Papierfabrik August Koehler Se v. United States
2016 U.S. App. LEXIS 22347
| Fed. Cir. | 2016Background
- Commerce reviewed antidumping duties for lightweight thermal paper from Germany for Nov 1, 2010–Oct 31, 2011; Koehler was the sole respondent.
- Appvion alleged Koehler engaged in a transshipment scheme to hide German (home‑market) sales; Commerce issued a supplemental questionnaire and extended deadlines twice.
- Koehler later admitted employees knowingly transshipped and submitted updated home‑market sales data on the supplemental‑questionnaire deadline, but Commerce rejected that updated dataset as untimely and unreliable.
- Commerce found Koehler withheld information, impeded the proceeding, and failed to cooperate to the best of its ability, and therefore relied on adverse facts available (AFA) under 19 U.S.C. § 1677e.
- Commerce applied the highest margin from the petition (75.36%) as AFA and corroborated it using transaction‑specific margins from Koehler’s prior (second) review.
- The Court of International Trade upheld Commerce; the Federal Circuit affirmed, rejecting Koehler’s challenges to data exclusion, corroboration, and refusal to accept late data.
Issues
| Issue | Koehler's Argument | Commerce/United States' Argument | Held |
|---|---|---|---|
| Whether Commerce could disregard Koehler’s original home‑market data and apply adverse inferences under § 1677e(b) | Koehler argued its submitted data (except late updates) was reliable and Commerce should not reject timely submissions | Commerce argued intentional concealment, untimely submission of corrected data, and failure to cooperate justified AFA and exclusion of unreliable data | Affirmed: substantial evidence supports AFA and exclusion because of intentional transshipment and failure to act to the best of its ability |
| Whether the 75.36% AFA rate (from the petition) was properly corroborated under § 1677e(c) | Koehler argued the corroboration was inadequate and relied on aberrational, tiny‑volume sales (including a 144.63% margin) from the prior review | Commerce argued the petition rate fell within the range of transaction‑specific margins from Koehler’s own prior sales data and thus had probative value | Affirmed: Commerce sufficiently corroborated the petition rate by tying it to Koehler’s own prior sales data and commercial reality |
| Whether Commerce violated § 1677m(e)/(d) by refusing to consider Koehler’s updated (late) data | Koehler argued the updated dataset was necessary, verifiable, and should have been accepted or at least allowed to be remedied | Commerce argued the revised data was untimely, unverifiable, and the result of intentional misconduct so § 1677m(e) did not require acceptance; § 1677m(d) does not compel remedy for intentional fraud | Affirmed: Commerce permissibly refused the late data; substantial evidence supports findings that Koehler failed to act to the best of its ability and the data was untimely and unverifiable |
Key Cases Cited
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (standard for "best of its ability" and record‑keeping/cooperation expectations)
- Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339 (Fed. Cir. 2015) (fraudulent responses can justify disregarding submitted data)
- Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333 (Fed. Cir. 2011) (on reliability/usability of respondent data)
- F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (AFA must be a reasonably accurate estimate and not unreasonably punitive)
- Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010) (need to tie AFA to respondent’s commercial reality)
- Nan Ya Plastics Corp. v. United States, 810 F.3d 1333 (Fed. Cir. 2016) (accuracy and commercial reality as guideposts for corroboration)
- PAM, S.p.A. v. United States, 582 F.3d 1336 (Fed. Cir. 2009) (upholding large AFA based on a small number of higher‑margin sales)
- Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330 (Fed. Cir. 2002) (corroboration may be satisfied by a single sale reflecting the margin)
- KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 2010) (properly corroborated AFA is not a punitive measure)
- NTN Bearing Corp. v. United States, 74 F.3d 1204 (Fed. Cir. 1995) (Commerce may allow corrections of certain errors)
- Timken U.S. Corp. v. United States, 434 F.3d 1345 (Fed. Cir. 2006) (importer errors may be corrected pre‑final if shown and timely)