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Notice

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

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Information about this document as published in the Federal Register.

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This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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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.

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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.

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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 Start Printed Page 16428under 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.

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Dated: March 24, 2010.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

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[FR Doc. 2010-7407 Filed 3-31-10; 8:45 am]

BILLING CODE 3510-DS-S