Ninestar Asks CIT to Compel Confidential Info in UFLPA Entity List Case, Says Case 'Mockery' Without It

Chinese printer cartridge manufacturer Ninestar Corp. urged the Court of International Trade to order the U.S. to submit the full, unredacted administrative record relating to the Forced Labor Enforcement Task Force's (FLETF's) decision to add Ninestar to the Uyghur Forced Labor Prevention Act Entity List. Even though the court has entered a protective order in the case, the government redacted over 99% of its submitted record (Ninestar Corp. v. United States, CIT # 23-00182).

Ninestar's counsel said in its brief that even the "confidential" record the government submitted doesn't include any unredacted versions of the material in the public record, nor does it include justifications for the redactions. In its motion to dismiss, the U.S. said Ninestar failed to exhaust its administrative remedies, noting that FLETF will entertain requests for removal from the Entity List where a listed firm provides information showing they no longer meet the criteria for listing.

"Of course, Ninestar cannot make any such showing without first learning the bases for the listing decision," the brief said, adding that this standard requires the company to "prove the negative." In its decision, FLETF said it came to the conclusion to list Ninestar by using Chinese government documents, the exporter's documents and media reports, though all of these documents are redacted. Ninestar argued that it "cannot mount such a challenge to a secret record."

In the motion to compel, the exporter highlighted the government's failure to offer any justification for withholding the record. The government pointed to a U.S. District Court for the District of Columbia decision, Strait Shipbrokers PTE. v. Blinken, which rejected the plaintiff's attempt to compel production of the record regarding its placement by the Treasury Department's Office of Foreign Asset Control on the Specially Designated Nationals list. Ninestar distinguished this case by saying the statute in that case allows federal courts to review confidential materials "in camera" without disclosure to the listed party, but that the UFLPA has no such provision.

Ninestar added that the court should "exercise its discretion" to compel disclosure of the full record to Ninestar's Sidley Austin attorneys. While the U.S. said it has a legitimate fear that the unredacted documents will be disclosed to Ninestar employees or other Chinese nationals, the exporter said the protective order qualifies the disclosure of confidential information "to anyone outside a tightly drawn circle, including Ninestar itself."

The company also argued that "without additional disclosure this proceeding becomes a mockery." While the U.S. already acknowledged its "ironic position" requiring Ninestar to disprove "secret evidence" of guilt, the U.S. added "the equally absurd argument that Ninestar's claims have been mooted by the Governments' production" of a redacted record. The exporter argued that the law "requires more than a reassuring 'trust us' from the Government."

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. FLETF 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, Kyrygyz or members of other persecuted groups in Xinjiang (see 2308230016).