01-31512. Notice of Amendment of Final Determination of Sales at Less Than Fair Value Pursuant to Court Decision and Revocation in Part: Certain Pasta From Italy

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of amendment to final determination of sales at less than fair value in accordance with decision upon remand and revocation in part: Certain Pasta from Italy.

SUMMARY:

We are amending the antidumping (“AD”) duty rate for imports of pasta from Delverde S.r.l. (“Delverde”) calculated for the final determination of the antidumping duty less-than-fair-value (“LTFV”) investigation (covering the period from May 1, 1994 through April 31, 1995). The revised AD duty rate for Delverde is 1.44 percent ad valorem and, thus, de minimis. Therefore, we are revoking the antidumping duty order (“the order”) with respect to Delverde.

EFFECTIVE DATE:

December 21, 2001.

FOR FURTHER INFORMATION CONTACT:

Brian Ledgerwood or Geoffrey Craig, AD/CVD Enforcement, Office VI, Group II, Import Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, N.W., 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 of Commere's (“the Department's”) regulations are to 19 CFR Part 351 (2000).

Background

On June 14, 1996, the Department issued the Notice of Final Determination of Sales at less Than Fair Value: Certain Pasta from Italy, 61 FR 30326 (June 14, 1996) (“Final Determination”). The Delverde AD duty rate was 2.80 percent. Delverde challenged the Final Determination in the Court of International Trade (the “CIT”). On March 26, 1998, the CIT held that the statutory provisions for level of trade (“LOT”) adjustments provides that selling expenses set forth in 19 U.S.C. 1677a(d) should not be deducted from constructed export price (“CEP”) before making the LOT comparison. See Borden, Inc. v. United States, 4 F. Supp.2d 1221, 1241-42 (CIT March 26, 1998) (“Borden II”). The United States and Delverde appealed the CIT's decision to the Federal Circuit. See Borden, Inc. v. United States, Nos. 99-1575, -1576 (Fed. Cir. March 12, 2001).

On March 12, 2001, the Federal Circuit reversed the CIT's ruling. Citing its decision in Micron Technology, Inc. v. United States, Nos. 00-1058, -1060 (Fed. Cir. March 7, 2001), the Federal Circuit held that the statute requires the Department to deduct the expenses set forth in section 772(d)(1) of the Act from the starting price of CEP sales before making the LOT comparison under section 773(a)(1)(B) of the Act. The Federal Circuit remanded the case to the CIT stating that the Department must comply with the statute and deduct the expenses set forth in section 772(d)(1) from the starting price of CEP sales before making the LOT comparison. See Borden, Inc., v. United States, Nos. 99-1575, -1576 (Fed. Cir. March 12, 2001).

The CIT issued an order on May 21, 2001, instructing the Department to comply with the decision of the Federal Circuit. See Borden, Inc. v. United States, Court No. 96-08-1970 (CIT May 21, 2001). On October 15, 2001, the Department filed its results of redetermination pursuant to the CIT's order. On November 2, 2001, the CIT affirmed the final remand redetermination in Borden, Inc. v. United States, Consol. Court No. 96-08-01970, Slip Op. 2001-128.

Amended Final Determination and Revocation in Part

In light of the final and conclusive court decision in this action, we are amending the AD duty rate for Delverde from 2.40 to 1.44 percent ad valorem. The rate is less than 2.00 percent and thus, de miminis. Therefore, we are revoking the AD duty order in part with respect to Delverde pursuant to section 351.204(e) of the Department's regulations.

We will instruct the U.S. Customs Service (“Customs”) to terminate the suspension of liquidation for any such merchandise entered, or withdrawn from warehouse, for consumption on or after January 19, 1996, the date of publication of the preliminary determination in the Federal Register, and will instruct Customs to release any bond and refund any cash deposit for this merchandise.

These amended final results and notice are in accordance with sections 735(d) and 777(i)(1) of the Act.

Dated: December 13, 2001.

Faryar Shirzad,

Assistant Secretary for Import Administration.