[Federal Register Volume 75, Number 62 (Thursday, April 1, 2010)]
[Notices]
[Pages 16427-16428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7407]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-848]


Freshwater Crawfish Tail Meat From the People's Republic of 
China: Notice of Decision of the Court of International Trade Not in 
Harmony

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On February 9, 2010, the Court of International Trade (CIT or 
Court) sustained the final results of redetermination made by the 
Department of Commerce (the Department) regarding the 2005-2006 
administrative review of the antidumping duty order on freshwater 
crawfish tail meat from the People's Republic of China (PRC). See 
Washington International Insurance Company v. United States, Court No. 
08-00156, Slip Op. 10-16 (February 9, 2010) (Wash. Int'l Ins. Co. II). 
Pursuant to the Court's remand order, in its redetermination the 
Department continued to apply to Xuzhou Jinjiang Foodstuffs Co., Ltd. 
(Xuzhou) a total adverse facts available (AFA) rate, but changed this 
rate from the 223.01 percent applied in the contested administrative 
review to 188.52 percent. Consistent with the decision of the United 
States Court of Appeals for the Federal Circuit (Federal Circuit) in 
Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), 
the Department is publishing this notice of the CIT's decision which is 
not in harmony with the Department's final results in the 2005-2006 
antidumping duty administrative review of freshwater crawfish tail meat 
from the PRC.

FOR FURTHER INFORMATION CONTACT: Jeff Pedersen or Howard Smith at (202) 
482-2769 or (202) 482-5193, respectively; AD/CVD Operations, Office 4, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

    In the final results of the 2005-2006 antidumping duty 
administrative review of freshwater crawfish tail meat from the PRC, 
the Department found that Xuzhou failed to report all of its US sales 
of subject merchandise and assigned Xuzhou the highest rate in the 
proceeding as total AFA, i.e., the PRC-wide rate of 223.01 percent. See 
Freshwater Crawfish Tail Meat From the People's Republic of China: 
Final Results and Partial Rescission of the 2005-2006 Antidumping Duty 
Administrative Review and Rescission of 2005-2006 New Shipper Reviews, 
73 FR 20249 (April 15, 2008).
    The surety of certain U.S. imports of subject merchandise from 
Xuzhou during the 2005-2006 period of review, Washington International 
Insurance Company, moved for judgment upon the agency record. On July 
29, 2009, the CIT remanded the case for the Department to reconsider 
whether circumstances warranted partial or total AFA and for 
determination of an AFA rate that more closely reflects Xuzhou's then-
current market practices during the period of review. See Washington 
International Insurance Company v. United States, Court No. 08-00156, 
Slip Op. 09-78 (July 29, 2009).
    On October 26, 2009, the Department issued its final results of 
redetermination, and again found that the extensiveness of the 
unreported subject merchandise sales necessitated the application of 
total AFA. The Department then calculated an AFA rate of 188.52 percent 
using a methodology similar to that employed in the final results of 
the 2005-2006 administrative review.
    On February 9, 2010, the CIT held that substantial evidence 
supported the Department's application of total AFA. See Wash. Int'l 
Ins. Co. II. Further, the CIT sustained the remand AFA rate as 
rationally related to the record of Xuzhou's actual trading practices 
and based on the Department's reasonable interpretation of the record.

Notification

    In its decision in Timken, 893 F.2d at 341, the Federal Circuit 
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 the Department's 
determination. The Court's decision in Washington Int'l Ins. Co. II, 
regarding the appropriate AFA rate to assign to Xuzhou, constitutes a 
final decision of that court that is not in harmony with the 
Department's decision to apply an AFA rate of 223.01 percent to Xuzhou 
in the 2005-2006 administrative review. Therefore, publication of this 
notice fulfills the Department's obligation

[[Page 16428]]

under section 516A(e) of the Act. This notice is effective as of 
February 19, 2010.
    The Department will continue to suspend liquidation pending the 
expiration of the period to appeal the CIT's February 9, 2010 decision, 
or, if that decision is appealed, pending a ``conclusive'' decision by 
the Federal Circuit. Upon expiration of the period to appeal, or if the 
CIT's decision is appealed and the Federal Circuit's decision is not in 
harmony with the Department's determination in the 2005-2006 
antidumping duty administrative review of freshwater crawfish tail meat 
from the PRC, the Department will publish in the Federal Register a 
notice of amended final results of the 2005-2006 administrative review.
    This notice is issued and published in accordance with section 
516A(c)(1) of the Act.

    Dated: March 24, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-7407 Filed 3-31-10; 8:45 am]
BILLING CODE 3510-DS-S