[Federal Register Volume 77, Number 158 (Wednesday, August 15, 2012)]
[Notices]
[Pages 48964-48965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19954]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-475-818]


Certain Pasta From Italy: Notice of Court Decision Not in Harmony 
With Final Results of Administrative Review and Notice of Amended Final 
Results of Administrative Review Pursuant to Court Decision

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

SUMMARY: On July 31, 2012, the United States Court of International 
Trade (CIT) affirmed the Department of Commerce's (the Department's) 
results of third redetermination pursuant to the CIT's remand in Atar, 
S.r.l. v. United States, 791 F. Supp. 2d 1368 (CIT 2011) (Atar III).\1\
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    \1\ See Atar S.r.l. v. United States, Court No. 07-86, Slip Op. 
12-101 (CIT July 31, 2012) (Atar IV); Final Results of Third 
Redetermination Pursuant to Court Remand, dated December 5, 2011 
(Third Remand Redetermination) (found at http://ia.ita.doc.gov/remands). The CIT's prior decisions in this case can be found at 
Atar S.r.l. v. United States, 637 F. Supp. 2d 1068 (CIT 2009) (Atar 
I) and Atar, S.r.l. v. United States, 703 F. Supp. 2d 1359 (CIT 
2010) (Atar II).
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    Consistent with the decision of the United States Court of Appeals 
for the Federal Circuit (CAFC) in Timken Co. v. United States, 893 F.2d 
337 (CAFC 1990) (Timken) as clarified by Diamond Sawblades Mfrs. 
Coalition v. United States, 626 F.3d 1374 (CAFC 2010) (Diamond 
Sawblades), the Department is notifying the public that the final CIT 
judgment in this case is not in harmony with the Department's final 
determination and is amending the final results of the ninth 
administrative review of the antidumping duty order on certain pasta 
from Italy with respect to the margin assigned to Atar S.r.L. (Atar) 
covering the period of review July 1, 2004, through June 30, 2005.\2\
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    \2\ See Notice of Final Results of the Ninth Administrative 
Review of the Antidumping Duty Order on Certain Pasta from Italy, 72 
FR 7011 (February 14, 2007) (Final Results), and accompanying Issues 
and Decision Memorandum (Decision Memorandum).

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DATES: Effective Date: August 10, 2012.

FOR FURTHER INFORMATION CONTACT: Dennis McClure, AD/CVD Operations, 
Office 3, Import Administration--International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue NW., 
Washington, DC 20230; telephone (202) 482-5973.

SUPPLEMENTARY INFORMATION:

Background

    On February 14, 2007, the Department published its final results of 
the ninth administrative review of the antidumping duty order on 
certain pasta from Italy.\3\ The period covered by the review was July 
1, 2004, through June 30, 2005.
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    \3\ See Final Results.
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    Atar challenged the Department's Final Results. After a full 
briefing of all the issues, on June 5, 2009, the Court upheld the 
Department's Final Results, except with respect to its calculation of 
Atar's constructed value (CV) indirect selling expense (ISE) and profit 
rates.\4\ The Department had calculated Atar's CV ISE and profit rates 
using the weighted-average profit and indirect selling expense rates 
from sales of foreign like product sold in the home market in the 
ordinary course of trade (e.g., above-cost sales) by the six 
respondents from the prior administrative review (the eighth 
administrative review).\5\ The Court remanded the Final Results, 
directing the Department to reconsider and redetermine, as necessary, 
its calculations for Atar's CV ISE and profit rate and its exclusion 
from those calculations of the data from home market sales of the six 
respondents in the Eighth Administrative Review that occurred outside 
the ordinary course of trade, and explain why the remand 
redetermination satisfied the reasonable method requirement of section 
773(e)(2)(B)(iii) of the Tariff Act of 1930, as amended (the Act).\6\
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    \4\ See Atar I, 637 F. Supp. 2d 1092-1093.
    \5\ See Decision Memorandum at Comment 2; see also Notice of 
Final Results of Eighth Administrative Review of the Antidumping 
Duty Order on Certain Pasta From Italy and Determination to Revoke 
in Part, 70 FR 71464 (November 29, 2005) (Eighth Administrative 
Review).
    \6\ See Atar I, 637 F. Supp. 2d 1092-1093.
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    On September 3, 2009, the Department filed its first remand 
redetermination with the CIT, recalculating CV profit and ISE using a 
weighted average of the sales data from two of the six respondents in 
the prior review because only those two respondents had earned a profit 
when the Department included sales made outside the ordinary course of 
trade in the profit calculation.\7\ On April 20, 2010, the Court again 
remanded the case to the Department, holding that the Department had 
not complied with the profit cap requirement contained in section 
773(e)(2)(B)(iii) of the Act.\8\ The Court directed the Department to 
reconsider and redetermine CV profit for Atar in a way that satisfies 
both the profit cap and reasonable method requirements of section 
773(e)(2)(B)(iii) of the Act.\9\
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    \7\ See Results of Redetermination Pursuant To Court Remand 
(September 3, 2009) (First Remand Redetermination).
    \8\ See Atar II, 703 F. Supp. 2d at 1370.
    \9\ Id.
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    On July 19, 2010, the Department filed its second remand 
redetermination with the CIT.\10\ In that remand, under respectful 
protest, the Department recalculated the profit cap using data from the 
home market sales made both within and outside the ordinary course of 
trade by the only two profitable respondents in the Eighth 
Administrative Review.\11\ The profit rate calculated in the First 
Remand Redetermination did not exceed the profit cap calculated in the 
Second Remand Redetermination. Therefore, where the profit rate did not 
exceed the profit cap and the profit rate satisfied the reasonableness 
requirement of section 773(e)(2)(B)(iii) of the Act, the Department 
continued to apply the profit rate it had calculated in the First 
Remand Redetermination.\12\ Also, the CV ISE rate remained the same, as

[[Page 48965]]

recalculated in the First Remand Redetermination.
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    \10\ See Final Results of Redetermination Pursuant to Court 
Remand (July 15, 2010) (Second Remand Redetermination).
    \11\ See Second Remand Redetermination at 6.
    \12\ See Second Remand Redetermination at 7.
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    The CAFC subsequently issued a decision in Thai I-Mei Frozen Foods 
Co., Ltd. v. United States, 616 F.3d 1300 (CAFC 2010), upholding the 
Department's exclusion of sales made outside the ordinary course of 
trade in determining CV profit pursuant to the third alternative. On 
September 7, 2011, the Court again remanded this case to the 
Department.\13\ The Court held that the Second Remand Redetermination 
did not satisfy the profit cap requirement contained in section 
773(e)(2)(B)(iii) of the Act.\14\ The Court found the Department's 
construction of the statute to be unreasonable because, according to 
the Court, only a ``strained reading'' of the statute could restrict 
the profit cap calculation to data from respondents that experienced a 
profit over a significant period of time.\15\ Additionally, the Court 
held that the profit cap calculation was not supported by the record 
because the Department's calculation ignored data from home market 
sales ``that were material and probative of the general conditions in 
the home market of Italy affecting the profitability of domestic pasta 
producers operating there.'' \16\ The Court therefore directed the 
Department to submit a redetermination that complies with section 
773(e)(2)(B)(iii) of the Act and specifically incorporates a lawfully-
determined profit cap that is in accordance with all directives and 
conclusions set forth in its opinion.
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    \13\ Atar III.
    \14\ Atar III, 791 F. Supp. 2d at 1380.
    \15\ Atar III, 791 F. Supp. 2d at 1376.
    \16\ Atar III, 791 F. Supp. 2d at 1377.
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    Pursuant to the Court's remand order in Atar III, the Department 
revised the calculation of Atar's CV profit rate, the profit cap, and 
Atar's CV ISE. Specifically, the Department: (1) Calculated Atar's CV 
ISE rate by weight-averaging the ISE rates of all six of the eighth-
review respondents; (2) calculated the CV profit rate by weight-
averaging data from all six of the eighth-review respondents' home 
market sales that were made within the ordinary course of trade; and 
(3) only for purposes of the Third Remand Redetermination and under 
protest calculated the CV profit cap using the weighted-average data 
from all six of the eighth-review respondents' home market sales that 
were made both within and outside the ordinary course of trade.\17\ In 
the Third Remand Redetermination, the Department calculated a revised 
dumping margin for Atar of 11.76 percent.\18\ The CIT affirmed the 
Department's Third Remand Redetermination on July 31, 2012.\19\
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    \17\ See Third Remand Redetermination at 20-21.
    \18\ See Third Remand Redetermination at 21.
    \19\ See Atar IV.
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Timken Notice

    In its decision in Timken, 893 F.2d at 341, as clarified by Diamond 
Sawblades, the CAFC held that, pursuant to section 516A(c) of the Act, 
the Department must publish a notice of a court decision that is not 
``in harmony'' with a Department determination and must suspend 
liquidation of entries pending a ``conclusive'' court decision. The 
CIT's judgment in Atar IV on July 31, 2012, affirming the Department's 
decision in the Third Remand Redetermination constitutes a final 
decision of that court that is not in harmony with the Department's 
Final Results. This notice is published in fulfillment of the 
publication requirements of Timken. Accordingly, the Department will 
continue the suspension of liquidation of the subject merchandise 
pending the expiration of the period of appeal or, if appealed, pending 
a final and conclusive court decision.

Amended Final Results

    Because there is now a final court decision, the weighted-average 
dumping margin for Atar for the period July 1, 2004, through June 30, 
2005, is 11.76 percent. However, in accordance with the Section 129 
Determination, Atar's cash deposit rate is 0.00 percent.\20\ The 
Department will instruct U.S. Customs and Border Protection (CBP) to 
collect cash deposits for Atar at the rate indicated.
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    \20\ See Notice of Implementation of Determination Under Section 
129 of the Uruguay Round Agreements Act: Stainless Steel Plate in 
Coils From Belgium, Steel Concrete Reinforcing Bars From Latvia, 
Purified Carboxymethylcellulose From Finland, Certain Pasta From 
Italy, Purified Carboxymethylcellulose From the Netherlands, 
Stainless Steel Wire Rod From Spain, Granular 
Polytetrafluoroethylene Resin From Italy, Stainless Steel Sheet and 
Strip in Coils From Japan, 77 FR 36257, 36258 (June 18, 2012) 
(Section 129 Determination).
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    In the event the CIT's ruling is not appealed or, if appealed, 
upheld by the CAFC, the Department will instruct CBP to assess 
antidumping duties on entries of the subject merchandise during the POR 
from Atar based on the revised assessment rates calculated by the 
Department.
    This notice is issued and published in accordance with sections 
516A(c), 751(a), and 777(i)(1) of the Act.

    Dated: August 8, 2012.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. 2012-19954 Filed 8-14-12; 8:45 am]
BILLING CODE 3510-DS-P