author: DiCARLO, Judge:

text:
    CARLISLE TIRE & RUBBER CO., DIVISION OF CARLISLE CORP. et al., Plaintiffs, v. The UNITED STATES, Defendant, Dong-Ah Tire Ind. Co., Ltd., Heung-Ah Tire Ind. Co., Ltd., Defendants-Intervenors.
    Court No. 84-7-01058.
    United States Court of International Trade.
    Oct. 24, 1985.

      Frederick L. Ikenson, P.C. (Frederick L. Ikenson and J. Eric Nissley), Washington, D.C., for plaintiffs.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Dir., Dept, of Justice, Commercial Litigation Branch (Shelia N. Ziff), Washington, D.C., for defendant.
    Dow, Lohnes & Albertson (William Silverman, John C. Jost, and Margaret B. Dardess), Washington, D.C., for defendantintervenor Dong-Ah Tire Ind. Co., Inc.
    Arnold & Porter (Richard A. Johnson and Stephan E. Becker), Washington, D.C., for defendant-intervenor Heung-Ah Tire Ind. Co., Inc.
   Memorandum Opinion and Order

DiCARLO, Judge:

Plaintiffs, domestic producers of tire tubes, challenge a final determination by the United States Department of Commerce, International Trade Administration (Commerce) that tubes for tires, other than bicycle tires, (inner tubes) from Korea are not being sold in the United States at less than fair value. Tubes For Tires, Other Than Bicycle Tires, From the Republic of Korea (Final), Antidumping Investigation No. A-580-009, 49 Fed.Reg. 26,780 (1984).

I. BACKGROUND

In July, 1983 seven domestic producers (petitioners) petitioned Commerce on behalf of the domestic inner tube industry alleging that inner tubes from Korea were, or were likely to be, sold in the United States at less than fair value, that these imports were materially injuring, or threatening to injure, an industry in the United States, and that an antidumping duty should be imposed under 19 U.S.C. § 1673 (1982).

Commerce published notice of its determination to begin an investigation on August 12, 1983. 48 Fed.Reg. 36,637 (1983). The International Trade Commission found reasonable indication that imports of inner tubes were materially injuring, or threatening to materially injure, a United States industry. Tubes for Tires, Other Than For Bicycle Tires, From The Republic of Korea, Investigation No. 731-TA-137 (Preliminary), USITC Public. No. 1416, 48 Fed. Reg. 39,519 (1983).

Commerce sent sales price and production cost questionnaires to two Korean producers, Heung-Ah Tire Ind. Co., Ltd. (Heung-Ah) and Dong Ah Tire Ind. Co., Ltd. (Dong-Ah), who together produce about 90 percent of the inner tubes exported from Korea to the United States. On February 10, 1984, Commerce published a preliminary determination that the Korean producers were not selling at less than fair value. 49 Fed.Reg. 5155.

Commerce published its final negative determination on June 29, 1984, finding de minimus weighted-average dumping margins of 0.03% for Heung-Ah and 0.01% for Dong-Ah. 49 Fed.Reg. 26,780, 26,784.

On July 25, 1984, six of the petitioners (plaintiffs) sought review of Commerce’s determination, pursuant to 19 U.S.C. § 1516a(a)(2) (1982). On October 31, 1984, the administrative record was filed in the Court. Dong-Ah and Heung-Ah were granted leave to intervene on November 14,1984 and December 27,1984, respectively-

On January 9, 1985, plaintiffs moved to compel the filing of a newly certified and supplemented administrative record. Following a hearing held on February 25, 1985, plaintiffs’ motion was granted in part and denied in part. A newly certified record was filed in the Court on May 17, 1985. Plaintiffs now move for judgment on the agency record pursuant to Rule 56.1 of the Rules of this Court.

Plaintiffs claim Commerce made several errors in determining and adjusting the foreign market value of intervenors’ inner tubes. Foreign market value is defined at 19 U.S.C. § 1677b(a)(l) (1982). Our appellate court has summarized the central role of foreign market value in the antidumping laws:

if foreign merchandise is sold or is likely to be sold in the United States at less than its fair value to the material injury of a United States industry, then an additional antidumping duty shall be imposed. The amount of the duty shall equal the amount by which the foreign market value exceeds the United States price for the merchandise.
Foreign market value and United States price represent prices in different markets affected by a variety of differences in the chain of commerce by v/hich the merchandise reached the export or domestic market. Both values are subject to adjustment in an attempt to reconstruct the price at a specific, “common” point in the chain of commerce, so that value can be fairly compared on an equivalent basis.

Smith-Corona Group v. United States, 713 F.2d 1568, 1571-72 (Fed.Cir.1983) (emphasis in original) (footnote omitted), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984). The foreign market value of intervenors’ inner tubes was determined on the basis of home market sales, in accordance with 19 U.S.C. § 1677b(a)(l). Specifically, plaintiffs claim that:

(1) Commerce incorrectly paired the sizes of inner tubes Heung-Ah sold in the home market and in the United States as “such or similar merchandise”;

(2) Commerce should have allocated all or part of Dong-Ah’s labor cost at the rubber mixing stage of production on the basis of tube weights, rather than time, in determining Dong-Ah’s cost of production for disregarding below cost of production home market sales;

(3) Commerce should have used a six-month weighted average rather than quarterly data in determining Dong-Ah’s cost of manufacture for making merchandise adjustments to Dong-Ah’s foreign market value;

(4) Commerce should have made a circumstances of sale adjustment to HeungAh’s foreign market value to include product liability insurance expenses for exported tubes;

(5) Commerce should have made a level of trade adjustment to Heung-Ah’s foreign market value to include unloading charges in sales to original equipment manufacturers;

(6) Commerce insufficiently investigated respondent’s home market sales prices; and

(7) in adjusting foreign market value to account for differences in physical characteristics of the exported and home market inner tubes, Commerce improperly determined and insufficiently verified the weights of intervenors’ exported inner tubes.

The Court finds, with respect to each contention except verification of the weights of Dong-Ah’s exported inner tubes, that Commerce’s determination is supported by substantial evidence or otherwise in accordance with law.

II. THE STANDARD FOR JUDICIAL REVIEW

Judicial review of final determinations in antidumping investigations is provided under 19 U.S.C. § 1516a(b)(l)(B) (1982), which states: “The court shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.”

“Substantial evidence is more than a mere' scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938), quoted in Matsushita Electric Industrial Co. Ltd. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984). It is “enough [evidence] to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury,” NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939), and “something less than the weight of the evidence ... [T]he possiblity of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence,” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951); Matsushita Electric Industrial Co. Ltd. v. United States, 750 F.2d 927, 936 (Fed.Cir.1984) (substantial evidence a “limited standard of review”).

The substantial evidence standard “frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute.” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131 (1966) (footnote omitted). But the Court must consider the record as a whole; evidence on the record which detracts from the substantiality of the evidence relied on by the agency in making its determination must be considered. See Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1563 (Fed.Cir.1984).

With respect to the administration and enforcement of the antidumping laws, our appellate court has said:

The Tariff Act of 1930, as amended by the Trade Agreements Act of 1979, establishes an intricate framework for the imposition of antidumping duties in appropriate circumstances. The number of factors involved, complicated by the difficulty in quantification of these factors and the foreign policy repercussions of a dumping determination, makes the enforcement of the antidumping law a difficult and supremely delicate endeavor. The Secretary of Commerce (Secretary) has been entrusted with responsibility for implementing the antidumping law. The Secretary has broad discretion in executing the law.

Smith-Corona Group v. United States, 713 F.2d 1568, 1571 (Fed.Cir.1983) (footnotes omitted). “Our review of the statute reveals tremendous deference to the expertise of the Secretary of Commerce in administering the antidumping law.” Id., at 1582; see Consumer Products Division, SCM Corp. v. Silver Reed America, Inc., 753 F.2d 1033, 1039-40 (Fed.Cir.1985).

The legislative history of the Trade Agreements Act of 1979 discloses that Congress intended to give Commerce “greater flexibility” in conducting antidumping investigations. See Melamine Chemicals, Inc. v. United States, 732 F.2d 924, 930-31 (1984). This flexibility was accompanied by statutory deadlines which require Commerce to complete these investigations promptly.

The appellate court has not hesitated to reverse this Court when insufficient deference was given to the agency.

To summarize, the substantial evidence on the record test permits only a limited review of the agency determination; our appellate court has found that Congress requires the Court to give Commerce’s determination of foreign market value “tremendous deference.” Under present law it is not for the Court to impose its preferred choices on Commerce with respect to the sufficiency of its investigation or the wisdom of its methods so long as there is support in the record as a whole for its determination and its methods are in accordance with law.

With these considerations in mind, the Court now considers plaintiffs’ challenges to Commerce’s determination. Most of plaintiffs’ arguments challenge methods used by Commerce in determining and adjusting foreign market value. The final two arguments — that Commerce erred in determining home market prices and the rubber weight of exported inner tubes— challenge the sufficiency of the evidence Commerce relied on making its determination.

III. COMMERCE’S METHODS IN CALCULATING FOREIGN MARKET VALUE

A. Such or Similar Merchandise

To determine foreign market value, Commerce is required to determine, for merchandise exported to the United States, the price charged for “such or similar merchandise” in the home market. 19 U.S.C. § 1677b(a)(l)(A) (1982). In its investigation, Commerce compared home market inner tubes and inner tubes exported to the United States on the basis of product category and weight.

Plaintiffs claim that the weights of the tubes should be the only basis of comparison. They point to a memorandum written by Commerce investigators advising that Commerce should compare the tubes solely on that basis.

Commerce’s determination and the supplemental corrected computer runs indicate the method chosen by Commerce to compare the home market tubes and tubes exported to the United States. In comparing tube models within the same product category, Commerce compared merchandise which is “like ... in the purposes for which [it is] used,” according to 19 U.S.C. § 1677(16)(C)(ii) (1982). For example, tubes for passenger cars were compared only with tubes for other passenger cars and not with tubes for trucks or farm vehicles.

As this Court recently held, failure to use a discretionary alternative method does not constitute error when the agency uses a lawful second method. Zenith Corp. v. United States, 9 CIT —, —, 606 F.Supp. 695, 698 (1985), appeals docketed, No. 85-2246, (Fed.Cir. April 10, 1985), No. 85-2286 (Fed.Cir. April 26, 1985). The Court holds that Commerce’s determination to compare inner tubes according to product category was reasonable and in accordance with law. B. Dong-Ah’s Allocation of Labor Costs

Home market sales at less than cost of production must be disregarded in determining foreign market value. 19 U.S.C. § 1677b(b) (1982). Cost of production is the cost of making and selling the merchandise. See 19 C.F.R. § 353.7(b) (1984). In determining Dong-Ah’s cost of production, Commerce accepted Dong-Ah’s time-based allocation of labor costs for the rubber mixing stage of production.

Plaintiffs argue that the labor costs at the mixing stage should be allocated according to the weight of the finished tubes, rather than by the employee time expended mixing the rubber. Plaintiffs claim that Dong-Ah began to allocate its labor costs at the rubber mixing stage according to time in December, 1983, after plaintiffs argued to Commerce that Dong-Ah’s cost of production exceeded its sales prices for larger tube sizes. Plaintiffs say that prior to that time Dong-Ah allocated the rubber mixing stage cost according to weight, and by shifting its allocation basis Dong-Ah moved labor costs away from larger tubes and towards smaller ones.

Commerce determined that either weight or time is acceptable as a basis for allocating labor costs at the mixing stage. Commerce explained that Dong-Ah’s records are maintained on a time basis, and that there was no justification for changing Dong-Ah’s allocation method since “any such adjustments would have an immaterial effect on the total cost of production.” 49 Fed.Reg. at 26,783. Plaintiffs’ arguments were considered by a Commerce accountant who determined that Dong-Ah’s time-based allocation was reasonable. Heung-Ah allocates its labor costs at the mixing stage by time, as does plaintiff Car-lisle Tire & Rubber Company.

Again, the Court must defer to Commerce’s expertise and judgment. The Court holds that Commerce’s acceptance of Dong-Ah’s time-based labor cost allocation was reasonable and in accordance with law.

C. Calculation of Dong-Ah’s Cost of Manufacture

Adjustments must be made in foreign market value to the extent that physical differences in the home market and export merchandise being compared result in differences in cost of production of the merchandise. 19 U.S.C. § 1677b(a)(4) (1982), 19 C.F.R. § 353.16 (1984). Intervenors’ inner tubes manufactured for export to the United States have more rubber content than tubes sold in the home market. In order to adjust foreign market value to account for this physical difference in home market and exported tubes, Commerce calculated the cost of manufacturing, or making, the tubes. To determine the cost of manufacture, Commerce used costs in the quarter in which the sale occurred, rather than six-month weighted average costs, which were used to calculate cost of production in order to disregard below cost of production home market sales in determining foreign market value.

Plaintiffs argue that since Commerce determined Dong-Ah’s cost of production by six-month weighted average, it was required to use six-month weighted average to determine cost of manufacture, which is an element of cost of production. Plaintiffs say that Commerce could not reasonably use a six-month weighted average to calculate the entire cost of production for one purpose and another method to calculate part of that cost for another purpose.

The Court disagrees. Defendant says Commerce used quarterly data in calculating the cost of manufacture because it believed that method would reflect those particular costs more accurately than would a six-month weighted average. Plaintiff does not dispute this. Commerce’s determination that quarterly data are more accurate for making merchandise adjustments is entitled to deference, and the Court finds it reasonable and in accordance with law.

D. Circumstances of Sale Adjustments

1. Product Liability Insurance

19 U.S.C. § 1677b(a)(4) provides that “if it is established to the satisfaction of [Commerce] that the amount of any difference between the United States price and the foreign market value ... is wholly or partly due to ... differences in the circumstances of sale ... then due allowance shall be made therefor.” Differences in circumstances of sale generally will be limited “to those circumstances which bear a direct relationship to the sales which are under consideration.” 19 C.F.R. § 353.15(a) (1984).

Plaintiffs assert that the cost of HeungAh’s product liability insurance for foreign sales is a difference in circumstances of sale between the United States and home market that Commerce was required to consider in adjusting Heung-Ah’s foreign market value. Plaintiffs say the cost of product liability insurance is an “assumption by a seller of a purchaser’s ... other selling costs” within the scope of 19 C.F.R. § 353.15(b). Plaintiffs argue that since the cost of product liability insurance is incurred only for export sales, and not for sales in Korea, it is a selling expense directly related to export sales.

Commerce’s notice of its determination states:

In our preliminary determination, we also made adjustments to both HeungAh’s and Dong-Ah’s home market prices for costs relating to product liability insurance. Further analysis reveals that these costs are general in nature and not directly related to specific sales. Therefore, we have not made the adjustments for the final determination.

49 Fed.Reg. at 26,781.

Congress has given Commerce broad discretion to determine whether a factor or condition of sale warrants an adjustment in foreign market value for circumstances of sale. In Brother Industries Ltd. v. United States, 3 CIT 125, 540 F.Supp. 1341 (1982), this Court held that

it must be stressed that the statute requires only that a causal link be established to the satisfaction of the administering authority____ Manifestly, then, since the statute sets forth no definitive criterion, Congress intended to rely upon the expertise and judgment of the administering authority to determine the criterion which will establish the existence of the necessary causal link between the difference in prices and differences in circumstances of sale.

3 CIT at 130, 540 F.Supp. at 1349 (emphasis in original). See Smith-Corona Group v. United States, 713 F.2d 1568, 1580 (Fed.Cir.1983).

Commerce found that Heung-Ah’s product liability costs covered all products sold by that firm world wide, and did not relate just to specific sales of inner tubes in the United States. Commerce’s decision not to make a circumstance of sale adjustment for the cost of product liability insurance is reasonable and in accordance with law.

2. Level of Trade Adjustment for Sales to Original Equipment Manufacturers

19 C.F.R. § 353.19 (1984) requires Commerce to disregard home market sales to different levels of trade than United States sales or make “appropriate adjustments ... for differences affecting price comparability.” Such adjustments may be required where purchasers perform different functions in the distribution network which result in different costs. A level of trade adjustment is appropriate where, for example, sales are made in one market to wholesalers who do their own warehousing, invoicing and marketing and in the other market to retailers who do not.

Plaintiffs claim that Commerce erred in failing to adjust Heung-Ah’s foreign market value for home market sales to two “original equipment manufacturers” that resell the tubes with automobiles. Plaintiffs allege that sales to original equipment manufacturers in Korea are sales at a different level of trade, and that the unloading charge absorbed by Heung-Ah in such sales should be added to the sale price as a difference in the circumstances of sale under 19 U.S.C. § 1677b(a)(4)(B) (1982).

In the Federal Register notice announcing its determination, Commerce stated that:

We have examined Heung-Ah’s home market sales and have found (1) no correlation between price and class of customer, (2) no evidence indicating that pricing differentials are due to differences in selling costs at different levels of trade, and (3) no significant differences in quantities sold between “OEM’s” [sic] [original equipment manufacturers] in the home market and “wholesalers” in the U.S. market. Our verification indicates that Heung-Ah’s prices to each of its home market customers were established through negotiation with the customer. Rebates and the payment of unloading charges are not provided to every OEM customer, but only to the one that happens to be Heung-Ah’s largest customer. Petitioners argument is inconsistent. While they would have us exclude sales to OEM customers, they do not argue that we should exclude sales to HeungAh’s other customers that are not called wholesalers. Therefore, we have determined that a level of trade adjustment is not warranted, and we have based the weighted-average home market prices on sales to all classes of customers, including OEM’s.

49 Fed.Reg. at 26,781-82.

Both the quantities of inner tubes sold to original equipment manufacturers and the prices charged such customers were considered by Commerce in its investigation. Cf. Silver Reed America, Inc. v. United States, 7 CIT —, —, 581 F.Supp. 1290, 1295-96 (1984), rev’d on other grounds sub nom. Consumer Products Div., SCM Corp. v. Silver Reed America, Inc., 753 F.2d 1033 (Fed.Cir.1985) (level of trade issue remanded since Commerce compared only quantities sold, not prices). Plaintiffs do not dispute Commerce’s factual findings, but argue that Commerce erred in not finding that the facts warranted a level of trade adjustment.

As noted previously, 19 U.S.C. § 1677b(a)(4)(B) grants Commerce broad discretion in determining whether a circumstances of sale warrants an adjustment in foreign market value. Brother Industries, Ltd. v. United States, 3 CIT 125, 540 F.Supp. 1341 (1982).

The Court holds that Commerce’s finding that Heung-Ah’s sales to original equipment manufacturers were not at a sufficiently different level of trade to require that the unloading charge absorbed by Heung-Ah in such sales should be added to the sale price as a circumstance of sale adjustment is reasonable and in accordance with law.

IV. THE ADEQUACY OF COMMERCE’S INVESTIGATION

A. Intervenors’ Home Market Sales Prices

Plaintiffs argue that Commerce’s findings of home market prices are not supported by substantial evidence because Commerce insufficiently investigated home market prices in view of information submitted by plaintiffs that intervenors understated those prices. Plaintiffs submitted alleged price lists of Heung-Ah and two price surveys indicating lower home market prices than those claimed by intervenors and found by Commerce.

In its final determination, Commerce stated that no further investigation of the intervenors’ Korean sales prices was warranted because (1) Commerce verified the prices claimed by intervenors and was satisfied that they were accurate; (2) Commerce did not find “any evidence of concealment” by the intervenors; and (3) petitioners did not submit “any documentation (<s.g., sales invoices, customer receipts, payment records, etc.)” to support their allegations that the claimed prices were inaccurate. 49 Fed.Reg. at 26,783.

Three Commerce investigators visited the premises of both intervenors in Korea in January, 1984, to verify intervenors’ responses to Commerce’s sales price questionnaires. For Dong-Ah, Commerce investigators examined internal sales documents, customer slips, journal entries and records of payment for randomly selected sales. For Heung-Ah, Commerce investigators examined, also at random, ledgers, invoices, contracts, and letters of credit. From these documents, Commerce verified inland freight expenses, sales commissions, warranty expenses, packing costs, difference in payment terms, customs duty drawback, direct selling price adjustments, promotional expenses, and product liability insurance for both intervenors. Commerce investigators found no discrepancies between intervenors’ questionnaire responses and the verified home market prices.

In March, 1984, a fourth Commerce investigator met in Korea with a representative of an accounting firm that assisted in plaintiffs’ first study of home market prices. The investigator was told that: the study of the Korean inner tube industry was conducted “a couple of years” prior to 1984; the primary source of information consisted of interviews with customers, retailers, or wholesalers, sometimes by researchers posed as college students to encourage corporate officials (a company comptroller, for example) to be more frank; the only documentation obtained was a “price list” covering a period ending in 1982; the information obtained had been inconsistent; those interviewed were not knowledgeable and sometimes mistaken about the merchandise; and the estimated break-even prices on sales of the Korean producers were performed by extrapolation based on the public financial statements of each producer, data obtained through interviews, and “guess work.”

The investigator also interviewed a representative of the Korea Price Association (Association) to probe allegations in plaintiffs’ first study regarding the Association’s findings of home market prices. The Association official stated that his organization’s information represented prices from distributors to retailers, and from retailers to consumers, and that the Association did not collect data concerning manufacturers’ prices. Since manufacturers’ prices were at issue in the investigation, the prices found by the Association were irrelevant.

Based upon these interviews, Commerce decided not to investigate further the information contained in plaintiffs’ first price study.

Plaintiffs submitted to Commerce a second set of home market price allegations less than two months before the final determination. Commerce had investigated and satisfied itself that there was no basis for home market prices claimed in plaintiffs’ first study and had completed its verification of intervenors’ prices using standard verification techniques. It was not unreasonable for Commerce to decline to undertake another on-site verification after receiving plaintiffs further allegations.

The Court finds that there is substantial evidence in the record as a whole to support Commerce’s determination of the prices charged by intervenors in the home market.

B. Weights of Exported Tubes

Finally, plaintiffs allege that Commerce improperly determined and insufficiently verified the weights of intervenors’ tubes exported to the United States. They say that the weights of exported tubes indicated by shipping documents and price lists included with intervenors’ questionnaire responses are significantly higher than the weights reported to Commerce. Plaintiffs also contend that nothing in the record indicates that Commerce verified the weights of Dong-Ah’s tubes.

With respect to their first contention, plaintiffs say that the packing documents and price lists are particularly credible since they predate the antidumping investigation and were circulated in the normal course of business. Plaintiffs say that a price list for Dong-Ah export tubes, which includes a declared federal excise tax, is especially probative because the cost of importing Dong-Ah tubes into the United States would be increased if the tube weights were overstated. Plaintiffs argue that the price list is analogous to a statement against interest under Fed.R.Evid. 804(b)(3).

In its final determination notice, Commerce stated that: (1) intervenors deny that the price lists are authentic; (2) the price lists may have indicated the weight of the tubes with valves, while intervenors reported the weight of the tubes without valves; (3) federal excise tax information on the Dong-Ah price list may have been calculated on the basis of average weights as opposed to actual weights; and (4) random weighing of intervenors’ tubes was conducted at verification, and “[n]o significant discrepancies were found.” 49 Fed. Reg. at 26,783.

In determining the weights of the exported tubes, Commerce rejected information contained in shipping documents and price lists, preferring to weigh sample tubes. It is within the discretion of Commerce to determine how to verify the weights, and due deference will be given to the expertise of the agency. See Zenith Corp. v. United States, 9 CIT —, —, 606 F.Supp. 695, 698 (1985), appeals docketed, No. 85-2246, (Fed.Cir. April 10, 1985), No. 85-2286 (Fed.Cir. April 26,1985) (“Substantial evidence does not have to be perfect evidence. [Commerce] is even empowered to utilize information which might be less than satisfactory in normal situations”).

However, while the verification report for Heung-Ah indicates that sample tubes of eight sizes were weighed at Heung-Ah’s factory, the verification report for Dong-Ah does not mention a weighing of Dong-Ah’s tubes, nor any other verification of the weight data reported to Commerce by Dong-Ah. Congress requires Commerce to “verify all information relied upon in making a final determination in an investigation” and to “report the method and procedures used to verify such information.” 19 U.S.C. § 1677e(a) (1982).

It is not clear whether weight information was omitted from the Dong-Ah verification report by inadvertence, or whether the investigators did not weigh DongrAh’s tubes. In any event, the finding in the notice of the final determination regarding the accuracy of the tube weights reported by Dong-Ah is unsupported by the Dong-Ah verification report.

Defendant argues that the record contains evidence that Dong-Ah’s tube weights were verified on the basis of a letter written to Commerce by an attorney for Dong-Ah. The letter, which is part of the record, states: “At the verification in Pusan, Commerce investigators selected tube sizes at random and weighed the tubes in order to verify the reported weight____ By actually weighing the tubes, the investigators determined the accuracy of the weights reported by Dong-Ah____”

This statement, made by an attorney for an interested party after the conclusion of the verification proceedings, possesses none of the indicia of reliability commonly considered in determining probative value. Cf. Richardson v. Perales, 402 U.S. 389, 402-06, 91 S.Ct. 1420, 1427-30, 28 L.Ed.2d 842 (1971); Calhoun v. Bailar, 626 F.2d 145, 148-49 (9th Cir.1980); James C. Goff Co. v. United States, 58 CCPA 147, 149, 441 F.2d 671, 763 (1971). That Commerce investigators could have included in their verification report a description of actual weighing of the Dong-Ah tubes, if such a weighing took place, as they did in HeungAh verification report, further detracts from the substantiality of the letter as evidence of a finding that the Dong-Ah weights were verified.

The Court holds that the letter is not substantial evidence that Commerce verified Dong-Ah’s reported tube weights and that there is not substantial evidence on the record that Dong-Ah’s tube weights were verified as required by 19 U.S.C. § 1677e. “The failure of [defendant] to provide the court with the basis of its determination precludes the court from fulfilling its statutory obligation on review.” Industrial Fasteners Group, American Importers Ass’n v. United States, 2 CIT 181, 190, 525 F.Supp. 885, 893 (1981), appeal after remand, 3 CIT 58, 542 F.Supp. 1019 (1982), aff'd, 710 F.2d 1576 (Fed.Cir.1983).

Accordingly, the action must be remanded. If Commerce investigators weighed Dong-Ah’s export tubes during the on-site verification, Commerce is directed to supplement the record with a report of that verification and its findings and any redetermination of Dong-Ah’s weighted-average dumping margin within thirty days from the date of this opinion. If Commerce investigators did not weigh the tubes, Commerce is directed to determine and verify the weights of Dong-Ah’s export tubes and report its findings and any redetermination of Dong-Ah’s weighted-average dumping margin within sixty days from the date of this opinion.

V. CONCLUSION

Except with respect to verification of the weights of Dong-Ah’s tubes, the Court finds Commerce’s determination supported by substantial evidence and otherwise in accordance with law. Plaintiffs’ motion for judgment on the agency record is granted in part and denied in part, and the case is remanded for further action consistent with this opinion.

So ordered.

      . Pursuant to requests from petitioners, and 19 U.S.C. §§ 1673b(c), 1673d(a)(2) (1982), Commerce postponed its preliminary and final determinations. 48 Fed.Reg. 53,740 (1983); 49 Fed.Reg. 12,733 (1984).

      . The Court denied plaintiffs’ motion to have certain telexes included in the record. See note 20, infra.

      . Plaintiffs also argue in their initial brief that Commerce failed to disregard all below cost home market sales by Dong-Ah in adjusting its foreign market value, and that Commerce made numerous errors entering data in the computer programs used to compute foreign market value.
      Plaintiffs’ reply brief concedes that Commerce disregarded Dong-Ah’s below cost home market sales in the recalculations performed in the corrected computer runs appended to Defendant’s Memorandum in Opposition to Plaintiff s’ Motion for Judgment on the Administrative Record as Appendix II. Plaintiffs’ Brief in Reply at 10 n. 6.
      Defendant says that Commerce reviewed all plaintiffs’ data entry error allegations and have “corrected every entry where in fact error was made.” Defendant's Memorandum in Opposition to Plaintiffs’ Motion for Judgment on the Administrative Record at 3. Defendant states that these corrections resulted in only infinitesimal differences and that de minimus margins continue to exist. Plaintiffs contend that Commerce's correction of data entry errors are incomplete but admit that "their accurate correction would not, taken in isolation, materially alter the ‘corrected’ printouts’ results____" Plaintiffs’ Brief in Reply at 4 n. 2. In a telephone conference plaintiffs conceded that the Court need not remand the determination solely to correct data entry errors.

      . The House Report on the Trade Agreements Act states:
      The [Act] retains the concept of ‘fair value’ for purposes of the investigative phase of an anti-dumping proceeding. The term fair value is not defined in current law nor in the bill. The Committee intends the concept to be applied essentially as an estimate of ‘foreign market value’ during the period of investigation so as to provide the Authority with greater flexibility in administration of the law.
      H.Rep. No. 96-317, 96th Cong., 1st Sess. 59 (1979).

      . “[A] major objective" of the 1979 Trade Act was to reduce the length of antidumping investigations. S.Rep. No. 249, 96th Cong., 1st Sess. at 75, reprinted in 1979 U.S.Code Cong. & Ad.News 381, 461.

      . See, e.g., Consumer Products Div., SCM Corp. v. Silver Reed America, Inc., 753 F.2d 1033 (Fed.Cir.1985); Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556 (Fed.Cir.1984); Melamine Chemicals, Inc. v. United States, 732 F.2d 924 (Fed.Cir.1984).

      . Plaintiffs do not argue that this memorandum is evidence of agency "precedent” which Commerce was "obligated to follow." Cf. M.M. & P. Maritime Advancement, Training and Safety Program v. Department of Commerce, 729 F.2d 748 (Fed.Cir.1984).

      . See note 3, supra.

      . In that case, plaintiffs contended that Commerce should have determined foreign market value on the basis of home market prices evidenced by price information submitted by the Japanese respondent to the Japanese Government for payment of the Japanese Commodity Tax. Instead, Commerce based foreign market value on constructed value. See 19 U.S.C. §§ 1677b(a)(2), 1677b(e).
      The Court concluded that “although the use of the commodity tax information would have been lawful and had much to recommend it, [Commerce] was under no statutory obligation to use it.” 606 F.Supp. at 698.

      . 19 C.F.R. 353.15(b) provides in part:
      Examples of differences in circumstances of sale for which reasonable allowances generally will be made are those involving differences in credit terms, guarantees, warranties, technical assistance, servicing, and assumption by a seller of a purchaser’s advertising or other selling costs. Reasonable allowances also generally will be made for differences in commissions. Allowances generally will not be made for differences in advertising and other selling costs of a seller, unless such costs are attributable to a later sale of the merchandise by a purchaser.

      . Commerce did refuse to make a circumstances of sale adjustment requested by Heung-Ah for its sales promotional expenses incurred in Korea. Commerce concluded there was not “sufficient information relating these expenses to sales of the products under investigation.” 49 Fed.Reg. at 26,781.

      . 19 C.F.R. § 353.19 provides:
      The comparison of the United States price with the applicable price in the market of the country of exportation (or, as the case may be, the price to or in third country markets) generally will be made at the same commercial level of trade. However, if it is found that the sales of merchandise to the United States or in the applicable foreign market to the same commercial level of trade are insufficient in number to permit an adequate comparison, the comparison will be made to the nearest comparable commercial level of trade and appropriate adjustments will be made for differences affecting price comparability.

      . See e.g. Portland Hydraulic Cement from Australia, 48 Fed.Reg. 41,056, 41,057-58 (1983).

      . Heung-Ah asserts, without record citation, that the unloading expenses for these two customers was a price concession of only 2.33 to 4.67 won (less than one cent) per tube. Brief of Intervenor Heung-Ah at 18, n. 8.

      . Commerce has previously said that a negotiated price concession to some purchasers does not establish that those purchasers occupy a different level of trade under § 353.19. See Steel Wire Rope From the Republic of Korea, 48 Fed.Reg. 41,615, 41,617 (1983).

      . Plaintiffs’ first study, submitted with their petition, alleged prices considerably lower than the prices reported by intervenors in their responses to Commerce’s questionnaires. Plaintiffs gave Commerce a Korean price list for Heung-Ah tubes that showed higher prices than Heung-Ah reported to Commerce.
      Plaintiffs’ second study of intervenors’ home market prices, which also alleged lower prices than those reported by intervenors, was submitted to Commerce in May, 1984, less than two months prior to the final determination.

      . Commerce investigated sales for the period February 1, 1983 to July 31, 1983.

      . Plaintiffs argue that the investigator’s memoranda did not provide an accurate summary of the statements made to him by the Korean accountant and ask the Court to consider two telexes not in the record. On March 29, 1985, the Court issued a memorandum opinion and order denying plaintiffs’ motion to compel Commerce to include these documents. The Court held that the documents were not "presented to or obtained by” Commerce in accordance with its regulations, and thus were not part of the “record” as defined by 28 U.S.C. § 2635(b)(1)(A) and 19 U.S.C. § 1516a(b)(2)(A)(i) (1982).
      Plaintiffs say the Court may consider the telexes in order to clarify any ambiguity in the record. See Bunker Hill Co. v. EPA, 572 F.2d 1286, 1292 (9th Cir.1977). Plaintiffs claim that the two telexes suggest that the investigator experienced difficulty in understanding the Korean accountant’s explanation as to how, when, and from whom the Heung-Ah price list had been obtained, as well as what the price list signified.
      Assuming, arguendo, that the Court could consider the telexes, the Court does not find that they change the result. There is substantial evidence on the record as a whole that Commerce verified intervenors’ home market prices.

      . Plaintiffs claim that the record shows that Association reports wholesale prices as well as retail prices. Again, even if the investigator erred in reporting this conclusion, the on-site verification provides substantial evidence for Commerce's determination of intervenor’s home market prices.

      . This submission, which consists of tables of prices said to have been obtained by Korean researchers, was not accompanied by invoices or other documentation, nor does it record dates of purchase, quantities purchased, or other information relating to individual transactions.

      . The Court notes that 19 U.S.C. § 1677e(b) permits Commerce to use the best information available if a party does not produce information in a "timely manner.”

      . The weight of the exported tubes is important because foreign market value adjustment for differences in the home market and export tubes other than valve differences is largely determined by the weight of the tubes which are being compared. The cost of manufacture for the exported tube will exceed the cost of manufacture of the home market comparison tube, and the foreign market value of the home market tube will be adjusted upward, to the extent that the exported tube weighs more — has more rubber material — than the home market comparison tube. See 19 C.F.R. § 353.16 (adjustment amount primarily determined by difference in cost of producing physical differences in merchandise); Part III.C. supra.

      . This tax is based on the weight of the merchandise. See section 4071(a)(3) of the Internal Revenue Code of 1954, as amended (section repealed, effective January 1, 1984).

      . Plaintiffs say that it was against the pecuniary interest of the price list’s author (the "declarant”) to circulate a list of substantially higher taxes payable by purchasers than were actually required by the tube weights; that such a statement against interest is admissible as evidence of the truth of the statement; and that there is no requirement that the declarant be the party, or the agent of the party, against which the statement is submitted.

      . Dong-Ah informed Commerce that the weights reported for purposes of the federal excise tax include valve weights pursuant to 26 C.F.R. § 48.4071-2(a)(2) (1984). Internal Revenue Service regulations also permit reporting of inner tube weights on the basis of an average weight for each size. 26 C.F.R. § 48.4071-2(b) (1984).

      . The Commerce verification report for Dong-Ah lists the attorney as "present at the verification.” The report states that the verification took place over a five day period.

      . In a table of exhibits to the Dong-Ah verification report, exhibit 13 is described as:
      Product liability insurance agreement. Random sample of various tube size weights taken during verification as compared to those furnished in the response. In some sample tube weights, the tolerance is within plus or minus 10% of the weight.
      Exhibit 13 contains several pages of tables with handwritten weight notations. The parties have offered no interpretation of these materials, and the Court draws no conclusion as to how they may relate to Commerce’s verification.


source: Caselaw Access Project

author: RE, Chief Judge.

license: Public Domain

text:
    COMPUTIME, INC., Plaintiff, v. The UNITED STATES, Defendant.
    Court No. 83-5-00750.
    United States Court of International Trade.
    Nov. 1, 1985.

      Soller, Singer & Horn (Margaret H. Sachter), New York City, for plaintiff.
    Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch (Jerry P. Wiskin), New York City, for defendant.
   Memorandum Opinion and Order

RE, Chief Judge.

In this action, the plaintiff, Computime, Inc., challenges the refusal of the Customs Service to reliquidate certain solid state electronic timepieces and parts entered at the port of Laredo, Texas. The Customs Service classified the merchandise as watches, under item 715.05, TSUS, and as parts of watches, under various items of Schedule 7 of the TSUS. Plaintiff contests the classification, and contends that the imported merchandise is properly classifiable under item 688.45, TSUS, as “Electrical articles and electrical parts ... not specially provided for ... Other.” Plaintiff asserts that this Court has jurisdiction of this action pursuant to 28 U.S.C. § 1581(a) (1982).

The defendant has moved to dismiss the action for lack of jurisdiction, or, alternatively, for failure to state a cause of action upon which relief can be granted. Plaintiff opposes the defendant’s motion, and cross-moves to dismiss for lack of jurisdiction on the ground that the liquidations of the entries were void. If the plaintiff’s cross-motion is granted, Customs would be required to reliquidate the entries.

Since plaintiff has failed to state a claim for which relief may be granted, the action is dismissed.

The plaintiff, an importer of solid-state electronic watches, received two shipments of liquid crystal diode (LCD) watches and parts at Laredo, Texas: entry no. 108883 on April 21, 1981, and entry no. 109008 on June 17, 1981. These entries were liquidated by the Customs Service on May 21, 1981 and June 17, 1981, respectively. Customs classified the merchandise under various items of Schedule 7 of the TSUS, as watches and parts thereof.

In two separate letters, which were both received by the District Director of Customs in Laredo on May 27, 1982, plaintiff requested reliquidation of its merchandise under item 688.45, TSUS, as electrical articles not specially provided for. Citing Texas Instruments, Inc. v. United States, 1 CIT 236, 518 F.Supp. 1341 (1981), aff'd, 69 CCPA 136, 673 F.2d 1375 (1982), plaintiff requested reliquidation of the entries pursuant to section 520(c)(1) of the Tariff Act of 1930, 19 U.S.C. § 1520(c)(1).

On June 10, 1982, the Customs Service denied the requests for reliquidation. The plaintiff thereafter filed this action.

The plaintiff makes two arguments: (1) that Customs made an administrative error correctible under section 520(c)(1), and that plaintiff’s two letters received by Customs on May 27, 1982, served as proper and timely requests for reliquidation under that section; and (2) that the original liquidations under Schedule 7, TSUS, were invalid and void as a matter of law. These contentions are without merit.

Relief Under Section 520(c)

Section 514 of the Tariff Act of 1930, 19 U.S.C. § 1514 (1982 & Supp.1984), sets forth the proper procedure for an importer to protest the classification of its merchandise when it believes that Customs has misinterpreted the applicable law and has illegally classified the imported merchandise. Section 520(c)(1), on the other hand, is designed to permit Customs to correct mistakes of fact or inadvertence which have caused an error in liquidation. Section 520(c)(1), in pertinent part, provides:

(c) Notwithstanding a valid protest was not filed, the appropriate customs officer may, ... reliquidate an entry to correct—
(1) a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law, adverse to the importer and manifest from the record or established by documentary evidence, in any entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the appropriate customs officer within one year after the date of liquidation or exaction.

19 U.S.C. § 1520(c)(l)(1982).

A mistake of fact has been defined as “a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, in reality does not exist.” C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust.Ct. 17, 22, C.D. 4327, 336 F.Supp. 1395, 1399 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974). Inadvertence is a somewhat broader term, and has been defined as “an oversight or involuntary accident, or the result of inattention or carelessness, and even as a type of mistake.” Id.

The courts, in eases interpreting section 520(c)(1), have consistently held that this section may only be used to correct mistakes of fact or inadvertence, such as clerical or ministerial errors, and may not be used to rectify allegedly incorrect interpretations of the law. See, e.g., Hambro Automotive Corp. v. United States, 66 CCPA 113, 120, C.A.D. 1231, 603 F.2d 850, 855 (1979); PPG Industries, Inc. v. United States, 7 CIT -, Slip Op. 84-27, at 9 (1984); Mattel, Inc. v. United States, 72 Cust.Ct. 257, 262-63, C.D. 4547, 377 F.Supp. 955, 960 (1974); Fibrous Glass Products v. United States, 63 Cust.Ct. 62, 63-64, C.D. 3874 (1969), appeal dismissed, 57 CCPA 141 (1970).

In this case, the plaintiff has not shown any clerical error, mistake of fact, or inadvertence. Rather, the plaintiff presents an extensive argument challenging the legality of Customs’ classification and liquidation of the entries at issue. In a word, plaintiff challenges Customs’ classification of its imported merchandise.

Plaintiff’s argument is a legal argument. Specifically, plaintiff contends that Customs failed to follow statutory procedure and its own regulations in liquidating plaintiff’s merchandise. It is clear, however, that Customs made a conscious policy decision to classify plaintiff’s merchandise as “watches” and parts of watches under Schedule 7, TSUS. Plaintiff’s challenge to this classification is a challenge to Customs’ interpretation of the law and its application to plaintiff’s imported merchandise. Section 520(c)(1) is “not an alternative to the normal liquidation protest method of obtaining review,” but rather affords “limited relief” where an unnoticed or unintentional error has been committed. C.J. Tower & Sons, supra, 68 Cust.Ct. at 21, 336 F.Supp. at 1398.

Plaintiff has not demonstrated that any factual or clerical error was made in the classification of its merchandise. The legal question presented is the proper or legal classification of plaintiff’s merchandise, and this question is properly raised by a timely protest pursuant to section 514(a), 19 U.S.C. § 1514(a). Since a valid protest was not filed pursuant to section 514(a), the court need not reach the substance or merits of plaintiff’s contentions.

Even if it were to be assumed that the plaintiff’s letters requesting reliquidation could be considered protests under 19 U.S.C. § 1514(a), they were not received within the required 90-day protest period. Hence, since they were untimely, they could not serve as a proper basis for an action in this Court. It should also be noted that the letter protesting entry no. 108883 was received more than a year after liquidation, and, therefore, even if otherwise proper, would also have been untimely under section 520(c)(1).

The “Voidance” Doctrine

The plaintiff also argues that the liquidations of the entries in question were contrary to law and, therefore, void. In effect, the plaintiff attempts to resurrect the “voidance” doctrine. The voidance doctrine, however, was eliminated by the Customs Courts Act of 1970. See 19 U.S.C. §§ 1500(d), 1514(a) (1982 & Supp.1984); United States v. A.N Deringer, Inc., 66 CCPA 50, 56, C.A.D. 1220, 593 F.2d 1015, 1020-21 (1979). Congress has made it eminently clear that the “decisions of the appropriate customs officer, including the legality of all orders and findings” pertaining to the liquidation of an entry shall be final and conclusive unless a timely protest is filed. 19 U.S.C. § 1514(a) (emphasis added).

In A.N. Deringer, the Court of Customs and Patent Appeals specifically considered the voidance doctrine in light of the Customs Courts Act of 1970. The court unequivocally held that the voidance doctrine was eliminated by that Act, and that the sole method of challenging an allegedly invalid or illegal liquidation was through the protest procedure. The court explained:

The statute contemplates that both the legality and correctness of a liquidation be determined, at least initially, via the protest procedure. The wording of this statute makes it clear that any challenge to the propriety of a liquidation (not specifically excepted) must be through this statute.

A.N. Deringer, supra, 66 CCPA at 55, 593 F.2d at 1020 (emphasis in original) (footnote omitted). Indeed, the statutory scheme has been carefully designed “to channel all nonexcepted protests through section 1514 even when those protests go to the legality of a customs official’s action.” Id. at 56, 593 F.2d at 1021. Since the voidance doctrine has been eliminated, plaintiff’s attempt to strike down the liquidations as void must fail.

Conclusion

It is the determination of the Court that Customs made no mistake of fact or inadvertence requiring reliquidation under section 520(c)(1). An importer dissatisfied with Customs’ classification of imported merchandise must file a protest pursuant to section 514 within 90 days of liquidation. In this case, plaintiff did not avail itself of the appropriate statutory remedy. Since plaintiff has not stated a claim for which relief can be granted under section 520(c), the defendant’s motion to dismiss is granted.

Plaintiff’s motion to dismiss is denied. The defendant’s motion to dismiss is granted, and the action is dismissed.


author: WATSON, Judge:

text:
    NEC CORPORATION, Plaintiff, v. UNITED STATES, Defendant.
    Court No. 85-7-00948.
    United States Court of International Trade.
    Nov. 19, 1985.
    Rehearing Denied Jan. 10,1986.

      Tanaka, Ritger & Middleton, Patrick O’Leary, Washington, D.C., for plaintiff.
    Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Velta A. Melnbrencis, Dept, of Justice, Commercial Litigation Braneh, Civil Division, Washington, D.C., for defendant.
   Memorandum Opinion and Order of Dismissal

WATSON, Judge:

This case is before the Court upon the motion of the defendant, United States, to dismiss for lack of jurisdiction, filed August 30, 1985, and the motion of the plaintiff, NEC Corporation, “to correct the filing date”, filed September 30, 1985. Both motions pertain to the plaintiff’s alleged failure to file the summons commencing this action within the time prescribed in 19 U.S.C. § 1516a(a)(2) and 28 U.S.C. § 2636(c). Various other papers have since been submitted, which are accepted for filing and have been considered in deciding these motions.

In this action, plaintiff seeks to contest the final results of the Commerce Department’s administrative review of an anti-dumping finding, pursuant to 19 U.S.C. § 1675(a), in the matter of Television Receiving Sets, Monochrome and Color, from Japan. Notice of the decision was published in the Federal Register on June 10, 1985. 50 Fed.Reg. 24278. This Court has exclusive jurisdiction to review such administrative determinations pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c). The applicable time limits for the filing of a summons and complaint in such an action are set forth in 19 U.S.C. § 1516a(a)(2)(A) as follows:

... Within thirty days after
(i) the date of publication in the Federal
Register of—
(I) notice of any determination described in clause ... (iii) ... of subparagraph (B) ...
an interested party who is a party to the proceeding in connection with which the matter arises may commence an action in the United States Court of International Trade by filing a summons and within thirty days thereafter a complaint, each with the content and in the form, manner, and style prescribed by the rules of that court, contesting any factual findings or legal conclusions upon which the determination is based.

Those time limits are expressly made jurisdictional under 28 U.S.C. § 2636(c), which states:

A civil action contesting a reviewable determination listed in [19 U.S.C. § 1516a] is barred unless commenced in accordance with the rules of the Court of International Trade within the time specified in such section.

In this case, it is undisputed that plaintiff’s counsel sought to post by certified mail an envelope addressed to the clerk containing the summons on July 8, 1985, but the envelope was returned to plaintiff’s counsel on July 15, 1985 with the notation “insufficient postage.” Counsel thereupon remailed the envelope with proper postage. Upon receipt thereof, the clerk deemed the summons as having been filed on the latter mailing date, July 15, 1985, pursuant to Rule 5(g) of this Court.

Defendant contends that this action is time-barred because the plaintiff failed to file the summons in this Court within thirty days after publication of the Commerce Department’s administrative determination in the Federal Register on June 10, 1985. Plaintiff does not dispute that if the clerk properly assigned the filing date of July 15, 1985 to the summons then the action must be dismissed as untimely. See generally Royal Business Machines, Inc. v. United States, 669 F.2d 692, 702 (C.C.P.A.1982). Plaintiff argues, however, that the clerk should have treated the summons as having been filed on July 8, 1985, the date plaintiff attempted to send the summons by certified mail with insufficient postage.

Both 19 U.S.C. § 1516a(a)(2)(A) and 28 U.S.C. § 2636(c) make reference to the Rules of the Court of International Trade for determining whether the applicable filing deadlines were met. The rule governing filing dates is Rule 5(g), which states:

Service and Filing — When Completed. Service or filing of any pleading or other paper by delivery or by mailing is completed when received, except that a pleading or other paper mailed by registered or certified mail properly addressed to the party to be served, or to the clerk of the court, with the proper postage affixed and return receipt requested, shall be deemed served or filed as of the date of mailing, (emphasis added).

Plaintiff’s position that the original certified mailing on July 8, 1985 completed the filing of the summons, despite insufficient postage, is indeed difficult to square with the language of Rule 5(g). If the rule merely stated that service or filing is complete as of the date of mailing by certified mail, plaintiff might have some basis for arguing that prepayment of proper postage was not essential. However, the date-of-mailing exception in Rule 5(g) expressly requires certified mailing “with the proper postage affixed.” By failing to affix sufficient postage to the summons, plaintiff failed to fulfill an explicit condition under Rule 5(g) for date-of-mailing filing.

Plaintiff suggests that the Court inserted the requirement of proper postage in Rule 5(g) merely for “administrative convenience.” This suggestion is without basis or merit. As plaintiff acknowledges, postal service guidelines do not require delivery to the addressee of mail with insufficient postage. See U.S. Postal Service Domestic Mail Manual, Section 146.13, Insufficient Payment. In this case, in fact, plaintiff’s July 8, 1985 certified mailing was never delivered to the clerk, but instead was returned to plaintiff’s counsel with the notation “insufficient postage.” Hence, the requirement of proper postage clearly serves the fundamental purpose of ensuring that the item sent will be delivered to the addressee.

Prior decisions of this Court afford no support for plaintiff’s novel construction of Rule 5(g). Although apparently no case has involved a summons which was not timely filed due to insufficient postage, in Jernberg Forgings Co. v. United States, Slip Op. 84-17 (March 8, 1984), vacated, Order (April 26, 1985), the Court was faced with a timely-filed summons followed by a complaint which was not timely filed due to insufficient postage. In that case, plaintiffs’ initial unsuccessful mailing of the complaint — like the unsuccessful mailing of the summons in this case — had occurred within the applicable time limit prescribed in 19 U.S.C. § 1516a(a)(2)(A). The Court, nevertheless, found that plaintiffs failed to file their complaint within the prescribed period because the subsequent mailing with proper postage occurred after the period elapsed. The Court, however, granted plaintiffs’ motion for leave to file their complaint out of time, reasoning that under the language of former-28 U.S.C. § 2636(c) and Rule 3(a) of this Court, only the thirty-day limit for filing the summons was jurisdictional; the requirement in 19 U.S.C. § 1516a(a)(2)(A) that the complaint be filed within thirty days thereafter was merely a “procedural detail”, the breach of which could be excused for good cause.

Needless to say, nothing in Jemberg or cases following it suggests that under Rule 5(g) the clerk should treat documents not received by the Court, but instead returned to the sending party because of insufficient postage, as having been filed on the date of the unsuccessful certified mailing. To the contrary, the Court found in those cases that the complaints were not filed until the date of the subsequent successful though untimely mailing, and the Court gave plaintiffs leave to file their complaints out of time. No such leave is possible in this case where the summons was not timely filed, since the thirty-day limit for filing the summons is unquestionably jurisdictional.

Because Rule 5(g) expressly requires proper postage for date-of-mailing filing, and because without proper postage there is no assurance that mail will be delivered to the addressee, the Court holds that by failing to affix sufficient postage to the summons on July 8, 1985, plaintiffs counsel failed to fulfill an essential requirement for date-of-mailing filing. The clerk, therefore, properly deemed the summons as having been filed on July 15, 1985, the date plaintiff’s counsel mailed the summons with sufficient postage.

Plaintiff emphasizes that counsel’s failure on July 8, 1985 to affix sufficient postage to the envelope containing the summons addressed to the clerk was a good faith mistake committed by clerical personnel, and that return receipts indicate that plaintiff timely served copies of the summons upon all interested parties. The jurisdictional nature of the thirty-day filing requirement, however, renders such concerns irrelevant. Even accepting that plaintiffs’ counsel acted in good faith and that no party has been prejudiced, plaintiff’s untimely filing of the summons in this Court, of itself, requires that this case be dismissed.

For the foregoing reasons, it is ORDERED:

1. That plaintiff’s motion to correct the filing date of the summons in this action is hereby denied.

2. That defendant’s motion to dismiss is hereby granted.

3. That this action is hereby dismissed for lack of jurisdiction.

      . At the time of the Jernberg decision, 28 U.S.C. § 2636(c) read as follows:
      A civil action contesting a reviewable determination listed in [19 U.S.C. § 1516a] ... is barred unless commenced in accordance with the Rules of the Court of International Trade within thirty days after the date of the publication of such determination in the Federal Register.
      The amended version of this subsection, quoted ante, p. 1087, applies to all cases pending on, or filed on or after, October 30, 1984. Pub.L. 98-573, Title VI, § 623(b)(1), 626(b)(2), October 30, 1984, 98 Stat. 3041, 3042.

      . In Continental Steel Corp. v. United States, 614 F.Supp. 548 (1985), this Court, without opinion, denied defendant’s motion to dismiss and granted plaintiffs' motion for leave to file their complaints out of time. As in Jemberg, the summons had been timely filed, but the complaints were untimely due to insufficient postage.
      The language and reasoning of Jemberg were recently followed in Lone Star Steel Co. v. United States, Slip Op. 85-61 (June 7, 1985), vacated,
        Order (July 30, 1985). The Court, however, quoted the previous version of 28 U.S.C. § 2636(c), and apparently was unaware of the October 30, 1984 amendment.

      . Plaintiffs counsel indicates that the envelope containing the summons was mailed simultaneously with copies addressed to the interested parties. The person handling the mailing apparently weighed an envelope addressed to one of the interested parties and assumed that each of the envelopes, including the one addressed to this Court, weighed the same. The envelope addressed to the Court, unfortunately, contained more papers and required greater postage.


author: RE, Chief Judge:

text:
    UNITED STATES of America, Plaintiff, v. B.B.S. ELECTRONICS INTERNATIONAL INC., and Peerless Insurance Co., Defendants.
    No. 81-12-01643.
    United States Court of International Trade.
    Nov. 21, 1985.

      Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, International Trade Field Office (John J. Mahon, New York City, on brief), for plaintiff.
    Tomas Greenberger, for defendant B.B.S. Electronics Intern. Inc.
    Gottesman, Wolgel, Smith & Secunda, P.C. (Lawrence L. Flynn), New York City, for defendant Peerless Ins. Co.
   MEMORANDUM OPINION AND ORDER

RE, Chief Judge:

In this action, brought pursuant to 28 U.S.C. § 1582(2)(1982), plaintiff, the United States, seeks to recover $9,481.50 as liquidated damages, jointly and severally, from defendants B.B.S. Electronics International Inc. (BBS), and Peerless Insurance Co. (Peerless), under the terms of an Immediate Delivery and Consumption Entry Bond.

The parties are before the Court on a series of motions and cross-motions. Both defendants move to dismiss plaintiff’s complaint for failure to prosecute. In addition, Peerless alleges an affirmative defense that the complaint against it should be dismissed for lack of in personam jurisdiction. Also before the court is plaintiff’s cross-motion for summary judgment.

The following questions are presented:

First, whether plaintiff’s action should be dismissed because of lack of prosecution; second, whether Peerless waived its jurisdictional objection by asserting in its answer a cross-claim against BBS, or by failing to include the objection in its motion to dismiss; and, finally, whether plaintiff is entitled to summary judgment as a matter of law.

After careful consideration of the arguments of the parties, the pleadings, and supporting papers, it is the determination of the Court that the action is not subject to dismissal for lack of prosecution. The Court also holds that since Peerless interposed a valid jurisdictional defense which was not waived, plaintiff’s action against Peerless is dismissed. Finally, plaintiff’s motion for summary judgment against BBS is hereby granted.

Facts

On June 10, 1975, BBS entered 24 cases of color television sets through the port of New York. The imported merchandise was valued at $9,030.00, and the duty was calculated to be $451.50. On June 11, 1975, BBS, as principal, and Peerless, as surety, duly executed and delivered to the United States an Immediate Delivery and Consumption (Single) Entry Bond. Pursuant to the terms of the bond, the defendants jointly and severally guaranteed that all duties, taxes, and liquidated damages due plaintiff as a result of the entry of the merchandise would be paid. The bond also provided that, if the merchandise was found to be in violation of the laws and regulations governing its admission into the United States, BBS would, after proper notice, export the television sets under the supervision of the Customs Service. If BBS failed to comply with the terms of the bond, it agreed to pay to the district director of customs as liquidated damages, an amount equal to the value of the merchandise, plus the estimated duties, that is, $9,481.50.

On June 23, 1975, the merchandise was conditionally released by the Customs' Service to BBS. BBS was directed to keep the shipment intact. On September 9, 1975, BBS was duly notified that the color television sets were in violation of section 360(a) of the Radiation Control for Health and Safety Act of 1968, 42 U.S.C. § 263h, and, therefore, they had to be exported under the supervision of the Customs Service within 90 days. BBS failed to export the television sets in compliance with the notice.

On December 8, 1981, pursuant to section 1582 of title 28 U.S.C., plaintiff, United States, commenced this action seeking to recover $9,481.50 as liquidated damages, plus interest. Plaintiff filed an amended complaint on March 2, 1982. BBS did not respond to the amended pleading.

Lack of Prosecution

On June 13, 1984, BBS moved pursuant to Rule 41(b) of the Rules of this Court to dismiss plaintiff’s action for lack of prosecution. By affidavit, Peerless joined in this motion. In its memorandum which accompanied the motion, BBS argued that dismissal was proper because plaintiff had not proceeded “diligently with trying this action on the merits.” BBS noted that plaintiff had waited until the last day within the statute of limitations to commence the suit, a full 6 years after the cause of action accrued. BBS also contended that, for more than 2 years after commencing the action, plaintiff “shelved” the file. In essence, BBS argues that, in all cases, dismissal for failure to prosecute under Rule 41 is mandatory “where no action has been taken for 12 months.” This argument is without merit.

Plaintiff’s motion is properly addressed to Rule 41(b)(2), which, before its current amendment, read as follows:

Whenever it appears that an assigned action is not being prosecuted with due diligence, the court may, upon its own initiative after notice, or upon motion of a defendant, order the action dismissed for lack of prosecution.

U.S.C.I.T. R. 41(b)(2).

Dismissal under Rule 41(b)(2) of the Rules of this Court is discretionary. See Silver Reed America, Inc. v. United States, 5 CIT 279, 280, 565 F. Supp. 1047, 1048 (1983); cf. Link v. Wabash R.R., 370 U.S. 626, 629-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1961). In general terms, it may be said that the Court will not dismiss an action in the absence of a showing of a clear pattern of delay, contumacious conduct, or failure to comply with orders of the Court. See e.g., Silver Reed America, Inc., supra, 5 CIT at 281, 565 F. Supp. at 1049.

In this case, the Court holds that BBS has not persuaded the Court that the extreme sanction of dismissal is warranted. BBS does not allege that plaintiff has failed to comply with any orders of the court or engaged in contumacious conduct. BBS argues simply that plaintiffs case should be dismissed because too much time has elapsed since its initiation. Although plaintiffs laxness in prosecuting this action may not meet with the Court’s approval, the Court notes the settlement discussions that have taken place between Peerless and the plaintiff, and that there has been at least one substitution of counsel. Under the circumstances of this case, the motion to dismiss for lack of prosecution is denied.

Lack of Jurisdiction

Plaintiff admits that it failed properly to serve Peerless. As a result of the improper service, in its amended answer, Peerless interposed the defense of lack of in person-am jurisdiction, and asserted a cross-claim against BBS in indemnity. Plaintiff argues that, by including the cross-claim in its answer, Peerless effectively waived the jurisdictional defense.

Whether the defense of lack of in personam jurisdiction is waived by a defendant who asserts the defense contemporaneously with a cross-claim is a novel question for this Court. Hence, it is helpful to seek guidance from the other federal courts which have interpreted and applied the Federal Rules of Civil Procedure. The federal courts, however, are divided and have not answered this question uniformly. Globig v. Greene & Gust Co., 193 F. Supp. 544, 549 (E.D.Wis. 1961); Recent Development, 59 Colum. L. Rev. 1093, 1094 (1959). Compare Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131, 133 (D.C. Cir. 1984) (no waiver) with Merz v. Hemmerle, 90 F.R.D. 566, 569 (E.D.N.Y. 1981) (waiver). After careful examination of the applicable rules and case law, this Court holds that by asserting in its answer a cross-claim against BBS, Peerless did not waive its jurisdictional objection of lack of in person-am jurisdiction.

Prior to the enactment of the Federal Rules of Civil Procedure, the rule pertaining to the combining of counterclaims and jurisdictional objections was enunciated by Justice Holmes in Merchants Heat and Light Co. v. J.B. Clow & Sons, 204 U.S. 286, 27 S.Ct. 285, 51 L.Ed. 488 (1907). In Merchants Heat, the defendant claimed that it was improperly served with process. Although the Court “intimate[d] no opinion either way” on the issue of improper service, it held that the defendant submitted to the jurisdiction of the trial court by combining a counterclaim with its objection to service of process. Id. at 289, 27 S.Ct. at 285. Justice Holmes, writing for the Court, stated:

[B]y setting up its counterclaim the defendant became a plaintiff in its turn, invoked the jurisdiction of the court in the same action and by invoking submitted to it.

Id.

Since the adoption of the Federal Rules in 1938, virtually all of the courts which have considered this question have cited the language of Merchants Heat. E.g., Neifeld v. Steinberg, 438 F.2d 423, (3d Cir.1971); North Branch Products v. Fisher, 284 F.2d 611, 615 n. 8 (D.C. Cir. 1960); see Note, Federal Rules of Civil Procedure: Curing an Apparent Waiver of Jurisdictional Defenses, 32 Md.L.Rev. 156 (1972). Some courts have resolved the issue by distinguishing permissive and compulsory counter-claims, cross-claims, and third-party claims. E.g., Gates Learjet Corp. v. Jensen, supra, 743 F.2d 1325, 1330 n. 1 (9th Cir. 1984), cert. denied, — U.S. -, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985) (84-1590); Globig v. Greene & Gust Co., supra, 193 F.Supp. at 548-49; see also 5 C. Wright & A. Miller, Federal Practice and Procedure § 1397 (1969 & Supp. 1985). The common question in all of these cases, however, was whether the “procedural rule enunciated in Merchants Heat and Light Co. was changed by the Federal Rules of Civil Procedure.” Neifeld v. Steinberg, supra, 438 F.2d at 427; see also Lomanco Inc. v. Missouri Pacific R.R., 566 F.Supp. 846, 849 (E.D. Ark. 1973). It is the determination of this Court that the rule articulated in Merchants Heat has been changed by the adoption of the Federal Rules.

Rule 12 of the rules of this Court, which is substantially similar to Federal Rule 12, states, in part:

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defense may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) insufficiency of process, (4) insufficiency of service of the summons and complaint, (5) failure to state a claim upon which relief can be granted, (6) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion____
(h) Waiver or Preservation of Certain Defenses
(1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of the summons and complaint is waived (A) if omitted from a motion in the circumstances described in subdivision (g) of this rule, or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

U.S.C.I.T. R. 12(b), (h).

As stated by Judge Biggs in Neifeld v. Steinberg, it is clear that “there is nothing in the language of Rule 12(b) which specifically shields the defenses of lack of personal jurisdiction ... from waiver when [the defense is] joined with a counterclaim.” Neifeld v. Steinberg, supra, 438 F.2d at 428 (emphasis in original).

In Neifeld v. Steinberg, the United States Court of Appeals for the Third Circuit held that Rule 12(b) “implicitly authorizes a defendant to join these defenses with a counterclaim without waiving [the defenses listed in Rule 12].” 438 F.2d at 428. The Neifeld court reasoned that if it “were to take the position that a defendant, by raising his jurisdictional defenses in the same pleading in which he asserted a counterclaim, waived his jurisdictional defenses, [it] would in effect be engrafting a judicial exception to Rule 12(b). [It] would be requiring a defendant to raise his jurisdictional defenses by motion when he intends to file a counterclaim in his responsive pleading. This requirement would be contrary to the option provided to the defendant in Rule 12(b).” Id. (footnotes omitted).

It is clear that the “trend of decisions, in harmony with ... sensible pleading rules” is that the “holding that a defendant may not state in an answer both a jurisdictional defense and a counterclaim is inconsistent with the design and purpose of the pleading prescriptions set out in the Federal Rules of Civil Procedure.” Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131, 132 (D.C.Cir.1984); see also Gates Learjet Corp. v. Jensen, supra 743 F.2d at 1330 n. 1; Queen Noor Inc. v. McGinn, 578 F.Supp. 218, 220 (S.D.Tex.1984); Lomanco Inc. v. Missouri Pacific R.R., 566 F.Supp. 846, (E.D.Ark.1983) (filing of cross-claim is not a waiver). In view of the well-reasoned judicial opinions which have interpreted and applied Federal Rule 12(b), it is the determination of this Court that the assertion of a cross-claim is not a waiver of an otherwise valid jurisdictional objection.

It is significant to note that the policy considerations implicit in the Customs Courts Act of 1980 also support this conclusion. The Customs Courts Act “expanded and clarified the jurisdiction of this Court to create ‘a comprehensive system for judicial review of civil actions arising out of import transactions and federal statutes affecting international trade.’ ” United States v. Mizrahie, 9 CIT-, 606 F.Supp. 703, 706 (1985) (quoting statement of President Carter, 16 Weekly Comp, of Pres. Doc. 2183 (Oct. 11, 1980)). Indeed, section 1583 of Title 28 U.S.C., which grants the Court of International Trade exclusive jurisdiction over any counterclaim, cross-claim, or third-party claim of any party to recover on a bond related to the importation of merchandise, manifests “the intent of Congress to have the rights of all of the parties adjudicated fully and completely in one action before the Court of International Trade.” Mizrahie, supra, 9 CIT at-, 606 F.Supp. at 707. If the Court were to hold that the jurisdictional defense is waived by combining it with a cross-claim, the defendant would be forced either to bring a prior motion, or file a separate action in indemnity rather than a cross-claim. These results would violate the sound policies of speedy resolution of all claims and judicial economy which underlie the Customs Courts Act of 1980 and the Rules of this Court.

Hence, it is the holding of the Court that, by asserting in its answer a cross-claim against BBS, Peerless did not waive its defense of lack of in personam jurisdiction. Furthermore, Peerless did not abandon its jurisdictional defense by opposing plaintiff’s motion for summary judgment. Accordingly, plaintiff’s motion for summary judgment against Peerless is denied, and the action against Peerless is dismissed.

Summary Judgment

A motion for summary judgment under Rule 56 of the Rules of this Court may be granted only if there is no genuine issue of fact, and the moving party is entitled to judgment as a matter of law. See C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust.Ct. 17, 22, C.D. 4327, 336 F.Supp. 1395, 1399 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974). On June 21, 1984, plaintiff filed its opposition to BBS’s motion to dismiss, and submitted a cross-motion for summary judgment. Pursuant to Rule 56(i), plaintiff annexed to the motion a statement of material facts. BBS did not controvert this statement. Rather, BBS restated and amplified its arguments pertaining to lack of prosecution. Accordingly, all material facts set out in plaintiff’s statement are deemed admitted. U.S.C.I.T. R. 56; see Suwannee S.S. Co. v. United States, 79 Cust.Ct. 19, 21, C.D. 4708, 435 F.Supp. 389, 390 (1977). Since there is no dispute that there is no genuine issue of material fact, summary judgment is proper.

It is not questioned that summary judgment may properly be granted in an action alleging breach of the terms of a bond. See, e.g., United States v. Atkinson, 6 CIT 257, 575 F.Supp. 791 (1983). In Atkinson, defendant imported three automobiles through the port of Portland, Oregon. In order to secure entry of the merchandise, defendant delivered to the District Director of Customs an Immediate Delivery and Consumption Entry Bond. Id. at-, 575 F.Supp. at 792. Pursuant to the terms of the bond, the importer and its surety agreed to pay liquidated damages to the Customs Service if the importer did not redeliver the merchandise upon proper demand. After Atkinson failed to comply with an order of redelivery, the United States commenced an action on the bond. Subsequently, the court granted summary judgment for plaintiff. The court noted that the bond was breached when the importer failed to redeliver the merchandise. Since the “facts alleged in plaintiff’s complaint and admitted by answer established] the liability of [defendant] for the liquidated damages sought by plaintiff,” summary judgment was proper. Id. at-, 575 F.Supp. at 794.

It is undisputed that pursuant to paragraph 7 of the bond, BBS agreed to export the color television sets under Customs supervision. Moreover, BBS agreed that if it failed properly to export them, it would pay to the District Director of Customs, as liquidated damages, an amount equal to the value of the merchandise plus the estimated duties.

On September 9, 1975, BBS was notified that the television sets were in violation of the applicable federal standards, and was instructed to deliver the television sets within 90 days to the District Director of Customs. BBS failed to comply with these instructions. Because of this breach of the entry bond agreement, BBS became liable to plaintiff for the sum of $9,481.50, as liquidated damages. In view of the undisputed facts, the Court holds that BBS is liable on the bond in the sum of $9,481.50, and plaintiff’s motion for summary judgment against BBS is granted.

Interest

In its motion, plaintiff requests an award of both pre- and post-judgment interest. The decisions of this Court teach that 28 U.S.C. § 1961, which mandates post-judgment interest, is applicable to the Court of International Trade. See, e.g., United States v. Atkinson, 6 CIT 257, 575 F.Supp. 791, 795 (1983); United States v. Servitex, Inc., 3 CIT 67, 68, 535 F.Supp. 695, 696 (1982). Accordingly, plaintiff’s request for an award of post-judgment interest is granted. The calculations of post-judgment interest shall be in accordance with 28 U.S.C. § 1961.

The decisions of this Court also teach that, in the absence of a statutory provision, an award-of pre-judgment interest lies within the discretion of the Court, as part of its equitable powers. Atkinson, supra, 6 CIT at-, 575 F.Supp. at 795 (citing Payne v. Panama Canal Co., 607 F.2d 155, 166 (5th Cir.1979)). In this action, plaintiff has failed to demonstrate the propriety or necessity of a pre-judgment interest award. Any injury suffered by plaintiff is due, in part, to its laxness in initiating and prosecuting this action. See Atkinson, supra 6 CIT at-, 575 F.Supp. at 796. Hence, in this case, plaintiff’s request for pre-judgment interest is denied.

It is the holding of the Court that the defendants’ motion to dismiss for lack of prosecution is denied. Plaintiff’s cross-motion for summary judgment against BBS is granted; accordingly, plaintiff is granted judgment against BBS in the sum of $9,481.50. The motion of defendant Peerless for discovery is denied, and plaintiff’s complaint against Peerless is dismissed. Finally, plaintiff’s request for pre-judgment interest is denied, and its request for post-judgment interest is granted.