Slip Op. 15-104 

UNITED STATES COURT OF INTERNATIONAL TRADE 

________________________________ 

APPVION, INC., :

 : 

Plaintiff, : Before: Nicholas Tsoucalas, 

 : Senior Judge 

v. : 

 : Court No.: 14-00143 

UNITED STATES, : 

 : PUBLIC VERSION 

Defendant, : 

And : 

 : 

PAPIERFABRIK AUGUST KOEHLER SE, : 

 : 

Defendant-Intervenor. : 

 : 

_____________________ : 

OPINION 

[Plaintiff’s Motion for Judgment on the Agency Record is denied 

and Commerce’s Final Results are affirmed.] 

Dated: ______________ 

Gilbert B. Kaplan and Daniel L. Schneiderman, King & Spalding LLP, 

of Washington, D.C., for Plaintiff. 

Joshua E. Kurland, Trial Attorney, U.S. Department of Justice, 

Commercial Litigation Branch, of Washington, D.C., for Defendant. 

With him on the brief were Reginald T. Blades, Jr., Assistant 

Director, Jeanne E. Davidson, Director, and Benjamin C. Mizer, 

Principal Deputy Assistant Attorney General. Of counsel on the 

brief was Nanda Srikantaiah, Office of the Chief Counsel for Trade 

Enforcement & Compliance, U.S. Department of Commerce of 

Washington, D.C. 

F. Amanda DeBusk and Matthew R. Nicely, Hughes Hubbard & Reed LLP, 

of Washington, D.C., for Defendant-Intervenor. 

September 17, 2015
Court No. 14-00143 Page 2

Tsoucalas, Senior Judge: This case concerns the 

Defendant United States Department of Commerce’s (“Commerce”)

Final Results of the fourth administrative review (“AR4”) of the 

antidumping order on lightweight thermal paper (“LWTP”) from 

Germany. Lightweight Thermal Paper From Germany: Final Results of 

Antidumping Duty Administrative Review; 2011–2012,(“Final 

Results”) 79 Fed. Reg. 34,719 (June 18, 2014); Issues and Decision 

Memorandum for the 2011-2012 Final Results of the Administrative

Review on Lightweight Thermal Paper from Germany, (“IDM for AR4”) 

A-428-840, (June 11, 2014). The period of review (“POR”) is 

November 1, 2011, through October 31, 2012. Final Results, 79 

Fed. Reg. at 34,719. 

Plaintiff, Appvion Inc., (“Appvion”) filed the instant 

suit disputing Commerce’s determination that certain sales were 

within the ordinary course of trade and that the application of 

Adverse Facts Available (“AFA”) was not warranted. Compl., June 

19, 2014, ECF No. 7. Appvion has filed a Motion for Judgment on 

the Agency Record. Pl.’s Mot. for J. on the Agency R. (“Pl.’s 

Br.”), Dec. 22, 2014, ECF No. 28. Commerce and DefendantIntervenor, Papierfabrik August Koehler SE (“Koehler” or 

“Defendant-Intervenor”) oppose Appvion’s Motion. Def.’s Mem. in 

Opp’n to Pl.’s Rule 56.2 Mot. for J. Upon Agency R. (“Def.’s Br.”), 

May 29, 2015, ECF No. 39; Def.-Intervenor’s Resp. in Opp’n to Pl.’s 

Rule 56.2 Mot. for J. on the Agency R., May 28, 2015, ECF No. 36. 
Court No. 14-00143 Page 3

For the following reasons, Appvion’s Motion for Judgment on the 

Agency Record is denied, and Commerce’s Final Results are affirmed.

BACKGROUND 

 Appvion is a manufacturer of domestic like product and 

participated in the review that gave rise to the Final Results. 

Compl. at ¶4. Koehler is a foreign exporter/producer of LWTP in 

Germany, whose paper was subject to a 6.50% weighted average 

dumping margin pursuant to the Antidumping Duty Orders: 

Lightweight Thermal Paper From Germany and the People’s Republic 

of China, 73 Fed. Reg. 70,959, 70,959-60 (Nov. 24, 2008). 

 A brief synopsis of the third administrative review

(“AR3”) is necessary to place the instant review in context. In

AR3, Koehler engaged in a fraudulent transshipment scheme where it

sold 48-gram thermal paper that was destined for consumption in 

Germany through various intermediaries in third countries, in 

order to manipulate prices of paper shipped directly to its German 

customers. Issues and Decision Memorandum for the Final Results 

of the 2010-2011 Administrative Review on Lightweight Thermal 

Paper from Germany (“IDM for AR3”) at 2, A-428-840, Apr. 10, 2013. 

The manipulated prices would affect the calculation of normal value 

that would be used in determining the antidumping margin. Id. 

Koehler did not voluntarily disclose the transshipment scheme 

during AR3. Id. at 12. Koehler discontinued the transshipment 

scheme on [[ ]]. Pl.’s Confidential App. Koehler’s 
Court No. 14-00143 Page 4

Supplemental Resp. at 25, May 15, 2013, ECF No. 30. As a result, 

Commerce applied total AFA to Koehler in AR3. IDM for AR3 at 6. 

Commerce’s decision was affirmed by this Court. Papierfabrik 

August Koehler SE v. United States, 38 CIT ____, 7 F.Supp.3d 1304 

(2014), appeal filed and docketed, Papierfabrik August Koehler SE 

v. United States, Appeal No. 15-1489 (Fed. Cir. Mar. 25, 2015).

In AR4, however, Koehler acknowledged that the 

transshipments began prior to the POR and ended during AR4. Pl.’s 

Confidential App., Koehler Section A Response at 15-17, Feb. 25, 

2012. In contrast to AR3, in AR4 Koehler fully disclosed the 

transshipment sales channel, Channel 2, and its related sales data 

in its reporting of home market sales during AR4. See id. at 15-

17, 24, and Ex. A-7. Koehler sold LWTP through three sales channels

to its German customers during AR4: Channel 1 (direct shipments), 

Channel 2 (transshipped sales), and Channel 3 (consignment sales).

IDM for AR 4, at 3. 

During AR4, Appvion contended that sales of KT 48 (a 

grade of thermal paper) products through Channels 1 and 3 were 

outside the ordinary course of trade. Id. Appvion claimed that 

the sales were made at artificial prices that were “aberrationally 

low and not determined by commercial considerations nor marketbased supply and demand, in part because of the particular manner 

in which Koehler established prices for these sales.” Id. Appvion 

also argued that the application of AFA was warranted. Id. at 18.
Court No. 14-00143 Page 5

In the Final Results, Commerce determined that the sales 

were not outside the ordinary course of trade and concluded that 

Koehler did not make sales of subject merchandise at less than 

normal value. Id. at 6-7; Final Results 79 Fed. Reg. at 34,719. 

Accordingly, Commerce found that Koehler’s LWTP was subject to a 

zero percent weighted-average dumping margin for the POR. Final 

Results 79 Fed. Reg. at 34,720. Furthermore, Commerce found no 

basis to apply AFA. IDM for AR4 at 19. Appvion filed the instant 

action disputing Commerce’s Final Results and a Motion for Judgment 

on the Agency Record. Compl. at 1-6; Pl.’s Br. at 1-45. 

JURISDICTION AND STANDARD OF REVIEW 

 This Court has jurisdiction pursuant to section 201 of 

the Customs Courts Act of 1980, 28 U.S.C. § 1581(c) (2012), and 

section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 

19 U.S.C. § 1516a(a)(2)(B)(iii) (2012).1

In reviewing a challenge to Commerce's final 

determination in an antidumping administrative review, 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 “more than a mere scintilla” of “such relevant evidence as 

a reasonable mind might accept as adequate to support a 

 

1 Further citations to the Tariff Act of 1930, as amended, are to the relevant 

provisions of Title 19 of the U.S. Code, 2012 edition.
Court No. 14-00143 Page 6

conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 

S.Ct. 456, 459, 95 L.Ed. 456, 462 (1951)(quoting Consol. Edison 

Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126, 

140 (1938)). To determine if substantial evidence exists, the 

court reviews the record as a whole, including whatever “fairly 

detracts from its weight.” Id. at 488, 71 S.Ct. at 464, 95 L.Ed. 

at 467. The mere fact that it may be possible to draw two 

inconsistent conclusions from the record does not prevent 

Commerce's determination from being supported by substantial 

evidence. Am. Silicon Techs. v. United States, 261 F.3d 1371, 

1376 (Fed. Cir. 2001); see also Consolo v. Fed. Mar. Comm'n, 383 

U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131, 141 (1966).

DISCUSSION 

1. Ordinary Course of Trade 

Antidumping duties are equal to the “amount by which 

the normal value exceeds the export price (or the constructed 

export price) for the merchandise.” 19 U.S.C. § 1673. The 

antidumping statute defines normal value as the price of the 

subject merchandise “at a time reasonably corresponding to the 

time of the sale used to determine the export price or constructed 

export price,” 19 U.S.C. § 1677b(a)(1)(A), where the price is “the 

price at which the foreign like product is first sold . . . for 

consumption in the exporting country, in the usual commercial 

quantities and in the ordinary course of trade . . . .” 19 U.S.C. 
Court No. 14-00143 Page 7

§ 1677b(a)(1)(B)(i). In order for Commerce to include particular 

sales in its calculation of normal value, the sales must have been 

made in the ordinary course of trade. U.S. Steel Corp. v. United 

States, 37 CIT ____, 953 F.Supp.2d 1332, 1341 (2013). In turn,

the “ordinary course of trade” means: 

the conditions and practices which, for a 

reasonable time prior to the exportation of 

the subject merchandise, have been normal in 

the trade under consideration with respect to 

merchandise of the same class or kind. The 

administering authority shall consider the 

following sales and transactions, among 

others, to be outside the ordinary course of 

trade: 

(A) Sales disregarded under section 

1677b(b)(1) of this title [sales below 

the cost of production]. 

(B) Transactions disregarded under section 

1677b(f)(2) of this title [sales between 

affiliated persons where the amount 

representing the element of value does not 

fairly reflect the amount usually reflected in 

sales of merchandise under consideration in 

the market under consideration]. 

19 U.S.C. § 1677(15). Other than for the aforementioned

subsections (A) and (B), the Tariff Act provides “little assistance 

in determining what is outside the scope of that definition.” NSK 

Ltd. v. United States, 25 CIT 583, 599, 170 F.Supp.2d 1280, 1296 

(2001). The Court has held that “the statutory provision defining 

what is considered outside the ordinary course of trade is 

unclear.” Id. Accordingly, the Court has found that Commerce has 

discretion to determine what sales are outside the ordinary course 
Court No. 14-00143 Page 8

of trade. U.S. Steel, 37 CIT at ____, 953 F.Supp.2d at 1341. 

Commerce may consider sales or transactions to be outside the 

ordinary course of trade “if . . . based on an evaluation of all 

of the circumstances particular to the sales in question, that 

such sales or transactions have characteristics that are 

extraordinary for the market in question.” 19 C.F.R. § 

351.102(b)(35) (2015). Examples of sales that Commerce might 

consider as being outside the ordinary course of trade are sales 

or transactions involving off-quality merchandise or merchandise 

produced according to unusual product specifications, merchandise 

sold at aberrational prices or with abnormally high profits, 

merchandise sold pursuant to unusual terms of sale, or merchandise 

sold to an affiliated party at a non-arm’s length price. Id. In 

determining whether home market sales are in the ordinary course 

of trade, Commerce must “evaluate not just ‘one factor taken in 

isolation but rather . . . all the circumstances particular to the 

sales in question.’” Cemex, S.A. v. United States, 133 F. 3d 897, 

900 (Fed. Cir. 1998) (quoting Murata Mfg. Co. v. United States, 17 

CIT 259, 264, 820 F.Supp. 603, 607 (1993)). “In applying its 

totality of the circumstances test, Commerce does not give 

particular weight to any single factor. Instead, Commerce 

determines which factor may be more or less significant based on 

the case at hand.” U.S. Steel, 953 F. Supp.2d at 1342 (citing 

Murata, 17 CIT at 263, 820 F.Supp. at 606). “An analysis of these 
Court No. 14-00143 Page 9

factors should be guided by the purpose of the ordinary course of 

trade provision which is ‘to prevent dumping margins from being 

based on sales which are not representative’ of the home market.” 

Id. (quoting Monsanto Co. v. United States, 12 CIT 937, 940, 698 

F.Supp. 275, 278 (1988)). 

Very low prices or profits may be indicative of sales 

outside the ordinary course of trade; however, the mere fact of 

such low prices or profits does not necessarily mean that such

sales are outside the ordinary course of trade, as Commerce must 

evaluate all the circumstances particular to the sales in question. 

See Cemex, S.A. v. United States, 19 CIT 587, 592, (not reported 

in Federal Supplement) (1995), aff’d, Cemex, S.A. v. United States, 

133 F.3d at 900; see also, NTN Bearing Corp. of America, 25 CIT 

664, 681, 155 F.Supp.2d 715, 732 (2001), rev’d on other grounds 

sub nom. Fag Italia S.p.A. v. United States, 402 F.3d 1356 (2005). 

 Commerce’s decision is “entitled to deference from this 

Court.” Mantex, Inc. v. United States, 17 CIT 1385, 1403, 841 F. 

Supp. 1290, 1306 (1993). “The Plaintiff has the burden of proving 

whether sales used in Commerce’s calculations are outside the 

ordinary course of trade or not . . . .” Nachi-Fujikoshi Corp. v. 

United States, 16 CIT 606, 608, 798 F. Supp. 716, 718 (1992). 

 Appvion argues that direct sales of matching 48 gram 

products were outside the ordinary course of trade and should not 

have been included in the calculation of normal value, because the 
Court No. 14-00143 Page 10

sales had extraordinary characteristics. Pl.’s Br. at 9. Appvion 

argues that the sales were exceptional and should be excluded, 

because they were the only sales vetted through [[

]] to eliminate dumping. Id. at 10. 

Appvion further contends that the sales were outside the ordinary 

course of trade, because they were made at artificially low prices 

or profit levels, while higher market-priced sales were concealed 

through transshipments (Channel 2). Id. at 9-10. Appvion calls 

this Koehler’s “two-tier pricing mechanism.” Id. at 19. Appvion 

came to this conclusion by aggregating sales between Channels 1 

(direct shipments) and 3 (consignment sales) and comparing them 

against Channel 2 (transshipped sales). Def.’s Br. at 10. 

Commerce contends that when the sales are disaggregated, 

it did not find “aberrationally low” profits earned on Channel 1 

and 3 sales, rather, it found that variations in price and 

profitability were due to market factors as opposed to the 

transshipment scheme. Id. at 11. Appvion does not point to any 

authority questioning the reasonableness of Commerce’s decision to 

disaggregate the channels. Pl.’s Br. at 1-44. Accordingly, the 

court finds that Commerce’s decision to disaggregate the channels 

was reasonable given that Koehler identified them as separate sales 

channels. Pl.’s Confidential App. Koehler’s Resp. to Section A 

Questionnaire at 15, Feb. 25, 2012. 
Court No. 14-00143 Page 11

 Appvion argues that sales of the 55-gram product

(another grade of LWTP) “form a commercial benchmark” against which 

to evaluate Koehler’s pricing for the matching product. Pl.’s Br. 

at 14. Appvion assumes that sales of the “48-gram product would 

carry a substantial price premium (on a per weight basis) over 

sales of a 55-gram product, because one kilogram of the 48-gram 

product has 15% more square meters of paper than one kilogram of 

the 55-gram product.” Id. Nevertheless, Commerce properly 

considered various factors that may explain the difference in 

price: there is “significant demand” for KT 55 products in 

Koehler’s home market, as the KT 55 product is thicker and 

stronger; transport costs are [[ 

 ]]; and [[ ]] for the KT 55 product 

allow for [[ ]]. Def.’s Br. at 

23-24. Thus, Commerce cited evidence in the record showing that 

pricing patterns may be influenced by a variety of factors. See 

id. Accordingly, Commerce’s decision not to use KT 55 as a 

commercial benchmark was reasonable and supported by substantial 

evidence. 

 Appvion further alleges that a dramatic price increase 

among Channels 1 and 3 direct sales after the transshipment scheme 

ended in June 2012 confirms that the sales at issue were made 

outside the ordinary course of trade. Pl.’s Br. at 14-15. The 

court disagrees. When the sales were disaggregated, Commerce did 
Court No. 14-00143 Page 12

not find a dramatic price increase after the transshipment scheme 

ended. Pl.’s Confidential App. Price and Profitability Analysis 

at Fig. 2, June 11, 2014. 

Further, after the transshipment scheme was discontinued 

in [[ ]] Channel 1 prices [[ ]] only in [[ 

 ]], which is [[ ]] after the scheme was 

discontinued. Id. at 3. This suggests that the price increase 

was not connected to the transshipment scheme. See id. There is 

a consistency in prices between Channels 2 and 3, as the Channel 

3 customer replaced the [[ ]] Channel 2 customer after 

the transshipment scheme ended in [[ ]]. See id. at Fig. 

2. The prices were similar both during and after the transshipment 

scheme ended in [[ ]]. See id. Correspondingly, Channel 1 

sales were made to [[ ]] and showed more variation 

in price. See id. at 5. This suggests that the price differences 

between sales could be attributed to [[ ]]. 

See id. 

 Appvion counters that Channel 3 (consignment) sales are 

irrelevant to its ordinary course of trade argument, because 

[[ ]] of matching 48-gram products 

during the transshipment period. Pl.’s Br. at 25. Appvion’s 

argument, however, is inconsistent, because it claims that Channel 

3 sales are irrelevant, yet it argues for an aggregated price 

analysis of Channels 1 and 3. Id. at 21, 25. Channel 3 sales are
Court No. 14-00143 Page 13

relevant, because they relate to Appvion’s claim of a dramatic 

increase in price when the transshipment scheme was discontinued. 

 Commerce’s disaggregated profitability analysis reveals 

that “Channel 1 profits, while ranging from [[ 

 ]] than the Channel 2 profits, were not so 

different as to be ‘aberrational.’” Pl.’s Confidential App. Price 

and Profitability Analysis at 8. 

The court finds that Commerce’s profitability analysis 

was reasonable. See id. Even assuming arguendo that the sales 

were made at abnormally low prices and profits, the sales are not 

necessarily outside the ordinary course of trade. The mere fact 

of abnormally low prices and profits is not enough to put sales 

outside of the ordinary course of trade, as Commerce examines all 

the circumstances particular to the sales in question. Cemex, 133 

F.3d at 900 (quoting Murata, 17 CIT at 264, 820 F.Supp. at 607). 

Moreover, here, none of the other factors associated with sales 

outside the ordinary course of trade are present, as there were no 

sales involving: off quality merchandise; merchandise produced 

according to unusual specifications; merchandise sold pursuant to 

unusual terms of sale; or merchandise sold to an affiliated party 

at a non-arm’s length price. 19 C.F.R. § 351.102(b)(35). Thus, 

Commerce’s determination was reasonable. 
Court No. 14-00143 Page 14

Lastly, Appvion argues that Commerce’s interpretation of 

the pricing data for KT 48 F20 (another grade of LWTP) is 

unsupported and irrational. Pl.’s Br. at 31. Appvion’s argument, 

however, does nothing to change the fact that under a disaggregated 

analysis, Commerce did not find a dramatic price increase after 

the transshipment scheme ended. Pl.’s Confidential App. Price and 

Profitability Analysis at Fig. 2. 

2. Adverse Facts Available

Commerce may apply AFA where “an interested party has 

failed to cooperate by not acting to the best of its ability to 

comply with a request for information.” 19 U.S.C. § 1677e(b). 

“Compliance with the ‘best of its ability’ standard is determined 

by assessing whether respondent has put forth its maximum effort 

to provide Commerce with full and complete answers to all inquiries 

in an investigation.” Nippon Steel Corp. v. United States, 337

F.3d 1373, 1382 (Fed. Cir. 2003). Commerce enjoys broad discretion 

when considering whether to apply AFA. See PAM, S.p.A. v. United 

States, 582 F.3d 1336, 1339-40 (Fed. Cir. 2009). This discretion 

does not require that Commerce show that an importer cooperated to 

the best of its ability every time it determines that AFA should 

not be applied. AK Steel Corp. v. United States, 28 CIT 1408, 

1417, 346 F.Supp.2d 1348, 1355 (2004). Cooperating to the best of 

its ability means that the company must: take reasonable steps to 

keep and maintain full and complete records documenting the 
Court No. 14-00143 Page 15

information that a reasonable importer should anticipate being 

called upon to produce; have familiarity with all the records it 

maintains; and conduct prompt, careful, and comprehensive 

investigations of all relevant records. Nippon, 337 F.3d at 1382.

In AR3, Commerce found that Koehler failed to cooperate 

to the best of its ability and significantly impeded the review by 

not fully reporting its home market sales. IDM for AR3 at 9. 

Consequently, Commerce applied AFA in that review. Id. By 

comparison, in AR4, Koehler fully disclosed its home market sales 

information including the transshipment scheme, and Commerce 

confirmed this through verification. IDM for AR4, at 15. Appvion, 

however, contends that the transshipment scheme affected Koehler’s 

entire accounting system with fraud such that any verification by 

Commerce cannot be trusted. Pl.’s Br. 40-41. 

Appvion heavily relies on the Court’s holding in Tianjin 

Magnesium Int’l Co., Ltd. v. United States, 844 F. Supp. 2d 1342, 

1347 (2012), in support of its contention. The Court takes issue 

with Appvion’s contention. In Tianjin, this Court concluded that 

the application of AFA was warranted where the respondent submitted 

false documents two months after their falsity had been established 

in a failed verification. Id. The instant case is distinguishable, 

because, here, Koehler fully disclosed its home market sales 

information including the transshipment scheme, and Commerce 

confirmed this through verification. Pl.’s Confidential App., 
Court No. 14-00143 Page 16

Koehler Section A Response at 15-17, 24, and Ex. A-7. Furthermore, 

Koehler put forth maximum effort to provide Commerce with full and 

complete answers to the request for information. See Nippon, 337

F.3d at 1382. Moreover, there is no indication that Koehler was 

unfamiliar with its records or that it failed to maintain full and 

complete records or that it did not conduct a prompt, careful, and 

comprehensive investigation. See id. The court finds that 

Commerce’s decision not to apply AFA here was reasonable. 

3. Conclusion

For the foregoing reasons, Plaintiff’s Motion for 

Judgment on the Agency Record is denied and Commerce’s Final 

Results are affirmed. Judgment will be entered accordingly. 

 /s/ Nicholas Tsoucalas 

Nicholas Tsoucalas 

 Senior Judge 

Dated: 

 New York, New York 

September 17, 2015