678 F.Supp. 898 (CIT. 1988), Court 86-06-00765, Fundicao Tupy S.A. v. United States

Docket Nº:Court 86-06-00765
Citation:678 F.Supp. 898
Party Name:Fundicao Tupy S.A. v. United States
Case Date:January 12, 1988
Court:Court of International Trade

Page 898

678 F.Supp. 898 (CIT. 1988)

FUNDICAO TUPY S.A., and Tupy American Foundry Corporation, Plaintiffs,

v.

The UNITED STATES, Defendant,

and

Cast Iron Pipe Fittings Committee, Defendant-Intervenor.

Court No. 86-06-00765.

United States Court of International Trade.

Jan. 12, 1988

Page 899

Freeman, Wasserman & Schneider, Patrick C. Reed and Jerry Wiskin, New York City, for plaintiffs.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, J. Kevin Horgan, Edwin J. Madaj, U.S. International Trade Commission, Washington, D.C., for defendant.

Rose, Schmidt, Hasley & DiSalle, Peter Buck Feller and Lawrence J. Bogard, Washington, D.C., for defendant-intervenor.

Before WATSON, DiCARLO and TSOUCALAS, JJ.

WATSON, Judge.

Plaintiffs commenced this action challenging the final determinations of the International Trade Administration (ITA) and International Trade Commission (ITC) which resulted in an antidumping order on malleable cast iron pipe fittings from Brazil. Plaintiffs challenge the ITA's decision to disallow "an adjustment to the home market price for a level of trade difference between the United States and the home market sales claimed by plaintiffs because they failed to demonstrate that they had incurred different costs in selling at different levels of trade in the home market." Malleable Cast Iron Pipe Fittings, Other Than Grooved, from Brazil, 51 Fed.Reg. 10,898 (Mar. 31, 1986) (final dumping determination). Plaintiffs also contest the ITC's decision to cumulatively assess the volume and impact of Brazilian, Korean, and Taiwanese imports of the subject merchandise in finding that material injury was resulting to an industry in the United States.

The final determination by ITA of sales at less than fair value was issued on March 31, 1986. 51 Fed.Reg. 10,897. The final determination of material injury by the ITC appears in Certain Cast-Iron Pipe Fittings from Brazil, the Republic of Korea and Taiwan, Invs. Nos. 731-TA-278 through 280 (Final), USITC Pub. 1845 (May 1986); 51 Fed.Reg. 18,670 (May 21, 1986).

In Fundicao Tupy S.A. v. United States, 11 CIT ----, 652 F.Supp. 1538 (1987), Chief Judge Re assigned this action to a three-judge panel pursuant to 28 U.S.C. § 255(a) (1982) and Rule 77(d)(2) of the Rules of this Court.

Plaintiffs' first claim is that ITA erred in the determination that the cast iron pipe fittings were being sold here at less than fair value, by failing to make an adjustment downward of the foreign market value to account for asserted higher costs arising from the fact that these products are sold to retailers in the foreign market as opposed to distributors in the United States market. According to plaintiffs, this adjustment should have been made pursuant to 19 C.F.R. § 353.19, a regulation which sets out the authority of the ITA to make appropriate adjustments for difference in the level of trade from which the prices being compared are derived. The government takes the position that it cannot assume that the costs associated with selling to distributors in the United States would have been the same had this product been sold through distributors in Brazil; that it is reasonable to place a burden on the party seeking the benefit of those assertedly lower selling costs, of proving by credible evidence what such costs would have been, and that the burden was not satisfied in this proceeding.

Plaintiffs claim that their proof of the higher costs of retail sales in Brazil as

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