[Federal Register Volume 83, Number 200 (Tuesday, October 16, 2018)]
[Notices]
[Pages 52205-52206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22484]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-985]


Xanthan Gum From the People's Republic of China: Notice of Court 
Decision Not in Harmony With Amended Final Determination in Less Than 
Fair Value Investigation; Notice of Amended Final Determination 
Pursuant to Court Decision; Notice of Revocation of Antidumping Duty 
Order in Part; and Discontinuation of Fourth and Fifth Antidumping Duty 
Administrative Reviews in Part

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: On September 17, 2018, the United States Court of 
International Trade (CIT or Court) sustained the Department of 
Commerce's (Commerce) remand redetermination pertaining to the less-
than-fair-value (LTFV) investigation of xanthan gum from the People's 
Republic of China (China). Because of the CIT's final decision, we are 
notifying the public that the CIT's decision is not in harmony with 
Commerce's final determination in the LTFV investigation of xanthan gum 
from China. Pursuant to the CIT's final judgment, Neimenggu Fufeng 
Biotechnologies Co., Ltd. (aka Inner Mongolia Fufeng Biotechnologies 
Co., Ltd.) and Shandong Fufeng Fermentation, Co., Ltd. (collectively, 
Fufeng) are being excluded from the order.

DATES: September 27, 2018.

FOR FURTHER INFORMATION CONTACT: Stephen Bailey, AD/CVD Operations, 
Office IV, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-0193.

SUPPLEMENTARY INFORMATION: 

Background

    The litigation in this case relates to Commerce's final 
determination in the antidumping duty investigation covering xanthan 
gum from China,\1\ which was later amended.\2\ In its Amended Final 
Determination and Order, Commerce reached affirmative determinations 
for mandatory respondents Fufeng and Deosen Biochemical Ltd. 
(Deosen).\3\ CP Kelco U.S. and Fufeng appealed the Amended Final 
Determination and Order to the CIT, and on March 31, 2015, the CIT 
sustained, in part, and remanded, in part, Commerce's Final 
Determination,\4\ as modified by the Amended Final Determination.\5\ 
Specifically, the Court remanded, for reevaluation, Commerce's 
conclusion that the Thai Ajinomoto financial statements constituted a 
better source for calculating surrogate financial ratios than the Thai 
Fermentation statements, and granted the Government's request for a 
voluntary remand to reconsider Commerce's allocation of energy consumed 
at Fufeng's Neimenggu plant between the production of subject and non-
subject merchandise.\6\ Pursuant to a series of remand orders issued by 
the Court that resulted in four remand redeterminations, Commerce 
adjusted its allocation of energy consumed at Fufeng's Neimenggu plant 
and revised Fufeng's weighted average dumping margin by using Thai 
Fermentation's financial statements to derive the surrogate financial 
ratios.\7\ On September 17, 2018, the CIT sustained Commerce's Final 
Remand Redetermination.\8\
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    \1\ See Xanthan Gum from the People's Republic of China: Final 
Determination of Sales at Less Than Fair Value, 78 FR 33351 (June 4, 
2013) (Final Determination) and accompanying Issues and Decision 
Memorandum.
    \2\ See Xanthan Gum from the People's Republic of China: Amended 
Final Determination of Sales at Less Than Fair Value and Antidumping 
Duty Order, 78 FR 43143 (July 19, 2013) (Amended Final Determination 
and Order).
    \3\ Id. at 43144.
    \4\ See Final Determination, 78 FR at 33351.
    \5\ See CP Kelco US, Inc. v. United States, Slip Op. 15-27, (CIT 
Mar. 31, 2015) (CP Kelco I).
    \6\ Id. at 2-3, 11-15, 32-34.
    \7\ Id.; see also CP Kelco US, Inc. v. United States, Slip Op. 
16-36 (CIT Apr. 8, 2016) (CP Kelco II); CP Kelco US, Inc. v. United 
States, 211 F. Supp. 3d 1338 (CIT 2017) (CP Kelco III); CP Kelco US, 
Inc. v. United States, Slip Op. 18-36 (CIT Apr. 5, 2018) (CP Kelco 
IV).
    \8\ See CP Kelco US, Inc. v. United States, Slip Op. 18-120 (CIT 
Sept. 17, 2018) (CP Kelco V).
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Timken Notice

    In its decision in Timken,\9\ as clarified by Diamond 
Sawblades,\10\ the United States Court of Appeals for the Federal 
Circuit (CAFC) held that, pursuant to section 516A(e) of the Tariff Act 
of 1930, as amended (the Act), Commerce must publish a notice of a 
court decision that is not ``in harmony'' with a Commerce determination 
and must suspend liquidation of entries pending a ``conclusive'' court 
decision. The CIT's September 17, 2018, final judgment sustaining 
Commerce's fourth remand redetermination \11\ constitutes a final

[[Page 52206]]

decision of the Court that is not in harmony with Commerce's Amended 
Final Determination and Order. This notice is published in fulfillment 
of the publication requirements of Timken.
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    \9\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. 
Cir. 1990) (Timken).
    \10\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
    \11\ See CP Kelco V, at 6; see also CP Kelco US, Inc. v. United 
States, Court No. 13-00288, Slip Op. 18-36 (April 5, 2018), Final 
Results of Fourth Redetermination Pursuant to Court Order, dated 
July 5, 2018 (Fourth Remand Results).
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Amended Final Determination

    Because there is now a final court decision, Commerce is amending 
the Final Determination and Amended Final Determination and Order with 
respect to Fufeng. The revised weighted-average dumping margin for 
Fufeng for the period October 1, 2011, through March 31, 2012, is as 
follows:

------------------------------------------------------------------------
                                                             Weighted-
                                                              average
            Exporter                     Producer         dumping margin
                                                             (percent)
------------------------------------------------------------------------
Neimenggu Fufeng                 Neimenggu Fufeng                   0.00
 Biotechnologies, Co., Ltd.       Biotechnologies, Co.,
 (aka Inner Mongolia Fufeng       Ltd. (aka Inner
 Biotechnologies Co., Ltd.)/      Mongolia Fufeng
 Shandong Fufeng Fermentation     Biotechnologies Co.,
 Co., Ltd.                        Ltd.)/Shandong Fufeng
                                  Fermentation Co., Ltd.
------------------------------------------------------------------------

Partial Exclusion From Antidumping Duty Order and Partial 
Discontinuation of Fourth and Fifth Antidumping Duty Administrative 
Reviews

    Pursuant to section 735(a)(4) of the Act, Commerce ``shall 
disregard any weighted average dumping margin that is de minimis as 
defined in section 733(b)(3) of the Act.'' \12\ Furthermore, and 
pursuant to section 735(c)(2) of the Act, ``the investigation shall be 
terminated upon publication of that negative determination'' and 
Commerce shall ``terminate the suspension of liquidation'' and 
``release any bond or other security, and refund any cash deposit.'' 
\13\ As a result of this amended final determination, in which Commerce 
has calculated an estimated weighted-average dumping margin of 0.00 
percent for Fufeng, Commerce is hereby excluding merchandise from the 
above producer-exporter combination from the antidumping duty 
order.\14\ Accordingly, Commerce will direct U.S. Customs and Border 
Protection (CBP) to release any bonds or other security and refund cash 
deposits pertaining to any suspended entries from the producer-exporter 
combination listed above. This exclusion does not apply beyond the 
producer-exporter combination referenced above.
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    \12\ Section 733(b)(3) of the Act defines de minimis dumping 
margin as ``less than 2 percent ad valorem or the equivalent 
specific rate for the subject merchandise.''
    \13\ See sections 735(c)(2)(A) and (B) of the Act.
    \14\ See Fourth Remand Results, at 12.
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    We note, however, pursuant to Timken, the suspension of liquidation 
must continue during the pendency of the appeals process. Thus, we will 
instruct CBP to suspend liquidation of all unliquidated entries from 
the producer-exporter combination referenced above at a cash deposit 
rate of 0.00 percent which are entered, or withdrawn from warehouse, 
for consumption after September 27, 2018, which is ten days after the 
CIT's final decision, in accordance with section 516A of the Act.\15\ 
If the CIT's ruling is not appealed, or if appealed and upheld, 
Commerce will instruct CBP to terminate the suspension of liquidation 
and to liquidate entries subject to the producer-exporter combination 
rate stated above without regard to antidumping duties. As a result of 
the exclusion, Commerce (1) is discontinuing the ongoing fourth and 
fifth administrative reviews, in part, with respect to Fufeng's entries 
during those periods of review; \16\ and (2) will not initiate any new 
administrative reviews of Fufeng's entries pursuant to the antidumping 
order.\17\
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    \15\ See, e.g., Drill Pipe from the People's Republic of China: 
Notice of Court Decision Not in Harmony with International Trade 
Commission's Injury Determination, Revocation of Antidumping and 
Countervailing Duty Orders Pursuant to Court Decision, and 
Discontinuation of Countervailing Duty Administrative Review, 79 FR 
78037, 78038 (December 29, 2014) (Drill Pipe); High Pressure Steel 
Cylinders from the People's Republic of China: Notice of Court 
Decision Not in Harmony With Final Determination in Less Than Fair 
Value Investigation, Notice of Amended Final Determination Pursuant 
to Court Decision, Notice of Revocation of Antidumping Duty Order in 
Part, and Discontinuation of Fifth Antidumping Duty Administrative 
Review, 82 FR 46758, 46760 (October 6, 2017).
    \16\ See Xanthan Gum from the People's Republic of China: 
Preliminary Results of the Antidumping Duty Administrative Review, 
and Preliminary Determination of No Shipments; 2016-2017, 83 FR 
40229, August 14, 2018; see also Initiation of Antidumping and 
Countervailing Duty Administrative Reviews, 83 FR 45596 (September 
10, 2018).
    \17\ See Drill Pipe, 79 FR at 78038; see also Certain Steel 
Nails from the United Arab Emirates: Notice of Court Decision Not in 
Harmony with the Final Determination and Amended Final Determination 
of the Less Than Fair Value Investigation, 80 FR 77316 (December 14, 
2015).
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    Lastly, we note that, at this time, Commerce remains enjoined by 
Court order from liquidating entries that: (1) Were produced and 
exported by Fufeng, and were entered, or withdrawn from warehouse, for 
consumption during the period July 19, 2013, through June 30, 2014; (2) 
were produced and exported by Fufeng, and were entered, or withdrawn 
from warehouse, for consumption during the period July 1, 2014, through 
June 30, 2015, by East West Technologies Inc.; and (3) were produced 
and exported by Fufeng, and were entered, or withdrawn from warehouse, 
for consumption during the period July 1, 2014, through June 30, 2015, 
by LABH Inc., designated as Entry No. 22703189153, with an entry date 
of July 7, 2014, and Fufeng's Invoice No. MEU14088. These entries will 
remain enjoined pursuant to the terms of the injunction during the 
pendency of any appeals process.

Notification to Interested Parties

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

    Dated: October 10, 2018.
Gary Taverman,
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Operations, performing the non-exclusive functions and duties of the 
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2018-22484 Filed 10-15-18; 8:45 am]
 BILLING CODE 3510-DS-P