CIT Sends Back Finding of No Evasion in EAPA Case Over CBP's Incomplete Review of the Record

The case, brought by the Ad Hoc Shrimp Trade Enforcement Committee (AHSTEC), concerns an Enforce and Protect Act investigation into frozen warmwater shrimp from India. In the case, AHSTEC argued that CBP's Office of Regulations and Rulings decision to not find evasion lacked backing by substantial evidence, that ORR based its review on an incomplete review of the record and that CBP's Trade Remedy & Law Enforcement Directorate illegally failed to provide public summaries of confidential information. On the lattermost point, AHSTEC claimed that CBP should have compelled exporter Minh Phu to provide additional information in the public version of its responses (see 2103240069).

AHSTEC found a sympathetic ear in Kelly. The judge ruled that ORR, per its own confession at oral argument, failed to look at the entire record when finding that MSeafood didn't evade the antidumping duties since TRLED failed to transmit the entire record to ORR. During the investigation, TRLED found that MSeafood evaded the AD duties while ORR said that it didn't. "Although Defendant and Minh Phu Group each attempted to downplay the materiality of the documents missing from the record that TRLED transmitted to ORR, even a cursory review of the list of documents demonstrates that ORR could not possibly have complied with its obligation to conduct a de novo review of the entire administrative record," the opinion said.

The judge then said that the part of the review that ORR skipped was "significant," further necessitating the remand. "In addition to correspondence between the parties, requests for extensions, and responses to such requests, TRLED failed to transmit Minh Phu Vietnam’s and MSeafood US’ entire responses to TRLED’s initial [requests for information]." This information totaled around 17,000 pages, most of which were Minh Phu Group's business records that the exporter used to argue that it did not evade the antidumping duties.

Kelly then turned to the issue of the public summaries of Minh Phu Group's confidential information. While due process issues were raised on this point -- as they are in many EAPA cases -- the judge sidestepped this question to avoid ruling on what right AHSTEC has in participating in an EAPA proceeding. Instead, Kelly ruled that CBP failed to provide adequate public summaries, explain how it "evaluated the sufficiency of public summarization" and explain the inability of Minh Phu Group to summarize its confidential documents.

"The court cannot evaluate CBP’s action without any explanation of CBP’s obligations with respect to allegedly confidential information or the reasons for CBP’s decisions in this investigation," the opinion said. "Therefore, the court remands the CBP Decisions for reconsideration or further explanation regarding confidential treatment and public summarization of allegedly confidential information."

As a result of the ruling, the judge also denied Minh Phu Group's motion for supplemental briefing that sought a limited remand to correct deficiencies on the record it said it only discovered at oral argument. Kelly ruled that a limited remand would not suffice given the inadequacy of CBP's explanations as to how its treatment of confidential information and the public summaries of such information complied with its regulations. The judge also extended the judicial protective order to the remand proceedings because, even though administrative access is not given to the parties during the original EAPA case, Kelly said that the "genie is out of the bottle."

(Ad Hoc Shrimp Trade Enforcement Committee v. United States, Slip Op. 22-53, CIT #21-00129, dated 05/23/22, Judge Claire Kelly. Attorneys: Nathaniel Rickard of Pickard Kentz for plaintiff Ad Hoc Shrimp Trade Enforcement Committee; Kara Westercamp for defendant U.S. government; Donald Cameron of Morris Manning for defendant-intervenors Minh Phu Seafood and MSeafood)