Exporter Defends Exclusion of Its Garlic From AD Order on Remand at CIT
The Commerce Department properly found that Export Packers Company's individually quick frozen cooked garlic cloves are outside the scope of the antidumping duty order on fresh garlic from China, Export Packers argued in a Jan. 16 brief at the Court of International Trade. The exporter argued that, contrary to petitioner Fresh Garlic Producers Association's claims, the plain language of the scope excludes Export Packers' cooked garlic and other sources, including a separate scope ruling on blanched garlic and Commerce's preliminary determination, don't support the petitioner's arguments (Export Packers Company v. United States, CIT # 24-00061).
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Export Packers' garlic products consist of individually quick frozen cooked garlic cloves that are immersed in boiling or near-boiling water for 90 seconds. The AD order says it explicitly doesn't cover garlic "prepared" by "heat processing." The agency initially said the cooked garlic cloves have "certain physical characteristics that differ from the completely uncooked merchandise but are not considered 'prepared' by 'heat processing'" and thus fall within the AD order.
The trade court rejected Commerce's scope ruling, finding that the agency's reliance on two prior scope rulings, that involved "blanched, not cooked garlic," to find Export Packers' cloves are within the scope of the order wasn't supported by substantial evidence. The judge instead turned to expert reports submitted by Export Packers to find the goods at issue have “certain different characteristics due to a heating element,” suggesting “heat processing.” However, Commerce said it didn't analyze the expert reports in its final scope ruling.
CIT found that Commerce failed to establish that cooking isn't heat processing and sent back the scope determination. On remand, the agency said while it disagrees with the court's holdings, it excluded Export Packers' goods from the AD order (see 2512100029). The petitioner contested the remand on various fronts.
In response, Export Packers argued that the petitioner's arguments "do not provide new information or argument but simply rehash -- again and again -- arguments that have been effectively refuted by Export Packers and carefully reviewed and dismissed by the Court."
Export Packers said the order's plain language excludes its cooked garlic, adding that the petitioner's argument "amounts to a claim that boiling garlic for 90 seconds only 'provisionally preserves' the garlic and does not constitute 'heat processing.'" However, this claim isn't supported by the record, since, as the court found, the record supports the fact that the garlic at issue is "cooked in boiling water for 90 seconds to the degree that its internal chemical structure is altered," the brief said. Export Packers submitted three reports with "impeccable scientific credentials" that all support the fact that its garlic was "prepared by heat processing" instead of merely being "provisionally preserved," the brief said.
The petitioner additionally pointed to Commerce's preliminary determination in the original AD investigation, in which the agency indicated it included additional scope language to exclude "further processed products." The petitioner argued the heat processing exclusion was only meant to cover further processed garlic and that Export Packers' cooked garlic is merely an "intermediate product" because "it can be used as an ingredient in various food preparations."
Export Packers said the petitioner argues that the term "further processed products" only means goods that are "fit for immediate consumption despite the fact that there is no indication in the preliminary determination that the term is so limited." However, Commerce didn't offer any definition of "further processed products" in its preliminary determination, nor did it "offer any definition that would limit the term to only products that are fit for immediate consumption," the company argued.