Ninestar Blasts US Motion to Amend APO as 'Distraction' Bid in UFLPA Entity List Case

The government hasn't justified its decision to keep a vast majority of the information confidential as part of Chinese printer cartridge maker Ninestar Corp.'s case against its placement on the Uyghur Forced Labor Prevention Act Entity List, Ninestar argued. Filing its opposition to the U.S.'s motion to enter an amended protective order on Oct. 23 at the Court of International Trade, the exporter said the motion would "give the Government essentially unreviewable discretion to seal information, placing it beyond Ninestar's review" and is just "another bid for delay and distraction" (Ninestar Corp. v. United States, CIT # 23-00182).

As part of the existing administrative record in the case, the government submitted a wealth of information, though most of it was redacted for purported confidentiality concerns. After Ninestar objected via a motion to compel, the U.S. asked for an amended protective order to "clarify the definition of confidential information to include law enforcement sensitive information or other similarly sensitive government information" (see 2310190033).

Ninestar opposed the motion, arguing that the government's duty to fill the record "is not contingent on the proposed amendment." The U.S.'s suggestion otherwise "seeks the Court's tacit blessing of its initial decision to redact 99% of the record," the brief said. Per the letter of the law, the government was already tasked with producing the entire record confidentially, which it failed to do, and the motion to amend the APO "confirms the lack of any legitimate basis for withholding the record entirely."

The proposed amendments are "unnecessary, unjustified, and unfair," the brief added. The government "sells" the idea that "confidential information" includes any document marked "law enforcement sensitive" or "for official use only," but "that cannot be so," the brief said. If all that was needed was "merely a clarification, the Government should have already filed the unredacted Administrative Record confidentially. It has not."

The U.S. has justified its decision not to disclose the confidential information on the ground that it has a vital interest in protecting the confidential sources. Ninestar said this claim fails, since "the Government makes no effort to tailor its proposed amendment to its asserted interest" and "accepting the proposed amendments would make the Government the final arbiter of confidentiality, restricting Ninestar from seeing a shred of the Government’s explanation for the listing decision."

The Chinese company, and its subsidiaries, produce and sell laser printers, integrated circuit chips and printer consumables, including toner and inkjet cartridges, many of which are imported into the U.S. The Forced Labor Enforcement Task Force added the companies to the UFLPA Entity List in June for allegedly working with the Xinjiang government to reap the benefits of forced labor by Uyghurs, Kazakhs, Kyrgyz or members of other persecuted groups in Xinjiang (see 2308230016).