02-127. Notice of Final Results of Antidumping Duty Administrative Review, Partial Rescission of Antidumping Duty Administrative Review and Revocation of Antidumping Duty Order in Part: Certain Pasta From Italy

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of final results of antidumping duty administrative review, partial rescission of antidumping duty administrative review and revocation of antidumping duty order in part.

SUMMARY:

On June 28, 2001, the Department of Commerce (the “Department”) published the preliminary results of the administrative review of the antidumping duty order on certain pasta from Italy. This review covers the following exporters/producers of subject merchandise: (1) Barilla G.e.R. F.lli S.p.A.. (“Barilla”), (2) CO.R.EX S.p.A. (“Corex”), (3) Delverde S.p.A. and its affiliate, Tamma Industrie Alimentari di Capitanata, S.r.L. (collectively,'Delverde”), (4) Pastificio Guido Ferrara S.r.l. (“Ferrara”), (5) Pastificio F.lli Pagani S.p.A.(“Pagani”), (6) Pastificio Antonio Pallante S.r.l. and its affiliate, Industrie Alimentari Molisane S.r.l. (collectively, “Pallante”), (7) P.A.M., S.r.l. and its affiliate, Liguori (collectively, “PAM”), (8) N. Puglisi & F. Industria Paste Alimentari S.p.A. (“Puglisi”), (9) Pastificio Riscossa F.lli Mastromauro S.r.l (“Riscossa”), and (10) Rummo S.p.A. Molino e Pastificio (“Rummo”). The period of review (“POR”) is July 1, 1999, through June 30, 2000.

Based on our analysis of the comments received, these final results differ from the preliminary results. The final results are listed in the section “Final Results of Review.” For our final results, we have found that during the POR, Barilla, Ferrara, Pallante, PAM, and Riscossa sold subject merchandise at less than normal value (“NV”). We have also found that during the POR, Corex, Pagani, Puglisi and Rummo did not make sales of the subject merchandise at less than NV (i.e., they had “zero” or de minimis dumping margins). Based on a decision of the U.S. Court of Appeals for the Federal Circuit, we are rescinding the review with respect to Delverde. See Determination to Rescind section of this notice. In addition, we are revoking the antidumping order with respect to Corex and Puglisi, based on three years of sales in commercial quantities at not less than NV. See Determination to Revoke section of this notice.

EFFECTIVE DATE:

January 3, 2002.

FOR FURTHER INFORMATION CONTACT:

James Terpstra or Geoffrey Craig, AD/CVD Enforcement, Office VI, Group II, Import Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW., 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's regulations are to 19 CFR part 351 (2000).

Background

On June 28, 2001, the Department published the preliminary results of administrative review of the antidumping duty order on certain pasta from Italy. See Notice of Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review and Intent To Revoke Antidumping Duty Order in Part: Certain Pasta From Italy, 66 FR 34414 (June 28, 2001) (“Preliminary Results”). The review covers ten manufacturers/exporters. The POR is July 1, 1999, through June 30, 2000. We invited parties to comment on our preliminary results of review. We received case briefs on August 6, 2001, from Ferrara, Pallante, and PAM. On August 6, 2001, Riscossa submitted a letter with one clerical error allegation. A public hearing was not held with respect to this review.^[1] On November 1, 2001, the Department published a notice extending the final results until no later than December 25, 2001. See Certain Pasta from Italy and Turkey: Extension of Final Results of Antidumping Duty Administrative Reviews, 66 FR 55160 (November 1, 2001). We also received a letter from PAM dated December 5, 2001.^[2] The Department has conducted this administrative review in accordance with section 751 of the Act.

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 to Richard Moreland, dated August 25, 1997, in the case 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 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, 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 Act. 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 to Richard Moreland, dated May 24, 1999, which is available in the CRU.

The following scope ruling is pending:

(5) On April 27, 2000, the Department self-initiated an anti-circumvention inquiry to determine whether Pagani'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).

Verification

As provided in section 782(i) of the Act, we verified U.S. sales information provided by Puglisi's U.S. affiliate, Rienzi & Sons. We used standard verification procedures, including an examination of relevant sales and financial records. Our verification results are outlined in the Puglisi verification report placed in the case file in the CRU. We revised certain sales verification findings. See the Puglisi verification report and calculation memorandum.

Determination To Rescind

On March 12, 2001, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) reversed a ruling by the U.S. Court of International Trade (“CIT”) and issued an order remanding to the CIT the final determination of the antidumping duty less-than-fair-value (“LTFV”) investigation (covering the period from May 1, 1994 through April 31, 1995) on certain pasta from Italy. The CIT subsequently remanded the case to the Department. Delverde's LTFV margin is now de minimis. See 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, 66 FR 65889 (December 21, 2001). Therefore, because Delverde's LTFV margin is de minimis, Delverde is not subject to suspension of liquidation and has been excluded from the antidumping duty order on Pasta from Italy. We are rescinding this review with respect to Delverde because it has been excluded from the antidumping duty order.

Determination To Revoke

On July 13, 2000, and July 31, 2000, Puglisi and Corex, respectively, submitted letters to the Department requesting, pursuant to 19 CFR 351.222(b) and (e), revocation of the antidumping duty order with respect to their sales of the subject merchandise. In accordance with 19 CFR 351.222(e), on July 31, 2000 and September 13, 2000, respectively, Puglisi and Corex submitted the required certifications and agreements that they had not sold the subject merchandise at less than NV for a period of three consecutive reviews, which included this review period, and that they sold the subject merchandise in commercial quantities to the United States during each of these three years. Puglisi and Corex also have stated that they would not sell the subject merchandise at less than NV to the United States in the future, and each agreed to the reinstatement of the antidumping order with respect to its merchandise, as long as any exporter or producer is subject to the order, if the Department concludes that either Puglisi or Corex sold the subject merchandise at less than NV. See 19 CFR 351.222(e)(1)(i)-(iii).

In our preliminary results, in accordance with 19 CFR 351.222(f)(2), we stated our intent to revoke, in part, the order for certain pasta from Italy as it pertains to Corex and Puglisi sales of the subject merchandise. See Preliminary Results. No parties submitted comments on either Puglisi's or Corex's requests for revocation.

Therefore, because Puglisi has made sales at not less than NV for three consecutive reviews in commercial quantities (see Memorandum from Geoffrey Craig to File, “Shipments of Pasta to the United States by Puglisi,” dated June 21, 2001) and because there is no evidence on the record to indicate the likelihood of resumption of sales at dumped prices, we are revoking the antidumping duty order, in part, with respect to subject merchandise produced or produced and sold by Puglisi. See Certain Welded Stainless Steel Pipe From Taiwan: Final Results of Antidumping Duty Administrative Review and Determination To Revoke Order In Part, 65 FR 39367 (June 26, 2000). Also, because Corex has made sales at not less than NV for three consecutive reviews in commercial quantities (see Memorandum from Cindy Robinson to File, “Shipments of Pasta to the United States by Corex,” dated June 21, 2001) and because there is no evidence on the record to indicate continued application of the order is necessary to offset dumping, we are revoking the antidumping duty order, in part, with respect to subject merchandise produced or produced and sold by Corex. In accordance with 19 CFR 351.222(f)(3), we will terminate the suspension of liquidation for Puglisi's and Corex's merchandise entered, or withdrawn from warehouse, for consumption on or after July 1, 2000 (the first day after the period under review), and will instruct the U.S. Customs Service to release any bond and refund any cash deposit.

Use of Facts Available

In the Preliminary Results, we applied adverse facts available (“FA”) to determine Barilla's dumping margin. See Preliminary Results, at 66 FR 34116. We did not receive comments regarding this issue; therefore, pursuant to section 776(a)(2)(A) of the Act, we have continued to apply adverse FA to determine Barilla's dumping margin in the final results.

Selection of Adverse FA

Consistent with the Preliminary Results, in accordance with section 776(b) of the Act, we are assigning Barilla an adverse facts available rate of 45.59 percent. See Id. We did not receive comments with respect to the selection of this rate; therefore we have continued to apply the 45.59 percent rate for Barilla.

Analysis of Comments Received

All issues raised in the case briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum for the Fourth Antidumping Duty Administrative Review” (“Decision Memorandum”) from Bernard T. Carreau, Deputy Assistant Secretary for Import Administration, to Richard W. Moreland, Acting Assistant Secretary for Import Administration, dated concurrently with this notice, which is hereby adopted by this notice. A list of the issues which parties have raised, and to which we have responded in the Decision Memorandum, is attached to this notice as an Appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the CRU. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov. The paper copy and electronic version of the Decision Memorandum are identical in content.

Final Results of Review

As a result of our review, we determine that the following weighted-average percentage margins exist for the period July 1, 1999, through June 30, 2000:

Manufacturer/exporter	Margin (percent)
Barilla	45.59
Corex	0
Ferrara	2.03
Pagani	0
Pallante	1.78
PAM	4.10
Puglisi	*0.09
Riscossa	1.03
Rummo	*0.01
*De minimis.

Assessment

The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b), we have calculated exporter/importer-specific assessment rates by aggregating the dumping margins for all U.S. sales to each importer and dividing the amount by the total entered value of the sales to that importer. In situations in which the importer-specific assessment rate is above de miminis, we will instruct Customs to assess antidumping duties on that importer's entries of subject merchandise. We will direct Customs to assess the resulting percentage margins against the entered Customs values for the subject merchandise on each of that importer's entries under the order during the POR.

Cash Deposit Requirements

The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of certain pasta from Italy entered, or withdrawn from warehouse, for consumption on or after the date of publication, 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 Customs 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 LTFV 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 LTFV 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 or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

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 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 section 751(a)(1) and 777(i)(1) of the Act.

Dated: December 26, 2001.

Richard W. Moreland,

Acting Assistant Secretary for Import Administration.

Appendix

List of Comments and Issues in the Decision Memorandum

Ferrara

1. Billing adjustments

2. CONNUM construction

Pallante

3. Entered value calculation

4. Export subsidy rate

5. Mismatched CONNUM and shape product characteristic

6. Level of trade

PAM

7. Cost of production and constructed value data

8. Classification of certain sales as U.S. sales

9. Home market sales used in below-cost test

10. Entry-by-entry basis

11. “Zeroing” negative margins

12. Startup adjustment

13. Exchange rate conversions

14. De minimis amounts

15. Currency of transaction

16. Level of trade methodology

17. Level of trade adjustment

18. General shape methodology

19. Department's shape classification of certain cuts

20. Release of data

21. Inclusion of constructed export price language in the margin program

22. Miscellaneous

23. Accuracy of final results

Riscossa

24. Clerical error

Footnotes

1.  On July 22, 2001, PAM requested a hearing. However, instead the Department and PAM held an ex parte meeting. See Memorandum from Melissa G. Skinner to the File, “Ex Parte Meeting with Counsel for PAM S.r.l. in the Antidumping Duty Administrative Review of Certain Pasta from Italy,” dated August 22, 2001, on file in the Central Records Unit, room B-099, of the Department's main building (the “CRU”).

2.  This letter requests that the Department combine shape categories 5 (short cuts), 6 (specialty short cuts) and 7 (soupettes). PAM argues that the Department has acknowledged that it erred with respect to this issue in the judicial review of the third administrative review. In its brief to the Court of International Trade, the Department stated, “We respectfully request that the Court remand this issue to Commerce for the limited purpose of reviewing the record with regard to shape categories.” See United States' Memorandum in Opposition to Plaintiff's Motion for Judgment Pursuant to Rule 56.2,” dated November 2, 2001. PAM has inferred from this statement that “this is a clear and unequivocal statement in which the U.S. concedes that it erred in the original determination in the 98/99 administrative review.” Therefore, PAM has requested that the Department modify the final results of the current review (i.e., combine shape categories 5, 6, and 7) in light of the Department's request to the Court for a remand. To the contrary, we simply requested from the Court the opportunity “to review the record with regard to shape categories.”