[Federal Register Volume 67, Number 2 (Thursday, January 3, 2002)]
[Notices]
[Pages 300-303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-127]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-475-818]


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.

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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 (202) 482-3965, or (202) 482-4161, 
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.
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    \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.''
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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

[[Page 301]]

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

[[Page 302]]

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:

------------------------------------------------------------------------
                                                                Margin
                   Manufacturer/exporter                      (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

[[Page 303]]

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

[FR Doc. 02-127 Filed 1-2-02; 8:45 am]
BILLING CODE 3510-DS-P