Mazzetta Company LLC v. United States

Slip Op. 21-42
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Claire R. Kelly, Judge
Consol. Court No. 18-00205
OPINION
[Sustaining the U.S. Department of Commerce’s second remand results in the twelfth
administrative 	review 	of 	the 	antidumping 	duty 	order 	covering 	certain 	frozen
warmwater shrimp from the Socialist Republic of Vietnam.]
Dated: April 14, 2021
Matthew R. Nicely and Daniel M. Witkowski, Akin, Gump, Strauss, Hauer & Feld
LLP, of Washington, DC, for plaintiffs
Ethan 	P. 	Davis 	and 	Brian 	M. 	Boynton, 	Acting 	Assistant 	Attorneys 	General,
Commercial 	Litigation 	Branch, 	Civil 	Division, 	U.S. 	Department 	of 	Justice, 	of
Washington, DC, for defendant. Also on the brief was Jeanne E. Davidson, Director,
Patricia M. McCarthy, Assistant Director, and Kara M. Westercamp, Trial Attorney.
Of counsel was Kirrin Hough, Staff Attorney, Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce, of Washington, DC.
SAO TA FOODS JOINT STOCK
COMPANY ET AL.,
Plaintiffs and Consolidated
Plaintiff,
v.
UNITED STATES,
Defendant,
and
AD HOC SHRIMP TRADE ACTION
COMMITTEE,
Defendant-Intervenor and
Consolidated Defendant-
Intervenor.
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Nathaniel Maandig Rickard and Zachary J. Walker, Picard, Kentz & Rowe LLP, of
Washington, DC, for defendant-intervenor.
Kelly, 	Judge: 	Before 	the 	court 	is 	the 	U.S. 	Department 	of 	Commerce’s
(“Commerce”) second remand redetermination in the twelfth administrative review
of the antidumping duty (“ADD”) order covering certain frozen warmwater shrimp
from the Socialist Republic of Vietnam (“Vietnam”) filed pursuant to the court’s order
in Sao Ta Foods Joint Stock Co. v. United States, 44 CIT __, 475 F. Supp. 3d 1283
(2020) (“Sao Ta II”). See also Final Results of Redetermination Pursuant to Ct. Order
in [Sao Ta II], Dec. 8, 2020, ECF No. 100-1 (“Second Remand Results”). In Sao Ta II,
the court remanded for further consideration Commerce’s remand redetermination
to continue to deny separate rate status to two factory names of Thuan Phuoc
Seafoods and Trading Corporation (“Thuan Phuoc”), “Frozen Seafoods Factory No.
32” and “Seafoods and Foodstuffs Factory.” See Sao Ta II, 44 CIT at __, 475 F. Supp.
3d at 1293. 	In the Second Remand Results, Commerce grants the two factories
separate rate status as trade names of Thuan Phuoc, under respectful protest and
limited to the twelfth administrative review. 	See Second Remand Results at 2.
Plaintiff agrees with Commerce’s final decision. 	See Pl.’s Reply to Cmts. on Second
Remand Redetermination Pursuant to Ct. Remand Order at 1, Feb. 12, 2021, ECF
No. 106 (“Pl.’s Br.”).
BACKGROUND
The court assumes familiarity with the facts of this case, as set out in its
previous opinions ordering remand, see Sao Ta Foods Joint Stock Co. v. United
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States, 44 CIT __, __, 425 F. Supp. 3d 1314, 1319–20 (2020) (“Sao Ta I”); Sao Ta II,
44 CIT at __, 475 F. Supp. 3d at 1286, and recounts those facts relevant to the court’s
review of the Second Remand Results. 	In this twelfth administrative review of the
ADD order covering certain frozen warmwater shrimp from Vietnam, Commerce
denied separate rate status to two factory names of Thuan Phuoc, “Frozen Seafoods
Factory No. 32” and “Seafoods and Foodstuffs Factory,” because neither factory name
was listed on its respective valid business registration certificate. 1 	See Decision
Memo. for Prelim. Results of [ADD] Admin. Review at 9–10, A-552-802, PD 224, bar
code 3679553-02 (Mar. 5, 2018); Names Not Granted Separate Rate Status at the
Prelim. Results at 4, PD 225, bar code 3679580-01 (Mar. 5, 2018) (“Trade Names
Memo.”); 2 Certain Frozen Warmwater Shrimp from [Vietnam]: Issues and Decisions
Memo. for the Final Results at 19–20, A-552-802, PD 292, bar code 3752460-01 (Sept.
7, 2018) (“Final Decision Memo.”).
In Sao Ta I, the court held Commerce’s determination that Thuan Phuoc’s
factories did not qualify for separate rate status was unsupported by substantial
1 The factory names were identified on sales documents. See Trade Names Memo. at
4.
2 On November 13, 2018, Defendant filed indices to the public and confidential
administrative records underlying Commerce’s final determination on the docket at
ECF Nos. 19-2–3. 	Subsequently, on May 13, 2020, Defendant filed indices to the
administrative record underlying Commerce’s remand redetermination on the docket
at 	ECF 	No. 	75, 	and 	on 	December 	22, 	2020, 	Defendant 	filed 	indices 	to 	the
administrative record underlying Commerce’s second remand redetermination at
ECF No. 101. 	Citations to the administrative record in this opinion are to the
numbers Commerce assigned to such documents in the indices, and preceded by “PD”
or “CD” to denote the public or confidential documents.
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evidence, because Commerce failed to consider the documentary evidence included
with Thuan Phuoc’s separate rate certification, i.e., copies of the factories’ business
registration certificates and invoices, and explain why, in view of that evidence, the
factory names did not qualify as trade names of Thuan Phuoc. See Sao Ta I, 44 CIT
at __, 425 F. Supp. 3d at 1329–31. 	On remand, Commerce continued to find that
neither factory qualifies for a separate rate because the factories are independent
exporters and not trade names of Thuan Phuoc. See Final Results of Redetermination
Pursuant to Ct. Order in [Sao Ta I] at 6–12, 17–21, Apr. 30, 2020, ECF No. 74
(“Remand Results”).
In Sao Ta II, the court found that Commerce’s denial of separate rate status to
“Frozen Seafoods Factory No. 32” and “Seafoods and Foodstuffs Factory” was
unreasonable because Commerce failed to explain how it distinguishes when an
entity is a “separate exporter[]” as opposed to a trade name of another company, and
failed to address record evidence that detracts from its position that the factories are
ineligible for a separate rate. 	Sao Ta II, 44 CIT at __, 475 F. Supp. 3d at 1289–90,
1291–93. 	Moreover, although Commerce claimed that its practice with respect to
trade 	names 	and 	separate 	rates 	had 	recently 	changed, 	the 	court 	held 	that
Commerce’s change in practice regarding trade names was arbitrary and capricious
because, apart from it being unclear whether a change actually occurred, Commerce
did not give reasonable notice to interested parties of the change. See id. at 1290–91.
In its Second Remand Results, Commerce grants, under respectful protest, separate
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rate status to “Frozen Seafoods Factory No. 32” and “Seafoods and Foodstuffs
Factory” as trade names of Thuan Phuoc. See Second Remand Results at 2. Plaintiff
concurs in the result. See Pl.’s Br. at 1. Defendant-Intervenor, Ad Hoc Shrimp Trade
Action Committee, argues that the Second Remand Results should be remanded for
further consideration, because Commerce adequately explains why it did not grant
separate rate status to the two factories. See Def.-Intervenor Ad Hoc Shrimp Trade
Action Committee’s Cmts. on the [Second Remand Results], Jan. 7, 2021, ECF No.
102.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff
Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012) 3 and 28 U.S.C.
§ 1581(c) (2012), 4 which grant the court authority to review actions contesting the
final determination in an administrative review of an ADD order. 	The court will
uphold Commerce’s determination unless it is “unsupported by substantial evidence
on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
“The results of a redetermination pursuant to court remand are also reviewed ‘for
compliance with the court’s remand order.’” Xinjiamei Furniture (Zhangzhou) Co. v.
United States, 38 CIT __, __, 968 F. Supp. 2d 1255, 1259 (2014) (quoting Nakornthai
3 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2012 edition.
4 Further citations to Title 28 of the U.S. Code are to the 2012 edition.
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Strip Mill Public Co. v. United States, 32 CIT 1272, 1274, 587 F. Supp. 2d 1303, 1306
(2008)).
DISCUSSION
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. 	See
Compl. at ¶ 24, Oct. 2, 2018, ECF No. 7. 	The court remanded to Commerce to
reconsider the separate rate status of the two factories, because Commerce failed to
consider evidence that detracted from its determination in light of its stated practice.
See Sao Ta I, 44 CIT at __, 425 F. Supp. 3d at 1329–30. 	Commerce, in its remand
redetermination, again denied separate rate status to the two factories based on its
view that each entity acts as an independent exporter. 	See generally Remand
Results. 	The court remanded a second time for reconsideration. 	See Sao Ta II, 44
CIT at __, 475 F. Supp. 3d at 1293. 	Commerce, under respectful protest, grants
separate 	rate 	status 	to 	“Frozen 	Seafoods 	Factory 	No. 	32” 	and 	“Seafoods 	and
Foodstuffs Factory” as trade names of Thuan Phuoc, see Second Remand Results at
2, and Plaintiff agrees with Commerce’s final determination. See Pl.’s Br. at 1.
When 	Commerce 	investigates 	subject 	merchandise 	from 	a 	non-market
economy 	(“NME”) 	country, 	such 	as 	Vietnam, 	Commerce 	presumes 	that 	the
government controls the export-related decision-making of all companies operating
within that NME. 	See Import Admin., [Commerce], Separate-Rates Practice and
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Application of Combination Rates in Antidumping Investigations involving [NME]
Countries, Pol’y Bulletin 05.1 at 1 (Apr. 5, 2005) (“Policy Bulletin 05.1”), available at
http://enforcement.trade.gov/policy/bull05-1.pdf (last visited Apr. 8, 2021); see also
Antidumping Methodologies in Proceedings Involving [NME] Countries: Surrogate
Country Selection and Separate Rates, 72 Fed. Reg. 13,246, 13,247 (Dep’t Commerce
Mar. 21, 2007) (request for comment) (stating the Department’s policy of presuming
control for companies operating within NME countries); Sigma Corp. v. United
States, 117 F.3d 1401, 1405 (Fed. Cir. 1997) (approving Commerce’s use of the
presumption). Commerce assigns an NME-wide rate, unless a company successfully
demonstrates an absence of government control, both in law (de jure) and in fact (de
facto)). See Policy Bulletin 05.1 at 1–2. 5
5 Commerce examines the following factors to evaluate de facto control: “whether the
export prices are set by, or subject to the approval of, a governmental authority;”
“whether the respondent has authority to negotiate and sign contracts and other
agreements;” “whether the respondent has autonomy from the central, provincial and
local governments in making decisions regarding the selection of its management;”
and, “whether the respondent retains the proceeds of its export sales and makes
independent decisions regarding disposition of profits or financing of losses.” Policy
Bulletin 05.1 at 2. With respect to de jure control, Commerce considers three factors:
“an absence of restrictive stipulations associated with an individual exporter’s
business and export licenses;” “any legislative enactments decentralizing control of
companies;” and, “any other formal measures by the government decentralizing
control of companies.” Id.
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To establish independence from governmental control, a company submits a
separate rate application or a separate rate certification. 6 See Policy Bulletin 05.1 at
3–4; see also Pls.’ Confidential Memo. Supp. R. 56.2 Mot. J. Agency R. at Annex 2
(“Separate Rate Application”), Annex 3 (“Separate Rate Certification”), Mar. 15, 2019,
ECF No. 29. 	Under Commerce’s separate rate policy, recounted in Policy Bulletin
05.1 each company that exports subject merchandise to the United States must
submit its own individual separate rate application, “regardless of any common
ownership or affiliation between firms[.]” Policy Bulletin 05.1 at 5. Commerce limits
its consideration to only companies that exported subject merchandise to the United
States during the period of investigation or review. 7 	See id. at 4–5. 	In addition,
applicants must identify affiliates in the NME that exported to the United States
during 	the 	period 	of 	investigation 	or 	review 	and 	provide 	documentation
demonstrating that the same name in its separate rate request appears both on the
business registration certificate and on shipments declared to U.S. Customs and
Border Protection (“CBP”). 	See id. at 4–5. 	The separate rate forms reflect these
6 Firms that currently hold a separate rate submit a separate rate certification, while
firms that do not hold a separate rate or have had changes to corporate structure,
ownership, or official company name submit a separate rate application. 	See
Separate Rate Application at 2. 	Both forms request similar information. 	Relevant
here, in a separate rate certification, like a separate rate application, an applicant
provides information and supporting documentation that it is not subject to NME
control. See, e.g., Final Decision Memo. at 19.
7 Although Policy Bulletin 05.1 refers to investigations, the separate rate application
and 	separate 	rate 	certification, 	which 	apply 	to 	investigations 	and 	reviews,
incorporate Policy Bulletin 05.1 by reference. See, e.g., Separate Rate Application at
2.
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requirements. 	Question two of the separate rate application, like question seven of
the separate rate certification, asks whether the applicant “is identified by any other
names . . . (i.e., does the company use trade names)” and requests applicants to
provide business registration certificates and “evidence that these names were used
during the [period of investigation or review].” See Separate Rate Application at 10;
see also Separate Rate Certification at 7. The separate rate application and separate
rate certification instructions define a “trade name” as a “name[] under which the
company does business.” 	Separate Rate Application at 10 n.3; Separate Rate
Certification at 7 n.3.
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. 	See Second Remand Results at 2. 	Commerce’s decision is 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. 	See Policy Bulletin 05.1 at 4–5. 8 	As discussed in Sao Ta I,
8 	Commerce’s 	Policy 	Bulletin 	provides 	“[a]ll 	applicants 	must 	identify 	in 	the
application any affiliates in the NME country that exported to the United States
during the period of investigation the merchandise described in the petition, as well
as any affiliates located in the United States involved in the sale of the subject
merchandise[]” and “[a]ll shipments to the United States declared to U.S. Customs
and Border Protection must identify the exporter by its legal business name. This
(footnote continued)
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Thuan Phuoc established its eligibility for a separate rate, see Remand Results at 6,
and, in its separate rate certifications, also requested that its factories’ names,
“Frozen Seafoods Factory No. 32” and “Seafoods and Foodstuffs Factory,” be granted
separate rate status. 	See Separate Rate Certification of [Thuan Phuoc], PD 71, bar
code 3572148-01 (May 15, 2017) (“Thuan Phuoc Separate Rate Certification”).
Specifically, 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. See id. at 1–8.
As the court noted in its prior opinions, 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. See Sao Ta I,
44 CIT at __, 425 F. Supp. 3d at 1329; Sao Ta II, 44 CIT at __, 475 F. Supp. 3d at
1289.
Commerce’s policy as well as the instructions to the separate rate application
and separate rate certification focus on whether a firm’s export activities are
name 	must 	match 	the 	name 	that 	appears 	on 	the 	exporter’s 	business
license/registration documents, a copy of which shall be provided to the Department
as part of the exporter’s request for separate rate status.” See Policy Bulletin 05.1 at
4–5. 	As 	will 	be 	discussed 	further, 	Thuan 	Phuoc 	provided 	documentation 	to
demonstrate that the substantive requirements set out in Commerce’s policy were
met for the two factories, see Separate Rate Certification of [Thuan Phuoc], PD 71,
bar code 3572148-01 (May 15, 2017), but Commerce failed to address this evidence
and instead evaluated the factories separate rate status on other grounds that are
not part of its policy.
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sufficiently independent from the NME to qualify for a separate rate and recognize
that a company may do business under one or more names. See Policy Bulletin 05.1
at 1–2; Separate Rate Application at 10 n.3; Separate Rate Certification at 7 n.3. As
a result, Commerce’s policy, reflected in the separate rate application and separate
rate certification instructions, affords separate rate status to those trade names so
long as the same name in the company’s separate rate request appears both on the
business registration certificate and on commercial shipments. 	See Separate Rate
Application at 10 n.3; Separate Rate Certification at 7 n.3; see also Policy Bulletin
05.1 at 4–5. 	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.” 	See generally Thuan Phuoc Separate Rate
Certification. 	Thuan Phuoc also entitled one table column with “trade names,” and
listed the factory names within that category, in its response to question eight of the
separate rate certification. 	See id. at 6–7. 	Finally, Commerce’s decision is in
compliance with the remand order which required that Commerce either reconsider,
or further explain, its decision and supposed change in policy.
Although Commerce now reconsiders its position, and grants the two factories
separate rate status, it does so under protest and continues to argue that separate
rate status is inappropriate, repeating the same reasons given in its Remand Results.
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See Remand Results; Second Remand Results. Commerce reiterates its position that
the two companies should have filed the separate rate application because they did
not have a SR from the previous review. 	See Second Remand Results at 8–10.
Commerce also restates its position 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. See id. at n.48. However, in Sao Ta II,
the court questioned how Commerce came to the conclusion that the two factories
were “separate exporters.” 9 	See Sao Ta II, 44 CIT at __, 475 F. Supp. 3d at 1289.
Relatedly, the court instructed Commerce to explain how it defines a company as an
independent exporter versus a trade name. See id. at 1290. The court further ordered
Commerce to substantiate its allegation that it changed its practice, and explain
9 Specifically, the court stated
Here, however, rather than determining whether the asserted trade
names ‘identify the exporter by its legal business name’ and whether
they 	‘match 	the 	name 	that 	appears 	on 	the 	exporter’s 	business
license/registration 	documents[,]’ 	see 	Policy 	Bulletin 	05.1 	at 	4–5;
Separate Rate Application at 10 n.3; Separate Rate Certification at 7
n.3, 	Commerce 	relies 	on 	the 	commercial 	business 	registration
certificates and commercial documentation to assert the factory names
are ‘separate exporters’ that must, themselves, apply for a separate rate.
See Remand Results at 7–12, 24–25. 	Commerce, in characterizing the
factories as ‘separate exporters,’ offers no definition for that term nor
identifies where in the statute or regulations it bases the distinction it
seeks to capture with this term. It may be that Commerce can point to
both authority and rationale to support the distinction but the court will
not speculate on its behalf. 	Commerce should state its position and
explain why its approach is reasonable and how it squares with its policy
as well as the separate rate application and separate rate certification
instructions. Cf. Policy Bulletin 05.1 at 4–5; Separate Rate Application
at 10 n.3; Separate Rate Certification at 7 n.3.
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whether if it changed its practice, it gave “adequate explanation or notice” of the
change. 	See id. at 1290. 	Finally, the court ordered Commerce to explain how it
evaluated evidence that detracted from its determination. See id. at 1291. Commerce
did not respond with any of the requested explanations. 	Instead, Commerce restates
its position that it changed its practice in the tenth administrative review to deny SR
status to any exporters that were separate companies or branches, and that the
parties were on notice of the changes. 	See Second Remand Results at 12–13. 10
Commerce fails to explain how its position, i.e., that every entity is its own exporter
coheres with the policy and practice reflected in its separate rate instructions.
Question two of the separate rate application, like question seven of the separate rate
certification, asks whether the applicant “is identified by any other names . . . (i.e.,
does the company use trade names)” and requests applicants to provide business
registration certificates and “evidence that these names were used during the [period
of investigation or review].” See Separate Rate Application at 10; see also Separate
Rate Certification at 7. The separate rate application and separate rate certification
instructions define a “trade name” as a “name[] under which the company does
business.” Separate Rate Application at 10 n.3; Separate Rate Certification at 7 n.3.
10 Commerce states that it is under no obligation to independently investigate the
affiliation between exporters. 	See Second Remand Results at 9–10. 	However, the
court did not ask Commerce to investigate the affiliation between exporters, rather it
asked Commerce to explain why it denied separate rate status to two of Thuan
Phuoc’s factories despite evidence that the factories were eligible for separate rate
status. See Sao Ta II, 44 CIT at __, 475 F. Supp. 3d at 1289–90, 1291–93.
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The instructions therefore envision that there are times when a company may export
under a trade name, i.e., a name other than the name of its separate rate application
or separate rate certification. 	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. 11
11 As discussed more fully in Sao Ta II, it is not clear that Commerce changed its
practice or gave adequate notice of a change in practice to the parties. See Sao Ta II,
44 CIT at __, 475 F. Supp. 3d at 1290–91. 	Commerce explains that it previously
misapplied its practice when it granted separate rate status to these very factories in
prior reviews. See Remand Results at 12, 29–30. Commerce then invokes the tenth
administrative review, in which it denied separate rate status to Thuan Phuoc’s trade
names, as providing notice of its practice. In that review it states a hypothetical: “[I]f
Thuan Phuoc included these names as trade names but these names are, in fact
separate companies or ‘branches,’ they are equally ineligible for separate rate
status[.]” 	See id. at 30 n.102, 33 n.107 (citing Certain Frozen Warmwater Shrimp
from [Vietnam]: Issues and Decision Memo. for the Final Results at 80, A-552-802,
(Sept. 	6, 	2016), 	available 	at
https://enforcement.trade.gov/frn/summary/vietnam/2016-21882-1.pdf 	(last 	visited
Apr. 8, 2021). The court thus stated
It is unclear how Commerce’s caution regarding separate companies or
branches provides any insight to its finding, here, that the branch
factories are separate exporters. It may be that Commerce now views a
distinctly named factory as a distinct company that is, as a consequence,
its own exporter. However, that view is not discernible from Commerce’s
statement. Fairness demands that Commerce provide adequate notice,
and 	it 	cannot 	be 	reasonably 	said 	that 	a 	statement, 	framed 	as 	a
hypothetical, conveys a change in practice or a reason for that change.
Sao Ta II, 44 CIT at __, 475 F. Supp. 3d at 1291 (citing Shikoku Chemicals Corp. v.
United States, 16 CIT 382, 388, 795 F. Supp. 417, 421–22 (1992); Huvis Corp. v.
United States, 31 CIT 1803, 1811, 525 F. Supp. 2d 1370, 1378 (2007)).
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CONCLUSION
For the foregoing reasons, Commerce’s Second Remand Results are supported
by substantial evidence and comply with the court’s order in Sao Ta II, and are
therefore sustained. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	April 14, 2021
New York, New York
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