[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:
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Margin
Manufacturer/exporter (percent)
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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
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*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