Commerce Forced Circumvention Inquiry by Ignoring Express Exclusions in Order, Importer Says
Garlic importer Green Garden Produce said in a reply brief Sept. 10 that the Commerce Department never determined its garlic chunks in citric acid were expressly excluded by the scope of an antidumping duty order, instead moving straight on to a circumvention inquiry under the assumption the chunks were implicitly out-of-scope (Green Garden Produce v. United States, CIT # 24-00114).
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Commerce found the importer to be circumventing the AD order on fresh garlic from China -- which covers all types of garlic, whole or in cloves, but excludes garlic “preserved by the addition of other ingredients or heat processing.” The department held that there wasn’t enough evidence on the record to demonstrate that the citric acid was intended as a preservative for the garlic.
In its Sept. 10 reply supporting its motion for judgment, Green Garden said Commerce “committed a rather egregious error” by failing to find, as a threshold matter, that the importer’s garlic fell into the order’s exclusion for preserved garlic. The department “readily admitted” that it hadn’t considered the issue, Green Garden claimed.
It said the U.S. had tried to “justify this failure” by claiming the garlic was “implicitly” out-of-scope entirely, having been imported in chunks rather than whole or in cloves. But had the government instead found that the garlic chunks fell into an exception in the scope, the circumvention inquiry wouldn’t have been possible, it said.
“Defendant asks this Court to agree with the proposition that Commerce may proceed with a circumvention inquiry which may be prohibited by a Wheatland express exclusion simply by determining that the product falls under a lesser, implied exclusion from the scope of the Order and refusing to determine whether the product is expressly excluded,” it said.
The importer had acknowledged in its August 2024 complaint that citric acid wasn’t mentioned by its exporters in questionnaire responses, but said it itself provided evidence, including scientific authorities, demonstrating the acid was used for its preservative qualities (see 2408090042).
It said in its reply that this evidence had been sufficient, despite criticism from Commerce and the petitioner that the evidence hadn’t demonstrated citric acid was being used as a preservative in its own garlic’s production process.
“[By] implying that Plaintiff’s generally applicable citric acid evidence is invalid simply because Plaintiff did not say ‘this evidence applies to Respondent’s production process,’ Defendant is asking for magic words,” it said.
And Green Garden claimed Commerce should have provided notice that it had found the garlic exporters’ questionnaire responses to be deficient. The importer said it had told the department that its products were excluded from the order due to their preservation in citric acid, but Commerce hadn’t requested anything about the acid in its requests for information. Nor had it “followed up about the citric acid’s preservative function” when the respondents did say the acid was used in their production processes, Green Garden said.