                                           Slip Op. 03-37

               UNITED STATES COURT OF INTERNATIONAL TRADE
                                            __________

______________________________
                                       :
PRODOTTI ALIMENTARI                    :
    MERIDIONALI, S.R.L.,               :
                                       :
               Plaintiff,              :
                                       :
               v.                      :               Court No. 01-00020
                                       :               Public Version
UNITED STATES,                         :
                                       :
               Defendant,              :
                                       :
____________________________           :

[ITA’s remand determination sustained.]


                                                               Dated: April 1, 2003

       Riggle and Craven (David J. Craven and David A. Riggle) for plaintiff.

      Robert D. McCallum, Jr., Assistant Attorney General, David M. Cohen, Director, Velta
A. Melnbrencis, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice (David Harrington), Michele D. Lynch, Office of Chief Counsel for Import
Administration, United States Department of Commerce, of counsel, for defendant.


                                              OPINION

RESTANI, Judge:

       This matter is before the court following its decision in Prodotti Alimentari Meridionali,

S.r.l. v. United States, slip op. 02-68 (Ct. Int’l Trade July 16, 2002) (hereinafter “Prodotti I”), in

which the court remanded a single aspect of the final determination made by the United States

Department of Commerce (“Department” or “Commerce”) in its five-year sunset review of
COURT NO . 01-00020                                                                  PAGE 2

antidumping duty orders in Certain Pasta from Italy: Final Results of Antidumping

Administrative Review, 65 Fed. Reg. 77,852 (Dep’t Commerce Dec. 13, 2000). Familiarity with

that decision is presumed. The sole remaining issue involves Commerce’s classification of pasta

shapes for the purpose of comparing normal value (“NV”) to export price (“EP”) or constructed

export price (“CEP”).1

                                          DISCUSSION

       In constructing its methodology, Commerce divided pasta sold in the U.S. and

comparison markets into seven (7) discrete product or shape categories. This model match

methodology was initially developed during the original investigation after consultation with

interested parties. In defining the various categories, Commerce considered four factors: pasta

shape, type of wheat, additives, and enrichment. Results of Redetermination Pursuant to Court

Remand at 2 (Dep’t of Commerce Aug. 29, 2002) (“Remand Determination”). Commerce

placed particular emphasis on pasta shape, noting that “pasta producers typically dedicate

specific production lines to either long or short pasta cuts, and that standard and specialty shapes

within long and short cuts are determined according to production line speed, which is a major

determinant that affects production costs.” Id.

       Plaintiff Prodotti Alimentari Meridionali, S.r.l. (“Prodotti”) does not challenge

Commerce’s consideration of pasta shape generally. Instead, Prodotti argues that Commerce’s



       1
          In Prodotti I, Commerce requested a remand “for the limited purpose of reviewing the
record with respect to shape categories.” Prodotti agreed that a remand was in order, although
Prodotti requested that the court direct Commerce to merge two shape categories into one. The
court declined to issue specific remand instructions at that time. On remand, Commerce
continued to separate these pasta products into different shape categories. See Results of
Redetermination Pursuant to Court Remand (“Remand Determination”).
COURT NO . 01-00020                                                                    PAGE 3

application of that methodology here is flawed because the products classified under two of the

categories, shape category 5 (regular short cuts) and category 7 (soup cuts), are nearly identical

and, therefore, the distinction between the two is “so imprecise as to be meaningless.” In

support, Prodotti primarily argues that the production speeds of the two categories are very

similar and that the shapes are produced on the same machine. Prodotti points out that short cuts

and soup cuts (or soupettes) are consequently treated as one product in Prodotti’s internal product

coding system. Prodotti also argues that the products are sold and used interchangeably. 2 For

these reasons, Prodotti claims that there is no meaningful distinction between these products and

requests that the court order Commerce to merge the two categories.

       Relying upon Prodotti I, Commerce first responds that Prodotti’s claim fails because

Prodotti did not establish that it was prejudiced by the pasta shape classification in the

investigation below. Commerce misreads Prodotti I. The court did not require that a respondent

establish specific prejudice as an element of its case. The court found that, where the

government expressly argues in opposition to plaintiff’s claim that a proposed change in the

methodology would have no effect on the margin at issue, the plaintiff “must explain how it

likely would benefit from a particular claimed revision.” Prodotti I at 5 (emphasis added). The

purpose behind doing so was to prevent plaintiffs from raising challenges to a determination that

could have no effect on the final outcome (the margin) and would only serve to delay the

administrative process and preclude finality of court judgments – for years in many cases.3 In


       2
          In its initial brief, Prodotti argued that the product Ditali can be used in a soup or can be
used in a dish of prepared pasta. Maybe so, but Ditali is commonly known as soup pasta.
       3
         In Prodotti I, Plaintiff had raised several arguments that appeared to have no effect on
the outcome of the case. For example, Prodotti challenged a series of currency conversions that
COURT NO . 01-00020                                                                    PAGE 4

Prodotti I, Commerce did not argue that Prodotti was not prejudiced, it simply requested remand.

Commerce waived this argument. Prodotti has nevertheless explained how its proposed revision

would affect the margin.4 Accordingly, the court rejects Commerce’s argument.

       As to the merits, Commerce does not dispute that, in some factories, these two pastas cuts

are produced on the same production machines at similar productions speeds.5 Commerce

instead responds that these considerations are not determinative. As Commerce explains,

production speed, while important, is not conclusive because “virtually all of [Prodotti]’s pasta

production occurs at similar production speeds . . . .” Remand Determination at 4. In support,

Commerce points out that another category is produced at a similar line speed yet its

classification is not challenged by Prodotti.6 Commerce also points out, and Prodotti does not


did not change the value of the related sales in any way. Id. at 6-7. Prodotti nonetheless
requested a remand based upon these conversions that did not harm Prodotti.
       4
         Prodotti has explained that the margins for products sold in shape categories 5111/7111
would shift from [           ] to [          ]. This category was selected by Prodotti as a sample
and contains only a limited number of sales to the U.S. market during the period of review
(“POR”). Despite this and the fact that the change is relatively small, the court nonetheless
concludes that Prodotti has at least provided some reason for its challenge.
       5
          For example, the average line speed for pasta cut 5 at Prodotti’s [                 ] factory
was [          ] seconds while the average line speed of pasta cut 7 was [            ]. Exhibit D-
11(b)(RR) of Prodotti’s Second Supplemental Response. At the [                   ] factory, the average
line speed for category 5 was [          ] while the average line speed of category 7 was [
]. Id. At the [            ] factory, the average line speed for category 5 was [          ] while the
average line speed of category 7 was [         ]. Id. Prodotti argues that the [
                                                                              ].
       6
           Commerce explains that, at one plant, [        ], the average line speed of [
                                                                  ] is [      ]. Exhibit D-
11(b)(RR) of Prodotti’s Second Supplemental Response. That is [
                                ], yet Prodotti does not suggest that these two products should
be merged. That is presumably because there are other differences that exist, [
                                        ]. This supports the conclusion that line speed, while
COURT NO . 01-00020                                                                 PAGE 5

dispute, that two different pasta producers could use different machines to produce the same

pasta product. Therefore, the court agrees that similarities in the type of machine used should not

be determinative. While Prodotti does not argue that these two considerations, speed and type of

machine, are by themselves conclusive, Prodotti nevertheless relies upon them to establish that

these categories are functionally identical.

       While there are similarities between the two products, the court ultimately finds

Prodotti’s position unpersuasive. The court finds no inherent error in Commerce’s model match

methodology, a methodology developed with the parties and used from the outset of the

investigation. The court finds that a methodology seeking to compare pasta products based upon

shape, ingredients used, and method of production is a reasonable one. Even if certain products

are produced on the same machines at similar speeds, that does not necessarily establish that they

are the same product, even if they might be used in a similar manner. Prodotti has not

demonstrated a flaw in the model match methodology which requires its amendment.7




considered, is not determinative in classifying pasta products.
       7
         This is not a case where plaintiff seeks a reclassification of its pasta from one model
match category to another.
COURT NO . 01-00020                                                              PAGE 6

                                       CONCLUSION

       For the reasons discussed, Plaintiff’s motion for judgment on the agency record is hereby

denied. The court sustains Commerce’s Remand Determination, finding that is supported by

substantial evidence and in accordance with law. So ordered.




                                            ____________________________
                                                    Jane A. Restani
                                                        Judge

Dated: New York, New York

       This 1st day of April, 2003.
                                            ERRATUM

Prodotti Alimentari Meridionali, S.r.l. v. United States, Court No. 01-00020, Slip Op. 03-37
dated April 1, 2003.

Page 1:         On the 22nd line, replace “five-year sunset review” with “third administrative
                review”.

June 12, 2003
