[Federal Register Volume 69, Number 27 (Tuesday, February 10, 2004)]
[Notices]
[Pages 6255-6258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2862]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-475-818]


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

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of Final Results of Antidumping Duty Administrative 
Review and Determination Not to Revoke in Part.

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SUMMARY: On August 7, 2003, the Department of Commerce published the 
preliminary results and partial rescission of the sixth administrative 
review and intent not to revoke the order in part, for the antidumping 
duty order on certain pasta from Italy. The review covers ten 
manufacturers/exporters of the subject merchandise: (1) Pastificio 
Guido Ferrara S.r.l. (``Ferrara''), (2) Pastificio Lucio Garofalo 
S.p.A. (``Garofalo''), (3) Pasta Lensi S.r.l. (``Lensi')\1\, (4) 
Industria Alimentare Colavita, S.p.A. (``Indalco'') and its affiliate 
Fusco S.r.l. (``Fusco'') (collectively ``Indalco''), (5) PAM S.p.A. 
(``PAM''), (6) Pastificio Fratelli Pagani S.p.A. (``Pagani''), (7) 
Pastificio Antonio Pallante S.r.l. (``Pallante'') and its affiliate 
Industrie Alimentari Molisane S.r.l (``IAM'') (collectively 
``Pallante''), (8) Rummo S.p.A. Molino e Pastificio (``Rummo''), (9) 
Molino e Pastificio Tomasello S.r.l. (``Tomasello''), and (10) 
Pastificio Zaffiri S.r.l. (``Zaffiri''). The period of review (``POR'') 
is July 1, 2001, through June 30, 2002.
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    \1\ The Department determined that Lensi is the successor-in-
interest to Italian American Pasta Company Italia S.r.l. (``IAPC''), 
and that Lensi retains the antidumping and countervailing duty 
deposit rates assigned to IAPC by the Department in the most 
recently completed antidumping and countervailing duty 
administrative reviews. See Notice of Final Results of Antidumping 
and Countervailing Duty Changed Circumstances Reviews: Certain Pasta 
from Italy, 68 FR 41553 (July 14, 2003).
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    As a result of our analysis of the comments received, these final 
results differ from the preliminary results. For our final results, we 
have found that during the POR, Garofalo, Indalco, PAM, Tomasello, and 
Zaffiri, sold subject merchandise at less than normal value (``NV''). 
We have also found that Ferrara, Pallante, Pagani, Lensi and Rummo did 
not make sales of the subject merchandise at less than NV (i.e., they 
had ``zero'' or de minimis dumping margins). We have also determined 
not to revoke the antidumping duty order with respect to subject 
merchandise produced and also exported by Pagani. The final results are 
listed in the section ``Final Results of Review'' below.

EFFECTIVE DATE: February 10, 2004.

FOR FURTHER INFORMATION CONTACT: Alicia Kinsey or Mark Young, AD/CVD 
Enforcement Office VI, Import Administration, International Trade 
Administration, U.S. Department of Commerce, Washington, D.C. 20230; 
telephone: (202) 482-4793 or (202) 482-6397, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On August 7, 2003, the Department published the preliminary results 
of the sixth 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 Not to 
Revoke in Part: For the Sixth Administrative Review of the Antidumping 
Duty Order on Certain Pasta from Italy, 68 FR 47020 (August 7, 2003) 
(``Preliminary Results''). Although the Department initiated the review 
of twelve companies, we rescinded the review of two of those companies. 
See Partial Rescission section of the Preliminary Results for a more 
detailed explanation. The review covers the remaining ten 
manufacturers/exporters. We invited parties to comment on our 
Preliminary Results. Petitioners\2\ filed case briefs on September 24, 
2003, regarding Rummo, Ferrara, Zaffiri, Garofalo, Indalco, and Pagani. 
On September 22 through September 24, 2003, PAM, Tomasello, Zaffiri, 
Lensi, Garofalo, and Rummo filed case briefs. On October 1, 2003, 
petitioners, Ferrara, Indalco, Pagani, Zaffiri, Garofalo, and Rummo 
submitted rebuttal briefs. On October 21, 2003, a public hearing was 
held at the Department of Commerce with respect to PAM. On November 21, 
2003, the Department published the extension of final results of the 
antidumping administrative review of pasta from Italy. See Certain 
Pasta from Italy: Extension of Final Results of Antidumping 
Administrative Review, 68 FR 65679 (November 21, 2003).
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    \2\ Petitioners are New World Pasta Company, Dakota Growers 
Pasta Company, Borden Foods Corporation and American Italian Pasta 
Company.
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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 organic pasta from Italy that are accompanied by the 
appropriate certificate issued by the Instituto Mediterraneo Di 
Certificazione, by Bioagricoop Scrl, by QC&I International

[[Page 6256]]

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 Office 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, 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 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). On September 19, 2003, we published an affirmative 
finding on 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).

Intent Not to Revoke Order

    For the reasons outlined in the ``Issues and Decision Memorandum'' 
(``Decision Memo'') from Holly A. Kuga, Acting Deputy Assistant 
Secretary for Import Administration, to James J. Jochum, Assistant 
Secretary for Import Administration, dated February 3, 2004, which is 
hereby adopted by this notice, we have determined not to revoke the 
antidumping duty order with respect to subject merchandise produced and 
also exported by Pagani because Pagani failed to demonstrate that for 
three consecutive years it sold the subject merchandise to the United 
States in commercial quantities in accordance with 19 CFR 351.222(e).

Use of Adverse Facts Available

    As discussed in detail in the Preliminary Results, we have 
determined to use facts otherwise available for PAM, in arriving at the 
final dumping margin; and as noted in the Preliminary Results, we 
determine that, in accordance with sections 776(a) and (b) of the Act, 
the use of adverse facts available is appropriate for PAM, who failed 
verification. The Department received comments from PAM and 
petitioners. The comments are addressed in the Decision Memo. As a 
result of our analysis of the arguments presented in the briefs, the 
Department confirms its decision to use adverse facts available to 
arrive at the final dumping margin for PAM.

Use of Partial Facts Available

    There were several errors in Indalco's reporting of its selling 
expenses, and Indalco did not bring these errors to the Department's 
attention until after Indalco's submission of minor corrections at 
verification. Consequently, in the Preliminary Results, we applied 
partial facts available to determine Indalco's dumping margin. See also 
Memorandum to Eric Greynolds, Program Manager, from Mark Young and 
Tipten Troidl, Case Analysts, Re: Verification of the Sales Response of 
Industria Alimentare Colavita, S.p.A. (``INDALCO'') and Fusco S.r.l. 
(``Fusco'') in the 01/02 Administrative Review of the Antidumping Duty 
Order of Certain Pasta from Italy, which is available in the CRU. We 
received no comments on this issue. Therefore, pursuant to section 
776(a)(2)(A) of the Act, we continue to apply partial facts otherwise 
available to determine Indalco's dumping margin in the final results.

Analysis of Comments Received

    All issues raised in the case and rebuttal brief by parties to this 
administrative review are addressed in the Decision Memo, 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 Memo, is 
attached to this notice as an Appendix. In addition, a complete version 
of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov. The paper copy and electronic version of the Decision 
Memo are identical in content.

Final Results of Review

    We determine that the following weighted-average margins exist for 
the period July 1, 2001, through June 30, 2002:

[[Page 6257]]



------------------------------------------------------------------------
               Manufacturer/exporter                   Margin (percent)
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Ferrara............................................                 0.24
Garofalo...........................................                 2.55
Lensi..............................................                 0.36
Indalco............................................                 2.85
Pagani.............................................                 0.21
Pallante...........................................                 0.12
PAM................................................                45.49
Rummo..............................................                 0.94
Tomasello..........................................                 4.59
Zaffiri............................................                 7.23
All Others.........................................                11.26
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Assessment

    The Department shall determine, and U.S. Customs and Border 
Protection (``CBP'') shall assess, antidumping duties on all 
appropriate entries. In accordance with 19 CFR 351.212(b), we have 
calculated exporter/importer-specific duty assessment rates by 
aggregating the dumping margins for the examined U.S. sales for each 
importer and dividing the amount by the total entered value of the 
sales for that importer. In situations in which the importer-specific 
assessment rate is above de miminis, we will instruct CBP to assess 
antidumping duties on that importer's entries of subject merchandise. 
The Department will issue appropriate assessment instructions directly 
to CBP within 15 days of publication of these final results of review.

Cash Deposit Requirements

    The following deposit requirements will be effective upon 
publication of this notice of final results of the administrative 
review for all shipments of pasta from Italy entered, or withdrawn from 
warehouse, for consumption on or after the date of publication of these 
final results, 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 
CBP 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 less than fair value 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 less than fair value 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 may result in the Secretary's 
presumption that reimbursement of antidumping and/or countervailing 
duties occurred and the subsequent increase in antidumping duties by 
the amount of antidumping and/or countervailing duties reimbursed.
    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 751(a)(1) and 777(i)(1) of the Act.

    Dated: February 3, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.

Appendix I

List of Comments and Issues in the Decision Memorandum

List of Comments:

Pasta Lensi S.r.l.

Comment 1: Clerical Error
Comment 2: Exclusion of Sales of Pasta Produced by Other Manufacturers

Industria Alimentare Colavita, S.p.A. and Fusco S.r.l.

Comment 3: Clerical Error
Comment 4: Disallowed Credit
Comment 5: Credit Amortization
Comment 6: Double Counted Amortization
Comment 7: Offsetting Positive Margins
Comment 8: Calculation of Entry Value

PAM S.p.A.

Comment 9: Rescission of the Administrative Review
Comment 10: Department's Application of Adverse Facts Available 
(``AFA'')
Comment 11: The Reasonableness of the AFA Rate Applied by the 
Department

Pastificio Fratelli Pagani S.p.A.

Comment 12: Revocation

Rummo S.p.A. Molino e Pastificio

Comment 13: Treatment of Rummo USA's Customer's Note Receivable as a 
Rebate
Comment 14: Reimbursement of Antidumping Duties
Comment 15: Error in the Home Market Credit Expense Calculation
Comment 16: Inconsistencies in Rummo's Reporting of Certain Sales of 
Subject Merchandise
Comment 17: Exclusion of Political Contributions from General & 
Administrative Expenses (``G&A'') Expense Ratio

Molino e Pastificio Tomasello S.r.l.

Comment 18: Incorrect Denominator Used in Calculation of U.S. Credit 
Expense
Comment 19: Calculation of Packing Costs for Home Market Net Prices
Comment 20: Calculation of DIRSEL3U for One U.S. Invoice
Comment 21: Change in Wheat Inventory
Comment 22: Pasta Scrap Production
Comment 23: Cost of Goods Sold (``COGS'') used in the G&A and Interest 
Expense Ratio Calculation
Comment 24: Other G&A and Interest Adjustments

Pastificio Lucio Garofalo S.p.A.

Comment 25: The Department Should Collapse Garofalo and Amato
Comment 26: The Department Should Not Accept Garofalo's Definition of a 
Third Wheat Code
Comment 27: Matching of Wheat Codes
Comment 28: Subtracting DISCREBH from NETPRICOP
Comment 29: Incorporation of Only Home Market Sales that Passed the 
Cost Test
Comment 30: Revised Interest Amounts Should be Used in the Calculation 
of Constructed Value (``CV'')
Comment 31: Conversion of Home Market Sales Data into Italian Lire 
rather than to Euros
Comment 32: Semolina Purchases
Comment 33: Failure to Include Commingled Sales in Garofalo's Margin 
Calculation
Comment 34: Use of Wrong Affiliated Party Arm's Length Test
Comment 35: Non-Use of Revised Total Cost of Manufacturing 
(``RTOTCOM'')

[[Page 6258]]

Pastificio Zaffiri S.r.l.

Comment 36: Proper Matching of Zaffiri's Sales at the Same Level of 
Trade (``LOT'')
Comment 37: Calculation of Imputed Credit Expense
Comment 38: Treatment of Piazzista Expenses
Comment 39: Treatment of the U.S. Billing Adjustment
Comment 40: Treatment of Free Pasta Program in the United States
Comment 41: Currency Conversions in Computer Program
Comment 42: Purchased Pasta
Comment 43: By-product Revenue Offset in the COGS Denominator of the 
Interest Expense and G&A Expense Ratios
Comment 44: Packing Cost in the COGS Denominator of the G&A and 
Interest Expense Ratios
Comment 45: Trade Show Revenue as Offset to G&A Expense
Comment 46: Foreign Exchange Loss
Comment 47: Expenses on Invoice Payables and Loss on Sale of Assets
Comment 48: Packing Costs

Pastificio Guido Ferrara S.r.l.

Comment 49: Offset to Ferrara's Depreciation for Italian Subsidies
Comment 50: Offset to Fixed Overhead Relating to Ferrara's Performance 
Bond Claim
Comment 51: Use of ``Die Type'' as a Product Matching Hierarchy
[FR Doc. 04-2862 Filed 2-9-04; 8:45 am]
BILLING CODE 3510-DS-S