EAPA Petitioner Blasts CBP's Failure in Explaining Its Treatment of Confidential Information

The case concerns an Enforce and Protect Act investigation on frozen warmwater shrimp from India. In the case, the shrimp petitioner group argued that a decision from CBP's Office of Regulations and Rulings to not find evasion lacked backing from 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).

In an opinion in the case, the trade court ruled that CBP failed to provide adequate public summaries of the confidential information, ordering the agency to explain how it evaluated the sufficiency of public summarization and the inability of Minh Phu to summarize its confidential submissions. CBP said that on remand it complied with the court's order by getting public summaries from all the parties, including Minh Phu, for all their confidential information (see 2211220055). The agency added, though, that it is not allowed to disclose confidential information since neither the statute nor regulations provide for a mechanism for disclosure of this information.

Commenting on the remand results, the shrimp committee asked ORR to address the court's remand instructions, which told the agency to review the grant of confidential treatment to certain information. This information included the location of the sale that included India-origin shrimp that evaded antiduming duty deposits and the amount of India-origin shrimp contained in that sale. ORR said the destination of the sale "caused confusion" since the employee at the time didn't know that the location was part of the U.S. customs territory. The committee argued that there was no basis for treating this information as confidential.

"Because ORR’s actions on remand failed to provide any reasoned explanation for its treatment of confidential information or for the public summarization of such information, the ORR Remand Results should be remanded to ORR once again 'for reconsideration or further explanation regarding confidential treatment and public summarization of allegedly confidential information,'" the brief said.

The shrimp petitioner group also argued that record evidence shows that evasion occurred. "In its affirmative evasion determination, TRLED appropriately focused on the weaknesses in the internal control systems described by Minh Phu," the plaintiff said. "These weaknesses are evident throughout the entirety of the administrative record and Minh Phu has been incapable of identifying verifiable procedures that prevent the use of Indian-origin shrimp in its production for U.S. sales. By forgiving documented evasion on this record, ORR facilitates future evasion by Minh Phu and other producers who maintain fundamentally deficient internal control systems. As this outcome is inconsistent with the requirements of the statute, ORR’s remand redetermination must, once again, be remanded for further consideration."