Papierfabrik August Koehler AG v. United States , 37 F. Supp. 3d 1378 ( 2014 )

Slip Op. 14-160
UNITED STATES COURT OF INTERNATIONAL TRADE
PAPIERFABRIK AUGUST KOEHLER AG,
Plaintiff,
v.
UNITED STATES, Before: Timothy C. Stanceu, Chief Judge
Defendant, Court No. 11-00147
and
APPLETON PAPERS INC.,
Defendant-Intervenor.
OPINION
[Affirming a remand redetermination by the U.S. Department of Commerce in response to a
court order in litigation contesting the final results of an administrative review of an antidumping
duty order on certain lightweight thermal paper from Germany]
Date: December 31, 2014
F. Amanda DeBusk, Hughes Hubbard & Reed, LLP, of Washington, DC, for plaintiff
Papierfabrik August Koehler SE. With her on the brief were Matthew R. Nicely, Eric S. Parnes,
and Robert L. LaFrankie.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for defendant United States. 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. Link,
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, argued for defendant-intervenor Appvion, Inc.
Stanceu, Chief Judge: In this case, plaintiff Papierfabrik August Koehler SE (“Koehler”)
contested a final determination (“Final Results”) that the International Trade Administration,
Court No. 11-00147 Page 2
U.S. Department of Commerce (“Commerce” or the “Department”) issued to conclude the first
administrative review of an antidumping duty order on certain lightweight thermal paper from
Germany (the “subject merchandise”).1 See Lightweight Thermal Paper From Germany: Notice
of Final Results of the First Antidumping Duty Administrative Review, 76 Fed. Reg. 22,078,
22,079 (Int’l Trade Admin. Apr. 20, 2011) (“Final Results”). The first administrative review
period covers entries of subject merchandise made from November 20, 2008 through
October 31, 2009 (the “period of review” or “POR”). Id.
Before the court is the redetermination pursuant to remand (“Remand Redetermination”)
Commerce issued in response to the court’s order in Papierfabrik August Koehler AG v. United
States, 38 CIT __, 971 F. Supp. 2d 1246 (2014) (“Papierfabrik I”). Final Results of
Redetermination Pursuant to Court Remand (June 23, 2014), ECF No. 104-1 (“Remand
Redetermination”). The court will affirm the Remand Redetermination.
I. BACKGROUND
The court’s prior opinion provides background on this case, which is supplemented
herein. Papierfabrik I, 38 CIT at __, 971 F. Supp. 2d at 1247-49. Koehler is a German producer
and exporter of lightweight thermal paper and Koehler America, Inc. is an affiliated U.S.
distributor. Compl. ¶¶ 3-4 (June 3, 2011), ECF No. 6. Koehler was the only producer/exporter
Commerce examined in the first review. Final Results, 76 Fed. Reg. at 22,079.
During the first administrative review, Koehler reported having made rebates to its
customers, on monthly, quarterly, and annual bases, in selling the foreign like product in its
1
During the course of the litigation, Papierfabrik August Koehler AG (“Koehler”)
changed from an “AG” to an “SE” corporate form. First Am. Compl. 1 n.1 (May 20, 2013), ECF
No. 83. Koehler America, Inc., previously a plaintiff in this action, was terminated as a party on
May 20, 2013. See Order (May 20, 2013), ECF No. 82.
Court No. 11-00147 Page 3
home market of Germany. Koehler’s First Supplemental Sections A–C Questionnaire
Resp. 15-16 (Apr. 15, 2010) (Pub. Admin.R.Doc. No. 44) (Conf. Admin.R.Doc. No. 10)
(“Koehler’s First Supplemental Questionnaire Resp.”). For the preliminary results of the review
(“Preliminary Results”), Commerce made downward adjustments to the home market sales
prices for all of the reported rebates when determining the normal value of Koehler’s subject
merchandise according to Koehler’s home market sales. Lightweight Thermal Paper From
Germany: Notice of Preliminary Results of Antidumping Duty Administrative Review, 75 Fed.
Reg. 77,831, 77,835-36 (Int’l Trade Admin. Dec. 14, 2010) (“Prelim. Results”). Commerce
preliminarily assigned Koehler a de minimis antidumping duty margin. Id. at 77,837.
In the Final Results, published on April 20, 2011, Commerce continued to adjust the
home market sales prices for Koehler’s reported quarterly and annual rebates but did not adjust
the sales prices to account for any rebate that Koehler paid as a “monatsbonus,” i.e., monthly
rebate. Final Results, 76 Fed. Reg. at 22,079; Issues & Decision Mem. for the Final Results of
the First Admin. Review of the Antidumping Duty Order on Lightweight Thermal Paper from
Germany 21, A-428-840, ARP 10-09(Apr. 13, 2011) (Pub. Admin.R.Doc. No. 109), available at
http://enforcement.trade.gov/frn/summary/GERMANY/2011-9574-1.pdf (last visited
Dec. 23, 2014) (“Decision Mem.”). Commerce assigned a 3.77% weighted-average antidumping
duty margin to Koehler. Final Results, 76 Fed. Reg. at 22,079.
In this action, plaintiff claimed that the Department’s decision not to make downward
adjustments for the monthly rebates was unlawful. First Am. Compl. ¶¶ 24-25 (May 20, 2013),
ECF No. 83 (“Am. Compl.”). Plaintiff also claimed that Commerce impermissibly denied
Koehler an opportunity to respond to certain correspondence between U.S. Senators and
Court No. 11-00147 Page 4
Representatives and the Secretary of Commerce that Commerce placed on the record on the last
day of the administrative review proceeding.2 Am. Compl. ¶¶ 22-23.
In Papierfabrik I, the court held the Final Results unlawful, construing the governing
regulations to preclude Commerce from disallowing adjustments to home market prices for the
monthly rebates in the circumstances presented. Papierfabrik I, 38 CIT at __, 971 F. Supp. 2d
at 1250-55. Because the court granted plaintiff’s requested relief based on that holding, the court
did not reach the question of whether Commerce must reopen the record to allow Koehler to
comment on the congressional correspondence. Id. at __, 971 F. Supp. 2d at 1258-59. The court
ordered Commerce to reach a new determination upon remand that conformed to the court’s
opinion and to redetermine Koehler’s margin as necessary. Id. at __, 971 F. Supp. 2d at 1259.
Commerce filed the Remand Redetermination with the court on June 23, 2014. Remand
Redetermination 1. In the Remand Redetermination, Commerce recognized downward
adjustments to Koehler’s home market sales prices to account for the monthly rebates. Id. at 4-5.
Commerce recalculated Koehler’s dumping margin from the 3.77% of the Final Results to
0.03%, which qualifies as a de minimis margin. Id. at 5.
On July 23, 2014, plaintiff and defendant-intervenor Appvion, Inc. (“Appvion”) each
filed comments on the Remand Redetermination.3 Pl.’s Comments on Final Results of
2
The correspondence involved in this issue is a March 30, 2011 letter to then-Commerce
Secretary Gary Locke co-signed by five members of the U.S. Congress and Secretary Locke’s
individual responses to the letter. See Mem. to the File re: Correspondence from U.S.
Congressmen (Pub. Admin.R.Doc. No. 107) (Apr. 13, 2011). On April 8, 2011, Secretary Locke
sent each member a reply letter stating that the Department was considering whether to make
adjustments for “certain reported rebates” in the Department’s final determination. Letter to
Rep. Michael Turner from Gary Locke (Pub. Admin.R.Doc. No. 102); Letter to Rep. Reid Ribble
from Gary Locke (Pub. Admin.R.Doc. No. 103); Letter to Senator Rob Portman from Gary
Locke (Pub. Admin.R.Doc. No. 104); Letter to Senator Sherrod Brown from Gary Locke (Pub.
Admin.R.Doc. No. 105); Letter to Senator Herb Kohl from Gary Locke (Pub. Admin.R.Doc.
No. 106).
Court No. 11-00147 Page 5
Redetermination Pursuant to Ct. Remand, ECF No. 106 (“Koehler’s Comments”);
Def.-intervenor’s Comments on the Remand Redetermination, ECF No. 108 (“Appvion’s
Comments”). Defendant replied to these comments on August 14, 2014. Def.’s Resp. to
Comments Regarding Remand Results, ECF No. 113 (“Def.’s Resp.”). Plaintiff fully supports
the Remand Redetermination. Koehler’s Comments 1, 3. While noting that Commerce
complied with the court’s decision under protest, defendant asks that the court affirm the
Remand Redetermination. Def.’s Resp. 2 (“The Court should affirm the remand results because,
as we demonstrate below, Commerce has complied with the Court’s opinion and order, and its
determination is supported by substantial evidence and in accordance with law.”). Appvion
disagrees with the court’s holding in Papierfabrik I that the Department’s disallowance of the
monthly rebates was based on an impermissible interpretation of the governing regulation.
Appvion’s Comments 1. Further, Appvion argues that the court must reject the Remand
Redetermination on the ground that Commerce violated 19 C.F.R. § 351.401(g) by failing to
consider whether Koehler’s allocation of the monthly rebates to a single product that Koehler
sold in the home market resulted in inaccuracies or distortion. Id.
II. DISCUSSION
The court exercises jurisdiction under section 201 of the Customs Courts Act of 1980,
28 U.S.C. § 1581(c), pursuant to which the court reviews actions commenced under
section 516A of the Tariff Act of 1930 (“Tariff Act”), 19 U.S.C. § 1516a, including an action
contesting the final results of an administrative review that Commerce issues under section 751
3
Defendant-intervenor changed its name from Appleton Papers Inc. to Appvion, Inc.
(“Appvion”) during the course of this litigation. See Letter to Clerk of the Court Re:
Papierfabrik AG v. United States, Ct. No. 11–00147 (June 21, 2013), ECF No. 84.
Court No. 11-00147 Page 6
of the Tariff Act, 19 U.S.C. § 1675(a).4 When reviewing the final results of an administrative
review, the court “shall hold unlawful any determination, finding, or conclusion found . . . to be
unsupported by substantial evidence on the record, or otherwise not in accordance with law. . . .”
19 U.S.C. § 1516a(b)(1)(B)(i).
A. The Remand Redetermination Reaches a Correct Result Under the Department’s Regulations
Papierfabrik I rejected the Department’s conclusion in the Final Results that the monthly
rebates should be disallowed because they were not “legitimate” rebates. That conclusion relied
on reasoning the court considered erroneous and findings the court deemed irrelevant. See
Papierfabrik I, 38 CIT at __, 971 F. Supp. 2d at 1250-54. The court ruled irrelevant the
Department’s findings that Koehler had failed to demonstrate that the monthly rebates were
made according to a rebate “program” and that its customers had prior knowledge of the rebate
or a rebate program. Id. at __, 971 F. Supp. 2d at 1252 (citing Decision Mem. 19). The court
explained that the applicable regulations did not condition a downward adjustment on the
existence of a “program” or whether a customer was aware of the terms of a rebate at the time of
sale. Id. at 1256-57.
The court based its holding in Papierfabrik I on the plain language of 19 C.F.R.
§ 351.401(c), which provides in pertinent part that “[i]n calculating . . . normal value (where
normal value is based on price), the Secretary will use a price that is net of any price adjustment,
as defined in § 351.102(b) . . . .” In § 351.102(b), the Department’s regulations provide that
“‘[p]rice adjustment’ means any change in the price charged for the subject merchandise or the
4
All statutory citations herein are to the 2006 edition of the United States Code and all
citations to regulations are to the 2010 edition of the Code of Federal Regulations.
Court No. 11-00147 Page 7
foreign like product, such as discounts, rebates, and post-sale price adjustments, that are [sic]
reflected in the purchaser’s net outlay.” 19 C.F.R. § 351.102(b)(38).
The court noted that Commerce found, both impliedly and expressly, that Koehler made
the monthly rebates at issue in its sales of the foreign like product in its home market.
Papierfabrik I, 38 CIT __, 971 F. Supp. 2d at 1251. The Department’s own findings, as stated in
the issues and decision memorandum accompanying the Final Results, caused the court to
conclude that Commerce was required to recognize the monthly rebates as “price reductions”
that were “reflected in the purchaser’s net outlay” within the meaning of the Department’s
regulations. Id. at __, 971 F. Supp. 2d at 1251-52.
In the Remand Redetermination, Commerce described the court’s holding as follows:
“The court held that the Department’s decision to disallow an adjustment to Koehler’s normal
value for its monthly home market rebates (‘monatsbonus’) was unsupported by law because the
governing regulations did not give the Department the discretion not to allow for such an
adjustment.” Remand Redetermination 1 (footnote omitted). Commerce added that “[w]hile we
respectfully disagree with the Court’s finding, based on the Court’s reasoning, we find that there
is no alternative but to alter our AR1 [first administrative review] Final Results and allow
Koehler’s monthly home market rebate adjustment on remand.” Remand Redetermination 4-5.
Commerce further explained that:
[T]he court stated that “the regulations do not merely ‘allow,’ but require,
Commerce to treat these rebates as post-sale price adjustments,” and that
“Commerce lacked the discretion not to recognize a reduction in the purchaser’s
net outlay for the foreign like product that satisfied the definition of a ‘price
adjustment’ in § 351.102(b)(38). 19 C.F.R. § 351.40l(c).”
Remand Redetermination 9-10 (footnote omitted).
Court No. 11-00147 Page 8
The court will affirm the Department’s decision on remand to recognize the monthly
rebates as price adjustments to home market sales of the foreign like product. Commerce
complied with the court’s remand order, correctly reasoning that its own regulations, as
construed by the court, did not allow it to refuse to recognize the monthly rebates as downward
price adjustments.
B. The Court Rejects Appvion’s Arguments in Opposition to the Remand Redetermination
In the Final Results, Koehler reported that during the POR it issued monthly rebates for
home market sales of only one lightweight thermal paper product, “KT 48 F20.” Koehler’s First
Supplemental Questionnaire Resp. 17; Koehler’s Second Supplemental Sales Questionnaire
Resp. 9 (Aug. 5, 2010) (Pub. Admin.R.Doc. No. 71) (Conf. Admin.R.Doc. No. 24) (“Koehler’s
Second Supplemental Questionnaire Resp.”); Koehler’s Third Supplemental Sales Questionnaire
Resp. 2 (Nov. 15, 2010) (Pub. Admin.R.Doc. No. 78) (Conf. Admin.R.Doc. No. 27) (“Koehler’s
Third Supplemental Questionnaire Resp.”). Record documents indicate that the rebate was
calculated as a percentage of the total monthly sales of KT 48 F20 that were made to an
individual customer, that the monthly calculation resulted in issuance of a credit to that customer
for the calculated amount, and that the rebate percentage generally varied from month to month
during the POR. See Koehler’s First Supplemental Questionnaire Resp., Ex. S-14 (conf.
version) (email communications concerning rebates); Koehler’s Second Supplemental Sales
Questionnaire Resp. 9; Koehler’s Third Supplemental Sales Questionnaire Resp., Exs. 1, 2 (conf.
version) (sample credits).
In comments on the draft version of the Remand Redetermination, Appvion argued that
Commerce should allocate the amount of the monthly rebates across all sales of the foreign like
product to the customer during the particular month rather than only to sales of KT 48 F20.
Court No. 11-00147 Page 9
Appvion’s Comments on the Draft Remand Redetermination 9-12 (May 23, 2014) (Pub. Remand
Admin.R.Doc. No. 13). In the final version of the Remand Redetermination, Commerce rejected
Appvion’s suggested reallocation and recognized the monthly rebates as Koehler had reported
them, i.e., by making downward adjustments only to the prices paid for KT 48 F20. Remand
Redetermination 9.
Appvion opposes the Remand Redetermination, arguing that the redetermination
misinterpreted the court’s remand order in Papierfabrik I by erroneously concluding that
Commerce lacked the authority to reallocate the rebates. Appvion’s Comments 1, 4-5. Appvion
contends that Commerce erroneously concluded it lacked discretion under the court’s order to
reallocate the rebates to address what Appvion alleges is “manipulation” by Koehler in applying
the monthly rebates to KT 48 F20 solely to reduce the dumping margin. Id. at 5-7. Next,
Appvion contends that in the Remand Redetermination Commerce improperly failed to consider
whether the allocation methodology used by Koehler resulted in “inaccuracies or distortions,”
contrary to the requirement of 19 C.F.R. § 351.401(g). Id. at 8-11. Seeking a second remand,
Appvion argues that Commerce has authority under 19 C.F.R. § 351.401(g) to reallocate the
monthly rebates in order to “prevent manipulation,” that the court’s decision in Papierfabrik I
did not hold otherwise, and that Commerce should reallocate Koehler’s monthly rebates to all
sales of the foreign like product made to the relevant home market customer during the month.
Id. at 11. The court concludes that the Department’s decision not to reallocate the monthly
rebates was lawful and, accordingly, that a second remand is not warranted.
The issue of whether the rebates should be recognized as applying only to sales of
KT 48 F20 or reallocated to a wider group of home market sales was not raised previously in this
Court No. 11-00147 Page 10
litigation and, therefore, was not addressed by the court in Papierfabrik I.5 It follows that
Commerce could not correctly have interpreted the court’s opinion and order in Papierfabrik I to
limit its discretion in resolving that issue on remand. Nor is warranted to conclude that
Commerce believed it was limited by the court’s ruling in deciding the issue. Although certain
language in the Remand Redetermination, when read in isolation, could be construed to indicate
that Commerce believed the court’s ruling did not allow it to address “manipulation” by
reallocating the monthly rebates, a reading of the entire Remand Redetermination in context
casts some doubt on such a construction.
In the Remand Redetermination, Commerce clarified that it had not considered the
reallocation issue in the Final Results. Remand Redetermination 9 (“[B]ecause we disallowed
Koehler’s rebates in their entirety, we did not address petitioner’s arguments at that time [i.e.,
during the Final Results].”). Commerce proceeded to address the allocation issue on the merits
and came to its own determination on this issue. Id. (“Thus, we address these comments now in
the first instance.”). Quoting from the court’s opinion, Commerce correctly understood that the
court in Papierfabrik I held that in the situation presented Commerce was not authorized under
19 C.F.R. § 351.401(c) and § 351.102(b)(38) to refuse to recognize the monthly rebates as
post-sale price adjustments. Remand Redetermination 9-10. The sentence in the Remand
Redetermination that follows this discussion reads as follows: “Therefore, under this
5
Although Appvion raised this allocation challenge during the administrative proceeding,
Commerce did not address the question in the Final Results because Commerce had chosen not
to adjust home market sales prices to account for the monthly rebates. See Issues & Decision
Mem. for the Final Results of the First Admin. Review of the Antidumping Duty Order on
Lightweight Thermal Paper from Germany 23, A-428-840, ARP 10-09 (Apr. 13, 2011) (Pub.
Admin.R.Doc. No. 109), available at
http://enforcement.trade.gov/frn/summary/GERMANY/2011-9574-1.pdf (last visited
Dec. 23, 2014); Final Results of Redetermination Pursuant to Court Remand 9 (June 23, 2014),
ECF No. 104-1 (“Remand Redetermination”).
Court No. 11-00147 Page 11
interpretation of 19 CFR 351.102(b)(38) and 351.401(c), the Department does not have the
discretion to consider the legitimacy of, and therefore the possible manipulation of the dumping
margin through, such rebates.” Id. at 10 (footnote omitted). If read apart from the related
discussion in the Remand Redetermination, this sentence might be interpreted to mean that
Commerce considered the court to have limited the Department’s discretion to address the
question of “manipulation” through reallocation of the rebates. Nevertheless, the discussion in
the Remand Redetermination that follows consists of two paragraphs in which Commerce
presented its reasons for not performing the reallocation urged by Appvion. Id. at 9-10. None of
the reasons provided pertains to the court’s opinion and order in Papierfabrik I. Moreover,
Commerce grounded its reasoning in 19 C.F.R. § 351.401(g) rather than the two regulatory
provisions it mentioned in the sentence in question, 19 C.F.R. § 351.401(c) and
§ 351.102(b)(38). Id. If Commerce considered itself bound by the court’s order in addressing
the reallocation issue, it did not unambiguously make that point in the Remand Redetermination.
Commerce instead decided as a matter of first impression the issue Appvion had raised with
respect to allocation. In any event, the court concludes that Commerce did so in a way that was
within its regulatory discretion and supported by substantial record evidence.
According to Appvion’s interpretation of 19 C.F.R. § 351.401(g), Commerce did not
satisfy the requirement in its regulations to determine whether Koehler’s allocation of the
monthly rebates to only one product, KT 48 F20, resulted in “inaccuracies or distortion” before
adopting that allocation. Appvion’s Comments 8 (arguing that 19 C.F.R. § 351.401(g)(1)
“mean[s] that Commerce may not accept a proposed allocation unless it first finds that the
allocation does not cause inaccuracies or distortion.”) (emphasis in original). The Department’s
regulations provide that “[t]he Secretary may consider allocated expenses and price adjustments
Court No. 11-00147 Page 12
when transaction-specific reporting is not feasible, provided the Secretary is satisfied that the
allocation method used does not cause inaccuracies or distortions.” 19 C.F.R. § 351.401(g)(1).
The regulations further provide that “[a]ny party seeking to report an expense or a price
adjustment on an allocated basis must demonstrate to the Secretary’s satisfaction that the
allocation is calculated on as specific a basis as is feasible, and must explain why the allocation
methodology used does not cause inaccuracies or distortions.” Id. § 351.401(g)(2). The
regulations also state that in “determining the feasibility of transaction-specific reporting or
whether an allocation is calculated on as specific a basis as is feasible, the Secretary will take
into account the records maintained by the party in question in the ordinary course of its
business, as well as such factors as the normal accounting practices in the country and industry in
question and the number of sales made by the party during the period of investigation or review.”
Id. § 351.401(g)(3).
The court disagrees with Appvion’s contention that Commerce failed to consider whether
Koehler’s directing the monthly rebates only to home market sales of KT 48 F20 caused
“inaccuracies or distortions” within the meaning of 19 C.F.R. § 351.401(g)(1) and (2). Because
of the nature of the express findings Commerce made in the Remand Redetermination, the court
must consider Commerce to have decided any question of whether Koehler’s “allocation,” i.e.,
its application of the rebate only to KT 48 F20, created an inaccuracy or a distortion. Commerce
identified an inaccuracy that would result were it to adopt Appvion’s proposed alternative,
finding that that “[a]pplying the total rebate amounts to all sales as suggested by petitioner would
be unrelated to Koehler’s actual commercial practices . . . .” Remand Redetermination 11.
Commerce noted that Koehler reported the rebate as being paid only on the KT 48 F20 product,
id., and record evidence consisting of commercial documents, including price lists and
Court No. 11-00147 Page 13
communications to the customer, supports the finding that the monthly rebates were calculated
each month based solely on sales of this product. See Koehler’s Sections B & C Questionnaire
Resp., Ex. B-4 (Feb. 16, 2010) (Conf. Admin.R.Doc. No. 3) (price lists); Koehler’s First
Supplemental Questionnaire Resp., Ex. S-14 (conf. version) (email communications); Koehler’s
Third Supplemental Sales Questionnaire Resp., Exs. 1, 2 (conf. version) (sample credits).
Applying the requirement in § 351.401(g)(2) that the allocation be “calculated on as
specific a basis as is feasible,” Commerce justifiably found on the record evidence that
“Koehler’s reported allocation methodology is on as specific a basis as is feasible, based on how
it [Koehler] tracks these rebates in its normal course of business,” Remand Redetermination 11,
and that Appvion’s proposed alternative would be “less specific than currently reported,” id. The
record evidence demonstrating that Koehler granted the rebate only on sales of KT 48 F20
supports these findings.
Based on the record evidence concerning Koehler’s monthly rebates, the court concludes
that the implication of Appvion’s argument is that Commerce was required to find “inaccuracy”
and “distortion” in Koehler’s decision to grant the rebate only on sales of the KT 48 F20 product.
Appvion’s argument appears to be directed to that decision, and Koehler’s motivation for doing
so, rather than to whether that decision was accurately reflected in those of Koehler’s ordinary
business records that were relevant to the “allocation” issue Appvion raised. Appvion argues
that “[i]n this case, Koehler arbitrarily ascribed the rebate to sales of KT 48 F20, resulting in an
artificial specificity,” Appvion’s Comments 9 (emphasis in original), that “had no commercial
justification and was done solely to manipulate the margin calculations,” id. Appvion submits
that Commerce “should have reallocated the monthly credit amounts using the most specific
methodology that would not result in ‘inaccuracies or distortions,’ i.e., assigning the aggregate
Court No. 11-00147 Page 14
rebate amount for each month to all sales of the foreign like product (including non-matching
models) . . . .” Id. This Commerce permissibly declined to do.
Nothing in the record evidence compelled Commerce to find “inaccuracy” or “distortion”
in connection with Koehler’s granting rebates only on the KT 48 F20 product. On this record,
the court finds nothing unreasonable in the Department’s interpreting 19 C.F.R. § 351.401(g) so
as not to require a reallocation of the monthly rebate amounts based on Appvion’s notion of
“inaccuracy” or “distortion.”
Implying that it did not routinely apply its regulation as Appvion urged it to, Commerce
stated that “we do not have any clear practice with respect to reallocating these rebates as
suggested by petitioner.” Id. The court need not, and does not, decide the question of whether
Commerce could have reallocated the rebates as Appvion urged in its comments (and advocates
before the court), had Commerce desired to do so. It is sufficient that Commerce, in deciding
against Appvion’s proposed course of action, permissibly construed the pertinent regulations and
reached relevant findings that were supported by record evidence, including Koehler’s business
records. The court concludes, therefore, that a second remand is not warranted in this case.
III. CONCLUSION
For the reasons stated in the foregoing, the court will affirm the Department’s Remand
Redetermination and enter judgment accordingly.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Chief Judge
Dated: December 31, 2014
New York, NY