Notice of Final Results of New Shipper Review of the Antidumping Duty Order on Certain Pasta From Italy

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of final results of new shipper antidumping duty review.

SUMMARY:

On January 5, 2004, the Department of Commerce published the preliminary results of the new shipper review of the antidumping duty order on certain pasta from Italy. The review covers Pastificio Carmine Russo S.p.A. (“Russo”). The period of review (“POR”) is July 1, 2002, through December 31, 2002. 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” below. For our final results, we have found that during the POR, Russo sold subject merchandise at less than normal value (“NV”).

EFFECTIVE DATE:

April 9, 2004.

FOR FURTHER INFORMATION CONTACT:

Alicia Kinsey, AD/CVD Enforcement Office VI, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, Washington, DC 20230; telephone: (202) 482-4793.

SUPPLEMENTARY INFORMATION:

Background

On January 5, 2004, the Department of Commerce (“the Department”) published the preliminary results of the new shipper review of the antidumping duty order on certain pasta from Italy. See Notice of Preliminary Results of New Shipper Review of the Antidumping Duty Order on Certain Pasta from Italy, 69 FR 319 (January 5, 2004) (“Preliminary Results”). We invited parties to comment on our Preliminary Results. We received case briefs on February 4, 2004, from petitioners and Russo. On February 9, 2004, Russo submitted a rebuttal brief. As a result of delayed service of Russo's case brief, petitioners requested, and the Department granted, an extension until February 13, 2004, to submit their rebuttal brief. See February 10, 2004, Memorandum to the File from the Team, regarding Extension of Time Limit for Rebuttal Brief for Petitioners which is on file in the central records unit (“CRU”), room B-099 of the main Commerce building.

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, Senior Analyst, Office of AD/CVD Enforcement V, to Richard Moreland, Deputy Assistant Secretary, “Scope Ruling Concerning Pasta from Italy,” dated August 25, 1997, which is on 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 America, Inc., and Barilla Alimentare, S.p.A. (“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 Pastificio Fratelli Pagani S.p.A.”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 of 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).

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to this new shipper review are addressed in the Issues and Decision Memorandum (“Decision Memorandum”) from Holly A. Kuga, Acting Deputy Assistant Secretary for Import Administration, to James J. Jochum, 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. 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 the electronic version of the Decision Memorandum are identical in content.

Final Results of Review

We determine that the following weighted-average margin percentage exists for Russo for the period July 1, 2002, through December 31, 2002:

Assessment

The Department shall determine, and the 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 assessment rates by aggregating the dumping margins for all U.S. sales to each importer and dividing the amount by the total calculated entered value of the sales to that importer. In situations in which the importer-specific assessment rate is above de miminis, we will instruct the CBP to assess antidumping duties on that importer's entries of subject merchandise. We will direct the CBP to assess the resulting percentage margins against the entered value of the subject merchandise on each of that importer's entries during the POR. The Department will issue appropriate assessment instructions to CBP within 15 days of publication of the final results of this new shipper review.

Cash Deposit Requirements

The cash deposit rate for Russo will be the rate shown above, and will be effective upon publication of this notice of final results of the new shipper review, for all shipments of pasta produced by Russo entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice, as provided by section 751(a)(1) of the Act. 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 and 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 assessment of antidumping duties increased 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.

Appendix I—List of Comments and Issues in the Decision Memorandum

List of Comments

Comment 1: Clerical Error Corrections

Comment 2: Unreconciled Difference

Comment 3: Depreciation on Idled Assets

Comment 4: Financial Expense Ratio

Comment 5: Direct Material Yield Losses

Comment 6: Parent Company's G&A Expenses