Atar S.r.L. v. United States
34 I.T.R.D. (BNA) 1877
Ct. Intl. Trade2012Background
- Atar S.r.L. challenges Commerce's Final Results for the ninth administrative review of pasta from Italy; dispute centers on CV profit, ISE, and the profit cap.
- Court previously held Commerce erred in using the Final Results method for CV profit and ISE, excluding below-cost sales.
- On remand, Commerce produced the Third Remand Redetermination, which set a CV profit rate, a profit cap, and a CV ISE rate.
- The court must sustain remand results if they follow the court's remand order, are supported by substantial evidence, and comply with law.
- Atar argued for different profit-cap mechanics and challenged Corticella data; the court addressed exhaustion and remand procedures, sustaining the Third Remand Redetermination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Third Remand Redetermination's CV profit rate is lawful | Atar contends the method violates clause (iii) of §1677b(e)(2)(B)(iii) | Commerce can justify a reasonable method under clause (iii) and may exclude non-ordinary-course sales | Yes; underlying CV profit rate sustained as lawful |
| Whether the profit cap method (weighted average) is permissible | Weighted average distorts the data and should be disallowed | Weighted average reflects home-market conditions; discretion allowed | Yes; method deemed reasonable and sustained |
| Whether the ISE rate was determined by a reasonable method | ISE data unrepresentative; seeks alternative data set | Use of eighth-review data is appropriate when ninth-review data are unavailable | Yes; ISE rate determined reasonably |
| Whether Atar’s Corticella objection should be considered despite exhaustion rules | Corticella data failure prejudiced Atar; remedy requested | Exhaustion applies; Corticella issue not raised in remand | No; evidence exhausted; court declines to address Corticella data |
Key Cases Cited
- Atar, S.r.L. v. United States, 637 F. Supp. 2d 1068 (2009) (construction of CV profit and ISE on remand; earlier errors identified by court)
- Atar, S.r.L. v. United States, 703 F. Supp. 2d 1359 (2010) (Second-stage remand; profit-cap compliance discussed)
- Atar, S.r.L. v. United States, 791 F. Supp. 2d 1368 (2011) (Third remand; holds profit cap based on home-market data)
- Thai I-Mei Frozen Foods Co. v. United States, 616 F.3d 1300 (Fed. Cir. 2010) (rejected import of third-country data in CV profit context; supports excluding certain data)
- Rhone Poulenc, Inc. v. United States, 899 F.2d 1185 (Fed. Cir. 1990) (emphasizes accuracy in determining margin; data representativity considerations)
- Geum Poong Corp. v. United States, 26 CIT 322, 193 F. Supp. 2d 1363 (2002) (profit-cap aim to reflect home-market profit experience)
- Floral Trade Council v. United States, 23 CIT 20, 41 F. Supp. 2d 319 (1999) (profit-cap reflect home-market profitability)