Certain Pasta From Italy: Final Results of the 2009 Countervailing Duty Administrative Review, 7129-7131 [2012-3180]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 77, Number 28 (Friday, February 10, 2012)]
[Notices]
[Pages 7129-7131]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3180]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-475-819]


Certain Pasta From Italy: Final Results of the 2009 
Countervailing Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On August 8, 2011, the Department of Commerce (``Department'') 
published in the Federal Register its preliminary results of 
administrative review of the countervailing duty order on certain pasta 
from Italy for the period January 1, 2009, through December 31, 2009. 
Following the issuance of the preliminary results, Molino e Pastificio 
Tomasello S.p.A. (``Tomasello'') corrected its reported benefit amount 
for a subsidy program. We invited interested parties to comment on the 
preliminary results. Our analysis of Tomasello's correction led to a 
change in the net subsidy rate. The final net rates for Tomasello; 
Pastificio Antonio Pallante S.r.L. (``Pallante''); F.lli De Cecco di 
Filippo Fara San Martino S.p.A. (``De Cecco'') and Pastificio 
Fabianelli S.p.A. (``Fabianelli'') are listed below in the section 
entitled ``Final Results of Review.''

DATES: Effective Date: February 10, 2012.

FOR FURTHER INFORMATION CONTACT: Mahnaz Khan or Christopher Siepmann, 
AD/CVD Operations, Office 1, Import Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue NW., Washington, DC 
20230; telephone (202) 482-0914 and (202) 482-7958, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    The following events have occurred since the publication of the 
preliminary results of this review. See Certain Pasta From Italy: 
Preliminary Results of the 14th (2009) Countervailing Duty 
Administrative Review, 76 FR 48130 (August 8, 2011) (``Preliminary 
Results''). We sent a supplemental questionnaire to Tomasello on August 
12, 2011, and the Department received a response from Tomasello on 
September 8, 2011.
    On September 29, 2011, we received a case brief from Tomasello. We 
did not receive rebuttal briefs.

Period of Review

    The period of review for which we are measuring subsidies is 
January 1, 2009, through December 31, 2009.

[[Page 7130]]

Scope of the Order

    Imports covered by the order are shipments of certain non-egg dry 
pasta in packages of five pounds four ounces 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 the scope of the order 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 the order 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, Bioagricoop S.r.l., QC&I International Services, 
Ecocert Italia, Consorzio per il Controllo dei Prodotti Biologici, 
Associazione Italiana per l'Agricoltura Biologica, or Codex S.r.l. In 
addition, based on publicly available information, the Department has 
determined that, as of August 4, 2004, imports of organic pasta from 
Italy that are accompanied by the appropriate certificate issued by 
Bioagricert S.r.l. are also excluded from the order. See Memorandum 
from Eric B. Greynolds to Melissa G. Skinner, dated August 4, 2004, 
which is on file in the Department's Central Records Unit (``CRU'') in 
Room 7046 of the main Department building. In addition, based on 
publicly available information, the Department has determined that, as 
of March 13, 2003, imports of organic pasta from Italy that are 
accompanied by the appropriate certificate issued by Instituto per la 
Certificazione Etica e Ambientale are also excluded from the order. See 
Memorandum from Audrey Twyman to Susan Kuhbach, dated February 28, 
2006, entitled ``Recognition of Instituto per la Certificazione Etica e 
Ambientale (ICEA) as a Public Authority for Certifying Organic Pasta 
from Italy'' which is on file in the Department's CRU. Pursuant to the 
Department's May 12, 2011 changed circumstances review, effective 
January 1, 2009, gluten-free pasta is also excluded from the scope of 
the countervailing duty order. See Certain Pasta From Italy: Final 
Results of Countervailing Duty Changed Circumstances Review and 
Revocation, In Part, 76 FR 27634 (May 12, 2011).
    The merchandise subject to review is currently classifiable under 
items 1901.90.90.95 and 1902.19.20 of the Harmonized Tariff Schedule of 
the United States (``HTSUS''). Although the HTSUS subheadings are 
provided for convenience and customs purposes, the written description 
of the merchandise subject to the order is dispositive.

Analysis of Comments Received

    We have addressed all issues raised in Tomasello's case brief in 
the February 6, 2012 ``Issues and Decision Memorandum for the Final 
Results in the 14th Administrative Review of the Countervailing Duty 
Order on Certain Pasta from Italy'' from Christian Marsh, Deputy 
Assistant Secretary for Antidumping and Countervailing Duty Operations, 
to Paul Piquado, Assistant Secretary for Import Administration 
(``Decision Memorandum''), which is hereby adopted by this notice. 
Attached to this notice as an appendix is a list of the issues raised 
by Tomasello, to which we have responded in the Decision Memorandum. 
The Decision Memorandum is a public document and is on file 
electronically via Import Administration's Antidumping and 
Countervailing Duty Centralized Electronic Service System (``IA 
ACCESS''). Access to IA ACCESS is available in the CRU. In addition, a 
complete version of the Decision Memorandum can be accessed directly on 
the Internet at https://www.trade.gov/ia/. The signed Decision 
Memorandum and the electronic versions of the Decision Memorandum are 
identical in content.

Changes Since the Preliminary Results

    Based on our analysis of the information and comments received, we 
have revised the calculations with respect to the benefit amount 
calculated for Measure 3.14 for Tomasello. Further, we have determined 
that Measure 3.14, which was found regionally specific in the 
Preliminary Results, is instead specific on the basis of adverse facts 
available due to the Italian government's failure to provide de facto 
specificity information for this program. We have also determined that 
Tomasello did not receive any benefits under Regional Law 15/1993 
during the POR, and have modified our net subsidy rate accordingly. 
These changes are discussed in detail in the Decision Memorandum.

Use of Facts Otherwise Available and Adverse Inferences

    Sections 776(a)(1) and (2) of the Tariff Act of 1930, as amended 
(``the Act''), provide that the Department shall apply ``facts 
otherwise available'' if necessary information is not on the record or 
an interested party or any other person: (A) Withholds information that 
has been requested; (B) fails to provide information within the 
deadlines established, or in the form and manner requested by the 
Department, subject to subsections (c)(1) and (e) of section 782 of the 
Act; (C) significantly impedes a proceeding; or (D) provides 
information that cannot be verified as provided by section 782(i) of 
the Act. Section 776(b) of the Act further provides that the Department 
may use an adverse inference in applying the facts otherwise available 
when a party has failed to cooperate by not acting to the best of its 
ability to comply with a request for information.
    In the Preliminary Results, we found grants under Measure 3.14 to 
be specific within the meaning of section 771(5A)(D)(iv) of the Act 
upon preliminarily determining that Government of Italy limits benefits 
under this program to companies in certain regions. See Preliminary 
Results, 76 FR at 48135-36. Upon reevaluation of Measure 3.14 for these 
final results, we find that the Government of Italy failed to respond 
to our request for usage information regarding this program. We 
requested this information twice, in supplemental questionnaires dated 
May 12, 2011, and June 17, 2011. As explained above, in cases where 
there is not enough information on the record for us to determine 
whether a program is specific (see section 776(a)(1) of the Act), and 
in cases where an interested party fails to provide information that 
has been requested by the Department by the deadline for the submission 
of that information (see section 776(a)(2)(B) of the Act), we use facts 
otherwise available. Furthermore, an adverse inference is warranted 
under section 776(b) of the Act where a party fails to cooperate by not 
acting to the best of its ability to comply with a request for 
information from the Department. Because the Government of Italy failed 
to respond to our request for usage information regarding Measure 3.14, 
we find application of adverse facts available to be warranted. 
Therefore, we determine as adverse facts available that the assistance 
received by Tomasello under Measure 3.14 is specific. For a full 
discussion of this issue, see Decision Memorandum at ``Analysis of 
Programs'' and Comment 2.

Final Results of Review

    In accordance with 19 CFR 351.221(b)(5), we calculated individual 
subsidy rates for the mandatory respondents, De Cecco, Fabianelli, 
Pallante, and Tomasello. For the period January 1, 2009, through 
December 31,

[[Page 7131]]

2009, we find that the ad valorem net subsidy rates for the producers/
exporters under review are as follows:

------------------------------------------------------------------------
             Producer/Exporter                    Net subsidy rate
------------------------------------------------------------------------
F.lli De Cecco di Filippo Fara San Martino  0.39% (de minimis).
 S.p.A.
Pastificio Fabianelli S.p.A...............  0.00%.
Molino e Pastificio Tomasello S.p.A.......  5.11%.
Pastificio Antonio Pallante, S.r.L........  1.00%.
------------------------------------------------------------------------

Assessment Rates

    The Department intends to issue assessment instructions to U.S. 
Customs and Border Protection (``CBP'') fifteen days after the date of 
publication of these final results. Because the net subsidy rates for 
De Cecco and Fabianelli are less than 0.5 percent and, thus, de 
minimis, the Department will instruct CBP to liquidate shipments of 
certain pasta by De Cecco and Fabianelli entered or withdrawn from 
warehouse, for consumption, from January 1, 2009, through December 31, 
2009, without regard to countervailing duties, in accordance with 19 
CFR 351.106(c). For Pallante and Tomasello, the Department will 
instruct CBP to assess countervailing duties at the net subsidy rate 
listed above.
    For all other companies that were not reviewed (except Barilla G. e 
R. F.lli S.p.A., and Gruppo Agricoltura Sana S.r.l., which are excluded 
from the order, and Pasta Lensi S.r.l., which was revoked from the 
order), the Department has directed CBP to assess countervailing duties 
on all entries between January 1, 2009, and December 31, 2009, at the 
rates in effect at the time of entry.

Cash Deposit Instructions

    Since the countervailable subsidy rate for De Cecco and Fabianelli 
is de minimis or zero, the Department will instruct CBP to continue to 
suspend liquidation of entries, but to collect no cash deposits of 
estimated countervailing duties for De Cecco and Fabianelli on all 
shipments of the subject merchandise that are entered, or withdrawn 
from warehouse, for consumption on or after the date of publication of 
the final results of this administrative review. For Tomasello and 
Pallante, the Department intends to instruct CBP to collect cash 
deposits of estimated countervailing duties in the amounts shown above.
    For all non-reviewed firms (except Barilla G. e R. F.lli S.p.A. and 
Gruppo Agricoltura Sana S.r.l., which are excluded from the order, and 
Pasta Lensi S.r.l. which was revoked from the order), we will instruct 
CBP to collect cash deposits of estimated countervailing duties at the 
most recent company-specific or all-others rate applicable to the 
company. These rates shall apply to all non-reviewed companies until a 
review of a company assigned these rates is requested. These cash 
deposit requirements, when imposed, shall remain in effect until 
further notice.

Administrative Protective Order

    This notice 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(a)(3). Timely written 
notification of return or 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 is a sanctionable violation.
    We are issuing and publishing these results in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: February 6, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.

Appendix

Comment 1: Whether the Department impeded the proceeding
Comment 2: Whether the Department failed to differentiate between 
national government programs and regional government programs
Comment 3: Whether the Department should have countervailed the 
entire benefit from Law 46/1982, Article 14 (Fondo Innovazione 
Tecnologica)
Comment 4: Whether the Department should have found Article 280 of 
Law 296/2006 and Article 23 of Legislative Decree 38/2000 to be 
specific

[FR Doc. 2012-3180 Filed 2-9-12; 8:45 am]
BILLING CODE 3510-DS-P