Shantou Red Garden Food Processing Co. v. United States
| Decision Date | 12 May 2023 |
| Docket Number | 20-03947,Slip Op. 23-72 |
| Parties | SHANTOU RED GARDEN FOOD PROCESSING CO., LTD., SHANTOU RED GARDEN FOODSTUFF CO., LTD., and OCEAN BISTRO CORPORATION, Plaintiffs, v. UNITED STATES, Defendant, and AD HOC SHRIMP TRADE ACTION COMMITTEE, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
[U.S Department of Commerce's final results of fourteenth administrative review of the antidumping duty order on frozen warmwater shrimp from the People's Republic of China are sustained.]
John J. Kenkel, deKieffer & Horgan, PLLC, of Washington, D.C argued for Plaintiffs Shantou Red Garden Food Processing Co Ltd., Shantou Red Garden Foodstuff Co., Ltd., and Ocean Bistro Corporation. With him on the brief were Alexandra H Salzman and J. Kevin Horgan.
Kara M. Westercamp, Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for Defendant the United States. With her on the brief were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Jesus N. Saenz, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C. Sophia J.C. Lin and Nathaniel Maandig Rickard, Picard, Kentz & Rowe LLP, of Washington, D.C., argued for Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.
Before: Richard K. Eaton, Judge
This case involves the final results of the U.S. Department of Commerce's ("Commerce" or the "Department") fourteenth administrative review of the antidumping duty order on certain frozen warmwater shrimp from the People's Republic of China ("Order"). See Certain Frozen Warmwater Shrimp from the People's Republic of China, 85 Fed.Reg. 83,891 (Dep't Commerce Dec. 23, 2020) ("Final Results") and accompanying Issues and Decision Mem. (Dec. 17, 2020) ("Final IDM"), PR 185; see also Certain Frozen Warmwater Shrimp From the People's Republic of China, 70 Fed.Reg. 5,149 (Dep't Commerce Feb. 1, 2005) (Order).
Plaintiffs in this action are (1) Shantou Red Garden Food Processing Co., Ltd. ("Shantou Processing"), an exporter and producer of the subject shrimp and the mandatory respondent in the review; (2) Shantou Red Garden Foodstuff Co., Ltd. ("Shantou Foodstuff"), its affiliated exporter; and (3) Ocean Bistro Corporation, a U.S. importer (collectively, "Plaintiffs"). By their motion for judgment on the agency record, Plaintiffs challenge the Final Results. See Pls.' Mem. Supp. Mot. J. Agency R. ( ), ECF No. 24-1; Pls.' Reply, ECF No. 35.
Defendant the United States ("Defendant"), on behalf of Commerce, and Defendant-Intervenor the Ad Hoc Shrimp Trade Action Committee, a coalition of U.S. shrimp producers (the "Ad Hoc Committee"),[1] oppose the motion and ask the court to sustain the Final Results. See Def.'s Resp. Opp'n Pls.' Mot. J. Agency R., ECF No. 31; Ad Hoc Committee's Resp. Opp'n Pls.' Mot. J. Agency R., ECF No. 29.
The court has jurisdiction under 28 U.S.C. § 1581(c) (2018) and 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018). Commerce's Final Results will be sustained unless they are "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i).
For the following reasons, Plaintiffs' motion is denied, and the Final Results are sustained.
1. Initiation of the Fourteenth Administrative Review of the Order
In May 2019, Commerce initiated the underlying administrative review. See Initiation of Antidumping and Countervailing Duty Admin. Revs., 84 Fed.Reg. 18,777 (Dep't Commerce May 2, 2019). The period of review was February 1 2018, through January 31, 2019. Id. at 18,787.
Commerce selected Shantou Processing to be the sole mandatory respondent in the review.[2]See Certain Frozen Warmwater Shrimp From the People's Republic of China, 85 Fed.Reg. 12,894, 12,894-95 (Dep't Commerce Mar. 5, 2020) ("Preliminary Results") and accompanying Preliminary Decision Mem. (Feb. 28, 2020) ("PDM") at 1, PR 134. Shantou Foodstuff, as Shantou Processing's affiliate, participated in the proceeding by answering Commerce's questionnaires, although Shantou Foodstuff had no sales of its own during the period of review. See PDM at 2-3.
Shantou Processing, on the other hand, both produced and exported subject merchandise to the United States during the period of review. It claimed, however, that its sales were not subject to review because it had no "sales of subject merchandise subject to the antidumping duty order in the instant administrative review." Certification of No Sales (May 17, 2019), PR 16 (emphasis added); see Commerce's Revised No Shipment Mem. (July 23, 2019), CR 1 ( that Shantou Processing manufactured, exported, and shipped thirteen entries of subject merchandise to importer Ocean Bistro Corporation during the period of review). Shantou Processing based its claim on a 2013 Federal Register notice, in which Commerce partially revoked the Order with respect to merchandise produced and exported by a company called "Red Garden Food Processing Co., Ltd."[3] See Certain Frozen Warmwater Shrimp From the People's Republic of China, 78 Fed.Reg. 18,958, 18,959 n.14 (Dep't Commerce Mar. 28, 2013) ("Revocation Notice"); Pls.' Cmts. on New Factual Information Regarding Shipments by Red Garden Food Processing Co., Ltd. (July 29, 2019) at 2, PR 29 (citing Revocation Notice).
Commerce's partial revocation of the Order resulted from a separate proceeding conducted under Section 129 of the Uruguay Round Agreement Act ("URAA").[4] The Revocation Notice excluded from the Order an exporter-producer combination[5] that involved Red Garden Food Processing Co., Ltd. As a result of the partial revocation in 2013, merchandise that was produced by Red Garden Food Processing Co., Ltd. (or five other Chinese producers that have since gone out of business[6]) and exported by Red Garden Food Processing Co., Ltd. (or Shantou Foodstuff) was excluded from the Order.[7] See Revocation Notice, 78 Fed.Reg. at 18,959 n.14.
In August 2019, Commerce asked Shantou Processing to clarify what relationship, if any, it had with Red Garden Food Processing Co., Ltd., the producer and exporter named in the Revocation Notice. See Commerce's Request for Clarification of Company's Name (Aug. 8, 2019), PR 30.
The company responded that Red Garden Food Processing Co., Ltd. was the same entity as Shantou Red Garden Food Processing Co., Ltd. (i.e., Shantou Processing). See Pls.' Resp. to Commerce's Request for Clarification of Company's Name (Aug. 13, 2019), PR 31. For Shantou Processing, the omission of "Shantou" from the name "Red Garden Food Processing Co., Ltd." in the Revocation Notice was merely a clerical error. Id. at 2.
In September 2019, Defendant-Intervenor the Ad Hoc Committee disputed the claim that Red Garden Food Processing Co., Ltd. and Shantou Red Garden Food Processing Co., Ltd. (i.e., Shantou Processing) were the same company. The committee alleged that after the Order was issued in 2005 Red Garden Food Processing Co., Ltd. changed its name twice-in 2007 and again in January 2013 prior to the partial revocation of the Order just a few months later, in March 2013. See PDM at 3.
In October 2019, Commerce issued its antidumping questionnaire to Shantou Processing and invited comment on the information contained in the Ad Hoc Committee's filing regarding the alleged name changes.
Shantou Processing responded to Commerce's questionnaire and the Ad Hoc Committee's allegations, insisting that Shantou Processing was the same company as the excluded Red Garden Food Processing Co., Ltd. See Resp. to Domestic Producers' Letter of Sept. 6, 2019 (Oct. 21, 2019), PR 66 (Part I) & 67 (Part II). Shantou Processing stated that it was established as "Shantou Red Garden Food Processing Co., Ltd." in 2003 as a joint venture between a U.S. company called Red Chamber Co. and Plaintiff Shantou Foodstuff. See id., Part I at 3. Shantou Processing acknowledged, however, that it changed its name twice-first to Shantou Jin Cheng Food Co., Ltd. ("Shantou JCF") in 2007, and then back to Shantou Red Garden Food Processing Co., Ltd. (i.e., Shantou Processing) in 2013. See id., Part I at 9-11. Shantou Processing maintained that despite the name changes, "for all intents and purposes, [Shantou Processing] today is the same company that it was prior to and during the period of investigation." Id. at 8. As shall be seen, there are various explanations for the name changes.
Thereafter, the American Shrimp Processors Association[8] asked that Commerce conduct a successor-in-interest analysis, arguing that "the current incarnation of [Shantou Processing] is not eligible to receive the treatment granted the original [Shantou Processing] until Commerce makes a successor-in-interest determination . . . ." Am. Shrimp Processors Ass'n's Resp. (Oct. 24, 2019) at 6, PR 68; see also PDM at 7-8.
In this opinion, to distinguish among the different "incarnations" of the entity that became Shantou Processing from its establishment in 2003 to the period of review, the court will use (1) "Red Garden Food Processing Co., Ltd." to refer to the entity as it existed from 2003 to 2007, i.e., the period prior to its first name change in 2007; (2) Shantou Jin Cheng Food Co., Ltd. or "Shantou JCF" will refer to the entity as it existed from 2007 to 2013; and (3) "Shantou Red Garden Food Processing Co., Ltd." or "Shantou Processing" will refer to the entity from 2013 through the period of review.
II. Commerce's Successorship Inquiry
Following the American Shrimp Processors Association's request that Commerce conduct a successor-in-interest...
To continue reading
Request your trial