45716 Federal Register / Vol. 73, No. 152 / Wednesday, August 6, 2008 / Notices 

1New World Pasta Company; Dakota Growers 

Pasta Company; and American Italian Pasta 

Company. 

2See Memorandum to Melissa Skinner, Director, 

Office 3, from Team regarding Selection of 

Respondents for Individual Review, October 15, 

2007. 

accordance with 19 CFR 356.8(a), the 

Department intends to issue assessment 

instructions to CBP on or after 41 days 

following the publication of the final 

results of review. 

The Department clarified its 

‘‘automatic assessment’’ regulation on 

May 6, 2003. See Antidumping and 

Countervailing Duty Proceedings: 

Assessment of Antidumping Duties, 68 

FR 23954 (May 6, 2003). This 

clarification will apply to entries of 

subject merchandise during the POR 

produced by the company included in 

these preliminary results for which the 

reviewed company did not know their 

merchandise was destined for the 

United States. In such instances, we will 

instruct CBP to liquidate unreviewed 

entries at the all-others rate if there is no 

rate for the intermediate company or 

companies involved in the transaction. 

Cash Deposit Requirements 

Furthermore, the following cash 

deposit requirements will be effective 

for all shipments of S4 in coils from 

Mexico entered, or withdrawn from 

warehouse, for consumption on or after 

the publication date of the final results 

of this administrative review, as 

provided by section 751(a)(2)(C) of the 

Tariff Act: (1) The cash deposit rate for 

the reviewed company will be the rate 

established in the final results of this 

review, except if the rate is less than 

0.50 percent (de minimis within the 

meaning of 19 CFR 351.106(c)(1)), the 

cash deposit will be zero; (2) for 

previously 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, or the original less than fair 

value (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 the allothers rate of 30.85 percent, which is 

the all-others rate established in the 

LTFV investigation. See Notice of 

Amended Final Determination of Sales 

at Less Than Fair Value and 

Antidumping Duty Order; Stainless 

Steel Sheet and Strip in Coils from 

Mexico, 64 FR 40560 (July 27, 1999). 

These deposit requirements, when 

imposed, shall remain in effect until 

publication of the final results of the 

next administrative review. 

Notification to Importers 

This notice serves as a preliminary 

reminder to importers of their 

responsibility under 19 CFR 

351.402(f)(2) to file a certificate 

regarding the reimbursement of 

antidumping 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 double antidumping duties. 

We are issuing and publishing this 

notice in accordance with sections 

751(a)(1) and 777(i) of the Tariff Act. 

Dated: July 30, 2008. 

David M. Spooner, 

Assistant Secretary for Import 

Administration. 

[FR Doc. E8–17987 Filed 8–5–08; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

International Trade Administration 

[A–475–818] 

Certain Pasta From Italy: Notice of 

Preliminary Results of Eleventh 

Antidumping Duty Administrative 

Review 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

SUMMARY: In response to requests by 

interested parties, the Department of 

Commerce (‘‘the Department’’) is 

conducting an administrative review of 

the antidumping duty order on certain 

pasta (‘‘pasta’’) from Italy for the period 

of review (‘‘POR’’) July 1, 2006, through 

June 30, 2007. This review covers four 

producers/exporters of subject 

merchandise. We preliminarily 

determine that during the POR, 

respondents sold subject merchandise at 

less than normal value (‘‘NV’’). If these 

preliminary results are adopted in the 

final results of this administrative 

review, we will instruct U.S. Customs 

and Border Protection (‘‘CBP’’) to assess 

antidumping duties on all appropriate 

entries of subject merchandise during 

the POR. 

Interested parties are invited to 

comment on these preliminary results. 

EFFECTIVE DATE: August 6, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Hargett (Divella) or 

Stephanie Moore (Zara) , 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) 482–4161 or (202) 482–

3692, respectively. 

SUPPLEMENTARY INFORMATION: 

Background 

On July 24, 1996, the Department 

published in the Federal Register the 

antidumping duty order on pasta from 

Italy. 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). 

On July 3, 2007, the Department 

published a notice of opportunity to 

request an administrative review of the 

antidumping duty order on certain pasta 

from Italy. See Antidumping or 

Countervailing Duty Order, Finding, or 

Suspended Investigation: Opportunity 

to Request Administrative Review, 72 

FR 36420 (July 3, 2007). We received 

requests for review from petitioners 1

and from individual Italian exporters/ 

producers of pasta, in accordance with 

19 CFR 351.213(b)(1) and (2). On August 

24, 2007, the Department published the 

notice of initiation of this antidumping 

duty administrative review covering the 

period July 1, 2006, through June 30, 

2007, listing the following companies as 

respondents: Atar S.r.L. (‘‘Atar’’), 

Domenico Paone fu Erasmo S.p.A., F. 

Divella SpA (‘‘Divella’’), Industria 

Alimentare Colavita S.p.A., and Pasta 

Zara SpA 1 (‘‘Zara 1’’) and Pasta Zara 

SpA 2 (‘‘Zara 2’’) (collectively, ‘‘Zara’’), 

Pastificio Carmine Russo, Pastificio Di 

Martino Gaetano & F. lli SrL., Pastificio 

Felicetti SrL, Pastificio Fratelli Pagani 

S.p.A., Pastificio Russo di Cicciano, 

Rummo S.p.A. Molino e Pastificio, and 

Valdigrano Di Flavio Pagani SrL. See 

Initiation of Antidumping and 

Countervailing Duty Administrative 

Reviews and Request for Revocation in 

Part, 72 FR 48613 (August 24, 2007) 

(‘‘Initiation Notice’’). 

On October 15, 2007, due to the 

significant number of requests received 

and then current resource constraints, 

the Department selected the three 

exporters/producers accounting for the 

largest volume of exports—Atar, Divella, 

and Zara, as mandatory respondents.2

The following companies selfrequested that the Department conduct 

an administrative review: Atar, 

Domenico Paone fu Erasmo S.p.A., 

Industria Alimentare Colavita S.p.A., 

Pastificio Carmine Russo, Pastificio 

Fratelli Pagani S.p.A. [sic], Pastificio 

Russo di Cicciano, Rummo S.p.A. 

Molino e Pastificio, and Valdigrano Di 

Flavio Pagani SrL. The companies 

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Federal Register / Vol. 73, No. 152 / Wednesday, August 6, 2008 / Notices 45717 

3See Certain Pasta from Italy: Notice of Partial 

Rescission of Antidumping Duty Administrative 

Review, 72 FR 69662 (December 10, 2007). 

4See Memoranda from the Team to Melissa 

Skinner, ‘‘Petitioners’ Allegation of Sales Below the 

Cost of Production for F. Divella SpA’’ and 

‘‘Petitioners’ Allegation of Sales Below the Cost of 

Production for Pasta Zara SpA,’’ dated January 18, 

2008. 

subsequently timely withdrew their 

request for review. Therefore, on 

December 10, 2007, the Department 

rescinded the review with respect to 

these companies.3

On January 18, 2008, the Department 

initiated an investigation to determine 

whether Divella and Zara were selling 

pasta in Italy at prices below the cost of 

production (‘‘COP’’).4

Between August 2006 and May 2007, 

the Department issued its initial 

questionnaire and supplemental 

questionnaires to each respondent, as 

applicable. We received responses to the 

Department’s initial and supplemental 

questionnaires on December 12, 2007, 

February 15, 2008, March 31, 2008, 

April 14, 2008, May 5, 2008, and July 

3, 2008, from Divella. Zara provided 

responses to the Department’s initial 

and supplemental questionnaires on 

December 12, 2007, April 8, 2008, May 

27, 2008, and July 1, 2008. On January 

2, 2008, and March 6, 2008, and March 

27, 2008, and May 29, 2008, the 

petitioners filed comments on Divella’s 

responses. On January 14, 2008, March 

7, 2008, and on May 21, 2008, 

petitioners filed comments on Zara’s 

responses. On March 12, 2008, the 

Department fully extended the due date 

for the preliminary results of review 

from April 1, 2008, to July 30, 2008. See 

Certain Pasta from Italy: Extension of 

Time Limits for the Preliminary Results 

of Eleventh Antidumping Duty 

Administrative Review, 73 FR 13208 

(March 12, 2008). 

Scope of the Order 

Imports covered by this 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 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 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, 

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 Instituto per la Certificazione Etica e 

Ambientale (‘‘ICEA’’) are also excluded 

from this order. See Memorandum from 

Audrey Twyman to Susan Kuhbach, 

dated February 28, 2006, ‘‘Recognition 

of Instituto per la Certificazione Etica e 

Ambientale.’’

The merchandise subject to this order 

is currently classifiable under 

subheadings 1901.90.95 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. 

Product Comparisons 

In accordance with section 771(16) of 

the Tariff Act of 1930, as amended (‘‘the 

Act’’), we first attempted to match 

contemporaneous sales of products sold 

in the United States and comparison 

markets that were identical with respect 

to the following characteristics: (1) Pasta 

shape; (2) type of wheat; (3) additives; 

and (4) enrichment. When there were no 

sales of identical merchandise in the 

comparison market to compare with 

U.S. sales, we compared U.S. sales with 

the most similar product based on the 

characteristics listed above, in 

descending order of priority. When 

there were no appropriate comparison 

market sales of comparable 

merchandise, we compared the 

merchandise sold in the United States to 

constructed value (‘‘CV’’), in accordance 

with section 773(a)(4) of the Act. 

For purposes of the preliminary 

results, where appropriate, we have 

calculated the adjustment for 

differences in merchandise based on the 

difference in the variable cost of 

manufacturing (‘‘VCOM’’) between each 

U.S. model and the most similar home 

market model selected for comparison. 

Comparisons to Normal Value 

To determine whether sales of certain 

pasta from Italy were made in the 

United States at less than NV, we 

compared the export price (‘‘EP’’) or 

constructed export price (‘‘CEP’’) to the 

NV, as described in the ‘‘Export Price/ 

Constructed Export Price’’ and ‘‘Normal 

Value’’ sections of this notice. In 

accordance with section 777A(d)(2) of 

the Act, we calculated monthly 

weighted-average prices for NV and 

compared these to individual U.S. 

transactions. See the Department’s 

‘‘Calculation Memorandum for F. 

Divella S.p.A.’’ (‘‘Divella’s calculation 

memo’’) see also ‘‘Calculation 

Memorandum for Pasta Zara S.p.A.’’

(‘‘Zara’s calculation memo’’), both dated 

July 30, 2008, available in the Central 

Records Unit (CRU) in Room 1117 of the 

Main Commerce Building. 

Export Price/Constructed Export Price 

For the price to the United States, we 

used, as appropriate, EP or CEP, in 

accordance with sections 772(a) and (b) 

of the Act. We calculated EP when the 

merchandise was sold by the producer 

or exporter outside of the United States 

directly to the first unaffiliated 

purchaser in the United States prior to 

importation and when CEP was not 

otherwise warranted based on the facts 

on the record. We calculated CEP for 

those sales where a person in the United 

States, affiliated with the foreign 

exporter or acting for the account of the 

exporter, made the sale to the first 

unaffiliated purchaser in the United 

States of the subject merchandise. We 

based EP and CEP on the packed costinsurance-freight (‘‘CIF’’), ex-factory, 

free-on-board (‘‘FOB’’), or delivered 

prices to the first unaffiliated customer 

in, or for exportation to, the United 

States. When appropriate, we reduced 

these prices to reflect discounts and 

rebates. 

In accordance with section 772(c)(2) 

of the Act, we made deductions, where 

appropriate, for movement expenses 

including inland freight from plant or 

warehouse to port of exportation, 

foreign brokerage, handling and loading 

charges, export duties, international 

freight, marine insurance, U.S. inland 

freight expenses, warehousing, and U.S. 

duties. In addition, when appropriate, 

we increased EP or CEP as applicable, 

by an amount equal to the 

countervailing duty rate attributed to 

export subsidies in the most recently 

completed countervailing duty 

administrative review, in accordance 

with section 772(c)(1)(C) of the Act. 

Zara’s U.S. sales are made through 

Zara USA, an affiliated subsidiary in the 

United States. Zara argues that its U.S. 

sales should be treated as EP because 

the pasta is shipped directly from Italy 

to the U.S. customer, and that Zara 

USA’s role is minimal as it has no 

employees and its functions are 

performed by an accountant/consultant. 

Zara states that Zara USA is the 

importer of record, and that Zara USA 

receives an invoice from the U.S. 

customs broker, which it then pays. 

Zara USA invoices the unaffiliated U.S. 

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45718 Federal Register / Vol. 73, No. 152 / Wednesday, August 6, 2008 / Notices 

5See AK Steel Corporation v. United States, 226 

F.3d 1361, 1370–1371 (Fed. Cir. 2000) (‘‘AK Steel’’). 

6See AK Steel, 226 F.3d at 1370: ‘‘the critical 

difference between EP and CEP sales is whether the 

sale or transaction takes place inside or outside the 

United States and whether it is made by an 

affiliate.’’ See also id at 1371: ‘‘The location of the 

sale and the identity of the seller are critical to 

distinguishing between {EP and CEP}.’’

7See AK Steel, 226 F.3d at 1371. 

8Corus Staal BV et al. v. United States, 2006 Ct. 

Intl. Trade LEXIS 113, at 20, Slip Op. 2006–112 

(CIT July 25, 2006) (‘‘Corus Staal’’). 

customer in the United States and also 

receives payment from the unaffiliated 

U.S. customers and deposits the checks 

into Zara USA’s bank account. Zara 

states that in terms of document flow, 

Zara sells to Zara USA, and Zara USA 

sells to the American customer, who 

pays Zara USA. See Zara’s April 8, 

2008, questionnaire response at pages 

39–41. 

The Department finds that the 

transactions at issue constitute CEP 

rather than EP sales. First, Zara’s 

argument regarding functions performed 

by Zara USA is misplaced because the 

Department no longer employs a 

function-driven approach known as the 

‘‘PQ’’ test in determining whether sales 

are EP or CEP. 

As the U.S. Court of Appeals for the 

Federal Circuit explained: 

The definition of CEP includes sales made 

by either the producer/exporter or ‘‘by a 

seller affiliated with the producer or 

exporter.’’ 19 U.S.C. § 1677a(b). EP sales, on 

the other hand can only be made by the 

producer or exporter of the merchandise. See 

19 U.S.C. § 1677a(a). Consequently, while a 

sale made by a producer or exporter could be 

either EP or CEP, one made by a U.S. affiliate 

can only be CEP. Limiting affiliate sales to 

CEP flows logically from the geographical 

restriction of the EP definition, as a sale 

executed in the United States by a U.S. 

affiliate of the producer or exporter to a U.S. 

purchaser could not be a sale ‘‘outside the 

United States.’’ The location of the sale and 

the identity of the seller are critical to 

distinguishing between the two categories. 

Congress provided for only two mutually 

exclusive categories: EP or CEP sales. In 

distinguishing the two, Congress opted for 

what can be seen as a structural approach to 

defining EP and CEP sales, not the functiondriven approach of the PQ Test. Congress 

chose clear and unambiguous words such as 

‘‘affiliated,’’ ‘‘sold,’’ and ‘‘in’’ or ‘‘outside’’

the United States. In no sense did it leave the 

distinguishing factor to the agency to identify 

exporter.5

Thus, the primary focus in 

determining whether a sale is properly 

classified as EP or CEP is: (1) The 

identity of the seller of subject 

merchandise to the first unaffiliated 

U.S. customer; and (2) the location of 

the sale to the first unaffiliated U.S. 

customer.6 Because the Federal Circuit 

invalidated the ‘‘PQ’’ test in AK Steel, 

the Department will not conduct an 

analysis of the relative functions or 

activities performed by Zara USA in the 

sales process. 

In AK Steel, the Court held that the 

‘‘seller’’ is the party who contracts to 

sell.7 In Corus Staal, the Court stated 

‘‘{a}s the material terms of the sale or 

agreement to sell were not fixed until 

the final invoice, Commerce could 

properly conclude that the final 

invoices determined when a sale or 

agreement to sell first occurred.’’ 8 In 

this case, even though the U.S. customer 

places the order directly with Zara, the 

record evidence suggests that the terms 

of sale are not finalized prior to invoice 

date. As the invoice issued to the first 

unaffiliated customer identifies Zara 

USA as the seller of subject 

merchandise, and as Zara USA serves as 

importer of record, thus transferring title 

to the first unaffiliated purchaser in the 

United States, we preliminarily find that 

the subject merchandise is first sold in 

the United States to an unaffiliated U.S. 

customer, and thus CEP is warranted. 

See e.g., Certain New Pneumatic OffThe-Road Tires from the People’s 

Republic of China: Final Affirmative 

Determination of Sales at Less Than 

Fair Value and Partial Affirmative 

Determination of Critical 

Circumstances, 73 FR 40485 (July 15, 

2008). See also, Zara’s calculation 

memo. 

For CEP, in accordance with section 

772(d)(1) of the Act, when appropriate, 

we deducted from the starting price 

those selling expenses that were 

incurred in selling the subject 

merchandise in the United States, 

including direct selling expenses 

(advertising, cost of credit, warranties, 

banking, slotting fees, and commissions 

paid to unaffiliated sales agents). In 

addition, we deducted indirect selling 

expenses that related to economic 

activity in the United States. These 

expenses include certain indirect selling 

expenses incurred by its affiliated U.S. 

distributors. We also deducted from CEP 

an amount for profit in accordance with 

sections 772(d)(3) and (f) of the Act. See 

Divella’s calculation memo, see also 

Zara’s calculation memo. 

Normal Value 

A. Selection of Comparison Markets 

To determine whether there was a 

sufficient volume of sales in the home 

market to serve as a viable basis for 

calculating NV, we compared each 

respondent’s volume of home market 

sales of the foreign like product to the 

volume of its U.S. sales of the subject 

merchandise. Pursuant to sections 

773(a)(1)(B) of the Act, because Divella 

and Zara each had an aggregate volume 

of home market sales of the foreign like 

product that was greater than five 

percent of its aggregate volume of U.S. 

sales of the subject merchandise, we 

determined that the home market was 

viable for both Divella and Zara. 

B. Cost of Production Analysis 

With respect to Divella, we made the 

following COP and CV adjustments for 

the preliminary results. First, we revised 

the yielded per-unit cost of semolina 

reported in the cost database to include 

the transportation costs related to the 

sales of by-products, costs incurred to 

transport semolina from the wheat mill 

to the pasta plant, property taxes, and 

an adjustment made to the June 30, 

2007, durum wheat inventory. Second, 

we revised the fixed overhead costs of 

the pasta plant to include property taxes 

and other operating costs. Third, we 

revised the general and administrative 

(‘‘G&A’’) expense rate to include 

property taxes, other operating costs, 

and various litigation and settlement 

losses. In addition, the G&A expense 

ratio denominator was revised to 

exclude the fixed overhead costs related 

to packing and include transportation 

costs related to the sales of by-products. 

Finally, we revised Divella’s net 

financial expenses to exclude dividend 

income. For further discussion of these 

adjustments for Divella, see the 

Memorandum from Sheikh Hannan to 

Neal Halper entitled, ‘‘Cost of 

Production and Constructed Value 

Adjustments for the Preliminary 

Results—F. Divella SpA,’’ dated July 30, 

2008. 

With respect to Zara, we revised Zara 

1 and Zara 2’s reported database to 

reflect differences in the originally 

submitted trial balance and the finalized 

trial balance used to prepare the audited 

financial statements. Additionally, we 

included credit notes for purchases of 

semolina for both companies and for 

Zara 2, we included water costs and 

purchases of semolina from Zara 1 in 

the cost of manufacturing (‘‘COM’’). We 

also included certain non-operating 

expenses in the G&A expenses. Further, 

we adjusted Zara 1’s financial expenses 

to exclude certain income items 

generated from long-term assets and 

losses related to investment activity. 

Last, we weight-averaged Zara 1 and 

Zara 2’s respective cost databases to 

calculate one weighted-average COP for 

the POR. For further discussion of these 

adjustments for Zara, see the 

Memorandum from Christopher Zimpo 

to Neal Halper entitled, ‘‘Cost of 

Production and Constructed Value 

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Federal Register / Vol. 73, No. 152 / Wednesday, August 6, 2008 / Notices 45719 

Adjustments for the Preliminary 

Results—Pasta Zara SpA,’’ dated July 

30, 2008. 

1. Calculation of COP 

Before making any comparisons to 

NV, we conducted a COP analysis of 

Divella and Zara pursuant to section 

773(b) of the Act, to determine whether 

Divella’s and Zara’s comparison market 

sales were made at prices below the 

COP. We calculated the COP based on 

the sum of the cost of materials and 

fabrication for the foreign like product, 

plus amounts for selling, general, and 

administrative (‘‘SG&A’’) expenses and 

packing, in accordance with section 

773(b)(3) of the Act. 

2. Test of Comparison Market Prices 

As required under section 773(b)(2) of 

the Act, we compared the weightedaverage COP to the per-unit price of the 

comparison market sales of the foreign 

like product to determine whether these 

sales had been made at prices below the 

COP within an extended period of time 

in substantial quantities, and whether 

such prices were sufficient to permit the 

recovery of all costs within a reasonable 

period of time. We determined the net 

comparison market prices for the belowcost test by subtracting from the gross 

unit price any applicable movement 

charges, discounts, rebates, direct and 

indirect selling expenses (also 

subtracted from the COP), and packing 

expenses. See Divella’s calculation 

memo, see also Zara’s calculation 

memo. 

3. Results of COP Test 

Pursuant to section 773(b)(2)(C)(i) of 

the Act, where less than 20 percent of 

sales of a given product were at prices 

less than the COP, we did not disregard 

any below-cost sales of that product 

because we determined that the belowcost sales were not made in ‘‘substantial 

quantities.’’ Where 20 percent or more 

of a respondent’s sales of a given 

product during the POR were at prices 

less than the COP we determined such 

sales to have been made in ‘‘substantial 

quantities.’’ See section 773(b)(2)(C) of 

the Act. The sales were made within an 

extended period of time, in accordance 

with section 773(b)(2)(B) of the Act, 

because they were made over the course 

of the POR. In such cases, because we 

compared prices to POR-average costs, 

we also determined that such sales were 

not made at prices which would permit 

recovery of all costs within a reasonable 

period of time, in accordance with 

section 773(b)(2)(D) of the Act. 

Therefore, for Divella and Zara, we 

disregarded below-cost sales of a given 

product of 20 percent or more and used 

the remaining sales as the basis for 

determining NV, in accordance with 

section 773(b)(1) of the Act. See 

Divella’s calculation memo, see also 

Zara’s calculation memo. 

C. Calculation of Normal Value Based 

on Comparison Market Prices 

We calculated NV based on ex-works, 

FOB or delivered prices to comparison 

market customers. We made deductions 

from the starting price, when 

appropriate, for handling, loading, 

inland freight, warehousing, inland 

insurance, discounts, and rebates. In 

accordance with sections 773(a)(6)(A) 

and (B) of the Act, we added U.S. 

packing costs and deducted comparison 

market packing, respectively. In 

addition, we made circumstance-of-sale 

adjustments for direct expenses, 

including imputed credit expenses, 

advertising, warranty expenses, 

commissions, bank charges, and billing 

adjustments, in accordance with section 

773(a)(6)(C)(iii) of the Act. 

We also made adjustments for Divella 

and Zara, in accordance with 19 CFR 

351.410(e), for indirect selling expenses 

incurred in the home market or the 

United States where commissions were 

granted on sales in one market but not 

in the other, the ‘‘commission offset.’’

Specifically, where commissions are 

incurred in one market, but not in the 

other, we will limit the amount of such 

allowance to the amount of either the 

selling expenses incurred in the one 

market or the commissions allowed in 

the other market, whichever is less. 

When comparing U.S. sales with 

comparison market sales of similar, but 

not identical, merchandise, we also 

made adjustments for physical 

differences in the merchandise in 

accordance with section 773(a)(6)(C)(ii) 

of the Act and 19 CFR 351.411. We 

based this adjustment on the difference 

in the VCOM for the foreign like 

product and subject merchandise, using 

POR-average costs. 

Sales of pasta purchased by the 

respondents from unaffiliated producers 

and resold in the comparison market 

were disregarded. See Divella’s 

calculation memo, see also Zara’s 

calculation memo. 

E. Level of Trade 

In accordance with section 

773(a)(1)(B) of the Act, we determined 

NV based on sales in the comparison 

market at the same level of trade 

(‘‘LOT’’) as the EP and CEP sales, to the 

extent practicable. When there were no 

sales at the same LOT, we compared 

U.S. sales to comparison market sales at 

a different LOT. When NV is based on 

CV, the NV LOT is that of the sales from 

which we derive SG&A expenses and 

profit. 

Consistent with 19 CFR 351.412, to 

determine whether comparison market 

sales were at a different LOT, we 

examined stages in the marketing 

process and selling functions along the 

chain of distribution between the 

producer and the unaffiliated (or arm’slength) customers. If the comparison 

market sales were at a different LOT and 

the differences affect price 

comparability, as manifested in a 

pattern of consistent price differences 

between the sales on which NV is based 

and comparison market sales at the LOT 

of the export transaction, we will make 

an LOT adjustment under section 

773(a)(7)(A) of the Act. 

Finally, if the NV LOT is more remote 

from the factory than the CEP LOT and 

there is no basis for determining 

whether the differences in LOT between 

NV and CEP affected price 

comparability, we will grant a CEP 

offset, as provided in section 

773(a)(7)(B) of the Act. See Notice of 

Final Determination of Sales at Less 

Than Fair Value: Certain Cut-to-Length 

Carbon Steel Plate from South Africa, 

62 FR 61731, 61732–33 (November 19, 

1997). 

Both respondents claim two LOTs in 

the home market. Divella reported that 

it sold through three channels of 

distribution to seven customer 

categories. Divella reported that two of 

the seven customer categories 

constituted a separate LOT because 

these two customer categories had a 

greater intensity of selling activities. 

Zara reported that it sold through three 

channels of distribution to 14 customer 

categories. Zara claimed that six of the 

customer categories were at a different 

LOT because of a greater intensity of 

selling activities. 

We disagree with both Divella and 

Zara that there are two LOTs in the 

home market. Section 351.412(c)(2) of 

the Department’s regulations provides 

that: The Department will determine 

that sales are made at different LOTs if 

they are made at different marketing 

stages (or their equivalent). Substantial 

differences in selling activities are a 

necessary, but not sufficient, condition 

for determining that there is a difference 

in the stage of marketing. Some overlap 

in selling activities will not preclude a 

determination that two sales are at 

different stages of marketing. 

Our analysis of the selling activities 

for Divella shows that there is overlap 

in these activities for channels of 

distribution and customer categories. In 

other words, Divella performs similar 

selling activities for all customer 

categories and channels of distribution. 

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Although there is greater intensity of 

these activities for some of the claimed 

customer categories, this, in and of 

itself, does not show a substantial 

difference in selling activities that 

would form the basis for finding a 

different LOT. See e.g., Certain Frozen 

Warmwater Shrimp from Ecuador: Final 

Results of Antidumping Duty 

Administrative Review, 72 FR 52070 

(September 12, 2007), and 

accompanying Issues and Decision 

Memorandum at Comment 4. Due to the 

proprietary nature of this issue, please 

refer to Divella’s calculation memo for 

further discussion. 

Our analysis of the selling activities 

for Zara shows that Zara also performs 

similar selling activities for different 

customer categories, although some of 

the activities were at different levels of 

intensity. Moreover, some selling 

activities within the claimed LOT1 are 

at higher level of intensity while other 

selling activities are at lower level of 

intensity than the same selling activities 

in the claimed LOT2. In addition, there 

is overlap among the channels of 

distribution for the different customer 

categories in these two claimed LOTs. 

The differences in Zara’s selling 

activities chart do not rise to a level of 

substantial differences that would 

support a finding that there are two 

LOTs in the home market. Due to the 

proprietary nature of this issue, please 

refer to Zara’s calculation memo for 

further discussion. 

While Divella and Zara attempted to 

further support their LOT claims by 

submitting an analysis comparing the 

average volume per invoice sold to these 

different customer categories, the 

Department does not normally consider 

average quantities as part of our LOT 

analysis. See e.g., 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, 69 FR 6255 (February 

10, 2004). 

In the U.S. market, both Divella and 

Zara reported that their sales were made 

through one channel of distribution to 

one customer category, therefore, at one 

LOT. The Department has determined 

that Divella’s and Zara’s home market 

sales were made at LOT1 and at the 

same stage of marketing as the U.S. sales 

LOT. Therefore, the Department will not 

make an LOT adjustment for Divella or 

Zara’s sales to the United States. 

Currency Conversion 

For purposes of these preliminary 

results, we made currency conversions 

in accordance with section 773A(a) of 

the Act, based on the official exchange 

rates published by the Federal Reserve 

Bank. See Divella’s calculation memo, 

see also Zara’s calculation memo. 

Preliminary Results of Review 

As a result of our review, we 

preliminarily determine that the 

following weighted-average percentage 

margins exist for the period July 1, 2006, 

through June 30, 2007, for the 

mandatory respondents: 

Manufacturer/exporter Margin 

(percent) 

Divella ....................................... 2.83 

Zara .......................................... 10.34 

For those companies not selected as 

mandatory respondents, we 

preliminarily determine that the 

following simple average percentage 

margin (based on the two reviewed 

companies) exists for the period July 1, 

2006, through June 30, 2007: 

Manufacturer/exporter Margin 

(percent) 

Pastificio Di Martino Gaetano & 

F. lli SrL ................................. 6.59 

Pastificio Felicetti SrL ............... 6.59 

The Department will disclose the 

calculations performed for these 

preliminary results within five days of 

the date of publication of this notice to 

the parties of this proceeding, in 

accordance with 19 CFR 351.224(b). An 

interested party may request a hearing 

within 30 days of publication of these 

preliminary results. See 19 CFR 

351.310(c). The Department intends to 

verify the information upon which we 

will rely in making our final 

determination. As a result, we intend to 

establish the briefing schedule upon the 

completion of verification. 

Pursuant to 19 CFR 351.213(h), the 

Department intends to issue the final 

results of this administrative review, 

which will include the results of its 

analysis of issues raised in any such 

comments, or at a hearing, if requested, 

within 120 days of publication of these 

preliminary results. 

Assessment Rate 

Pursuant to 19 CFR 351.212(b), the 

Department calculated an assessment 

rate for each importer of the subject 

merchandise. Upon issuance of the final 

results of this administrative review, if 

any importer-specific assessment rates 

calculated in the final results are above 

de minimis (i.e., at or above 0.5 percent), 

the Department will issue appraisement 

instructions directly to CBP to assess 

antidumping duties on appropriate 

entries by applying the assessment rate 

to the entered value of the merchandise. 

For assessment purposes, we calculated 

importer-specific assessment rates for 

the subject merchandise 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. Where 

appropriate, to calculate the entered 

value, we subtracted international 

movement expenses (e.g., international 

freight) from the gross sales value. For 

the responsive companies which were 

not selected for individual review, we 

have calculated an assessment rate 

based on the simple average of the cash 

deposit rates calculated for the 

companies selected for individual 

review. 

The Department clarified its 

‘‘automatic assessment’’ regulation on 

May 6, 2003 (68 FR 23954). This 

clarification will apply to entries of 

subject merchandise during the POR 

produced by companies included in 

these preliminary results of review for 

which the reviewed companies did not 

know their merchandise was destined 

for the United States. In such instances, 

we will instruct CBP to liquidate 

unreviewed entries at the all-others rate 

if there is no rate for the intermediate 

company(ies) involved in the 

transaction. For a full discussion of this 

clarification, see Antidumping and 

Countervailing Duty Proceedings: 

Assessment of Antidumping Duties, 68 

FR 23954 (May 6, 2003). 

Cash Deposit Requirements 

To calculate the cash deposit rate for 

Divella and Zara, we divided its total 

dumping margin by the total net value 

of its sales during the review period. For 

the responsive companies which were 

not selected for individual review, we 

have calculated a cash deposit rate 

based on the simple average of the cash 

deposit rates calculated for the 

companies selected for individual 

review. 

The following deposit rates will be 

effective upon publication of the final 

results of this administrative review for 

all shipments of pasta from Italy 

entered, or withdrawn from warehouse, 

for consumption on or after the 

publication date, as provided by section 

751(a)(2)(C) of the Act: (1) The cash 

deposit rate for companies subject to 

this review will be the rate established 

in the final results of this review, except 

if the rate is less than 0.5 percent and, 

therefore, de minimis, no cash deposit 

will be required; (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 final 

results for a review in which that 

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Federal Register / Vol. 73, No. 152 / Wednesday, August 6, 2008 / Notices 45721 

manufacturer or exporter participated; 

(3) if the exporter is not a firm covered 

in this review, a prior review, or the 

original less-than-fair-value (‘‘LTFV’’) 

investigation, but the manufacturer is, 

the cash deposit rate will be the rate 

established for the most recent final 

results for the manufacturer of the 

merchandise; and (4) if neither the 

exporter nor the manufacturer is a firm 

covered in this or any previous review 

conducted by the Department, the cash 

deposit rate will be 15.45 percent, the 

all-others rate established in the LTFV 

investigation. See Implementation of the 

Findings of the WTO Panel in US—

Zeroing (EC): Notice of Determination 

Under Section 129 of the Uruguay 

Round Agreements Act and Revocations 

and Partial Revocations of Certain 

Antidumping Duty Orders, 72 FR 25261 

(May 4, 2007). These cash deposit 

requirements, when imposed, shall 

remain in effect until further notice. 

Notification to Importers 

This notice serves as a preliminary 

reminder to importers of their 

responsibility under 19 CFR 351.402(f) 

to file a certificate regarding the 

reimbursement of antidumping 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 

increase the subsequent assessment of 

the antidumping duties by the amount 

of antidumping duties reimbursed. 

These preliminary results of 

administrative review are issued and 

published in accordance with sections 

751(a)(1) and 777(i)(1) of the Act and 19 

CFR 351.221(b)(4). 

Dated: July 30, 2008. 

David M. Spooner, 

Assistant Secretary for Import 

Administration. 

[FR Doc. E8–18026 Filed 8–5–08; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

International Trade Administration 

[C–475–819] 

Certain Pasta from Italy: Preliminary 

Results of the 11th (2006) 

Countervailing Duty Administrative 

Review 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

SUMMARY: The Department of Commerce 

(‘‘Department’’) is conducting an 

administrative review of the 

countervailing duty order on certain 

pasta from Italy for the period January 

1, 2006, through December 31, 2006. We 

preliminarily find that De Matteis 

Agroalimentare S.p.A. (‘‘De Matteis’’), 

Pastificio Lucio Garofalo S.p.A. 

(‘‘Garofalo’’), and F.lli De Cecco di 

Filippo Fara San Martino S.p.A. (‘‘De 

Cecco’’) received countervailable 

subsidies, and that Pastificio Felicetti 

SrL (‘‘Felicetti’’) did not receive any 

countervailable subsidies. See the 

‘‘Preliminary Results of Review’’

section, below. Interested parties are 

invited to comment on these 

preliminary results. See the ‘‘Public 

Comment’’ section of this notice. 

EFFECTIVE DATE: August 6, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Andrew McAllister or Brandon 

Farlander, AD/CVD Operations, Office 

1, Import Administration, U.S. 

Department of Commerce, 14th Street 

and Constitution Avenue, NW, 

Washington, DC 20230; telephone: (202) 

482–1174 and (202) 482–0182, 

respectively. 

SUPPLEMENTARY INFORMATION: 

Background 

On July 24, 1996, the Department 

published a countervailing duty order 

on certain pasta (‘‘pasta’’ or ‘‘subject 

merchandise’’) from Italy. See Notice of 

Countervailing Duty Order and 

Amended Final Affirmative 

Countervailing Duty Determination: 

Certain Pasta From Italy, 61 FR 38544 

(July 24, 1996) (‘‘Pasta Order’’). On July 

3, 2007, the Department published a 

notice of ‘‘Opportunity to Request 

Administrative Review’’ of this 

countervailing duty order for calendar 

year 2006, the period of review (‘‘POR’’). 

See Antidumping or Countervailing 

Duty Order, Finding, or Suspended 

Investigation; Opportunity to Request 

Administrative Review, 72 FR 36420 

(July 3, 2007). On July 31, 2007, we 

received requests for review from 

Garofalo, Valdigrano Di Flavio Pagani 

SrL (‘‘Valdigrano’’), Felicetti, and 

Prodotti Mediterranei, Inc. on behalf of 

De Cecco. On July 31, 2007, we received 

a request for review from New World 

Pasta Company, American Italian Pasta 

Company, and Dakota Growers Pasta 

Company (‘‘petitioners’’) for De Matteis. 

In accordance with 19 CFR 

351.221(c)(1)(i), we published a notice 

of initiation of the review on August 24, 

2007. See Initiation of Antidumping and 

Countervailing Duty Administrative 

Reviews and Requests for Revocation in 

Part, 72 FR 48613 (August 24, 2007). 

On September 11, 2007, we issued 

countervailing duty questionnaires to 

the Commission of the European Union 

(‘‘EU’’), the Government of Italy 

(‘‘GOI’’), Garofalo, Valdigrano, Felicetti, 

De Cecco, and De Matteis. On October 

16, 2007, Valdigrano withdrew its 

request for review. On November 5, 

2007, we rescinded the review with 

respect to Valdigrano. See Certain Pasta 

from Italy: Notice of Partial Rescission 

of Countervailing Duty Administrative 

Review, 72 FR 62437 (November 5, 

2007). 

We received responses to our 

questionnaires in November 2007. We 

issued supplemental questionnaires to 

the respondents and GOI in February, 

March, April, May, June, and July 2008, 

and we received responses to our 

supplemental questionnaires in March, 

April, May, June, and July 2008. 

Period of Review 

The POR for which we are measuring 

subsidies is January 1, 2006, through 

December 31, 2006. 

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 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 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 

this 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 B–099 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 

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