Slip Op. 11-67
UNITED STATES COURT OF INTERNATIONAL TRADE
PAPIERFABRIK AUGUST KOEHLER AG
and KOEHLER AMERICA,INC.,
Plaintiffs,
Before: Pogue, Chief Judge
– and –
Court No. 08-00430
MITSUBISHI INTERNATIONAL
CORPORATION, MITSUBISHI HiTECH PAPER
FLENSBURG GmbH, and MITSUBISHI
HiTECH PAPER BIELEFELD GmbH,
Plaintiff-Intervenors,
v.
UNITED STATES and the UNITED STATES
INTERNATIONAL TRADE COMMISSION,
Defendants,
– and –
APPLETON PAPERS INC.,
Defendant-Intervenor.
ORDER FOR REMAND
This remand order follows the Court of Appeals for the
Federal Circuit’s opinion in Papierfabrik August Koehler AG v.
United States, No. 2010-1147, 2011 WL 96814 (Fed. Cir. Jan. 11,
2011) (per curiam) (“Koehler II”), reh’g and reh’g en banc
denied, __ F.3d __, 2011 WL 1898188 (Fed. Cir. May 19, 2011) (per
curiam). In Koehler II, the Court of Appeals vacated and
remanded this court’s previous determinations in Papierfabrik
Court No. 08-00430 Page 2
August Koehler AG v. United States, __ CIT __, 675 F. Supp. 2d
1172 (2009) (“Koehler I”).
In Koehler I, this court affirmed the United States
International Trade Commission’s (the “Commission”) final
results, with respect to subject imports from Germany, in Certain
Lightweight Thermal Paper from China and Germany,
73 Fed. Reg. 70,367 (ITC Nov. 20, 2008) (final determinations).
Koehler I, __ CIT at __, 675 F. Supp. 2d at 1191-92. The court
held, inter alia, that the Commission did not err by denying
Plaintiff Papierfabrik August Koehler AG’s (“Koehler”) request to
exclude certain of Koehler’s subject merchandise from the
Commission’s threat of material injury determination. Id. at
1183-86.
In Koehler II, the Court of Appeals concluded that the
Commission erred, in considering Koehler’s request, by
categorically refusing to examine any “intermediate” dumping
margins found for Koehler’s subject merchandise that were not
published in the Federal Register. Koehler II, 2011 WL 96814 at
*2-4. Specifically, the Court of Appeals held that the
Commission erred by interpreting the scope of its legal authority
to foreclose the examination of such data. See id. at *3-4
(citing 19 U.S.C. § 1673d(c)(1)(A)1; Algoma Steel Corp. v. United
1
19 U.S.C. § 1673d(c)(1)(A) (“[Commerce] shall make
available to the Commission all information upon which
Court No. 08-00430 Page 3
States, 865 F.2d 240 (Fed. Cir. 1989)2). Contrary to the
Commission’s explanation, the Court of Appeals concluded that the
Commission is legally authorized to consider any information
underlying Commerce’s dumping determination that the Commission
deems relevant to its investigation, and that Commerce is legally
obligated to make such information available to the Commission.
Id. (citing 19 U.S.C. § 1673d(c)(1)(A)). The Court of Appeals
accordingly vacated this Court’s judgment, and remanded with
instructions to remand this case to the Commission for
reconsideration. Id. at *4.
Therefore, in accordance with the Court of Appeals for the
Federal Circuit’s decision in Koehler II, it is hereby:
ORDERED that the International Trade Commission’s
determination, in Certain Lightweight Thermal Paper from China
and Germany, 73 Fed. Reg. 70,367 (ITC Nov. 20, 2008) (final
determinations), regarding the threat of material injury from
subject merchandise from Germany, is remanded to the Commission
for action consistent with the decision in Koehler II; and it is
further
[Commerce’s dumping] determination was based and which the
Commission considers relevant to its determination . . . .”).
2
Koehler II, 2011 WL 96814 at *4 (“Algoma specifically
allows for consideration of raw data in computer print outs ‘by
reasons specific to the particular case . . . .’” (quoting
Algoma, 865 F.2d at 242)).
Court No. 08-00430 Page 4
ORDERED that, on remand, the Commission shall revise its
final determination with regard to the threat of material injury
from subject merchandise from Germany, in accordance with the
decision in Koehler II. The Commission shall specifically
explain how its decision to deny Koehler’s request to exclude a
subset of Koehler’s subject merchandise from the Commission’s
threat of material injury determination complies with the Court
of Appeals’ interpretation of 19 U.S.C. § 1673d(c)(1)(A) and the
decision in Algoma Steel Corp. v. United States, 865 F.2d 240
(Fed. Cir. 1989); and it is further
ORDERED that the Commission shall file its remand results,
and serve the parties with same, by August 16, 2011. All parties
may file and serve responses thereto by September 15, 2011. All
parties may file and serve a reply to any response by September
30, 2011.
/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge
Dated: June 15, 2011
New York, N.Y.