Spa v. United States, Slip Op. 11–63.Court No. 09–00001.
| Decision Date | 06 June 2011 |
| Docket Number | Slip Op. 11–63.Court No. 09–00001. |
| Citation | 33 ITRD 1558,781 F.Supp.2d 1297 |
| Parties | PASTA ZARA SPA, Plaintiff,v.UNITED STATES, Defendant,andAmerican Italian Pasta Company, Dakota Growers Pasta Company, and New World Pasta Company, Defendant–Intervenors. |
| Court | U.S. Court of International Trade |
OPINION TEXT STARTS HERE
Law Offices of David L. Simon (David L. Simon), Washington, DC, for plaintiff.Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Carrie A. Dunsmore and Jane C. Dempsey); Daniel J. Calhoun, Office of Chief Counsel for Import Administration, United States Department of Commerce, of counsel, Washington, DC, for defendant.Kelley Drye & Warren LLP (David C. Smith, Jr. and Paul C. Rosenthal), Washington, DC, for defendant-intervenors.
Plaintiff Pasta Zara SpA (“Zara SpA” or “Zara”), an Italian producer and exporter of pasta products, brought this action to contest the final determination (“Final Results”) that the International Trade Administration, United States Department of Commerce (“Commerce” or the “Department”) issued to conclude the eleventh administrative review of an antidumping duty order on certain pasta from Italy (the “subject merchandise”). Certain Pasta From Italy: Notice of Final Results of the Eleventh Admin. Review & Partial Rescission of Review, 73 Fed.Reg. 75,400 (Dec. 11, 2008) (“ Final Results ”). Bringing three claims in this action, plaintiff challenged as unlawful: (1) the Department's determining the U.S. prices of Zara's subject merchandise on a constructed export price (“CEP”) basis rather than an export price (“EP”) basis, Compl. ¶¶ 10–13; (2) the Department's classifying certain accounting expenses incurred by Zara's U.S. affiliate as direct, rather than indirect, selling expenses, id. ¶¶ 14–18; and (3) the Department's determination that all of Zara's sales in its home market of Italy occurred at a single level of trade (“LOT”), id. ¶¶ 19–23.
Before the court is the redetermination that Commerce issued on remand (“Remand Redetermination”) in response to the court's order in Pasta Zara SpA v. United States, 34 CIT ––––, 703 F.Supp.2d 1317 (2010) (“ Pasta Zara ”) . Final Results of Redetermination Pursuant to Remand (July 29, 2010) (“ Remand Redetermination ”). In Pasta Zara, the court sustained the Department's decision to determine U.S. price on a CEP basis. Pasta Zara, 34 CIT at ––––, 703 F.Supp.2d at 1320–23. With respect to plaintiff's second claim, the court granted defendant's request for a voluntary remand that would allow Commerce to reconsider the question of whether the accounting expenses at issue should be classified as direct or indirect. Id. at ––––, 703 F.Supp.2d at 1323–24. On remand, Commerce has reclassified the accounting expenses as indirect expenses and has concluded, correctly, that this change does not affect the calculation of Zara SpA's margin. Remand Redetermination 2–3. On plaintiff's third claim, the court ordered in Pasta Zara that Commerce reconsider its conclusion that all of Zara's home market sales occurred at a single level of trade, concluding that the Department did not conduct an adequate analysis of the issue. Pasta Zara, 34 CIT at ––––, 703 F.Supp.2d at 1324–29. Upon reconsidering the question, Commerce determined again that Zara's home market sales comprised a single LOT but bases that determination on different findings and reasoning, which the court sustains. The court will enter judgment affirming the Remand Redetermination.
The court presented background in its Opinion and Order in Pasta Zara. Id. at ––––, 703 F.Supp.2d at 1319–20. Additional background is presented below as a summary and to recount events occurring since Pasta Zara was decided.
In the preliminary results of the eleventh review, Commerce determined for Zara SpA a preliminary weighted-average dumping margin of 10.34%. Certain Pasta From Italy: Notice of Prelim. Results of Eleventh Antidumping Duty Admin. Review, 73 Fed.Reg. 45,716, 45,720 (Aug. 6, 2008). In the Final Results, Commerce assigned Zara SpA a margin of 9.71%, Final Results, 73 Fed.Reg. at 75,401, which Commerce left unchanged in the Remand Redetermination, filed with the court on July 29, 2010, Remand Redetermination.
On August 30, 2010, plaintiff filed comments with the court objecting to the Remand Redetermination. Comments of Pl. Pasta Zara SpA on Final Results of Redetermination Pursuant to Remand (“Pl.'s Comments”). The same day, defendant-intervenors, who are domestic pasta producers, filed a letter supporting the Remand Redetermination. Comments in Support of the Commerce Dept.'s Final Results of Remand Redetermination. With leave of court, defendant filed a response supporting the Remand Redetermination. Def.'s Resp. to Pl.'s Comments upon the Remand Redetermination; Def.'s Mot. for Leave to File a Resp. to Pl.'s Comments upon the Remand Redetermination. The court heard oral argument on November 17, 2010.
The court exercises jurisdiction under section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c) (2006), pursuant to which the court reviews actions commenced under section 516A of the Tariff Act of 1930 (“Tariff Act” or the “Act”), 19 U.S.C. § 1516a (2006), including an action contesting the final results of an administrative review that Commerce issues under section 751(a) of the Tariff Act, 19 U.S.C. § 1675(a). In ruling on the Remand Redetermination, the court must hold unlawful any determination, finding, or conclusion found to be unsupported by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i).
The Remand Redetermination states that “the Department finds the accounting expenses to be indirect in nature because those expenses did not result from, nor bear a direct relationship, to specific sales.” Remand Redetermination 2. Commerce then concluded that the reclassification of the expenses as indirect cannot affect Zara's margin because both direct and indirect selling expenses are deducted from the CEP starting price. Id. at 3 (). Plaintiff does not disagree that indirect selling expenses are deducted from the CEP starting price but takes the occasion of the Department's change in position to challenge again the Department's determining U.S. price on a CEP basis, on the grounds that the expenses would not be deducted were U.S. price determined on an EP basis and that Commerce, in situations not materially different from this one, has used an EP basis to determine U.S. price. Pl.'s Comments 22–23. Pointing out that in its comments to the Department on the draft version of the Remand Redetermination “Zara asked Commerce to reconsider its CEP decision, insofar as the agency treats Zara differently from other respondents that were in precisely the same factual posture,” plaintiff argues that “Commerce's refusal to reconsider the CEP issue was unlawful, since the statutory requirement of ‘fair comparisons' (19 U.S.C. § 1677b(a)) mandates that companies in the same position should be treated in the same way.” Id. at 2 (citing JTEKT Corp. v. United States, 33 CIT ––––, ––––, 675 F.Supp.2d 1206, 1240 (2009)); see Letter from Pasta Zara to the Sec'y of Commerce 1–2 (July 15, 2010) (Admin.R.Doc. No. 6552) (“ Pl.'s Remand Comments ”).
The question of the lawfulness of the Department's use of the CEP basis to determine U.S. price was not at issue in the Remand Redetermination, the court already having affirmed the use of the CEP basis in Pasta Zara, 34 CIT at ––––, 703 F.Supp.2d at 1320–23. Therefore, plaintiff's raising the CEP/EP issue in its comments to the Department on the draft version of the Remand Redetermination and to the court on the Remand Redetermination is to no avail. Having not sought reconsideration of the court's decision affirming the use of the CEP basis, plaintiff may not relitigate the CEP/EP issue in this remand phase of the litigation.
Even were the court to consider plaintiff's comments to the court as a motion for reconsideration of the court's decision affirming the Department's decision to use the CEP basis as set forth in Pasta Zara, it would reject plaintiff's argument. In Pasta Zara, the court sustained that decision according to specific factual findings grounded in substantial evidence on the record. Id. at ––––, 703 F.Supp.2d at 1320–23. Plaintiff's argument relying on Commerce's decisions to use the EP basis in other cases fails to address the suitability of the CEP method to the unique facts of this case.
Zara claimed that Commerce should have determined normal value according to the sales it made in Italy to a group of its customers (identified herein as “mass-market customers”) that it described as including wholesalers, large distribution organizations, discounters, and hypermarkets. Id. at ––––, 703 F.Supp.2d at 1324. Considering these home market sales equivalent to its sales in the United States, Zara also identified a second, smaller group of home market sales that it wants excluded from the normal value calculation, arguing that these sales were made at a separate and more remote level of trade. According to Zara, these sales were made to Zara's “traditional local customers,” a group including “dettaglio (small mom-and-pop convenience stores of under 150 square meters), hotels and restaurants, communities ( e.g., monasteries) and associations ( e.g., sports clubs)”; all of which have single locations near the original Zara factory, very limited storage capacity, and no distribution capability, and typically buy pasta from inventory (as...
To continue reading
Request your trial
-
Dillinger Fr. S.A. v. United States
...these differences in selling activities were not substantial enough to warrant separate levels of trade. IDM at 42; Pasta Zara SpA v. United States, 781 F.Supp.2d 1297, 1301 ("Commerce permissibly determined on the record as a whole that Zara's selling activities directed to its local custo......