Trade Court Upholds Commerce's Method for Reporting Protein Content of Pasta in AD Review

The Court of International Trade upheld the Commerce Department's refusal to adjust its threshold for differentiating between types of pasta in its duty calculations in the 2018-19 review of the antidumping duty order on pasta from Italy. Respondent La Molisana had argued the agency's "breakpoint" of 12.5% protein content did not reflect the market reality, saying the true point separating premium from regular pasta was 13.5% protein content. In his April 24 opinion, Judge Richard Eaton said the company's evidence, while unrebutted, was not applicable industrywide, making it "unreliable and insufficient."

La Molisana filed the case to contest Commerce's method used for reporting the protein content of pasta sold in Italy and the United States. Pasta with a protein content over 12.5% is marked as "premium," while pasta with a protein content between 10% and 12.49% is marked as "standard," but the company submitted a market report to show this was not a proper differentiating point between the two pasta types.

This report, authored by La Molisana's counsel, included data on pasta bought from four grocery stores in the Washington, D.C., area and one food retail chain in Italy. The report also looked at the website of one grain exchange in Bologna, Italy, which showed that the breakpoint between premium and standard pasta is at 13.5%. La Molisana said Commerce illegally disregarded and failed to rebut this evidence in keeping its current breakpoint, resulting in a 15.72% dumping rate for the exporter.

Eaton found this evidence unconvincing, ruling that Commerce cannot be blamed for dismissing the report since "no serious argument can be made that the report is representative of the entire industry either in the United States or in Italy." For data to be industrywide, it must be "public, published information," the judge said, adding that the report "bears no indicia of having been publicized or published to or by the industry at large."

The judge also addressed the company's claim that its data is unrebutted, finding that just because there was no rebuttal does not mean that the evidence is substantial. He said that "(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 ... 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%," Eaton said.

(La Molisana v. United States, Slip Op. 23-59, CIT Consol. # 21-00291, dated 04/24/23; Judge: Richard Eaton; Attorneys: David Simon of Law Offices of David Simon for plaintiff La Molisana; Sosun Bae for defendant U.S. government)