Papierfabrik August Koehler SE v. United States
| Decision Date | 03 September 2014 |
| Docket Number | Slip Op. 14–102.,Court No. 13–00163. |
| Citation | 7 F.Supp.3d 1304 |
| Parties | PAPIERFABRIK AUGUST KOEHLER SE, Plaintiff, v. UNITED STATES, Defendant, and Appleton Papers Inc., Defendant–Intervenor. |
| Court | U.S. Court of International Trade |
F. Amanda DeBusk, Matthew R. Nicely, John F. Wood, Eric S. Parnes, Lynn G. Kamarck, and Alexandra B. Hess, Hughes Hubbard & Reed LLP, of Washington, DC, for plaintiff.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Jessica M. Forton, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Daniel L. Schneiderman and Gilbert B. Kaplan, King & Spalding LLP, of Washington, DC, for defendant-intervenor.
Plaintiff Papierfabrik August Koehler SE (“Koehler”) moves for judgment on the agency record contesting the determination of the U.S. Department of Commerce (“Commerce”) in Lightweight Thermal Paper From Germany: Final Results of Antidumping Duty Administrative Review; 2010–2011, 78 Fed.Reg. 23,220 (Apr. 18, 2013) (“Final Results ”). Commerce and defendant-intervenor Appvion, Inc. (“Appvion”),1 oppose Koehler's motion. For the following reasons, Koehler's motion is denied.
Commerce initiated the third administrative review (“AR3”) of lightweight thermal paper (“LWTP”) from Germany in December 2011. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 76 Fed.Reg. 82,268, 82,269 (Dec. 30, 2011). At the onset, Commerce requested data on Koehler's home market sales, U.S. sales, and costs. Sales Questionnaire (Jan. 6, 2012), Public Rec.2 9–12.
Koehler provided timely responses to Commerce's questionnaire and certified to the accuracy and completeness of its responses. See Koehler Resp. § A Questionnaire (Feb. 21, 2012), CR 2–4; Koehler Resp. §§ B & C Questionnaire (Feb. 27, 2012), CR 5–14. On May 16, 2012, Commerce issued a supplemental questionnaire requesting that Koehler clarify certain responses.See First Supplemental Questionnaire (May 16, 2012), CR 47.
On May 18, 2012, the last day to submit new factual information, Appvion submitted an affidavit from a confidential source regarding Koehler's home market sales. See Submission of New Factual Information at 2–3 & Exh. 1 (May 18, 2012), CR 49 (“May 18th Letter”). Although Appvion withheld certain information from disclosure, it provided a public summary in which it alleged that Koehler “engaged in a scheme to defraud [Commerce] by intentionally concealing certain otherwise reportable home market transactions.” Id. at 2. Specifically, Appvion claimed that Koehler was “selling 48 gram thermal paper that it knows is destined for consumption in Germany through various intermediaries in third-countries.” Id. at 2–3. Appvion further alleged that Koehler undertook this transshipment scheme “to artificially manipulate prices attributable to those sales of 48 gram paper shipped directly to its German customers.” Id. at 3.
Koehler initially denied the allegations, and objected to Appvion's bracketing3 of certain information in its submission. See Objections of Koehler to Over–Bracketing of Petitioner's May 18 New Fictional Information Letter at 1–8 (May 23, 2012), PR 92. Commerce requested that Appvion provide further justification for its bracketing of certain information, see Letter to Appvion re: Submission of New Factual Information at 1 (June 1, 2012), PR 98, but did not require disclosure. Koehler also requested an extension of time to submit its supplemental questionnaire response (“SQR”) and respond to Appvion's allegations, Request for Add'l Extension of Deadline for Submission of First SQR at 1–2 (June 4, 2012), PR 99, which Commerce granted in part. See Second Request for Extension of SQR at 1 (June 5, 2012), PR 100.
In its SQR, Koehler admitted that “certain sales of 48–gram [LWTP], which were shipped to a third country, were ultimately delivered to customers in the German market, and should have been reported by Koehler as home market transactions.”4 SQR at 1 (June 27, 2012), CR 66. It described the nature of the transshipment arrangements: Koehler shipped merchandise to intermediaries outside of Germany [[Confidential Data Deleted ]]; the intermediaries [[Confidential Data Deleted ]] shipped it directly to the customer in Germany. Id. at 2–3. According to Koehler, “[t]he impact of this shipping arrangement was to [[Confidential Data Deleted ]].” Id. at 2. It further explained that it made these arrangements in order to make home market sales “[[Confidential Data
]].” Id. at 3. Despite this admission, Koehler claimed that “these acts and omissions were undertaken without the authority or knowledge of the Chief Executive Officer, the Chief Financial Officer, the in-house counsel, or the Board of Directors of Koehler.” Id. at 1.
Koehler also submitted new home market sales data including the transshipped sales it omitted from its initial questionnaire response. Id., Exh. S1–27. Commerce rejected this data as “untimely filed factual information that was not solicited” in the supplemental questionnaire. Rejection of Factual Information Submission Filed by Koehler at 1 (July 5, 2012), PR 108. Koehler subsequently refiled its SQR without the transshipped sales data. Resubmission of Portion of SQR (Aug. 2, 2012), CR 90.
Commerce issued its preliminary determination in December 2012. LWTP From Germany; Preliminary Results of Antidumping Duty Administrative Review; 2010–2011, 77 Fed.Reg. 73,615 (Dec. 11, 2012) (“Preliminary Results ”). Because Koehler transshipped certain home market sales and then omitted those sales from its initial questionnaire responses, Commerce preliminarily applied total adverse facts available (“AFA”). See Preliminary Results of Antidumping Duty Administrative Review: Application of Total AFA to Koehler at 1, 11–16 (Dec. 3, 2012), CR 99. It selected the petition rate of 75.36% as the AFA rate. Id. at 17. In its final determination, Commerce upheld the Preliminary Results in their entirety. See Issues and Decision Memorandum for the Final Results of the 2010–2011 Administrative Review on LWTP from Germany at 1 (Apr. 11, 2013), PR 176.
The Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012) and section 516A(a)(2)(B)(iii) of the Tariff Act of 1930,5 as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012).
The Court will uphold Commerce's determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
Koehler contests several aspects of the Final Results, including: Commerce's decision to reject its corrected sales data and apply AFA; Commerce's decision to apply total AFA; and Commerce's selection of the petition rate as Koehler's AFA rate. See Pl.'s Mem. Supp. R. 56.2 Mot. J. Agency R. at 12–15 (“Pl.'s Mem.”). Because the Final Results were supported by substantial evidence and consistent with law, Koehler's motion must be denied.
Commerce may rely on facts otherwise available where “necessary information is not available on the record” or a party “withholds information that has been requested by [Commerce],” “fails to provide such information by the deadlines for submission of the information or in the form and manner requested,” “significantly impedes a proceeding,” or provides information that “cannot be verified.” 19 U.S.C. § 1677e(a).
Where a submission is deficient, Commerce “shall promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency in light of the time limits.” Id. § 1677m(d). If the response is unsatisfactory or untimely, Commerce may “disregard all or part of the original and subsequent responses.” Id.
Notwithstanding a partial deficiency, Commerce “shall not decline to consider” necessary information if (1) “the information is submitted by the deadline established for its submission,” (2) “the information can be verified,” (3) “the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination,” (4) “the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by [Commerce] with respect to the information,” and (5) “the information can be used without undue difficulties.” Id. § 1677m(e). The submission must satisfy all five conditions. Id.
Commerce may make an adverse inference in selecting from amongst the facts available if the respondent “fail[s] to cooperate by not acting to the best of its ability to comply with a request for information.” Id. § 1677e(b). Commerce may use information from the petition, the investigation, a prior administrative review, or other information on the record.Id. When relying on secondary information, Commerce “shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal.” Id. § 1677e(c).
Commerce applied AFA because Koehler failed to cooperate to the best of its ability with its request for complete and accurate home market sales data. See CR 99 at 13–16. Koehler argues that Commerce's decision to apply AFA was erroneous because...
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