Pam, S.P.A. v. U.S.
| Citation | 495 F.Supp.2d 1360 |
| Decision Date | 02 July 2007 |
| Docket Number | Slip Op. 07-103.,Court No. 04-00082. |
| Parties | PAM, S.P.A and JCM, Ltd., Plaintiffs, v. UNITED STATES, Defendant, and A. Zarega's and Sons, American Italian Pasta Company, New World Pasta Company, and Dakota Growers Pasta Company, Defendants-Intervenor. |
| Court | U.S. Court of International Trade |
Law Offices of David L. Simon, Washington, DC (David L. Simon) for Plaintiff PAM, S.p.A.
Rodriguez O'Donnell Ross Fuerst Gonzales & Williams, PC, Chicago, IL (Thomas J. O'Donnell, Michael A. Johnson, and Lara A. Austrins) for Plaintiff JCM, Ltd.
Peter D. Keisler, Assistant Attorney General; Jeanne E. `Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (David S. Silverbrand, Ada E. Bosque, and Stefan Shaibani); of counsel, Rachael E. Wenthold and Mykhaylo A. Gryzlov, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant.
Collier, Shannon, Scott, PLLC, Washington, DC (David C. Smith, Jr., and Paul C. Rosenthal) for Defendants-Intervenor.
This matter is before this Court on motion for judgment upon the agency record. Plaintiffs, PAM, S.p.A. ("PAM") and JCM, Ltd. ("JCM"),1 appeal the final results of the sixth administrative review of the antidumping order on certain pasta from Italy. See Certain Pasta from Italy and Determination not to Revoke in Part, 69 Fed. Reg. 6,255, 6,257 (Dep't Commerce Feb. 10, 2004) (notice of final results and determination not to revoke in part) ("Final Results"). Specifically, Plaintiffs challenge Commerce's decision to apply a dumping margin of 45.49 percent to PAM, based on total adverse facts available. As discussed below, this Court finds that Commerce's decision to apply adverse facts available to PAM is supported by substantial evidence and is otherwise in accordance with law. However, this Court finds that Commerce's application of the 45.49 percent rate to PAM is not supported by substantial evidence. This Court therefore grants in part Plaintiffs' motion for judgment on the agency record and remands the Final Results to Commerce for further proceedings consistent with this Opinion and Order.
Commerce published the Final Results of the sixth administrative review of the antidumping order on certain pasta from Italy in February 2003. Plaintiffs timely appealed the Final Results on two grounds. First, Plaintiffs argued that the results of the administrative review were void as to PAM because the domestic industry petitioners2 failed to provide notice to PAM that they requested an administrative review.3 Second, Plaintiffs argued that Commerce was not justified in applying adverse facts available to PAM. This Court in PAM, S.p.A. v. United States, 29 CIT ___, 395 F.Supp.2d 1337, 1345 (2005), rev'd, 463 F.3d 1345 (Fed.Cir.2006) ("PAM I "), held that the Final Results were void ab initio as to PAM due to the petitioners' failure to provide notice of the administrative review. On appeal, the Court of Appeals for the Federal Circuit ("CAFC") reversed, holding that PAM was not prejudiced by the lack of notice and remanding the case to this Court for further proceedings on the merits. PAM, S.p.A. v. United States, 463 F.3d 1345, 1349 (Fed.Cir.2006). Plaintiffs now challenge Commerce's application of adverse facts available to PAM.
On August 27, 2002, Commerce initiated the sixth administrative review of the antidumping order on certain pasta from Italy, covering the period of review July 1, 2001, through June 30, 2002. Certain Pasta from Italy, 67 Fed.Reg. 55,000, 55,002 (Dep't Commerce Aug. 27, 2002) (notice of initiation). Soon thereafter, Commerce sent out questionnaires to the respondents, including PAM. The questionnaires requested sales and production information from the respondents and set a deadline of October 7, 2002 for responses to be filed. (Letter from James Terpstra to Salvatore Lubrano 3 (Aug. 29, 2002), Pub. R. Doc. 19.) PAM notified Commerce via letter that Petitioners had not properly served PAM with their requests for review, and as a result, PAM was not notified of Commerce's administrative review in a timely manner. (Letter from David J. Craven to the Honorable Donald Evans 1 (Sept. 3, 2002), Pub. R. Doc. 33.) PAM requested and was granted a series of extensions of time to file responses to the initial questionnaire and two supplemental questionnaires. (See Letters granting extensions to PAM, Pub. Does. 53, 179, 202 & 245.) PAM submitted its completed questionnaires by the extended deadlines.
At the time Commerce conducted a verification of PAM's questionnaire responses, the agency discovered that PAM had not reported a large number of sales made in the home market. (Verification of the Sales Response of PAM in the 01/02 Administrative Review of the Antidumping Duty Order of Certain Pasta from Italy 3 (Jul. 28, 2003) ("PAM Verification Rep."), Pub. R. Doc. 305.) When asked about the missing sales, PAM explained that some of the sales were omitted due to a computer programming error and that another portion of the sales were not reported because they were made outside the ordinary course of trade. (Id. at 17-18.)
Regarding the computer programming error, PAM explained that it designated invoices with one of three codes: "FT, for regular invoices; FA, for invoices issued for merchandise to be shipped; and FP, for invoices that are issued by PAM for merchandise sold from a non-PAM warehouse."5 (Id. at 17.) To extract sales data from PAM's accounting system, PAM used the same computer programs in this administrative review as it had used in a prior administrative review. Because PAM had not used FP invoices in the home market during the period covered by the prior administrative review, the computer programs were not coded to extract invoices with the FP designation. As a result, the external warehouse sales were omitted from PAM's home market sales database. (Id.)
The other portion of unreported invoices reflected sales to a single customer, AG. E.A., "an Italian government[al] agency [that] supplies pasta to charitable organizations in Italy."6 (Id. at 18.) PAM explained that it did not report the sales to AG.E.A. because they were made outside the ordinary course of trade.7 PAM believed the AG.E.A. sales to be outside the ordinary course of trade because the pasta sold to AG.E.A. was not for commercial use and was produced in larger quantities at lower cost than pasta sold commercially. (Id.)
Altogether, Commerce estimated that PAM failed to report almost two-thirds of its home market sales.8 (Issues & Decision Mem. 13, 18.) Commerce determined that its "ability to calculate PAM's dumping margin using the data reported by PAM [was] severely compromised" because "[s]uch a small sample may not provide a reasonable approximation of PAM's actual sales practice in the home market". Certain Pasta from Italy, 68 Fed.Reg. 47,020, 47,026 (Aug. 7, 2003) () ("Preliminary Results").
Commerce further determined that PAM failed to cooperate with Commerce's requests for information, warranting application of adverse facts available. (Issues & Decision Mem. for the Final Results of the Sixth Antidumping Duty Administrative Rev. of Certain Pasta from Italy 13-14 (Feb. 3, 2004) ("Issues & Decision Mem."), Nonconfidential App. of PAM for J. upon an Agency R Ex. 1.) Commerce determined that
PAM [did] not act[] to the best of its ability in failing to report approximately two-thirds of its home market sales in this review, because, (1) [Commerce] issued clear instructions requiring this information in its initial questionnaire; (2) PAM had the opportunity to provide the information in responding to two supplemental questionnaires, all of the deadlines of which were extended at PAM's request by [Commerce]; (3) [Commerce] had instructed PAM to report all sales, including those claimed to be outside the ordinary course of trade, and (4) PAM has successfully participated in previous reviews. Additionally, the fact that [Commerce] was readily able to obtain general information regarding the existence of such sales at verification supports our determination that PAM did not act to the best of its ability in reporting its home market sales.
(Id. at 18.) Commerce assigned PAM a dumping margin of 45.49 percent ad valorem based on adverse facts available.9 Final Results, 69 Fed.Reg. at 6,257.
This Court has exclusive jurisdiction to review final results of administrative reviews pursuant to 28 U.S.C. § 1581(c) (2000)10
When reviewing Commerce's final results of administrative reviews the United States Court of International Trade must sustain Commerce's determinations, findings, or conclusions 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) (2000). "More specifically, when reviewing whether Commerce's actions are unsupported by substantial evidence, the Court assesses whether the agency action is `unreasonable' given the record as a whole." Mittal Steel Galati S.A. v. United States, 31 CIT ___, 491 F.Supp.2d 1273, 1275 (2007) (May 14, 2007) (citing Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed.Cir.2006)).
Plaintiffs11 argue that Commerce erred in applying adverse facts available to PAM because the omissions in PAM's questionnaire responses "were not of a nature to justify the application of adverse facts available." Plaintiffs explain that the omissions stemmed from two errors. First, "PAM omitted the AG.E.A. sales on the advice of counsel" because the sales...
To continue reading
Request your trial
-
Borusan Mannesmann Boru Sanayi Ve Ticaret A.S. v. United States
...respondent considered the information requested irrelevant. Def's Resp. at 45–46, additionally referencing PAM, S.p.A. v. United States, 31 CIT 1008, 1017, 495 F.Supp.2d 1360 (2007). The defendant-intervenors' briefs support Commerce's determination along the same lines.The court disagrees ......
-
Fujian Lianfu Forestry Co., Ltd. v. U.S.
...specific margins, either from the period of review at issue, . . ., or a previous period of review." PAM, S.p.A. v. United States, 31 CIT ___, ___ 495 F.Supp.2d 1360, 1372 (2007) ("PAM") (citing Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1339-40 (Fed.Cir.2002) and M......
-
Kyd, Inc. v. U.S.
...dumping of the subject merchandise by some unrelated entity over an amorphous period of time." Id. (citing PAM, S.p.A. v. United States, 495 F.Supp.2d 1360 (CIT 2007)). With respect to the first prong of the Shandong test, whether the starting point for the AFA rate selected was the rate th......
-
Gallant Ocean (Thailand) Co., Ltd. v. U.S.
...disregarded as "highmargin transactions [that] are the exception rather than the rule." Id. at 10-11 (quoting PAM, S.p.A. v. United States, 495 F.Supp.2d 1360, 1371-72 (CIT 2007) (citations omitted) (emphasis removed)). However, this court recently sustained an AFA margin based upon actual ......