ITC Still Ignoring Evidence That Contradicts Fertilizer Reshipment Theory, Exporters Say
In another new injury determination on remand, the International Trade Commission again “either ignores or glosses over” rainy conditions during the investigation period and evidence that domestic phosphate fertilizer producers refused to sell to certain U.S. customers, telling customers to import the product instead, exporters led by Eurochem and Phosagro said on Nov. 7 (OCP S.A. v. United States, CIT Consol. # 21-00219).
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They cited petitioner Mosaic’s chief executive officer, who said during the investigation period that they “gave up 1 million tonnes of market here in the U.S. intentionally” after idling a production facility.
And they said evidence still shows that domestic producers couldn’t easily reship fertilizer to prevent oversupply. Fertilizer application windows are “short,” they said, coming once in the spring and once in the fall. U.S. fertilizer distributors must ensure they have filled their warehouses right before those windows, as “[r]unning out of fertilizer in the middle of the application window is a ‘mortal sin,’” they said.
Court of International Trade Judge Stephen Vaden held in July that the ITC had failed, in an injury determination regarding phosphate fertilizers from Morocco and Russia, to properly take into account both “three consecutive seasons of unprecedented and unforeseeable rainfall” and the domestic industry’s intentional decision to reduce its own market share (see 2507070050).
The commission’s second remand redetermination still fails to obey CIT’s remand instructions, the exporters said. Worse, they said, the ITC chose on 10 occasions to explicitly defy the trade court’s orders by saying it “respectfully disagrees” with them.
For instance, the exporters said, the ITC said it disagreed that a “central” part of its first remand redetermination was the commission’s finding that domestic fertilizer producers could have reshipped its product to other customers after the rainy seasons decreased demand, resulting in oversupply. The ITC went on to say that it “respectfully disagree[d] with the Court’s assumption that domestic producers could not reship their inventories,” they said.
The court had asked for substantial evidence to prove that point, the exporters said.
“The Commission majority cannot simply ‘disagree’ with the Court’s conclusions about the lack of substantial evidence to support the Commission majority’s findings, as it does here,” they said.
The ITC -- or, the majority, at least -- also disagreed that petitioner Mosaic’s refusal to sell to certain distributors created a “supply gap” and that evidence indicated the commission might have used inaccurate data that some fertilizer imports were exported to Canada, they said. And, in yet another example, the exporters said, the ITC “respectfully disagree[d] with the Court that the Commission ‘must answer’ whether there was significant underselling” of domestic product by imports, even though that actually appeared to have been the case for only about 20% of imports.
The majority also failed to consider Commissioner David Johanson’s dissenting opinion, which raises many of the same points, they said.
Johanson also observed, accurately, that the majority’s decision was based on domestic producers’ “selected press reports” rather than “comprehensive pricing data gathered in the course of these investigations,” they said. And the commissioner determined that the allegation of price suppression wasn’t credible, having stemmed from “the single purchaser reporting the vast majority of lost sales,” they claimed.