81 FR 52826 - 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
DEPARTMENT OF COMMERCE
International Trade Administration Federal Register Volume 81, Issue 154 (August 10, 2016)
International Trade Administration
Federal Register Volume 81, Issue 154 (August 10, 2016)
| Page Range | 52826-52827 | |
| FR Document | 2016-19008 |
[Federal Register Volume 81, Number 154 (Wednesday, August 10, 2016)] [Notices] [Pages 52826-52827] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-19008] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE International Trade Administration [A-428-840] 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.\1\ On May 16, 2012, the Department amended the AR2 Final Results to correct a ministerial error.\2\ As a result, the Department assigned Koehler a weighted-average dumping margin of 4.33 percent.\3\ Subsequently, Koehler and Appvion, Inc.\4\ challenged the AR2 Amended Final Results in the CIT.\5\ 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.\6\ 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.\7\ 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. --------------------------------------------------------------------------- \1\ See Lightweight Thermal Paper From Germany: Notice of Final Results of the 2009-2010 Antidumping Duty Administrative Review, 77 FR 21082 (April 9, 2012) (AR2 Final Results); see also Antidumping Duty Orders: Lightweight Thermal Paper from Germany and the People's Republic of China, 73 FR 70959 (November 24, 2008) (Order). \2\ See Lightweight Thermal Paper From Germany: Notice of Amended Final Results of the 2009-2010 Antidumping Duty Administrative Review, 77 FR 28851 (May 16, 2012) (AR2 Amended Final Results). \3\ See id., 77 FR at 28851. \4\ Formerly known as Appleton Papers Inc. \5\ See Consol. Court No. 12-00091. \6\ See Lightweight Thermal Paper from Germany: Final Results of Antidumping Duty Administrative Review; 2010-2011, 78 FR 23220 (April 18, 2013) (AR3 Final Results). The CIT affirmed the AR3 Final Results in their entirety. See Papierfabrik August Koehler SE v. United States, 7 F. Supp. 3d 1304 (Ct. Int'l Trade 2014). Koehler's appeal of that decision before the Court of Appeals for the Federal Circuit (Federal Circuit) is pending. See Court No. 15-1489. \7\ See AR3 Final Results, 78 FR at 23221. --------------------------------------------------------------------------- On June 16, 2014, the Department issued its final results of redetermination pursuant to remand.\8\ 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.\9\ 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.\10\ --------------------------------------------------------------------------- \8\ See Final Remand Redetermination Pursuant to Court Remand, Lightweight Thermal Paper from Germany, Papierfabrik August Koehler AG v. United States, Consol. Court No. 12-00091 (June 16, 2014) (AR2 Final Remand). \9\ Id. \10\ Id. --------------------------------------------------------------------------- [[Page 52827]] 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.\11\ 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.\12\ Thus, the Court affirmed the AFA rate of 75.36 percent as applied to Koehler.\13\ --------------------------------------------------------------------------- \11\ See Papierfabrik August Koehler AG v. United States, Consol. Court No. 12-00091, Slip Op. 16-67 (July 6, 2016) (Koehler) at 13-24. \12\ Id., at 33 (``The court declines to construe the corroboration requirement so as to eliminate the discretion Commerce must possess to confront the serious misconduct it encountered in this case, in which Koehler undermined the integrity of the proceeding Commerce conducted and prevented Commerce from fulfilling its statutory responsibility.''). \13\ Id., at 34. --------------------------------------------------------------------------- Timken Notice Consistent with its decision in Timken,\14\ as clarified by Diamond Sawblades \15\ 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.\16\ 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. --------------------------------------------------------------------------- \14\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken). \15\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades). \16\ See Koehler at 13-24, and 34. --------------------------------------------------------------------------- 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: ------------------------------------------------------------------------ Second amended AR2 amended final final results Company results dumping dumping margin margin ------------------------------------------------------------------------ Papierfabrik August Koehler AG.. 4.33 percent.......... 75.36 ------------------------------------------------------------------------ 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.\17\ Therefore, the cash deposit requirement for Koehler will not be changed as a result of these amended final results. --------------------------------------------------------------------------- \17\ See Lightweight Thermal Paper From the People's Republic of China and Germany: Continuation of the Antidumping and Countervailing Duty Orders on the People's Republic of China, Revocation of the Antidumping Duty Order on Germany, 80 FR 5083, 5084 (January 30, 2015). --------------------------------------------------------------------------- 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. Dated: August 3, 2016. Ronald K. Lorentzen, Acting Assistant Secretary for Enforcement and Compliance. [FR Doc. 2016-19008 Filed 8-9-16; 8:45 am] BILLING CODE 3510-DS-P
![52826 Federal Register / Vol. 81, No. 154 / Wednesday, August 10, 2016 / Notices
rebuttal briefs should be filed Dated: August 3, 2016. Department amended the AR2 Final
electronically using ACCESS.6 Ronald K. Lorentzen, Results to correct a ministerial error.2 As
Pursuant to 19 CFR 351.310(c), Acting Assistant Secretary for Enforcement a result, the Department assigned
interested parties who wish to request a and Compliance. Koehler a weighted-average dumping
hearing must submit a written request to margin of 4.33 percent.3 Subsequently,
the Assistant Secretary for Enforcement Appendix I—List of Topics Discussed in
Koehler and Appvion, Inc.4 challenged
and Compliance, U.S. Department of the Preliminary Decision Memorandum
the AR2 Amended Final Results in the
Commerce, filed electronically using I. Summary CIT.5 While that litigation was pending,
ACCESS. An electronically-filed request II. Background the Department published the final
must be received successfully, and in its III. Scope of the Order results of the third review of the Order
entirety, by ACCESS by 5:00 p.m. IV. Subsidy Valuation Information in which it found that Koehler had
V. Analysis of Programs
Eastern Time, within 30 days after the VI. Recommendation
engaged in a transshipment scheme,
date of publication of this notice. which began in the prior, second review
[FR Doc. 2016–19017 Filed 8–9–16; 8:45 am]
Requests should contain the party’s period, and withheld requested
BILLING CODE 3510–DS–P information.6 As a result, in the AR3
name, address, and telephone number;
the number of participants; and a list of Final Results the Department found that
the issues to be discussed. If a request Koehler had failed to cooperate to the
DEPARTMENT OF COMMERCE best of its ability in complying with the
for a hearing is made, the Department
intends to hold the hearing at the U.S. International Trade Administration Department’s requests for information
Department of Commerce, 1401 and assigned Koehler a total adverse
Constitution Avenue NW., Washington, [A–428–840] facts available (AFA) rate of 75.36
DC 20230, at a date, time, and specific percent.7 In light of the AR3 Final
location to be determined. Parties will Lightweight Thermal Paper From Results, in the litigation concerning the
be notified of the date, time, and Germany: Notice of Court Decision Not AR2 Amended Final Results, the
location of any hearing. Parties should in Harmony With Amended Final Department sought a voluntary remand
confirm by telephone the date, time, and Results and Notice of Second to reconsider the AR2 Amended Final
location of the hearing two days before Amended Final Results of Results, which the Court granted.
the scheduled date. Antidumping Duty Administrative On June 16, 2014, the Department
Unless the deadline is extended Review; 2009–2010 issued its final results of
pursuant to section 751(a)(3)(A) of the AGENCY: Enforcement and Compliance, redetermination pursuant to remand.8
Act, the Department will issue the final International Trade Administration, The Department determined that, based
results of this administrative review, Department of Commerce. on the transshipment scheme which
including the results of its analysis of began in the second review period and
SUMMARY: The Department of Commerce
issues raised in any written briefs, not had been uncovered in the third review,
(the Department) is notifying the public
later than 120 days after the date of Koehler had failed to cooperate to the
that the Court of International Trade’s
publication of this notice, pursuant to best of its ability in complying with the
(CIT or Court) final judgment in this
section 751(a)(3)(A) of the Act. Department’s requests for information in
case is not in harmony with the the second review.9 As a result, the
Assessment Rates Department’s amended final results and Department assigned Koehler an AFA
is therefore amending for a second time rate of 75.36 percent, and corroborated
Upon issuance of the final results, the
the final results of the second the rate using Koehler’s transaction-
Department shall determine, and U.S.
administrative review of the specific margins from the second
Customs and Border Protection (CBP)
antidumping duty order on lightweight review.10
shall assess, countervailing duties on all
thermal paper from Germany with
appropriate entries covered by this
respect to the rate assigned to Antidumping Duty Administrative Review, 77 FR
review. We intend to issue instructions
Papierfabrik August Koeher AG 21082 (April 9, 2012) (AR2 Final Results); see also
to CBP 15 days after publication of the
(Koehler). Antidumping Duty Orders: Lightweight Thermal
final results of this review. Paper from Germany and the People’s Republic of
DATES: Effective: July 16, 2016. China, 73 FR 70959 (November 24, 2008) (Order).
Cash Deposit Instructions FOR FURTHER INFORMATION CONTACT: 2 See Lightweight Thermal Paper From Germany:
The Department also intends to James Terpstra, AD/CVD Operations, Notice of Amended Final Results of the 2009–2010
Antidumping Duty Administrative Review, 77 FR
instruct CBP to collect cash deposits of Office III, Enforcement and Compliance, 28851 (May 16, 2012) (AR2 Amended Final
estimated countervailing duties in the International Trade Administration, Results).
amount shown above. For all non- U.S. Department of Commerce, 14th 3 See id., 77 FR at 28851.
reviewed firms, we will instruct CBP to Street and Constitution Avenue NW., 4 Formerly known as Appleton Papers Inc.
5 See Consol. Court No. 12–00091.
collect cash deposits of estimated Washington, DC 20230; telephone: (202) 6 See Lightweight Thermal Paper from Germany:
countervailing duties at the most recent 482–3965. Final Results of Antidumping Duty Administrative
company-specific or all-others rate SUPPLEMENTARY INFORMATION: Review; 2010–2011, 78 FR 23220 (April 18, 2013)
applicable to the company. These cash (AR3 Final Results). The CIT affirmed the AR3 Final
deposit requirements, when imposed, Background Results in their entirety. See Papierfabrik August
shall remain in effect until further Koehler SE v. United States, 7 F. Supp. 3d 1304 (Ct.
On April 9, 2012, the Department Int’l Trade 2014). Koehler’s appeal of that decision
notice. published the final results of the second before the Court of Appeals for the Federal Circuit
mstockstill on DSK3G9T082PROD with NOTICES
Notification to Interested Parties administrative review of the (Federal Circuit) is pending. See Court No. 15–1489.
antidumping duty order on lightweight 7 See AR3 Final Results, 78 FR at 23221.
This administrative review and notice thermal paper from Germany, covering 8 See Final Remand Redetermination Pursuant to
are in accordance with sections Court Remand, Lightweight Thermal Paper from
the period November 1, 2009, through Germany, Papierfabrik August Koehler AG v.
751(a)(1) and 777(i)(1) of the Act and 19 October 31, 2010.1 On May 16, 2012, the United States, Consol. Court No. 12–00091 (June 16,
CFR 351.213. 2014) (AR2 Final Remand).
1 See Lightweight Thermal Paper From Germany: 9 Id.
6 See 19 CFR 351.303. Notice of Final Results of the 2009–2010 10 Id.
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![Federal Register / Vol. 81, No. 154 / Wednesday, August 10, 2016 / Notices 52827
On July 6, 2016, the Court affirmed Timken Notice Remand constitutes a final decision of
the AR2 Final Remand, finding that the that court that is not in harmony with
Department had properly reconsidered Consistent with its decision in the AR2 Amended Final Results. This
the AR2 Amended Final Results and Timken,14 as clarified by Diamond notice is published in fulfillment of the
applied total AFA in light of the nature Sawblades 15 the Federal Circuit held publication requirements of Timken.
of Koehler’s conduct.11 In addition, that, pursuant to section 516A(e) of the Accordingly, the Department will
although the Court found that the rate Tariff Act of 1930, as amended (the Act), continue the suspension of liquidation
of 75.36 percent was not properly the Department must publish a notice of
of the subject merchandise pending the
corroborated by the highest transaction- a court decision that is not ‘‘in
expiration of the period of appeal, or if
specific margin on the record of the harmony’’ with a Department
appealed, pending a final and
second review, it found that, under the determination and must suspend
conclusive court decision.
circumstances, the Department was liquidation of entries pending a
within its discretion in relying on the ‘‘conclusive’’ court decision. On July 6, Second Amended Final Results
75.36 percent rate, the highest rate in 2016, the CIT sustained the
any previous segment of the Department’s final results of Because there is now a final court
proceeding.12 Thus, the Court affirmed redetermination pursuant to remand in decision, we are amending the AR2
the AFA rate of 75.36 percent as applied Koehler.16 The CIT’s judgment in Amended Final Results with respect to
to Koehler.13 Koehler sustaining the AR2 Final the rate assigned to Koehler as follows:
Second
AR2 amended amended
final results
Company final results
dumping dumping
margin margin
Papierfabrik August Koehler AG ............................................................................................................................. 4.33 percent ... 75.36
In the event the CIT’s July 6, 2016, Dated: August 3, 2016. recommendations to strengthen
decision in Koehler is not appealed, or Ronald K. Lorentzen, cybersecurity in both the public and
is upheld by a final and conclusive Acting Assistant Secretary for Enforcement private sectors while protecting privacy,
court decision, the Department will and Compliance. ensuring public safety and economic
instruct U.S. Customs and Border [FR Doc. 2016–19008 Filed 8–9–16; 8:45 am] and national security, fostering
Protection to assess antidumping duties BILLING CODE 3510–DS–P discovery and development of new
on unliquidated entries of subject technical solutions, and bolstering
merchandise based on the revised rate partnerships between Federal, State and
listed above. DEPARTMENT OF COMMERCE local government and the private sector
in the development, promotion, and use
Cash Deposit Requirements National Institute of Standards and of cybersecurity technologies, policies,
Technology and best practices. The Secretary of
As a result of the determination by the Commerce was tasked by the Exective
International Trade Commission that [Docket Number: 160725650–6650–01]
Order to direct the Director of the
revocation of the Order would not be National Institute of Standards and
Information on Current and Future
likely to lead to continuation or Technology (NIST) to provide the
States of Cybersecurity in the Digital
recurrence of material injury to an Commission with such expertise,
Economy
industry in the United States, pursuant services, funds, facilities, staff,
to section 751(d)(2) of the Act, the AGENCY: National Institute of Standards equipment, and other support services
Department revoked the Order, effective and Technology, U.S. Department of as may be necessary to carry out its
November 24, 2013, and stopped Commerce. mission.
collecting cash deposits under the ACTION: Notice; Request for Information Responses to this RFI—which will be
Order.17 Therefore, the cash deposit (RFI). posted at http://www.nist.gov/
requirement for Koehler will not be cybercommission—will inform the
changed as a result of these amended SUMMARY: The Commission on Commission as it develops its detailed
final results. Enhancing National Cybersecurity recommendations.
requests information about current and
Notification to Interested Parties future states of cybersecurity in the DATES: Comments must be received by
digital economy. As directed by 5:00 p.m. Eastern time on September 9,
This notice is issued and published in Executive Order 13718, ‘‘Commission 2016.
accordance with sections 516A(e)(1), on Enhancing National Cybersecurity’’ ADDRESSES: Written comments may be
751(a)(1), and 777(i)(1) of the Act. (the ‘‘Executive Order’’), the submitted by mail to Nakia Grayson,
Commission will make detailed National Institute of Standards and
mstockstill on DSK3G9T082PROD with NOTICES
11 See Papierfabrik August Koehler AG v. United Commerce from fulfilling its statutory 16 SeeKoehler at 13–24, and 34.
States, Consol. Court No. 12–00091, Slip Op. 16– responsibility.’’). 17 SeeLightweight Thermal Paper From the
67 (July 6, 2016) (Koehler) at 13–24. 13 Id., at 34. People’s Republic of China and Germany:
12 Id., at 33 (‘‘The court declines to construe the
14 See Timken Co. v. United States, 893 F.2d 337 Continuation of the Antidumping and
corroboration requirement so as to eliminate the
(Fed. Cir. 1990) (Timken). Countervailing Duty Orders on the People’s
discretion Commerce must possess to confront the
serious misconduct it encountered in this case, in 15 See Diamond Sawblades Mfrs. Coalition v. Republic of China, Revocation of the Antidumping
which Koehler undermined the integrity of the United States, 626 F.3d 1374 (Fed. Cir. 2010) Duty Order on Germany, 80 FR 5083, 5084 (January
proceeding Commerce conducted and prevented (Diamond Sawblades). 30, 2015).
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Document Created: 2016-08-10 01:59:33
Document Modified: 2016-08-10 01:59:33
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Dates | Effective: July 16, 2016. | |
| 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. | |
| FR Citation | 81 FR 52826 |
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