La Molisana S.p.a., Valdigrano Di Flavio Pagani S.r.l. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
LA MOLISANA S.P.A., VALDIGRANO DI FLAVIO
PAGANI S.R.L.,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-2060
______________________
Appeal from the United States Court of International
Trade in Nos. 1:21-cv-00291-RKE, 1:21-cv-00292-RKE,
Senior Judge Richard K. Eaton.
______________________
Decided: June 5, 2025
______________________
D AVID J. CRAVEN, Craven Trade Law LLC, Chicago, IL,
argued for plaintiffs-appellants. Also represented by
D AVID L. SIMON, Law Offices of David L. Simon, Washing-
ton, DC.
SOSUN B AE , Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by
REGINALD T HOMAS BLADES , J R., BRIAN M. B OYNTON,
P ATRICIA M. MCCARTHY ; CHRISTOPHER K IMURA, Office of
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LA MOLISANA S. P. A. v. US 2
the Chief Counsel for Trade Enforcement & Compliance,
United States Department of Commerce, Washington, DC.
______________________
Before L OURIE, SCHALL , and STOLL , Circuit Judges.
STOLL , Circuit Judge.
La Molisana S.p.A. and Valdigrano Di Flavio Pagani
S.r.L. (collectively, “La Molisana”) challenge the final re-
sults of the United States Department of Commerce’s
(“Commerce”) twenty-third administrative review of the
antidumping order on certain pasta from Italy. Certain
Pasta From Italy: Final Results of Antidumping Duty Ad-
ministrative Review and Final Determination of No Ship-
ments; 2018–2019, 86 Fed. Reg. 28,336, 28,336–38
(May 26, 2021). The Court of International Trade (“Trade
Court”) sustained the final results, concluding that La Mo-
lisana had not demonstrated that the alleged flaws in Com-
merce’s model-match methodology were commercially
significant. For the following reasons we vacate-in-part,
affirm-in-part, and remand for further proceedings.
BACKGROUND
I
The Tariff Act of 1930, as amended, establishes a re-
medial regime to combat unfair trade practices. If Com-
merce “determines that a class or kind of foreign
merchandise is being, or is likely to be, sold in the United
States at less than its fair value,” it will “impose[] upon
such merchandise an antidumping duty . . . in an amount
equal to the amount by which the normal value exceeds the
export price.” 19 U.S.C. § 1673.
When establishing a dumping margin, Commerce must
first identify the “foreign like product” that will form the
basis for a comparison to the subject merchandise exported
to the United States. Pesquera Mares Australes Ltda.
v. United States, 266 F.3d 1372, 1375 (Fed. Cir. 2001).
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LA MOLISANA S. P. A. v. US 3
“Foreign like product” means merchandise that is “identi-
cal in physical characteristics with” the subject merchan-
dise. 19 U.S.C. § 1677(16)(A). Commerce uses a model-
match methodology that considers the physical character-
istics of the relevant products to create control numbers
(“CONNUMs”), which it assigns to the products to catego-
rize them for comparison. See Goodluck India Ltd.
v. United States, 11 F.4th 1335, 1338 n.1 (Fed. Cir. 2021).
In other words, Commerce compares products sold in the
United States (the subject merchandise) and foreign prod-
ucts with the same CONNUMs to determine the dumping
margin.
II
Commerce published the antidumping order governing
the import of certain Italian pasta in this case in 1996. No-
tice of Antidumping Duty Order and Amended Final Deter-
mination of Sales at Less Than Fair Value: Certain Pasta
From Italy, 61 Fed. Reg. 38,547 (July 24, 1996). Relevant
here, the disputed physical characteristic used to distin-
guish and assign CONNUMs to pasta is protein content.
Commerce assigns pasta with a protein content of 12.5 per-
cent or more as “1” (premium quality) for its CONNUM
code and pasta with less than 12.5 percent as “2” (standard
quality).
Commerce began using protein content as a distin-
guishing physical characteristic of pasta during the twelfth
administrative review, covering July 1, 2007, to June 30,
2008. Commerce explained “it is generally accepted that
pasta cooking quality can be explained by the differences
in gluten and protein composition of the semolina input.”
J.A. 2615. Commerce relied specifically on protein content
because “protein content can be determined on both the
semolina input and the finished product,” but “gluten test-
ing cannot be performed on the finished product.” Id. Com-
merce determined that “the industry standard for superior
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LA MOLISANA S. P. A. v. US 4
semolina is that its protein content must exceed 12.5 per-
cent.” J.A. 2614–15.
In other words, Commerce determined that the protein
content of the finished pasta was a proxy for the semolina
quality, which is indicative of the quality of the pasta.
III
This appeal concerns the twenty-third administrative
review (“AR23”) covering the period from July 1, 2018, to
June 30, 2019.
A
In AR23, Commerce determined the protein content of
pasta by asking respondents to identify the protein “as
stated on the label of the respective product.” J.A. 1258.
La Molisana challenged Commerce’s methodology for
determining protein content of pasta, arguing that it
causes dissimilar goods sold in the United States and Italy
to be treated as identical and identical goods sold in the
United States and Italy to be treated as dissimilar. Specif-
ically, La Molisana faulted Commerce’s methodology for
failing to account for: (1) the impact of U.S. Food and Drug
Administration (“FDA”) mandated rounding rules on the
protein content listed on the label of the U.S. product;
(2) the different nitrogen-to-protein conversion factors
used in calculating protein content in the United States
versus Italy; and (3) evidence that “the 12.5% breakpoint
between standard and premium pasta does not reflect cur-
rent market reality.” J.A. 5–6. Commerce rejected all
three arguments during AR23.
First, Commerce rejected La Molisana’s assertion that
the FDA’s requirement to report grams of protein per pasta
serving rounded to the nearest gram leads to inaccurate
comparisons between subject merchandise and foreign like
products because pasta with less than 12.5 percent protein
content will sometimes be reported on the label as having
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LA MOLISANA S. P. A. v. US 5
a protein content that equates to greater than 12.5 percent
due to the required rounding up. “Commerce explained
that it did not consider the differences caused by the differ-
ent rounding standards to be commercially significant such
that they would be a basis to alter the coding for the protein
content physical characteristic.” J.A. 8247. Commerce
then turned to La Molisana’s second argument: that Com-
merce should adjust its model-match methodology to ac-
count for the different nitrogen conversion factors used by
the United States and Italy in calculating the number of
grams of protein. Commerce again rejected La Molisana’s
argument, explaining it had “considered and rejected the
claims regarding rounding and nitrogen conversion factors
in prior reviews and in doing so has repeatedly emphasized
the importance of transparency and consistency.”
J.A. 8248. Commerce concluded:
Given that we have found “there is not a clearly de-
fined method of identifying premium pasta other
than the protein content marked on the packages,”
we do not see a basis to find the discrepancy in pro-
tein measurement standards between the U.S. and
Italian markets as commercially significant when
the market perception of premium pasta or non-
premium pasta relies on information readily avail-
able to consumers, namely the packaging label as-
sociated with the pasta in the marketplace.
J.A. 8249.
Commerce next considered La Molisana’s third argu-
ment, that the “12.5 percent breakpoint between standard
and premium pasta is not reflective of either the U.S. or
Italian pasta market.” Id. In support of this argument, La
Molisana relied on a report prepared by counsel for another
mandatory respondent that presented price and protein
content information for a sample of pasta products sold in
one food retail chain in Italy and four food retailers in a
suburb of Washington, D.C. (“Market Report”). The
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LA MOLISANA S. P. A. v. US 6
Market Report concluded that the “true breakpoint be-
tween standard and premium pasta is 13.5 percent protein
content,” J.A. 8249, citing: (1) the Bologna Grain Ex-
change’s decision to redefine superior semolina as having
13.5 percent or greater protein content, and (2) the survey
data purportedly showing pasta with a protein content of
12.5 percent is standard pasta with the minimum accepted
protein among supermarket sellers. See J.A. 8249–50.
Commerce rejected the conclusions drawn in the Market
Report because it surveyed only “four supermarkets in a
small geographic region of the United States,” and La Mo-
lisana made no attempt “to address the potential for ma-
nipulation in choice of purchases or to support a claim that
these purchases are reflective of the entire U.S. market for
pasta products.” Id. Commerce also rejected the Bologna
Grain Exchange’s selection of a new 13.5 percent protein
breakpoint because “Commerce relied on the breakpoints
of three separate Italian commodity exchanges” when it
adopted the 12.5 percent protein breakpoint. J.A. 8250.
Commerce explained “a single exchange’s breakpoint is not
sufficient evidence of an industry-wide change in stand-
ards from semolina and thus that it is not a compelling rea-
son to change the instructions for reporting protein
content.” Id.
Commerce thus concluded that La Molisana had not
presented compelling reasons for it to change its model-
match methodology for reporting protein content and de-
clined to do so.
B
La Molisana appealed to the Trade Court, asking that
court to “remand th[e] matter to Commerce with instruc-
tions to adjust its model-match method for coding protein
content and revise La Molisana’s and Valdigrano’s rates
accordingly.” La Molisana S.p.A. v. United States,
633 F. Supp. 3d 1266, 1270 (Ct. Int’l Trade 2023). The
Trade Court sustained Commerce’s final results,
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LA MOLISANA S. P. A. v. US 7
concluding that substantial evidence supported Com-
merce’s determinations.
First, the Trade Court found no error in Commerce’s
conclusion that “differences in Italian and U.S. protein
measurement standards and rounding rules were not com-
mercially significant.” Id. at 1275. In so holding, the court
explained “[i]t is unrebutted that consumers rely on pack-
aging information when making pasta purchasing deci-
sions, and that coding for protein content based on the
nutrition label fosters transparency and consistency in
CONNUM-building.” Id. At the same time, the court
acknowledged “that Commerce’s reliance on the finding
that customers make purchasing decisions based on infor-
mation found on a pasta product’s packaging departs from
the relevant inquiry, which focuses on the physical charac-
teristics of the product, not its packaging.” Id. at 1275 n.8.
Nevertheless, the Trade Court concluded La Molisana
“failed to demonstrate that Commerce’s conclusion—that
values other than those readily available to consumers on
the packaging label were not commercially significant—
was unreasonable.” Id. at 1275.
As for the breakpoint between standard and premium
pasta, the Trade Court concluded it “cannot fault Com-
merce for finding that the Market Report was insufficient
to support Plaintiffs’ claim that the 12.5% breakpoint is out
of step with current industry-wide standards because no
serious argument can be made that the report is repre-
sentative of the entire industry either in the United States
or in Italy.” Id. at 1274. The court explained that when
“Commerce has reconsidered its model-match criteria in
the past, it has stated that for data to be ‘industry-wide’ it
must be public, published information” and, “[i]n contrast,
the report here was prepared for presentation to Com-
merce, and bears no indicia of having been publicized or
published to or by the industry at large.” Id. Addressing
the Bologna Grain Exchange’s new definition, the court
agreed there is “nothing in the report that indicates that
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LA MOLISANA S. P. A. v. US 8
this single Bologna exchange represents the entire market
or even a large portion of it.” Id. The court further noted
that this grain exchange “was one of three Italian ex-
changes considered by Commerce [in adopting the 12.5%
breakpoint] . . . [and] no evidence from the other two ex-
changes is included.” Id. The Trade Court thus concluded,
“Commerce reasonably found the Market Report insuffi-
cient to support a change in the standard-to-premium
breakpoint from 12.5% to 13.5%.” Id.
La Molisana appeals. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(5).
D ISCUSSION
I
We review decisions of the Trade Court de novo, apply-
ing anew the same standard it used. Sunpreme Inc.
v. United States, 946 F.3d 1300, 1308 (Fed. Cir. 2020)
(en banc). Under that standard, we must uphold the
agency’s determinations unless they are “unsupported by
substantial evidence on the record, or otherwise not in ac-
cordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); see also
Sunpreme, 946 F.3d at 1308.
Under the Tariff Act, Commerce must compare mer-
chandise that is identical in physical characteristics:
(16) Foreign like product
The term “foreign like product” means merchan-
dise in the first of the following categories in re-
spect of which a determination for the purposes of
part II of this subtitle can be satisfactorily made:
(A) The subject merchandise and other merchan-
dise which is identical in physical characteristics
with, and was produced in the same country by the
same person as, that merchandise.
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LA MOLISANA S. P. A. v. US 9
19 U.S.C. § 1677(16)(A) (emphasis added). We have previ-
ously held that products may be “considered to be identical
despite the existence of minor differences in physical char-
acteristics, if those minor differences are not commercially
significant.” Pesquera Mares, 266 F.3d at 1384.
Commerce will not modify its model-match methodol-
ogy unless “compelling reasons” exist to do so. See SKF
USA, Inc. v. United States, 537 F.3d 1373, 1377–80
(Fed. Cir. 2008). In reviewing Commerce’s determination
on whether compelling reasons exist to modify its method-
ology, we apply the substantial evidence standard, asking
whether the model-match methodology is consistent with
19 U.S.C. § 1677(16)(A). It follows that compelling reasons
to modify the existing model-match methodology would ex-
ist when that methodology results in comparison of subject
merchandise and foreign like products that have commer-
cially significant physical differences. This is consistent
with the Trade Court’s approach below, where it stated
that compelling reasons are present when “‘the existing
model-match criteria are not reflective of the merchandise
in question, that there have been changes in the relevant
industry, or that there is some other compelling reason’ re-
quiring the change.” La Molisana, 633 F. Supp. 3d at 1272
(quoting Manchester Tank & Equip. Co. v. United States,
483 F. Supp. 3d 1309, 1315 (Ct. Int’l Trade 2020)).
With this legal framework in mind, we turn to the is-
sues raised on appeal.
II
We address La Molisana’s first two arguments to-
gether: (1) FDA-mandated rounding rules result in differ-
ent protein levels displayed on U.S. product labels
compared to identical products in Italy; and (2) comparison
of products without adjusting for the different nitrogen-to-
protein conversion factors used in calculating protein con-
tent in the United States versus Italy results in “identical
product[s] [being] treated differently purely because of
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LA MOLISANA S. P. A. v. US 10
scalar differences.” Appellants’ Br. 22. We find both argu-
ments persuasive for the same reason: the alleged sources
of error result in inaccuracies in the comparison of identical
products. The statute requires the foreign like product be
“identical in physical characteristics” to the subject mer-
chandise in the United States, and here Commerce’s
model-match methodology does not satisfy this require-
ment. 19 U.S.C. § 1677(16)(A) (emphasis added).
The FDA requires that labels for food sold in the United
States shall include “[a] statement of the number of grams
of protein in a serving, expressed to the nearest gram, ex-
cept that if a serving contains less than 1 gram.” 21 C.F.R.
§ 101.9(c)(7). The impact of the FDA’s protein per serving
rounding requirement can be seen in the illustrative table
from La Molisana’s brief:
Appellants’ Br. 17. Notably, the Government does not con-
test the accuracy of this chart. See generally Appellee’s
Br. 20–24. As shown, pasta with an actual protein content
of 6.51 grams and an actual protein percentage of
11.63 percent would list a protein content of 7 grams on the
label, resulting in a protein percentage of 12.50 percent,
which is coded as premium pasta, causing the pasta to be
compared against foreign like (Italian) premium pasta.
Based on its actual protein content, this pasta is standard
pasta that should be compared against foreign like (Italian)
standard pasta. By relying on the listed protein content,
which is rounded up under FDA rounding requirements,
Commerce fails to compare products “identical in physical
characteristics” in violation of the requirements of
19 U.S.C. § 1677(16)(A).
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LA MOLISANA S. P. A. v. US 11
Commerce reasoned “that it did not consider the differ-
ences caused by the different rounding standards to be
commercially significant” because it had previously deter-
mined that “slight differences [between actual protein con-
tent and the label content] are not readily apparent to
customers of the finished product and, therefore, are not
commercially significant.” J.A. 8247. The Trade Court
agreed, noting that “there was no evidentiary basis to con-
clude that differences in . . . rounding rules, which is not
information readily available to consumers, mattered in
the marketplace.” La Molisana, 633 F. Supp. 3d at 1273.
But, as the Trade Court correctly acknowledged, Com-
merce’s approach “departs from the relevant inquiry,
which focuses on the physical characteristics of the product,
not its packaging.” Id. at 1275 n.8 (emphasis added).
Moreover, Commerce’s conclusion that the allegedly
“slight” differences in protein content caused by rounding
are not commercially significant is belied by its own prior
statements. Commerce explicitly determined that the
amount of protein in pasta is commercially significant
when it chose to designate the amount of protein in pasta
as a proxy for pasta quality. Commerce “verified that phys-
ical differences exist” between various pastas based on the
different wheat (i.e., semolina) qualities used. J.A. 2610.
Commerce determined that (1) “the cost of the highest
grade of semolina is materially more than that of the low-
est grade”; (2) the quality differences in semolina were re-
flected in pasta prices; and (3) that quality differences in
semolina are “commercially significant and an appropriate
criterion for product matching.” Id. Commerce then looked
to published industry standards for determining quality
differences in semolina and examined definitions for supe-
rior semolina. It noted that, at that time, the Milan Grain
Exchange, Bologna Grain Exchange, and Milan Commodi-
ties Exchange all defined superior semolina as having a
minimum protein content of 12.5 percent. Commerce con-
cluded that, accordingly, “the industry standard for
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LA MOLISANA S. P. A. v. US 12
superior semolina is that its protein content must exceed
12.5 percent.” J.A. 2614–15. Commerce also recognized
that “protein content can be determined on both the semo-
lina input and the finished product.” J.A. 2615. Commerce
thus recognized that differences in pasta protein content
indicate differences in semolina quality and are thus com-
mercially significant and an appropriate criterion for prod-
uct matching. Accordingly, given Commerce’s own critical
distinction between pasta with 12.5 percent or more pro-
tein versus pasta with under 12.5 percent protein, Com-
merce cannot now assert that the differences in protein
content caused by rounding in the United States as identi-
fied by La Molisana are not commercially significant. In
other words, because Commerce itself designated protein
content as commercially significant and a proxy for pasta
quality, it cannot reasonably rely on protein calculation
methods that undisputedly inject inaccuracies and charac-
terize those inaccuracies as commercially insignificant.
Commerce’s and the Trade Court’s reliance on the
goals of transparency and consistency fares no better.
Commerce attempts to justify its “reliance on the packag-
ing label [by explaining it] is an objective method to achieve
a product comparison on a ‘consistent and transparent’ ba-
sis because all of the physical characteristics are listed on
the product label.” J.A. 8248; La Molisana,
633 F. Supp. 3d at 1275 (emphasizing that “coding for pro-
tein content based on the nutrition label fosters transpar-
ency and consistency in CONNUM-building”). While we
agree that transparency and consistency are reasonable
goals, the statute requires accuracy in comparison of the
subject merchandise to like products “identical in physical
characteristics.” 19 U.S.C. § 1677(16)(A). Commerce’s
goals of transparency and consistency cannot override the
statutory requirement of identicality in physical character-
istics. As we have recognized, “[a]n overriding purpose of
Commerce’s administration of antidumping laws is to cal-
culate dumping margins as accurately as possible.”
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Yangzhou Bestpak Gifts & Crafts Co. v. United States,
716 F.3d 1370, 1379 (Fed. Cir. 2013) (citing Rhone Poulenc,
Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990));
see also Borlem S.A.-Empreedimentos Industriais v. United
States, 913 F.2d 933, 937 (Fed. Cir. 1990) (“The law does
not require, nor would it make sense to require, reliance on
data which might lead to an erroneous result.”). In other
words, accuracy is a key consideration.
We turn now to the nitrogen conversion factors. We
agree with La Molisana that failing to account for the dif-
ferent nitrogen conversion factors in the United States ver-
sus Italy creates inaccuracies in the comparison of identical
products. The grams of protein in a product are calculated
by multiplying the determined nitrogen content (nitrogen
units) by a nitrogen-to-protein conversion factor. In the
United States, the nitrogen conversion factor, as set by
FDA rules, is 6.2510, while the Italian conversion factor is
5.7110, as set by European Union standards. J.A. 8245.
The following example demonstrates the impact of the dif-
ferent conversion factors on the resulting protein percent-
age:
In this example, physically identical products would be
classified differently in the United States versus Italy
based on the protein displayed on the packaging. As shown
above, Commerce fails to account for these scalar differ-
ences, which results in its failure to compare like products
based on “physical characteristics.” Accordingly, Com-
merce has violated § 1677(16)(A).
As with the FDA-mandated rounding rules, Com-
merce’s only justification for declining to adjust its model-
match methodology to account for the different nitrogen
conversion factors is “the importance of transparency and
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LA MOLISANA S. P. A. v. US 14
consistency.” J.A. 8248. Commerce explained it did not
“see a basis to find the discrepancy in protein measurement
standards between the U.S. and Italian markets as com-
mercially significant when the market perception of pre-
mium pasta or non-premium pasta relies on information
readily available to consumers, namely the packaging label
associated with the pasta in the marketplace.” J.A. 8249.
This reasoning misses the mark because (1) it elevates the
goals of transparency and consistency over the “identical in
physical characteristics” requirement set forth in
§ 1677(16)(A), and (2) these goals are not lost if Commerce
performs a mathematical conversion such that the subject
merchandise can be compared with like foreign products.
We hold that a compelling reason to modify the model-
match methodology exists because Commerce’s current
methodology fails to adhere to the statutory requirement
to compare goods on the basis of identical physical charac-
teristics. For the reasons stated above, we conclude that
Commerce’s determinations regarding rounding and nitro-
gen conversion factors are not supported by substantial ev-
idence. Therefore, we vacate the Trade Court’s judgment
in these respects and remand for further proceedings con-
sistent with this opinion.
III
Turning now to the final issue, La Molisana argues
that Commerce erred in determining that the Market Re-
port and Bologna Grain Exchange definition of “superior”
semolina does not constitute a compelling reason to modify
the percentage breakpoint for distinguishing between
standard and premium pasta from 12.5 percent to 13.5 per-
cent. We are not persuaded by La Molisana’s argument.
Based on the record evidence, a reasonable fact finder could
accept that La Molisana failed to present compelling evi-
dence that the current 12.5 percent breakpoint is incon-
sistent with industry standards.
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LA MOLISANA S. P. A. v. US 15
First, Commerce reasonably explained that the Market
Report relied on pasta purchased from only “four super-
markets in a small geographic region of the United States,”
and La Molisana made no attempt “to address the potential
for manipulation in choice of purchases or to support a
claim that these purchases are reflective of the entire U.S.
market for pasta products.” J.A. 8249–50. We cannot say
that Commerce erred in finding that this survey data did
not constitute a compelling reason to change its approach.
The survey was limited to four stores in an affluent Wash-
ington, D.C. metro area, and a reasonable mind could ac-
cept that such limited survey data is not reflective of the
entire U.S. pasta market.
Nor can we say that Commerce erred by not adopting a
13.5 percent breakpoint based on La Molisana’s citation to
a single commodity exchange’s adoption of that breakpoint.
La Molisana’s Market Report included a screenshot of the
Bologna Grain Exchange’s website, which now defines “‘su-
perior’ semolina as having 13.5 percent or greater protein
content.” J.A. 8250. La Molisana only provided evidence
from one of the commodity exchanges that Commerce con-
sidered in adopting the 12.5 percent protein breakpoint.
Commerce explained “[t]he plain meaning of ‘industry-
wide’ connotes an entire industry or, at the very least, pre-
dominance or prevalence within an industry . . . . [and] a
single exchange’s breakpoint is not sufficient evidence of
an industry-wide change in [semolina] standards.” Id.
Because a reasonable mind could conclude that La Mo-
lisana failed to present compelling evidence of a change in
the protein breakpoint, we affirm the judgment of the
Trade Court on this issue.
CONCLUSION
We have considered La Molisana’s remaining argu-
ments and do not find them persuasive. For the foregoing
reasons, we vacate-in-part, affirm-in-part, and remand for
further proceedings consistent with this decision.
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VACATED-IN-PART, AFFIRMED-IN-PART, AND
REMANDED
COSTS
No costs.
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