American Permac, Inc. v. US, 91-02-00155.

• Citation: 16 CIT 41,783 F. Supp. 1421
• Decision Date: 04 February 1992
• Docket Number: No. 91-02-00155.,91-02-00155.
• Parties: AMERICAN PERMAC, INC., et al., Plaintiffs, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

783 F. Supp. 1421

16 CIT 41

AMERICAN PERMAC, INC., et al., Plaintiffs, v. The UNITED STATES, Defendant.

No. 91-02-00155.

United States Court of International Trade.

February 4, 1992.

Barnes, Richardson & Colburn (Rufus E. Jarman, Sandra Liss Friedman, and Alan Goggins), for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, U.S. Dept. of Justice, Civ. Div. (Velta A. Melnbrencis), for defendant.

OPINION

RESTANI, Judge:

This matter is before the court on plaintiffs' Rule 56.1 motion for summary judgment on the administrative record. Plaintiffs challenge the final results of the administrative review of the antidumping duty determination regarding drycleaning machinery from Germany. The review resulted in a dumping margin of 1.35 percent for machinery of the plaintiff exporter. Drycleaning Machinery From Germany; Final Results of Antidumping Duty Administrative Review, 56 Fed.Reg. 2901, 2902 (Jan. 25, 1991) ("Final Results").

Plaintiffs claim that almost all of the duties imposed are attributable to five machines which represented less than five percent of sales and which were of a design that was being replaced in the U.S. market. In fact, these five machines were the last of the particular model imported into the United States.

As this was the only model of plaintiffs which was also sold in the home market and as home market sales were made exclusively to end users as opposed to both end users and distributors, plaintiffs sought a level of trade adjustment for this model. See 19 C.F.R. § 353.58 (1991). The level of trade adjustment, which involved bad debt and indirect sales office expenses, was granted. Final Results at 2902.

Plaintiffs assert that they also requested an additional level of trade adjustment, exclusion of the sales, or some other adjustment, because sales of the model at issue were discontinued in the United States. The court finds no evidence that exclusion or some other adjustment for model discontinuance was claimed at the time the questionnaire response was submitted. Plaintiffs allege that this claim was made in its prehearing brief of December 5, 1990. Pub.Doc. 19. They also allege that there is ample factual support in the record for such a claim.

First, the court finds that the only claim made in the prehearing brief was for a level of trade adjustment. Furthermore, although there was a passing reference to obsolescence, no claim was made in the brief for a level of trade adjustment based on the fact that the model had been discontinued or was "obsolete."¹ Assuming arguendo that the prehearing brief asked for an additional level of trade adjustment, the court fails to see how an adjustment for differences in levels of trade in the home market versus the U.S. market is applicable to a problem of model discontinuance in the United States. This has never been explained. Although plaintiffs might have attempted to support a circumstance of sale adjustment, (see 19 U.S.C. § 1677b(a)(4)(B) (1988)), or some other rational adjustment based on market differences, they did not do so. The court must conclude that plaintiffs are not entitled to an adjustment to U.S. or foreign market price of any type for model discontinuance because they did not support such a claim.²

The real issue is plaintiffs' alternative claim for total exclusion of these five sales based on model discontinuance. This claim was raised for the first time at the hearing of December 20, 1990. See Pub. Doc. 20 at 10-11. Plaintiffs' claim for exclusion is based on their theory that these machines were discontinued or obsolete and thus outside the ordinary course of trade. As the court has made quite clear, regular exclusion of sales not in the ordinary course of trade only occurs on the home-market-sales side of the price comparison. See Floral Trade Council v. United States ("Floral Trade III"), 15 CIT ___, ___, 775 F.Supp. 1492, 1503 (1991) (sales of deteriorated flowers to street vendors not excluded in calculating U.S. price; adequate adjustment made via averaging); IPSCO, Inc. v. United States ("IPSCO"), 12 CIT 384, 394-95, 687 F.Supp. 633, 641 (1988) (neither statute nor legislative history indicates Congress intended exclusion from U.S. price of all sales outside ordinary course of trade). It does not follow inexorably, however, that every U.S. sale of the merchandise under investigation must be included in every case. See IPSCO, 12 CIT at 395-96, 687 F.Supp. at 641-642. IPSCO, Inc. v. United States, 13 CIT 402, 408-409, 714 F.Supp. 1211, 1216-17 (1989); Asociacion Colombiana de Exportadores de Flores v. United States, 13 CIT 13, 27, 704 F.Supp. 1114, 1126 (1989) Asociacion Colombiana de Exportadores v. United States, 13 CIT 526, 533-34, 717 F.Supp. 834, 841 (1989).

The distinction is that while U.S. sales outside the ordinary course of trade ordinarily should be included (this may be the very cause of injury), a methodology is to be applied which accounts for sales which are unrepresentative and which do not lead to a fair price comparison. Fair (apples to apples) comparison is the goal of the price comparisons required by the antidumping laws, as the courts have stated time and again. See e.g., U.H.F.C. Co. v. United States, 916 F.2d 689, 697 (Fed.Cir. 1990); Smith-Corona v. United States, 713 F.2d 1568, 1578 (Fed.Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984); AOC International, Inc. v. United States, 13 CIT 716, 718, 721 F.Supp. 314, 317 (1989).

ITA makes two arguments in response to the claim for exclusion. ITA's first argument is that plaintiffs did not request exclusion based on obsolescence and they may not request it now for the first time. In fact, plaintiffs did make the request at the hearing of December 20, 1990, for what appears to be the first time. ITA seems to have decided that such a request could not be made at that date. See Pub.Doc. 20 at 19 (indicating only level of trade adjustment issues were to be addressed at hearing). Furthermore, ITA did not address the exclusion issue in the final results, presumably because it thought the issue had not been timely raised.

Plaintiffs state that all factual data to support their new "legal theory" was in the record and that they may raise this "legal theory" at any time, and further that they were prevented from pointing out all the facts of record to support their claimed exclusion.

It appears to the court that ITA must have some latitude to control its proceedings and that it may limit the parties to making claims for adjustments or exclusions of sales to a time in advance of the final hearing. In fact, ITA's regulations provide that arguments are limited to those presented in writing prior to the hearings. See 19 C.F.R. § 353.38(b) (1991). This court has upheld other ITA rules intended to promote prompt and efficient factfinding in accordance with ITA's statutory mission. See Floral Trade Council v. United States, 12 CIT 1172, 704 F.Supp. 241 (1988) ("Floral Trade II") (untimely...