CBP Continues to Not Find Evasion on Remand in Shrimp EAPA Case

CBP in a Nov. 21 remand submission to the Court of International Trade continued to find that MSeafood Corporation did not evade antidumping duties by transshipping Indian shrimp through Vietnam. The agency said it believes it complied with the trade court's remand order by having CBP's Trade Remedy & Law Enforcement Directorate transmit all documents that were "inadvertently omitted" from the record to the agency's Office of Regulations and Rulings, and placing a revised public version of business confidential information (BC) on the record (Ad Hoc Shrimp Trade Enforcement Committee v. United States, CIT #21-00129).

The case, brought by the Ad Hoc Shrimp Trade Enforcement Committee (AHSTEC), concerns an Enforce and Protect Act investigation on frozen warmwater shrimp from India. In the case, AHSTEC argued that the ORR decision to not find evasion lacked backing from substantial evidence, that ORR based its review on an incomplete review of the record and that TRLED 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 CIT's Judge Claire 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 (see 2205230040). During the investigation, TRLED found that MSeafood evaded the AD duties while ORR said that it didn't. On remand, CBP said that TRLED submitted all the missing documents to ORR.

These documents were "(1) sales reports; (2) Requests for Information (CBP Forms 28) sent to importer MSeafood and to manufacturer Minh Phu Joint Seafood Joint Stock Company; (3) inventories of food for raising shrimp and for shrimp seed; (4) lists of employees, direct labor working hours, and payrolls; (5) AHSTEC Part 165 Investigation submission of new factual information (NFI); and (6) extension requests and responses from TRLED." After considering these documents, ORR still found that MSeafood did not evade the antidumping duties.

Kelly also ruled that CBP failed to provide adequate public summaries of the BCI, 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. The agency added, though, that it is not allowed to disclose to BCI since neither the statute nor regulations provide for a mechanism for disclosure of this information.

"As part of the remand process, CBP complied with its regulations by requiring the parties to submit revised business confidential and public versions of administrative record documents that complied with 19 C.F.R. § 165.4(a), allowing parties to submit information they would have submitted if they had access to the revised public versions during the original investigation, and permitting the parties to submit rebuttal information and written arguments based on the revised versions," CBP said. "On remand, CBP finds that the parties complied with the provisions of 19 C.F.R. § 165.4(a)(1) concerning the treatment of business confidential information."

In comments submitted to CBP on the remand, AHSTEC said that the revised versions of Minh Phu's submissions were "still heavily redacted," though it acknowledged that the exporter provided public summaries.