Papierfabrik August Koehler SE v. United States
36 I.T.R.D. (BNA) 885
Ct. Intl. Trade2014Background
- Commerce opened the 2010–2011 administrative review (AR3) of lightweight thermal paper from Germany; Koehler was the sole respondent and submitted questionnaires and a supplemental questionnaire response (SQR).
- Petitioner/Appvion submitted evidence alleging Koehler transshipped 48‑gram thermal paper through intermediaries so final delivery was to German customers, which Koehler initially omitted from its home‑market reporting.
- After Appvion’s May 18 submission, Koehler admitted the transshipments in its June 27 SQR and attempted to file corrected home‑market sales data including the omitted transactions; Commerce rejected that corrected data as untimely and unsolicited.
- Commerce preliminarily and finally applied total adverse facts available (AFA) to Koehler, selecting the petition rate (75.36%) as the AFA rate, after finding Koehler failed to cooperate to the best of its ability and that its submitted data were not reliable for calculating a dumping margin.
- Koehler challenged Commerce’s rejection of the corrected data, the use of total (rather than partial) AFA, and the selection/corroboration of the petition rate; the Court sustained Commerce on all grounds and denied Koehler’s motion for judgment on the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce properly applied AFA because Koehler withheld information and failed to cooperate | Koehler: omissions were inadvertent ("rogue employees"); it cooperated after discovery and submitted corrected data; AFA was improper | Commerce: Koehler concealed material home‑market sales, failed to act to the best of its ability, and only remedied after being confronted | Court: Commerce reasonably found failure to cooperate and lawfully applied AFA |
| Whether Commerce erred by rejecting Koehler’s untimely corrected home‑market data | Koehler: corrected data should have been accepted under §1677m(d)/(e); Commerce abused discretion by strict enforcement of deadlines | Commerce: corrected data were untimely, Koehler did not satisfy §1677m(e) criteria, and remedial provisions do not compel acceptance when respondent failed to cooperate | Court: Rejection was proper; Commerce satisfied statutory requirements and did not abuse discretion |
| Whether total AFA (vs. partial AFA) was appropriate | Koehler: omissions affected only a discrete subset of sales; Commerce could have used other reliable data and applied partial AFA | Commerce: omissions undermined reliability of overall data and prevented accurate margin calculation, warranting total AFA | Court: Total AFA reasonable because missing core information made record unusable for margin calculation |
| Whether Commerce properly selected and corroborated the petition rate as the AFA rate | Koehler: petition rate is inherently unreliable and extreme relative to prior margins; corroboration was inadequate (reliance on a small number of AR2 transactions, one alleged aberration) | Commerce: statute permits secondary information; corroborated petition rate by comparing to Koehler’s AR2 transaction‑specific margins (including a high outlier) and commercial reality given missing record data | Court: Petition rate was a reasonably accurate, corroborated AFA estimate; Commerce’s corroboration was adequate given respondent’s noncooperation |
Key Cases Cited
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (defines “best of its ability” standard for respondent cooperation)
- F.lli de Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (AFA rate must be reasonably accurate with a deterrent increase)
- Gallant Ocean (Thai.) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010) (secondary information must have grounding in commercial reality; caution in using small or unrelated data)
- KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 2010) (probative value requires reliability and relevance when corroborating AFA information)
- PAM, S.p.A. v. United States, 582 F.3d 1336 (Fed. Cir. 2009) (corroboration can be adequate even if only a small percentage of transactions exceed the AFA rate)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (defines substantial evidence standard)
- Steel Authority of India v. United States, 149 F. Supp. 2d 921 (S.D. Ohio 2001) (Commerce may treat an entire party’s submissions as the unit of “information” for §1677m(e) purposes)