CIT Stays Germany Thermal Paper AD Case Pending Results of Union Steel Appeal

The Court of International Trade stayed Koehler’s challenge of the 2008-09 antidumping administrative review of lightweight thermal paper from Germany (A-428-840) on the issue of zeroing, as well as other aspects of the final results, pending resolution of Union Steel v. U.S. In Union Steel, currently on appeal, CIT affirmed the International Trade Administration’s explanation for zeroing in administrative reviews but not investigations. The ITA provided a similar explanation in this case. The U.S. government opposed the stay, arguing that Koehler did not raise the issue during the administrative review and so failed to exhaust its administrative remedies. Shortly before the final results were issued, CAFC decided for the first time in Dongbuv. U.S not to affirm the ITA’s use of zeroing in administrative reviews. The ITA said the decision was merely a remand, not an actual change to the law, so it did not merit waiving the exhaustion requirement. But CIT said the fact that the law is now “unsettled” by the remand means it is waiving the exhaustion requirement and staying the case.