CIT Sustains Use of Cost-Based PMS in AD Case on Indonesian Biodiesel

The Court of International Trade on June 11 sustained the Commerce Department's remand results in an antidumping duty investigation on Indonesian biodiesel after the agency disregarded Indonesian crude palm oil prices when constructing normal value for respondent Wilmar Trading.

Judge Richard Eaton upheld Commerce's explanation that the use of a world market price as constructed value instead of the Indonesian prices didn't constitute a "double remedy" on the Indonesian government's "2015 Export Levy" on all exports of crude palm oil.

The 2015 Export Levy set a $50 per metric ton tax on all crude palm oil exports -- the main input of biodiesel. In the related CVD investigation, Commerce said the levy was a countervailable program, while in the AD case, the agency found a cost-based particular market situation based on the export levy. The trade court previously said Commerce reasonably used the world market prices, but it remanded the issue for the agency to explain how the levy wasn't remedied by the companion CVD case (see 2312120071).

On remand, Commerce said there was no double remedy since "neither side of the dumping equation was affected by the 2015 Export Levy." The world market price is "unaffected by the levy" since it's a "domestic Indonesian subsidy," and the U.S. price wasn't affected since "the price of biodiesel sold in the United States by both U.S. and foreign producers (such as Wilmar) is based on heating oil (Ultra Law Sulfur Diesel) futures traded on the New York Mercantile Exchange."

Eaton said the agency adequately explained its findings that the "differential between U.S. prices and normal value (i.e., the dumping margin) is not partially the result of the countervailed subsidy, and thus the [particular market situation] adjustment to fair value does not remedy the subsidy."

(Wilmar Trading v. United States, Slip Op. 24-70, CIT Consol. # 18-00121, dated 06/11/24; Judge: Richard Eaton; Attorneys: Devin Sikes of Akin Gump for plaintiff Wilmar Trading; Lynn Kamarck of Hughes Hubbard for consolidated plaintiff Indonesian government; Edmund Sim of Appleton Luff for consolidated plaintiff P.T. Musim Mas; Joshua Kurland for defendant U.S. government; and Myles Getlan of Cassidy Levy for defendant-intervenor National Biodiesel Board Fair Trade Coalition)