Petitioner, Exporter of Phosphate Fertilizer Swap Briefs Defining Motions for Judgment
Petitioner The Mosaic Company and exporter OCP again traded briefs at the Court of International Trade regarding a countervailing duty review on Moroccan-origin phosphate fertilizer. Each defended its own prior motion for judgment (see 2408120049) (The Mosaic Co. v. U.S., CIT Consol. # 23-00246).
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Mosaic argued again that the Commerce Department should have countervailed the Moroccan government’s provision of mining rights, port services and port infrastructure to OCP for less-than-adequate remuneration.
Regarding mining rights, Mosaic accused the U.S. of raising several post hoc justifications for Commerce’s use of “distorted” export data from China, Syria and Egypt to set benchmark prices for phosphate rock and its inclusion of OCP's headquarters, support and debt costs in its cost buildup.
According to the government, Mosaic's argument was that Commerce couldn’t include any HQ and support costs in OCP’s cost buildup “unless OCP would be able to segregate these costs into those related and unrelated to phosphate rock production,” Mosaic said. But that “is precisely what Commerce did, in the opposite direction,” the exporter argued.
“In the Final Results, Commerce determined that as long as there was any evidence that any portion of OCP’s HQ/Support costs related to the production of phosphate rock, it would include the entirety of the HQ/Support costs in the cost buildup,” it said.
Mosaic also said it hadn’t exhausted its administrative remedies; it had substantiated its allegations, having argued at length about the distortions that OCP’s allocation methodology introduced into Commerce’s calculation. It provided an alternative methodology for calculating the cost buildup, it said.
OCP, meanwhile, said again that Commerce had been wrong to resort to adverse facts available rather than accepting a minor correction the exporter had provided. The correction, submitted at the start of verification, involved the voluntary disclosure of a small tax refund OCP received from its government’s "Office de Formation Professionnelle et de la Promotion du Travail," the exporter said. It claimed it found the refund “in an account not typically used to book tax refunds.”
The U.S. said in response that Commerce hadn’t had enough time to evaluate the benefit, justifiably turning instead to AFA. But this was a “post hoc rationalization,” OCP said.
It also argued that the department had received the correction more than eight weeks before releasing its final review results, giving it plenty of time. It disagreed that the refund was part of a “‘new’ or ‘unknown’ program,” saying Commerce “has routinely accepted similar disclosures as minor corrections under analogous circumstances.” And the error was a small one, meaning OCP had still participated in the review to the best of its ability, it said.