Morocco’s OCP
Group has praised two recent decisions (Sept. 19 and Sept. 14) by the US Court
of International Trade (CIT). In the Sept. 19 decision CIT remanded a decision
by the US International Trade Commission (ITC) in which it found material
injury in its final decision in the countervailing duty investigations with
respect to imports of phosphate from Morocco and Russia (GM March 11,
2021).
OCP said it prevailed on its objections to a key Commission finding that,
according to the Court, was “factually unsupported” and yet “undergirds the
Commission’s determination across all statutory factors.” OCP said it looks
forward to continuing to cooperate fully with the Commission as it reconsiders
its determination on the basis of the Court’s ruling.
CIT said that while the plaintiffs brought multiple challenges to the ITC ruling, ITC grounded its findings on an unsupported assumption that fertilizer could be reshipped from one destination to another to meet existing demand.
CIT cited industry testimony that it was not economically feasible to ship barges positioned upriver back down the river to meet demand elsewhere, such as the Delta. Plaintiffs had argued that it was more feasible to simply import product to meet those needs, as domestic freight costs were prohibitive. This all relates to the fact that imports grew during a time of low demand spurred on by three seasons of flooding.
CIT particularly zeroed in on the testimony of Donal Lambert, President, EuroChem North America Corp. EuroChem was a consolidated plaintiff in the case. Plaintiff’s motion was supported by plaintiff-intervenors PhosAgro PJSC, International Raw Materials Ltd., and Koch Fertilizer LLC.
Another factor offered by plaintiffs was that domestic producers had idled capacity during this timeframe, thereby necessitating the need for even more imports.
Mosaic on Sept. 21 said CIT appeals are common in trade remedy cases, and in most cases remanded to the ITC for reconsideration. It said the original finding of injury is affirmed.
Mosaic said CIT remanded on one specific factual issue out of many that the ITC relied upon. It said neither the ITC nor the US Department of Commerce (DOC) have thus far changed anything from their earlier determinations, and as a result, countervailing duties on phosphate fertilizers remain in effect with no changes to the rates applied at the border.
“The basic facts that led to countervailing duties on imports from Morocco and Russia remain unchanged,” said Mosaic CEO Joc O’Rourke. “We will continue to participate actively before the agencies and the courts to defend the original findings.”
CIT directed ITC to take new evidence, reconsider existing evidence, or take any other action allowed by its procedures on remand to come to a conclusion supported by substantial evidence. ITC is directed to file its remand redetermination within 120 days of the Sept. 19 date. Thereafter, all the parties will have time to file comments.
CIT’s Sept. 14 decision addressed the 19.97% duty on imports of phosphates from Morocco. The Court sent the matter back to the DOC to reconsider the calculations it made in the case, particularly with respect to its decision to exclude certain OCP costs. CIT gave the DOC 90 days to submit its remand redetermination, with the parties allowed time to comment thereafter.
As for Russian duties, the rate was 9.19% for PhosAgro, 47.05% for EuroChem, and 17.2% for other Russian companies (GM Feb. 12, 2021).