Slip Op. No. 25-84
UNITED STATES COURT OF INTERNATIONAL TRADE
OCP S.A.,
Plaintiff,
EUROCHEM NORTH AMERICA CORPORATION,
Consolidated Plaintiff,
and
PHOSAGRO PJSC, INTERNATIONAL RAW MATERIALS LTD., and KOCH Before: Stephen Alexander Vaden, FERTILIZER, LLC, Judge Plaintiff-Intervenors, Consol. Court No. 1:21-cv-00219 v.
UNITED STATES,
Defendant,
THE MOSAIC COMPANY and J.R. SIMPLOT COMPANY,
Defendant-Intervenors.
OPINION
[Granting in part and denying in part a Motion filed by the International Trade Commission to request issuance of a redacted public opinion.]
Dated: July 3, 2025 Consol. Court No. 1:21-cv-00219 Page 2
Shara L. Aranoff, Covington & Burling LLP, of Washington, DC, for Plaintiff OCP S.A. With her on the brief are James M. Smith, Sooan (Vivian) Choi, John J. Catalfamo, and Julia Shults.
Jeremy W. Dutra, Squire Patton Boggs LLP, of Washington, DC, for Consolidated Plaintiff EuroChem North America Corporation. With him on the brief is Peter Koenig.
Paul C. Rosenthal, Kelley Drye & Warren LLP, of Washington, DC, for Plaintiff- Intervenor International Raw Material Ltd. With him on the brief is Melissa M. Brewer.
Jared R. Wessel, Hogan Lovells US LLP, of Washington, DC, for Plaintiff-Intervenor Phosagro PJSC. With him on the brief are H. Deen Kaplan, Michael G. Jacobson, and Cayla D. Ebert.
Kenneth G. Weigel, Alston & Bird LLP, of Washington, DC, for Plaintiff-Intervenor Koch Fertilizer, LLC. With him on the brief is Lian Yang.
Courtney S. McNamara, Attorney-Advisor, Office of the General Counsel, U.S. International Trade Commission, of Washington, DC, for the Defendant United States. With her on the brief is Andrea C. Casson, Assistant General Counsel for Litigation of the International Trade Commission.
Stephanie E. Hartman, Wilmer Cutler Pickering Hale and Dorr LLP, of Washington, DC, for Defendant-Intervenor Mosaic Company. With her on the brief are David J. Ross and Alexandra Maurer.
Patrick J. McLain, King & Spalding LLP, of Washington, DC, for Defendant- Intervenor the J. R. Simplot Company. With him on the brief are Stephen P. Vaughn and Neal J. Reynolds.
Vaden, Judge: The International Trade Commission (the Commission) filed
a Motion with the Court on June 20, 2025. See Def.’s Mot. for Extension of Time and
for Issuance of Public Op. (Def.’s Mot.) at 1–2, ECF No. 229. The Motion requested
two extensions of time in the underlying remand proceedings, which the Court
granted in a Paperless Order filed on June 24, 2025. See id. at 1–2; Order, ECF No. Consol. Court No. 1:21-cv-00219 Page 3
232. It also asked the Court to file a public version of its April 22, 2025 opinion with
five redactions. See Def.’s Mot. at 1–2, ECF No. 229; see also OCP S.A. v. United
States (OCP Merits Decision), 49 CIT __, Consol. Ct. No. 1:21-cv-00219 (Apr. 22,
2025), ECF No. 224. The requested redactions are to prevent the revelation of alleged
confidential business information. The Court will GRANT IN PART and DENY IN
PART the Commission’s request. It is proper to make the Opinion public. The Court,
however, declines to make the Commission’s requested redactions because each one
lacks merit. Out of respect for the Federal Circuit’s appellate review, the Court will
issue a public version of the Opinion with temporary redactions. Unless otherwise
ordered, the Court will immediately issue an unredacted version of its April 22, 2025
OCP Merits Decision once the Federal Circuit resolves the Commission’s mandamus
petition.
BACKGROUND
This case began when OCP S.A. (OCP) — a Moroccan fertilizer producer —
challenged the Commission’s determination that Moroccan and Russian phosphate
fertilizer imports materially injured domestic producers. See Compl. ¶ 1, ECF No.
10. Under the Tariff Act, when domestic producers petition for relief from unfair
foreign competition, the Commission must determine if imports cause or threaten to
cause “material injury” to those producers. See 19 U.S.C. §§ 1671, 1673. OCP argued
that the Commission’s affirmative injury determination was unsupported by
substantial evidence. See Compl. ¶¶ 44–54, ECF No. 10. The Court agreed and Consol. Court No. 1:21-cv-00219 Page 4
remanded the case to the Commission. See OCP S.A. v. United States (OCP I), 47
CIT __, 658 F. Supp. 3d 1297 (2023).
Concerns surrounding confidentiality first appeared during this initial phase
of the case. The Commission’s material injury determinations often involve the
submission, analysis, and discussion of sensitive business records, which Congress
permits the Commission to redact if certain legal requirements are met. See 19
U.S.C. § 1677f(b)(1); see also 19 C.F.R. § 201.6(b). Before oral argument, counsel for
the Commission urged the Court to hold the entire oral argument in closed session.1
Audio Recording, Conf. Call Regarding Oral Arg. at 24:33–50 (Conf. Call) (June 7,
2022), ECF No. 144. The Court declined to do so and instead held a public oral
argument with a brief confidential session at the end. See generally Oral Arg. Tr.,
ECF No. 129. The vast majority of the oral argument was held in open court, and the
Court’s eventual opinion was entirely public. See id.; OCP I, 47 CIT __, 658 F. Supp.
3d at 1297.
After the Court’s opinion in OCP I but before the Commission filed its Remand
Determination, the Court ruled on a separate determination by the Commission. In
CVB, Inc. v. United States, 47 CIT __, 675 F. Supp. 3d 1324, 1347 (2023), the Court
upheld the Commission’s determination under the harmless error standard. Shortly
thereafter, the Commission filed a Motion asking the Court to retract its opinion in
CVB because it believed the opinion contained confidential business information. See
CVB, Inc. v. United States (CVB II), 48 CIT __, 681 F. Supp. 3d 1313, 1315 (2024).
1 A closed session would bar not only the public and the media but also the corporate officers
of the parties to the case from attending. Consol. Court No. 1:21-cv-00219 Page 5
The Court denied that Motion on January 8, 2024, in a written opinion. Id. at 1323.
First, the Court found that the Commission’s wholesale failure to comply with USCIT
Rule 5(g)’s procedure for identifying confidential information meant that the
Commission forfeited any confidentiality claim. Id. at 1317–19. Second, the Court
found that much of the supposedly confidential information was not entitled to
confidential treatment because substantially identical information was publicly
available. Id. at 1320. This information was publicly available not only in the
popular press but also from the Commission’s own public hearing. Id. The
Commission appealed this decision, and the Federal Circuit is currently considering
its appeal.
The Commission filed its Remand Determination in OCP on January 17, 2024.
See Remand Determination, ECF No. 145. The Court reviewed the administrative
record after press reports surfaced that the Remand Determination contained heavy
redactions. See Order Regarding Confidentiality (Confidentiality Order) at 2–3, ECF
No. 158; Jennifer Doherty, Trade Commission Reaffirms Fertilizer Import Injury,
LAW 360 (Jan. 18, 2024), http://bit.ly/3WbM74R (describing the Remand
Determination as “heavily redacted”). The Court found “numerous redactions” in
both the public Remand Determination and the public administrative record “that
appear to violate the principles elucidated in [CVB II].” Confidentiality Order at 2–
3, ECF No. 158. The redacted information included broad statements about industry
conditions and market prices as well as information that is substantially identical to Consol. Court No. 1:21-cv-00219 Page 6
information available on domestic producers’ own websites and in their mandatory
securities filings. See Confidentiality Order Ex. 1 at 1–12, ECF No. 159.
The Court ordered the parties to appear at an evidentiary hearing to explain
and justify the redactions. Confidentiality Order at 5–7, ECF No. 158. The parties
had the opportunity to present witnesses and exhibits to explain the redactions and
what harm would occur if the redacted information was not afforded confidential
treatment. Id. at 7. All parties waived this opportunity and declined to present
witnesses or exhibits. Hr’g Tr. at 9:23–10:8, ECF No. 193.
The Commission told the Court at the hearing that its redactions are
automatic, unreviewable, and irreversible. It redacts every word of a questionnaire
response — regardless of whether the information is publicly available. See id. at
47:2–25. These redactions are “automatic” and even occur when the same
information appears on a company’s public website, through Google searches, or in
major newspapers like the Wall Street Journal. See id. at 35:19–36:21, 44:13–46:13.
The Commission’s counsel explained that this practice is not grounded in any statute
or regulation. See id. at 20:23–21:3 (THE COURT: “Is that practice based on the text
of a statue or regulation that tells you to treat everything that’s in a questionnaire as
secret?” MR. BIANCHI: “No, sir.”). Instead, this practice “has been long-established
and relied upon by the parties.” Id. at 35:17–18; see also id. at 20:16–19 (MR.
BIANCHI: “Information that is submitted through questionnaires has been for
decades treated differently by the Commission, as our standard practice of doing so.”).
The Commission also argued that no court can review the Commission’s redactions Consol. Court No. 1:21-cv-00219 Page 7
because “Congress intended the confidential treatment of any business propriety
information treated as such before the agency to continue in subsequent proceedings
….” Commission’s Suppl. Br. at 9, ECF No. 191.
On March 27, 2025, the Court issued an opinion resolving the legal issues
raised by the evidentiary hearing. See OCP S.A. v. United States (OCP
Confidentiality Decision), 49 CIT __, Consol. Court No. 1:21-cv-00219, 2025 Ct. Intl.
Trade LEXIS 32, at *59 (Mar. 27, 2025). The Court held that the Commission cannot
abuse its redaction powers by redacting non-confidential information from public
view. See id. As the Court explained, the Commission’s “practice of automatically
treating all information in questionnaire responses as confidential … is inconsistent
with statute, regulation, precedent, and common sense.” Id. at *3. These
unwarranted redactions were subject to judicial review and did not bind the courts
because Congress authorized the federal courts to “examine, in camera, the
confidential or privileged material” redacted by the Commission and to “disclose such
material under such terms and conditions as [the courts] may order.” 19 U.S.C. §
1516a(b)(2)(B); see also OCP Confidentiality Decision, 49 CIT __, 2025 Ct. Intl. Trade
LEXIS 32, at *39.
The Court then exercised its Congressionally authorized power to review the
Commission’s redactions. See OCP Confidentiality Decision, 49 CIT __, 2025 Ct. Intl.
Trade LEXIS 32, at *41–59. It found that all but one of the redactions at issue were
unjustified. Id. Most of the information the Commission labeled as confidential
appeared in public security filings, company websites, and annual reports. See OCP Consol. Court No. 1:21-cv-00219 Page 8
Confidentiality Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS 32, at *6. The Court
ordered the Commission to treat that information as non-confidential in all future
filings with the Court. See id. at *59. It also directed the Commission to “abide by
the statutes and regulations governing confidential treatment of information in
filings of any kind with the Court.” Id.
After the Court issued its OCP Confidentiality Decision, but before it could
issue its OCP Merits Decision, the Commission filed a petition for a writ of mandamus
with the Federal Circuit. See ITC’s Pet. for a Writ of Mandamus (ITC’s Petition), Fed.
Cir. No. 2025-127, ECF No. 2. The petition asked the Federal Circuit to intervene in
this case, set aside the Court’s OCP Confidentiality Decision, and direct the Court to
“retain the Commission’s designation of information as business proprietary
information … unless the submitting party has consented to its disclosure.” Id. at 2.
The petition continued to advance the Commission’s view that it possessed
unbounded authority to redact information, arguing that the Commission’s
redactions must “be preserved in any subsequent proceedings.” Id. at 4.
The Federal Circuit invited the Court to file a response to the petition, which
the Court did on April 22, 2025. The Court noted that a writ of mandamus is “an
‘extraordinary remedy, to be reserved for extraordinary situations’” where lower
courts usurp power or abuse their discretion. Court’s Resp. at 1, Fed. Cir. No. 2025-
127, ECF No. 7 (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271, 289 (1988)). The Commission was “not entitled to that relief” because the broad
redaction power it claimed was in “direct contravention of the law,” as the Court’s Consol. Court No. 1:21-cv-00219 Page 9
OCP Confidentiality Decision demonstrated. Id. at 2–3. Alongside its response, the
Court filed its OCP Merits Decision, which resolved all pending motions regarding
the Commission’s Remand Determination. See OCP Merits Decision, 49 CIT __, ECF
No. 224. The decision was filed under seal to respect the Federal Circuit’s review of
the Commission’s mandamus petition. It remanded the Commission’s affirmative
material injury determination for a second time because that determination
remained unsupported by substantial evidence. See id. As part of the response filed
by the Court, the Federal Circuit received a copy of the OCP Merits Decision.
The Commission filed its reply with the Federal Circuit on April 29, 2025. See
ITC’s Reply in Supp. of Pet. for a Writ of Mandamus (ITC’s Reply), Fed. Cir. No. 2025-
127, ECF No. 8. The Commission continued to argue that the Court’s OCP
Confidentiality Decision would “irreparably harm the Commission’s ability to
perform its statutory functions[.]” ITC’s Reply at 2. It also asked the Federal Circuit
to “direct the [Court] to issue a public version of the April opinion … that includes
any redactions proposed by the Commission and the parties ….” Id. at 16. Notably,
the Commission’s reply pretended to narrow its claimed redaction power. The
Commission previously told this Court it would redact quotes from a Wall Street
Journal article if they were contained in a questionnaire response. See Hr’g Tr. at
43:13–46:13, ECF No. 193. And, in a separate case, the Commission actually redacted
information that appeared in USA Today. See CVB II, 48 CIT __, 681 F. Supp. 3d at
1320. In its reply to the Federal Circuit, however, the Commission now suggests that
parties actually could discuss this kind of public information if someone “put the Consol. Court No. 1:21-cv-00219 Page 10
article on the public record.” ITC’s Reply at 11, Fed. Cir. No. 2025-127, ECF No. 8.
But see id. (noting the Commission continues to maintain that the same information
placed in a questionnaire would still be treated as confidential).
The Federal Circuit responded to the Commission’s petition on June 11, 2025.
It granted a narrow interim stay of any directives by this Court that require the
Commission “to correct the public version of the record and to change its practices of
designating [business proprietary information] in the OCP Case remand proceedings
….” Order at 4, Fed. Cir. No. 2025-127, ECF No. 9 (emphasis in original). All other
requests were denied, including the Commission’s request to order this Court to issue
its OCP Merits Decision with any redactions the Commission desires. See id. (noting
that the Commission had not yet even requested this Court “issue a redacted version”
of the decision). The Federal Circuit consolidated the remaining issues arising from
the Commission’s petition with the separate appeal of this Court’s opinion in CVB II.
See id. at 4–5. Those cases will be argued together, and the Federal Circuit appointed
a second amicus curiae to argue in support of this Court’s opinions in both cases. See
id.
The Commission filed its latest Motion on June 20, 2025, asking for two
extensions of time and for release of a public, redacted version of the OCP Merits
Decision. See Def.’s Mot. at 6–9, ECF No. 229. This Motion arrived fifty-nine days
after the Court issued the OCP Merits Decision under seal. It asks this Court for five
redactions in a fifty-page opinion. The first redaction request involves information
about domestic producers’ warehousing found on page 20 of the Court’s decision. See Consol. Court No. 1:21-cv-00219 Page 11
id. at 6–7. The second request relates to information on the same page recounting
what domestic producers, as a group, reported to the Commission about their
inventory reshipment practices. See id. Page 24 contains the third request, arising
from the Court’s analysis that domestic producers’ reported inventory reshipment
volumes are commercially insignificant. See id. at 7. The fourth request on page 46
and the fifth request on page 47 relate to information gathered by “the Commission’s
purchaser questionnaire[.]” Id. They involve sales domestic producers may have lost
to subject imports. See id. Only the first three requests are supported by the company
that submitted the information. See id. at 6–7. The Court offered the parties an
opportunity to submit responses to the Commission’s Motion. See Order, ECF No.
231. No party submitted one.
STANDARD OF REVIEW
The Court has jurisdiction over the underlying legal dispute pursuant to 28
U.S.C. § 1581(c). Statute authorizes the Court to examine information that the
Commission labels as “confidential or privileged” and to “disclose such material under
such terms and conditions” as the Court may order. 19 U.S.C. § 1516a(b)(2)(B). The
Court’s exercise of its power to disclose this information must be informed by the
statutory scheme governing what kind of information can be redacted when obtained
by the Commission, the related regulations, and by relevant common law rights of
public access to judicial proceedings. See 19 U.S.C. § 1677f; 19 C.F.R. § 201.6; OCP
Confidentiality Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS 32, at *33–41. Consol. Court No. 1:21-cv-00219 Page 12
DISCUSSION
The Commission asks the Court to release a public version of the OCP Merits
Decision with five redactions to address purportedly confidential information. See
Def.’s Mot. at 6–9, ECF No. 229. Two of those requests — the fourth and the fifth —
are made without the support of any company that submitted information in the
underlying investigation. The remaining three are requested by both the
Commission and a company that participated in the Commission’s proceedings. For
the foregoing reasons, the Court GRANTS the Commission’s request for the release
of a public version of the OCP Merits Decision and DENIES the Commission’s five
requested redactions. Out of respect for the Federal Circuit’s review of this case, the
Court will issue a public version of the OCP Merits Decision with temporary
redactions pursuant to the Commission’s unmeritorious requests. Unless otherwise
ordered, these redactions will be withdrawn once the Federal Circuit completes its
review of the Commission’s petition.
I. Redaction Requests Made Without a Party’s Consent
The Commission asks the Court to redact two pieces of information without
support from any company that participated in the underlying investigation. On
pages 46 and 47 of the OCP Merits Decision, the Court generally described
information gathered from the Commission’s purchaser questionnaire. See OCP
Merits Decision, 49 CIT __, slip op. at 46–47, ECF No. 224. This information detailed
specific sales that domestic fertilizer producers lost to importers. See id. The fourth
and fifth redaction requests in the Commission’s Motion argue that the Court’s Consol. Court No. 1:21-cv-00219 Page 13
characterization of the information would allow some readers to ascertain the
underlying confidential information. See Def.’s Mot. at 7, ECF No. 229. Because no
party to the investigation contends this information is proprietary, the Court’s
summary should be released without redaction.
Information gathered in Commission investigations may only be redacted
when it is labeled as proprietary “by the person submitting the information ….” 19
U.S.C. § 1677f(b)(1)(A) (emphasis added). If the Commission does not receive a
redaction request from a submitting party, its only function is ministerial. The
statute requires that it “shall disclose … any information … which is not designated
as proprietary by the person submitting it.” Id. § 1677f(a)(4)(B); see Wilbur v. United
States ex rel. Kadrie, 281 U.S. 206, 218 (1930) (defining ministerial duties as those
statutory duties “so plainly prescribed as to be free from doubt and equivalent to a
positive command”). Indeed, were the Commission to ignore this statutory command,
a petition for a writ of mandamus very well might lie against it. See Wilbur, 281 U.S.
at 218–19 (holding mandamus relief against executive branch officials is limited to
the enforcement of nondiscretionary, plainly defined, and purely ministerial duties).
Here, no company joins the Commission’s two requests to redact portions of
pages 46 and 47. These companies, not the Commission, are “the owners of the
information” in dispute. See ITC’s Petition at 6, Fed. Cir. No. 2025-127, ECF No. 2.
The Commission does not argue that any company requests confidential treatment of
this information in the Opinion. Therefore, the information cannot be redacted. See
19 U.S.C. §§ 1677f(b)(1)(A), (a)(4)(B); 19 C.F.R. § 201.6(a)(1). Consol. Court No. 1:21-cv-00219 Page 14
The Commission’s two requests would lack merit even if they had corporate
support. Redactions are permissible only if the party seeking redaction identifies
“specific, concrete harm” that disclosure would cause. See OCP Confidentiality
Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS 32, at *55; see also AmerGen Energy
Co. ex rel. Exelon Generation Co. v. United States, 115 Fed. Cl. 132, 141 (2014)
(holding “vague and speculative allegations of injury” are insufficient to support a
claim of confidentiality). The Commission’s own regulations adopt this requirement
and limit the definition of “[c]onfidential business information” to information that,
if disclosed, would either “impair[] the Commission’s ability to obtain such
information” in future investigations or “caus[e] substantial harm to the competitive
position of the [submitter].” 19 C.F.R. § 201.6(a)(1). The Commission’s two requests
allege that the Court’s general characterizations could allow someone to discover the
underlying confidential information. See Def.’s Mot. at 6–7, ECF No. 229. Even
assuming that is true, the Commission does not explain why disclosure would “caus[e]
substantial harm to the competitive position of the [information’s submitter].” 19
C.F.R. § 201.6(a)(1). Nor does it explain how disclosure might “impair[] the
Commission’s ability to obtain such information” in other investigations. Id. And no
“submitter” has requested such treatment. The Commission’s failure to satisfy its
own regulation is total. Compare Def.’s Mot. at 7, ECF No. 229, with 19 C.F.R. §
201.6(a)(1).
The Commission’s related argument that the entire questionnaire cited on
pages 46 and 47 “must retain the [business proprietary information] status afforded Consol. Court No. 1:21-cv-00219 Page 15
by the Commission” misunderstands the law. It is “information,” not documents, that
are confidential. See 19 U.S.C, § 1677f(a)(4)(A)–(B) (discussing how to treat “any
proprietary information received in the course of a proceeding”) (emphasis added); 19
C.F.R. § 201.6(b)(1) (setting procedures for requesting “confidential treatment of
business information” ) (emphasis added). When making redactions, “the question is
not whether a document is confidential[;] … [i]t is whether information is
confidential.” OCP Confidentiality Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS
32, at *9 (emphasis in original). What document the information appears in is
immaterial. See id. at *29 (“Information that is public anywhere ought to be public
everywhere.”). These requests are DENIED.
II. Redaction Requests Made with a Party’s Consent
The Commission’s remaining three redaction requests are supported by one
company that participated in the underlying investigation. See Def.’s Mot. at 6–7,
ECF No. 229. The first of these redactions involves the Court’s general
characterization of domestic producers’ warehouse and distribution facilities found
on page 20 of the OCP Merits Decision. See id. at 6. The second request involves the
Court’s description of the reshipment of phosphate fertilizer on that same page. See
id. The third request arises from the Court’s non-numerical comparison between a
company’s total fertilizer shipment volume and its inventory reshipment volume,
which is found on page 24 of the decision. Id. at 7. Each request lacks merit.
Proprietary designation “by the person submitting the information” is
insufficient on its own to warrant redaction. 19 U.S.C. § 1677f(b)(1)(A); see also OCP Consol. Court No. 1:21-cv-00219 Page 16
Confidentiality Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS 32, at *30–33 (citing
19 U.S.C. § 1677f(b)(1)(B)(i)–(ii)). Parties requesting confidential treatment must
also submit either a “non-proprietary summary” of the information or “a statement
[explaining] that the information is not susceptible to summary ….” 19 U.S.C. §
1677f(b)(1)(B)(i)(I)–(II). They additionally must explain why disclosure of the
information would pose a “specific, concrete competitive harm.” OCP Confidentiality
Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS 32, at *55 (citing cases). Mere “vague
and speculative allegations of injury” are insufficient. AmerGen Energy, 115 Fed. Cl.
at 141.
The relevant statute creates a mechanism to address “[u]nwarranted
designations” of information as confidential. 19 U.S.C. § 1677f(b)(2). “Unwarranted
designations” occur when information is “availab[le] from public sources,” and the
submitter cannot explain why “the [confidentiality] designation is warranted[.]” Id.
Similarly, the statute requires the Commission to “disclose … any proprietary
information received in the course of a proceeding if it is disclosed in a form which
cannot be associated with, or otherwise be used to identify, operations of a particular
person[.]” Id. § 1677f(a)(4)(A).
The Commission’s regulations mirror these statutory requirements. They
establish the “[p]rocedure for submitting business information in confidence.” 19
C.F.R. § 201.6(b). This procedure requires the party submitting the information to
include: (1) a nonconfidential “written description of the … information[,]” (2) a
“justification for the request for its confidential treatment[,]” and (3) a “certification Consol. Court No. 1:21-cv-00219 Page 17
… that substantially identical information is not available to the public[.]” Id. §
201.6(b)(3)(i)–(iii) (emphasis added). The regulations also limit the Commission’s
definition of “[c]onfidential business information” to only include information that, if
disclosed, would “impair[] the Commission’s ability to obtain such information” in
future investigations or would “caus[e] substantial harm to the competitive position”
of the submitter. Id. § 201.6(a)(1). Parties must show “good cause” before the
Commission will redact “[n]onnumerical characterizations of numerical confidential
business information (e.g., discussion of trends) ….” Id. Similar instructions appear
on the Commission’s questionnaires. See Blank U.S. Producers’ Questionnaire at 3,
J.A. at 20,833, ECF No. 205.
A. Warehouse and Distribution Information
The Commission and the company believe the Court should redact general
information about domestic producers’ warehousing and distribution facilities on
page 20 of the OCP Merits Decision. Def.’s Mot. at 6–7, ECF No. 229. They claim
that this portion of the Opinion contains “sensitive” business proprietary information
but do not elaborate on what harm, if any, the company would suffer if the disputed
portion was released without redaction. See Def.’s Mot. at 6–7, ECF No. 229. Their
redaction request fails for three reasons.
First, the disputed text does not connect any specific company with a particular
warehousing arrangement; instead, it merely summarizes the different types of
warehousing arrangements domestic producers in general use. See OCP Merits
Decision, 49 CIT __, slip op. at 20, ECF No. 224. Information is not confidential if it Consol. Court No. 1:21-cv-00219 Page 18
cannot be “associated with[] or otherwise … used to identify … a particular person[.]”
19 U.S.C. § 1677f(a)(4)(A). This Court previously recognized that specific information
about individual companies’ warehousing locations, agreements, and partners is
confidential if it is not publicly available. See OCP Confidentiality Decision, 49 CIT
__, 2025 Ct. Intl. Trade LEXIS 32, at *19. By contrast, the disputed portion of the
sealed Opinion only summarizes warehousing behaviors broadly applicable to
domestic producers. See OCP Merits Decision, 49 CIT __, slip op. at 20, ECF No. 224.
It cites to two pages of the Remand Determination that discuss the specific
warehousing arrangements of multiple companies. See Remand Determination at
23–24, ECF No. 145. The opinion never states which companies use which
arrangements, and a third party could not glean that information by looking at the
cited pages of the Remand Determination. The Commission’s claim that the Opinion
contains information about “an individual firm’s operations” is incorrect. See Def.’s
Mot. at 6, ECF No. 229.
Second, the Motion fails to identify any “specific, concrete harm” that
disclosure of this information would cause. OCP Confidentiality Decision, 49 CIT __,
2025 Ct. Intl. Trade LEXIS 32, at *55. The Commission only asserts that the disputed
portion of the sealed Opinion “contains [business proprietary information[.]” Def.’s
Mot. at 6–7, ECF No. 229. Neither the Commission nor the company explain why
disclosure of this information would either “impair[] the Commission’s ability to
obtain such information” or “caus[e] substantial harm to the competitive position of
the [information’s submitter].” 19 C.F.R. § 201.6(a)(1). Therefore, the Commission’s Consol. Court No. 1:21-cv-00219 Page 19
request is legally insufficient. See OCP Confidentiality Decision, 49 CIT __, 2025 Ct.
Intl. Trade LEXIS 32, at *55; see also AmerGen Energy, 115 Fed. Cl. at 141 (holding
that confidential treatment should not be granted based on “vague and speculative
allegations of injury”).
Third, this Court has held that publicly available information regarding
“distribution and storage networks” is not confidential. OCP Confidentiality
Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS 32, at *14; see, e.g., Mosaic 2022 Form
10-K at 14-16 (Feb. 23, 2022), https://bit.ly/4gmB3cl (describing the company’s
distribution network); Nutrien, 2019 Annual Report at 12 (Feb. 19, 2020),
https://bit.ly/4dQ4GBK (same). The OCP Confidentiality Decision addressed whether
specific information about companies’ storage and distribution centers could be
redacted by the Commission. See OCP Confidentiality Decision, 49 CIT __, 2025 Ct.
Intl. Trade LEXIS 32, at *44–50. The Court concluded that almost all of this
company-specific information is publicly available in securities filings and on
companies’ websites so that it could not be redacted. See id. A general
characterization of domestic producers’ warehousing arrangements cannot be
confidential if the underlying, company-specific information is publicly available.
The Commission’s redaction request is DENIED.
B. Reshipment of Phosphate Fertilizer
The Commission and the company at issue ask the Court to redact language
about domestic producers’ ability to reship inventories. Def.’s Mot. at 6–7, ECF No.
229. The Commission claims that, if this information were not redacted, it would Consol. Court No. 1:21-cv-00219 Page 20
reveal a specific company’s operations. Id. The request is frivolous. See Frivolous,
BLACK’S LAW DICTIONARY (10th ed. 2014) (“Lacking a legal basis or legal merit; not
serious; not reasonably purposeful[.]”).
A key, public aspect of the underlying legal dispute in this proceeding hinged
on whether domestic producers could reship inventories from their originally
intended destination. See OCP I, 47 CIT __, 658 F. Supp. 3d at 1314–18. The Court’s
original opinion directed the Commission to “conduct a new analysis of the conditions
of competition with respect to domestic reshipment ….” Id. at 1318. That opinion
discussed how the Commission failed to collect (1) evidence of “reshipment of fertilizer
that has already reached its intended destination” and (2) proof that “domestic
reshipment of fertilizer from inventories had occurred as a normal business practice.”
Id. at 1317. None of these quoted phrases were redacted, and the Commission never
asked the Court to redact any portion of that opinion.
On remand, the Commission issued a new questionnaire to U.S. producers and
importers, which publicly discussed the issue of inventory reshipment. See Remand
Determination at 4, ECF No. 145. The questionnaire asked responding firms to
describe their “inventory operations and distribution network,” including by
“identifying each location where your firm held inventories” and by “describing the
modes of transportation used to distribute shipments.” Blank U.S. Producers’
Questionnaire at 4, J.A. at 20,834, ECF No. 205. The Commission also asked these
producers if they shipped “phosphate fertilizer from one inventory location to another
inventory location” during the period of review. Id. After analyzing the firms’ Consol. Court No. 1:21-cv-00219 Page 21
questionnaire responses, the Commission continued to conclude that domestic
producers could reship their inventories. See Remand Determination 23–24, ECF No.
145. The Commission redacted almost the entirety of the pages of the Remand
Determination associated with this conclusion based on its theory that any
information in a questionnaire response should automatically be redacted. See id.;
Hr’g Tr. at 20:16–22, ECF No. 193.
The Court needed to analyze the Commission’s reshipment finding to write the
OCP Merits Decision, as the parties continued to contest whether substantial
evidence supported that finding. See, e.g., OCP’s Comments on the Remand
Determination at 3, ECF No. 156; see also In re Violation of Rule 28(d), 635 F.3d 1352,
1360 (Fed. Cir. 2011) (noting improper redaction “hampers [the Court’s] consideration
and opinion writing”). In the disputed portion of the Opinion, the Court reviewed the
modes of inventory reshipment domestic producers told the Commission they
employed. See OCP Merits Decision, 49 CIT __, slip op. at 20, ECF No. 224. The
Opinion directly quoted from the Commission’s summary of a particular company’s
reported reshipment behavior without naming the company at issue. See id. The
quoted information, in essence, said that the unnamed company reshipped
inventories during the period of review, i.e., the key issue in this case. It mirrors
language that the Court used in its original public remand opinion and that the
Commission used in its public remand questionnaires. Compare id., with OCP I, 47
CIT __, 658 F. Supp. 3d at 1314–18, and Blank U.S. Producers’ Questionnaire at 4,
J.A. at 20,834, ECF No. 205. Consol. Court No. 1:21-cv-00219 Page 22
The Commission wants the Court to redact this portion of its Opinion because
the quoted Remand Determination language originally came from a company’s
questionnaire response. See Remand Determination at 24, ECF No. 145. The
Commission believes these responses should be automatically redacted in full without
any analysis of whether the underlying information can receive confidential status
under the relevant statutory and regulatory scheme. See, e.g., Hr’g Tr. at 47:12–13,
ECF No. 193. But the law forbids document-wide redaction policies and only
authorizes redacting “information” that meets certain conditions. See 19 U.S.C. §
1677f(a)(4) (requiring the Commission to disclose both nonattributable “proprietary
information” and “information … [that is] not designated as proprietary by the
[submitter]”); id. § 1677f(b) (authorizing the Commission to redact “[p]roprietary
information” under certain circumstances); see also 19 C.F.R. § 201.6(a)(1) (defining
what kind of “information” the Commission will treat as confidential). The Court can
only redact the requested portion of the Opinion if the redaction is justified under the
relevant legal standards. The Commission’s ultra vires preferences do not govern.
The Commission and the company fail to articulate any “specific, concrete
harm” that the disclosure of this information might cause. OCP Confidentiality
Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS 32, at *55. The Motion only claims
that the disputed portion of the Opinion “contains [business proprietary information]
that concerns an individual firm’s operations[.]” Def.’s Mot. at 6, ECF No. 229. The
Motion does not detail why the information is proprietary. See id. Nor does it explain
why disclosing this information would either “impair[] the Commission’s ability to Consol. Court No. 1:21-cv-00219 Page 23
obtain such information” or “caus[e] substantial harm to the competitive position of
the [information’s submitter].” 19 C.F.R. § 201.6(a)(1). This failure renders the
Commission’s redaction request legally insufficient.
Regardless, the Court doubts any party could articulate sufficient cause for the
requested redaction. Anyone reading the public materials in this case would know
that domestic fertilizer producers claim “reshipment of fertilizer[] is a normal
business practice ….” Public Remand Determination at 5, ECF No. 146. It is unclear
how “substantial harm to the competitive position” of a company could arise by the
Court’s disclosure that a domestic producer claims to reship fertilizer. 19 C.F.R. §
201.6(a)(1). Redacting this information would also be inappropriate because the
language at issue touches on the core legal issue in the case. See OCP Confidentiality
Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS 32, at *4 (“Unnecessary claims of
confidentiality erode public trust in the judiciary by limiting public access.”) (citing
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 595 (1980) (Brennan, J.,
concurring)). In short, the Commission attempts to prohibit the most basic discussion
of the very question the Commission was charged with answering. See In re Violation
of Rule 28(d), 635 F.3d at 1360. Its request to do so is DENIED.
C. Reshipment Frequency
The Commission and the company also ask the Court to redact a non-
numerical comparison the Court made between (1) an unidentified company’s overall
shipment volume and (2) its inventory reshipment volume, which is found on page 24
of the OCP Merits Decision. The Commission states that this portion of the Opinion Consol. Court No. 1:21-cv-00219 Page 24
reveals a specific company’s “sensitive” business proprietary information because one
could identify the company at issue by comparing the Court’s citation to citations
made elsewhere in the case docket. Def.’s Mot. at 7, ECF No. 229. The Court declines
to redact this information because, even if the company can be identified, the Court’s
Opinion does not reveal any confidential information.
No party disputes that the Court’s comparison would be non-confidential if the
company at issue was hidden. The Commission admits “the firm [at issue] is not
specifically named in the Second Remand Opinion ….” Id. at 7. It argues, however,
that the company can be identified by comparing the Court’s citation to the Joint
Appendix with the same Joint Appendix citations in other filings on the docket. See
id. The Commission notes that, in its own public comments on the Remand
Determination, it cites to the same Joint Appendix page to which the Court cites for
the disputed proposition. See id. The Court carefully concealed the company’s name
when it cited to that page, but the Commission did not act with this level of diligence.
Thus, an enterprising reader could scour the docket, compare the Court’s Opinion
with the Commission’s comments, and figure out which company the Court was
discussing. See id. The Commission’s own citation to allegedly confidential
information, in other words, has created a risk that the information will be
inadvertently disclosed. Cf. Fed. Cir. R. 25.1(c)(1) (noting information that “has
appeared in a filing without being marked confidential” loses its “status as subject to
a protective order”). Consol. Court No. 1:21-cv-00219 Page 25
But knowing the identity of the company at issue does not automatically make
the disputed information confidential. The disputed portion of the Opinion made a
comparison between two confidential numbers. See OCP Merits Decision, 49 CIT __,
slip op. at 24, ECF No. 224. “Even if information is confidential or business
proprietary, the Court’s use of approximations [can] appropriately summarize[] the
information without revealing exact figures.” CVB II, 48 CIT __, 681 F. Supp. 3d at
1320. Comparators such as “de minimis” or “negligible” do “not reveal the actual
[confidential information]” when both numbers remain hidden. Id. at 1321.
Likewise, the Commission’s own regulations recognize that “[n]onnumerical
characterizations of numerical confidential business information ….” are not
generally entitled to confidential treatment. 19 C.F.R. § 201.6(a)(1).
The disputed comparison on page 24 of the sealed Opinion can only reveal
confidential information about the company if a reader knows one of the numbers
being compared. Nothing in the Opinion reveals that information. Additionally,
neither the Commission nor the company allege “good cause” for the redaction or
explain the “specific, concrete harm” that could arise if the information is disclosed.2
See id.; OCP Confidentiality Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS 32, at
*55. Therefore, the disputed information will not be redacted. See 19 C.F.R. §
201.6(a)(1) (requiring a party to show “good cause” for the redaction of non-numerical
2 This is before taking into the account that the information at issue is between five and eight
years old. See OCP Confidentiality Decision, 49 CIT __, 2025 Ct. Intl. Trade LEXIS 32, at *55–58 (discussing why “[s]tale information is not entitled to confidential treatment”). Consol. Court No. 1:21-cv-00219 Page 26
characterizations of confidential business information). The Commission’s request is
DENIED.
CONCLUSION
Even independent agencies are accountable to the law. See Trump v. Wilcox,
145 S. Ct. 1415 (2025). The Commission’s Motion asks the Court to make five
redactions because the disputed portions of the Opinion allegedly contain confidential
information. The Motion never explains why the information is confidential. In all
five instances, it fails to allege any specific, concrete harm that would arise should
the Court not make the requested redactions. Two redactions arrive without the
support of the party who submitted the allegedly confidential information. The
remaining three relate to general statements made by the Court, which do not
reveal any underlying confidential information.
The Court DENIES these requested redactions, which run afoul of
Congressional command and the Commission’s own regulations. The Court will issue
a public version of the OCP Merits Decision with the redactions temporarily included
to respect the Federal Circuit’s review of the Commission’s mandamus petition.
Absent contrary instructions, the Court will remove these redactions on the
resolution of the Commission’s petition.
SO ORDERED.
/s/ Stephen Alexander Vaden Stephen Alexander Vaden, Judge Dated: July 3, 2025 New York, New York