Garlic That Is Boiled, Then Frozen Is Within Scope of AD on Fresh Garlic From China, US Says
The U.S. responded Oct. 29 to a garlic importer’s July motion for judgment (see 2407170058) saying that garlic that is boiled, then frozen is subject to antidumping duties on fresh garlic from China (Export Packers Company Limited v. U.S., CIT # 24-00061).
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Though titled as if it only covers fresh garlic, the AD order applies to all Chinese-origin garlic whether or not it is “peeled, fresh, chilled, frozen, provisionally preserved … but not prepared or preserved by the addition of other ingredients or heat processing.”
Importer Export Packers brought its case in March (see 2403270050) challenging a February scope ruling by the Commerce Department (see 2402260025) that held that its garlic was covered by the duties because it wasn’t different enough to fall into an exception for garlic subjected to further heat processing.
The importer disagreed, saying its products -- which it flash-boiled for 90 seconds, then froze for transportation -- had been processed using heat and that its cooked garlic was distinguishable from fresh garlic based on consumer expectation, end use, channels of trade, marketing and physical characteristics.
In turn, the government said in its own brief that those factors, the k(2) factors, supported Commerce’s ruling.
After the department “found unclear” whether “heat processing” included Export Packers’ boiling process, it unsuccessfully turned to k(1) factors to define the term, the U.S. said. It said none of Commerce’s prior scope rulings on garlic dealt with garlic that had been immersed in boiling water for 90 seconds.
Moving on to k(2) factors, it said, Commerce held that the heat processing exclusion was intended to exempt “‘further processed products,’ like roasted garlic.” It found that Export Packers’ boiling process didn’t reach that same level of preparation, the government said.
And other factors, such as the consumers’ ultimate expectations, also weighed in Commerce’s favor, it said. Both fresh garlic and Export Packers’ boiled garlic “can be used as an ingredient or seasoning in a variety of fresh and frozen foods and food preparations,” it said.
Further, Export Packers’ cooked garlic was sold through the same channels of trade as fresh garlic, and it wasn’t distinguished in retailers’ marketing materials from uncooked garlic, the U.S. said.
The department defended its reliance on its other garlic scope rulings that reached similar conclusions, finding that “blanched” garlic was in-scope because it was “essentially the same product both before and following the blanching process,” the government said.
And it said Export Packers’ preferred understanding of the word “prepared” as simply “further processed” was too broad, failing to “provide any additional clarity on the contours of this term.” Under this definition, the order still would be ambiguous, it said.