United States Court of Appeals
for the Federal Circuit
______________________
PAPIERFABRIK AUGUST KOEHLER SE,
Plaintiff-Appellant
v.
UNITED STATES, APPVION, INC.,
Defendants-Appellees
______________________
2015-1489
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00163-NT, Senior Judge Nicholas
Tsoucalas.
______________________
Decided: December 16, 2016
______________________
JOHN F. WOOD, Hughes Hubbard & Reed LLP, Wash-
ington, DC, argued for plaintiff-appellant. Also represent-
ed by FLORA AMANDA DEBUSK, LYNN KAMARCK, MATTHEW
R. NICELY, ERIC S. PARNES, DANIEL MARTIN WITKOWSKI.
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 &
2 PAPIERFABRIK AUGUST KOEHLER SE v. US
Compliance, United States Department of Commerce,
Washington, DC.
DANIEL SCHNEIDERMAN, King & Spalding LLP, Wash-
ington, DC, argued for defendant-appellee Appvion, Inc.
Also represented by GILBERT B. KAPLAN, STEPHEN A.
JONES.
______________________
Before TARANTO, CHEN, and STOLL, Circuit Judges.
TARANTO, Circuit Judge.
This case involves the U.S. Department of Com-
merce’s review of imports of lightweight thermal paper
from Germany between November 1, 2010, and October
31, 2011, the third year covered by an applicable anti-
dumping duty order. In the review, the German firm
Papierfabrik August Koehler SE (Koehler) was the only
respondent. Commerce discovered midway through the
review that Koehler had engaged in a scheme resulting in
the omission of some German-market sales from the
information Koehler had supplied to Commerce, thereby
altering the home-market prices that are compared to
U.S. prices to measure the dumping margin. Because of
that misconduct, Commerce deemed Koehler’s data unre-
liable and made adverse inferences against Koehler.
Commerce adopted the highest dumping margin cited in
the petition that launched the original investigation,
relying for corroboration on sales data Koehler had sub-
mitted in the second-year review. See Lightweight Ther-
mal Paper from Germany: Final Results of Antidumping
Duty Administrative Review; 2010–2011, 78 Fed. Reg.
23,220 (Dep’t of Commerce Apr. 18, 2013). The Court of
International Trade approved Commerce’s determination.
Papierfabrik August Koehler S.E. v. United States, 7 F.
Supp. 3d 1304 (Ct. Int’l Trade 2014), motion to amend the
judgment denied, 44 F. Supp. 3d 1356 (Ct. Int’l Trade
PAPIERFABRIK AUGUST KOEHLER SE v. US 3
2015). Concluding that Commerce permissibly exercised
its considerable discretion, we affirm.
I
Acting under 19 U.S.C. § 1675, in response to the re-
quest of Appvion, Inc. (formerly known as Appleton
Papers, Inc.), Commerce initiated this third administra-
tive review of its antidumping duty order covering light-
weight thermal paper from Germany on December 30,
2011. Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Request for Revocation in
Part, 76 Fed. Reg. 82,268 (Dep’t of Commerce Dec. 30,
2011). Koehler responded to Section A of Commerce’s
antidumping questionnaire on February 21, 2012, and
Sections B and C on their due date, February 27, 2012.
Koehler’s responses included aggregate information about
the quantity and value of Koehler’s home-market sales, as
well as a database of information about individual home-
market sales transactions. Due to “questions which ha[d]
not been answered adequately, and areas where clarifica-
tion of the submitted information [was] required,” Com-
merce issued a supplemental questionnaire on May 16,
2012. J.A. 489–94. On May 18, 2012, Appvion filed an
affidavit from a confidential source asserting that Koehler
was engaged in a transshipment scheme, whereby it was
shipping goods destined for its home market through
other markets so that those sales would not be reported
as home-market sales to Commerce. Appvion also placed
on the record certain sales data submitted by Koehler in
the second administrative review (covering November 1,
2009, to October 31, 2010).
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
4 PAPIERFABRIK AUGUST KOEHLER SE v. US
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 allega-
tions. Commerce agreed in part, again citing “unique
circumstances.”
Koehler finally responded to the supplemental ques-
tionnaire on June 27, 2012, the new deadline. Along with
its response, Koehler admitted that its employees had
knowingly transshipped certain orders that should have
been reported as home-market sales, and it proffered an
updated home-market sales database that it alleged
included those sales. Although Commerce accepted the
supplemental questionnaire responses and allowed Koeh-
ler to correct some inadvertent errors in the originally
submitted home-market data, it refused to accept the
updated home-market sales data that included the omit-
ted, transshipped sales. Commerce explained that the
supplemental questionnaire had requested only clarifica-
tion, not new data; that Koehler’s new data was untimely;
and that Koehler had not shown good cause for extending
the deadline for data submission.
Commerce published its preliminary results on De-
cember 11, 2012, Lightweight Thermal Paper From
Germany; Preliminary Results of Antidumping Duty
Administrative Review; 2010–2011, 77 Fed. Reg. 73,615
(Dep’t of Commerce Dec. 11, 2012), and its final results on
April 18, 2013, Lightweight Thermal Paper from Germa-
ny: Final Results of Antidumping Duty Administrative
Review; 2010–2011, 78 Fed. Reg. 23,220 (Dep’t of Com-
merce Apr. 18, 2013). In its April 10 Issues and Decision
Memorandum accompanying the final results, Commerce
found that Koehler had withheld information, failed to
provide information in a timely manner, significantly
impeded the proceeding, and provided information that
could not be verified, and that Koehler also had failed to
cooperate to the best of its ability. J.A. 1935–36. On
PAPIERFABRIK AUGUST KOEHLER SE v. US 5
those bases, Commerce invoked its authority under 19
U.S.C. § 1677e(a) and (b), see Statement of Administrative
Action, H.R. Rep. No. 103-316, vol. 1, at 868–70 (1994), as
reprinted in 1994 U.S.C.C.A.N. 4040, 4198–99 (deemed
“authoritative” by 19 U.S.C. § 3512(d)), and concluded
that it would draw inferences adverse to Koehler. J.A.
1935–36.
With respect to the data that Koehler timely submit-
ted, Commerce found that “[t]he extent of Koehler’s
material misrepresentation in this case rendered Koeh-
ler’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 re-
store[d] [its] confidence in the reliability of [Koehler’s]
home market sales data submitted for this review, espe-
cially 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 19 U.S.C. § 1677e(b)(1)
(2012) (“an adverse inference may include reliance on
information derived from . . . the petition”). Commerce
then found corroboration for that figure in the fact that it
fell within the range of transaction-specific margins
calculated from data Koehler had submitted in the second
administrative review, where the margins ranged from
less than zero to 144.63%. See id. § 1677e(c) (providing
that for “secondary information” like Appvion’s petition,
6 PAPIERFABRIK AUGUST KOEHLER SE v. US
Commerce “shall, to the extent practicable, corroborate
that information from independent sources that are
reasonably at [its] disposal”).
Commerce explained that 19 U.S.C. § 1677m(e) did
not require Commerce to consider the updated infor-
mation that Koehler tried to submit. It found multiple
reasons for that provision’s inapplicability: first, Koehler
had not “submitted [that data] by the deadline”; second,
the data could not be “verified”; and third, Koehler had
not “demonstrated that it acted to the best of its ability in
providing the information and meeting the requirements
established by” Commerce. Id. § 1677m(e)(1), (2), (4).
Commerce also explained that it was not obligated to
accept Koehler’s late-filed updated data under
§ 1677m(d), which provides that Commerce in certain
circumstances shall permit a person “to remedy or ex-
plain” a “deficiency.” Commerce noted that Koehler’s
“deficiency” was not due to an error or misunderstanding,
but to intentional misconduct, which Commerce gave
Koehler an opportunity to explain.
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, notwithstand-
ing the absence of a cross-motion.”). The court sustained
Commerce’s determination and entered judgment for
Commerce on September 3, 2014. Papierfabrik August
Koehler, 7 F. Supp. 3d at 1318. Koehler moved to amend
the judgment on October 3, 2014. The court denied the
motion on January 20, 2015. Papierfabrik August Koeh-
ler, 44 F. Supp. 3d at 1359.
PAPIERFABRIK AUGUST KOEHLER SE v. US 7
Koehler appeals. It challenges (1) Commerce’s deci-
sion 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 updat-
ed data after the fact-submission deadline, which was the
date on which Appvion notified Commerce of Koehler’s
transshipment scheme. We have jurisdiction under 28
U.S.C. § 1295(a)(5).
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 “unsupport-
ed by substantial evidence on the record, or otherwise not
in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
A
We see no reversible error in Commerce’s determina-
tion to draw adverse inferences as to Koehler without
relying on Koehler’s original, incorrect home-sales data.
Where “an interested party . . . withholds information
that has been requested,” “fails to provide such infor-
mation by the deadlines for submission of the infor-
mation,” “significantly impedes a proceeding,” or
“provides such information but the information cannot be
verified,” Commerce may use the facts that are “otherwise
available” to it to calculate an antidumping margin. 19
U.S.C. § 1677e(a). If, in addition, Commerce finds that
“an interested party has failed to cooperate by not acting
to the best of its ability to comply with a request for
information,” then Commerce “may use an inference that
is adverse to the interests of that party in selecting from
among the facts otherwise available.” 19 U.S.C.
§ 1677e(b). The best-of-one’s-ability standard “does not
require perfection and recognizes that mistakes some-
8 PAPIERFABRIK AUGUST KOEHLER SE v. US
times occur,” but “it does not condone inattentiveness,
carelessness, or inadequate record keeping.” Nippon Steel
Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir.
2003). The standard expects respondents to “(a) take
reasonable steps to keep and maintain full and complete
records . . . ; (b) have familiarity with all of the records it
maintains in its possession, custody, or control; and
(c) conduct prompt, careful, and comprehensive investiga-
tions of all relevant records that refer or relate to the
imports in question.” Id.
Here, substantial evidence supports Commerce’s deci-
sion to apply § 1677e(a). There is substantial evidence
that Koehler engaged in an intentional transshipment
scheme that caused it to withhold certain home-sales
information from its responses to Commerce, an omission
that impeded the investigation, and that it offered updat-
ed information only after the deadline for submitting
data. Commerce could properly find one or more of the
conditions stated in § 1677e(a) satisfied in this case.
Substantial evidence likewise supports Commerce’s
decision to apply § 1677e(b). There is substantial evi-
dence that Koehler did not cooperate to the best of its
ability. The kind of misconduct evidenced here is far from
the cooperation that standard demands. See Nippon
Steel, 337 F.3d at 1382. Koehler attempts to pin the
misconduct on a few errant employees. But Commerce
could find that Koehler is responsible for the conduct of
its employees and for the responses it provided to Com-
merce. Indeed, Koehler and its outside counsel certified
the accuracy and completeness of the original responses.
Thus, Commerce was entitled to make adverse inferences.
Commerce could also determine that Koehler’s mis-
conduct with respect to its home-market sales under-
mined the reliability of its original data, so that
Commerce could disregard it as evidence of the lower
dumping margins Koehler urged, rather than undertake
PAPIERFABRIK AUGUST KOEHLER SE v. US 9
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 Com-
merce to rely on any of that data in calculating the anti-
dumping 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 misrepresenta-
tions 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 Com-
merce could not take that approach in the circumstances
of this case, where Commerce reasonably found that
Koehler intentionally submitted materially false respons-
es. Thus, Commerce could, in this case, find none of
Koehler’s original home-market sales data so “reliable or
usable” as to block an otherwise-permissible adverse
inference. Zhejiang DunAn Hetian Metal Co. v. United
States, 652 F.3d 1333, 1348 (Fed. Cir. 2011).
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 19 U.S.C. § 1677e(b)(1) (2012), “the petition” is
one source of information Commerce may tap when draw-
ing an adverse inference under § 1677e(b). The statute
thus expressly permitted Commerce to turn to Appvion’s
petition, and that authorization does not exclude petition
numbers that are based on information other than the
(uncooperative) respondent’s own sales. Indeed, Com-
10 PAPIERFABRIK AUGUST KOEHLER SE v. US
merce asserts, without disproof from Koehler, that Com-
merce’s “longstanding practice” when making adverse
inferences is to “select the higher of: (1) the highest mar-
gin stated in the notice of initiation; or (2) the highest
margin calculated for any respondent.” J.A. 1947.
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.” 19 U.S.C. § 1677e(c) (2012). 1 Both the authori-
tative Statement of Administrative Action and a Com-
merce regulation, in turn, declare that corroborating
information means determining that it “has probative
value.” Statement of Administrative Action, H.R. Rep.
No. 103-316, vol. 1, at 870, as reprinted in 1994
U.S.C.C.A.N. at 4199 (“Corroborate means that the agen-
cies will satisfy themselves that the secondary infor-
mation to be used has probative value.”); 19 C.F.R.
§ 351.308(d) (“Corroborate means that the Secretary will
examine whether the secondary information to be used
has probative value.”).
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
1 Although Congress has recently amended the sub-
section of 19 U.S.C. § 1677e relating to corroboration of
secondary information, that amendment was not retroac-
tive and took effect on June 29, 2015, after Commerce’s
determination here. Trade Preferences Extension Act of
2015, Pub. L. No. 114-27, 129 Stat. 362; Ad Hoc Shrimp,
802 F.3d at 1352.
PAPIERFABRIK AUGUST KOEHLER SE v. US 11
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 (Thai-
land) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010),
while also criticizing Commerce for ignoring the respond-
ent’s “commercial reality.” Id. at 1323–24. Recently, we
“clarif[ied] that ‘commercial reality’ and ‘accurate’ repre-
sent reliable guideposts for Commerce’s determinations,”
but “[t]hose terms must be considered against what the
antidumping statutory scheme demands.” Nan Ya Plas-
tics Corp. v. United States, 810 F.3d 1333, 1343 (Fed. Cir.
2016). Thus, “a Commerce determination (1) is ‘accurate’
if it is correct as a mathematical and factual matter, thus
supported by substantial evidence; and (2) reflects ‘com-
mercial reality’ if it is consistent with the method provid-
ed in the statute, thus in accordance with law.” Id. at
1344.
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
12 PAPIERFABRIK AUGUST KOEHLER SE v. US
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 permissibil-
ity of Commerce’s corroboration determination here.
Koehler argues that the sale in the second adminis-
trative 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 unusual-
ly 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
§ 1677e(b), that “[t]he statute simply does not require
Commerce to select facts that reflect a certain amount of
sales, yield a particular margin, fall within a continuum
according to the application of particular statistical meth-
ods, or align with standards articulated in other statutes
and regulations”); PSC VSMPO-AVISMA Corp. v. United
States, 755 F. Supp. 2d 1330, 1338 & n.10 (Ct. Int’l Trade
2011) (refusing to treat a sale with unusually low quanti-
ty and unusually high freight expenses as an outlier
PAPIERFABRIK AUGUST KOEHLER SE v. US 13
because Commerce’s investigation showed that neither of
those factors were correlated to the sale’s high margin
and explaining that “the fact that this sale has the high-
est transaction-specific margin by a wide margin . . . in
and of itself, does not automatically render the rate
aberrational”), aff’d, 498 F. App’x 995 (Fed. Cir. 2013).
Nor does the fact that the 144.63%-margin sale represents
only 0.03% of Koehler’s total sales make it improper for
Commerce to rely on it. See PAM, 582 F.3d at 1340.
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 aberra-
tional 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
14 PAPIERFABRIK AUGUST KOEHLER SE v. US
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 accord-
ing to the statute, Commerce has acted within its discre-
tion 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 previ-
ously calculated rate, because “an AFA dumping margin
determined in accordance with the statutory require-
ments 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 deter-
rence, Commerce acts within its discretion so long as the
rate chosen has a relationship to the actual sales infor-
mation 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 19 U.S.C. § 1677m(e),
which in some circumstances does require consideration
of information. Under that provision, Commerce “shall
not decline to consider information that is submitted by
an interested party and is necessary to the determination
but does not meet all the applicable requirements” as long
as all five requirements listed in that subsection are met.
Id. Commerce found that Koehler had not met at least
three of these requirements—that the information be
“submitted by the deadline,” that “the information can be
verified,” and that “the interested party has demonstrated
PAPIERFABRIK AUGUST KOEHLER SE v. US 15
that it acted to the best of its ability in providing the
information and meeting the requirements established by
the administering authority.” Because substantial evi-
dence supports at least one of those findings—indeed
more than one—there is no violation of § 1677m(e).
For example, substantial evidence supports Com-
merce’s determination that Koehler has not “demonstrat-
ed that it acted to the best of its ability in providing the
information and meeting the requirements established by
[Commerce],” as required by § 1677m(e)(4). Koehler has
admitted that it submitted fraudulent sales data. Alt-
hough Koehler claims that it did its best because it at-
tempted to correct the data as soon as its “senior
management” learned of the misreporting, Commerce was
entitled, as discussed above, to hold Koehler responsible
for the conduct of its employees. Thus, Koehler’s con-
cealment of data shows that it was not acting to the best
of its ability. See Nippon Steel, 337 F.3d at 1383 (“inten-
tional conduct, such as deliberate concealment or inaccu-
rate reporting, surely evinces a failure to cooperate”).
As a second example, substantial evidence also sup-
ports 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. Koeh-
ler 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, be-
cause the motion explained that Koehler needed more
16 PAPIERFABRIK AUGUST KOEHLER SE v. US
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 supple-
mental 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 exten-
sion 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 19
U.S.C. § 1677m(d) in refusing to accept the updated data.
We disagree.
The second sentence of the subsection refers to an ob-
ligation to accept submitted information in certain cir-
cumstances. 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 § 1677m(e). As
just discussed, § 1677m(e) did not oblige Commerce to
accept Koehler’s data here.
The first, more general sentence of § 1677m(d) states
that, where “a response to a request for information under
this subtitle does not comply with the request,” Commerce
must “promptly inform the person submitting the re-
sponse of the nature of the deficiency and shall, to the
extent practicable, provide that person with an opportuni-
ty to remedy or explain the deficiency.” Id. (emphases
added). But nothing in that language compels Commerce
to treat intentionally incomplete data as a “deficiency”
and then to give a party that has intentionally submitted
incomplete data an opportunity to “remedy” as well as to
“explain.” The consequence of such a reading would be to
PAPIERFABRIK AUGUST KOEHLER SE v. US 17
permit respondents to submit fraudulent data with the
knowledge that, should their misconduct come to light,
they can demand an opportunity to remedy their inten-
tionally deficient data and avoid the otherwise-authorized
adverse inferences. The language of § 1677m(d) does not
compel that reading. It permits Commerce not to deem
such misconduct to be a “deficiency” or to provide only an
opportunity to “explain” (but not “remedy”) such miscon-
duct. Here, Commerce did both.
Commerce “emphasize[d]” that “the ‘deficiency’ at is-
sue did not come about because Koehler inadvertently
omitted a number of sales,” “due to an unintentional
computer programming error,” or “because of a misunder-
standing of the Department’s questionnaire instructions.”
J.A. 1938. Rather, “[t]he ‘deficiency’ in Koehler’s ques-
tionnaire responses occurred because Koehler intended to
submit deficient, incomplete, and fraudulent question-
naire responses to the Department.” Id. Section
1677m(d), which requires Commerce to “inform the per-
son submitting the response of the nature of the deficien-
cy,” is readily understood not to apply to the situation
here, where Koehler was already aware of and caused the
“so-called deficiency.” J.A. 1938, 1940 (“Accordingly, we
find Koehler’s arguments that the Department ‘unlawful-
ly denied Koehler an opportunity to remedy its deficien-
cy . . .’ to be disingenuous. Koehler did not need the
Department to ‘promptly inform {Koehler} of the nature of
the deficiency.’” (alteration in original)). And in any
event, Commerce gave Koehler an opportunity to explain
its conduct. Section 1677m(d) was satisfied.
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.
18 PAPIERFABRIK AUGUST KOEHLER SE v. US
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 judg-
ment— . . . 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 conceal-
ment 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