La Molisana S.p.A. v. United States , 2017 CIT 111 ( 2017 )


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  •                                        Slip Op. 17 - 111
    UNITED STATES COURT OF INTERNATIONAL TRADE
    :
    LA MOLISANA S.p.A,                         :
    :
    Plaintiff,             :
    :
    v.                        : Before: R. Kenton Musgrave, Senior Judge
    : Court No. 16-00047
    :
    UNITED STATES,                             :
    :
    Defendant,             :
    :
    and                        :
    :
    NEW WORLD PASTA CO. and                    :
    DAKATA GROWERS PASTA CO.,                  :
    Defendant-Intervenors. :
    :
    OPINION AND ORDER
    [Remanding eighteenth administrative review of certain pasta from Italy.]
    Dated: August 23, 2017
    David J. Craven and Saichang Xu, Sandler, Travis & Rosenberg, of Chicago, IL, for the
    plaintiff.
    Elizabeth Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
    Department of Justice, of Washington, DC, for the defendant. On the brief were Chad A. Readler,
    Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr.,
    Assistant Director. Of Counsel was Mykhalo Gryzlov, Senior Counsel, Office of the Chief Counsel
    for Trade Enforcement and Compliance, U.S. Department of Commerce.
    Paul C. Rosenthal and David C. Smith, Kelley Drye & Warren LLP, of Washington, DC, for
    the defendant-intervenors.
    Court No. 16-00047                                                                                 Page 2
    Musgrave, Senior Judge: The plaintiff, La Molisana S.p.A., challenges two
    determinations from the eighteenth (2013-2014) antidumping duty administrative review of certain
    dry pasta from Italy1: (1) whether the U.S. Department of Commerce, International Trade
    Administration (“Commerce” or “Department”) erred in requiring La Molisana’s pasta sales product
    shapes to be reported without variance from the proceeding’s pasta shape classification list; and
    whether Commerce failed to provide meaningful opportunity for addressing the agency’s differential
    pricing analysis. This being a timely-filed matter described by 19 U.S.C. §1516a(a)(2), subsections
    (A)(i)(I) and (B)(iii), jurisdiction is proper under 
    28 U.S.C. §1581
    (c). The standard of review is
    substantial evidence on the record. 19 U.S.C. §1516a(b)(1)(B)(i). The case will be remanded per
    the following.
    Discussion
    I
    A. Background
    The pasta shape classification list provides for eight different types of shape
    categories: (1) long cuts (e.g., linguine, spaghetti), (2) specialty long cuts (e.g., capellini, fioccini),
    (3) nested/folded/coiled, (4) lasagna, (5) short cuts (e.g., fagiolini, medium shells), (6) specialty short
    cuts (e.g., mezzanelli, pasta mista), (7) soupettes (e.g., ditali, corallini), and (8) combination of
    shapes. E.g., Initial Questionnaire (“IQ”) (Oct. 3, 2014), PDoc 24, at B-8, C-7. Appendix III of the
    1
    Certain Pasta From Italy: Final Results of Antidumping Administrative Review;
    2013-2014, 
    81 Fed. Reg. 8043
     (Feb. 17, 2016) (“Final Results”); Certain Pasta From Italy:
    Amended Final Results of Antidumping Duty Administrative Review; 2013-2104, 8l Fed. Reg. 12690
    (Mar. 10, 2016) (“Amended Final Results”) and the accompanying issues and decision memorandum
    (“IDM”), PDoc 228. Citations to other specific administrative reviews are herein abbreviated “AR”
    followed by its numeric sequence.
    Court No. 16-00047                                                                                 Page 3
    IQ sent to all respondents lists some 256 different shapes and their corresponding control number
    category (i.e., CONNUMs) and provided therein in relevant part is as follows:
    SHAPE CLASSIFICATION
    You are required to classify the pasta types reported in field 3.9 into one of the shape
    categories specified in field 3.1 in accordance with the questionnaire examples and
    the attached “Classification of Pasta Shapes.” If you sold pasta in shapes that do not
    appear on the attached list, please use the most similar pasta type on this list as a
    guide for determining the appropriate shape classification. Support any such
    classification with a description and picture of the pasta type, the production line on
    which it is produced, the standard production capacity of that line (e.g., pounds per
    hour), and the line speed (e.g., pounds per hour) for the pasta type in question. Please
    note that any revisions in shape classification must also be reflected in control
    numbers and variable manufacturing cost information.
    IQ at 151 (or Appx. III at 4; italics added).
    Long (and linear) cuts are made on long cut pasta machines and short cuts are made
    on short cut pasta machines. Once the determination of long or short is made, the question is then
    whether a cut is a “standard” or “special” cut, which for purposes of this matter is a critical
    distinction: the “dividing line” is not due to any physical differences in pasta cuts within the long or
    short shape categories but due to the higher production costs that would be associated with the
    slower line speeds of the latter. See, e.g., Certain Pasta From Italy, 
    78 Fed. Reg. 9364
     (Feb. 8,
    2013) (AR15 final) and accompanying issues and decision memorandum (all such memoranda
    hereinafter “I&D Memo”) at cmt 1; Certain Pasta From Italy, 
    64 Fed. Reg. 6615
     (Feb. 10, 1999)
    (inter alia AR1 final) and accompanying I&D Memo at cmt 7.
    Commerce attempts to frame La Molisana’s dispute as a disagreement with
    methodology, but the parties rather appear in agreement that the methodology is proper and long
    standing. Onward since the 1996 investigation, Commerce’s practice has been to use a 75 percent
    line-speed benchmark to distinguish “speciality” cuts from “regular” cuts produced on the same long
    Court No. 16-00047                                                                             Page 4
    or short production line. See, e.g., 
    id.
     La Molisana’s initial Section B and C questionnaire responses
    included detailed exhibits in which the production speeds of the various shapes which La Molisana
    believed were improperly categorized in Commerce’s shape list and which La Molisana believed
    should be re-classified. La Molisana also included as part of this exhibit a list of those shapes which
    it believed did not appear on Commerce list and, using the same methodology, placed these shapes
    into what it believed to be appropriate categories. See LM Response to Sections B and C of the IQ
    (Dec. 2, 2014), CDocs 38-54, at Exs B-1 and C-1. La Molisana had submitted pictures of these
    shapes as part of its Section A response. See LM Response to Section A of the IQ (Nov. 5, 2015),
    PDocs 34-39, at Ex A-13(a).
    About a month later, Commerce issued a supplemental questionnaire (“SQ”) to La
    Molisana stating:
    1. In your [Section B Questionnaire Response,] page 2, and at Ex B-2, you state that
    you classified shapes “by taking the production speed for the cut on one of the lines
    as compared to the production speed for a shape classified by the Department in a
    particular category.” However, the Department does not classify products by
    production characteristics, rather through sales characteristics. Please assign shape
    codes to each of your observations in the home market and U.S. market databases
    according to the shape classifications included in Appendix III of the initial
    questionnaire. If you believe a change in the model match is warranted, you must
    submit a formal request to the Department for a change to the model match
    methodology.
    SQ (Jan. 6, 2015), PDoc 86, at 2. (bracketing and italics added; footnote omitted).
    La Molisana requested clarification of this instruction on January 13, 2015, noting
    Commerce’s extant practice. Commerce’s reply three days later to this request was as follows:
    A. Please report your shapes, and the appropriate shape code, according to the
    existing list of classifications as presented in Appendix III of the Initial
    Questionnaire.
    Court No. 16-00047                                                                                Page 5
    B. For shapes not listed in Appendix III, please report the characteristics based on
    the most similar shape listed in Appendix III.
    Dep’t Resp. to Request for Clarification (Jan. 16, 2015), PDoc 92, at 2 (italics added).
    Believing it had already placed on the record the correct classifications, La Molisana
    explains, in order to avoid confusion resulting from multiple competing databases it sent in a
    database of the shapes as Commerce apparently wanted them (re)classified, but it did so under
    protest, noting at the time that it intended to raise this issue in its administrative case brief. In that
    brief, La Molisana argued Commerce had failed to follow the established methodology for shape
    classification in this order and further argued against the methodology imposed by Commerce in this
    review, i.e., Appendix III governs a shape’s classification regardless of any information on the record
    as to production line speed for that shape. See LM Case Brief (Oct. 6, 2015), CDoc 240, at 2-4.
    In the IDM, Commerce refused to allow the reclassification of the shapes but did not
    directly address whether the methodology had shape-shifted to sales-based from production-based;
    rather, Commerce indicated that the shape methodology was essentially immutable, that the list had
    been “refined”, and that Commerce need not consider certain proffered facts. Commerce stated:
    Although a 75 percent throughput rate has been used to distinguish pasta shape for
    specialty long and short pasta cuts, we have never allowed respondents to reclassify
    pasta shape classifications based on its own reported line speeds without providing
    the requisite evidence to support such a reclassification. Furthermore, we have not
    allowed respondents to reclassify pasta shapes that are already included in the pasta
    shape classification table.
    IDM at 6.
    B. Argument
    La Molisana argues generally that the above statement in the IDM is factually
    inaccurate, both with respect to the review in question and also with respect to categorical statements
    Court No. 16-00047                                                                              Page 6
    about what has and has not been allowed in prior reviews of this order. First, it notes that the
    statement is directly contradicted by Commerce’s instructions in Appendix III, in which is stated in
    relevant part: “Please note that any revisions in shape classification” et cetera. See IQ at 151, supra.
    Thus, La Molisana argues that the questionnaire instructions themselves clearly contemplated
    revisions to the existing list of shapes, and that if Commerce’s subsequent statement that the list of
    shapes is essentially immutable and that respondents are not allowed to reclassify shapes were true,
    then any provision providing for the “revision” of shapes would be rendered a nullity.
    Second, La Molisana notes that Commerce has, in fact, allowed respondents to
    reclassify shapes that were included in the pasta shape classification table. In the I&D Memo for the
    fourth (1999-2000) administrative review,2 for example, Commerce stated: “For those cuts which
    PAM believed were specialty cuts yet the Department considered a regular cut (or vice versa), it
    provided the line speed data. We reviewed this information and accepted the revised shape
    classification as provided by PAM.” AR4 I&D Memo at issue 19. Thus, Commerce has expressly
    allowed parties in other segments to re-classify shapes on the shape list. Further, La Molisana
    criticizes the defendant’s attempt to dismiss Commerce’s own decision in AR15 through claiming
    that such decision stood for the proposition that Commerce did not reclassify shapes, but La
    Molisana points out that stance is undercut by the language of AR15 itself:
    In the investigation the Department used a 75 percent throughput rate to distinguish
    pasta shape for specialty long and short pasta cuts. We do not use the throughput
    rates to further differentiate between specialty short and super-specialty short or
    specialty long and super-specialty long. Based on the throughput rates of the pasta
    at issue, we can classify them as specialty short and specialty long because the line
    2
    See I&D Memo accompanying Certain Pasta From Italy, 
    67 Fed. Reg. 300
     (Jan. 3, 2002)
    (inter alia, AR4 final).
    Court No. 16-00047                                                                              Page 7
    speed or the throughput rates are 75 percent or less than the corresponding line speed
    or throughput rates of the short and long pasta.
    AR15 I&D Memo at cmt 1. As this language makes clear, and as previously noted, Commerce since
    the investigation has used speed as the dividing point between special and regular cuts, and it is
    production speed, not sales characteristics, which apparently controls that distinction. And in
    considering the record of AR5, Certain Pasta From Italy, 
    68 Fed. Reg. 6882
     (Feb. 11, 2003), the
    court previously acknowledged “other evidence on the record that appears to show that line speed
    is a shorthand for shape.” New World Pasta Co. v. United States, 
    28 CIT 290
    , 309 n.22, 
    316 F. Supp. 2d 1338
    , 1355 n.22 (2004). La Molisana contends that if Commerce’s standard is that the
    production speed drives whether or not a cut is standard or special but for the administrative review
    at bar refused to consider any evidence showing the relative production speeds of certain cuts, then
    Commerce has not actually abided by its own standard but made an arbitrary decision not based on
    an actual review of production data, which is not in accordance with Motor Vehicle Mfrs. Ass’n of
    U.S., Inc. v. State Farm Insurance Co., 
    463 U.S. 29
    , 43 (1983) (an agency’s determination is
    arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem,
    offered an explanation for its decision that runs counter to the evidence before the agency”, etc.).
    Third, La Molisana argues that Commerce “did not even try” (LM Br. at 13) to
    explain the departure from its prior practices and rather appears to have misconstrued both prior
    practice from other reviews and the positions that it had taken in this review. Commerce claimed
    that it never allowed “reclassifications” of products on Commerce’s shape list and that a “formal
    request” (whatever that means) to modify the shape methodology was not made and that insufficient
    information was placed on the record. Yet, as discussed above, Commerce not only has considered
    Court No. 16-00047                                                                           Page 8
    the reclassification of shapes, it has expressly allowed this and expressly contemplated this in the
    questionnaire.
    Fourth, La Molisana contends it was not asking that Commerce “modify” its shape
    methodology but rather was simply asking that Commerce apply the existing methodology to the
    facts of record including the information provided by La Molisana, and La Molisana submits that
    the information placed on the record in this review would appear to be similar to that placed on the
    record in AR4 (the 4th review of the antidumping duty order on pasta from Italy); and that if the
    record were not sufficient without supplementation then Commerce should have asked for more
    information. In AR4, Commerce did not believe the information to be sufficient to sustain the claim
    and issued a supplemental questionnaire requesting more information. AR4 I&D Memo at issue 17.
    La Molisana thus argues that to the extent that Commerce believed the information La Molisana
    submitted was insufficient, then Commerce should have followed extant precedent and asked for
    further detail from La Molisana; but rather than requesting this information, Commerce essentially
    enumerated a “new standard” based on sales (i.e., an “immutable” list of shapes) and not on
    production; and when confronted with the fact that this was a different standard it wound up further
    mischaracterizing its own practice.
    C. Analysis
    The court cannot agree that Commerce enumerated a “new” standard. Rather, for this
    proceeding Commerce appears to have ossified in its approach to “considering” the facts before it.
    The court, thus, can agree with La Molisana that Commerce’s practice, as established by both
    administrative and judicial precedent, is quite clear, and that Commerce must follow its prior
    decisions unless it is able to provide a reasoned explanation for the departure from such decisions.
    Court No. 16-00047                                                                                  Page 9
    See Citrosuco Paulista, S.A. v. United States, 
    12 CIT 1196
    , 1209, 
    704 F. Supp. 1075
    , 1088 ( 1988)
    (“it is . . . a general rule that an agency must either conform itself to its prior decisions or explain the
    reasons for its departure”); Cinsa S.A. de C.V. v. United States, 
    21 CIT 341
    , 349, 
    966 F. Supp. 1230
    ,
    1238 (1997) (“Commerce . . . cannot arbitrarily abandon a relied[-]upon methodology”, it “can reach
    different determinations in separate administrative reviews but it must employ the same methodology
    or give reasons for changing its practice”); RHP Bearings Ltd. v. United States, 
    24 CIT 1218
    , 1226,
    
    120 F. Supp. 2d 1116
    , 1124 (2000) (application of a “special rule” in only two prior reviews does
    not form a “long-established practice” but Commerce is still obliged “to explain the apparent
    inconsistency of its approach in this review and the two preceding reviews”). See also American
    Silicon Technologies v. United States, 
    22 CIT 776
    , 777, 
    19 F. Supp. 2d 1121
    , 1123 (1998).
    La Molisana is correct that an immutable list cannot take into account any changes
    in technology in the production of a cut nor the specific “shape” of the cut produced by each
    producer nor the speeds of each producer’s machines. However, La Molisana undercuts its own
    argument to a certain degree in pointing out that each pasta producer uses its own unique dies, and
    that a shape produced by one producer will not necessarily be identical to that of another producer.
    The defendant thus correctly implies that the shapes list is not company-specific. See, e.g., Def’s
    Resp. at 17 (“taken to its logical conclusion, permitting classifications based on company-specific
    line speeds would result in a system in which (1) physically identical pasta could have different
    classifications, and (2) the pasta would be classified by something other than its physical
    characteristics”) (internal quotes omitted; referencing 
    19 U.S.C. §1677
    (16)(A)) On the other hand,
    the defendant goes too far in attempting to characterize La Molisana’s arguments as an “attempt to
    replace the well-established shape classification in the model match methodology with a system
    Court No. 16-00047                                                                             Page 10
    based on company-specific line speeds.” 
    Id. at 9
    . The court does not interpret La Molisana’s
    arguments to that extent.
    Further, the defendant argues “La Molisana has not demonstrated that the
    well-established shape classification list, which was proposed by Italian pasta respondents in the
    original investigation,[   ]
    and further refined in subsequent reviews, is unreasonable” 
    Id. at 14
    (footnote omitted). The argument presumes perfection in Appendix III for this review, i.e., that the
    listed shapes and their corresponding CONNUM categories are indeed immutable, and yet, as also
    acknowledged, the list has been subject to at least four revisions over the years. While it appears
    true, as the defendant also contends, that the list reflects a “shape-based approach [to] match[ ]
    foreign pasta to domestic pasta based on the ‘physical characteristics’ of the pasta, which is precisely
    what 
    19 U.S.C. §1677
    (16)(A) requires”3, it is plain that the list is also divided over those “physical
    characteristics” by presumed production line speed at the start of each administrative review
    segment, and it is well-established that each such segment is to be considered a separate proceeding
    with its own unique facts. E.g., Shandong Huarong Machinery Co. v. United States, 
    29 CIT 484
    ,
    491 (2005). The questionnaire itself contemplates the possibility of revisions and, by implication,
    the right of parties to seek them. La Molisana placed on the record specific information about the
    line speeds used for the production of its various cuts of pasta and why the cuts that it sought to
    re-classify were produced at the same line speeds as exemplar cuts. See CDocs 38-54, supra, at Exs
    B-1 and C-1. La Molisana argues that this information demonstrated that some of the cuts which
    Commerce had placed on the list as “special” cuts, were in fact produced at the same speed as that
    3
    Def’s Resp. at 15, referencing New World Pasta Co. v. United States, 
    28 CIT 290
    , 306, 
    316 F. Supp. 2d 1338
    , 1352 (2004).
    Court No. 16-00047                                                                          Page 11
    of standard cuts. The record being plain that consideration of this claim is what La Molisana sought,
    to which the record and argument here reflect no adequate rejoinder, the matter will therefore be
    remanded therefor.
    II
    The second issue concerns Commerce’s differential pricing analysis.            In the
    preliminary results Commerce determined that the differential pricing analysis did not produce a
    meaningful difference between the use of average to average (“A-A”) when compared to average to
    transaction (“A-T”). Certain Pasta From Italy, 
    80 Fed. Reg. 47467
     (Aug. 7, 2015) (prelim. results)
    and accompanying preliminary decision memorandum, PDoc 183 (Aug. 3, 2015), at 8. Anticipating
    that when Commerce corrected any errors it might revisit this issue, La Molisana submitted
    arguments in its case brief challenging Commerce’s differential pricing analysis and the potential
    use of the A-T methodology. CDoc 240 at 11-12. These included a discussion of the seasonality
    of the product and other factors that could explain a difference in price.
    In the Final Results, as reflected in the IDM, Commerce did not consider La
    Molisana’s arguments because they were mooted by the finding in the preliminary results that the
    difference was not meaningful. However, in the amended final results Commerce determined to
    apply the differential pricing analysis and to use A-T methodology. Amended Final Calculation
    Memorandum, PDoc 237, CDoc 264 (Mar. 7, 2016). Commerce did not address any of the
    arguments La Molisana presented but appears to have simply ruled that since the A-T methodology
    produced a higher rate than the A-A methodology, it was more accurate and thus should be used. La
    Molisana complains Commerce neither stated why a “higher” rate is necessarily more accurate nor
    addressed any of the concerns raised in its case brief.
    Court No. 16-00047                                                                          Page 12
    The defendant voluntarily requests remand in order to place its analysis and
    determination on the record. The defendant-intervenors oppose remand and argue for sustaining
    Commerce’s determination because when La Molisana alleged clerical error in the Final Results, it
    must have understood that the consequence of that allegation would result in halving its dumping
    margin, which in turn would trigger a re-calculation that would invoke use of the A-T methodology.
    But the court has been provided no basis on which to draw such ultimate conclusion, and it is still
    a fundamental tenet of these matters that an agency must “articulate a[ ] rational connection between
    the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 
    371 U.S. 156
    ,
    168 (1962). See also SEC v. Chenery Corp., 
    332 U.S. 194
    , 196 (1947) (courts judge the propriety
    of agency action solely on the ground invoked by the agency and are powerless to substitute “a more
    adequate or proper basis”). Remand to Commerce to address the record is appropriate. See SKF
    USA Inc. v. United States, 
    254 F.3d 1022
    , 1029 (Fed. Cir. 2001).
    Conclusion
    The matter is hereby remanded to the Department of Commerce, International Trade
    Administration with instruction to reconsider La Molisana’s arguments on the application of the
    speed/shape methodology to the facts of record and also to supplement the record with articulated
    consideration of La Molisana’s administrative case brief comments regarding the differential pricing
    issue. The results of remand shall be due November 30, 2017, and within five days of such filing
    the parties shall confer and file with the court either a proposed briefing schedule for commenting
    on the remand results or other indication of proceeding to final disposition. So Ordered.
    Dated: August 23, 2017                               /s/ R. Kenton Musgrave
    New York, New York                            R. Kenton Musgrave, Senior Judge