AD Petitioners Blasts Exporter's Failure to Accurately Report Product Information in CIT Complaint

An antidumping duty respondent wrongly reported that two of its products had different sensitivity characteristics and thus should have been coded with the same control number (CONNUM), the ADD petitioners told the Court of International in a Jan. 21 complaint. Petitioners Appvion Operations and Domtar also said the Commerce Department should have used partial adverse facts available over the respondent's failure to adequately measure and report the static sensitivity of its thermal paper (Appvion Operations v. U.S., CIT #21-00634).

The complaint concerns Commerce's antidumping duty investigation into thermal paper from Germany in which Papierfabrik August Koehler was a mandatory respondent. In antidumping investigations, Commerce defines CONNUMs using a model match that includes physical characteristics for the thermal paper's static sensitivity (SSENSIT) and dynamic sensitivity. The petitioners said Koehler "erroneously reported" that two of its products, one with bisphenol and one without, had different static and dynamic sensitivity characteristics.

Appvion and Domtar argued that the record shows that both products had the same sensitivity characteristics and should have been coded within the same CONNUM. The petitioners also said that the agency should have hit Koehler with partial AFA over its failure to accurately report the sensitivity characteristics.

"In particular, for certain products, Koehler failed to conduct testing at sufficiently high temperatures to determine the appropriate SSENSIT value, and Koehler failed to disclose shortcomings in its testing procedures to Commerce on a timely basis," the complaint said. "Commerce erroneously found that Koehler properly reported SSENSIT for these products based on testing conducted in the normal course of business."

The petitioners also contested Commerce's failure to disallow Koehler's post-sale price adjustments. In the investigation, the respondent made these adjustments for certain sales in Germany "for which the terms and conditions were not established or known to the customer at the time of sale." Commerce typically bans such adjustments. "Commerce erroneously accepted Koehler’s REBATE2H adjustments, however, because it found that they were 'not uncommon for Koehler' and were 'appropriate' based on the 'timing' and 'limited number' of the rebates," the complaint said, arguing that such a decision ran contrary to the law because it departs from established practice without explanation.