E5-5794. Certain Pasta from Italy: Notice of Court Decision Not in Harmony

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On September 14, 2005, the United States Court of International Trade (“CIT”) held void ab initio the Department of Commerce's (“the Department”) initiation of the sixth administrative review of the antidumping duty order with regard to PAM, S.p.A. and JCM, Ltd. (“PAM”) in all respects. See PAM S.p.A. & JCM, Ltd. v. United States, Court No. 04-00082, Slip. Op. 05-124 (CIT, Sept. 14, 2005) (“PAM v. United States”). Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (“Timken”), the Department is notifying the public that the PAM v. United States decision was “not in harmony” with the Department's original results.

EFFECTIVE DATE:

September 24, 2005.

FOR FURTHER INFORMATION CONTACT:

Preeti Tolani, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 4012, 14^th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

On July 1, 2002, the Department published a notice of opportunity to request an administrative review of the antidumping duty order for certain pasta from Italy. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation: Opportunity To Request Administrative Review, 67 FR 44172 (July 1, 2002). In response, the Department received requests for review of thirteen respondent companies, including PAM, from domestic petitioners.¹ Petitioners served their requests for administrative reviews upon all respondent companies except for PAM. On August 27, 2002, the Department published a notice of initiation of its sixth antidumping duty administrative review covering the period of July 1, 2001, through June 30, 2002, listing PAM and twelve other companies as respondents. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 67 FR 55000 (August 27, 2002). Thereafter, PAM notified the Department that PAM was not served properly with a request for review. On August 7, 2003, the Department published its preliminary results of the sixth administrative review of the antidumping duty order where it applied adverse facts available for PAM to arrive at an antidumping margin of 45.49 percent. See Notice of Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review and Intent Not to Revoke in Part: For the Sixth Administrative Review of the Antidumping Duty Order on Certain Pasta from Italy, 68 FR 47020 (August 7, 2003). On February 10, 2004, the Department published its final results, which affirmed its decisions in the preliminary results. See Notice of Final Results of Antidumping Duty Administrative Review and Determination Not to Revoke in Part: For the Sixth Administrative Review of the Antidumping Duty Order on Certain Pasta from Italy, 69 FR 6255 (Feb. 10, 2004).

PAM challenged that the initiation of this review, as well as its subsequent results, should be void ab initio because petitioners failed to serve their request for initiation of the review in violation of 19 C.F.R. § 351.303(f)(3)(ii) (2002). The CIT granted PAM's motions for judgment on the agency record, held void ab initio the initiation of the sixth administrative review of the antidumping duty order with respect to PAM, and directed the Department to rescind the sixth administrative review of the antidumping duty order with respect to PAM.

Timken Notice

In its decision in Timken, the Federal Circuit held that, pursuant to 19 U.S.C. § 1516a(e), the Department must publish notice of a decision of the CIT which is “not in harmony” with the Department's results. The CIT's decision in PAM v. United States was not in harmony with the Department's final antidumping duty results. Therefore, publication of this notice fulfills the obligation imposed upon the Department by the decision in Timken. In addition, this notice will serve to continue the suspension of liquidation. If this decision is not appealed, or if appealed, it is upheld, the Department will rescind the sixth administrative review of the antidumping duty order with respect to PAM.

Dated: October 7, 2005.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.

Footnotes

1.  New World Pasta Company, Dakota Growers Pasta Company, Borden Foods Corporation, and American Italian Pasta Company.