Cp Kelco US, Inc. v. United States, 949 F.3d 1348

CP Kelco petitioned for an antidumping investigation of xanthan gum from the PRC; Commerce designated Thailand as the surrogate market-economy country and investigated Fufeng (largest exporter).
Commerce determined Xanthomonas campestris (the bacterial production strain) was an asset (accounted for in surrogate financial ratios) rather than a direct material input, and initially used Thai Ajinomoto financial statements to calculate surrogate overhead/SG&A/profit ratios.
Thai Fermentation financial statements were on the record but contained two untranslated paragraphs in the fixed-asset footnote; Commerce repeatedly excluded them as incomplete and relied on Thai Ajinomoto despite record evidence of countervailable subsidies to Ajinomoto.
The U.S. Court of International Trade remanded multiple times, directing Commerce to compare the two companies’ statements side-by-side or to make a fact-specific finding that the untranslated portions were “vital.”
After several remand proceedings and a court directive ordering Commerce to use Thai Fermentation statements, Commerce calculated revised margins using Thai Fermentation data, producing a 0.00% margin for Fufeng; CP Kelco appealed to the Federal Circuit.
The Federal Circuit affirmed Commerce’s asset treatment of X. campestris but reversed the Trade Court and reinstated Commerce’s decision to use the Thai Ajinomoto financial statements as the best available information.

Issue	CP Kelco (Plaintiff) Argument	Fufeng/Government (Defendant) Argument	Held
Whether X. campestris must be valued as a factor of production (direct material)	X. campestris is a factor of production/raw material necessary for xanthan gum and fits Commerce’s prior direct-material criteria; must be valued separately	Record shows companies purchased strains before POI and continuously regenerate and own them, making the strain asset-like and captured in financial ratios	Affirmed: substantial evidence supports Commerce’s conclusion that the strain is an asset, not a direct material input
Which company’s financial statements (Thai Ajinomoto vs Thai Fermentation) are the best available information for surrogate ratios	Thai Ajinomoto statements are distorted by subsidies; Thai Fermentation should be used despite partial untranslated footnote	Thai Fermentation statements are incomplete (untranslated paragraphs on fixed assets/depreciation), which is a vital omission; Ajinomoto statements are complete and parties could comment	Reversed Trade Court: Commerce adequately explained why Ajinomoto was preferable and reinstated Commerce’s use of Thai Ajinomoto statements

Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304 (Fed. Cir. 2017) (standard of review for Commerce factual findings and deference to Trade Court analysis)
CS Wind Vietnam Co. v. United States, 832 F.3d 1367 (Fed. Cir. 2016) (agency must provide adequate explanation tying its decision to record and statute)
Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370 (Fed. Cir. 2013) (agency must examine record and articulate a satisfactory explanation)
SKF USA Inc. v. United States, 263 F.3d 1369 (Fed. Cir. 2001) (agency practice must be grounded in statutory standard)
Kisor v. Wilkie, 139 S. Ct. 2400 (U.S. 2019) (principles governing agency interpretation of regulations)
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (U.S. 1974) (agency decisions of less than ideal clarity may be upheld if path can reasonably be discerned)
Novartis AG v. Torrent Pharm. Ltd., 853 F.3d 1316 (Fed. Cir. 2017) (definition of substantial evidence in administrative review)
Nucor Corp. v. United States, 927 F.3d 1243 (Fed. Cir. 2019) (Commerce’s reasonable choices within statutory constraints)