United States Court of International Trade

Slip Op. 21-42

Before the Court in Sao Ta Foods Joint Stock Co. v. United States, Consol. Court No. 18-00205, Slip Op. 21-42 (April 14, 2021) was Commerce’s second remand redetermination in the twelfth administrative review of the antidumping duty order covering certain frozen warmwater shrimp from Vietnam filed pursuant to the court’s previous order. Previously, Plaintiff challenged Commerce’s decision not to grant separate rate status to Thuan Phuoc’s factories, “Frozen Seafoods Factory No. 32” and “Seafoods and Foodstuffs Factory,” despite granting separate rate status to Thuan Phuoc. Commerce, under respectful protest, granted separate rate status to “Frozen Seafoods Factory No. 32” and “Seafoods and Foodstuffs Factory” as trade names of Thuan Phuoc, and Plaintiff agreed with Commerce’s final determination. Id. Although Commerce reconsidered its position, and granted the two factories separate rate status, Commerce did so under protest and continued to argue that separate rate status was inappropriate, repeating the same reasons given in its Remand Results. Id. at 11. “Commerce reiterated that the two companies should have filed the separate rate application because they did not have a SR from the previous review.” Id. at 12. Commerce restated that “it has no basis to determine that the two factories, which are producers and exporters, are the same company as Thuan Phuoc and are just doing business as another name.” Id. For the following reasons, the Court sustained Commerce’s Second Remand Results. Id. at 1.

The court will uphold Commerce’s determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” Id. at 5. “The results of a redetermination pursuant to court remand are also reviewed ‘for compliance with the court’s remand order.’” Id. at 5. In this case, the Court found that Commerce’s decision to grant separate rate status to “Frozen Seafoods Factory No. 32” and “Seafoods and Foodstuffs Factory” as trade names of Thuan Phuoc was supported by substantial evidence “because it is consistent with Commerce’s practice under the statute to grant separate rate status to so long as the same name in the company’s separate rate request appears both on the business registration certificate and on commercial shipments.” Id. at 9. Here, “in its separate rate certification, Thuan Phuoc indicated the factories were under common ownership, identified them as trade names of Thuan Phuoc, and provided business registration certificates and export documentation.” Id. at 10. The Court noted that if the two factory names are names under which Thuan Phuoc does business, “then Commerce’s finding that Thuan Phuoc operates independently of the government in its export activities would extend to these factories and their trade names” according to Commerce’s policy. Id. The Court explained that although “in the narrative portion of the separate rate certification, Thuan Phuoc did not call the factories’ names “trade names” or d/b/a names—instead referring to them as “separate factories” or “branch factories”—it checked off the form’s boxes indicating that it sought separate rate status for these factory names through the conduit of “trade names.” Id. at 11. The Court concluded that despite its protestations, “Commerce fails to support its contention that it changed its practice of allowing trade names on separate rate applications or separate rate certification, or that parties were on notice of that fact.” Id. at 14. As such, the Court found that “­­­ Commerce’s Second Remand Results are supported by substantial evidence and comply with the court’s previous” order and are therefore sustained. Id. at 15.