CP Kelco US, Inc. v. United States

OCR transcription for search; preserved printed pages are authoritative

Case 1:13-cv-00288-RWG Document178 Filed 09/17/18 Page 1of6

Slip Op. 18-120

UNITED STATES COURT OF INTERNATIONAL TRADE

CP KELCO US, INC.,

Plaintiff,
V.
Before: Richard W. Goldberg, Senior Judge
UNITED'STATES; Consol. Court No. 13-00288
Defendant,
and
NEIMENGGU FUFENG

BIOTECHNOLOGIES CO., LTD. and
SHANDONG FUFENG FERMENTATION,
CO. LTD.

Defendant-Intervenors.

OPINION

[Sustaining the Department of Commerce’s remand redetermination. |

Dated: September 17, 2018

Matthew L. Kanna, Nancy A. Noonan, and Leah N. Scarpelly, Arent Fox LLP, of
Washington, D.C., for plaintiff.

Alexander O. Canizares, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., for defendant. With him on the brief were
Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of counsel on the brief was Brandon J. Custard, Office of the
Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of
Washington, D.C.

Ned H. Marshak, Jordan C. Kahn, and Brandon Petelin, Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP, of Washington, D.C., for defendant-intervenors.

Goldberg, Senior Judge: This matter returns to the court following a fourth remand of the
final determination of the U.S. Department of Commerce (“Commerce” or “the Department”) in

its antidumping investigation of xanthan gum from the People’s Republic of China. Xanthan

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Consol. Court No. 13-00288 	Page 2
Gum from the People’s Republic of China, 78 Fed. Reg. 33,351 (Dep’t Commerce June 4, 2013)
(final determ.) (“Final Determination”) and accompanying Issues & Decision Mem. (“I&D
Mem.”), amended by Xanthan Gum from the People’s Republic of China, 78 Fed. Reg. 43,143
(Dep’t Commerce July 19, 2013) (am. final determ.). The four prior opinions of this court
thoroughly set forth the facts underlying this appeal. CP Kelco US, Inc. v. United States, Slip
Op. 15-27, 2015 WL 1544714 (CIT Mar. 31, 2015) (“CP Kelco I”); CP Kelco US, Inc. v. United
States, Slip Op. 16-36, 2016 WL 1403657 (CIT Apr. 8, 2016) (“CP Kelco II”); CP Kelco US,
Inc. v. United States, 41 CIT __, 211 F. Supp. 3d 1338 (2017) (“CP Kelco III”); CP Kelco US,
Inc. v. United States, Slip Op. 18-36, 2018 WL 1703143 (CIT Apr. 5, 2018) (“CP Kelco IV”).
The court presumes familiarity with those opinions. For the reasons discussed below, the court
sustains Commerce’s Remand Results.
BACKGROUND
In its Final Determination, Commerce concluded that the Thai Ajinomoto financial
statements constituted a better source for calculating surrogate financial ratios than the Thai
Fermentation financial statements. I&D Mem. at cmt. 2. Commerce first disregarded the Thai
Fermentation statements on the basis that the record did not contain a full English translation,
without making a finding that the untranslated portions were crucial to Commerce’s calculations.
Id. Commerce then selected the only remaining statements, those of Thai Ajinomoto, despite the
fact that the Thai Ajinomoto statements “show evidence of the receipt of countervailable
subsidies.” Id. Defendant-Intervenors Neimenggu Fufeng Biotechnologies, Co., Ltd. and
Shandong Fufeng Fermentation Co., Ltd. (collectively, “Fufeng”) challenged this determination,
arguing that Commerce failed to properly justify its disregard of the Thai Fermentation
statements. Def.-Intervenor Rule 56.2 Mot. for J. on the Agency R. 13–22, ECF No. 28 (Mar. 7,
Case 1:13-cv-00288-RWG Document 178 Filed 09/17/18 Page 2 of 6

Consol. Court No. 13-00288 	Page 3

2014). The court agreed, remanding for Commerce to provide a more robust explanation for its
choice of financial statements. CP Kelco I, 2015 WL 1544714, at *7.
Commerce then submitted its Final Results of Redetermination Pursuant to Ct. Remand,
ECF No. 83 (July 28, 2015) (“First Remand Results”). Commerce again chose the Thai
Ajinomoto statements over the Thai Fermentation statements, justifying its selection by
explaining the issues presented by the incompleteness of financial statements generally. Id. at
10–12. However, the court again remanded the issue, finding that Commerce still gave short
shrift to the issues presented by the countervailable subsidies reflected in the Thai Ajinomoto
statements. CP Kelco II, 2016 WL 1403657, at *5.
Commerce, as it did in its Final Determination and in its First Remand Results, again
found that the Thai Ajinomoto statements were the better surrogate financial ratio source. Final
Results of Redetermination Pursuant to Ct. Order 8, ECF No. 109 (Aug. 22, 2016) (“Second
Remand Results”). Commerce based its determination on what it described as a new practice of
“rejecting from use financial statements that are incomplete . . . unless there are no other
financial statements left on the record.” Id. at 7. The court again remanded, explaining that “the
practice Commerce advance[d] [was] not reasonable and that it result[ed] in an unsupported
determination.” CP Kelco III, 41 CIT at __, 211 F. Supp. 3d at 1340. The court gave Commerce
the option of doing a faithful comparison of the two statements or of making a “fact-sensitive
finding” that the untranslated information in the Thai Fermentation statements was “vital,” such
that Commerce could not discern the reliability of those statements. Id., 41 CIT at __, 211 F.
Supp. 3d at 1345.
Commerce opted for the second alternative, explaining that “Thai Fermentation’s
financial statements are missing complete translations for two paragraphs of the property plant
Case 1:13-cv-00288-RWG Document 178 Filed 09/17/18 Page 3 of 6

Consol. Court No. 13-00288 	Page 4

and equipment (i.e., fixed asset) footnote” which are central to calculating depreciation expense.
Final Results of Third Redetermination Pursuant to Ct. Order 7, ECF No. 157 (Sept. 18, 2017)
(“Third Remand Results”). Commerce further explained that:
[I]n the instant proceeding, depreciation expense comprises . . . a majority of the
overhead costs for Thai Fermentation. [And] 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, general and administrative (SG&A) expense and
profit ratios. 	Thus, depreciation can significantly impact the surrogate financial
ratios . . . .
Id. at 8 (footnotes omitted). Commerce further provided that “the narrative portions of a
company’s footnotes can provide vital information regarding asset impairments, changes in
useful lives of fixed assets, revaluations of fixed assets and the capitalization of production costs,
among other things that are not shown on the numeric fixed asset schedule.” Id. at 10.
The court remanded once more, 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 IV, 2018 WL 1703143, at *3. The court found that
“Commerce’s general discussion about depreciation does not comply with the court’s instruction
to make ‘a fact-sensitive finding that the Thai Fermentation statements are missing “vital”
information.’” Id. (citing CP Kelco III, 41 CIT at __, 211 F. Supp. 3d at 1345). Therefore, the
court ordered that Commerce may “either translate the two paragraphs or leave them as is” but
must, in any event, “use the Thai Fermentation statements to calculate surrogate financial ratios.”
Id. at 4.
Case 1:13-cv-00288-RWG Document 178 Filed 09/17/18 Page 4 of 6

Consol. Court No. 13-00288 	Page 5
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court must sustain
Commerce’s remand redetermination if it is supported by substantial record evidence, is
otherwise in accordance with law, and is consistent with the court’s remand order. See Ad Hoc
Shrimp Trade Action Comm. v. United States, 38 CIT __, __, 992 F. Supp. 2d 1285, 1290 (2014);
see also 19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
In its latest remand results, “Commerce has relied upon the Thai Fermentation financial
statements to recalculate Fufeng’s weighted-average dumping margins for these final remand
results.” Final Results of Fourth Redetermination Pursuant to Ct. Order 9, ECF No. 169 (July 5,
2018) (“Remand Results”). As Commerce explains, “the weighted-average dumping margin for
Fufeng changes from 8.69 percent to 0.00 percent.” Id. at 12. For reasons discussed at length in
the court’s four opinions in this action, the court finds that the Remand Results are supported by
substantial evidence and, in all respects, are in accordance with the law. The Remand Results
also comply with the terms of CP Kelco IV.1
1 CP Kelco now urges the court to “remand the case to Commerce with instructions clarifying that
Commerce has the discretion to calculate Fufeng’s weighted-average dumping margin using the
simple average methodology so long as Commerce includes financial ratios derived from the Thai
Fermentation financial statements in its calculation.” CP Kelco’s Comments on Final Results of
Fourth Remand Redetermination 2, ECF No. 173 (Aug. 6, 2018). This suggestion arises out of its
view “that a simple average of both the Thai Ajinomoto and Thai Fermentation financial
statements would yield a more accurate rate.” Id. at 4–5. However, this court’s standard of review
demands that it consider only the soundness of the decision before it. Because the court finds that
Commerce’s determination here is supported by substantial evidence and in accordance with law,
it does not reach either whether CP Kelco’s preferred methodology is more reasonable or if that
argument was waived, as per Fufeng’s suggestion, Fufeng’s Comments on Commerce’s Fourth
Remand 5–6, ECF No. 172 (Aug. 6, 2018).
Case 1:13-cv-00288-RWG Document 178 Filed 09/17/18 Page 5 of 6

Consol. Court No. 13-00288 	Page 6
CONCLUSION
For the foregoing reasons, Commerce’s Remand Results are SUSTAINED. Judgment
will enter accordingly.
/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge
Dated:
New York, New York
4FQUFNCFS 
Case 1:13-cv-00288-RWG Document 178 Filed 09/17/18 Page 6 of 6