Federal Circuit upholds Commerce antidumping duty calculations on pasta imported from Italy 

September 11:  The U.S. Court of Appeals for the Federal Circuit today reversed and remanded a decision by the trade court which had rejected calculations made by the Commerce Department. Atar S.R.L. v. United States, 2013-1001 (Fed. Cir. September 11, 2013)

In today’s decision [PDF 147 KB], the Federal Circuit concluded that Commerce had acted reasonably in excluding below-cost sales data from its administrative review of an antidumping duty order on pasta imported into the United States from Italy and found that the original profit cap calculation was reasonable.

Overview

In 1996, Commerce determined that certain pasta products from Italy were being sold in the United States at less than fair value and published an antidumping duty order imposing antidumping duties against pasta imported into the United States.


Some years later, Commerce conducted its ninth administrative review of that antidumping duty order (covering the period of July 1, 2004, through June 30, 2005) and arrived at an antidumping duty margin of 18.18% for the plaintiff/importer in this case.


To calculate antidumping margins, Commerce ordinarily compared the export price of the subject merchandise with the “normal value” (the price of like products sold in the exporter’s home market or in a representative third country). However, in this case, Commerce determined that it could not assess normal value by reference to the plaintiff’s proffered home-market or third-country sales data, so it approximated the normal value of the pasta using a constructed value approach. With this, Commerce derived the constructed value for the pasta and reached its final antidumping duty margin of 18.18%.


The trade court agreed with Commerce’s use a constructed value approach, but issued the first of many remands, finding that Commerce had not employed a “reasonable method” for calculating the constructed value of the importer’s products.


The U.S. Court of International Trade rejected calculations advanced by Commerce regarding the profit cap to pasta sold by the Italian exporter in the ninth administrative review of an antidumping duty order directed to certain Italian pasta products. In response, Commerce revised its profit cap determination, eventually including above- and below- cost sales made by profitable and unprofitable respondents in the prior administrative review to satisfy the trade court’s remand orders.


The trade court then sustained Commerce’s antidumping duty calculations.


Today, the Federal Circuit concluded that Commerce’s original profit cap calculation was reasonable, and reversed.



For more information, contact a professional with KPMG’s Trade & Customs practice:


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