Slip Op. 14- 1
UNITED STATES COURT OF INTERNATIONAL TRADE
PAPIERFABRIK AUGUST KOEHLER SE, :
:
Plaintiff, :
: Before: Nicholas Tsoucalas,
v. : Senior Judge
:
UNITED STATES, : Court No.: 13-00163
:
Defendant, :
:
and :
:
APPLETON PAPERS INC., :
:
Defendant-Intervenor. :
:
OPINION and ORDER
[Plaintiff’s Motion to compel Commerce to strike information or, in
the alternative, to disclose the information is denied.]
Dated: January 6, 2014
F. Amanda DeBusk and Matthew R. Nicely, Hughes Hubbard & Reed
LLP, of Washington, DC, for plaintiff.
Joshua E. Kurland, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of Washington,
DC, for defendant. With him on the brief were Stuart F. Delery,
Assistant Attorney General, Jeanne E. Davidson, Director, and
Reginald T. Blades, Jr., Assistant Director. Of counsel on the
brief was Jessica M. Forton, Attorney, Office of the Chief Counsel
for Trade Enforcement and Compliance, U.S. Department of Commerce,
of Washington, DC.
Daniel L. Schneiderman and Gilbert B. Kaplan, King & Spalding
LLP, of Washington, DC, for defendant-intervenor.
Tsoucalas, Senior Judge: Plaintiff Papierfabrik August
Koehler SE (“Koehler”) moves pursuant to 19 U.S.C. § 1677f(c)(2)
for an order compelling defendant Department of Commerce
Court No. 13-00163 Page 2
(“Commerce”) to strike part of defendant-intervenor Appvion,
Inc.’s1 (“Appvion”) May 18, 2012 submission of new factual
information. See Mot. to Compel (Nov. 5, 2013), ECF No. 57 at 1.
Alternatively, Koehler requests an order compelling Commerce to
disclose certain confidential information contained in that
submission. Id. at 1–2. Commerce and Appvion oppose this motion.
For the following reasons, Koehler’s motion is denied.
BACKGROUND
In the underlying proceeding, Commerce reviewed Koehler’s
sales of lightweight thermal paper (“LWTP”) between November 1,
2010 and October 31, 2011 (the “review period”). See LWTP From
Germany: Final Results of Antidumping Duty Administrative Review;
2010-2011, 78 Fed. Reg. 23,220 (Apr. 18, 2013) (“Final Results”).
During the review, Appvion submitted an affidavit (the
“Affidavit”) alleging that Koehler concealed certain home market
sales during the review period. See Letter to Commerce re:
Submission of New Factual Information (May 18, 2012), CR 49 at 2–3,
Exh. 1 (“May 18th Letter”). The Affidavit contained information
“obtained from a confidential source” and Appvion placed certain
information in single and double brackets. Id. at 2, Exh. 1.
Appvion requested that Commerce treat the single-bracketed
1
On May 13, 2013, Appleton Papers Inc. changed its name to
Appvion, Inc. See Letter to the Clerk of the Court (June 21,
2013), ECF No. 25 at 1.
Court No. 13-00163 Page 3
information as business proprietary information (“BPI”), available
only to authorized parties under the administrative protective
order (“APO”) for the review. Id. at 2. Appvion also requested
that Commerce exempt the double-bracketed information from
disclosure under the APO because there was a “clear and compelling
need” to withhold the information from disclosure. Id.
Appvion also included a public summary of the Affidavit,
which alleged the following: “Koehler has been engaged in a scheme
to defraud [Commerce] by intentionally concealing certain otherwise
reportable home market transactions. In particular, Koehler is
selling [LWTP] that it knows is destined for consumption in Germany
through various intermediaries in third-countries.” Id. at 2–3.
It further alleged that Koehler used this scheme to “artificially
manipulate prices attributable to those sales.” Id. at 3.
Koehler objected to Appvion’s use of single and double
brackets in the Affidavit. Letter to Commerce re: Objections of
Koehler to Over-Bracketing of Petitioner’s May 18 New Fictional
Information Letter (May 23, 2012), PR 92 at 1–8. It also appeared
to deny the substance of Appvion’s allegations, referring to the
May 18th Letter as the “Submission of New Fictional Information.”
Id. at 1.
Pursuant to Koehler’s objections, Commerce requested that
Appvion provide additional justification for the bracketing in the
Affidavit. Letter to Appvion re: Submission of New Factual
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Information (June 1, 2012), PR 98 at 1. In response, Appvion
explained that double-bracketing was required to protect the
identity of “Source 1,” and that single-bracketing was required to
conceal the affiant’s name and employer, as well as the time period
to which the allegations referred. Letter to Commerce re:
Explanation Regarding Bracketing Of Information (June 7, 2012), PR
103 at 1–7.
Despite initially characterizing the Affidavit as
“fictional,” Koehler subsequently admitted that it did not report
certain home market sales.2 See Koehler’s First Supplemental
Questionnaire Response (June 27, 2012), CR 66 at 3. Koehler also
provided a revised home market sales database including the
previously unreported sales, id. at 1–4, Exh. S1-27, but Commerce
rejected it as untimely filed new factual information. See
Rejection of Factual Information Submission Filed by Koehler (Jul.
5, 2012), PR 108 at 1–2.
Commerce applied total adverse facts available (“AFA”) in
the Final Results, imposing a dumping margin of 75.36%. See Final
Results, 78 Fed. Reg. at 23,221. It imposed total AFA because
“Koehler admitted to the transshipment scheme . . . and Koehler
2
Although it admitted to the conduct Appvion publicly
alleged, Koehler subsequently restated its objection to the single-
and double-bracketing of information in the Affidavit. See Letter
to Commerce re: Koehler’s Continued Objection to Double Bracketed
Information (Jul. 19, 2012), PR 117 at 1–7.
Court No. 13-00163 Page 5
admitted to its exclusion of certain reportable . . . LWTP sales
to Germany.” Issues and Decision Memorandum for the Final Results
of the 2010-2011 Administrative Review on LWTP from Germany (Apr.
10, 2013), PR 176 at 8.
Koehler filed the underlying action to contest the Final
Results pursuant to 28 U.S.C. § 1581(c). See Complaint (Apr. 24,
2013), ECF No. 6 at 1–2. Now, Koehler appeals for an order
compelling Commerce to strike the Affidavit altogether, or
alternatively, to disclose the double-bracketed information and
reject Appvion’s request for BPI treatment of certain single-
bracketed information. See Mot. to Compel at 1–2.
DISCUSSION
A party submitting factual information may “[r]equest
that [Commerce] treat any part of the submission as [BPI] that is
subject to disclosure only under an [APO],” or “[c]laim that there
is a clear and compelling need to withhold certain [BPI] from
disclosure under an [APO].” 19 C.F.R. § 351.304(a)(1) (2012);
see 19 U.S.C. § 1677f(b)(1) (2006). Upon request from an
interested party, Commerce must disclose all BPI in accordance with
the APO, “except privileged information, classified information,
and specific information of a type for which there is a clear and
compelling need to withhold from disclosure.” Id. at §
1677f(c)(1).
If Commerce determines that “designation of any
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information as proprietary is unwarranted, then it shall notify the
person who submitted it and ask for an explanation of the reasons
for the designation.” Id. at § 1677f(b)(2). Commerce “will reject
a submission that does not meet the requirements of [19 U.S.C. §
1677f(b) and 19 C.F.R. § 351.304] with a written explanation.” 19
C.F.R. § 351.304(d)(1). Commerce “normally will determine the
status of information within 30 days after the day on which the
information was submitted.” Id. at § 351.304(d)(2). And, “[i]f
the business proprietary status of information is in dispute,
[Commerce] will treat the relevant portion of the submission as
[BPI] until [it] decides the matter.” Id.
Here, Koehler argues that Commerce erroneously determined
that there was a “clear and compelling need” to withhold the
double-bracketed information in the Affidavit from disclosure under
the APO. Mot. to Compel at 7–10. Furthermore, Koehler insists
that Commerce erroneously treated certain single-bracketed
information as BPI because the information was not eligible for
such treatment. Id. at 11–12. Because Commerce “relied on the
allegations of fraud in the Affidavit to apply total AFA,” Koehler
contends that Commerce’s treatment of this information violated due
process as well as its statutory and regulatory rights. Id. at 7.
Accordingly, Koehler requests that this Court compel Commerce to
strike the Affidavit or, alternatively, produce the double-
bracketed information and reject the BPI designation of certain
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single-bracketed information. Id. at 1–2.
Commerce responds that Koehler’s motion is not properly
before the court because it did not deny Koehler’s application for
access to BPI under the APO. See Def.’s Resp. Opp’n Mot. to Compel
(Nov. 26, 2013), ECF No. 65 at 8–10. Additionally, even if Koehler
could properly raise a claim under section 1677f(c)(2), Commerce
insists that the court should reject Koehler’s motion because: the
motion is untimely; Koehler waived its claim by failing to raise it
in its case brief or in its complaint; Koehler admitted to the
allegations put forth in the public summary of the Affidavit; and
Commerce reasonably determined that the single- and double-
bracketing in the Affidavit was proper. Id. at 10–15.
As noted above, pursuant to an application by an
interested party, Commerce must provide access to BPI in accordance
with the APO except for proprietary and confidential information,
as well as information for which there is a “clear and compelling
need” to withhold from disclosure under the APO. See 19 U.S.C. §
1677f(c)(1). If Commerce denies a party’s application for access
to information under the APO, that party may appeal to this Court
for an order directing Commerce to make the information available.
Id. at § 1677f(c)(2); see 28 U.S.C. § 2643(c)(3). The action must
be filed “within ten days after the date of the denial of the
request” or it is barred. 28 U.S.C. § 2636(f).
Under 28 U.S.C. § 1581(f), this Court has exclusive
Court No. 13-00163 Page 8
jurisdiction over actions commenced pursuant to 19 U.S.C. §
1677f(c)(2). 28 U.S.C. § 1581(f). The Court has also considered
a section 1677f(c)(2) claim as part of an action under 28 U.S.C. §
1581(c) where Commerce failed to act on the plaintiff’s APO
application and did not provide access to BPI during the
proceeding. See Gen. Elec. Co. v. United States, 16 CIT 864,
868–69, 802 F. Supp. 474, 478–79 (1992) (Tsoucalas, J.).
The court agrees with Commerce that Koehler’s motion is
not properly before the court in accordance with 19 U.S.C. §
1677f(c)(2). Section 1677f(c)(2) requires that Commerce deny a
party’s request for access to information before that party moves
for an order compelling Commerce to provide access to the
information. See 19 U.S.C. § 1677f(c)(2). Here, Koehler’s motion
does not concern a denied APO application, it concerns Commerce’s
treatment of certain single- and double-bracketed information in
the Affidavit. See Mot. to Compel at 8–13. Because Koehler’s
motion concerns the BPI designations and not access to information
under an APO, it is not properly before the court. 19 U.S.C. §
1677f(c)(2).
For this same reason, Koehler cannot rely on General
Electric to make its section 1677f(c)(2) claim within its action
under 28 U.S.C. § 1581(c). In General Electric, the Court found
that Commerce’s failure to act on a party’s APO application denied
that party an opportunity to “fully participate” in the review.
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See Gen. Elec., 16 CIT at 870, 802 F. Supp. at 480. However,
because Koehler challenges Commerce’s acceptance of certain BPI
designations, it does not have a claim under section 1677f(c)(2)
and the concerns underpinning the Court’s holding in General
Electric are not applicable. See id., 802 F. Supp. at 480.
Accordingly, Koehler’s motion must be denied.
ORDER
Upon consideration of plaintiff’s Motion to Compel
Commerce to Strike Information, or, in the Alternative, Compel
Commerce to Disclose the Information, the responses thereto, and in
accordance with the above, it is hereby:
ORDERED that plaintiff’s motion is DENIED.
SO ORDERED.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: January 6, 2014
New York, New York