CIT OKs Commerce's Pick of Germany as Comparison Market in AD Investigation
The Commerce Department appropriately stuck with its decision on remand to select Germany as the third country for determining antidumping duty respondent Prochamp's normal value in the AD investigation on Dutch mushrooms, the Court of International Trade held on July 16. Judge M. Miller Baker said Commerce fully supported its efforts to account for the percent of Prochamp's product sold to Germany that is actually resold in another country and, thus, its finding that Germany remained the best comparison market.
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The result is a zero percent dumping margin for Prochamp.
In the investigation, Commerce needed to use a comparison market to determine Prochamp's normal value, since its home market sales made up less than 5% of its U.S. transactions. The lead candidates were Germany, France and Israel, though Commerce chose Germany, since it was Prochamp's largest third-country market.
Baker remanded the selection, since Prochamp's German sales were only made to a multinational retailer and were actually exported to a warehouse outside of Germany, where they just as easily could have been meant for another German-speaking market (see 2407260023). On remand, Commerce reopened the record to quantity what portion of Prochamp's German market sales actually wound up in Germany (see 2411180045).
The agency added new evidence, including information about the number of retail stores operated by Prochamp's largest German customer in Germany and Austria, which is the other German-speaking market the goods could have been sold in; population data for Germany and Austria; and public figures on mushroom consumption in these countries. Analyzing the data, Commerce estimated that around 90% of the German sales were meant for Germany, while 10% were destined for Austria.
Commerce then approximated Prochamp's "total sales for consumption in Germany" by adding 90% of the company's sales to its largest Germany customer and sales to other customers, excluding products known to be only sold in Switzerland and a "specific product" that could have been sold in Germany or another country. The agency thought this calculation was a rather conservative estimate of the amount of Prochamp's German sales, though it still proved a larger figure than the sales data for France, which is the preferred comparison market of petitioner Giorgio Foods.
Baker found that the agency's approach was backed by substantial evidence. The judge said the agency has provided a "better explanation" that moves its decision from the realm of "mere speculation" into one with evidence "a reasonable mind might accept as adequate to support" its conclusion. Baker held that, as a result, the remand "satisfies the substantial-evidence standard of review."
Giorgio argued that Commerce's task on remand was to quantify the volume of mushrooms Prochamp sold in Germany and that the agency failed this task, since it generalized from the new data on the record. Baker said he "declines the company’s invitation to reweigh the augmented record evidence," adding that the "new data, and the agency’s reasonable inferences from them, support its decision."
Commerce "compared the population, mushroom consumption, and relevant retail outlet totals of Germany and Austria to arrive at its estimate," applying "conservative presumptions" in doing so that, "if anything, undercounted German retail sales." It then compared these figures to the French data, which underwent "no such comparable scrutiny of its constituent transactions," the court said. Giorgio is thus "simply wrong" to say Commerce's remand "suffers from the same flaws as before," the court said.
(Giorgio Foods v. United States, Slip Op. 25-90, CIT # 23-00133, dated 07/16/25; Judge: M. Miller Baker; Attorneys: John Herrmann of Kelley Drye for plaintiff Giorgio Foods; Yaakov Roth for defendant U.S. government; Lizbeth Levinson of Fox Rothschild for defendant-intervenor Prochamp B.V.)