necessary to consider factors such as how far below cost the sales are; how much, if at all, costs of production are expected to decline; and the period of time over which they are expected to decline. See Toho Titanium Co., supra, 657 F.Supp. at 1286 (if cost of production declines, below-cost prices may allow recoupment of all costs at some future date). The ITA’s test, which simply determines whether below-cost sales are above ten percent of total sales, addresses none of these factors. Toho Titanium Co. is in point. In that case the ITA provided no support for its assertion that below-cost sales were not at prices that would permit recovery of costs. The court remanded for an explanation of why recovery was not possible. Id. at 1286. Similarly, the agency here provides no valid support for its assertion that costs cannot be recovered. The case is therefore remanded for further consideration on this issue. In this context, NBCA has set forth a number of hypothetical examples allegedly illustrating situations in which below-cost sales that represent more than ten percent of total sales will recoup all production costs. Intervenor’s memorandum 81-34. All of these examples call for the averaging of below-cost and above-cost home market prices, and then comparing the resulting average price to the cost of production. NBCA proposes that if the average price of all sales is higher than the cost of production, then the merchandise has been sold at prices which “permit recovery of all costs,” within the meaning of section 1677b(b)(2). As before noted, section 1677b(b) provides: .... If the administering authority determines that sales made at less than the cost of production— ****** (2) are not at prices which permit recovery of all costs within a reasonable period of time in the normal course of trade, such sales shall be disregarded in the determination of foreign market value.... (emphasis added). A tacit assumption underlying NBCA’s hypothetical examples is that the term “prices” in the statutory phrase “at prices which permit recovery of all costs” refers to the average price of all sales, not just to the prices of below-cost sales. The language of the statute does not permit such an interpretation. The term “prices” clearly refers only to prices of “sales made at less than the cost of production” referred to a few lines above in the statute. Consequently, the remand for consideration by the ITA of whether costs will or will not be recovered is not to be understood as sanctioning use of the methodology proposed by NBCA on this appeal. D. Ninety-Percent Test Section 1677b(b) provides that: Whenever sales are disregarded by virtue of having been made at less than the cost of production and the remaining sales, made at not less than cost of production, are determined to be inadequate as a basis for the determination of foreign market value under subsection (a) of this section, the administering authority shall employ the constructed value of the merchandise to determine its foreign market value. (emphasis added). The ITA finds home market sales “inadequate” under this statute if more than ninety percent of home market sales were below cost. The agency’s use of this ninety-percent test is inappropriate for the simple reason that there is an applicable and conflicting agency regulation. See 19 C.F.R. § 353.4 (1987). Section 353.4 provides that if it is established that the quantity of merchandise in the home market is “so small in relation to the quantity sold for exportation to countries other than the United States (normally, less than five percent of the amount sold to third countries)” as to be an inadequate basis for determining foreign market value, value shall be determined by reference to third country sales or constructed value. Id. The origin of this test is subsection (a) of 19 U.S.C. § 1677b, rather than subsection (b), the subsection here in issue. However, section 1677b(b) incorporates section 1677b(a) by reference. Additionally, the government concedes that section 353.4 is the “implementing regulation” for section 1677b(b). Government brief 44. An agency is required to follow its own regulations. 2 K. Davis, Administrative Law Treatise § 7.21, at 98 (2d ed. 1979). Consequently, the agency should have used , section 353.4 to determine whether home market sales provided an adequate basis for determining foreign market value. A remand is not necessary for this purpose, however, as the ITA represents that it has redone its calculations under section 353.4 and that under those calculations, as under calculations previously performed, home market sales are adequate for determining foreign market value. 13. Methodology Used to Determine Below-cost Sales In determining whether the remaining above-cost home market sales were adequate for determining foreign market value, the agency looked at home market sales that had occurred over the entire period under review. NBCA protests that the ITA should have ascertained whether remaining above-cost sales were adequate on a monthly basis, not on a full-period basis, because the agency had calculated foreign market value on a monthly basis. The court finds that the ITA acted within its discretion in using different time periods for determining foreign market value and for determining adequacy of above-cost sales. First, the issue of whether sales in the home market create an adequate market for comparison with sales in the United States is an issue conceptually distinct from that of how frequently foreign market value should be determined. Second, to require the ITA to base its determinations of market adequacy on the same time period used for determining foreign market value would permit manipulation by a foreign manufacturer of the method by which foreign market value is calculated. The manufacturer could, for example, concentrate its major above-cost sales in certain months to avoid having a significant number of above-cost sales in other months, and so ensure use of constructed value or of third-country prices in those other months. 14. Cost of Production: Selling Expenses As discussed, above, the ITA, under 19 U.S.C. § 1677b(b), is required to disregard certain home market sales that are made at prices less than the “cost of pr