Lightweight Thermal Paper From Germany: Notice of Court Decision Not in Harmony With Amended Final Results and Notice of Second Amended Final Results of Antidumping Duty Administrative Review; 2009-2010

AGENCY:

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (the Department) is notifying the public that the Court of International Trade's (CIT or Court) final judgment in this case is not in harmony with the Department's amended final results and is therefore amending for a second time the final results of the second administrative review of the antidumping duty order on lightweight thermal paper from Germany with respect to the rate assigned to Papierfabrik August Koeher AG (Koehler).

DATES:

Effective: July 16, 2016.

FOR FURTHER INFORMATION CONTACT:

James Terpstra, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3965.

SUPPLEMENTARY INFORMATION:

Background

On April 9, 2012, the Department published the final results of the second administrative review of the antidumping duty order on lightweight thermal paper from Germany, covering the period November 1, 2009, through October 31, 2010. On May 16, 2012, the Department amended the AR2 Final Results to correct a ministerial error. As a result, the Department assigned Koehler a weighted-average dumping margin of 4.33 percent. Subsequently, Koehler and Appvion, Inc. challenged the AR2 Amended Final Results in the CIT. While that litigation was pending, the Department published the final results of the third review of the Order in which it found that Koehler had engaged in a transshipment scheme, which began in the prior, second review period, and withheld requested information. As a result, in the AR3 Final Results the Department found that Koehler had failed to cooperate to the best of its ability in complying with the Department's requests for information and assigned Koehler a total adverse facts available (AFA) rate of 75.36 percent. In light of the AR3 Final Results, in the litigation concerning the AR2 Amended Final Results, the Department sought a voluntary remand to reconsider the AR2 Amended Final Results, which the Court granted.

On June 16, 2014, the Department issued its final results of redetermination pursuant to remand. The Department determined that, based on the transshipment scheme which began in the second review period and had been uncovered in the third review, Koehler had failed to cooperate to the best of its ability in complying with the Department's requests for information in the second review. As a result, the Department assigned Koehler an AFA rate of 75.36 percent, and corroborated the rate using Koehler's transaction-specific margins from the second review.

On July 6, 2016, the Court affirmed the AR2 Final Remand, finding that the Department had properly reconsidered the AR2 Amended Final Results and applied total AFA in light of the nature of Koehler's conduct. In addition, although the Court found that the rate of 75.36 percent was not properly corroborated by the highest transaction-specific margin on the record of the second review, it found that, under the circumstances, the Department was within its discretion in relying on the 75.36 percent rate, the highest rate in any previous segment of the proceeding. Thus, the Court affirmed the AFA rate of 75.36 percent as applied to Koehler.

Timken Notice

Consistent with its decision in Timken, as clarified by Diamond Sawblades the Federal Circuit held that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the Act), the Department must publish a notice of a court decision that is not “in harmony” with a Department determination and must suspend liquidation of entries pending a “conclusive” court decision. On July 6, 2016, the CIT sustained the Department's final results of redetermination pursuant to remand in Koehler. The CIT's judgment in Koehler sustaining the AR2 Final Remand constitutes a final decision of that court that is not in harmony with the AR2 Amended Final Results. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, the Department will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal, or if appealed, pending a final and conclusive court decision.

Second Amended Final Results

Because there is now a final court decision, we are amending the AR2 Amended Final Results with respect to the rate assigned to Koehler as follows:

In the event the CIT's July 6, 2016, decision in Koehler is not appealed, or is upheld by a final and conclusive court decision, the Department will instruct U.S. Customs and Border Protection to assess antidumping duties on unliquidated entries of subject merchandise based on the revised rate listed above.

Cash Deposit Requirements

As a result of the determination by the International Trade Commission that revocation of the Order would not be likely to lead to continuation or recurrence of material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department revoked the Order, effective November 24, 2013, and stopped collecting cash deposits under the Order. Therefore, the cash deposit requirement for Koehler will not be changed as a result of these amended final results.

Notification to Interested Parties

This notice is issued and published in accordance with sections 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.