                            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
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(“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
Court No. 13-00163                                                         Page 4


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
Court No. 13-00163                                                   Page 6


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
Court No. 13-00163                                                      Page 7


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.
Court No. 13-00163                                                 Page 9


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
