00-31752. Certain Pasta From Italy: Final Results of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of final results of antidumping duty administrative review and determination to revoke the antidumping duty order in part: Certain pasta from Italy.

SUMMARY:

On August 8, 2000, the Department of Commerce (the “Department”) published the preliminary results of the administrative review of the antidumping duty order on certain pasta from Italy. This review covers the following exporters/producers of subject merchandise: (1) Commercio-Rappresentanze-Export S.r.l. (“Corex”); (2) F.lli De Cecco di Filippo Fara S. Martino S.p.A. (“De Cecco”); (3) La Molisana Industrie Alimentari S.p.A. (“La Molisana”); (4) Pastificio Fratelli Pagani S.p.A. (“Pagani”); (5) Pastificio Antonio Pallante (“Pallante”); (6) P.A.M. S.r.l. (“PAM”); and (7) N. Puglisi & F. Industria Paste Alimentare S.p.A. (“Puglisi”). The period of review (“POR”) is July 1, 1998, through June 30, 1999.

Based on our analysis of the comments received, these final results differ from the preliminary results. The final results are listed in the section “Final Results of Review.” For our final results, we have found that during the POR, La Molisana and PAM sold subject merchandise at less than normal value (“NV”). We have also found that during the POR, Corex, De Cecco, Pallante, Pagani, and Puglisi did not make sales of the subject merchandise at less than NV (i.e., “zero” or de minimis dumping margins). In addition, we are revoking the antidumping order with respect to De Cecco, based on three years of sales in commercial quantities at not less than NV. See “Intent to Revoke” section of this notice.

EFFECTIVE DATE:

December 13, 2000.

FOR FURTHER INFORMATION CONTACT:

James Terpstra or Geoffrey Craig, AD/CVD Enforcement, Office VI, Group II, Import Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone [phone], or [phone], respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute

Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR Part 351 (1999).

Background

On August 8, 2000, the Department published the preliminary results of administrative review of the antidumping duty order on certain pasta from Italy. See Notice of Preliminary Results and Partial Recission of Antidumping Duty Administrative Review and Intent to Revoke Antidumping Duty Order in Part: Certain Pasta from Italy, 65 FR 48467 (August 8, 2000) (“Preliminary Results”). The review covers seven manufacturers/exporters. The POR is July 1, 1998, through June 30, 1999. We invited parties to comment on our preliminary results of review. We received case briefs on September 7, 2000, from PAM, De Cecco, and La Molisana.^[1] A public hearing was not held with respect to this review.^[2] The Department has conducted this administrative review in accordance with section 751 of the Act.

Scope of Review

Imports covered by this review are shipments of certain non-egg dry pasta in packages of five pounds (2.27 kilograms) 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 review 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 or by Consorzio per il Controllo dei Prodotti Biologici.

The merchandise subject to review is currently classifiable under item 1902.19.20 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheading is provided for convenience and Customs purposes, the written description of the merchandise subject to the order is dispositive.

Scope Rulings

The Department has issued the following scope rulings to date:

(1) On August 25, 1997, the Department issued a scope ruling that multicolored pasta, imported in kitchen display bottles of decorative glass that are sealed with cork or paraffin and bound with raffia, is excluded from the scope of the antidumping and countervailing duty orders. See Memorandum from Edward Easton to Richard Moreland, dated August 25, 1997, in the case file in the Central Records Unit, main Commerce building, room B-099 (“the CRU”).

(2) On July 30, 1998, the Department issued a scope ruling, finding that multipacks consisting of six one-pound packages of pasta that are shrink-wrapped into a single package are within the scope of the antidumping and countervailing duty orders. See Letter from Susan H. Kuhbach, Acting Deputy Assistant Secretary for Import Administration, to Barbara P. Sidari, Vice President, Joseph A. Sidari Company, Inc., dated July 30, 1998, which is available in the CRU.

(3) On October 23, 1997, the petitioners filed an application requesting that the Department initiate an anti-circumvention investigation of Barilla, an Italian producer and exporter of pasta. The Department initiated the investigation on December 8, 1997 (62 FR 65673). On October 5, 1998, the Department issued its final determination that Barilla's importation of pasta in bulk and subsequent repackaging in the United States into packages of five pounds or less constitutes circumvention, with respect to the antidumping duty order on pasta from Italy pursuant to section 781(a) of the Act and 19 CFR 351.225(b). See Anti-circumvention Inquiry of the Antidumping Duty Order on Certain Pasta from Italy: Affirmative Final Determination of Circumvention of the Antidumping Duty Order, 63 FR 54672 (October 13, 1998).

(4) On October 26, 1998, the Department self-initiated a scope inquiry to determine whether a package weighing over five pounds as a result of allowable industry tolerances is within the scope of the antidumping and countervailing duty orders. On May 24, 1999 we issued a final scope ruling finding that, effective October 26, 1998, pasta in packages weighing or labeled up to (and including) five pounds four ounces is within the scope of the antidumping and countervailing duty orders. See Memorandum from John Brinkmann to Richard Moreland, dated May 24, 1999, which is available in the CRU.

The following scope ruling is pending:

(5) On April 27, 2000, the Department self-initiated an anti-circumvention inquiry to determine whether Pagani's importation of pasta in bulk and subsequent repackaging in the United States into packages of five pounds or less constitutes circumvention, with respect to the antidumping and countervailing duty orders on pasta from Italy pursuant to section 781(a) of the Act and 19 CFR 351.225(b). See Certain Pasta from Italy: Notice of Initiation of Anti-circumvention Inquiry of the Antidumping and Countervailing Duty Orders, 65 FR 26179 (May 5, 2000).

Determination to Revoke

On July 28, 1999, De Cecco submitted a request, pursuant to 19 CFR 351.222, that the Department revoke the antidumping duty order with respect to its sales of the subject merchandise. In accordance with 19 CFR 351.222(e), this request was accompanied by a certification that De Cecco had not sold the subject merchandise at less than NV for a period of three consecutive reviews, which included this review period, and that it sold the subject merchandise in commercial quantities to the United States during each of these three years. De Cecco also has stated that it would not sell the subject merchandise at less than NV to the United States in the future, and agreed to the reinstatement of the antidumping order with respect to its merchandise, as long as any exporter or producer is subject to the order, if the Department concludes that De Cecco sold the subject merchandise at less than NV.

In our preliminary results, in accordance with 19 CFR 351.222(f), we stated our intent to revoke in part the order for certain pasta from Italy as it pertains to De Cecco's sales of the subject merchandise. See Preliminary Results. No parties submitted comments on De Cecco's request for revocation.

Therefore, because De Cecco has made sales at not less than NV for three consecutive reviews in commercial quantities (see Memorandum from Jarrod Goldfeder to File, “Shipments of Pasta to the United States by De Cecco,” dated July 31, 2000) and because there is no evidence on the record to indicate the likelihood of resumption of sales at dumped prices, we are revoking the antidumping duty order in part with respect to De Cecco's sales of the subject merchandise. See Certain Welded Stainless Steel Pipe From Taiwan: Final Results of Antidumping Duty Administrative Review and Determination To Revoke Order In Part, 65 FR 39367 (June 26, 2000).

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 for the Third Antidumping Duty Administrative Review” (“Decision Memorandum”) from Holly A. Kuga, Acting Deputy Assistant Secretary for Import Administration, to Troy H. Cribb, Assistant Secretary for Import Administration, dated concurrently with this notice, which is hereby adopted by this notice. A list of the issues which parties have raised, and to which we have responded in the Decision Memorandum, is attached to this notice as an Appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the CRU, room B-099 (“B-099”) of the main Department building. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov. The paper copy and electronic version of the Decision Memorandum are identical in content.

Final Results of Review

As a result of our review, we determine that the following percentage weighted-average margins exist for the period July 1, 1998, through June 30, 1999:

Manufacturer/exporter	Margin (percent)
Corex	zero
De Cecco	0.22 (de minimis)
La Molisana	5.26
Pagani	0.49 (de minimis)
Pallante	0.08 (de minimis)
PAM	5.04
Puglisi	0.07 (de minimis)

The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b), we have calculated exporter/importer-specific assessment rates by aggregating the dumping margins for all U.S. sales to each importer and dividing the amount by the total entered value of the sales to that importer. Where the importer-specific assessment rate is above de miminis, we will instruct Customs to assess antidumping duties on that importer's entries of subject merchandise. We will direct Customs to assess the resulting percentage margins against the entered Customs values for the subject merchandise on each of that importer's entries under the order during the POR.

Cash Deposit Requirements

The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of certain pasta from Italy entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed companies will be the rates shown above, except where the margin is de minimis or zero we will instruct Customs not to collect cash deposits; (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 (“LTFV”) 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 LTFV 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.

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 prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

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 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 is a sanctionable violation.

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

Dated: December 6, 2000.

Troy H. Cribb,

Assistant Secretary for Import Administration.

Appendix—List of Comments and Issues in the Decision Memorandum

PAM

Comment 1: Excluding certain sales from the database

Comment 2: Model matching for unenriched pasta

Comment 3: Selection of normal values

Comment 4: Exchange rate conversion

Comment 5: Level of trade methodology

Comment 5A: General level of trade methodology

Comment 5B: Inventory carrying cost

Comment 5C: Freight and delivery

Comment 6: Shape-based methodology

Comment 7: Short-term borrowing rate

Comment 8: Verification

Comment 9: Sampling methodology

Comment 10: Department of Commerce's release of data

Comment 11: Constructed export price language in the margin program

Comment 12: Administrative process

Comment 13: Accuracy of final results

Comment 14: Cost of production and constructed value data

Comment 15: Weight-averaging methodology

Comment 16: Disregarding sales below cost

Comment 17: Misstated cost data

Comment 18: Raw material cost

Comment 19: Home market sales used in below-cost test

Comment 20: Below-cost sales

Comment 21: General and administrative expenses

Comment 22: Financial expense rate

De Cecco

Comment 23: Constructed export price offset and commission offset

Comment 24: U.S. selling expenses

Comment 25: Countervailing duty variable

La Molisana

Comment 26: Treatment of negative net-U.S. prices

Comment 27: Total overall cost of production data for calculation of cost of production and constructed value

Comment 28: Ministerial Error

Footnotes

1.  On September 28, 2000, we rejected one page of the case brief submitted by PAM, pursuant to 19 CFR 351.301(b)(2) and 19 CFR 351.302(d), because we found that the page contained untimely new factual information. PAM resubmitted the page of the case brief without the new information on October 2, 2000.

2.  Although on September 7, 2000 PAM requested a hearing, that request was subsequently withdrawn on September 18, 2000. No other party requested a hearing.