New World Pasta Co. v. U.S.

Decision Date01 March 2004
Docket NumberCourt No. 03-00105.,SLIP OP. 04-18.
PartiesNEW WORLD PASTA COMPANY, Plaintiff, v. UNITED STATES, Defendant, and Pastificio Garofalo S.P.A. and Pastificio Guido Ferrara, S.r.L., Defendant-Intervenors.
CourtU.S. Court of International Trade

Collier Shannon Scott, PLLC, Washington, DC (Jennifer E. McCadney, Paul C. Rosenthal, David C. Smith, Jr.) for Plaintiff New World Pasta Company.

Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Jeanne E. Davidson, Deputy Director, Ada Bosque, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Marisa Beth Goldstein, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant United States, of counsel.

Hunton & Williams LLP, Washington, DC, (Richard P. Ferrin, Douglas J. Heffner, William Silverman) for Defendant-Intervenor Pastificio Garofalo S.p.A. Law Offices of David L. Simon, Washington, DC, (David L. Simon) for Defendant-Intervenor Pastificio Guido Ferrara, S.r.L.

OPINION

POGUE, Judge.

In an administrative appeal, Plaintiff challenges aspects of decisions made by the Department of Commerce ("Commerce") concerning two of the investigated companies in Certain Pasta From Italy, 68 Fed.Reg. 6,882, 6,882-84 (Dep't Commerce Feb. 11, 2003) (notice of final results of antidumping duty administrative review and determination not to revoke in part) ("Final Determination").1 With regards to the first company, Pastificio Garofalo S.p.A. ("Garofalo"), Plaintiff challenges Commerce's decision not to "collapse" Garofalo with an affiliate,2 and its decision not to use adverse facts available in making its determination. With regards to the second company, Pastificio Guido Ferrara, S.r.L. ("Ferrara"), Plaintiff challenges Commerce's decision to add a product-matching criterion for die-type in defining the "foreign like product"3 for Ferrara, but not for other companies in the same review. This matter is before the Court on Plaintiff's motion for judgment upon the agency record. The Court has jurisdiction under 28 U.S.C. § 1581(c) (2000). For the reasons discussed below, the Court denies Plaintiff's motion and grants judgment for Defendant.

BACKGROUND

To provide a context for the Court's review of Commerce's decisions, the Court first summarizes aspects of the agency's administrative proceedings. Insofar as they are at issue here, these proceedings began in August 2001, when the Department of Commerce published a notice of initiation of the fifth antidumping duty review for certain pasta from Italy, covering the period from July 1, 2000 to June 30, 2001. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 66 Fed.Reg. 43,570, 43,571 (Dep't Commerce Aug. 20, 2001); see also Final Determination, 68 Fed.Reg. at 6,882. Eight days after publishing the notice of initiation of the antidumping review, Commerce sent out initial questionnaires to the companies under review. Def.'s Opp'n to Mot. J. Agency R. at 3 ("Def.'s Br.") (citations omitted). Both Garofalo and Ferrara replied. The Court summarizes relevant parts of each response in turn.

In Garofalo's response, the company disclosed a family relationship between its majority shareholder and the majority shareholders of another pasta company, Antonio Amato & C. S.p.A. ("Amato"),4 as well as certain intercompany transactions between the two. Response of Pastificio Lucio Garofalo S.P.A. to Section A of the Department's Antidumping Questionnaire, C.R. Doc. No. 1, Pl.'s Conf. Ex. 10 at A7-A8 (Oct. 25, 2001) ("Garofalo's First Response").5 However, Garofalo claimed that the two companies were not affiliates as defined by 19 U.S.C. § 1677(33),6 and did not provide detailed information on Amato. Garofalo's First Response, C.R. Doc. No. 1, Pl.'s Conf. Ex. 10 at A7-A9. Commerce issued a supplemental questionnaire to Garofalo, inquiring further about its relationship with Amato, and later conducted an on-site verification. Letter from James Terpstra, Program Manager, Office of AD/CVD Enforcement VI, Int'l Trade Admin., to William Silverman, Hunton & Williams, Section A, B & C Supplemental Questionnaire, C.R. Doc. No. 18, Garofalo's Conf. Ex. 8 at 2-3 (Apr. 19, 2002) ("Second Garofalo Questionnaire"); Dep't of Commerce Mem. from Geoffrey Craig et al., Trade Analysts, Office of AD/CVD Enforcement VI, to James Terpstra, Program Manager, Office of AD/CVD Enforcement VI, Verification of the Sales Response of Pastificio Lucio Garofalo S.p.A. (Garofalo), C.R. Doc. No. 40, Garofalo's Conf. Ex. 10 at 2 (July 22, 2002) ("Verification Report").

Information gathered from the supplemental questionnaire and the verification allowed Commerce to preliminarily decide that Garofalo and Amato were affiliated, but that they should not be collapsed. Certain Pasta from Italy, 67 Fed.Reg. 51,827, 51,828 (Dep't Commerce Aug. 9, 2002) (notice of preliminary results and partial rescission of antidumping duty administrative review and intent not to revoke in part) ("Preliminary Results"); Preliminary Collapsing Memo, C.R. Doc. No. 45, Pl.'s Conf. Ex. 7 at 4-5. After Commerce issued the Preliminary Results, Plaintiff challenged Commerce's decision not to collapse Garofalo with its affiliate as well as Commerce's failure to use adverse facts available against Garofalo. Petitioner's Case Brief Concerning Garofalo before the Int'l Trade Admin. of the U.S. Dep't of Commerce, C.R. Doc. No. 54, Pl.'s Conf. Ex. 12 at 1-12 (Sept. 19, 2002). In its final results, however, Commerce maintained that although Garofalo was affiliated with Amato, Garofalo and Amato should not be collapsed. Decision Memorandum, P.R. Doc. No. 134, Pl.'s Pub. Ex. 2 at 9-11.

Ferrara, in its response to Commerce's initial questionnaire, requested that Commerce add a new product-matching criterion, reflecting the type of die used to extrude the pasta, in defining "foreign like product" for purposes of the antidumping review. Letter from David L. Simon and Ayla Onder, Law Offices of David L. Simon, to Sec'y of Commerce, Pasta from Italy: Pastificio Guido Ferrara s.r.l. Response to Sections A-C of the Questionnaire, C.R. Doc. No. 3, Fiche 58 at Frames 26-27 (Oct. 25, 2001) ("Ferrara's First Response"). Commerce subsequently sent a supplemental questionnaire to Ferrara asking for a demonstration that the added criterion would be valid. See Letter from David L. Simon and Ayla Onder, Law Offices of David L. Simon, to Sec'y of Commerce, Pasta from Italy; Pastificio Guido Ferrara s.r.l. Response to 2nd Supplemental Questionnaire, C.R. Doc. No. 35, Fiche 94 at Frame 7 (July 16, 2002) ("Ferrara's Second Response"). Ferrara submitted a response, providing the verification report and the production cost verification documents from the previous antidumping review of Certain Pasta from Italy, wherein Commerce had added such a criterion for Ferrara, as well as certain new exhibits. Id. at Frames 7-11; see also Dep't of Commerce Mem. from Frank Thomson and Mark Young, Case Analysts, Office of AD/CVD Enforcement VI, to James Terpstra, Program Manager, Office of AD/CVD Enforcement VI, Verification of the Sales Response of Pastificio Guido Ferrara s.r.l. ("Ferrara") in the 99/00 Antidumping Review of the Antidumping Duty Order of Certain Pasta from Italy, C.R. Doc. No. 35, Ferrara's Conf. Ex. 2 (July 16, 2002) ("Ferrara Verification Report"); Verification Ex. 20: Production Costs, C.R. Doc. No. 35, Ferrara's Conf. Ex. 3 (July 16, 2002); Production Control System Recipe Screenshots, C.R. Doc. No. 35, Ferrara's Conf. Ex. 4 (July 16, 2002); Extracts from HM Database & Package Labelling, C.R. Doc. No. 35, Ferrara's Conf. Ex. 5 (July 16, 2002).

Plaintiff challenged the addition of a fifth criterion in a case brief, but in the final results, Commerce maintained that the die-type product criterion was valid in relation to Ferrara, but that it should not be applied to the other respondents. Plaintiff's Case Brief Concerning Pastificio Guido Ferrara, s.r.l. before the Int'l Trade Admin. of the U.S. Dep't of Commerce, C.R. Doc. No. 52, Fiche 107 at Frames 39-43 (Sept. 19, 2002); see Decision Memorandum, P.R. Doc. No. 134, Pl.'s Pub. Ex. 2 at 23.

Plaintiff consequently filed for relief in this Court.

STANDARD OF REVIEW

This Court reviews the actions of the government in antidumping duty proceedings to determine whether 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) (2000).

DISCUSSION

Four issues are before the Court, two relating to Commerce's treatment of Garofalo, and two relating to Commerce's treatment of Ferrara.

With respect to Garofalo, Plaintiff argues that Commerce acted without support of law or substantial evidence in refusing to collapse Garofalo with its affiliate, Amato, and in refusing to apply adverse facts available to Garofalo in making its collapsing determination.

With respect to Ferrara, Plaintiff argues that Commerce acted without support of law or substantial evidence in adding a product-matching criterion for die-type to the definition of "foreign like product" for Ferrara, and in not adding the product-matching criterion for die-type to the definition of "foreign like product" for other companies in the same review.

The Court will discuss the challenges to Garofalo and Ferrara in turn.

A. Challenges to the Determination Regarding Garofalo

Plaintiff first argues that Commerce's decision not to collapse Garofalo with its affiliate, Amato, was unsupported by law or substantial evidence. Principal Br. of Pl. New World Pasta Company at 7 ("Pl.'s Br."). Second, Plaintiff argues that Commerce's decision not to apply adverse facts available against Garofalo in making the collapsing decision was unsupported by law or substantial evidence. See Pl.'s Br. at 10-11. The Court discusses each argument in turn.

Commerce's decision...

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