Exporter Says US Doesn't Have 'Unlimited' Discretion on Protein Content Reporting Requirements

The Commerce Department "ignores critical facts" in its threshold for differentiating between different pasta types in an antidumping duty review, exporter La Molisana said in a Dec. 13 reply brief brief (La Molisana v. United States, Fed. Cir. # 23-2060).

For example, the U.S. cannot say that Pi equals four since it's easier to calculate, yet "this is exactly what the United States has done -- ignored physical facts for the sake of 'clarity' and such actions are not entitled to deference," the brief said.

La Molisana originally filed its case at the Court of International Trade to contest Commerce's method used for reporting the protein content of pasta sold in Italy and the U.S. as part of the 2018-19 review of the AD order on pasta from Italy. In the review, the method used indicates 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."

The exporter submitted evidence that it said showed this wasn't correct, including a market report compiled by La Molisana's counsel, which showed data on pasta bought from four grocery stores in the Washington, D.C., area and one food retail chain in Italy. The trade court rejected the claims (see 2309270057). The government said it must use the nutrition facts panel on the pasta without adjustment for consistency and clarity, adding that differences between the nitrogen content multiplier between the U.S. and Italy are "not commercially significant (see 2311090056).

La Molisana said this claim doesn't have merit, specifically objecting to the government's argument that scalar adjustments shouldn't be made for clarity purposes "because such scalar factors would not be known in the general marketplace and by the consumer." The "nitrogen factors are not some special hidden value buried in scientific texts and thus not available to the public, rather they are detailed in Federal Law and Regulation and thus necessarily readily available," the exporter argued.

The adjustment "is not difficult for either the Department or the respondents" and, in fact, is commercially significant. The result of failing to make the adjustment leads to "about 1/3rd" of the protein values in the 10% to 12.49% protein content range to be misclassified, the brief said.