Recent CIT Decision on Exclusions From Tier-3 Benchmark Is New Authority, Exporter Argues
A recent Court of International decision in a countervailing duty case is relevant to a case brought by The Mosaic Co. over the Commerce Department's countervailing duty investigation into phosphate fertilizers from Mexico, CVD respondent OCP told the Court of International Trade. The decision in the past case, also brought by Mosaic, said Commerce reasonably excluded freight, import duties and value-added tax from the tier-three benchmark price for phosphate rock (see 2209020061) (The Mosaic Co. v. U.S., CIT Consol. #21-00116).
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In that case, Mosaic, as it does in the current action, argued it was unreasonable for Commerce to exclude these elements since the benchmark price based on world market prices was essentially a tier-two benchmark, and Commerce's regulations require the agency to include delivery charges and import duties in tier-two benchmarks. "The Court rejected this argument, finding that Commerce constructed a tier-three benchmark and, as such, '19 C.F.R. § 351.511(a)(2)(iv) did not apply; and freight, VAT, and import duties did not need to be included,'" OCP said in its Sept. 15 notice of supplemental authority.