Freres v. United States, Court No. 82-5-00636.
| Decision Date | 17 December 1982 |
| Docket Number | Court No. 82-5-00636. |
| Citation | 4 CIT 239,554 F. Supp. 1246 |
| Parties | Roquette FRERES and Roquette Corporation, Plaintiffs, v. The UNITED STATES, Defendant. Pfizer Inc., Intervenor. |
| Court | U.S. Court of International Trade |
Wald, Harkrader & Ross, Washington, D.C. (Joel E. Hoffman and Marilyn E. Kerst, Washington, D.C., of counsel), for plaintiffs.
J. Paul McGrath, Asst. Atty. Gen., Washington, D.C. (David M. Cohen, Director Commercial Litigation Branch and A. David Lafer, Washington, D.C.), for defendant.
Freeman, Wasserman & Schneider, New York City (Herbert Peter Larsen and Angela P. Violin, New York City, of counsel), for intervenor.
Rivkin, Sherman & Levy, New York City (Saul L. Sherman and Lance E. Tunick, New York City), for ICI Americas Inc., amicus curiae.
In the above-entitled action, plaintiffs, Roquette Freres and Roquette Corporation and intervenor, Pfizer Inc., foreign and domestic producers of sorbitol, respectively, move for access to all confidential documents contained in the record of the antidumping proceedings conducted by the International Trade Administration (ITA) and the International Trade Commission (ITC).1 Defendant moves for a protective order (1) permitting release of all ITA confidential documents to plaintiff and intervenor, subject to certain terms and conditions, and (2) precluding release of ITC confidential documents or, in the alternative, permitting release of certain ITC documents and portions thereof. Plaintiffs have further moved for leave to file a confidential exhibit under seal, and ICI Americas Inc., a domestic producer of sorbitol, has filed a motion to intervene or, in the alternative, to appear amicus curiae for the purpose of contesting the release of any documents containing confidential business information concerning it.2
Section 516A(b)(2)(B) of the Tariff Act of 1930, as amended, provides:
(B) Confidential or privileged material. —The confidential or privileged status accorded to any documents, comments, or information shall be preserved in any action under this section. Notwithstanding the preceding sentence, the court may examine, in camera, the confidential or privileged material, and may disclose such material under such terms and conditions as it may order.
This statute gives the court wide latitude in determining whether or not to release confidential documents to parties involved in an antidumping proceeding. In making its determination, the court must consider (1) the needs of the litigants for data used by the Government in order to adequately respond to the antidumping finding, (2) the need of the Government in obtaining confidential information from businesses in future proceedings, and (3) the needs of the producers of sorbitol to protect from disclosure information which, in the hands of a competitor, might injure their respective positions in the industry. This court must then balance "a party's need for the information sought against the public interest in protecting confidential business information, recognized by section 516A(b)(2)(B) and inherent in the administrative authority's ability to effectively perform its investigative duties required by the Antidumping Act." Nakajima All Co., Ltd. v. United States, ___ CIT ___, Slip Op. 81-95 (Oct. 26, 1981); Connors Steel Co. v. United States, 85 Cust.Ct. 112 (1980). Thus, where the confidential information requested was several years old and the disclosure thereof would not harm the positions of the companies submitting the information, disclosure was ordered. Japan Exlan Co., Ltd., Mitsubishi Rayon Co., Ltd. v. United States, Asahi Chemical Co., Ltd. v. United States, ___ CIT ___, Slip Op. 81-43 (May 12, 1981). Where, however, the relevancy of certain confidential documents (producer questionnaires) was in doubt, the court refused to disclose the documents. Melamine Chemicals, Inc. v. United States, ___ CIT ___, Slip Op. 81-32 (April 21, 1981). On the other hand, where the information contained in the specific documents requested "directly related to an assessment of whether there is material injury or a threat of material injury, and, consequently, germane to the major issues" of the case, disclosure was required. Rhone Poulenc, Inc. and Rhone Poulenc S.A. v. United States, ___ CIT ___, Slip Op. 81-87 (September 29, 1981).
Upon in camera inspection of the confidential documents contained in the administrative record, this court concludes that the questionnaires submitted by Pfizer Inc., Roquette Freres and Roquette Corp., and Lonza, Inc., parties to the administrative proceeding appealed from, as well as their confidential letters and exhibits and the internal memoranda of the ITC and ITA, shall be made available for inspection and copying by plaintiffs and intervenor subject to the terms and conditions enumerated, infra.
The questionnaires submitted by ICI Americas Inc., Merck, Inc., and Ethichem, domestic producers of sorbitol, shall be totally protected from disclosure. They contain vital statistical data concerning such matters as production capacity, customers, techniques, and the like. Much of this data was not directly relevant to the administrative determinations.
Finally, the reports prepared by the staff of the ITC and submitted to the Commission to assist its determination shall be made available to plaintiffs and intervenor, except those certain portions restating the vital data submitted by ICI Americas, Merck and Ethichem in their respective individual questionnaires will be deleted. However, the computations made by the ITC staff from the individual figures submitted by the above producers (including Pfizer and Lonza in some instances) in arriving at industry-wide totals for certain questions, such as production capacity and costs, shall be disclosed. The industry-wide aggregate data, and not the individual producer statistics, form the basis of the administrative determinations and therefore are material to plaintiffs' challenge to the finding of dumping against plaintiffs and the finding of material injury to "an industry in the United States" under 19 U.S.C. § 1673. See 47 Fed.Reg. 14981 (April 7, 1982).
Accordingly, upon reading and filing the respective motions of plaintiffs, Roquette Freres and Roquette Corporation, and intervenor, Pfizer Inc., for access to confidential documents contained in the administrative record, plaintiffs' motion for leave to file confidential exhibit under seal, defendant's responses and cross-motion for a protective order, and upon reading and filing all other papers and proceedings herein, it is hereby ORDERED:
1. Plaintiffs' motion for leave to file confidential exhibit under seal is denied.
2. Plaintif...
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