[Federal Register Volume 73, Number 202 (Friday, October 17, 2008)]
[Notices]
[Pages 61782-61783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24745]


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DEPARTMENT OF COMMERCE

International Trade Administration

(A-570-848)


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 (202) 482-0780.

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

[[Page 61783]]

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.
[FR Doc. E8-24745 Filed 10-16-08; 8:45 am]
BILLING CODE 3510-DS-S