Crawfish Tail Meat from the People's Republic of China: Amended Final Results of the Administrative Review Pursuant to Final Court Decision

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

EFFECTIVE DATE:

December 8, 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

This matter arose from a challenge to 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) and accompanying Issues and Decision Memorandum (Issues and Decision Memo) covering the period of review September 1, 2000, through August 31, 2001. In the Final Results, the Department of Commerce (the Department) assigned China Kingdom Import & Export Co., Ltd. (China Kingdom) an antidumping duty assessment rate based on total adverse facts available because the evidence gathered at verification established that China Kingdom failed to report its total tail meat production and eight of its eleven factors of production for the period of review. See Final Results. Following publication of the Final Results, China Kingdom filed a lawsuit with the United States Court of International Trade (CIT) challenging the Department's Final Results.

The CIT overturned the Department's determination in the Final Results to assign to China Kingdom an antidumping duty assessment rate based on total adverse facts available. See China Kingdom Import & Export Co. Ltd. v. United States, Consol. Ct. No. 03-00302, Slip Op. 07-135 (CIT September 4, 2007) (Remand Order). In the Remand Order, the CIT directed the Department to calculate and assign China Kingdom a new antidumping duty assessment rate in full compliance with the CIT's directives, and that the Department support all its findings with substantial record evidence and include a reasoned explanation for its determination. Specifically, first, the CIT ordered the Department to make a determination as to the practicability of allowing China Kingdom to explain the deficient responses, that is required by section 782(d) of the Tariff Act of 1930, as amended (the Act), and, in doing so, to afford China Kingdom a reasonable opportunity to explain the deficiency affecting the information on Chaohu Daxin Foodstuff Co., Ltd.'s (Daxin) total production and the calculated data for eight of the eleven factors of production. Second, the CIT specified that once China Kingdom has provided its explanation regarding the deficient information, the Department must make the determinations required by either section 782(d)(1) or (2) of the Act, or both, with respect to the substitute information. Third, the CIT ordered that the Department may use facts otherwise available solely to determine the total amount of Daxin's production of subject merchandise, and to calculate and determine the eight incorrectly reported factors of production during the period of review. Lastly, the CIT instructed that the Department may use adverse inferences only to a limited extent, and must demonstrate that the use of adverse inferences is not punitive, aberrational, or uncorroborated.

On February 1, 2008, the Department released the draft final results of redetermination for comment. No party submitted comments by the February 11, 2008, deadline. On March 4, 2008, the Department filed its final results of redetermination pursuant to the CIT's order. See Results of Redetermination on Remand Pursuant to China Kingdom Import & Export Co., Ltd. v. United States. In the remand results, pursuant to the CIT's order, the Department recalculated China Kingdom's margin using adverse facts available only to a limited extent. Specifically, the Department only applied adverse facts available to those factors which China Kingdom incorrectly reported in its responses. Therefore, for the remand results, the Department utilized China Kingdom's correctly reported factors in its margin calculation. On September 12, 2008, the CIT issued its judgment affirming the Department's remand results.

On October 17, 2008, consistent with the decision in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990), the Department notified the public that the CIT's decision was not in harmony with Department's final results. See Crawfish Tail Meat from the People's Republic of China: Notice of Court Decision Not in Harmony with Final Results of Administrative Review, 73 FR 61782 (October 17, 2008). There was no appeal of the CIT's decision to the U.S. Court of Appeals for the Federal Circuit filed within the appeal period. Therefore, the CIT's decision is now final and conclusive.

Amended Final Results of the Review

As the litigation in this case has concluded, the Department is amending the Final Results to reflect the results of our remand redetermination. The revised dumping margin in the amended final results is as follows:

The Department will instruct U.S. Customs and Border Protection (CBP) to liquidate entries of freshwater crawfish tail meat from the People's Republic of China during the review period at the assessment rate the Department calculated for the final results of review as amended. We intend to issue assessment instructions to CBP 15 days after the date of publication of these amended final results of review.

This notice is published in accordance with sections 751(a)(1) and 777(i) of the Act.