E5-534. Notice of Final Results of the Seventh Administrative Review of the Antidumping Duty Order on Certain Pasta from Italy and Determination to Revoke in Part

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On August 6, 2004, the Department of Commerce published the preliminary results and partial rescission of the seventh administrative review and revocation of the antidumping duty order in part, for the antidumping duty order on certain pasta from Italy. The review covers eight manufacturers/exporters of the subject merchandise: (1) Barilla Alimentare, S.p.A. (Barilla), (2) Corticella Molini e Pastifici S.p.A. (Corticella) and its affiliate Pasta Combattenti S.p.A. (Combattenti) (collectively, Corticella/Combattenti), (3) Pastificio Guido Ferrara S.r.l. (Ferrara), (4) Industria Alimentare Colavita, S.p.A. (Indalco) and its affiliate Fusco S.r.l. (Fusco) (collectively Indalco), (5) Pasta Lensi S.r.l. (Lensi), (6) PAM S.p.A. (PAM), (7) Pastificio Riscossa F. Illi Mastromauro, S.r.l. (Riscossa), and (8) Pastificio Carmine Russo S.p.A./Pastificio Di Nola S.p.A. (Russo). The period of review (POR) is July 1, 2002, through June 30, 2003.

As a result of our analysis of the comments received, these final results differ from the preliminary results. For our final results, we have found that during the POR, Barilla, Corticella/Combattenti, Indalco, PAM, Riscossa, and Russo sold subject merchandise at less than normal value (NV). We have also found that Ferrara and Lensi did not make sales of the subject merchandise at less than NV (i.e., they have “zero” or de minimis dumping margins). We have also determined to revoke the antidumping duty order with respect to subject merchandise produced and also exported by Ferrara and Lensi because each company sold the subject merchandise at not less than NV for a period of at least three consecutive years. See 19 CFR 351.222(b)(2) and the “Revocation” section of this notice. The final results are listed in the “Final Results of Review” section below.

EFFECTIVE DATE:

February 9, 2005.

FOR FURTHER INFORMATION CONTACT:

Mark Young, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, Washington, D.C. 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

On August 6, 2004, the Department published the preliminary results of the seventh administrative review of the antidumping duty order on certain pasta from Italy. See Notice of Preliminary Results, Partial Rescission of Antidumping Duty Administrative Review and Revocation of the Antidumping Duty Order in Part: For the Seventh Administrative Review of the Antidumping Duty Order on Certain Pasta from Italy, 69 FR 47880 (August 6, 2004) (Preliminary Results). Although the Department initiated the review of fifteen companies, we rescinded the reviews of N. Puglisi & F. Industria Pasta Alimentari S.p.A. (Puglisi), La Molisana Industrie Alimentari S.p.a. (La Molisana), Molino e Pastificio Tomasello S.r.l. (Tomasello), Pastificio Antonio Pallante S.r.l. (Pallante) and Industrie Alimentari Molisane S.r.l. (IAM) (collectively Pallante/IAM), Pastificio Fratelli Pagani S.p.A. (Pagani), Rummo S.p.A. Molino e Pastificio (Rummo), and Pastificio Lucio Garofalo S.p.A. (Garofalo). See the “Background” and “Partial Rescission” section of the Preliminary Results, 69 FR at 47880, 47881. The review covers the remaining eight manufacturers/exporters: Barilla, Corticella/Combattenti, Ferrara, Indalco, Lensi, PAM, Riscossa, and Russo.

We invited parties to comment on our Preliminary Results. Petitioners¹ filed case briefs on September 7, 2004, regarding Barilla, Indalco, and Riscossa. Barilla, Indalco, PAM, Russo, Riscossa, and Lensi each filed case briefs on September 7, 2004. On September 13, 2004, petitioners submitted rebuttal briefs concerning Barilla and Indalco, and Barilla, Riscossa, and Indalco submitted rebuttal briefs. On October 6, 2004, a public hearing was held at the Department of Commerce with respect to Barilla. On November 4, 2004, the Department published the notice of extension of final results of the antidumping administrative review of pasta from Italy, extending the date for these final results to February 2, 2005. See Certain Pasta From Italy: Extension of Final Results of Antidumping Duty Administrative Review, 69 FR 64275.

Scope of Review

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.

The merchandise subject to this order 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.

Assignment of the Same Antidumping Duty Rate to Corticella/Combattenti and CLC

In the Preliminary Results, we stated that evidence indicates that Corticella/Combattenti and its toll producer, Coopertive Lomellina Cerealicoltori S.r.l. (CLC), are affiliated, and we noted that the Department recognized, given the nature of their affiliation, that a related issue could arise with respect to whether there is a potential for manipulation of price or production and, if so, whether Corticella/Combattenti and CLC should receive a single same antidumping duty rate. See 69 FR at 47880. We solicited comments on the issue for consideration in the final results of review. We did not receive any comments on the matter.

For purposes of these final results, we continue to find that Corticella/Combattenti and CLC are affiliated. Further, upon further examination, we have revised our approach from the Preliminary Results regarding the antidumping duty rates assigned to Corticella/Combattenti and CLC. Specifically, we find that there is sufficient record evidence to warrant collapsing Corticella/Combattenti and CLC pursuant to 19 CFR 351.401(f) and that the companies should receive a single weighted-average antidumping duty margin. For further discussion of this issue, see the February 2, 2005 memorandum from the Team to Melissa G. Skinner, Director, AD/CVD Operations, Office 3, entitled, “The relationship of Coopertive Lomellina Cerealicoltori S.r.l. (CLC) with Corticella Molini e Pastifici S.p.A. (Corticella) and its affiliate Pasta Combattenti S.p.A. (Combattenti, collectively Corticella/Combattenti),” a proprietary document, the public version of which is available in the Central Records Unit, room B-099 of the main Department building.

Revocation

In the Preliminary Results, we preliminarily determined to revoke the antidumping duty order with respect to subject merchandise produced and exported by Ferrara. See 69 FR at 47887. We did not receive any comments from interested parties concerning our revocation with respect to Ferrara. For the reasons set forth in the Preliminary Results, 69 FR at 47886, we continue to find that revocation is appropriate with respect to Ferrara and, thus, we revoke the antidumping duty order with respect to subject merchandise produced and exported by Ferrara.

Regarding Lensi, in the Preliminary Results, we found that the company made sales of subject merchandise at less than NV. See 69 FR at 47886. As a result, we preliminarily determined not to revoke the antidumping duty order with respect to Lensi. However, as explained in Comments 13 through 20 of the Issues and Decision Memorandum that accompanies the final results of review, we have corrected certain inadvertent errors in Lensi's margin program and, as a result, find that Lensi did not sell subject merchandise at less than NV. As noted in the Issues and Decision Memorandum, petitioners did not comment on any of the issues raised by Lensi, including the revocation issue. As explained in the February 2, 2005, memorandum to Melissa G. Skinner, Director, AD/CVD Operations, Office 3, from the Team, we find that Lensi has satisfied all requirements under 19 CFR 351.222(e)(1) and 19 CFR 351.222(b)(2) entitling it to revocation, and, thus, we revoke the antidumping duty order with respect to subject merchandise produced and exported by Lensi. In accordance with 19 CFR 351.222(f)(3), we will instruct CBP to terminate the suspension of liquidation for merchandise produced and exported by Ferrara or produced and exported by Lensi, entered, or withdrawn from warehouse, for consumption on or after the first day after the period under review, and to refund any cash deposit.

Analysis of Comments Received

All issues raised in the case and rebuttal brief 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 Decision Memorandum are identical in content.

Final Results of Review

We determine that the following weighted-average margins exist for the period July 1, 2002, through June 30, 2003:

Manufacturer/exporter	Margin (percent)
Barilla	7.25
Corticella/Combattenti	4.00
Ferrara	de minimis
Indalco	6.03
Lensi	de minimis
PAM	4.78
Riscossa	1.05
Russo	7.36
All Others	11.26

Assessment

The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b), we have calculated exporter/importer-specific duty assessment rates by aggregating the dumping margins for the examined U.S. sales for each importer and dividing the amount by the total entered value of the sales for that importer. In situations in which the importer-specific assessment rate is above de miminis, we will instruct CBP to assess antidumping duties on that importer's entries of subject merchandise. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of these final results of review.

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 rate for the reviewed companies will be the rates shown above, except where the margin is de minimis or zero we will instruct CBP 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 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 2, 2005.

Barbara E. Tillman,

Acting Assistant Secretary for Import Administration.

Appendix I

List of Comments and Issues in the Decision Memorandum

List of Comments:

Barilla Alimentare, S.p.A. (Barilla)

Comment 1: Double Counting of the Cost of Semolina Purchases

Comment 2: Treatment of Subject Merchandise Produced by Other Italian Manufacturers

Comment 3: Overstatement of Constructed Export Price (CEP) Profit

Comment 4: CEP Offset

Comment 5: Use of Facts Available for Financial Discount

Comment 6: Reclassification of Rebate Payments as Selling Expense

Comment 7: Margin Calculation Methodology

Comment 8: Application of Case Discount

Industria Alimentare Colavita, S.p.A. and Fusco S.r.l. (collectively Indalco)

Comment 9: Liquidation Instructions

Comment 10: Margin Calculation Methodology

Comment 11: Selling, General & Administrative (SG&A) Expenses

Comment 12: DIFMER Adjustment

Pasta Lensi S.r.l. (Lensi)

Comment 13: Credit and purchase order adjustments to the Gross Unit Price in the Net U.S. Price Calculation

Comment 14: Credit Adjustment to Gross Unit Price in Calculating Normal Value

Comment 15: Commission Offset for CEP Sales

Comment 16: CEP Offset

Comment 17: Imputed Credit Expenses

Comment 18: Wheat Classifications

Comment 19: CEP Profit

Comment 20: Revocation of the Antidumping Duty Order for Lensi

PAM S.p.A. (PAM)

Comment 21: Collapsing PAM's wheat types 1 and 2

Pasta Riscossa F. Illi Mastromaura, S.r.l. (Riscossa)

Comment 22: Use of a Constant Factor for Inland Freight Expense

Comment 23: Correction of the Home Market Warranties field

Comment 24: Inclusion of Purchased Pasta in Comparison Market Program

Comment 25: Adjustment of Semolina Costs

Comment 26: Revision of Riscossa's Reported Interest Rate

Pastificio Carmine Russo S.p.A./ Pastificio Di Nola S.p.A. (Russo)

Comment 27: U.S. Price Calculation

Footnotes

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