La Molisana S.p.A. v. United States ( 2023 )

Slip Op. 23-59
UNITED STATES COURT OF INTERNATIONAL TRADE
:
LA MOLISANA S.P.A., :
:
Plaintiff, :
:
and :
:
VALDIGRANO DI FLAVIO PAGANI S.R.L., : Before: Richard K. Eaton, Judge
:
Consolidated Plaintiff , : Consol. Court No. 21-00291
:
v. :
:
UNITED STATES, :
:
Defendant. :
:
OPINION
[The final results of the U.S. Department of Commerce’s twenty-third administrative review of the
antidumping duty order on pasta from Italy are sustained.]
Dated: April 24, 2023
David L. Simon, Law Offices of David L. Simon, PLLC, of Washington, D.C., argued for
Plaintiff La Molisana S.p.A. and Consolidated Plaintiff Valdigrano di Flavio Pagani S.r.L. On the
brief was David J. Craven, Craven Trade Law LLC, of Chicago, IL.
Sosun Bae, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., argued for Defendant United States. With her on the
brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy,
Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Kirrin A.
Hough, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of
Commerce, of Washington, D.C.
Eaton, Judge: This consolidated action involves the final results of the U.S. Department of
Commerce’s (“Commerce” or the “Department”) twenty-third administrative review of the
antidumping duty order on certain pasta from Italy (“Order”). See Certain Pasta From Italy, 86
Consol. Court No. 21-00291 Page 2
Fed. Reg. 28,336 (Dep’t Commerce May 26, 2021) (“Final Results”) and accompanying Issues
and Decision Mem. (May 20, 2021) (“Final IDM”), PR 277; see also Certain Pasta From Italy,
61 Fed. Reg. 38,547 (Dep’t Commerce July 24, 1996) (Order).
Plaintiff La Molisana S.p.A. (“La Molisana”), a mandatory respondent,1 and Consolidated
Plaintiff Valdigrano di Flavio Pagani S.r.L. (“Valdigrano”), a non-examined respondent,
(collectively, “Plaintiffs”) are Italian producers and exporters of the subject pasta. By their motion
for judgment on the agency record, Plaintiffs challenge Commerce’s determination not to adjust
its model-match method with respect to coding for the pasta’s protein content. See Pls.’ Mem.
Supp. Mot. J. Agency R., ECF No. 27-1 (“Pls.’ Br.”); see also Pls.’ Reply Br., ECF No. 34. For
Plaintiffs, the existing model-match method must be adjusted because it results in the comparison
of Italian pasta products with those produced in the United States that are physically dissimilar in
terms of their protein content.
Defendant the United States (“Defendant”), on behalf of Commerce, urges the court to
sustain the Final Results. See Def.’s Resp. Opp’n at 8, ECF No. 30 (“The evidence and arguments
1
The only other mandatory respondent was a collapsed entity comprised of Ghigi
1870 S.p.A. and Pasta Zara S.p.A. Neither company is a party to this action. “Commerce’s practice
has devolved to the point where it regularly chooses only two (and sometimes one) mandatory
respondents to be ‘representative’ of unexamined respondents for the purpose of calculating the
[separate] rate in a review, a [practice] that this Court has regarded with some skepticism.” Jilin
Forest Indus. Jinqiao Flooring Grp. Co. v. United States, 45 CIT , , 519 F. Supp. 3d 1224,
1236 (2021) (footnote omitted) (first citing Zhejiang Native Produce & Animal By-Prods. Imp. &
Exp. Corp. v. United States, 33 CIT 1125, 637 F. Supp. 2d 1260 (2009); and then citing Carpenter
Tech. Corp. v. United States, 33 CIT 1721, 662 F. Supp. 2d 1337 (2009)). “There can be little
question that, if Commerce were to change its method and name more than two mandatory
respondents, separate rate companies would receive more accurate rates, and a great deal of
litigation would be avoided.” Xiping Opeck Food Co. v. United States, 45 CIT , , 551 F. Supp.
3d 1339, 1356-57 (2021). The Federal Circuit has expressed similar concerns. See, e.g., YC Rubber
Co. (N. Am.) LLC v. United States, No. 21-1489, 2022 WL 3711377, at *3-4 (Fed. Cir. Aug. 29,
2022) (not reported in the Federal Reporter) (holding that “Commerce unlawfully restricted its
examination to a single mandatory respondent” under 19 U.S.C. § 1677f-1(c)(2)).
Consol. Court No. 21-00291 Page 3
placed on the record by plaintiffs do not sufficiently demonstrate that Commerce’s instructions for
reporting the protein content of finished pasta, in place for more than a decade, result in price-to-
price comparisons between physically dissimilar pasta or fail to reflect market reality such that
Commerce must alter them.”).
The court has jurisdiction under 28 U.S.C. § 1581(c) (2018) and 19 U.S.C.
§ 1516a(a)(2)(B)(iii) (2018). For the following reasons, Plaintiffs’ motion is denied, and the Final
Results are sustained.
BACKGROUND
In September 2019, Commerce initiated the twenty-third review of the Order, covering the
period of review from July 1, 2018, to June 30, 2019. See Initiation of Antidumping and
Countervailing Duty Admin. Revs., 84 Fed. Reg. 47,242 (Dep’t Commerce Sept. 9, 2019).
Commerce selected La Molisana as a mandatory respondent. Valdigrano was not selected for
examination but participated in the review by filing an administrative case brief.
The primary controversy in this case involves the method that Commerce requires
respondents to use when reporting the protein content of pasta sold in the home market
(PROTEINH) and in the United States (PROTEINU). Protein content is one of several physical
characteristics of pasta that are used to compose a control number, or CONNUM, for each unique
pasta product.2 CONNUMs are comprised of digits, and each digit is a “code” for a physical
2
The protein content of pasta “is an important determinant of the quality of the
product.” Pls.’ Br. at 3 (citing Pls.’ Br. attach. B (Market Report) Ex. H). “The protein content in
pasta comes from semolina flour—the main input of pasta—which is made from durum wheat.”
Ghigi 1870 S.p.A. v. United States, 45 CIT , , 547 F. Supp. 3d 1332, 1337 n.7 (2021).
Consol. Court No. 21-00291 Page 4
characteristic of the product. Commerce uses CONNUMs in its model-match method to identify
“like” products to compare.
In November 2019, Commerce issued its initial antidumping questionnaire to La Molisana.
See Antidumping Questionnaire (Nov. 1, 2019), PR 66. The questionnaire instructions asked the
respondent to “[i]dentify the percentage of protein in the pasta sold, as stated on the label of the
respective product.” Id. at B-9 (home market sales), C-7 (U.S. sales). Pasta with a protein content
of 12.5% or more was to be coded as “1” (premium), and pasta with a protein content of
10.00-12.49% was to be coded as “2” (standard), based on the protein content listed on the nutrition
label of the packaging.3 The “1” or “2,” in turn, would become a digit in the CONNUM for a
particular product.
Here, La Molisana complied with Commerce’s instructions and coded the protein content
of its pasta as “1” or “2,” using the percentage of protein stated on the nutrition label. But in its
questionnaire response La Molisana also stated that “due to the nature of the nutrition facts panel
and other incontrovertible facts, [the reported code] is not necessarily an accurate representation
of the Protein Content.” La Molisana Sec. B Resp. Ex. B-2 (Jan. 3, 2020), PR 120. In other words,
La Molisana complied with Commerce’s instructions but also in its narrative response questioned
whether Commerce’s method of coding protein content (i.e., as premium “1” or standard “2”)
would lead to comparisons of products that were dissimilar in terms of protein.
3
Commerce has used the same coding method, i.e., “1” for premium pasta with a
minimum protein content of 12.5% and “2” for standard, based on the percentage listed on the
nutrition label, since protein content was introduced as a physical characteristic of pasta in the
twelfth administrative review. See Final IDM at 7; see also Certain Pasta from Italy, 75 Fed. Reg.
6,352, 6,353 (Dep’t Commerce Feb. 9, 2010) (final results of twelfth administrative review). To
determine the 12.5% breakpoint, Commerce “relied on the breakpoints of three separate Italian
commodity exchanges.” Final IDM at 12 (emphasis in original).
Consol. Court No. 21-00291 Page 5
After the preliminary results were published, in which Commerce applied its usual model-
match method, Valdigrano and La Molisana filed administrative case briefs. In their respective
briefs, each pressed its arguments for why the model-match method, with respect to coding for
protein content, must be adjusted to ensure that Commerce compared physically similar pasta
products: premium with premium and standard with standard.
Specifically, Valdigrano argued that the 12.5% breakpoint between standard and premium
pasta does not reflect current market reality. The company relied on a report that presented price
and protein content information for a sample of pasta products sold in the Italian and U.S. markets
(“Market Report”). See Valdigrano Case Br. (Jan. 26, 2021), PR 257; see also Pls.’ Br. attach. B
(Market Report). The Market Report was prepared by Plaintiffs’ counsel based on pasta purchased
in one food retail chain in Italy and four food retailers in a suburb of Washington, D.C. Also, part
of the information in the report was a screenshot of a website that, for Plaintiffs, demonstrated that
a grain exchange in Bologna, Italy “has updated the breakpoint between standard and premium
semolina, which now occurs at 13.5% protein content.” Market Report at 7 (citing Ex. K). The
report concluded that pasta with 12.5% protein content is standard, not premium pasta. Id. at 4.
For its part, La Molisana argued that using the nutrition label as the basis to report protein
content leads to comparisons of physically dissimilar products because of differences in protein
measurement standards in Italy and the United States. Specifically, La Molisana pointed out the
countries’ different “nitrogen-to-protein” conversion numbers4 and the rounding requirement
4
Under U.S. Food and Drug Administration regulations, protein content is calculated
by multiplying the nitrogen content of the finished product by 6.25. See Market Report at 5 (citing
Ex. B). Under the Italian standard, protein content is calculated by multiplying the nitrogen content
by 5.7. Id. at 6 (citing Ex. F). For Plaintiffs, the difference in these multipliers obscures the “real”
protein content of products in the U.S. and Italian markets. See Pls.’ Br. at 35-36 (setting out
mathematical calculations of protein content under different nitrogen conversion factors).
Consol. Court No. 21-00291 Page 6
under U.S. Food and Drug Administration (“FDA”) rules,5 for which there is no equivalent in Italy.
See La Molisana Case Br. (Jan. 26, 2021), PR 259.
In the Final Results, Commerce declined to adjust its model-match method with respect to
coding for protein and continued to apply its usual method to identify like products, including
classifying pasta with a protein content of 12.5% or more as premium pasta, and 10.00-12.49% as
standard pasta. Final IDM at 6-12. Ultimately, Commerce determined a weighted average dumping
margin for La Molisana of 15.72% and applied the same margin to Valdigrano, as the all-others
rate. See Final Results, 86 Fed. Reg. at 28,337. Plaintiffs timely commenced this action to bring
their objections before the court. Plaintiffs ask the court to remand this matter to Commerce with
instructions to adjust its model-match method for coding protein content and revise La Molisana’s
and Valdigrano’s rates accordingly.
STANDARD OF REVIEW
Commerce’s Final Results will be sustained unless they are “unsupported by substantial
evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
LEGAL FRAMEWORK
In an antidumping case, Commerce compares the price at which subject merchandise is
sold in the United States with normal value. See 19 U.S.C. § 1677b(a). Normal value is “the price
5
Under FDA food labeling regulations, protein content must be rounded to the
nearest gram. See 21 C.F.R. § 101.9(c)(7) (2019). Under these rules, Plaintiffs argue, the
percentage of protein reported on the nutrition label of a product sold in the United States could
be artificially inflated or reduced. For instance, without rounding, pasta with 6.51 grams of protein
(or 11.63%) would be considered standard, but with rounding, that same pasta has 7 grams of
protein (or 12.5%) and must be coded as premium. See Pls.’ Br. at 5.
Consol. Court No. 21-00291 Page 7
at which the foreign like product is first sold (or, in the absence of a sale, offered for sale) for
consumption in the exporting country.” Id. § 1677b(a)(1)(B)(i) (emphasis added). The
antidumping statute defines “foreign like product” as merchandise that is either identical with, or
similar to, subject merchandise, according to a hierarchy of characteristics.6 Id. § 1677(16)(A)-(C).
Commerce uses its model-match method to make “[d]eterminations of both identical and
like/similar (i.e., non-identical but capable of comparison) merchandise.” Manchester Tank &
Equip. Co. v. United States, 44 CIT , , 483 F. Supp. 3d 1309, 1314 (2020). Products may be
considered identical “despite the existence of minor differences in physical characteristics, if those
minor differences are not commercially significant.” Pesquera Mares Australes Ltda. v. United
States, 266 F.3d 1372, 1384 (Fed. Cir. 2001). Determining whether a physical difference between
products is commercially significant, i.e., one “that merits distinguishing between identical and
similar products,” is a fact-intensive inquiry. See Manchester Tank, 44 CIT at , 483 F. Supp. 3d
6The statute lists these characteristics, in order of preference:
(A) The subject merchandise and other merchandise which is identical in physical
characteristics with, and was produced in the same country by the same person
as, that merchandise.
(B) Merchandise—
(i) produced in the same country and by the same person as the subject
merchandise,
(ii) like that merchandise in component material or materials and in the
purposes for which used, and
(iii) approximately equal in commercial value to that merchandise.
(C) Merchandise—
(i) produced in the same country and by the same person and of the same
general class or kind as the subject merchandise,
(ii) like that merchandise in the purposes for which used, and
(iii) which the administering authority determines may reasonably be
compared with that merchandise.
19 U.S.C. § 1677(16)(A)-(C).
Consol. Court No. 21-00291 Page 8
at 1316, 1317 (“Considering the record as a whole, Commerce has supported with substantial
evidence its decision to accept as commercially significant the distinction between zinc and non-
zinc coatings because zinc coating requires unique production processes, is specifically requested
by customers, and leads to price variations.”). This inquiry may involve a consideration of whether
and to what extent the industry at large treats the difference as significant. See Pesquera Mares,
266 F.3d at 1384-85 (cleaned up) (affirming Commerce’s finding that “the differences between
super-premium and premium salmon do not warrant separate classification in an antidumping
analysis,” where Commerce relied on record evidence of the “commercial practice of the world’s
largest salmon farming countries whose salmon industries also exported to” the third-country
market, Japan). Relying on industry-wide data, instead of a smaller, company-specific dataset,
avoids the risk of manipulation of sales information by the respondent. See id. at 1385 (“Indeed, if
Commerce were to limit itself to consideration of the small volume of ‘premium’ sales of the
particular exporter, it would risk market manipulation for antidumping purposes.”).
This Court and the Federal Circuit “have looked for ‘compelling reasons’ when Commerce
[itself] modifies a model-match methodology in a review after having used that methodology in
previous segments of the proceeding.” Manchester Tank, 44 CIT at , 483 F. Supp. 3d at 1315
(first citing SKF USA, Inc. v. United States, 537 F.3d 1373, 1380 (Fed. Cir. 2008); then citing Koyo
Seiko Co. v. United States, 31 CIT 1512, 1517-18, 516 F. Supp. 2d 1323, 1331-32 (2007), aff’d
551 F.3d 1286 (Fed. Cir. 2008); and then citing Fagersta Stainless AB v. United States, 32 CIT
889, 894-95, 577 F. Supp. 2d 1270, 1276-77 (2008)). “‘Compelling reasons’ require the agency to
provide ‘compelling and convincing evidence that the existing model-match criteria are not
reflective of the merchandise in question, that there have been changes in the relevant industry, or
that there is some other compelling reason’ requiring the change.” Id. (quoting Fagersta, 32 CIT
Consol. Court No. 21-00291 Page 9
at 894, 577 F. Supp. 2d at 1277). So too, must respondents provide a compelling reason to change
the model-match criteria by presenting their proposed modifications and supporting evidence to
Commerce during the administrative process. See Ghigi 1870 S.p.A. v. United States, 45 CIT ,
, 547 F. Supp. 3d 1332, 1349 (2021).
DISCUSSION
Plaintiffs’ main argument is that Commerce’s refusal to adjust its model-match method
with respect to protein coding lacks the support of substantial evidence, because the information
presented in their Market Report is compelling and unrebutted. Pls.’ Br. at 3 (“[U]nrebutted
substantial evidence showed that pasta with protein content 12.5% was standard pasta, not
premium pasta, in both the U.S. market and the Italian market.”). Plaintiffs also challenge
Commerce’s refusal to adjust its method for scalar differences and rounding rules, instead of
coding protein content based solely on the nutrition label.7 Id.In the Final Results, Commerce found the Market Report data provided unreliable and
insufficient evidence of an industry-wide change to a 13.5% breakpoint between standard and
premium pasta to justify adjusting its model-match method for reporting protein content:
The U.S. section of the Market Report consists of labels and receipts for
pasta purchased from Washington DC metro area supermarkets along with charts
illustrating the relationship between protein content and price. Valdigrano asserts
that these data show 12.5 percent protein content is a floor for pasta sold in the U.S.
market, and that the true breakpoint between standard and premium pasta is 13.5
percent protein content. We do not find this evidence sufficient to change our
existing coding for protein content. The Market Report data cited to in the case brief
consist of pasta purchases from four supermarkets in a small geographic region of
7
See supra notes 4 and 5. As noted, Plaintiffs assert that the scalar differences stem
from the differences in the nitrogen multiplier required by U.S. and Italian regulations: “U.S. FDA
rules calculate protein content by multiplying the nitrogen content by 6.25 while the Italian
standard calculates protein content by multiplying the same nitrogen content by 5.7.” Pls.’ Br. at
43. Under FDA rounding rules, Plaintiffs argue, the percentage of protein reported on the nutrition
label of a product sold in the United States could be artificially inflated or reduced. See id. at 5.
Consol. Court No. 21-00291 Page 10
the United States. No attempt is made in the Market Report to address the potential
for manipulation in choice of purchases or to support a claim that these purchases
are reflective of the entire U.S. market for pasta products. As such, we do not find
these data to be a “compelling reason” to change the instructions for reporting
protein content.
For Italy, Valdigrano cites to a screenshot in the Market Report of the
Bologna Grain Exchange’s website defining “superior” semolina as having 13.5
percent or greater protein content to assert that the industry standard for defining
premium and standard semolina has changed and, thus, that there is a “compelling
reason,” . . . for Commerce to change the breakpoint for reporting protein content.
However, in the [memorandum that supported the 12.5 percent breakpoint, i.e., the
Wheat Code Memo], Commerce relied on the breakpoints of three separate Italian
commodity exchanges. The plain meaning of “industrywide” connotes an entire
industry or, at the very least, predominance or prevalence within an industry. We
find that the Market Report’s citation to a single exchange’s breakpoint is not
sufficient evidence of an industry-wide change in standards from semolina and thus
that it is not a compelling reason to change the instructions for reporting protein
content.
Final IDM at 11-12 (emphasis added) (citations omitted).
Regarding Plaintiffs’ contention that Commerce must adjust its method for scalar
differences and rounding rules, instead of coding protein content based solely on the nutrition
label, Commerce stated:
Commerce has considered and rejected the claims regarding rounding and
nitrogen conversion factors in prior reviews and in doing so has repeatedly
emphasized the importance of transparency and consistency. We do the same here.
Given that the protein content physical characteristic was created, in part, based on
the finding that “there is not a clearly defined method of identifying premium pasta
other than the protein content marked on the packages,” we find that relying on
values not shown on the packaging label for this physical characteristic would
detract from the consistency and transparency of defining each product (i.e.,
CONNUM), which in turn implicates the accuracy of the product comparisons (i.e.,
the identification of identical or similar merchandise sold in the Italian market
based on whether the pasta sold in each market is premium or not).
Id. at 10 (citing comment 1 in final decisional memorandum accompanying final results of twelfth
administrative review). Put another way, Commerce declined, when it was constructing
Consol. Court No. 21-00291 Page 11
CONNUMs, to rely on information other than that displayed on the packaging label because doing
so would result in less transparency and consistency than by using the label.
Additionally, Commerce found there was no evidence that the differences in Italian and
U.S. protein measurement standards were commercially significant:
Given that we have found “there is not a clearly defined method of identifying
premium pasta other than the protein content marked on the packages,” we do not
see a basis to find the discrepancy in protein measurement standards between the
U.S. and Italian markets as commercially significant when the market perception
of premium pasta or non-premium pasta relies on information readily available to
consumers, namely the packaging label associated with the pasta in the
marketplace.
Id. at 11. That is, the information on packaging labels allows consumers to readily distinguish
premium and standard pasta and make purchasing decisions. For Commerce, there was no
evidentiary basis to conclude that differences in nitrogen multipliers and rounding rules, which is
not information readily available to consumers, mattered in the marketplace. Thus, Commerce
found that the differences were not commercially significant.
The court finds, based on this record, that Commerce did not err when it declined to adjust
its existing model-match method. Plaintiffs have failed to demonstrate by “‘compelling and
convincing evidence that the existing model-match criteria are not reflective of the merchandise
in question, that there have been changes in the relevant industry, or that there is some other
compelling reason’ requiring the change.” Manchester Tank, 44 CIT at , 483 F. Supp. 3d at 1315
(quoting Fagersta, 32 CIT at 894, 577 F. Supp. 2d at 1277).
First, the court cannot fault Commerce for finding that the Market Report was insufficient
to support Plaintiffs’ claim that the 12.5% breakpoint is out of step with current industry-wide
standards because no serious argument can be made that the report is representative of the entire
industry either in the United States or in Italy. When Commerce has reconsidered its model-match
Consol. Court No. 21-00291 Page 12
criteria in the past, it has stated that for data to be “industry-wide” it must be public, published
information. See Letter from Kelley Drye & Warren to Sec’y of Commerce (Dec. 20, 2019) Ex. 2,
at 6, PR 108 (“Wheat Code Mem.”) (“Because we strive to identify a universal set of criteria which
apply to all respondents in this proceeding, we looked to publicly available information and
published industry standards for guidance.”). In contrast, the report here was prepared for
presentation to Commerce, and bears no indicia of having been publicized or published to or by
the industry at large. Rather, the report presents the retail prices of pasta products of different
shapes that were sold by several different brands, which Plaintiffs’ counsel purchased from four
supermarkets in the suburbs of Washington, D.C. (Safeway, Giant, Harris Teeter, and Balducci’s)
and at one Italian supermarket (Pam Panorama S.p.A.). See Market Report Exs. M & L.
The report also contains a screenshot of a website page of a single grain exchange in
Bologna, which is cited as evidence of market-wide acceptance of 13.5% as the new minimum for
premium pasta. See Market Report Ex. K. But there is nothing in the report that indicates that this
single Bologna exchange represents the entire market or even a large portion of it. Indeed, while
in the past this particular grain exchange was one of three Italian exchanges considered by
Commerce, alongside one commodity exchange in Bologna and another in Milan, no evidence
from the other two exchanges is included in the report. For this reason, Commerce reasonably
found the Market Report insufficient to support a change in the standard-to-premium breakpoint
from 12.5% to 13.5%.
The report itself is neither public, nor published outside of this litigation, nor is there a
basis to conclude that it is objectively reliable. As Commerce stated:
No attempt is made in the Market Report to address the potential for manipulation
in choice of purchases or to support a claim that these purchases are reflective of
the entire U.S. market for pasta products. As such, we do not find these data to be
a “compelling reason” to change the instructions for reporting protein content.
Consol. Court No. 21-00291 Page 13
Final IDM at 12. Further, Commerce found:
[T]he Market Report’s citation to a single exchange’s breakpoint is not sufficient
evidence of an industry-wide change in standards from semolina and thus that it is
not a compelling reason to change the instructions for reporting protein content.
Id. Indeed, Plaintiffs do not deny the report’s limitations. Instead, they appear to argue that, limited
as it might be, the Market Report is the only evidence on the record: “The Market Report was
unrebutted. It was submitted near the outset of the proceeding, and the petitioners had ample
opportunity to submit rebuttal factual evidence. Instead, petitioners were silent.” Pls.’ Br. at 13;
id. at 33 (“Petitioners’ failure to provide any evidence of such different treatment in different
commodity exchanges compels Commerce to accept the finding of the Market Report. There is
simply no reason to disbelieve the exhibit in the Market Report, and indeed, Commerce does not
dispute its correctness.”).
Just because evidence is unrebutted, however, does not make it substantial. Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It cannot be said that the
Market Report reasonably supports the conclusion that industry-wide the minimum protein content
of premium pasta is 12.5% in the United States or that the industry in Italy has recognized a protein
minimum of 13.5% because (1) the report does not represent the entire U.S. industry but, at best,
only the experience of a handful of stores in the Washington, D.C. suburbs, and (2) a single
screenshot from one grain exchange in Italy that states (as translated from the Italian in Exhibit L
of the Market Report), “semolina with characteristics superior to the regulation – minimum protein
13.5%,” cannot reasonably be understood to mean that the entire Italian industry as a whole has
increased the minimum protein content of premium pasta from 12.5% to 13.5%. This is not to say
that information from exchanges in Italy cannot be the source of industry-wide data, but, as
Consol. Court No. 21-00291 Page 14
Commerce indicated in the Final IDM, it must be representative, i.e., the data of more than one
exchange. Again, the 12.5% breakpoint was established by three exchanges. See Final IDM at 12
(emphasis in original) (“[I]n the [original report that supported the 12.5 percent breakpoint, i.e.,
the Wheat Code Memo], Commerce relied on the breakpoints of three separate Italian commodity
exchanges. The plain meaning of ‘industry-wide’ connotes an entire industry or, at the very least,
predominance or prevalence within an industry.” (citing Wheat Code Mem.)); see also Manchester
Tank, 44 CIT at , 483 F. Supp. 3d at 1315 (quoting Fagersta, 32 CIT at 894, 577 F. Supp. 2d at
1277) (“‘Compelling reasons’ require the agency to provide ‘compelling and convincing
evidence . . . that there have been changes in the relevant industry[’] . . . requiring the change.”).
Moreover, the court finds no error with respect to Commerce’s conclusion that differences
in Italian and U.S. protein measurement standards and rounding rules were not commercially
significant. It is unrebutted that consumers rely on packaging information when making pasta
purchasing decisions, and that coding for protein content based on the nutrition label fosters
transparency and consistency in CONNUM-building.8 Where the parties disagree is whether the
Market Report constitutes substantial record evidence that differences in Italian and U.S. protein
measurement standards were commercially significant. For the reasons discussed above, it does
not.
Even if the court were to take into account the pricing data in the Market Report, remand
would not be required here, because at best, Plaintiffs have offered an alternative conclusion to the
one reached by Commerce. Plaintiffs have failed to demonstrate that Commerce’s conclusion—
8
Though unrebutted, the court notes that Commerce’s reliance on the finding that
customers make purchasing decisions based on information found on a pasta product’s packaging
departs from the relevant inquiry, which focuses on the physical characteristics of the product, not
its packaging.
Consol. Court No. 21-00291 Page 15
that values other than those readily available to consumers on the packaging label were not
commercially significant—was unreasonable. Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966) (describing substantial evidence as “something less than the weight of the evidence, and
the possibility of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by substantial evidence”). Therefore, the
court sustains Commerce’s Final Results.
CONCLUSION
Based on the foregoing, the court denies Plaintiffs’ motion and sustains the Final Results.
Judgment will be entered accordingly.
/s/ Richard K. Eaton
Judge
Dated: April 24, 2023
New York, New York