AD/CVD Evasion Alleger Has No Right to Confidential Information, DOJ and Respondent Tell CIT

CBP was well within its rights to reverse its finding that an importer evaded antidumping duties on frozen warmwater shrimp from India, both the defendant-intervenors, Minh Phu Seafood Joint Stock Co. and MSeafood Corp., and the Department of Justice told the Court of International Trade in a pair of reply briefs. Responding to a motion for judgment from the Ad Hoc Shrimp Trade and Enforcement Committee, both briefs also argued that the petitioner group had no right to the business confidential information in the investigation, calling AHSTEC's arguments "borderline irresponsible" (Ad Hoc Shrimp Trade Enforcement Committee v. United States, CIT #21-00129).

In its complaint, AHSTEC claims, among other things, that CBP should have compelled Minh Phu to hand over 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. "In EAPA cases, public versions of submissions must contain public summaries that permit a 'reasonable understanding of the substance of the information,'" the brief said. "This does not require disclosure of any information, numbers, calculations, processes, or other data that could provide another party with access to a company's records."

During the investigation, Minh Phu gave CBP thousands of pages of summaries, public narrative responses, and explanations that allowed for a reasonable understanding of the withheld information, the defendant-intervenors said. "Indeed, throughout the proceeding, AHSTEC demonstrated in its comments that it understood the substance of the information," the brief said. "Moreover, pursuant to the statutory scheme governing EAPA investigations, AHSTEC is simply not entitled to view more comprehensive confidential information." DOJ echoed these sentiments, holding that AHSTEC simply fails to show that it has a constitutional due process right to access other parties' confidential information.

Contrary to what AHSTEC would have the court believe, there is no evidence that the Office of Regulations and Rulings (ORR) failed to review the record or mischaracterize the evidence in the investigation, the defendant-intervenors argued. "In its brief, AHSTEC merely supposes that ORR did not review the entire record," the brief said. "This allegation is borderline irresponsible." The defendant-intervenors held that government officials are entitled to a presumption that they properly did their jobs. So, when the plaintiff merely pointed out that some documents were inadvertently omitted from the initial record rather than offer actual evidence of a failure to review the record, the plaintiff nearly acted irresponsibly, the brief said.

"This is neither the first nor the last time that this has occurred in cases before this Court," the defendant-intervenors said. "In addition, while AHSTEC takes offense at the fact that ORR focused on and cited primarily to a specific subset of documents on the record, this is also not clear evidence that ORR failed to discharge its duties. Instead, it simply indicates that ORR focused on the documents it found most relevant to its Determination, as it is reasonably allowed to do. There is simply no evidence to support AHSTEC's claims of dereliction of duty."