[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)
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    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