Commerce Misconstrued Garlic Importer’s Pushback Against Untimely Comments, Importer Says

An importer of China-origin garlic chunks argued in an Aug. 7 complaint that it shouldn’t have been found to be circumventing antidumping duties on fresh garlic from China, saying that its garlic chunks are exempt because they are preserved in citric acid (Green Garden Produce v. United States, CIT # 24-00114).

Importer Green Garden Produce said that the Commerce Department was illegally expanding the scope of the AD order on fresh Chinese garlic with its circumvention finding. It cited a previous customs ruling that had held that garlic chunks coated with citric acid are “vegetables prepared or preserved otherwise than by vinegar or acetic acid,” not “fresh garlic.”

The AD order on China-origin fresh garlic does also cover some forms of prepared garlic, though not all. It has been implicated in other litigation in the past (see 2407170058).

Green Garden said that it alerted Commerce to its use of citric acid for its products and provided the department that customs ruling, as well as the FDA’s definition of the word “preservative” and a scientific paper regarding citric acid’s widespread use as one.

But the department’s final determination ruled that “there was insufficient record evidence to show that the garlic was preserved through the addition of citric acid and that the slicing of the garlic constituted a minor alteration for the purposes of the circumvention inquiry,” the importer said.

It said Commerce based this on its finding that Green Garden hadn’t “made any comment on the function or purpose of citric acid in the production process of small and large garlic chunks” -- something the importer called a mischaracterization of the administrative proceeding.

During the proceeding, Green Garden’s suppliers, Qingdao Deeshenghengxin Food, or Hexgin, and Fenjun Foodstuff, responded to questionnaires provided by the department, it explained. It said domestic producer I Love Produce filed rebuttal comments -- but Green Garden and the exporters argued successfully that those comments were untimely because they were aimed at Green Garden’s earlier comments on the circumvention inquiry, not the questionnaire responses themselves. As a result, Green Garden said, I Love Produce’s rebuttal was struck from the record.

When arguing to have the rebuttal struck, Green Garden and the exporters did point out that the exporter’s questionnaire responses made no mention of citric acid’s use as a preservative for garlic chunks, the importer said. But the importer did mention citric acid in its circumvention inquiry comments, it said.

Commerce claimed that it was “only after arguments to the contrary made prior to the Preliminary Determination were struck from the record” that Green Garden put forth any arguments regarding citric acid, but, as the record shows, that is “categorically untrue,” Green Garden said. It said the department was misconstruing Green Garden’s opposition against I Love Produce’s comments.

Further, I Love Produce’s comments marked the only time during the proceeding that any argument was made contesting the use of citric acid as a preservative, it said.

“Because it is highly inappropriate to utilize stricken materials as though they are in the record, it is uncontradicted in the actual record that citric acid is used as an additional ingredient for preservation,” the importer said.

It also pushed back against Commerce’s analyses of its products’ physical characteristics and end uses in its scope ruling. The department provided no record evidence or explanation for its finding that Green Garden’s products fall within the scope of the order, it said, and “appears to consider all cooking uses of garlic to be substantially similar, despite the myriad uses garlic may have in cooking.”