Rulings, remedies and court proceedings for customs and trade professionals

Domestic Petitioner Says US Wrong, Dutch Mushroom Exporter Did Impede Investigation

A U.S. petitioner on March 18 again argued that a Dutch preserved mushrooms exporter “significantly impeded” a Commerce Department antidumping duty investigation and that the agency shouldn't have granted the exporter a de minimis AD rate (Giorgio Foods, Inc. v. U.S., CIT # 23-00133).

Start A Trial

The petitioner, Giorgio Foods, Inc., filed March 18 in support of its motion for judgment in a 2023 case it brought to the Court of International Trade to contest exporter Prochamp’s resultant de minimis rating, saying that Prochamp failed to produce several financial records during proceedings and that Commerce should have selected France, not Germany, as a stand-in for the exporter’s minimal home market (see 2312010061).

In their opposition to the motion, the U.S. and Prochamp, a defendant-intervenor, argued that the only records Prochamp failed to provide were ones that the Dutch government didn’t require any Dutch companies keep. Upon verification, the exporter did give Commerce “abridged” and “informal” internal records that “corroborated the consolidated financial information that Prochamp had already provided,” the government said.

Giorgio argued, however, that those abridged records should have been provided upon Commerce’s original request. Though the department found that those abridged documents “did not fall within the scope of Commerce’s prior information requests,” Prochamp had made false “explicit representations” throughout the proceedings, such as saying that "Prochamp does not maintain any internal financial statements or profit and loss reports of any kind,” it said.

It claimed that the fact that those abridged records were accurate was irrelevant; the important point was that they had been initially withheld and only found upon verification, it said.

Giorgio also argued again that Commerce was wrong to choose Germany as a comparison market to calculate Prochamp’s home prices.

The U.S. called Giorgio’s first specific claim, that Commerce had refused to reconsider its comparison market choice for Prochamp after its initial selection of Germany, a “red-herring.” It said that Commerce continued to ensure that the record supported use of Germany through its release of its final determination.

Giorgio disagreed, saying that this read was “inconsistent with the plain language in Commerce’s decision memorandum.” The memo responded to Giorgio’s earlier opposition by stating that “regardless, Commerce is not revisiting its comparison market viability determination for Prochamp, consistent with our practice,” it said.

The food company also said that France would have been a better home market stand-in for Prochamp because the exporter’s products sold in the U.S. and Germany were “quite dissimilar.” It said that the U.S. “ignores” the important difference between Prochamp’s U.S. and German exports and wrongly focuses on the fact that that they share the other five out of the six physical characteristics Commerce usually compares in choosing a stand-in market

Those six characteristics are hierarchical, and “net drained weight” is the second most important of them, Giorgio said.