E8-5669. Freshwater 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 March 5, 2008 the United States Court of International Trade (“CIT”) sustained the remand redetermination issued by the Department of Commerce (“the Department”), pursuant to the CIT's remand order, regarding the final results of the administrative review of the antidumping duty order on fresh water crawfish tail meat from the People's Republic of China. See Crawfish Processors Alliance v. United States, Slip Op. 08-27 (March 5, 2008) (“Crawfish II”). This case arises out of the Department's final results in the administrative review covering the period September 1, 1999 - August 31, 2000. See Freshwater Crawfish Tail Meat from the People's Republic of China; Notice of Final Results of Antidumping Duty Administrative Review, and Final Partial Rescission of Antidumping Duty Administrative Review, 67 FR 19546 (April 22, 2002) (“Final Results”). Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“CAFC”) in The Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (“Timken”), the Department is notifying the public that Crawfish II is not in harmony with the Department's Final Results.

EFFECTIVE DATE:

March 20, 2008.

FOR FURTHER INFORMATION CONTACT:

Paul Walker, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW, Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

On April 22, 2002 the Department determined that Fujian Pelagic Fishery Group Co. (“Fujian”) and Pacific Coast Fisheries Corp. (“Pacific Coast”) are not affiliated parties pursuant to section 771(33) of the Tariff Act of 1930, as amended (“the Act”). See Final Results and accompanying Issues and Decision Memorandum at Comment 18. In Crawfish I, the CIT found that “Fujian had not made an investment, whether in cash or in the form of a promissory note, in Pacific Coast and that Fujian did not exercise control over Pacific Coast.” See Crawfish Processors Alliance v. United States, 343 F. Supp. 2d 1242, 1269 (Ct. Int'l Trade 2004) (“Crawfish I”). The CIT sustained the Department's determination that the two entities are not affiliated. Id. On appeal, the CAFC, holding that section 771(33)(E) of the Act “does not require a transfer of cash or merchandise to prove ownership or control of an organization's shares,” found that Fujian put forth sufficient evidence to demonstrate that it directly or indirectly owned and controlled at least 5%% of Pacific Coast's shares. See Crawfish Processors Alliance v. United States, 477 F.3d 1375, 1384 (Fed. Cir. 2007). The CAFC determined that substantial evidence did not support the Department's determination that Fujian and Pacific Coast are not affiliated and reversed the decision of the CIT in Crawfish I. Id. Consequently, as mandated by the Federal Circuit, the CIT remanded the Final Results to the Department to recalculate the dumping margin treating Fujian and Pacific Coast as affiliated parties. See Crawfish Processors Alliance v. United States, Slip Op. 07-156 (October 30, 2007). Thus, pursuant to the CIT's remand instructions, the Department treated Fujian and Pacific Coast as affiliated parties pursuant to section 771(33)(E) of the Act, and recalculated Fujian's dumping margin from 174.04%% to 60.83%%.

The Department released the Draft Results of Redetermination Pursuant to Court Remand (“Draft Redetermination”) to the interested parties for comment on December 11, 2007. On December 18, 2007, in response to a request by Fujian, the Department granted parties an additional two days to submit comments on the Draft Redetermination. No party submitted comments by the December 20, 2007 deadline. On January 28, 2008 the Department filed its final results of redetermination pursuant to Court remand with the CIT. See Final Remand Results of Redetermination Pursuant to Court Remand, Court No. 02-00376, (January 28, 2008) (“Final Remand Redetermination”). On March 5, 2008 the CIT sustained all aspects of the Final Remand Redetermination. See Crawfish II.

In its decision in Timken, 893 F.2d at 341, the CAFC held that, pursuant to section 516A(e) of 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. As a result of the Department's treatment of Fujian and Pacific Coast as affiliated parties, the CIT's decision in this case, on March 5, 2008, constitutes a final decision of the 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 revise the cash deposit rates covering the subject merchandise.

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

Dated: March 14, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.