CAFC Says ITC Must Consider Prices, Subcategories for Injury Determination on Paper from Germany
The Court of Appeals for the Federal Circuit denied requests by the government, the International Trade Commission, and a domestic manufacturer to rehear a recent challenge to the ITC's determination that German light-weight thermal paper (LWTP) imports threatened the U.S. industry with injury. Overruling ITC and the Court of International Trade, CAFC issued a remand instructing ITC to examine prices and dumping margins of subcategories within a class or kind of subject merchandise.
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Three CAFC judges dissented from the decision to deny a rehearing, arguing that the ruling overturns 20 years of established agency practice and CAFC precedent.
The CAFC's remand accepted the arguments of the German manufacturer, Papierfabrik August Koehler AG, that ITC should consider the prices of certain sub-categories of its products that the company claimed were not sold at below fair market value (in this case, 48-gram per meter LWTP), when making its injury determination. The dissenting judges concluded that the ruling “mischaracterizes the roles of the ITC and the International Trade Administration in AD duty investigations and will cause difficulties in future dumping investigations and orders.” (The ITC determines the threat of injury to domestic industry; the ITA calculates AD duty margins during the investigation period and in later reviews.)
The CAFC will issue its mandate on May 26, 2011. (Decision dated May 19, 2011.)