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ITC Defends Its Treatment of Confidential Info at Trade Court

Even if the public can deduce some trends or information about a company's confidential product information from publicly available sources, that doesn't "negate the confidential nature of the information submitted" as part of an International Trade Commission investigation, the ITC told the Court of International Trade on May 8 (OCP v. U.S., CIT Consol. # 21-00219).

The commission's brief responds to concerns by the court about the over-redacting of information in the ITC's decision issued in an injury proceeding on phosphate fertilizers. Judge Stephen Vaden called the ITC before the court for a March hearing to discuss the commission's confidential information policies (see 2404010066).

At the hearing, Vaden questioned the ITC about its policy of redacting information submitted by the companies participating in the review, when that same information could be found in publicly available sources, including the parties' own websites, press releases, media reports and public annual SEC reports.

In its brief, the ITC said the public information is "overly broad compared to the product under investigation," while the information it collects during the proceeding is "narrowly defined to elicit very specific information regarding a firm's production of the domestic like product." This narrower information "typically differs from the information provided by companies on their entire operations, such as in 10-K reports provided to the SEC."

While the trends identified in the questionnaire submissions may be similar to trends portrayed in public documents, and the public may even "be able to deduce some of the information or trends from publicly available information," the information is still confidential, the ITC said. In the present case, "it was necessary to bracket much of the aggregate information," because doing otherwise would let one or more of the domestic petitioners "back out their data and derive meaningful information regarding their competitors' operations."

This is an outcome Congress explicitly "intended to prevent when it created statutory protection for information provided by individual market participants," the brief said.

The commission detailed the applicable statutory scheme related to the protection of confidential business information, which starts with a broad grant of authority under 19 U.S.C. Section 1333. In addition, Section 1677 provides multiple sections regarding the procedures by which the ITC is to disclose information and specifically says what information "shall not be disclosed publicly."

The commission said the confidential nature of submitted information can be challenged while the proceedings are pending, but once the record is closed "the Commission is unable to afford a party the due process contemplated by Congress." The ITC said the "statutory scheme balances the obligation to fully protect business proprietary information against the need for parties appearing before the Commission to have meaningful access by allowing limited disclosure."

The ITC's regulations are in line with this statutory scheme, the agency said, saying it automatically treats as confidential all information provided in questionnaires because much of it constitutes trade secrets or otherwise protected information. The brief said the commission's "mandate to conduct thorough fact-intensive antidumping and countervailing duty investigations on tight statutory deadlines supports this approach," as well as the "almost always uniquely proprietary" nature of the information.