CBP's Failure to Ensure Public Summaries of BPI in EAPA Case Unlawful, Shrimp Trade Group Says

The case concerns an Enforce and Protect Act investigation into frozen warmwater shrimp from India. In its complaint, AHSTEC claimed that CBP should have compelled Minh Phu to provide additional information in the public version of its responses and that CBP should have stuck with its original finding that Minh Phu transshipped Indian shrimp through Vietnam (see 2103240069).

Arguing that AHSTEC may appear to "misunderstand EAPA proceedings," the defendant-intervenors fought back against the plaintiff's attacks on the public summaries. Minh Phu and MSeafood (collectively, MPG) said that the statute does not require EAPA respondents to disclose any information (see 2112140067).

In its reply, AHSTEC said that the defendant-intervenors misunderstand its argument. "AHSTEC does not argue that it should have had access to MPG’s business proprietary information," the brief said. "Rather, throughout the investigation, AHSTEC raised specific objections to the inadequacy of the public summaries filed by MPG and the company’s designation of public information as confidential information." The plaintiff cited a prior case on EAPA due process claims, Royal Brush v. U.S.

AHSTEC then blasted both the defendant-intervenors and CBP's role in ensuring that the statute is satisfied by providing public summaries of the confidential information. The plaintiff said it repeatedly told CBP what information it needed summaries of but that no such summaries were provided. "Indeed, numerous instances of MPG treating the same information as public and business confidential were specifically identified by AHSTEC," the brief said. "MPG’s obvious inconsistencies in identifying business confidential information is emblematic of its failure to comply with CBP’s regulations, but, more importantly, demonstrates CBP’s total failure to ensure the adequacy of MPG’s public summaries."

The plaintiff said the lack of such information "substantively impacted" the EAPA investigation. For instance, in the proceeding, Minh Phu repeatedly said that there was no evidence backing the claim that it had commingled Indian-origin shrimp with Vietnam-origin shrimp in its U.S. exports. However, Minh Phu has now reported before the trade court that it bought a relatively small quantity of frozen raw shrimp from India and brought this shipment into Vietnam from India.

"Moreover, while choosing to now publicly summarize some aspects of its past purchases and importation of Indian shrimp, MPG neither references nor addresses other confidential information in that submission undermining the company’s characterizations regarding past transshipment," the brief said. "... In the absence of adequate public summaries there is no ability by any interested party to evaluate those characterizations against the record."

The second part of AHSTEC's brief was dedicated to attacking CBP's Office of Rules and Regulations' alleged failure to review the administrative record. "In total, roughly one-third (1,979 out of 6,366 total pages) of the page count of the public administrative record was omitted from the initial administrative record docketed with this Court, an outcome that would not be possible if [the Trade Remedy Law Enforcement Directorate] had previously transmitted the entirety of the administrative record to ORR for the purposes of the administrative review," the plaintiff said, defining the problem.

Due to this, there is no way that CBP could have reviewed the entire record when making its evasion decision, AHSTEC argued. "Although both Defendant and MPG argue that the Court should accept ORR’s claim to have reviewed the entirety of the administrative record, the circumstances of this case establish that such a presumption is inappropriate," the brief said. "Rather, the clear evidence on the record establishing that ORR failed to review the entire administrative record renders its determination arbitrary, capricious, and an abuse of discretion."