PAPIERFABRIK AUGUST KOEHLER SE, Plaintiff-Appellant v. UNITED STATES, Appvion, Inc., Defendants-Appellees
2015-1489
United States Court of Appeals, Federal Circuit.
Decided: December 16, 2016
843 F.3d 1373
Before TARANTO, CHEN, and STOLL, Circuit Judges.
CONCLUSION
We have considered Tile Tech‘s remaining arguments and find them unpersuasive. Accordingly, the decision of the U.S. District Court for the Central District of California is
AFFIRMED
Joshua E. Kurland, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by BENJAMIN C. MIZER, JEANNE E. DAVIDSON, REGINALD T. BLADES, JR.; JESSICA M. LINK, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Washington, DC.
Daniel Schneiderman, King & Spalding LLP, Washington, DC, argued for defendant-appellee Appvion, Inc. Also represented by GILBERT B. KAPLAN, STEPHEN A. JONES.
TARANTO, Circuit Judge.
This case involves the U.S. Department of Commerce‘s review of imports of lightweight thermal paper from Germany be-
I
Acting under
Koehler requested two extensions of time to respond to the May 16 supplemental questionnaire. On May 24, 2012, Koehler sought a two-week extension due to the temporary absence of key personnel, the time required to translate documents, and the difficulty of reviewing the many documents involved. Commerce granted that extension due to the “unique circumstances.” On June 4, 2012, Koehler sought a further three-week extension to respond to the supplemental questionnaire and to allow outside counsel to investigate the transshipment allegations. Commerce agreed in part, again citing “unique circumstances.”
Koehler finally responded to the supplemental questionnaire on June 27, 2012, the
Commerce published its preliminary results on December 11, 2012,
With respect to the data that Koehler timely submitted, Commerce found that “[t]he extent of Koehler‘s material misrepresentation in this case rendered Koehler‘s questionnaire responses wholly unreliable and unusable.” J.A. 1937. While Commerce acknowledged that “Koehler took certain measures after the allegation was made by Petitioner and acknowledged by Koehler,” it “d[id] not find that such actions taken by Koehler restore[d] [its] confidence in the reliability of [Koehler‘s] home market sales data submitted for this review, especially given the extent of the fraudulent activity involved in this transshipment scheme.” J.A. 1942. Commerce also noted that “Koehler did not reveal its transshipment scheme voluntarily; it did so only after [Appvion‘s] May 18, 2012, allegation” and that it “believe[d] it unlikely that Koehler would have provided information about the transshipment scheme and the omitted sales were it not for [Appvion‘s] allegation.” J.A. 1941.
Having rejected Koehler‘s timely-submitted data, Commerce chose to adopt, as the dumping margin it would apply to Koehler, the highest margin rate alleged in Appvion‘s petition, 75.36%. See
Commerce explained that
On April 24, 2013, Koehler filed a complaint with the Court of International Trade to challenge Commerce‘s final results. On December 6, 2013, Koehler moved for judgment on the agency record pursuant to Court of International Trade Rule 56.2, which permits the court to enter a final judgment for either party without a trial. Ct. of Int‘l Trade R. 56.2(b) (“If the court determines that judgment should be entered in an opposing party‘s favor, it may enter judgment in that party‘s favor, notwithstanding the absence of a cross-motion.“). The court sustained Commerce‘s determination and entered judgment for Commerce on September 3, 2014. Papierfabrik August Koehler, S.E. v. United States, 7 F.Supp.3d 1304 at 1318. Koehler moved to amend the judgment on October 3, 2014. The court denied the motion on January 20, 2015. Papierfabrik August Koehler, 44 F.Supp.3d at 1359.
Koehler appeals. It challenges (1) Commerce‘s decision to disregard its original home-market data; (2) Commerce‘s corroboration of the 75.36% figure; and (3) Commerce‘s refusal to allow Koehler to submit updated data after the fact-submission deadline, which was the date on which Appvion notified Commerce of Koehler‘s transshipment scheme. We have jurisdiction under
II
We review Commerce‘s determinations applying the same standard to Commerce‘s actions that the Court of International Trade applies. Apex Exports v. United States, 777 F.3d 1373, 1377 (Fed. Cir. 2015). Commerce‘s decision is reviewed here to determine if it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.”
A
We see no reversible error in Commerce‘s determination to draw adverse inferences as to Koehler without relying on Koehler‘s original, incorrect home-market data.
Where “an interested party ... withholds information that has been requested,” “fails to provide such information by the deadlines for submission of the information,” “significantly impedes a proceeding,” or “provides such information but the information cannot be verified,” Commerce may use the facts that are “oth-
Here, substantial evidence supports Commerce‘s decision to apply
Substantial evidence likewise supports Commerce‘s decision to apply
Commerce could also determine that Koehler‘s misconduct with respect to its home-market sales undermined the reliability of its original data, so that Commerce could disregard it as evidence of the lower dumping margins Koehler urged, rather than undertake new inquiries to determine how to arrive at correct data. We have held that fraudulent responses as to part of submitted data may suffice to support a refusal by Commerce to rely on any of that data in calculating the antidumping duty. Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339, 1355-57 (Fed. Cir. 2015) (approving a finding that the respondent‘s credibility was “impeach[ed] ... as a consequence of evidence reasonably indicating that [the respondent] deliberately withheld and misrepresented information, and these misrepresentations may reasonably be inferred to pervade the data in the record beyond that which Commerce has positively confirmed as misrepresented” (internal quotation marks omitted) (quoting Ad Hoc Shrimp Trade Action Comm. v. United States, 992 F.Supp.2d 1285, 1293 (Ct. Int‘l Trade 2014))). Koehler has not persuasively shown why Commerce could not take that approach in the circumstances of this case, where Commerce reasonably found that Koehler intentionally submitted materially false responses. Thus, Commerce could, in this case, find none of Koehler‘s
B
We see no reversible error in Commerce‘s adoption of a 75.36% rate from Appvion‘s petition, which Commerce sufficiently corroborated using Koehler‘s own data (which it could assume was not skewed against Koehler).
Under
That is not the end of the inquiry. Commerce must, “to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal.”
The facts of which the figure being corroborated must be “probative” are the facts made relevant by the statute. We said in F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000), that Congress intended an adverse-inference rate “to be a reasonably accurate estimate of the respondent‘s actual rate, albeit with some built-in increase intended as a deterrent to non-compliance,” not an “unreasonably high rate[] with no relationship to the respondent‘s actual dumping margin,” and that Commerce has wide, though not unbounded, discretion “to select adverse facts that will create the proper deterrent to non-cooperation with its investigations and assure a reasonable margin.” Id. at 1032. We reiterated those points in Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010), while also criticizing Commerce for ignoring the respondent‘s “commercial reality.” Id. at 1323-24. Recently, we “clarified] that ‘commercial reality’ and ‘accurate’ represent reliable guideposts for Commerce‘s determinations,” but “[t]hose terms must be considered against what the antidumping statutory scheme demands.” Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1343 (Fed. Cir. 2016). Thus, “a Commerce de-
Under those standards, Commerce has satisfied the statute: in particular, the figure it chose has probative value as to the combination of accuracy and deterrence our cases have discussed. The record here includes the data that Koehler submitted in the second administrative review. Commerce, looking at that data, determined that the rate it chose “fell within the range of transaction-specific margins calculated in [the second administrative review].” J.A. 1948. The key graph Koehler relies on shows that, while most sales in that dataset were made with margins between -10% and 30%, one sale showed a margin of almost 50%, and one a margin of 144.63%. Commerce further found that “[t]he margin calculation data from [the second administrative review] is relevant for purposes of corroboration because it is Koehler‘s own data and thus reflective of its commercial practices.” J.A. 1948. In several cases, we have upheld Commerce‘s use of a party‘s own data for corroboration, even where that data represents a small portion of the total sales available and supports a rate that is much higher than rates applied to the respondent in previous segments of the proceeding or to other respondents in the same segment. See PAM, S.p.A. v. United States, 582 F.3d 1336, 1340 (Fed. Cir. 2009) (upholding a dumping margin of 45.49% based on 29 sales made at margins higher than that, representing 0.5% of PAM‘s total U.S. sales during a prior period, even after the Court of International Trade had previously remanded that same rate for corroboration because it had looked so high as to be punitive); Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1339 (Fed. Cir. 2002) (upholding a dumping margin of 30.95% based on a single sale made by Ta Chen at that margin representing 0.04% of Ta Chen‘s sales during that period because “the 30.95% dumping margin is corroborated by actual sales data, and Ta Chen admits that it is reflective of some, albeit a small portion, of Ta Chen‘s actual sales“). We see no reason for a different conclusion as to the permissibility of Commerce‘s corroboration determination here.
Koehler argues that the sale in the second administrative review reported with a 144.63% margin was aberrational and so could not be used to corroborate the petition rate. But the mere fact that a margin is unusually high does not mean that it lacks probative value and hence cannot be used for corroboration. See Nan Ya, 810 F.3d at 1347 (stating, in the context of applying
What Commerce did with the second-review Koehler data was reasonable. Commerce could assume, as an adverse inference, that Koehler‘s margins throughout the second administrative review period were artificially depressed because Koehler admitted that it had been engaged in the transshipment scheme during that time as well as the period covered by the third administrative review. The actual rate Commerce adopted (75.36%) was only about half the rate Koehler complains is so aberrational as to be unreliable (144.63%). And the next highest margins in the second-review dataset, which Koehler does not challenge, do not have the single-digit or near-zero rates Koehler urges are appropriate, but consist of one sale made at a 48.68% margin and 18 sales made with margins between 20% and 30%. We note that Commerce is not required to “corroborate corroborating data,” Nan Ya, 810 F.3d at 1349, but merely satisfy itself that it has probative value.
Our decision in Gallant Ocean is not to the contrary. There, we held that Commerce had failed to corroborate the rate it chose because it had failed to “identify any relationship between” the data it used for corroboration and the respondent‘s actual rate. 602 F.3d at 1324. The Gallant Ocean court distinguished Ta Chen and PAM as cases in which Commerce had tied the rate chosen to the respondents’ actual sales. Id. at 1324-25. Here, as in Ta Chen and PAM, Commerce has tied its chosen rate to Koehler‘s actual sales, and in doing so has adequately corroborated that rate.
Finally, Koehler complains that the rate is punitive, and therefore statutorily improper, because it is over eleven times higher than the highest calculated rate imposed on Koehler in any prior review. But we have held that as long as a rate is properly corroborated according to the statute, Commerce has acted within its discretion and the rate is not punitive. KYD, Inc. v. United States, 607 F.3d 760, 768 (Fed. Cir. 2010) (upholding a rate of 122.88%, sixty-five times higher than any previously calculated rate, because “an AFA dumping margin determined in accordance with the statutory requirements is not a punitive measure, and the limitations applicable to punitive damages assessments therefore have no pertinence to duties imposed based on lawfully derived margins such as the margin at issue in this case“); Ta Chen, 298 F.3d at 1340 (“While Commerce may have chosen the 30.95% rate with an eye toward deterrence, Commerce acts within its discretion so long as the rate chosen has a relationship to the actual sales information available.“).
C
We see no reversible error in Commerce‘s refusal to accept Koehler‘s revised home-market sales data.
1. The refusal does not violate
For example, substantial evidence supports Commerce‘s determination that Koehler has not “demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by [Commerce],” as required by
As a second example, substantial evidence also supports Commerce‘s determination that the information was untimely. While the revised data was submitted on June 27, 2012, the (twice-extended) deadline for response to the supplemental questionnaire, Commerce explained that the supplemental questionnaire had not requested revised data—only that Koehler explain and identify certain seeming discrepancies among its original questionnaire responses. Therefore, as home market-sales data, the revised data should have been submitted by the original deadline for submission of that data, which had passed before the supplemental questionnaire was issued. Koehler does not argue that the supplemental questionnaire requested revised data. Rather, it argues that Commerce implicitly allowed an extension to submit revised data by granting Koehler‘s motion for an extension of time, because the motion explained that Koehler needed more time “for counsel to conduct due diligence in connection with the substance of the [transshipment] allegations” and “some of the questions in the Department‘s supplemental questionnaire concern the same set of facts [as the transshipment allegations].” J.A. 958-59. But Commerce clarified in its final results that it had allowed the extension of time only to the extent that it was necessary to completely and accurately respond to the supplemental questionnaire. Commerce‘s boilerplate characterization of the reasons in Koehler‘s request for an extension as “unique circumstances” does not amount to a grant of permission to submit data outside the scope of the initial request.
2. Koehler also argues that Commerce violated
The second sentence of the subsection refers to an obligation to accept submitted information in certain circumstances. But it does so only implicitly, in the course of declaring that Commerce has authority to “disregard” information, “subject to subsection (e).” That language invokes the separately stated obligation of
The first, more general sentence of
Commerce “emphasize[d]” that “the ‘deficiency’ at issue did not come about because Koehler inadvertently omitted a number of sales,” “due to an unintentional computer programming error,” or “because of a misunderstanding of the Department‘s questionnaire instructions.” J.A. 1938. Rather, “[t]he ‘deficiency’ in Koehler‘s questionnaire responses occurred because Koehler intended to submit deficient, incomplete, and fraudulent questionnaire responses to the Department.” Id. Section
3. Finally, Koehler argues that, even if Commerce had no statutory obligation to consider its updated data, Commerce nevertheless abused its discretion in refusing to accept the data. In several circumstances, we have held that Commerce abused its discretion in refusing to accept updated data when there was plenty of time for Commerce to verify or consider it. NTN Bearing Corp. v. United States, 74 F.3d 1204, 1207-08 (Fed. Cir. 1995) (requiring correction of typing errors); Timken U.S. Corp. v. United States, 434 F.3d 1345, 1353 (Fed. Cir. 2006) (expanding the holding in NTN to “any type of importer error—clerical, methodology, substantive, or one in judgment—... provided that the importer seeks correction before Commerce issues its final results and adequately proves the need for the requested corrections“). But those cases involved errors quite different from fraud. Here, Commerce did not abuse its discretion in denying Koehler a chance to correct data infected by intentional concealment of relevant information, when the concealment was discovered by another party to the proceeding.
III
For the foregoing reasons, we affirm the judgment of the Court of International Trade.
AFFIRMED