04-9550. Amended Final Results of the Sixth Administrative Review of the Antidumping Duty Order on Certain Pasta from Italy and Determination Not to Revoke in Part

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of Amended Final Results of Antidumping Duty Administrative Review.

SUMMARY:

On February 10, 2004, the Department of Commerce (the Department) published in the Federal Register the final results of the sixth administrative review of the antidumping duty order on certain pasta from Italy and determination not to revoke in part, for the period July 1, 2001, through June 30, 2002 (Notice of Final Results of the Sixth Administrative Review of the Antidumping Duty Order on Certain Pasta from Italy and Determination Not to Revoke in Part, 69 FR 6255 (February 10, 2004) (Final Results)). On February 17, 2004, we received timely-filed ministerial error allegations from petitioners¹ and Pastificio Lucio Garofalo, S.p.A. (Garofalo) pertaining to Garofalo and a clerical error allegation from petitioners pertaining to Rummo S.p.A. (Rummo). On February 20, 2004, we received Garofalo's rebuttal brief pertaining to petitioners' ministerial error allegations. Based on our analysis of this information, the Department has revised the margin rate for Garofalo.

EFFECTIVE DATE:

April 27, 2004.

FOR FURTHER INFORMATION CONTACT:

Carrie Farley [phone] Office of AD/CVD Enforcement VI, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

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 Istituto Mediterraneo Di Certificazione, by Bioagricoop Scrl, by QC&I International Services, by Ecocert Italia, by Consorzio per il Controllo dei Prodotti Biologici, by Associazione Italiana per l'Agricoltura Biologica, or by Codex S.R.L.

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, Senior Analyst, Office of AD/CVD Enforcement V, to Richard Moreland, Deputy Assist Secretary, “Scope Ruling Concerning Pasta from Italy,” dated August 25, 1997, which is on file in the Central Records Unit (CRU), room B-099 of the main Commerce Department Building.

(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 Alimentare, S.p.A. (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 Tariff Act of 1930, as amended (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, Program Manager, Office of AD/CVD Enforcement VI, to Richard Moreland, Deputy Assistant Secretary, “Final Scope Ruling,” dated May 24, 1999, which is available in the CRU.

(5) On April 27, 2000, the Department self-initiated an anti-circumvention inquiry to determine whether Pastificio Fratelli Pagani S.p.A.'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). On September 19, 2003, we published an affirmative finding of the anti-circumvention inquiry. See Anti-circumvention Inquiry of the Antidumping and Countervailing Duty Orders on Certain Pasta from Italy: Affirmative Final Determinations of Circumvention of Antidumping and Countervailing Duty Orders, 68 FR 54888 (September 19, 2003).

Amended Final Results

With respect to Garofalo, petitioners alleged that the Department made three ministerial errors in calculating Garofalo's final ad valorem margin. Petitioners alleged that the Department: (1) did not correctly implement its decision to collapse two of Garofalo's reported wheat codes; (2) did not correctly calculate revised G&A expense and interest expense; and (3) incorrectly calculated imputed credit.

We agree with petitioners that their first allegation is ministerial in nature and that we did not implement correctly our decision on collapsing the two wheat codes. Therefore, we corrected Garofalo's final margin program accordingly. However, the Department disagrees with petitioners' second and third allegations on the grounds that the alleged errors are not ministerial in nature. Therefore, we are not making any adjustments to the calculations with respect to Garofalo's G&A expense and interest expense, and imputed credit. See the April 19, 2004, memorandum to James J. Jochum, Assistant Secretary for Import Administration, from Holly A. Kuga, Acting Deputy Assistant Secretary for AD/CVD Enforcement, Group II (Amended Final Memo).

Garofalo alleged that the Department failed to calculate dumping margins for U.S. sales with no home market sales matches. We agree with Garofalo that its allegation is ministerial in nature, and we corrected Garofalo's final margin accordingly. See Amended Final Memo.

With respect to Rummo, petitioners alleged that the Department made a clerical error in its narrative characterization of Rummo's margin rate as de minimis. We agree with petitioners that this characterization was incorrect, and have ensured that the correct margin rate of 0.94 percent is applied in liquidation and cash deposit instructions.

As a result of our corrections, for the period July 1, 2001, through June 30, 2002, Garofalo's antidumping duty margin increased from 2.55 percent to 2.57 percent ad valorem.

The Department will instruct the U.S. Customs and Border Protection (CBP) to assess antidumping duties, as indicated above, on all appropriate entries. The Department will issue liquidation instructions directly to the CBP. The amended cash deposit requirement is effective for all shipments of subject merchandise from Garofalo entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice and shall remain in effect until publication of the final results of the next administrative review.

These amended final results are issued and published in accordance with section 751(h) of the Act and 19 CFR 351.224.

Dated: April 19, 2004.

James J. Jochum,

Assistant Secretary for Import Administration.

Footnotes

1.  Petitioners are New World Pasta Company, Dakota Growers Pasta Company, A. Zerega's & Sons, Inc. and American Italian Pasta Company.