[Federal Register Volume 85, Number 131 (Wednesday, July 8, 2020)]
[Notices]
[Pages 40967-40969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14678]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-985]
Xanthan Gum From the People's Republic of China: Notice of Third
Amended Final Determination Pursuant to Court Decision
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On February 10, 2020, the Court of Appeals for the Federal
Circuit (CAFC) reversed the Court of International Trade's (CIT)
decision sustaining the Department of Commerce's (Commerce) use of Thai
Fermentation Industry Ltd.'s (Thai Fermentation) financial statements
to calculate surrogate financial ratios and reinstated Commerce's prior
determination to use Ajinomoto (Thailand) Co., Ltd.'s (Thai Ajinomoto)
financial statements to calculate financial ratios. Accordingly,
Commerce is issuing a third amended final determination for the less-
than-fair-value (LTFV) investigation of xanthan gum from the People's
Republic of China (China), and including Neimenggu Fufeng
Biotechnologies Co., Ltd. (aka Inner Mongolia Fufeng Biotechnologies
Co., Ltd.) and Shandong Fufeng Fermentation, Co., Ltd. (collectively,
Fufeng) as subject to the order.
DATES: Applicable February 20, 2020.
FOR FURTHER INFORMATION CONTACT: Thomas Hanna, AD/CVD Operations,
Office IV, Enforcement and Compliance, U.S. Department of Commerce,
1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202)
482-0835.
SUPPLEMENTARY INFORMATION:
Background
The litigation in this case relates to Commerce's final
determination in the LTFV investigation of 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., Inc. (CP Kelco U.S.), the petitioner, 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, as modified by the Amended Final Determination.\4\
Specifically, the CIT 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 Commerce's request for a voluntary
remand to reconsider its allocation of energy consumed at Fufeng's
Neimenggu plant between the production of subject and non-subject
merchandise.\5\
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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., 78 FR at 43144.
\4\ See CP Kelco US, Inc. v. United States, Ct. No. 13-00288,
Slip Op. 15-27 (CIT Mar. 31, 2015) (CP Kelco I).
\5\ Id. at 2-3, 11-15, 32-34.
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Pursuant to a series of remand orders issued by the CIT that
resulted in four remand redeterminations, Commerce adjusted its
allocation of energy consumed at Fufeng's Neimenggu plant
[[Page 40968]]
and revised Fufeng's weighted-average dumping margin by using Thai
Fermentation's financial statements to derive the surrogate financial
ratios.\6\ After using Thai Fermentation's financial statements to
calculate surrogate financial ratios, Commerce calculated a weighted-
average dumping margin of 0.00 percent for Fufeng.\7\ On September 17,
2018, the CIT sustained Commerce's fourth remand redetermination.\8\
Pursuant to the CIT's final judgment, Commerce amended the Final
Determination and Amended Final Determination and Order and excluded
merchandise produced and exported by Fufeng from the order.\9\
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\6\ Id.; see also CP Kelco US, Inc. v. United States, Ct. No.
13-00288, 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); and CP Kelco US, Inc. v. United States, Ct. No. 13-00288, Slip
Op. 18-36 (CIT Apr. 5, 2018) (CP Kelco IV).
\7\ See Final Results of Fourth Redetermination Pursuant to
Court Order, dated July 5, 2018, at 12.
\8\ See CP Kelco US, Inc. v. United States, Ct. No. 13-00288,
Slip Op. 18-120 (CIT Sept. 17, 2018) (CP Kelco V).
\9\ See 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, 83 FR 52205
(October 16, 2018) (Timken Notice).
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CP Kelco U.S. appealed the CIT's decision upholding Commerce's
treatment of Xanthomonas Campestris (X. Campestris) as an asset in its
final determination, rather than a direct material input, and
Commerce's use, in its remand redetermination, of Thai Fermentation's
financial statements to calculate surrogate financial ratios rather
than Thai Ajinomoto's financial statements.\10\ On February 10, 2020,
the CAFC issued an opinion: (1) Affirming the CIT's decision sustaining
Commerce's treatment of X. Campestris as an asset; and (2) reversing
the CIT's decision regarding Commerce's use of Thai Fermentation's
financial statements to calculate surrogate financial ratios and
reinstating Commerce's original determination to use Thai Ajinomoto's
financial statements in calculating those ratios.
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\10\ See CP Kelco US, Inc. v. United States, 949 F.3d 1348 (Fed.
Cir. 2020).
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On May 8, 2020, in compliance with the order issued by the CAFC,
the CIT affirmed Commerce's third remand redetermination, wherein we
``calculated a dumping margin of 8.69% for Fufeng by treating X.
campestris as an asset, and by using data in Thai Ajinomoto financial
statements'' to calculate surrogate financial ratios.\11\ The CIT found
that Commerce's third remand redetermination ``comports with the
{CAFC's{time} decision in its entirety.'' \12\
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\11\ See CP Kelco US, Inc. v. United States, Ct. No. 13-00288,
Slip Op. 20-62 (CIT May 8, 2020).
\12\ Id. at *4.
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Third Amended Final Determination
Because there is now a final and conclusive 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)
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Neimenggu Fufeng Biotechnologies, Neimenggu Fufeng 8.69
Co., Ltd. (aka Inner Mongolia Biotechnologies,
Fufeng Biotechnologies Co., Ltd.)/ Co., Ltd. (aka
Shandong Fufeng Fermentation Co., Inner Mongolia
Ltd. Fufeng
Biotechnologies
Co., Ltd.)/Shandong
Fufeng Fermentation
Co., Ltd.
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As a result of this amended final determination, in which Commerce
has calculated an estimated weighted-average dumping margin of 8.69
percent for Fufeng, merchandise from the producer-exporter combination
above will be subject to the antidumping duty (AD) order on xanthan gum
from China. Additionally, we will instruct United States Customs and
Border Protection (CBP) to suspend liquidation of, and to require a
cash deposit of 0.00 percent \13\ for, all unliquidated entries of
subject merchandise from the producer-exporter combination referenced
above which were entered, or withdrawn from warehouse, for consumption
after February 20, 2020, which is 10 days after the CAFC's final
decision, in accordance with section 516A of the Act.
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\13\ This is the cash deposit rate determined for Fufeng in the
2015-2016 AD administrative review of xanthan gum from China. See
Xanthan Gum From the People's Republic of China: Final Results of
the Antidumping Duty Administrative Review and Final Determination
of No Shipments; 2015-2016; 83 FR 6513, 6514 (February 14, 2018).
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Results of Discontinued Antidumping Duty Administrative Reviews for
Fufeng
In the Timken Notice, Commerce amended the final determination in
this proceeding and stated that ``{a{time} s 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\ Commerce explained
in the Timken Notice that:
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\14\ Timken Notice, 83 FR at 52206.
{a{time} s 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; and (2)
will not initiate any new administrative reviews of Fufeng's entries
pursuant to the antidumping order.\15\
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\15\ Id.
When Commerce published the final results of the fourth and fifth
administrative reviews of the AD order on xanthan gum from China,
merchandise from the above-referenced producer-exporter combination was
no longer subject to that order due to the CIT's decision, and the CAFC
had not reversed the CIT's decision.\16\ However, subsequent to
Commerce issuing those final results of reviews, the CAFC reversed the
CIT's decision. Based on the CAFC's decision, Fufeng is subject to the
AD order on xanthan gum from China. Therefore, we will resume the
fourth and fifth administrative reviews of that order with specific
regard to Fufeng.\17\ We will not revisit these reviews for any company
other than
[[Page 40969]]
Fufeng.\18\ For the fourth review, because we already issued
preliminary results covering Fufeng and case briefs regarding those
results were filed, we will consider the case briefs as they pertain to
Fufeng and issue the final results of review with respect to Fufeng.
For the fifth review, because we already selected mandatory
respondents, other than Fufeng, and issued final results with respect
to those respondents, we will analyze Fufeng's separate rate
certification and issue preliminary results regarding Fufeng's separate
rate status. We will set a briefing period to allow interested parties
to comment on our separate rates determination for Fufeng before
issuing the final results of review with respect to Fufeng.
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\16\ See Xanthan Gum from the People's Republic of China: Final
Results of Antidumping Duty Administrative Review; Final
Determination of No Shipments, Partial Discontinuation of
Antidumping Duty Administrative Review; 2016-2017, 83 FR 65143
(December 19, 2018); Xanthan Gum From the People's Republic of
China: Final Results of Antidumping Duty Administrative Review and
Final Determination of No Shipments; 2017-2018; 84 FR 64831
(November 25, 2019).
\17\ The fourth review covers the period July 1, 2016 through
June 30, 2017. The fifth review covers the period July 1, 2017
through June 30, 2018.
\18\ Fufeng refers to the collapsed entity Inner Mongolia Fufeng
Biotechnologies Co., Ltd./Neimenggu Fufeng Biotechnologies Co., Ltd.
(aka Inner Mongolia Fufeng Biotechnologies Co., Ltd)/Shandong Fufeng
Fermentation Co., Ltd./Xinjiang Fufeng Biotechnologies Co., Ltd.
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At this time, Commerce remains enjoined by Court order from
liquidating entries of subject merchandise that: (1) Was produced and
exported by Fufeng, and entered, or withdrawn from warehouse, for
consumption during the period July 19, 2013 through June 30, 2014 (with
the exception of such merchandise entered by the company named in CBP
message number 7352304, dated December 18, 2017); (2) was produced and
exported by Fufeng, and entered, or withdrawn from warehouse, for
consumption during the period July 1, 2014 through June 30, 2015, by
East West Technologies Inc.; and (3) was produced and exported by
Fufeng, and 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 section
516A(c)(1) and (e) of the Tariff Act of 1930, as amended.
Dated: June 29, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2020-14678 Filed 7-7-20; 8:45 am]
BILLING CODE 3510-DS-P