Fundicao Tupy S.A. v. U.S., 88-1233

• Decision Date: 19 October 1988
• Docket Number: No. 88-1233,88-1233
• Citation: 859 F.2d 915
• Parties: FUNDICAO TUPY S.A. and Tupy American Foundry Corporation, Plaintiffs- Appellants, v. The UNITED STATES, Defendant-Appellee, Cast-Iron Pipe Fittings Committee, Defendant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 915

859 F.2d 915

10 ITRD 1886

FUNDICAO TUPY S.A. and Tupy American Foundry Corporation Plaintiffs- Appellants, v. The UNITED STATES, Defendant-Appellee Cast-Iron Pipe Fittings Committee, Defendant.

No. 88-1233.

United States Court of Appeals Federal Circuit.

Oct. 19, 1988.

Jack G. Wasserman, Freeman, Wasserman and Schneider, New York City, argued for plaintiffs-appellants. With him on the brief were Bernard J. Babb, Jerry P. Wiskin and Patrick C. Reed.

Elizabeth C. Seastrum, Dept. of Justice, Washington, D.C., and Edwin Madaj, Jr., U.S. International Trade Com'n, Washington, D.C., argued for defendant-appellee. With them on the brief were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Dept. of Justice, Lyn M. Schlitt, General Counsel and James Toupin, Asst. General Counsel, U.S. Intern. Trade Com'n. Also on the brief were Robert H. Brumley, Deputy General Counsel, M. Jean Anderson, Chief Counsel, Intern. Trade and Craig L. Jackson, Attorney-Advisor, Intern. Trade Admin., U.S. Dept. of Commerce, of counsel.

Before NIES, Circuit Judge, COWEN, Senior Circuit Judge, and MICHEL, Circuit Judge.

PER CURIAM.

This appeal is from the judgment of the United States Court of International Trade, ^* dismissing the complaint of Fundicao Tupy S.A. and Tupy American Foundry Corporation (collectively "Tupy"), seeking to overturn an antidumping order on malleable cast iron pipe fittings from Brazil. Tupy had challenged both the final determination of the International Trade Administration of the United States Department of Commerce ("ITA") that such goods were being sold at less than fair value and the final determination of the International Trade Commission ("ITC") that a United States industry was materially injured by reason thereof. See 19 U.S.C. Sec. 1673d (1982).

On appeal Tupy argues that the ITA improperly failed to make a "level-of-trade" adjustment, as required under 19 U.S.C. Sec. 1677b(a)(4)(B) (1982) and 19 C.F.R. Sec. 353.19, in calculating the foreign market value of the pipe fittings and that the trial court improperly supplied a rationale not used by the ITA in affirming the denial of the adjustment. We do not agree. The opinion by the trial court reflects no different "rationale." Both decisions rest on Tupy's failure to prove, as the ITA stated, that "it [Tupy] has incurred different costs." The record does show that Tupy sells at the retail level in Brazil and at the wholesale level in the United States. Although Tupy asserts that there is "clear, undisputed evidence of the amount of the required level of trade adjustment," we find no evidence with respect to the amount that is not speculative. It would be necessary to assume that the cost differential is the same in Brazil as in the United States. Thus, we agree with the trial court that the ITA acted within the limits of its discretion in denying an adjustment based on insufficiency of proof.

Tupy challenges the ITC's use of the cumulation provision of the Trade and Tariff Act of 1984, 19 U.S.C. Sec. 1677(7)(C)(iv) (Supp. III 1985), in reaching its determination of material injury to the domestic industry. The ITC cumulated sales from Brazil, Korea, and Taiwan without determining that the sales from a particular country, considered alone, caused "material injury." Per Tupy, the statute allows cumulation only for purposes of considering the volume and price effect of imports, and not for purposes of assessing the impact of imports on the domestic industry. The latter element, per Tupy, must be considered on a country-specific basis.

We find the ITC's interpretation reasonable and we reject Tupy's argument that that interpretation is contrary to the intent of Congress....