Federal Circuit Affirms Commerce Authority to Address Fraud in Antidumping Proceedings

News & Insights
Jan 10, 2017

In a decision upholding the U.S. Department of Commerce’s (Commerce) “considerable discretion” to determine the contents of the record in its administrative proceedings and to apply adverse facts available (AFA), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) on Friday affirmed the agency’s decision to reject, in their entirety, an exporter’s responses to the dumping questionnaire. In the absence of any reliable information on the record, Commerce assigned an AFA antidumping duty rate of 75.36 percent.

In the administrative review before Commerce, Koehler, a German producer of light-weight thermal paper (used for sales receipts) was found to have manipulated its sales to German customers to appear as if they were made to other countries “so that those sales would not be reported as home market sales.” Commerce found that, by doing so, the exporter improperly limited the universe of home market sales to reduce its dumping margins by artificially inflating the normal value compared to U.S. sales prices.

The German company, after admitting to the manipulation, submitted a revised database of home market sales but Commerce rejected the new data, stating that “the extent of Koehler’s material misrepresentations in this case rendered Koehler’s questionnaire responses wholly unreliable and unusable.” The exporter appealed Commerce’s determination to the U.S. Court of International Trade and the court upheld the agency. Koehler thereafter appealed to the Federal Circuit.

In its decision Friday, the Federal Circuit rejected the exporter’s argument that Commerce unreasonably rejected its revised database. The Court explained that it had previously held, in Ad Hoc Shrimp Trade Action Comm. v. United States, “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.” In Ad Hoc (where Picard Kentz & Rowe LLP represented the domestic industry), the Federal Circuit found that evidence reasonably indicating that a foreign exporter deliberately withheld and misrepresented information was sufficient to support a conclusion that the company’s credibility was impeached as to other related data placed on the record.

The Federal Circuit additionally rejected the exporter’s argument that the assigned 75.36 percent assessment rate was not reasonable. The Court found that the rate chosen by Commerce had “probative value as to combination of accuracy and deterrence” that prior decisions of the Federal Circuit required.

Although the importers of Koehler’s shipments face a substantial duty bill from the U.S. Government for past entries, the antidumping duty order on imports of light-weight thermal paper from Germany was revoked in 2015 following a sunset review determination by the U.S. International Trade Commission that the removal of duties would not result in the continuation or recurrence of material injury to the domestic industry.