Green Garden Produce, LLC v. United States

Slip Op. 26-51 UNITED STATES COURT OF INTERNATIONAL TRADE Court No. 24-00114 GREEN GARDEN PRODUCE, LLC, Plaintiff, v. UNITED STATES, Defendant, and FRESH GARLIC PRODUCERS ASSOCIATION and its individual members, Defendant-Intervenors. Before: M. Miller Baker, Judge OPINION [Remanding Commerce’s circumvention determina- tion for reconsideration.] Dated: May 15, 2026 Shanshan Liang, Liang & Mooney, PLLC, Tallahas- see, FL, on the briefs for Plaintiff. Isabelle Aubrun, Trial Attorney, Commercial Litiga- tion Branch, Civil Division, U.S. Department of Jus- tice, Washington, DC, on the briefs for Defendant. Of counsel for Defendant was Fee Pauwels, Attorney, Ct. No. 24-00114 Page 2 Office of Chief Counsel for Trade Enforcement & Com- pliance, U.S. Department of Commerce, Washington, DC. John M. Herrmann and Joshua R. Morey, Kelley Drye & Warren LLP, Washington, DC, on the briefs for De- fendant-Intervenors. Baker, Judge: An antidumping order covers garlic cloves from China that are not preserved by other in- gredients. An importer buys garlic chunks from that country. Everyone agrees that the pieces are outside the scope of that order because they’re smaller than whole cloves. The Department of Commerce found that cutting cloves into pieces is a minor alteration that circum- vents the order. The importer disagrees, contending that such processing is a material change to the garlic. It also argues that its evidence shows that its chunks are preserved by an extra ingredient. The im- porter asserts that the order expressly excludes such preserved garlic. If that’s right, then the agency’s cir- cumvention decision cannot stand because any change that brings a good within a duty order’s exclusion is a substantial alteration. The court holds that Commerce failed to adequately explain itself as to either issue and therefore remands for reconsideration. Ct. No. 24-00114 Page 3 I The Tariff Act of 1930, as amended, allows Com- merce to impose an antidumping duty on a “class or kind” of imported merchandise if it “finds that the merchandise reflects unfair pricing . . . and the [Inter- national Trade Commission] finds material injury to the domestic industry.” Canadian Solar, Inc. v. United States, 918 F.3d 909, 917 (Fed. Cir. 2019) (citing 19 U.S.C. § 1673(1)). The duty order must “include ‘a description of the subject merchandise, in such detail as [the agency] deems necessary.’୻” Id. The statute “de- fines ‘subject merchandise’ as ‘the class or kind of mer- chandise that is within the scope of . . . an order under this subtitle.’୻” Id. (quoting 19 U.S.C. § 1677(25)). But “whether a particular product is subject to or falls within the scope of an antidumping or counter- vailing duty order” is not always self-evident. Fedmet Res. Corp. v. United States, Slip Op. 24-136, at 3, 2024 WL 5088294, at *1 (CIT 2024) (cleaned up), appeal pending, No. 26-1160 (Fed. Cir.). By regulation, a pro- ducer, importer, or other interested party uncertain whether a duty order covers a commodity may ask Commerce to open a “scope inquiry” to clarify the de- cree’s terms. Id.; see generally 19 C.F.R. § 351.225(a). 1 1 “This device is roughly analogous to the procedure by which a party uncertain of its rights or obligations may seek a declaratory judgment in federal court.” Fedmet, Slip (footnote continues on next page) Ct. No. 24-00114 Page 4 In such a proceeding, the Department may not alter the existing boundaries of a duty order. See Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097 (Fed. Cir. 2002) (“Although the scope of a final order may be clarified, it cannot be changed in a way contrary to its terms.”) (cleaned up). Whatever the perimeter of a duty order, foreign producers have every incentive to “mak[e] minor alter- ations to products . . . in an effort to take [them] out- side of the literal scope.” Wheatland Tube Co. v. United States, 161 F.3d 1365, 1370 (Fed. Cir. 1998). To combat this type of circumvention of antidumping and coun- tervailing duty laws, Congress enacted 19 U.S.C. § 1677j(c)(1). 2 It allows Commerce to determine “that certain types of articles are within the scope of a duty order, even when the articles do not fall within the or- der’s literal scope.” Deacero S.A. de C.V. v. United Op. 24-136, at 3 n.1, 2024 WL 5088294, at *1 n.1 (citing 28 U.S.C. § 2201). The Department may also self-initiate such an inquiry. See 19 C.F.R. § 351.225(b). 2 “The class or kind of merchandise subject to” an anti- dumping or countervailing duty order “shall include arti- cles altered in form or appearance in minor respects (in- cluding raw agricultural products that have undergone mi- nor processing), whether or not included in the same tariff classification.” 19 U.S.C. § 1677j(c)(1). Ct. No. 24-00114 Page 5 States, 817 F.3d 1332, 1337 (Fed. Cir. 2016); see also 19 C.F.R. § 351.226(j). 3 In such an inquiry, the Department can extend a duty order to cover articles outside of its compass “as a result of a minor alteration to merchandise covered in the investigation.” Deacero, 817 F.3d at 1338. It can- not, however, so extend an order to an article “ex- pressly exclud[ed]” by that order. Id. (citing Wheat- land, 161 F.3d at 1369–70). A modification to an arti- cle that brings it within an express exclusion “amount[s] to more than [an] ‘insignificant altera- tion[ ] to an existing product.’୻” Id. (quoting Nippon Steel Corp. v United States, 219 F.3d 1348, 1356 (Fed. Cir. 2000)). Although scope and circumvention proceedings are distinct, Commerce may collapse them together. See 19 C.F.R. § 351.225(d)(2) (authorizing the agency to address a scope application “in . . . a circumvention in- quiry under § 351.226 . . . rather than initiating a scope inquiry”); id. § 351.225(i)(1) (“[T]he Secretary 3 In a scope inquiry, the Department “may consider such criteria including, but not limited to, the overall physical characteristics of the merchandise (including chemical, di- mensional, and technical characteristics), the expectations of the ultimate users, the use of the merchandise, the chan- nels of marketing[,] and the cost of any modification rela- tive to the total value of the imported products.” 19 C.F.R. § 351.226(j). Ct. No. 24-00114 Page 6 may, but is not required to, address scope issues in . . . a circumvention inquiry under § 351.226 . . . .”). II A In 1994, Commerce imposed an antidumping duty order on certain garlic from China. See 59 Fed. Reg. 59,209. The subject merchandise comprises all grades of garlic, whole or separated into con- stituent cloves, whether or not peeled, fresh, chilled, frozen, provisionally preserved, or packed in water or other neutral substance, but not prepared or preserved by the addition of other ingredients or heat processing. The differences between grades are based on color, size, sheath- ing, and level of decay. The scope of this Order does not include the following: (a) garlic that has been mechanically harvested and that is primar- ily, but not exclusively, destined for non-fresh use; or (b) garlic that has been specially pre- pared and cultivated prior to planting and then harvested and otherwise prepared for use as seed. The subject merchandise is used princi- pally as a food product and for seasoning. Appx1023 (emphasis added). In a later scope inquiry, the Department clarified that any cutting or trimming of garlic cloves “beyond peeling” takes them out-of- scope. Appx1121. Ct. No. 24-00114 Page 7 B Green Garden Produce, LLC, imports two sizes of “peeled, trimmed, blanched, and individually quick- frozen garlic chunks coated with citric acid” from China. Appx1070–1071. Its large chunks are “three- fourths (¾) of a garlic clove with the two ends . . . trimmed off.” Appx1071. Its small chunks are made by cutting its large ones into “four equal pieces.” Id. In 2023, Green Garden applied for a scope ruling on both types. Appx1068. It contended that its chunks fall within the order’s exception—which the importer characterized as an exclusion—for garlic “preserved by the addition of other ingredients” because they are coated with citric acid. Appx1079. It also asserted that its chunks are out-of-scope because they are “reduced in size beyond constituent cloves.” Appx1079–1080. After the opening of Green Garden’s scope inquiry, a group of domestic growers, the Fresh Garlic Producers Association, asked Commerce to begin a “circumvention inquiry with respect to those same products.” Appx2032 (emphasis added). According to the Association, the importer’s chunks are just minor alterations to otherwise-covered garlic cloves. Appx2037. The Department deferred this request pending resolution of the scope proceeding. Appx2224. Commerce thereafter found Green Garden’s chunks out-of-scope. Appx1348. The agency stated that “garlic cloves reduced in size beyond peeling are not covered.” Ct. No. 24-00114 Page 8 Id. It reasoned that “[t]he plain language of the scope does not specify any size or particular level of small- ness to which the garlic must be reduced beyond the whole or constituent clove of garlic to be considered outside the scope.” Appx1348–1349. The Department also found it unnecessary to consider the importer’s other theory—that the order excludes its chunks be- cause they are coated with a preservative, citric acid. Appx1320. 4 On the same day Commerce found Green Garden’s chunks out-of-scope, it opened the Association’s re- quested circumvention inquiry. Appx2247. The agency defined the “inquiry merchandise” by repeating verba- tim the importer’s description of its products in its scope application. See Appx1009. Green Garden answered the Association’s circum- vention allegation. Appx1045. Among other things, the importer asked Commerce “to resolve” the theory the agency ducked in the scope proceeding—that the order excludes garlic chunks preserved with citric acid. Appx1051. In support of that request, Green Garden appended its previous scope application. See Appx1047 n.1. It “restat[ed]” the arguments made in that filing. Appx1051. Citing the Federal Circuit’s decisions in Wheatland and Deacero, the importer contended that 4 Neither Green Garden nor any other interested party filed suit in this court to contest the scope ruling. Ct. No. 24-00114 Page 9 “[m]inor alteration inquiries are inappropriate when the antidumping duty order expressly excludes the al- legedly altered product.” Id. “Therefore, if the addition of citric acid results in the products being expressly ex- cluded from the scope of the Order, the minor altera- tion inquiry must end.” Id. Commerce ignored Green Garden’s request that it take up the scope issue and went ahead with the cir- cumvention inquiry on a countrywide basis. 5 Appx2246. The agency selected two exporters, Fenjun and Hengxin, 6 as mandatory respondents 7 representa- tive of all other Chinese producers because they had 5 The relevant regulation allows the Department to apply a circumvention finding “on a country-wide basis to all products from the country at issue” that have either the same or similar “relevant physical characteristics, . . . re- gardless of producer, exporter, or importer.” 19 C.F.R. § 351.226(m)(1)(ii), (iii). 6 Fenjun Foodstuff Co., Ltd., and Qingdao Deesheng- hengxin Food Co., Ltd. Appx1757. 7 In antidumping duty investigations and administrative reviews, “mandatory respondents are presumed repre- sentative of the non-selected respondents.” PrimeSource Bldg. Prods., Inc. v. United States, 111 F.4th 1320, 1331 (Fed. Cir. 2024). Commerce made such a finding here. See Appx1012 (“[The two mandatory respondents] accounted for a majority of the inquiry merchandise . . . . Accordingly, we find that [they] are representative of the experience of other producers and exporters of small and large garlic chunks.”). Ct. No. 24-00114 Page 10 the highest export volume of garlic based on Customs data. Appx1757–1762. Both reported that their processing applies citric acid to garlic. Appx1782–1783, Appx1792, Appx1796 (Fenjun); Appx2413, Appx2422, Appx2426 (Hengxin). 8 Neither, however, gave a reason for doing that. Green Garden did not file any rebuttal to their sub- missions. 9 A domestic producer, I Love Produce, no- tionally did so. Green Garden and the two mandatory respondents then asked the Department to strike the filing because it did not respond to either Fenjun’s or Hengxin’s reporting. Instead, according to the three objectors, the challenged document “sought to dis- credit Green Garden’s claim that its products are pre- served by adding another ingredient (i.e., citric acid).” Appx2456 (emphasis added). The agency agreed and rejected I Love Produce’s fil- ing as an untimely rebuttal to Green Garden’s com- ments. Appx2490–2491, Appx2492. Commerce then is- sued supplemental questionnaires to Fenjun and 8 They both also stated that they produce diced garlic, not garlic chunks. Appx1771 (Fenjun); Appx2401 (Hengxin). That distinction is immaterial here. Both forms of the prod- uct are out-of-scope because they represent cutting up whole cloves to some degree beyond peeling. See Appx1121. 9 The importer’s silence is unsurprising given that the same law firm represented all three entities. See Appx2455. Ct. No. 24-00114 Page 11 Hengxin; their responses again did not address why they used citric acid. Appx1027 (agency memo noting that neither the companies’ initial nor supplemental questionnaire responses addressed “the purpose or function of citric acid”). 10 Without acknowledging Green Garden’s renewed scope request and the lurking exclusion issue, the De- partment preliminarily determined that Chinese ex- porters as a group were circumventing the duty order through minor alterations to otherwise in-scope garlic cloves. Appx1006. The agency based this tentative con- clusion on its factual findings about the 19 C.F.R. § 351.226(j) factors: x Diced garlic’s overall physical characteristics are identical to in-scope garlic cloves “except in terms of . . . size.” Appx1010–1011. x Customers use diced and whole garlic cloves for the same food seasoning purposes. Appx1011. x The respondents’ marketing materials do not differentiate between diced and whole garlic cloves, whereas for other vegetables they do dis- tinguish sliced from whole varieties. Id. 10 The Department did not specifically request such infor- mation. See ECF 24, at 29–30 (Green Garden brief stating that “neither citric acid, preservatives, nor additives were addressed by Commerce in the questionnaires . . . .”). Ct. No. 24-00114 Page 12 x Diced garlic has the same channels of marketing and distribution as in-scope garlic. Id. x Finally, the “cost of modification relative to total value” is small. Id. In commenting on the preliminary determination, Green Garden observed that the Department did not address its request that the agency find that the order excludes the inquiry merchandise because it is coated with citric acid, a preservative. Appx2573. The im- porter again reiterated its arguments for that proposi- tion. Appx2573–2574. It also argued that for purposes of the 19 C.F.R. § 351.226(j) factors, cutting up garlic cloves is a major alteration. Appx2576–2579. In its final determination, Commerce for the first time considered whether the order excludes garlic pieces coated with citric acid. It observed that the two respondents had not explained the function of this sub- stance in their own production processes. Appx1026– 1027. Therefore, “the record does not support a finding that small and large garlic chunks are preserved by the addition of other ingredients.” Id. The Department did acknowledge, however, that Green Garden con- tended “that citric acid is used to preserve” these prod- ucts. Appx1027. The agency summarily dismissed that contention by asserting that the importer only raised this issue in its comments on the preliminary determi- nation. Id. Ct. No. 24-00114 Page 13 Finally, Commerce addressed Green Garden’s con- tention that cutting garlic cloves into chunks is not a “minor alteration.” Appx1032–1035. In response, the Department simply referred to its preliminary deter- mination and called the company’s objections “uncon- vincing.” Appx1034. III Invoking jurisdiction conferred by 28 U.S.C. § 1581(c), Green Garden brings this suit under 19 U.S.C. § 1516a(a)(2)(A)(ii) and (a)(2)(B)(vi) challen- ging the Department’s final determination of circum- vention. The Association intervened as a defendant. The parties have fully briefed the importer’s motion for judgment on the agency record, which is ripe for disposition. In § 1516a(a)(2) actions, “[t]he court shall hold un- lawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). The question is not whether the court would have reached the same deci- sion on the same record. Rather, it is whether the ad- ministrative record as a whole permits Commerce’s conclusion: Substantial evidence has been defined as more than a mere scintilla, as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. To determine if substan- Ct. No. 24-00114 Page 14 tial evidence exists, we review the record as a whole, including evidence that supports as well as evidence that fairly detracts from the sub- stantiality of the evidence. Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003) (cleaned up); see also SSIH Equip. S.A. v. U.S. Int’l Trade Comm’n, 718 F.2d 365, 382 (Fed. Cir. 1983) (if Commerce makes a choice be- tween “two fairly conflicting views,” the court may not substitute its judgment even if its view would have been different “had the matter been before it de novo”) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). The court also reviews to ensure the agency en- gaged in “reasoned decisionmaking,” meaning its re- sult must be “within the scope” of its authority and “the process” it uses to reach that outcome “must be logical and rational.” Michigan v. EPA, 576 U.S. 743, 750 (2015). The agency must “examine the relevant data and articulate a satisfactory explanation . . . in- cluding a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (cleaned up). But courts will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Id. Ct. No. 24-00114 Page 15 IV A Green Garden attacks Commerce’s conclusion that the inquiry merchandise—the same garlic chunks identified in the importer’s scope application—is not expressly excluded by the order’s scope language. Re- call that the Department based that finding on the ab- sence of any record evidence of the purpose of the citric acid used by Fenjun and Hengxin. See Appx1027. Ac- cording to Green Garden, its scope application that is on this record shows that its suppliers—including the two mandatory respondents—use that substance as a preservative. See ECF 24, at 21–31. It pummels the Department for ignoring that evidence and falsely as- serting that Green Garden waited until commenting on the preliminary determination to “claim[ ] that cit- ric acid is used to preserve small and large garlic chunks.” Appx1027. The government does not defend that assertion— nor could it. Instead, it offers new reasons to justify Commerce’s failure to consider the evidence in Green Garden’s scope application. That alone requires a re- mand for the Department to consider the importer’s submission. Under the doctrine of SEC v. Chenery Corp., 318 U.S. 80 (1943), “courts may not accept . . . counsel’s post hoc rationalizations for agency action.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168–69 (1962). The Department’s exercise of dis- cretionary authority may be “upheld, if at all, on the Ct. No. 24-00114 Page 16 same basis articulated in the order by the agency it- self.” Id. In any event, the government’s principal (new) jus- tification does not withstand scrutiny. The govern- ment contends that in this context of a country-wide inquiry, the Department properly focused on the infor- mation provided by Fenjun and Hengxin “in the prep- aration of comparable subject merchandise.” ECF 30, at 25. 11 But the Department didn’t limit its considera- tion to their information. As discussed below, the agency also relied on evidence submitted by the Asso- ciation in connection with the 19 C.F.R. § 351.226(j) factors. Regardless, that Commerce deemed the two man- datory respondents as representative of Chinese pro- ducers generally didn’t excuse it from its obligation to at least consider record evidence submitted by inter- ested parties that detracts from its finding. See CS 11 “Indeed,” the government contends, “Green Garden itself acknowledged this fact when it requested the rejection” of I Love Produce’s submission about the purpose of citric acid because it was not responsive to Fenjun and Hengxin’s an- swers to the questionnaires. Id. But the importer did not contend that the filing was irrelevant to the circumvention inquiry; far from it. Instead, it argued that because it ad- dressed Green Garden’s evidence rather than the respond- ents’ answers, it was untimely. See Appx2457. Commerce agreed. See Appx2491 (rejecting the submission as “un- timely filed as [it] should have been filed within 14 days of” Green Garden’s response to the circumvention allegation). Ct. No. 24-00114 Page 17 Wind Vietnam Co. v. United States, 832 F.3d 1367, 1373 (Fed. Cir. 2016) (“The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.”); cf. Shelter Forest Int’l Ac- quisition, Inc. v. United States, 497 F. Supp. 3d 1388, 1399, 1402 (CIT 2021) (finding an abuse of discretion when the Department refused to consider voluntarily submitted information from a non-selected company and the rejection was “likely to lead to an inaccurate and punitive result”), aff’d, 2022 WL 2155965, at **6– 7 (Fed. Cir. 2022) (noting the CIT correctly found that rejecting the information was an abuse of discretion). On remand, the Department must at least consider Green Garden’s evidence that the latter characterizes as showing that Chinese producers generally—includ- ing its suppliers Fenjun and Hengxin 12—use citric acid to preserve garlic chunks. Finally, the government’s alibi fails for a third rea- son. Circumvention was not the only issue on the ta- ble. Green Garden asked Commerce to take up the 12 The government erroneously argues that “Green Garden did not argue that the evidence it submitted applied to the respondents’ production processes.” ECF 30, at 28. The im- porter points out that its scope application on this record stated that its suppliers include Fenjun and Hengxin. See ECF 35, at 14 & n.5 (citing Appx1074–1075); see also Appx1781 (Fenjun questionnaire response stating, “Green Garden will provide entry documents demonstrating that the actual exporters were Fenjun’s customers”), Appx2412 (Hengxin response saying same). Ct. No. 24-00114 Page 18 exclusion theory that the agency dodged in deciding the earlier scope proceeding. As explained above, the relevant regulation authorized the Department to con- sider that (related) scope question in the circumven- tion inquiry. See 19 C.F.R. § 351.225(d)(2), (i)(1). 13 Commerce, though, arbitrarily ignored Green Gar- den’s request. On remand, it must entertain the theory that the agency circumvented (pun intended) in the scope proceeding—that the order expressly excludes the importer’s garlic chunks because they are pre- served with citric acid. Or it must provide a reasonable justification for declining to do so. What it cannot do is what it did here—use a circumvention inquiry to make a back-door scope ruling while arbitrarily turning a blind eye toward the scope applicant’s contrary evi- dence. Finally, the government argues that Green Gar- den’s scope application does not show that the re- spondents or Chinese producers generally use citric acid to preserve garlic chunks. ECF 30, at 29–30. On remand, the Department can address this post hoc ra- tionale in the first instance. Similarly, it can consider the Association’s contention that the scope language the importer relies on does not expressly and unambig- 13 Because the importer so raised the scope question in the circumvention inquiry as the regulations permit, the court has jurisdiction to address it. This action, therefore, does not represent an untimely challenge to the Department’s failure to take up the issue in its scope proceeding. Ct. No. 24-00114 Page 19 uously exclude garlic chunks preserved with citric acid. See ECF 32, at 10–13. The court, of course, ex- presses no view on these questions. * * * In the circumvention inquiry, Green Garden asked Commerce to find that the order excludes its garlic chunks—which were the inquiry merchandise—be- cause they are preserved with citric acid. The Depart- ment sidestepped that question, just as it did in the earlier scope proceeding. On remand, the agency must entertain it or provide a reasonable justification for not doing so. And even if it gives such a justification, it must still address the importer’s argument that its evidence shows that producers of inquiry merchandise use citric acid as a preservative and therefore such goods are excluded. B Green Garden challenges Commerce’s finding that the inquiry merchandise—small and large garlic chunks—is “altered in form or appearance in such mi- nor respects” that it should be included within the scope of the order. Appx1034. In making that determi- nation, the Department considered the non-exclusive factors enumerated by regulation. See 19 C.F.R. § 351.226(j). Overall physical characteristics: The importer ap- pears not to dispute the Department’s conclusion that Ct. No. 24-00114 Page 20 Fenjun and Hengxin’s diced garlic has the same phys- ical characteristics as garlic cloves except size. See Appx1010–1011 (preliminary decision); see also Appx1034–1035 (finding Green Garden’s arguments “unconvincing” and reiterating the preliminary deter- mination’s findings in summary form); ECF 24, at 34 (importer’s brief, not disputing the point and instead arguing that garlic size affects the other relevant fac- tors). The court therefore presumes that the agency’s “overall physical characteristics” finding is supported by substantial evidence. See 28 U.S.C. § 2639(a)(1) (in this court, agency action “is presumed to be correct” and challengers to such action have the “burden of proving otherwise”). Expectations of ultimate users and use of merchan- dise: The agency said the Association’s evidence showed that out-of-scope garlic chunks are primarily used to make roasted garlic powder. Appx1011. Fen- jun and Hengxin, for their part, reported that full cloves could be substituted for their diced garlic used for making powder or puree. Id. Observing that the an- tidumping duty order states that the subject merchan- dise “is used principally as a food product and for sea- soning,” the Department found that the expectations of the ultimate users and the use of the merchandise were the same for both in-scope cloves and Fenjun and Hengxin’s diced garlic. Id. Green Garden argues that other evidence on the record that Commerce failed to consider detracts from Ct. No. 24-00114 Page 21 that conclusion. It cites an International Trade Com- mission report saying that in some applications, whether a garlic clove is cut up matters for appearance and other reasons. ECF 24, at 35–36. As a result, the importer contends, the garlic chunks are not substitut- able for the cloves covered by the order. Id. The government argues that even though the De- partment did not “explicitly cite” the Commission’s re- port, its “decisional path is reasonably discernable.” See ECF 30, at 40–42. In that regard, the government observes that an agency need not explicitly address every piece of evidence when the path to its conclusion is apparent. Id. at 38–39 (citing Wheatland, 161 F.3d at 1369–70). And the Association argues that Green Garden simply asks the court to re-weigh the evidence. See ECF 32, at 19. The government is correct that “an agency adjudi- cator . . . need not address every piece of evidence in the record,” but it overlooks that “the failure to do so risks a remand if such evidence is susceptible of a fair inference that detracts from the agency’s conclusion.” Commc’ns Workers of Am. Local 4123 ex rel. Former Emps. of AT&T Servs., Inc. v. U.S. Sec’y of Labor, 518 F. Supp. 3d 1342, 1352–53 (CIT 2021) (citing Novartis AG v. Torrent Pharms. Ltd., 853 F.3d 1316, 1328 (Fed. Cir. 2017)). Here, the Commission report fairly de- tracts from the Department’s conclusion about user ex- pectations and the use of inquiry merchandise. Ct. No. 24-00114 Page 22 Commerce chose to ignore it. Remand is thus required for the agency to reconsider this § 351.226(j) factor. Channels of marketing and distribution: Citing the Association’s evidence and the respondents’ reporting, Commerce determined that garlic chunks “have the same channels of marketing and distribution as in- scope . . . garlic.” Appx1011. Green Garden argues that its evidence contradicts this finding. ECF 24, at 35–36. The government re- sponds that Commerce reasonably placed greater weight on the respondents’ information. ECF 30, at 43. The problem, once again, is that the bare-bones na- ture of the Department’s analysis gives no indication that it even considered any of the importer’s evidence. As with its discussion of user expectations and use of the merchandise, its preliminary analysis of channels of marketing and distribution consisted of a single par- agraph citing submissions from the Association and Fenjun and Hengxin but not mentioning any of Green Garden’s arguments. See Appx1011. And its final de- termination consisted of the same conclusory para- graph noted above in which it simply stood by its pre- liminary conclusions. See Appx1034. The government may be correct that Commerce “afforded more weight” to the evidence it cited—but it also might not be. The Department’s silence means there is no way to know, thus requiring remand for reconsideration of the chan- nels of marketing and distribution. Ct. No. 24-00114 Page 23 Cost of modification relative to total value: The final enumerated factor under the regulation is “the cost of any modification relative to the total value of the im- ported products.” 19 C.F.R. § 351.226(j). Fenjun and Hengxin stated that if they used the same grade of gar- lic that they use for their whole cloves, their diced gar- lic would cost around 20 percent more because of higher production costs. Appx1798 (Fenjun); Appx2428 (Hengxin). But they explained that their use of lower-grade garlic to make the diced version means that product costs less than whole cloves. Id. Commerce found that the “lower grade garlic used for [the] diced” version “provides no added value to the merchandise.” Appx1012. Thus, it concluded, the cost of modification relative to total value “supports a find- ing that the inquiry merchandise is minorly altered.” Id. In effect, the Department treated the use of lower- grade cloves to make diced garlic as part of the modi- fication (along with the dicing). Green Garden argues that if Commerce had com- pared the lower-grade garlic’s pre-modification sales price to that of diced garlic, it would have found signif- icant value added, “as much as 21.3%.” ECF 24, at 38. The government responds that the agency permissibly found that the record evidence showed that using a lower grade brought “the price of inquiry garlic below that of whole garlic cloves.” ECF 30, at 43. “In total, the modifications led to a reduced cost of inquiry garlic when compared to subject fresh garlic.” Id. at 44. Ct. No. 24-00114 Page 24 The government’s arguments miss the mark. The duty order applies to “all grades of garlic, whole or sep- arated into constituent cloves.” 59 Fed. Reg. at 59,209 (emphasis added). Fenjun’s and Hengxin’s use of lower-grade cloves to make their diced product is not a modification of the in-scope clove, in contrast to the dicing itself. The regulation instructs the Department to con- sider “the cost of any modification relative to the total value of the imported products.” 19 C.F.R. § 351.226(j). The question, then, is whether the modification—the dicing—creates a significant difference in value be- tween the imported diced garlic and the in-scope (and low-grade) clove inputs used to make it. The question is not whether the cost of modification plus the cost of the lower-grade garlic is less than the sales price of higher-grade cloves. Cf. Appx1012 (“[T]he price of diced garlic is slightly cheaper than garlic cloves.”). Lower-grade garlic is still in-scope “subject merchan- dise” under the order’s plain terms. Commerce’s finding that “the lower grade garlic used for diced garlic provides no added value to the merchandise” fails to answer the question the regula- tion instructs the agency to address. The court there- fore remands for reconsideration of this factor as well. Ct. No. 24-00114 Page 25 * * * The court remands for further proceedings con- sistent with this opinion. Dated: May 15, 2026 /s/ M. Miller Baker New York, NY Judge