Trade Court Remands Inclusion of Boiled Garlic in AD Order on Fresh Garlic
The Commerce Department's inclusion of Export Packers Company's imported garlic in the antidumping duty order on fresh garlic isn't backed by substantial evidence, the Court of International Trade held on April 18. Judge Jane Restani said that Commerce's focus on two prior scope rulings concerning garlic blanched in boiling water is "misplaced" and that the agency's remaining (k)(2) analysis is "similarly flawed."
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Export Packers' scope ruling request concerns its garlic, which is 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." Commerce 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.
Export Packers said putting the garlic in boiling water for 90 seconds amounts to "heat processing," though both it and the government agree that the terms "prepared" and "heat processing" are ambiguous.
In rejecting Commerce's scope ruling, Restani first said she disagrees with the parties that these terms are ambiguous. The order's scope doesn't have "specific exclusionary language such that the phrase 'prepared' by 'heat processing' should be read to only include processes such as roasting." If the scope language had been meant to only exclude roasted garlic as "heat processed," it "would have said that," the judge said.
Without that language, there's no reason why "boiled" or "cooked" garlic wouldn't be considered "heat processed" per the scope's plain language, Restani held. The terms "prepared" by "heat processing" aren't ambiguous "just because there can be many kinds of heat processing," the court said, disagreeing with the parties "to the extent they assert that these words are ambiguous when viewed in the context of the process at issue."
In addition to the disagreement on the plain language of the scope, the court also faulted Commerce for its (k)(2) analysis, which was rooted in two past scope rulings. In both rulings, Commerce said the process of blanching garlic cloves in boiling water didn't amount to heat treatment. Restani said the agency's focus on these rulings is "misplaced."
The blanching process at issue in these two rulings is "different from Export Packers' cooking process," and the order should be the "touchstone" of the scope ruling, not the two prior rulings, the judge said. Instead, the exporter submitted three expert views to back its view that the process of cooking garlic "changes the physical characteristics of garlic far more than blanching does," Restani noted. The agency disregarded this evidence to "dogmatically" rely on its past scope rulings.
"The court struggles to follow Commerce’s reasoning that although Export Packers’ cooked garlic has certain different characteristics due to a heating element, it is nevertheless not 'heat processed,'" the court said.
Restani added that the remainder of the (k)(2) analysis is similarly flawed. In considering the characteristics of Export Packers' garlic, Commerce noted evidence that immersing garlic in boiling water for 90 seconds led to a "different molecular structure, chemical content, and texture than fresh garlic, which results in a change in taste, aroma, and mouthfeel." Still including the garlic in the scope of the order despite this ignores the "heat processing" exclusion language, the court said. Instead of grappling with these facts, the agency merely cited its past scope rulings.
(Export Packers Company v. United States, Slip Op. 25-45, CIT # 24-00061, dated 04/18/25; Judge: Jane Restani; Attorneys: Stephen Brophy of Husch Blackwell for plaintiff Export Packers Company Limited; Patricia McCarthy for defendant U.S. government; John Herrmann of Kelley Drye for defendant-intervenor Fresh Garlic Producers Association and its individual members)