CIT Permits Ag Groups' Amici Brief in Case Over ITC Fertilizer Injury Determination Despite Pushback

November 23, 2021 by Jacob Kopnick|Litigation

The Court of International Trade permitted a group of U.S. agricultural trade associations to file an amicus brief in a case over the International Trade Commission's injury determination in an investigation into phosphate fertilizers from Morocco and Russia. After facing pushback from the U.S. and the petitioners, J.R. Simplot Company and The Mosaic Company, Judge Stephen Vaden said the amici "represent the actual users of that fertilizer, the farmers, i.e., those who ultimately pay the price of the tariffs imposed" (OCP S.A., et al. v. United States, CIT Consol. #21-00219)

The U.S. and the petitioners had argued that the amicus brief merely repeats the arguments of the plaintiffs and that the amici lack access to the necessary business confidential information that is part of the record, thereby misinforming their arguments.

"To suggest that the interests of a farmer who tills a couple thousand acres of farmland are in all respects represented by multinational corporations is to ignore economies of scale," the judge said. "The Court finds it useful to consider amici’s arguments and citations to record evidence as it weighs the arguments of the corporations currently litigating before it. Because this Court is limited in its review to matters found within the administrative record, any reference to non-record evidence or arguments will be ignored."

In all, the amici consist of the American Soybean Association, the National Corn Growers Association, the National Cotton Council of America, the National Sorghum Producers and the Agricultural Retailers Association. The brief itself challenges the factual findings of the majority at the ITC, "particularly about what occurred in the market during 2019." The amici challenge the ITC's holding that the imports caused a supply imbalance, the cause the ITC found of the subject import volume, and the ITC's finding that the imports were unnecessary to supply farmers' needs in 2019.