2010-23352. Certain Pasta From Italy: Notice of Initiation of Changed Circumstances Review and Consideration of Revocation of Order, in Part

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On July 29, 2010, the Department of Commerce (“Department”) received a request from H.J. Heinz Company (“Heinz”), an importer of subject merchandise, for a changed circumstances review and a request to revoke, in part, the countervailing duty order on certain pasta from Italy with respect to gluten-free pasta. Based on sufficient evidence submitted by Heinz, and in accordance with sections 751(b)(1) and (d)(1) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.216, the Department has determined that changed circumstances sufficient to warrant a review exist. Interested parties are invited to submit comments, as provided below.

DATES:

Effective Date: September 17, 2010.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

On July 24, 1996, the Department published in the Federal Register the countervailing duty order on pasta from Italy. See Notice of Countervailing Duty Order and Amended Final Affirmative Countervailing Duty Determination: Certain Pasta From Italy, 61 FR 38543 (July 24, 1996). On July 29, 2010, the Department received a request on behalf of Heinz, an importer of subject merchandise, for a changed circumstances review to revoke, in part, the countervailing duty order on certain pasta from Italy with respect to 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. See Memorandum from Eric B. Greynolds to Melissa G. Skinner, dated August 4, 2004, which is on file in the Department's Central Records Unit (“CRU”) in Room 1117 of the main Department building. In addition, 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. See Memorandum from Audrey Twyman to Susan Kuhbach, dated February 28, 2006, entitled “Recognition of Instituto per la Certificazione Etica e Ambientale (ICEA) as a Public Authority for Certifying Organic Pasta from Italy” which is on file in the Department's CRU.

The merchandise subject to review 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.

Scope Rulings

The Department has issued the following scope rulings to date:

(1) On August 25, 1997, the Department issued a scope ruling finding 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 (“AD”) and CVD orders. See Memorandum from Edward Easton to Richard Moreland, dated August 25, 1997, which is on file in 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 AD and CVD orders. See Letter from Susan H. Kuhbach to Barbara P. Sidari, dated July 30, 1998, which is on file in the CRU.

(3) 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 AD and CVD 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 AD and CVD orders. See Memorandum from John Brinkmann to Richard Moreland, dated May 24, 1999, which is on file in the CRU.

(4) 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 AD and CVD 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 on the Antidumping and Countervailing Duty Orders, 65 FR 26179 (May 5, 2000). On September 19, 2003, we published an affirmative finding in 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).

Initiation of Changed Circumstances Review, and Consideration of Revocation of Order, in Part

Pursuant to section 751(b) of the Act, the Department will conduct a changed circumstances review upon receipt of a request from an interested party or receipt of information concerning an AD or CVD order which shows changed circumstances sufficient to warrant a review of the order. On July 29, 2010, Heinz cited in its request that subsequent administrative reviews of certain pasta from Italy indicate that the petitioners had focused on pasta made from durum wheat, semolina and wheat grain, rather than gluten-free pasta which is manufactured with corn, rice and other gluten free flour as its primary ingredients.^[1] Moreover, Heinz's request also states that the petitioners have previously indicated that they have no interest in including gluten-free pasta in the scope of the AD order because gluten-free pasta appeals to a niche consumer segment with limited commercial interest. Based on sufficient evidence provided by Heinz, and in accordance with sections 751(b)(1) and (d)(1) of the Act, and 19 CFR 351.216, the Department has determined that changed circumstances sufficient to warrant a review exist. Therefore, the Department is initiating a changed circumstances review of certain pasta from Italy to determine whether partial revocation of the countervailing duty order is warranted with respect to gluten-free pasta. Section 782(h)(2) of the Act and 19 CFR 351.222(g)(1)(i) provide that the Department may revoke an order (in whole or in part) if it determines that producers accounting for substantially all of the production of the domestic like product have no further interest in the order, in whole or in part.

Public Comment

Interested parties are invited to comment on the notice of initiation of changed circumstance review and consideration of revocation of order, in part. Written comments may be submitted no later than 14 days after the date of publication of this initiation. Rebuttals to written comments, limited to issues raised in such comments, may be filed no later than 20 days after the date of publication of this initiation. The Department will issue the final results of this changed circumstances review, which will include its analysis of any written comments, no later than 270 days after the date on which this review was initiated, or within 45 days if all parties agree to the outcome of the review. See 19 CFR 351.216(e) and 19 CFR 351.221.

This initiation of review and notice are in accordance with sections 751(b) and 777(i) of the Act and 19 CFR 351.216, 351.221, and 351.222.

Dated: September 13, 2010.

Susan H. Kuhbach,

Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.

Footnotes

1.  The petitioners are New World Pasta Company, American Italian Pasta Company, and Dakota Growers Pasta Company. In addition, See Certain Pasta from Italy: Notice of Final Results of Antidumping Duty Changed Circumstances Review and Revocation, in Part, 74 FR 41120 (August 14, 2009).