E7-2563. Notice of Final Results of the Ninth Administrative Review of the Antidumping Duty Order on Certain Pasta from Italy

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On August 8, 2006, the Department of Commerce (“the Department”) published the preliminary results and partial rescission of the ninth administrative review for the antidumping duty order on certain pasta from Italy. The review covers two manufacturers/ exporters: (1) Atar, S.r.L. (“Atar”) and, (2) Corticella Molini e Pastifici S.p.A. and its affiliate Pasta Combattenti S.p.A. (collectively, “Corticella/Combattenti”). The period of review (“POR”) is July 1, 2004, through June 30, 2005. Further, requests for review of the antidumping duty order for the following companies were withdrawn: Barilla G.e.R. Fratelli, S.p.A./Barilla Alimentare, S.p.A. (“Barilla”), Moline e Pastificio Tomasello S.r.L. (“Tomasello”), and Pastificio Laporta S.a.s. (“Laporta”). We are rescinding the review with respect to Italpasta/Pasta Berruto S.p.A. (“Italpasta”)¹ because Italpasta submitted a letter stating that it had no shipments of subject merchandise during the POR. See 19 CFR 351.213(d)(3). Finally, we are rescinding the review with respect to Pastificio Antonio Pallante S.r.L./Industrie Alimentari Molisane, S.r.L./Vitelli Foods, LLC (“Pallante”) because, since the initiation of the current review, the Department has revoked the order in part, with respect to Pallante, effective July 1, 2004.

As a result of our analysis of the comments received, these final results differ from the preliminary results.

EFFECTIVE DATE:

February 14, 2007.

FOR FURTHER INFORMATION CONTACT:

Dennis McClure and Maura Jeffords for Atar and Preeti Tolani for Corticella/Combattenti, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, Washington, DC 20230; telephone: [phone] and [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On August 8, 2006, the Department published the preliminary results of the ninth administrative review of the antidumping duty order on certain pasta from Italy. See Notice of Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review: Ninth Administrative Review of the Antidumping Duty Order on Certain Pasta from Italy, 71 FR 45017 (August 8, 2006) (“Preliminary Results”).

On August 1, 2006, we invited Atar to submit comments by August 11, 2006, and petitioners to submit rebuttal comments by August 21, 2006, in response to the Department's particular market situation determination. See Letter to Counsel for Atar, August 1, 2006, referencing Memorandum to Stephen J. Claeys, RE: Particular Market Situation, July 31, 2006. On August 10, Atar requested an extension to its deadline, which the Department granted until August 25, 2006. The Department extended petitioners' deadline until September 6, 2006. Atar submitted its comments on August 25, 2006. On August 30, 2006, counsel for the petitioners requested and received an extension until September 13, 2006. Petitioners submitted their comments on September 13, 2006.

The Department verified Atar's sales and cost information between October 16 and 20, 2006, in Naples, Italy. Following the release of verification reports on November 30, 2006, the Department announced that interested parties could submit briefs no later than December 28, 2006, and rebuttal briefs no later than January 5, 2007. A public hearing was held on January 16, 2007.

Scope of the Order

Imports covered by this order are shipments of certain non-egg dry pasta in packages of five pounds four ounces or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastasis, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by this scope is typically sold in the retail market, in fiberboard or cardboard cartons, or polyethylene or polypropylene bags of varying dimensions.

Excluded from the scope of this order are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white. Also excluded are imports of organic pasta from Italy that are accompanied by the appropriate certificate issued by the Instituto Mediterraneo Di Certificazione, by Bioagricoop Scrl, by QC&I International Services, by Ecocert Italia, by Consorzio per il Controllo dei Prodotti Biologici, or by Associazione Italiana per l'Agricoltura Biologica.

In addition, based on publicly available information, the Department has determined that, as of March 13, 2003, imports of organic pasta from Italy that are accompanied by the appropriate certificate issued by Instituto per la Certificazione Etica e Ambientale (“ICEA”) are also excluded from this order. See Memorandum from Audrey Twyman to Susan Kuhbach, dated February 28, 2006, entitled “Recognition of Instituto per la Certificazione Etica e Ambientale (“ICEA”) as a Public Authority for Certifying Organic Pasta from Italy” which is on file in the Department's Central Records Unit (“CRU”).

The merchandise subject to this order is currently classifiable under item 1902.19.20 of the Harmonized Tariff Schedule of the United States (“HTSUS”). The merchandise subject to this order is also classifiable under item 1901.90.9095. See Memorandum from Dennis McClure to James Terpstra, RE: Request for AD/CVD Module Update with the Addition of HTSUS Number for Pasta from Italy (A-475-818), November 1, 2006. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to the order is dispositive.

Rescission of Review

In the Preliminary Results, we stated that we are rescinding the review for Laporta, Barilla, and Tomasello because they filed withdrawal requests within 90 days of the publication of the notice of initiation of this review, as required by statute. We also stated that we are preliminarily rescinding the review with respect to Italpasta because Italpasta submitted a letter stating that it had no shipments of subject merchandise during the POR. We also preliminarily rescinded the review with respect to Pallante because the Department revoked the order in part with respect to Pallante, effective July 1, 2004 after the initiation of the current review. See Notice of Final Results of the Eighth Administrative Review of the Antidumping Order on Certain Pasta From Italy and Determination to Revoke in Part, 70 FR 71464 (November 29, 2005). Since our preliminary results were published, the Department has not received any comments regarding the decision to rescind this review for Laporta, Barilla, and Tomasello in accordance with 19 CFR 351.213(d)(1), for Italpasta, in accordance with 19 CFR 351.213(d)(3), and for Pallante, in accordance with 19 CFR 351.222(b). Therefore, we are rescinding the reviews of these companies.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the Issues and Decision Memorandum, which is hereby adopted by this notice. A list of the issues which parties have raised, and to which we have responded in the Issues and Decision Memorandum, is attached to this notice as an Appendix. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/​frn. The paper copy and electronic version of the Issues and Decision Memorandum are identical in content.

Final Results of Review

We determine that the following weighted-average margins exist for the period July 1, 2004, through June 30, 2005:

Manufacturer/exporter	Margin (percent)
Atar	18.18
Corticella/Combattenti	1.95

Assessment Rates

The Department will determine, and Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries, pursuant to section 751(a)(1)(B) of the Tariff Act of 1930, as amended (“the Act”) and 19 CFR 351.212(b). The Department calculated importer-specific duty assessment rates on the basis of the ratio of the total antidumping duties calculated for the examined sales to the total entered value of the examined sales for that importer. Where the assessment rate is above de minimis, we will instruct CBP to assess duties on all entries of subject merchandise by that importer. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.

The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification will apply to entries of subject merchandise during the period of review produced by companies included in these preliminary results of review for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the “All Others” rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003).

Cash Deposit Requirements

The following deposit requirements will be effective upon publication of this notice of final results of the administrative review for all shipments of certain pasta from Italy entered, or withdrawn from warehouse, for consumption on or after the date of publication of these final results, as provided by section 751(a)(1) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates shown above; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 11.26 percent, the “All Others” rate established in the less-than-fair-value investigation. See Notice of Antidumping Duty Order and Amended Final Determination of Sales at Less Than Fair Value: Certain Pasta from Italy, 61 FR 38547 (July 24, 1996). These deposit requirements shall remain in effect until publication of the final results of the next administrative review.

Notification

This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement may result in the Secretary's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent increase in antidumping duties by the amount of antidumping and/or countervailing duties reimbursed.

This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO are sanctionable violations.

We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Dated: February 5, 2007.

David M. Spooner,

Assistant Secretary for Import Administration.

Appendix I

List of Comments in the Issues and Decision Memorandum

Atar, S.r.L.

Comment 1: Whether the Department should continue to find that a particular market situation exists which prevents proper comparison with the export price and constructed export price

Comment 2: Indirect Selling Expenses and Profit

Comment 3: Distributions and Salaries

Comment 4: Allocation of Certain Expenses

Corticella Molini e Pastifici S.p.A. and its affiliate Pasta Combattenti S.p.A.

Comment 5: Whether the Department made certain clerical errors in the margin program

Comment 6: Whether the Department erred in applying the major-input rule

Footnotes

1.  In its September 20, 2005, letter, counsel for Italpasta S.p.A. informed the Department that it merged with its affiliate, Arrighi S.p.A. into a new company Pasta Berruto S.p.A. See Letter to the Department from Italpasta, Re: Pasta from Italy; Response to Questionnaire (September 20, 2005).