Cp Kelco US, Inc. v. United States

949 F.3d 1348

• Court: Court of Appeals for the Federal Circuit
• Decided: February 10, 2020
• Docket: 19-1207
• Status: Published

Opinion

Case: 19-1207 Document: 54 Page: 1 Filed: 02/10/2020

United States Court of Appeals for the Federal Circuit ______________________

CP KELCO US, INC., Plaintiff-Appellant

v.

UNITED STATES, NEIMENGGU FUFENG BIOTECHNOLOGIES CO., LTD., SHANDONG FUFENG FERMENTATION CO., LTD., Defendants-Appellees ______________________

2019-1207 ______________________

Appeal from the United States Court of International Trade in Nos. 1:13-cv-00288-RWG, 1:13-cv-00289-RWG, Senior Judge Richard W. Goldberg. ______________________

Decided: February 10, 2020 ______________________

NANCY NOONAN, Arent Fox, LLP, Washington, DC, ar- gued for plaintiff-appellant. Also represented by MATTHEW L. KANNA, FRIEDERIKE GOERGENS.

KELLY A. KRYSTYNIAK, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for defendant-appellee United States. Also represented by JOSEPH H. HUNT, JEANNE DAVIDSON, PATRICIA M. MCCARTHY; BRANDON JERROLD CUSTARD, Of- fice of the Chief Counsel for Trade Enforcement and Case: 19-1207 Document: 54 Page: 2 Filed: 02/10/2020

Compliance, United States Department of Commerce, Washington, DC.

JORDAN CHARLES KAHN, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, Washington, DC, argued for defendants-appellees Neimenggu Fufeng Biotechnologies Co., Ltd., Shandong Fufeng Fermentation Co., Ltd. Also represented by DHARMENDRA NARAIN CHOUDHARY, BRANDON M. PETELIN, ANDREW THOMAS SCHUTZ; BRUCE M. MITCHELL, NED H. MARSHAK, New York, NY. ______________________

Before NEWMAN, MOORE, and CHEN, Circuit Judges. MOORE, Circuit Judge. CP Kelco U.S., Inc. appeals the decision of the United States Court of International Trade (Trade Court) uphold- ing the Department of Commerce’s treatment of Xan- thomonas Campestris (X. Campestris) as an asset rather than a direct material input, and Commerce’s decision to use the Thai Fermentation Industry Ltd. (Thai Fermenta- tion) financial statements to calculate surrogate financial ratios. For the reasons described below, we affirm the Trade Court’s decision to uphold Commerce’s treatment of X. Campestris as an asset. We reverse its decision regard- ing Commerce’s use of the Thai Fermentation financial statements to calculate surrogate financial ratios and rein- state Commerce’s determination to use the Ajinomoto (Thailand) Co., Ltd. (Thai Ajinomoto) financial statements. BACKGROUND This appeal comes to us following a long and compli- cated procedural history, both at Commerce and the Trade Court. On June 5, 2012, CP Kelco filed a petition concern- ing imports of xanthan gum from the People’s Republic of China (PRC). On July 2, 2012, Commerce initiated an an- tidumping duty investigation of xanthan gum from the PRC for the period of investigation of October 1, 2011 Case: 19-1207 Document: 54 Page: 3 Filed: 02/10/2020

CP KELCO US, INC. v. UNITED STATES 3

through March 31, 2012. Appellees Neimenggu Fufeng Bi- otechnologies Co., Ltd. and Shandong Fufeng Fermenta- tion Co., Ltd. (collectively, Fufeng) export xanthan gum from the PRC. 1 A. Commerce’s Determination On January 3, 2013, Commerce preliminarily deter- mined “that xanthan gum from the People’s Republic of China (PRC) is being, or is likely to be, sold in the United States at less than fair value (LTFV).” Commerce consid- ers the PRC to be a non-market economy (NME) country. For a NME country, Commerce must “determine the nor- mal value of the subject merchandise on the basis of the value of the factors of production utilized in producing the merchandise . . . . based on the best available information regarding the values of such factors in a market economy country . . . .” 19 U.S.C. § 1677b(c)(1). The normal value is calculated as “the price at which the foreign like product is first sold . . . in the exporting country.” Id. § 1677b(a)(1)(B)(i). Commerce values factors of production by utilizing “prices or costs of factors of production” from a market economy country that is “at a level of economic de- velopment comparable to that of the nonmarket economy country” and is a “significant producer[] of comparable merchandise.” Id. § 1677b(c)(4). Commerce chose Thai- land as the primary surrogate country for the investigation because it “is economically comparable to the PRC and is a significant producer of comparable merchandise.” 2

1 Commerce determined that Neimenggu Fufeng Bi- otechnologies Co., Ltd. and Deosen Biochemical Ltd. ex- ported the largest volume of xanthan gum from the PRC during the period of investigation. Deosen is not a party to this appeal. 2 The comparable merchandise selected is monoso- dium glutamate (MSG) and l-lysine because, like xanthan gum, they are added to foods and have substantially Case: 19-1207 Document: 54 Page: 4 Filed: 02/10/2020

Commerce used the audited financial statements of Thai Ajinomoto to value factory overhead, selling, general, and administrative expenses, and profit. Commerce prelimi- narily assessed an antidumping margin of 21.69 percent for Fufeng. In the Final Determination, Commerce concluded Fufeng was selling xanthan gum in the United States at less than fair value and assessed Fufeng a 12.90 percent dumping margin. Xanthan Gum from the People’s Republic of China, 78 Fed. Reg. 33,351 (Dep’t of Commerce June 4, 2013) (final determ.), as amended, 78 Fed. Reg. 43,143 (July 19, 2013) (amend. final determ.). As part of its de- termination, Commerce considered whether X. Campestris is (1) a direct material that should be valued as a factor of production or (2) was accounted for in the surrogate finan- cial ratios and therefore did not need to be valued sepa- rately as a direct material input. Commerce did not value X. Campestris as a factor of production, or a direct material input, because Fufeng’s costs associated with the mainte- nance and use of X. Campestris bacteria are similar to those of Thai Ajinomoto’s costs associated with maintain- ing the bacteria used to produce comparable merchandise (i.e. MSG and l-lysine). Commerce found that evidence on the record of the present investigation shows that (1) Fufeng and Deosen “acquired [their] [X. C]ampestris strain for payment-in-full long before the [period of investiga- tion],” (2) “the acquisitions included the right to further grow and exploit the resulting bacteria for the production of xanthan gum,” and (3) Fufeng and Deosen continually regenerate the bacteria for use in their xanthan gum pro- duction. Due to their “ownership and regenerative use of

similar production processes based on bacteria fermenta- tion. Therefore, the manufacturing facilities, materials, and energy amounts required for production are similar. Case: 19-1207 Document: 54 Page: 5 Filed: 02/10/2020

CP KELCO US, INC. v. UNITED STATES 5

the bacteria,” Commerce determined that it is more similar to an asset than a direct material input. J.A. 8174. In calculating the surrogate financial ratios, Commerce used the Thai Ajinomoto financial statements. The finan- cial statements of Thai Fermentation were also on the rec- ord, however, Commerce determined them to be incomplete and that it would not have been able to fully evaluate the financial information contained therein. The parties disa- greed as to which financial statements were appropriate for use. CP Kelco supported the use of Thai Ajinomoto’s financial statements, arguing that all other available state- ments are incomplete, not fully translated, or from compa- nies that do not produce comparable merchandise. Fufeng argued that Thai Ajinomoto’s financial statements are dis- torted by countervailable subsidies and supported the use of Thai Fermentation’s financial statements. Commerce determined that the Thai Fermentation financial state- ments are incomplete because they lack complete English translations, precluding Commerce from fully evaluating the financial information contained therein, and noted its practice to exclude such statements. J.A. 8154. Specifi- cally, two complete paragraphs at the bottom of Accounting note twelve, concerning depreciation of assets, are untrans- lated. Id. at n.70; compare J.A. 6280–81 with J.A. 6305– 06. Although Commerce agreed with Fufeng that the Thai Ajinomoto statements show evidence of the receipt of coun- tervailable subsidies, it noted that its general practice to exclude such statements presupposes the existence of other sufficiently reliable data. Having no such data, it found Thai Ajinomoto’s statements to “represent the only com- plete and fully translated financial statements on the rec- ord” and therefore “the best available information within the meaning of the statute.” J.A. 8152, 8154–55. Case: 19-1207 Document: 54 Page: 6 Filed: 02/10/2020

B. First Trade Court Remand Order and Resulting First Redetermination CP Kelco appealed Commerce’s final determination to the Trade Court, as relevant here, with respect to Com- merce’s decision to treat X. Campestris as an asset, rather than as a direct material input, and Fufeng appealed Com- merce’s selection of the Thai Ajinomoto financial state- ments over the Thai Fermentation statements for calculating surrogate financial ratios. CP Kelco U.S., Inc. v. United States, 2015 WL 1544714, at *1 (Ct. Int’l Trade Mar. 31, 2015) (CP Kelco I). The Trade Court upheld Com- merce’s decision to treat X. Campestris as an asset rather than as a direct material input determining it was sup- ported by substantial evidence and was otherwise in ac- cordance with law. Id. at *4. The Trade Court determined it was “reasonable for Commerce to use the time that Fufeng paid for the X. Campestris as evidence that the bac- teria was an asset: Fufeng’s one-time purchase and the bac- teria’s self-regenerating properties made it look like an asset.” Id. It further determined that it was proper for Commerce to conclude that the bacteria was an asset based on grounds that the “bacteria self-regenerated, such that Fufeng only needed to pay for the bacteria once,” rendering it “unlike direct material inputs used up in the production process.” Id. The Trade Court remanded Commerce’s decision to use the Thai Ajinomoto financial statements to calculate sur- rogate financial ratios for further explanation, stating that “Commerce never addressed why the weakness of the Thai Fermentation statements—incompleteness—was worse than the weakness of the Thai Ajinomoto statements: evi- dence of subsidies.” Id. at *6. The Trade Court explained that Commerce created its own conundrum by preemp- tively rejecting the Thai Fermentation statements, which then required it to accept the Thai Ajinomoto statements, the only other statements left on the record, despite evi- dence that Thai Ajinomoto had received countervailable Case: 19-1207 Document: 54 Page: 7 Filed: 02/10/2020

CP KELCO US, INC. v. UNITED STATES 7

subsidies. Id. at *7. Specifically, the Trade Court in- structed that Commerce must “compare and contrast the Thai Fermentation and Thai Ajinomoto financial state- ments, and . . . explain why the Thai Ajinomoto statements constitute a better source.” Id. at 8. In its first remand redetermination, on July 24, 2015, Commerce compared Thai Fermentation’s financial state- ments with Thai Ajinomoto’s financial statements and again found that Thai Ajinomoto’s statements constituted “the best available information on the record.” Commerce noted that both companies’ statements “are flawed in dif- ferent ways” and that it must “decide which is the more serious flaw.” J.A. 8242. It further noted its “well-estab- lished practice of excluding incomplete financial state- ments from consideration, whether due to missing information or a lack of full translation.” Id. After consid- ering the weaknesses of each financial statement, Com- merce found the possibility that the Thai Fermentation statements are missing vital information to be the greater flaw. It found that Thai Ajinomoto’s statements, although containing evidence of countervailable subsidies, are “com- plete and reliable” and the “parties . . . had an opportunity to comment on the complete financial statements.” J.A. 8244–45. In rejecting the Thai Fermentation statements once again, Commerce explained that missing information in a financial statement could have a significant impact on the antidumping calculations and “parties cannot be al- lowed to selectively decide which portions of a financial statement to . . . leave untranslated,” depriving other par- ties the opportunity to comment on potentially important information. J.A. 8244. Finally, it noted that “Fufeng had every opportunity to provide a full translation of Thai Fer- mentation’s financial statements but that it failed to do so.” Id. Case: 19-1207 Document: 54 Page: 8 Filed: 02/10/2020

C. Second Trade Court Remand Order and Resulting Second Redetermination Fufeng again appealed Commerce’s selection of the Thai Ajinomoto statements to the Trade Court. This time, the Trade Court determined that Commerce did not “faith- fully compare the financial statements side by side” and had not “plumbed the implications [of the Thai Ajinomoto statements’ countervailable subsidies] as it had plumbed the issues caused by incompleteness” affecting the Thai Fermentation statements. CP Kelco U.S., Inc. v. United States, 2016 WL 1403657, at *5 (Ct. Int’l Trade Apr. 8, 2016) (CP Kelco II). It further determined that Commerce does not have a “well-established” practice of rejecting all incomplete financial statements that would justify reject- ing the Thai Fermentation statements summarily. Id. Therefore, the Trade Court again remanded, instructing Commerce to comply with the “court’s main remand in- struction to compare the Thai Ajinomoto and Thai Fermen- tation financial statements side by side in an evenhanded manner, evaluating the relative strengths and weaknesses of each.” Id. Alternatively, the Trade Court offered that Commerce may find the Thai Fermentation statements to be missing “vital information,” which the Trade Court pre- viously recognized as a past practice of Commerce. Id. n.5. As another alternative, the Trade Court offered that Com- merce could explain a change in practice, “from rejecting statements when they are missing vital information . . . to invariably rejecting any incomplete statements.” Id. On August 22, 2016, after adopting a practice of reject- ing incomplete financial statements unless there are no other financial statements on the record, Commerce for a third time determined that the Thai Ajinomoto statements were the best available information to calculate surrogate financial ratios. It first acknowledged that Commerce has not always rejected incomplete financial statements with- out qualification but has at times rejected incomplete state- ments that are missing key information when it was Case: 19-1207 Document: 54 Page: 9 Filed: 02/10/2020

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“vital.” J.A. 8260 (citing Ass’n of Am. Sch. Paper Suppliers v. United States, 791 F. Supp. 2d 1292, 1304 (Ct. Int’l Trade 2011)). It then explained that because it considers that any missing information may be “vital,” Commerce “intends to follow a practice of rejecting from use financial statements that are incomplete, whether due to missing or removed components of those statements or due to a lack of full Eng- lish translation where the record evidence indicates that any part of the specific financial statements in question was not provided by a filer, unless there are no other finan- cial statements left on the record.” J.A. 8262. Commerce reasoned that this practice avoids Commerce’s “speculation as to whether the missing information is a ‘critical’ or ‘key’ component necessary for the calculation of the surrogate financial ratios.” J.A. 8262–63. Commerce then rejected Thai Fermentation’s financial statements because they lack complete translations, finding that while the Thai Ajinomoto statements “show evidence of countervailable subsidies, [they] are complete and reliable and all parties have been afforded the opportunity to comment on their full content.” J.A. 8263. D. Third Trade Court Remand Order and Resulting Third Redetermination Fufeng again challenged Commerce’s remand results before the Trade Court. Despite having given Commerce the opportunity to explain a change in its practice, CP Kelco II, 2016 WL 1403657, at *5 n.5, the Trade Court de- termined that Commerce’s new policy is not consistent with its statutory mandate because it is “not reasonably aimed at identifying the best available information or cal- culating the antidumping margins as accurately as possi- ble” and “leads to an unreasoned outcome not supported by the record in these proceedings.” CP Kelco U.S., Inc. v. United States, 211 F. Supp. 3d 1338, 1341–42 (Ct. Int’l Trade 2017) (CP Kelco III). The Trade Court explained that Commerce has “yet to provide any discussion of the issues presented by the use of the Thai Ajinomoto Case: 19-1207 Document: 54 Page: 10 Filed: 02/10/2020

statements or, more generally, by the use of financial state- ments that reflect countervailable subsidies.” Id. at 1344. It again remanded Commerce’s redetermination explain- ing that “Commerce should not select the Thai Ajinomoto statements unless it first compares the Thai Ajinomoto and Thai Fermentation financial statements side by side in an evenhanded manner, evaluating the relative strengths and weaknesses of each.” Id. at 1345. Alternatively, it stated that “Commerce can reject the Thai Fermentation state- ments after making a reasoned finding that the two un- translated paragraphs in footnote twelve are ‘vital’ to the Department’s analysis of the data.” Id. The Trade Court instructed that “Commerce must specifically discuss what is missing from the Thai Fermentation statements and how the fact of the missing information impedes [Com- merce’s] calculations.” Id. It gave Commerce the option of “either (1) explicitly exploring the relative impact of the im- perfection in the Thai Ajinomoto statements (evidence of subsidies) and that in the Thai Fermentation statements (incompleteness) or (2) making a fact-sensitive finding that the Thai Fermentation statements are missing ‘vital’ infor- mation.” Id. On September 18, 2017, in its third remand redetermi- nation, Commerce chose to reject the Thai Fermentation statements “after making a fact-sensitive finding that the Thai Fermentation statements are missing ‘vital’ infor- mation.” J.A. 8280. In support of its finding, Commerce explained that “Thai Fermentation’s financial statements are missing complete translations for two paragraphs of the property plant and equipment (i.e., fixed asset) foot- note,” a key component of a company’s financial state- ments. Id. Among other reasons, it explained that “the fixed asset footnote supports the use of depreciation ex- pense,” a critical component in ratio calculations. J.A. 8281. It also explained that “by virtue of comprising all or most of a company’s overhead costs, depreciation expense is an integral component of the denominator of the selling, Case: 19-1207 Document: 54 Page: 11 Filed: 02/10/2020

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general and administrative (SG&A) expense and profit ra- tios.” Id. Because depreciation can significantly impact the surrogate financial ratios, such information is vital. Although Accounting note twelve contains a fully trans- lated depreciation schedule, it is not reasonable to only rely on such a schedule because “the narrative portions of a company’s footnotes can provide vital information regard- ing asset impairments, changes in useful lives of fixed as- sets, revaluations of fixed assets and the capitalization of production costs, among other things that are not shown on the numeric fixed asset schedule.” J.A. 8283. Accordingly, Commerce concluded it could not reasonably rely on Thai Fermentation’s financial statements as the best available information because the information missing from Thai Fermentation’s fixed asset footnote is of “critical im- portance” to its analysis. J.A. 8283–84. E. Fourth Trade Court Remand Order and Resulting Fourth Redetermination After another appeal, the Trade Court again remanded to Commerce stating that “[u]nlike the prior proceedings cited by Commerce, here the Department has not identified a particular depreciation methodology, class of fixed assets, or statement by the auditor in the Thai Fermentation statements that is questionable or unreliable.” CP Kelco U.S., Inc. v. United States, 2018 WL 1703143, at *3 (Ct. Int’l Trade Apr. 5, 2018) (CP Kelco IV). It explained that the “28-page Thai Fermentation financial statements pro- vided to Commerce have full English translations with the exception of two paragraphs in a footnote concerning fixed assets,” which no one has alleged were intentionally omit- ted. Id. Although Commerce has stated that the state- ments might be more reliable if fully translated, “Commerce has not made the case that the statements are unreliable, warranting their wholesale rejection.” Id. The Thai Ajinomoto statements, on the other hand, “are in fact, as opposed to hypothetically, unreliable, due to evidence of countervailable subsidies.” Id. The Trade Court found Case: 19-1207 Document: 54 Page: 12 Filed: 02/10/2020

that “Commerce’s general discussion about depreciation does not comply with the [Trade Court’s] instruction to make ‘a fact-sensitive finding that the Thai Fermentation statements are missing “vital” information.’” Id. (quoting CP Kelco III, 211 F. Supp. 3d at 1345). Finding that the record does not support more than one reasonable result and does not contain substantial evidence supporting Com- merce’s decision to discard the Thai Fermentation state- ments, and that “any mystery surrounding the Thai Fermentation statements is essentially of [Commerce’s] own making” where “Commerce is—and has always been— in possession of the ‘missing’ information” yet has failed to solicit a translation or translate the paragraphs itself, the Trade Court instructed that on remand, Commerce may “either translate the two paragraphs or leave them as is. Regardless, Commerce must use the Thai Fermentation statements to calculate surrogate financial ratios.” Id. at *3–4. The Trade Court made clear that “the court will not provide [Commerce] any further room to maneuver.” Id. at *4. Although Commerce continued to find that the Thai Fermentation statements are missing “specific information that is vital in nature” and “should not be used to calculate the surrogate financial ratios,” pursuant to the Trade Court’s directive, on July 5, 2018, Commerce relied upon the Thai Fermentation financial statements to calculate Fufeng’s weighted-average dumping margins for the final remand redetermination results. J.A. 8297 (Fourth Rede- termination). As a result, the weighted-average dumping margin for Fufeng changed to 0.00 percent. J.A. 8300. F. Fifth Trade Court Decision In light of Commerce’s use of the Thai Fermentation statements, the Trade Court found that the remand results were supported by substantial evidence and sustained the Fourth Redetermination. CP Kelco U.S., Inc. v. United States, 2018 WL 4469912 (Ct. Int’l Trade Sept. 17, 2018) Case: 19-1207 Document: 54 Page: 13 Filed: 02/10/2020

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(CP Kelco V). CP Kelco appealed the Trade Court’s deci- sions sustaining Commerce’s: (1) treatment of X. Cam- pestris as an asset rather than a direct material input (CP Kelco I); and (2) determination to use Thai Fermentation’s financial statements to calculate surrogate financial ratios (CP Kelco V). We have jurisdiction under 28 U.S.C. § 1295(a)(5). DISCUSSION We review Commerce’s decision using the same stand- ard of review applied by the Trade Court, while carefully considering that court’s analysis. Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304, 1310 (Fed. Cir. 2017). We decide legal issues de novo and uphold factual determinations if they are supported by substantial evi- dence. 19 U.S.C. § 1516a(b)(1)(B)(i); see Diamond Saw- blades, 866 F.3d at 1310. For factual findings, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” consid- ering the record as a whole. See Novartis AG v. Torrent Pharm. Ltd., 853 F.3d 1316, 1324 (Fed. Cir. 2017). For le- gal conclusions, Commerce, in carrying out its statutorily assigned tasks, must make reasonable choices within stat- utory constraints. See, e.g., Nucor Corp. v. United States, 927 F.3d 1243, 1248–49 (Fed. Cir. 2019). Related princi- ples govern the interpretation of regulations by an agency. See Kisor v. Wilkie, 139 S. Ct. 2400, 2414–18 (2019). Commerce must provide an explanation that is ade- quate to enable the court to determine whether its choices are actually reasonable. See CS Wind Vietnam Co. v. United States, 832 F.3d 1367, 1376–77 (Fed. Cir. 2016). It must “examine the record and articulate a satisfactory ex- planation for its action.” Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1378 (Fed. Cir. 2013). Although we uphold “a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. Case: 19-1207 Document: 54 Page: 14 Filed: 02/10/2020

281, 286 (1974), the required explanation must reasonably tie the determination under review to the governing statu- tory standard and to the record evidence by indicating what statutory interpretations the agency is adopting and what facts the agency is finding. “[A]n agency’s statement of what it ‘normally’ does or has done before . . . is not, by itself, an explanation of ‘why its methodology comports with the statute.’ Whether it does so in a particular agency decision or in a cited earlier decision, the agency must ground such a normal or past practice in the statutory standard.” CS Wind Vietnam, 832 F.3d at 1377 (quoting SKF USA Inc. v. United States, 263 F.3d 1369, 1383 (Fed. Cir. 2001). A. Treatment of X. Campestris as an asset rather than a direct material input (CP Kelco I) We begin with Commerce’s decision to treat X. Cam- pestris as an asset rather than a direct material input. CP Kelco contends that Commerce’s decision not to treat the production strain of X. Campestris as a factor of production and assign it a surrogate value is unsupported by substan- tial evidence and is not in accordance with law. Appellant’s Br. 31–32. It argues that the plain language of the statute instructs Commerce to value factors of production, such as raw materials, used in producing the subject merchandise, and X. Campestris is a factor of production necessary for the production of xanthan gum. Id.; Appellant’s Reply Br. 19 (citing 19 U.S.C. § 1677b(c); Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)). It further argues that X. Campestris meets the factors Com- merce has previously used to determine whether an input is a direct material input. Appellant’s Br. 33–36 (citing Seamless Refined Copper Pipe and Tube from the People’s Case: 19-1207 Document: 54 Page: 15 Filed: 02/10/2020

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Republic of China, 75 ITADOC 60725 (Oct. 1, 2010) (“Cop- per Pipe and Tube”) (cmt. 7)). 3 Fufeng contends that substantial evidence supports Commerce’s finding that Fufeng and Deosen “acquired [their] [X]. [C]ampestris strain for payment-in-full long be- fore the POI, and that the acquisitions included the right to further grow and exploit the resulting bacteria for the production of xanthan gum.” Appellees’ Br. 55 (citing J.A. 8174). It argues that the Trade Court correctly held that the factors in Copper Pipe and Tube did not preclude Com- merce’s record-based finding that the bacteria was like an asset properly valued through the surrogate financial ra- tios. Id. at 55–56 (citing J.A. 10). The United States 4 ar- gues that the statute does not speak to what criteria to use to determine whether something is a factor of production, and Commerce properly exercised its discretion to deter- mine that X. Campestris was already accounted for in the surrogate financial ratios such that it did not need to be separately valued as a raw material. United States’ Appel- lee Br. 12–14.

3 “[T]he Department will typically value a material as a direct material input if it is 1) consumed continuously with each unit of production, 2) required for a particular segment of the production process, 3) essential for produc- tion, 4) not used for ‘incidental purposes,’ or 5) otherwise a ‘significant input into the manufacturing process rather than miscellaneous or occasionally used materials.’” Cop- per Pipe and Tube at cmt. 7. 4 The United States did not appeal the judgment be- low and therefore takes no position on Commerce’s selec- tion of financial statements. It responds solely to CP Kelco’s challenge to the Trade Court’s March 31, 2015 de- cision concerning X. Campestris. Case: 19-1207 Document: 54 Page: 16 Filed: 02/10/2020

The relevant statute directs Commerce to “determine the normal value of the subject merchandise on the basis of the value of the factors of production utilized in produc- ing the merchandise” and the “valuation of the factors of production shall be based on the best available information regarding the values of such factors in a market economy country or countries considered to be appropriate by the administering authority.” 19 U.S.C. § 1677b(c)(1). The statute requires Commerce to consider the value of factors of production, but does not specify what factors Commerce must use to determine whether something is or is not a fac- tor of production. 5 Commerce evaluates whether some- thing is a factor of production by determining whether it is a direct material input. As the Trade Court recognized, “Commerce has not used one monolithic test to evaluate whether or not an item is a direct material input or not, but has instead proceeded case by case.” J.A. 10. Here, Com- merce determined that X. Campestris is not a direct mate- rial input, but instead is an asset because it is self- replicating and does not require ongoing purchases to re- plenish its supply. See, e.g., Copper Pipe and Tube. Commerce’s decision to treat X. Campestris as an asset rather than a direct material input is supported by sub- stantial evidence and is in accordance with law. Commerce found that evidence on the record of the present investiga- tion shows that Fufeng and Deosen “acquired [their] [X]. [C]ampestris strain for payment-in-full long before the [pe- riod of investigation], and that the acquisitions included the right to further grow and exploit the resulting bacteria

5 Section 1677b(c)(3) merely indicates that “factors of production utilized in producing merchandise include, but are not limited to” (A) hours of labor required, (B) quan- tities of raw materials employed, (C) amounts of energy and other utilities consumed, and (D) representative capi- tal cost, including depreciation. Case: 19-1207 Document: 54 Page: 17 Filed: 02/10/2020

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for the production of xanthan gum,” and that Fufeng con- tinually regenerates the bacteria for use in its xanthan gum production. J.A. 8174. Due to Fufeng’s “ownership and regenerative use of the bacteria,” Commerce deter- mined that it is more similar to an asset than a direct ma- terial input. Id. Because substantial evidence supports Commerce’s findings, the Trade Court did not err in sus- taining its decision. B. Commerce’s use of Thai Fermentation’s financial statements to calculate surrogate financial ratios (CP Kelco V) As an initial matter, Fufeng argues that CP Kelco failed to exhaust its administrative remedies and is pre- cluded from challenging the Fourth Redetermination by failing to provide comments in response to the Draft Fourth Redetermination. CP Kelco responds that it filed com- ments before the Draft arguing Commerce should interpret the Trade Court’s Fourth Remand Order to use an average of the financial ratios derived from the two companies’ fi- nancial statements, which Commerce addressed in its Fourth Remand Redetermination. It argues that even had it repeated comments that it made throughout the entire proceeding, its efforts would have been futile as the Fourth Remand Order compelled Commerce to use the Thai Fer- mentation statements. CP Kelco’s efforts would have likely been futile given the Trade Court’s directive, but regard- less, CP Kelco is not precluded from challenging the Fourth Remand Redetermination because it raised the arguments before the Draft and Commerce briefly addressed them. See J.A. 8298. CP Kelco argues that the Trade Court exceeded its au- thority by directing Commerce to use the Thai Fermenta- tion statements to calculate surrogate financial ratios rather than review the determination for substantial evi- dence. Appellant’s Br. 18. It contends that Commerce pro- vided a reasoned explanation as to why the Thai Ajinomoto Case: 19-1207 Document: 54 Page: 18 Filed: 02/10/2020

statement should be used, id. at 19, and that Commerce’s reliance in its Fourth Remand Redetermination on Thai Fermentation’s partially translated statements to calcu- late dumping margins is unreasonable, unsupported by substantial evidence, and is otherwise not in accordance with law, id. at 23–26. Fufeng responds that the Trade Court properly ordered Commerce to use Thai Fermenta- tion data after it repeatedly failed to conduct the compari- son required by the substantial evidence and best available information standards that would be required to use the Thai Ajinomoto data. Appellees’ Br. 49–50. It contends that Commerce, each time, gave short shrift to the Thai Fermentation statements, because they were missing two untranslated paragraphs, yet chose to use Thai Ajinomoto’s subsidy-distorted data. Id. at 34–35. It was reasonable for Commerce to rely on the Thai Ajinomoto data. In CP Kelco III, the Trade Court gave Commerce the option of “either (1) explicitly exploring the relative impact of the imperfection in the Thai Ajinomoto statements (evidence of subsidies) and that in the Thai Fer- mentation statements (incompleteness) or (2) making a fact-sensitive finding that the Thai Fermentation state- ments are missing ‘vital’ information.” CP Kelco III at 1345. On September 18, 2017, in its third remand redeter- mination, Commerce chose the option to reject the Thai Fermentation statements “after making a fact-sensitive finding that the Thai Fermentation statements are missing ‘vital’ information.” J.A. 8280. In support of its finding, Commerce explained that “Thai Fermentation’s financial statements are missing complete translations for two par- agraphs of the property plant and equipment (i.e., fixed as- set) footnote,” a key component of a company’s financial statements. Id. Among other reasons, it first explained that “the fixed asset footnote supports the use of deprecia- tion expense,” a critical component in ratio calculations. J.A. 8281. It also explained that “by virtue of comprising all or most of a company’s overhead costs, depreciation Case: 19-1207 Document: 54 Page: 19 Filed: 02/10/2020

CP KELCO US, INC. v. UNITED STATES 19

expense is an integral component of the denominator of the selling, general and administrative (SG&A) expense and profit ratios.” Id. Therefore “depreciation can significantly impact the surrogate financial ratios,” and such infor- mation is vital. Id. Although Accounting note twelve con- tains a fully translated depreciation schedule, Commerce determined that it is not reasonable to only rely on such a schedule because “the narrative portions of a company’s footnotes can provide vital information regarding asset im- pairments, changes in useful lives of fixed assets, revalua- tions of fixed assets and the capitalization of production costs, among other things that are not shown on the nu- meric fixed asset schedule.” J.A. 8283. Accordingly, Com- merce concluded, because the information missing from Thai Fermentation’s fixed asset footnote is of “critical im- portance” to its analysis, it could not reasonably rely on Thai Fermentation’s financial statements as the best avail- able information. J.A. 8283–84. At least as of this third redetermination by Commerce where it determined that the missing information in the untranslated financial statement was vital information and of “critical importance,” Commerce had adequately ex- plained the reasoning underlying its decision to use the Thai Ajinomoto financial statements rather than the Thai Fermentation financial statements. To be clear, we do not decide today whether Commerce must accept or refuse a partial translation of financial statements in every case, or that it is required to do so. But we are satisfied that here, with its third redetermination, Commerce sufficiently ex- plained its reason for choosing between two flawed finan- cial statements. We therefore reinstate Commerce’s decision to use the Thai Ajinomoto financial statements to calculate the surrogate financial ratios. CONCLUSION For the foregoing reasons, we affirm the Trade Court’s decision sustaining Commerce’s treatment of X. Case: 19-1207 Document: 54 Page: 20 Filed: 02/10/2020

Campestris as an asset rather than a direct material input. We reverse its decision sustaining Commerce’s use of the Thai Fermentation financial statements and reinstate Commerce’s determination to use the Thai Ajinomoto fi- nancial statements to calculate the surrogate financial ra- tios. We have considered the parties’ remaining arguments and find them unpersuasive. AFFIRMED-IN-PART AND REVERSED-IN-PART COSTS Each party shall bear its own costs.