E8-24745. Crawfish Tail Meat from the People's Republic of China: Notice of Court Decision Not in Harmony with Final Results of Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On September 12, 2008, the United States Court of International Trade (CIT) sustained the Department of Commerce's (the Department) results of redetermination pursuant to the CIT's remand in China Kingdom Import & Export Co., Ltd.; Yancheng Yaou Seafood Co., Ltd.; and Qingdao Zhengri Seafood Co., Ltd. v. United States, Consol. Ct. No. 03-00302, Slip Op. 08-96 (CIT September 12, 2008) (China Kingdom v. United States II). See Results of Redetermination Pursuant to Remand, dated March 3, 2008 (available at http://ia.ita.doc.gov/​remands). Consistent with the decision of the United States Court of Appeals for the Federal Circuit (CAFC) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), the Department is notifying the public that the final judgment in this case is not in harmony with the Department's final results of the administrative review of the antidumping duty order on certain crawfish tail meat from the People's Republic of China (PRC) covering the period of review (POR) of September 1, 2000, through August 31, 2001. See Freshwater Crawfish Tail Meat from the People's Republic of China; Notice of Final Results of Antidumping Duty Administrative Review, 68 FR 19504 (April 21, 2003) (Final Results).

EFFECTIVE DATE:

September 22, 2008.

FOR FURTHER INFORMATION CONTACT:

Scott Lindsay, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone [phone].

SUPPLEMENTARY INFORMATION:

Background

On April 21, 2003, the Department issued its final results in the antidumping duty administrative review of crawfish tail meat from the PRC covering the POR of September 1, 2000, through August 31, 2001. See Final Results. In the Final Results, the Department found that the use of facts otherwise available, with adverse inferences, was warranted because the evidence gathered at verification established that China Kingdom Import & Export Co. Ltd. (China Kingdom) failed to report its total tail meat production for the POR and eight of its eleven factors of production for the POR. Id. In applying total adverse facts available, the Department chose to assign to China Kingdom the highest calculated rate from any segment of the proceeding as the Department found that China Kingdom failed to cooperate to the best of its ability. Id. Therefore, China Kingdom was assigned a rate of 223.01 percent the highest rate calculated in any previous segment of this proceeding. Id.

In China Kingdom Import & Export Co., Ltd. v. United States, Consol. Ct. No. 03-00302, Slip Op. 07-135 (CIT September 4, 2007) (China Kingdom vs. United States I), the CIT remanded the Final Results, holding that the Department's application of the “facts otherwise available” and “adverse inference” provisions was not supported by substantial record evidence and was otherwise not in accordance with law. The CIT directed the Department to calculate and assign China Kingdom a new antidumping duty assessment rate using facts available and adverse facts available only to a limited extent. On March 3, 2008, the Department issued its final results of redetermination pursuant to China Kingdom vs. United States I. See Results of Redetermination on Remand Pursuant to China Kingdom Import & Export Co. Ltd. v. United States (March 3, 2008). The remand redetermination explained that, in accordance with the CIT's instructions, the Department recalculated the assessment rate for China Kingdom using a rate other than the PRC-wide rate as total adverse facts available. Specifically, the Department calculated a dumping margin for China Kingdom, utilizing the factor for each of the eight erroneously reported factor values (choosing between China Kingdom's February 27, 2002, and November 16, 2007, responses) that is adverse to China Kingdom. The Department also utilized in its calculations the three factors that China Kingdom correctly reported. The Department then compared U.S. sales price to normal value, and calculated a dumping margin for China Kingdom utilizing information on the record. The Department's redetermination resulted in a change in the Final Results weighted-average margin for China Kingdom from 223.01 percent to 90.66 percent.

Timken Notice

In its decision in Timken, 893 F.2d at 341, the CAFC held that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the Act), the Department must publish a notice of a court decision that is not “in harmony” with a Department determination and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's decision in China Kingdom v. United States II on September 12, 2008, constitutes a final decision of that court that is not in harmony with the Department's Final Results. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, the Department will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision. In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will instruct U.S. Customs and Border Protection to assess antidumping duties on entries of the subject merchandise during the POR from China Kingdom based on the revised assessment rates calculated by the Department.

This notice is issued and published in accordance with section 516A(c)(1) of the Act.

Dated: October 8, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.