In a unanimous vote, the ITC's five commissioners elected to move forward with anti-dumping levies on thermal paper imports from the four countries, with rates ranging from 140.25% for one Japanese company down to 2.90% for German exporters.

The commission also found that critical circumstances did not exist with regard to imports from Germany and South Korea — or more simply put, that new levies moving forward would be enough to address the injury to U.S. producers. As a result, those countries will not face retroactive tariffs when the U.S. Department of Commerce issues duty orders on or before Nov. 15.

Friday's vote notched a win for U.S. paper manufacturers Appvion Operations Inc. and Domtar Corp., which petitioned the U.S. International Trade Administration to investigate the treated papers, which are commonly used in ATM and credit card receipts as well as tickets and tags, last October.

Nippon Paper Industries Co., or NPI, the mandatory respondent in the Japanese arm of Commerce's investigation into thermal paper sales at less than fair value, was saddled with the highest rate alleged by the petitioners after it dropped out of the investigation halfway through, before the verification stage.

"NPI failed to act to best of its ability by preventing Commerce from confirming the information in NPI's own books and records. Accordingly, Commerce concludes that NPI failed to cooperate to the best of its ability to comply with a request for information," Commerce said in its final Issues and Decision Memorandum.

Commerce invoked its authority under the Tariff Act of 1930 to apply adverse facts available, a penalty reserved for uncooperative respondents, to apply the higher rate after NPI withdrew, raising its margin from a preliminary rate of 35.71% following the first phase of the investigation.

NPI's penalty rate also spilled over into the rate Commerce will apply to other Japanese thermal paper exporters, which is calculated based on how much of the country's exports the mandatory respondent represents. Other Japanese firms will now be subject to anti-dumping levies of 135.06% on their products entering the U.S.

The other country's rates remained largely unchanged from Commerce's preliminary determinations in May, with only German exporter Papierfabrik August Koehler SE and its compatriots' rates inching up from 2.78% to 2.90%. Dumping rates for Korean firms including mandatory respondent Hansol Paper Co. Ltd. remained set at 6.19%.

Spanish respondent Torraspapel SA was also tagged with a higher rate based on adverse facts available early on in the investigation after it failed to answer three sections of Commerce's anti-dumping duty questionnaire, according to the final determination notice Commerce published in the Federal Register last month.

Because the preliminary rate was based on adverse facts available, Commerce did not need to verify its findings after the margin was set, and Torraspapel's rate remained set at 41.45%. Other Spanish exporters will pay a levy of 37.07%

Counsel for the petitioners declined to comment Tuesday. Counsel for the mandatory respondents did not immediately respond to requests for comment.

Appvion Operations Inc. and Domtar Corp. are represented by Stephen J. Orava, Stephen P. Vaughn, Bonnie B. Byers, Edmond A. O'Neill and Richard R. Lutz of King & Spalding LLP.

NPI is represented by Richard Weiner, Justin Becker, Mattie Wheeler, Rajib Pal, and Shawn Higgins of Sidley Austin LLP.

Papierfabrik August Koehler SE is represented by Amanda DeBusk, Darshak Dholakia, Eric Hageman, Jonathan Greengarden, Michael McGinley, and Navpreet Moonga of Dechert LLP.

Hansol Paper Co. is represented by Jaehong David Park, Anne Soh, Daniel R. Wilson, Gina Marie Colarusso, Henry Almond, Henry Bowman Morris, Kang Woo Lee, Leslie C. Bailey, Lynn Fischer Fox, Rick Johnson and Phyllis Derrick of Arnold & Porter Kaye Scholer LLP.

Torraspapel is represented by Michael P. House, Andrew Caridas, Caroline Bisk, Shuaiqi Yuan, Hanna Barker Mullin, Judy Casey and Sandra C. Wright of Perkins Coie LLP.

The investigations are Thermal Paper from Germany, Japan, Korea and Spain, investigation numbers A-428-850, A-588-880, A-580-911 and A-469-824, at the U.S. Department of Commerce.

Source: Law 360