AD Respondent Attacks Inclusion in Review Given Section 129 Case Excluding It From the Order

The Commerce Department's alleged misinterpretation of a 2013 Section 129 determination that partially revoked an antidumping duty order on Shantou Red Garden Food Processing (Shantou RGFP) has the company facing millions of dollars in antidumping duty liability, Shantou RGFP said in a Sept. 3 reply brief at the Court of International Trade. Due to a misspelling that Commerce refuses to correct, Shantou RGFP found itself participating in an administrative review and being assigned an antidumping duty cash deposit rate even though it was previously found to be outside of the order, the company said (Shantou Red Garden Food Processing Co., Ltd. et al v. U.S., CIT # 20-03947).

Shantou RGFP said the Section 129 determination partially revoked an antidumping duty order on frozen warmwater shrimp from China for Shantou RGFP and its affiliate, Shantou Red Garden Foodstuff. But in 2019, when Shantou RGFP received Commerce’s request for information related to an administrative review, it discovered that the Section 129 determination revoked the order for “RGFP” rather than “Shantou RGFP,” though it did correctly list Shantou Red Garden Foodstuff, which Commerce had been treating as the same entity as Shantou RGFP for AD duty purposes, the company said in its opening brief at CIT (see 2104270029).

"The prejudice suffered by Shantou RGFP indeed is substantial," Shantou RGFP followed up with in its reply brief. "But for the numerous errors in interpretation in the Section 129 Determination and the institution of the underlying review and subsequent finding of dumping, Shantou RGFP would not be facing the wrongful imposition of millions of dollars in antidumping duties, when it should have been excluded from the dumping order if Commerce had performed its duty and correctly interpreted the dumping order when it issued the Section 129 Determination."

Shantou RGFP argued that Commerce's administrative review directly conflicts with the terms of the Section 129 determination. "RGFS and Shantou RGFP are the same 'entity,'" the brief explained. "Therefore, it is impermissible for Commerce to separate them when it initiated the underlying review. ... Thus, since there is no ambiguity in the dumping order, any interpretation (intended or otherwise) of the order by Commerce is impermissible. Thus, the Section 129 determination was not empowered to interpret the dumping order. Any conflict between the two documents must be resolved in favor of the order."