Slip Op. 20-135

UNITED STATES COURT OF INTERNATIONAL TRADE 

Before: Claire R. Kelly, Judge 

Consol. Court No. 18-00205 

PUBLIC VERSION 

OPINION AND ORDER 

[Remanding the U.S. Department of Commerce’s remand results in the twelfth 

administrative review of the antidumping duty order covering certain frozen 

warmwater shrimp from the Socialist Republic of Vietnam.] 

 Dated: September 15, 2020 

Matthew R. Nicely and Daniel M. Witkowski, Akin, Gump, Strauss, Hauer & Feld 

LLP, of Washington, DC, for plaintiffs Sao Ta Foods Joint Stock Company, a.k.a. 

Fimex VN, et al. 

Ethan P. Davis, Acting Assistant Attorney General, Commercial Litigation Branch, 

Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With 

him on the brief were Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant 

Director, and Kara M. Westercamp, Trial Attorney. Of counsel was Kirrin Hough, 

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 DefendantIntervenor. 
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PUBLIC VERSION 

Attorney, International Office of the Chief Counsel for Trade Enforcement & 

Compliance, U.S. Department of Commerce, of Washington, D.C.. 

Nathaniel Maandig Rickard and Zachary J. Walker, Picard, Kentz & Rowe, LLP, of 

Washington, DC, for defendant-intervenor Ad Hoc Shrimp Trade Action Committee 

Kelly, Judge: Before the court is the U.S. Department of Commerce’s 

(“Commerce”) remand redetermination filed pursuant to the court’s order in Sao Ta 

Foods Joint Stock Co. v. United States, 44 CIT __, 425 F. Supp. 3d 1314 (2020) (“Sao 

Ta I”). See also Redetermination Pursuant to Ct. Remand Order in [Sao Ta I], Apr. 

30, 2020, ECF No. 74 (“Remand Results”). In Sao Ta I, the court sustained in part 

and remanded in part Commerce’s final determination in the twelfth administrative 

review1 of the antidumping duty (“ADD”) order covering certain frozen warmwater 

shrimp from the Socialist Republic of Vietnam (“Vietnam”). See Certain Frozen 

Warmwater Shrimp From [Vietnam], 83 Fed. Reg. 46,704 (Dep’t Commerce Sept. 14, 

2018) (final results of [ADD] admin. review, 2016–2017), and accompanying Issues & 

Decision Memo. for the Final Results, Sept. 7, 2018, A-552-802, (Sept. 7, 2018), ECF 

No. 45 (“Final Decision Memo.”). 

Relevant here, in Sao Ta I, the court remanded Commerce’s denial of separate 

rate status to the factory names “Frozen Seafoods Factory No. 32” and “Seafoods and 

Foodstuffs Factory” for further explanation or consideration. See Sao Ta I, 44 CIT at 

 

1 The twelfth administrative review covers the period February 1, 2016 through 

January 31, 2017. See Initiation of Antidumping and Countervailing Duty Admin. 

Reviews, 82 Fed. Reg. 17,188, 17,194–96 (Dep’t Commerce Apr. 10, 2017). 
Consol. Court No. 18-00205 Page 3 

PUBLIC VERSION 

__, 425 F. Supp. 3d at 1328–32. On remand, Commerce continues to deny separate 

rate status, providing additional explanation. See Remand Results at 1, 5–38. 

Plaintiffs Sao Ta Foods Joint Stock Company, a.k.a. Fimex VN (“Fimex”), et al. 

(collectively, “Vietnamese Respondents”) challenge Commerce’s Remand Results as 

unsupported by substantial evidence and as arbitrary and capricious. See Pls.’ 

Confidential Cmts. on [Remand Results] at 4–32, June 5, 2020, ECF No. 78 (“Pls.’ 

Br.”). Defendant and Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee 

(“AHSTAC”) request the court to sustain the Remand Results. See Def.’s Resp. Cmts. 

Regarding [Remand Results] at 15–25, July 8, 2020, ECF No. 85 (“Def.’s Br.”); Def.-

Intervenor [AHSTAC’s] Resp. to [Pls.’ Br.] at 4–19, July 8, 2020, ECF No. 84 (“Def.-

Intervenor’s Br.”). For the reasons that follow, the court remands Commerce’s 

Remand Results. 

BACKGROUND 

 The court assumes familiarity with the facts of this case, as set out in its 

previous opinion ordering remand, see Sao Ta I, 44 CIT at __, 425 F. Supp. 3d at 

1319–20, and recounts those facts relevant to the court’s review of the Remand 

Results. In this twelfth administrative review of the ADD order covering certain 

frozen warmwater shrimp from Vietnam, Commerce denied separate rate (“SR”) 

status to two factory names of Thuan Phuoc Seafoods and Trading Corporation 

(“Thuan Phuoc”), “Frozen Seafoods Factory No. 32” and “Seafoods and Foodstuffs 

Factory,” because neither name was listed on their respective valid business 
Consol. Court No. 18-00205 Page 4 

PUBLIC VERSION 

registration certificates (“BRCs”).2 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 [SR] Status at the Prelim. Results at 4, PD 225, bar code 

3679580-01 (Mar. 5, 2018) (“Trade Names Memo.”);3 Final Decision Memo. at 16–23. 

 In Sao Ta I, the court held Commerce’s determination that Thuan Phuoc’s 

factories did not qualify for SR status was unsupported by substantial evidence, 

because Commerce failed to consider the documentary evidence included with Thuan 

Phuoc’s SRC, i.e., copies of the factories’ BRCs and invoices, and explain why, in view 

of that evidence, the factory names did not qualify as trade names of Thuan Phuoc. 

See id., 44 CIT at __, 425 F. Supp. 3d at 1329–31. On remand, Commerce continues 

to find that neither factory qualifies for an SR because the factory names are not 

trade names of Thuan Phuoc and finds that the factories are independent exporters. 

See Remand Results at 6–12, 17–21. 

 

2 The factory names were identified on sales documents. See Trade Names Memo. at 

4. 

3 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. Citations to the administrative record in this opinion are to the 

numbers Commerce assigned to such documents in the indices. 
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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)4 and 28 U.S.C. 

§ 1581(c) (2012), 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 

Strip Mill Public Co. v. United States, 32 CIT 1272, 1274, 587 F. Supp. 2d 1303, 1306 

(2008)). 

DISCUSSION

 Vietnamese Respondents challenge Commerce’s denial of SR status to Thuan 

Phuoc’s factory names “Frozen Seafoods Factory No. 32” and “Seafoods and 

Foodstuffs Factory” as unsupported by substantial evidence and arbitrary and 

capricious, because Commerce failed to address record evidence demonstrating that 

the factories and Thuan Phuoc are the same company as instructed by the court’s 

opinion ordering remand. See Pls.’ Br. at 4–12; 24–25. In addition, Vietnamese 

 

4 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. 
Consol. Court No. 18-00205 Page 6 

PUBLIC VERSION 

Respondents contend that Commerce abandoned its prior practice that allowed 

factories which are part of the same company to establish their eligibility for a 

separate rate as trade names of that company. Id. at 13–24, 26. Defendant and 

Defendant-Intervenor counter that Commerce reasonably evaluated the record 

evidence and acted in accordance with its prior practice. See Def.’s Br. at 15–22; Def.-

Intervenor’s Br. at 11–17.5 For the reasons that follow, Commerce’s denial of SR 

status to Thuan Phuoc’s factory names on this record is unreasonable and its change 

in practice regarding trade names is arbitrary and capricious. 

 

5 Defendant-Intervenor and Defendant also urge the court to ignore Vietnamese 

Respondents’ request that the court also consider arguments presented in their case 

brief before the agency. See Def.’s Br. at 15–16; Def.-Intervenor’s Br. at 5–8. 

Generally, “arguments not raised in the opening brief are waived.” SmithKline 

Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006) (citing Cross 

Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1320–21 n.3 (Fed. 

Cir. 2005)). Likewise, arguments raised in a “perfunctory manner” are also deemed 

waived. Home Prods. Int’l, Inc. v. United States, 837 F. Supp. 2d 1294, 1301, 36 CIT 

665, 673 (2012) (citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)) 

(internal quotations omitted). Therefore, the court declines to consider those 

arguments that Vietnamese Respondents attempt to incorporate by reference from 

their case brief yet fail to develop in their opening brief to the court. See, e.g., id., 837 

F. Supp. 2d at 1301, 36 CIT at 673–74 (denying a motion to reconsider its decision to 

deem plaintiff’s “threadbare” argument waived and noting that plaintiff could have 

requested additional pages to develop its argument). 

 The court, likewise, declines to review the attachments to Vietnamese 

Respondent’s brief as well as its reference to websites, because that information does 

not appear in the administrative record. See Pls.’ Br. at 10 n.39, 15 n.56, 16 n.57, 

Attach. A–B. Judicial review is generally limited to the full administrative record 

before the agency at the time it rendered its decision, see Citizens to Preserve Overton 

Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); otherwise, reviewing extra-record 

evidence could convert the court’s standard of review into de novo review. See Axiom 

Res. Mgmt, Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009). 
Consol. Court No. 18-00205 Page 7 

PUBLIC VERSION 

When Commerce investigates subject merchandise from a non-market 

economy (“NME”) country, such as Vietnam, Commerce presumes that the 

government controls export-related decision-making of all companies operating 

within that NME. Import Admin., [Commerce], Separate-Rates Practice and 

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 Sept. 10, 2020); see also 

Antidumping Methodologies in Proceedings Involving [NME] Countries: Surrogate 

Country Selection and [SRs], 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)). Policy 

Bulletin 05.1 at 1–2.6 

 

6 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 

(footnote continued) 
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PUBLIC VERSION 

To establish independence from governmental control, a company submits a 

separate rate application (“SRA”) or a separate rate certification (“SRC”) (collectively, 

“separate rate forms”).7 Policy Bulletin 05.1 at 3–4; see also Pls.’ Confidential Memo. 

Supp. R. 56.2 Mot. J. Agency R. at Annex 2 (“SRA”), Annex 3 (“SRC”), Mar. 15, 2019, 

ECF No. 29. Under Commerce’s separate rate policy, recounted in Policy Bulletin 

05.1 (“policy”), each company that exports subject merchandise to the United States 

must submit its own individual SRA, “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.8 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 

 

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. 

7 Firms that currently hold an SR submit an SRC, while firms that do not hold an SR 

or have had changes to corporate structure, ownership, or official company name 

submit an SRA. See SRA at 2. Both forms request similar information. Relevant 

here, in an SRC, like an SRA, an applicant provides information and supporting 

documentation that it is not subject to NME control. See, e.g., Final Decision Memo. 

at 19. 

8 Although Policy Bulletin 05.1 refers to investigations, the SRA and SRC, which 

apply to investigations and reviews, incorporate Policy Bulletin 05.1 by reference. 

See, e.g., SRA at 2. 
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demonstrating that the same name in its SR request appears both on the business 

registration certification (“BRC”) and on shipments declared to U.S. Customs and 

Border Protection (“CBP”). Id. at 4–5. The separate rate forms reflect these 

requirements. Question two of the SRA, like question seven of the SRC, asks whether 

the applicant “is identified by any other names . . . (i.e., does the company use trade 

names)” and requests applicants to provide BRCs and “evidence that these names 

were used during the [period of investigation or review].” See SRA at 10; see also 

SRC at 7. The SRA and SRC instructions define a “trade name” as a “name[] under 

which the company does business.” SRA at 10 n.3; SRC at 7 n.3. 

 Thuan Phuoc established its eligibility for a separate rate, see Remand Results 

at 6, and, in its SRC, also requested that its factories’ names, “Frozen Seafoods 

Factory No. 32” and “Seafoods and Foodstuffs Factory,” be granted SR status. See 

[SRC] of [Thuan Phuoc], PD 71, bar code 3572148-01 (May 15, 2017) (“Thuan Phuoc 

SRC”). Specifically, in its SRC, Thuan Phuoc had indicated the factories were under 

common ownership, identified them as trade names of Thuan Phuoc, and provided 

BRCs and export documentation.9 See id. at 1–8. As the court noted in its prior 

 

9 Although, in the narrative portion of the SRC, 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 SR status for these factory names through the conduit of “trade names.” See 

generally Thuan Phuoc SRC. 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 SRC. See id. at 6–7. 
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PUBLIC VERSION 

opinion ordering remand, 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. 

Commerce continues to unreasonably deny SR status to Thuan Phuoc’s factory 

names. On remand, Commerce now asserts that the factories’s status as independent 

exporters, even if divisions of Thuan Phuoc, deprives them of the ability to benefit 

from Thuan Phuoc’s SR status as trade names.10 Irrespective of the legal structure 

of a company, Commerce takes the position that any division of a company, a separate 

branch, or a separate facility that acts as its own independent exporter—i.e., “is 

licensed to produce and export separately”—cannot be a trade name of that company. 

Id. at 24–27.11 Commerce offers no explanation for this approach. Indeed, this 

 

10 Previously, Commerce focused narrowly on the instructions to the SRA, which 

define a “trade name” as “other names under which the company does business[,]” 

exclusive of “names of any other entities in the firm’s ‘group,’ affiliated or 

otherwise[,]” and determined that the factories were separate companies part of 

Thuan Phuoc’s “group” rather than trade names of Thuan Phuoc. See Final Decision 

Memo. at 18, 22–23. 

11 Throughout the Remand Results, Commerce criticizes Thuan Phuoc for selfbestowing “single-entity” status. See Remand Results at 14–17. According to 

Commerce, only Commerce, not an exporter, may make single-entity determinations. 

Id. at 15. Commerce, however, conflates two distinct concepts. Commerce grants 

(footnote continued) 
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PUBLIC VERSION 

position seems to be inconsistent with its policy and the instructions to the SRA and 

SRC. Commerce’s policy as well as the instructions to the SRA and SRC focus on 

whether a firm’s export activities are sufficiently independent from the NME to 

qualify for an SR and recognize that a company may do business under one or more 

names. See Policy Bulletin 05.1 at 1–2; SRA at 10 n.3; SRC at 7 n.3. As a result, 

Commerce’s policy, reflected in the SRA and SRC instructions, affords SR status to 

those trade names so long as the same name in the company’s SR request appears 

both on the business registration certification and on commercial shipments. See 

SRA at 10 n.3; SRC at 7 n.3; see also Policy Bulletin 05.1 at 4–5. 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; 

SRA at 10 n.3; SRC at 7 n.3, Commerce relies on the commercial BRCs 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. 

 

trade names separate rate status because those are the additional names under 

which a firm, that successfully rebuts the presumption of governmental control, also 

does business. See generally Policy Bulletin 05.1; see also SRA at 10 n.3; SRC at 7 

n.3. By contrast, Commerce will treat affiliated companies as a single entity—or a 

collapsed entity—for the purposes of calculating a dumping margin when producers 

are sufficiently intertwined with non-producers that would lead to the ability to shift 

sales or production as to evade AD duties. See 19 C.F.R. § 351.401(f); see e.g., Rebar 

Trade Action Coal. v. United States, 43 CIT __, __, 398 F. Supp. 3d 1359, 1367–68 

(2019). 
Consol. Court No. 18-00205 Page 12 

PUBLIC VERSION 

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 SRA and SRC 

instructions. Cf. Policy Bulletin 05.1 at 4–5; SRA at 10 n.3; SRC at 7 n.3. 

In addition, there is reason to doubt this approach represents Commerce’s 

current practice and, if it were Commerce’s current practice, that Commerce provided 

adequate explanation or notice of a change in its practice. See Motor Vehicle Mfrs. 

Ass'n of the United States, Inc. v. State Farm Mut. Ins. Co., 463 U.S. 29, 57 (1983) 

(“an agency changing its course must supply a reasoned analysis”) (internal quotation 

and citation omitted); see also Nippon Steel Corp. v. U.S. Int’l Trade Comm’n, 494 

F.3d 1371, 1377 n.5 (Fed. Cir 2007). Commerce implies that its approach is not new, 

explaining that it misapplied its practice when it granted SR status to the factories 

in prior reviews, which it subsequently corrected in this and the twelfth 

administrative reviews. See Remand Results at 12, 29–30.12 Commerce points to its 

 

12 Even though Commerce refers to the grant of SR status to Seaprimexco Vietnam 

and its trade name as an example of the correct application of its policy in this 

administrative review, see Remand Results at 20–21, it is unclear why Thuan Phuoc’s 

(footnote continued) 
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PUBLIC VERSION 

statement in the issues and decision memoranda for the tenth administrative review, 

in which it denied SR status to Thuan Phuoc’s trade names, as providing notice of its 

practice: “[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, A552-802, (Sept. 6, 2016), available at 

https://enforcement.trade.gov/frn/summary/vietnam/2016-21882-1.pdf (last visited 

Sept. 10, 2020) (“AR10 Decision Memo.”)).13 See AR10 Decision Memo. at 80. It is 

unclear how Commerce’s caution regarding separate companies or branches provides 

 

factories would not, too, qualify for SR status, when, like Seaprimexco, Thuan Phuoc’s 

factory names appear on BRCs and commercial documentation. Compare Thuan 

Phuoc SRC with Resp. from Hughes Hubbard & Reed LLP to Sec of Commerce 

Pertaining to Seaprimexco Supp SRC Resp. at 1, PD 143, bar code 3584546-01 (June 

23, 2017) (stating that “Seaprimexco Vietnam” and “Seaprimexco” both appear on 

invoices). 

13 Commerce faults Thuan Phuoc for failing to file separate SRAs for its two factories 

and instead for submitting one SRC covering the two factory names. See Remand 

Results at 13–14. Commerce implies Thuan Phuoc’s SRC is inappropriate because it 

had determined that the factories were separate from Thuan Phuoc in the tenth 

administrative review. Id. However, in that review, Commerce merely declined to 

consider the factory names as trade names because Thuan Phuoc had not provided 

the required commercial documentation. See AR10 Decision Memo. at 80. The SRC 

instructions indicate that “changes to trade names are allowed” and that “[o]nly 

changes to the official company name . . . require the filing of an [SRA].” See SRC at 

2. 
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any insight to its finding, here, that the branch factories are separate exporters. 14 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. See Shikoku Chemicals 

Corp. v. United States, 16 CIT 382, 388, 795 F. Supp. 417, 421–22 (1992); see also 

Huvis Corp. v. United States, 31 CIT 1803, 1811, 525 F. Supp. 2d 1370, 1378 (2007). 

Instead, as a result of Commerce granting the factories SR status as trade names of 

Thuan Phuoc in prior reviews, Thuan Phuoc relied upon Commerce’s consistent 

application of that practice—even if, as Commerce asserts, it was consistently 

misapplied. See Remand Results at 29–30, 33; see also Pls.’ Br. at 21–22. Cf. Shikoku 

Chemicals Corp., 16 CIT at 388, 795 F. Supp. at 421–422 (concluding that 

“[p]rinciples of fairness prevent Commerce from changing its methodology” when it 

had used the methodology in prior reviews and plaintiffs relied upon that 

methodology). Commerce’s failure to appraise interested parties of its new approach 

 

14 Although the court does not opine whether Commerce has discretion to adopt this 

new approach, Commerce’s hypothetical statement falls short in either explaining a 

new approach and or providing adequate notice. Commerce may change its practice 

in certain circumstances so long as it explains why it is changing course and the 

explanation is in accordance with law and supported by substantial evidence. See, 

e.g., Cultivos Miramonte, S.A. v. United States, 21 CIT 1059, 1064, 980 F. Supp. 1268, 

1274 (1997). 
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and its rationale is arbitrary and capricious. See, e.g., Huvis Corp., 31 CIT at 1814, 

525 F. Supp. 2d at 1381 (holding that Commerce’s change in practice was arbitrary 

and capricious because it failed to provide sufficient rationale).15 

Finally, Commerce must explain how it evaluates record evidence in light of 

its approach. Commerce’s policy, as well as the SRA and SRC instructions, requires 

each SR applicant to provide the name of the exporting entity, and any trade name(s) 

under which it may export, as identified in its BRC, and demonstrate that such entity 

name and/or trade name(s) match the name on documents for declared shipments to 

CBP. See Policy Bulleting 05.1 at 5; see also SRA at 10; SRC at 7. Here, although 

Commerce considers copies of the factories’ BRCs, each entitled “Certificate of 

Activities Registration and Tax Registration of Branch” (“branch certifications”), that 

 

15 Although Commerce must give adequate notice of a change in practice, Commerce 

need not inform the parties of deficiencies in submissions, unless those submissions 

are responses to requests for information. Vietnamese Respondents are mistaken to 

suggest that Commerce was required under 19 U.S.C. § 1677m(d) to provide notice to 

Thuan Phuoc that its SRC would not also serve as the SRA for its factories and, 

further, to consider information on the record to nonetheless determine whether the 

factories were entitled to SR status pursuant to 19 U.S.C. § 1677m(e). See Pls.’ Br. 

at 26–32. These arguments are unavailing. Section 1677m(d) requires Commerce to 

notify a respondent of a deficient “response to a request for information[,]” and section 

1677m(e) requires Commerce to consider information necessary to a determination 

submitted by an interested party under certain circumstances. 19 U.S.C. § 1677m(d)–

(e). By contrast, a company submits a separate rate application voluntarily so to 

rebut a presumption of governmental control and avoid an NME-wide rate. See 

Sigma, 117 F.3d at 1405; see also Policy Bulletin 05.1. Commerce may disregard SRAs 

when the information submitted is unreliable or deficient, so long as that 

determination is based on substantial evidence. See, e.g., Fresh Garlic Producers 

Ass’n v. United States, 39 CIT __, __, 121 F. Supp. 3d 1313, 1328 (2015). 
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Thuan Phuoc included with its application, see Thuan Phuoc SRC at Ex. 1, as well as 

the commercial invoices on the record, Commerce examines that record evidence to 

establish that the factories are separate exporters and therefore not trade names of 

Thuan Phuoc. Commerce concludes that the factories export under their own licenses 

because the factory names recorded on Thuan Phuoc’s BRC do not match the names 

indicated on the branch certifications.16 See Remand Results at 6 n.25, 7–8.17 

Further, Commerce finds that the separate bank account numbers and Food and 

Drug Administration facility registration numbers on the commercial invoices 

 

16 Commerce does not respond to Vietnamese Respondents’ argument, raised in their 

case brief, that the discrepancy may be due to a translation error, compare Remand 

Results at 23 (summarizing Vietnamese Respondent’s argument that the Vietnamese 

names of the factories match) with id. at 23–30, nor consider evidence concerning the 

BRC and branch certifications that suggest the factories are trade names or “names 

under which the company does business.” See SRA at 10 n.3. Specifically, each 

branch certification identifies Thuan Phuoc as the “[n]ame of the enterprise,” lists 

Thuan Phuoc’s business registration number and designates each 

factory as having the same address as Thuan Phuoc, which, taken together, suggest 

that the factories are divisions of Thuan Phuoc. See Thuan Phuoc SRC at Ex. 1. In 

addition, unlike Thuan Phuoc’s BRC, the branch certifications do not have sections 

regarding registered capital, abbreviated names, or shareholders, which, similarly, 

signpost that the factories are not independent entities. See id. Commerce does not 

examine these aspects of the BRC and branch certifications.

17 As a secondary reason why the factories are separate from Thuan Phuoc, Commerce 

observes the branch certifications identify distinct “heads of branch.” See Remand 

Results at 10. However, in doing so, Commerce offers no further explanation to 

substantiate its conclusion. See id. 

[[ ]],
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PUBLIC VERSION 

indicate the factories are their own exporters. See Remand Results at 10.18 

Commerce’s policy does not indicate that it will evaluate the invoices for any purpose 

beyond confirming use of trade names during the period of review.19 See generally 

Policy Bulletin 05.1; SRA; SRC. Rather, by evaluating the record evidence to 

ascertain whether the factories are separate exporters, Commerce abandons the 

inquiry it had set forth in its policy and the SRA and SRC instructions. Cf. Policy 

Bulletin 05.1 at 2; SRA at 10; SRC at 7–8. On remand, Commerce must not only state 

and explain its practice as discussed but must also clarify why, based on the record, 

inclusive of detracting evidence, it concludes the factories are not trade names of 

Thuan Phuoc. 

 

18 On remand, Commerce should reconcile its treatment of Thuan Phuoc with other 

exporters in this administrative review. Specifically, Commerce should consider 

whether, as Vietnamese Respondents allege, Commerce acts arbitrarily in viewing 

Thuan Phuoc’s separate bank account numbers as probative of separate exporter 

status when it found other firms’ factory names to be trade names of those firms 

notwithstanding the use of multiple bank accounts. See Pls.’ Br. at 7–8.

19 Commerce avers that there is “no information on the record from any licensing 

authority” that indicate the factories comprise the same company, Thuan Phuoc, see 

Remand Results at 17–18, but it does not address evidence of the Vietnamese 

Enterprise Law that Fimex placed on the record. See Resp. from Hughes Hubbard & 

Reed LLP to Sec Commerce Pertaining to Fimex VN Sec A QR at Ex. A-2, PD 115–

16, bar codes 3580626-01–02 (June 12, 2017). The Vietnamese Enterprise Law 

defines “enterprise” and “branch” as well as sets forth business registration 

requirements, which indicate that branches do not have a separate corporate 

existence. See, e.g., id. at Ex. A-2 at Arts. 4.7, 45, 46. In addition, Commerce implies 

that the definition of an “enterprise” under Vietnamese law may not accord with the 

application of U.S. antidumping laws. See Remand Results at 18. Commerce fails to 

explain why and how the U.S. antidumping statute’s definitions are relevant and 

why, under either U.S. or Vietnamese law, it is reasonable to infer that the branches 

are separate entities from Thuan Phuoc. 
Consol. Court No. 18-00205 Page 18 

PUBLIC VERSION 

CONCLUSION 

 In accordance with the foregoing, it is 

ORDERED that Commerce’s final determination with respect to the denial of 

separate rate status to the names ‘‘Frozen Seafoods Factory No. 32’’ and ‘‘Seafoods 

and Foodstuffs Factory’’ is remanded for further explanation or consideration 

consistent with this opinion; and it is further 

ORDERED that Commerce shall file its remand redetermination with the 

court within 90 days of this date; and it is further 

ORDERED that the parties shall have 30 days thereafter to file comments on 

the remand redetermination; and it is further 

ORDERED that the parties shall have 30 days to file their replies to 

comments on the remand redetermination; and it is further 

ORDERED that the parties shall have 14 days thereafter to file the Joint 

Appendix; and it is further 

ORDERED that Commerce shall file the administrative record within 14 days 

of the date of filing of its remand redetermination. 

 /s/ Claire R. Kelly 

 Claire R. Kelly, Judge 

Dated: September 15, 2020 

 New York, New York