Commerce Complied With Remand Order in Dutch Mushroom Investigation, US Says
The U.S. on Feb. 28 defended the Commerce Department’s continued use on remand of German third-country comparison market data for an antidumping duty investigation on Dutch-origin mushrooms. It said Commerce had adopted a presumption that actually favored petitioner Giorgio Foods, despite Giorgio's opposition to the new results (Giorgio Foods v. United States, CIT # 23-00133).
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Court of International Trade Judge M. Miller Baker remanded out of concern that the department wasn’t sure how much of the data actually represented German sales for domestic, rather than third-country, consumption (see 2407260023). In response, Commerce reopened the record. It said new information lets the agency "reasonably estimate the percentage of German-language-labelled products” that may have been sold downstream in other countries such as Austria (see 2411180045).
Commerce complied with the court’s order, so its new results should be upheld, the U.S. said.
Responding to the remand order, the department “decided to quantify and account for the portion of Prochamp’s German sales that might have been consumed in Austria” by placing on the record “German and Austrian population data, retail store data, mushroom consumption data, and data regarding French-speaking populations outside France,” the government said.
The department established a “conservative” presumption that 10% of exporter Prochamp’s sales were distributed to countries other than Germany -- an estimate that “likely overstates” the actual number, as the presumption was applied across all of Prochamp’s sales, not just those that appeared most likely to cross German borders because they had been assigned a particular label.
“In other words, Giorgio complains that Commerce adjusted Prochamp’s net German market sales volume in a light most favorable to Giorgio’s contention,” it said.
The government also claimed Giorgio had raised the argument for the first time that “Commerce should have a ‘knowledge test’ regarding the destination of these sales.” This hadn’t been exhausted; but even if it had been, it was “rooted in Giorgio’s misunderstanding,” it said. Knowledge tests are applied to producers to determine whether they knew, or should have known, that a sale was destined for export -- it wasn’t applicable to Commerce.
And it said that the French data preferred by Giorgio offered too small a sample size and was “not as straightforward as Giorgio would like.” The trade court had also upheld use of the German data in all other regards, it noted, and rejected Giorgio’s push for the French data.