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)

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).

[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]


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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.
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    \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.
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    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\
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    \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.

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[[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\
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    \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.
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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.
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    \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.
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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
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Papierfabrik August Koehler AG..  4.33 percent..........           75.36
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    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.
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    \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).
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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