CIT Denies ITC's Bid to Redact Bits of Public Decision Remanding Injury Proceeding on Fertilizers
The Court of International Trade on July 3 denied the International Trade Commission's request to redact five pieces of information from the court's public version of its decision remanding the commission's affirmative injury determination on phosphate fertilizer from Morocco and Russia. Concurrently, Judge Stephen Vaden released the public decision, which said the record "raises serious questions about whether domestic producers were able and willing to supply consumers during the period of review."
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The judge released the public version of the decision with "temporary redactions" in light of an ongoing appeal from the case currently before the U.S. Court of Appeals for the Federal Circuit regarding the ITC's policy of automatically redacting entire questionnaire responses submitted by parties to injury proceedings (see 2506110050).
The ITC requested that five pieces of information be redacted from the public decision, two of which were made "without the support of any company that submitted information" in the injury proceeding. The two pieces of information both concern the court's characterization of specific sales the domestic fertilizer producers lost to importers.
Vaden said the law regarding confidential information in injury proceedings says information can only be redacted when it's labeled as proprietary by the submitting party, so the information here can't be redacted. The ITC's requests for redaction would also fail even if the submitters wanted it redacted, the judge added. Redactions are only allowed when the party seeking redaction points out "specific, concrete harm" that disclosure would cause, the court held.
While the ITC said the court's characterizations "could allow someone to discover the underlying confidential information," the judge said the ITC doesn't explain why disclosure would then cause "substantial harm to the competitive position" of the submitting party, even if true. Nor does the commission explain how disclosure would harm the commission's ability to solicit information, the decision said.
Next, Vaden turned to the three other pieces of information for which the submitting party also requested redaction. The first piece "involves the Court’s general characterization of domestic producers’ warehouse and distribution facilities." The second "involves the Court’s description of the reshipment of phosphate fertilizer," and the third "arises from the Court’s non-numerical comparison between a company’s total fertilizer shipment volume and its inventory reshipment volume."
Regarding the warehouse and distribution information, the ITC said the court's discussion on this topic contains "sensitive" business information, though it failed to identify what harm the company would suffer if the "disputed portion was released without redaction," Vaden said. The judge held that the "disputed text does not connect any specific company with a particular warehousing arrangement," the motion "fails to identify any 'specific, concrete harm' that disclosure of this information would cause, and the court "has held that publicly available information regarding 'distribution and storage networks' is not confidential."
Regarding the reshipment of phosphate fertilizer, the ITC said the information in the decision would reveal a specific company's operations. Vaden said this request is "frivolous," since the court's language "mirrors language that the Court used in its original public remand opinion and that the Commission used in its public remand questionnaires." In addition, the ITC and the submitting company fail to identify any concrete harm regarding disclosure of the information, since reshipment of fertilizer is a "normal business practice," and anyone reading the public materials in the case would know as much.
Lastly, the ITC asked the court to redact a "nonnumerical comparison the Court made between (1) an unidentified company’s overall shipment volume and (2) its inventory reshipment volume." The commission said the information reveals a company's sensitive information, since one could identify the company at issue by comparing the court's citation to citations made elsewhere in the case docket.
Vaden refused to redact the information, since the decision "does not reveal any confidential information." Knowing the identity of the company at issue doesn't "automatically make the disputed information confidential," since the disputed part of the decision "made a comparison between two confidential numbers." This comparison can only reveal confidential information if a reader "knows one of the numbers being compared," and nothing in the decision reveals that information," Vaden held.
As far as the merits ruling goes, Vaden held that the injury proceeding must be sent back, since questionnaire responses "suggest that domestic producers were unable to relocate their phosphate fertilizer inventories to meet new market demand" and that reports from fertilizer trading companies show the largest domestic producer "refused to sell to these companies." If domestic manufacturers were "unable or unwilling" to meet U.S. consumer demand, "that would create a supply gap," Vaden said.
"Any imports filling this gap would not materially injure domestic producers because those imports would be making sales that U.S. producers otherwise could not, or would not, make," the decision said. Instead of addressing this evidence, the ITC "talked past these issues."
The commission first said domestic producers can reship inventories at "whatever quantities are needed," though that conclusion "rests entirely on small-scale instances of reshipment that no reasonable observer would believe proves the existence of a reship-at-will capability," the court said. Next, the ITC said significant import volumes entered the market, though this finding didn't account for how the largest U.S. producer's refusals to sell to U.S. buyers "may have impacted import flows." In addition, the ITC's price depression finding didn't "grapple with the fact that imports only undersold domestic product in twenty percent of instances, that [the largest U.S. producer] was the price leader in the market, and that the [ITC]'s evidence of lost sales came from a potentially flawed survey response."
(OCP v. United States, Slip Op. 25-84, CIT Consol. # 21-00219, dated 07/03/25; Judge: Stephen Vaden; Attorneys: Shara Aranoff of Covington & Burling for plaintiff OCP; Jeremy Dutra of Squire Patton for consolidated plaintiff EuroChem North America Corp.; Paul Rosenthal of Kelley Drye for plaintiff-intervenor International Raw Materials Ltd.; Jared Wessel of Hogan Lovells for plaintiff-intervenor Phosagro; Kenneth Weigel of Alston & Bird for plaintiff-intervenor Koch Fertilizer; Courtney McNamara for defendant U.S. government; Stephanie Hartman of Wilmer Cutler for defendant-intervenor Mosaic Company; Patrick McLain of King & Spalding for defendant-intervenor the J.R. Simplot Company)