2011-11700. Certain Pasta From Italy: Final Results of Countervailing Duty Changed Circumstances Review and Revocation, In Part

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On December 15, 2010, the Department of Commerce (“the Department”) published its preliminary results of changed circumstances review and intent to revoke, in part, the countervailing duty (“CVD”) order on certain pasta from Italy.^[1] We are now revoking this order, in part, with regard to gluten-free pasta, as described in the “Scope of the Order” section of this notice. The Department confirmed that Petitioners ^[2] have no interest in CVD relief from imports of gluten-free pasta. The Department received comments filed by domestic interested party, Maplegrove Gluten Free Goods Inc. (“Maplegrove”), in opposition to the partial revocation; however, Maplegrove was unable to demonstrate that Petitioners did not represent at least 85 percent of total production of the domestic like product. Therefore, the Preliminary Results are hereby adopted as the final results.

DATES:

Effective Date: May 12, 2011.

FOR FURTHER INFORMATION CONTACT:

Mahnaz Khan or Jessica Forton, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; telephone [phone] and [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On July 24, 1996, the Department published in the Federal Register the CVD order on certain pasta from Italy.^[3] On July 29, 2010, the Department received a request on behalf of H.J. Heinz Company (“Heinz”) to initiate a no-interest changed circumstances review and revocation, in part, of the CVD order on certain pasta from Italy with respect to gluten-free pasta.^[4] On September 17, 2010, the Department published a notice of initiation of changed circumstances review and consideration of revocation of order, in part, with respect to the CVD order on certain pasta from Italy with respect to gluten-free pasta.^[5] The Department stated that it would publish the final results of this changed circumstance review after analyzing comments received by interested parties in the briefing period.^[6] On September 27, 2010, Petitioners expressed a lack of interest in maintaining the CVD order with respect to gluten-free pasta.^[7] On November 30, 2010, Petitioners confirmed that they represent “substantially all” of domestic production, as set forth in section 782(h) of the Tariff Act of 1930, as amended (the “Act”), and 19 CFR 351.222(g)(1)(i), which the Department has previously interpreted to mean at least 85 percent of the total production of the domestic like product covered by the order.^[8] On December 15, 2010, the Department issued its Preliminary Results of changed circumstances review and intent to revoke, in part, with respect to gluten-free pasta.

Scope of Changed Circumstances Review

The merchandise covered by this changed circumstances review is gluten-free pasta.

Scope of the Order

Imports covered by the 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 the scope of the order 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 the 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, Bioagricoop S.r.l., QC&I International Services, Ecocert Italia, Consorzio per il Controllo dei Prodotti Biologici, Associazione Italiana per l'Agricoltura Biologica, or Codex S.r.l. In addition, based on publicly available information, the Department has determined that, as of August 4, 2004, imports of organic pasta from Italy that are accompanied by the appropriate certificate issued by Bioagricert S.r.l. are also excluded from the order.^[9] Furthermore, based on publicly available information, the Department has determined that, as of March 13, 2003, imports of organic pasta from Italy that are accompanied by the appropriate certificate issued by Instituto per la Certificazione Etica e Ambientale are also excluded from the order.^[10] Pursuant to this notice, effective January 1, 2009, gluten-free pasta is also excluded from the scope of the CVD order.

The merchandise subject to the order is currently classifiable under items 1901.90.90.95 and 1902.19.20 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to the order is dispositive.

Final Results of Changed Circumstance Review; Partial Revocation of CVD Order

On December 27, 2010, Maplegrove, a domestic producer of gluten-free pasta, expressed an objection to the changed circumstances review and intent to revoke, in part, with respect to gluten-free pasta.^[11] The Department subsequently notified Maplegrove that its objection must present evidence that Petitioners do not represent at least 85 percent of the total production of the domestic like product.^[12] In this notification, the Department offered Maplegrove an additional opportunity to present such evidence. However, Maplegrove did not do so. Thus, pursuant to section 782(h) of the Act and 19 CFR 351.222(g)(1)(i), Maplegrove's objection to the changed circumstances review is insufficient to overcome the expressed lack of interest shown by Petitioners. Therefore, the Department is partially revoking the CVD order on certain pasta with respect to gluten-free pasta from Italy, in accordance with sections 751(b), (d) and 782(h) of the Act and 19 CFR 351.216(d) and 351.222(g).

In the Preliminary Results, we stated that the Department would instruct U.S. Customs and Border Protection (“CBP”) to end the suspension of liquidation for the merchandise covered by the revocation on the effective date of the notice of revocation and to release any cash deposit or bond. However, in a comment submitted on October 12, 2010, Heinz requested that the Department retroactively revoke the CVD order, citing Wooden Bedroom Furniture, as support.^[13] On March 31, 2011, the Department issued a letter to all interested parties inviting comment on Heinz's proposal to make effective revocation retroactive.^[14] The Department did not receive comments from any parties in response to this letter.

Therefore, consistent with Wooden Bedroom Furniture, we have determined to revoke the CVD order with respect to unliquidated entries of gluten-free pasta retroactively to January 1, 2009. This is the date following the last day of the most recently completed administrative review, and consequently these entries are not subject to a final determination by the Department.

Accordingly, we will instruct CBP to liquidate without regard to CVDs all unliquidated entries of gluten-free pasta, entered, or withdrawn from warehouse, for consumption on or after January 1, 2009. The Department will also instruct CBP to refund with interest any estimated CVDs collected with respect to unliquidated entries of gluten-free pasta entered, or withdrawn from warehouse for consumption on or after January 1, 2009, in accordance with section 778 of the Act and 19 CFR 351.222(g)(4). Further, the Department will instruct CBP to no longer suspend liquidation on entries with respect to gluten-free pasta.

This notice 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 351.306. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

This changed circumstances review, partial revocation of the CVD order and notice are in accordance with sections 751(b) and (d), 777(i), and 782(h) of the Act and 19 CFR 351.216(e) and 351.222(g).

Dated: May 5, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  See Certain Pasta From Italy: Preliminary Results of Countervailing Duty Changed Circumstances Review and Intent To Revoke, In Part, 75 FR 78223 (December 15, 2010) (“Preliminary Results”).

2.  New World Pasta Company, Dakota Growers Pasta Company, and American Italian Pasta Company (collectively, “Petitioners”).

3.  See Notice of Countervailing Duty Order and Amended Final Affirmative Countervailing Duty Determination: Certain Pasta From Italy, 61 FR 38544 (July 24, 1996).

4.  See Letter from Heinz to the Department, Request to Initiate a No-Interest Changed Circumstances Review and Revocation, in Part, with Respect to Gluten-Free Pasta (July 29, 2010) (“Heinz Letter”), which is on file in the Central Records Unit (“CRU”), Room 7046, main Commerce Building.

5.  See Certain Pasta From Italy: Notice of Initiation of Changed Circumstances Review and Consideration of Revocation of Order, in Part, 75 FR 56992 (September 17, 2010).

6.  Id. 75 FR at 56993-94.

7.  See Memorandum from Austin Redington, International Trade Compliance Analyst, AD/CVD Operations Office 1, to the File, Changed Circumstance Review of Certain Pasta from Italy: Statement of No Opposition from Domestic Industry (October 13, 2010), which is on file in the CRU.

8.  See Memorandum from Patricia Tran, Acting Program Manager, AD/CVD Operations Office 1, to Nancy Decker, Acting Office Director, AD/CVD Operations Office 1, Ex Parte Memorandum: Phone Conversation with Counsel for Petitioners (November 30, 2010), which is on file in the CRU; see also Certain Corrosion-Resistant Carbon Steel Flat Products From Japan: Preliminary Results of Antidumping Duty Changed Circumstances Review and Intent Not to Revoke, In Part, 70 FR 35618, 35624 (June 21, 2005), unchanged in Certain Corrosion-Resistant Carbon Steel Flat Products From Japan: Final Results of Antidumping Duty Changed Circumstances Review and Determination Not to Revoke, In Part, 70 FR 47787 (August 15, 2005).

9.  See Memorandum from Eric B. Greynolds to Melissa G. Skinner (August 4, 2004), which is on file in the CRU.

10.  See Memorandum from Audrey Twyman to Susan Kuhbach, Recognition of Instituto per la Certificazione Etica e Ambientale (ICEA) as a Public Authority for Certifying Organic Pasta from Italy (February 28, 2006), which is on file in the CRU.

11.  See Letter from Maplegrove to the Department, Objection to the Changed Circumstances Review and Intent to Revoke, in Part, with Respect to Gluten-Free Pasta (December 27, 2010), which is on file in the CRU.

12.  See Letter from Yasmin Nair, Program Manager, AD/CVD Operations Office 1, to Maplegrove (March 1, 2011), which is on file in the CRU.

13.  See Heinz Letter (citing Wooden Bedroom Furniture from the People's Republic of China: Final Results of Changed Circumstances Review and Determination to Revoke Order in Part, 74 FR 8506 (February 25, 2009) (“Wooden Bedroom Furniture”)).

14.  See Letter from Yasmin Nair, Program Manager, Office 1, AD/CVD Operations, to All Interested Parties (March 31, 2011), which is on file in the CRU.