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CBP Defends Treatment of Confidential Information in Shrimp EAPA Case at CIT

CBP adhered to the Court of International Trade's order by complying with the requirement to provide public summaries of confidential information in an Enforce and Protect Act case and reviewing the entire record transmitted from one offce of CBP to another, the government argued in a Feb. 2 reply brief. Responding to arguments from the Ad Hoc Shrimp Trade Enforcement Committee over the use of public summaries to protect certain confidential information, the U.S. said that neither the EAPA statute, CBP's regulations nor the court's remand order permits or requires CBP to make "substantive" confidential information public (Ad Hoc Shrimp Trade Enforcement Committee v. United States, CIT # 21-00129).

The case concerns an EAPA investigation on frozen warmwater shrimp from India. In the case, the shrimp petitioner group challenged CBP's Office of Regulations and Rulings finding of no evasion, and claimed 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).

In comments on the remand, AHSTEC argued that CBP did not give a specific enough reason for continuing to keep the location of the sale and the treatment of the volume of the sale as confidential. The plaintiff also claimed that an error in which ORR redacted the volume of a shipment but failed to redact it in the remand results means that AHSTEC can longer even quote from its remand comments without disclosing confidential information. "These arguments do not pass muster," DOJ said in response.

On the first point, DOJ said that nothing requires it to make confidential information public. "Notably, AHSTEC does not argue that the destination of the single shipment or the volume of the shipment is not business proprietary information, merely that CBP 'inadequately' addressed its arguments why this information should remain confidential," the brief said. "Neither does AHSTEC argue that the public summaries were otherwise inadequate. Moreover, AHSTEC does not claim, nor can it, that it was harmed with the volume of the shrimp and the destination kept confidential because it had access to all proprietary information pursuant to the" judicial protective order. "Merely because it prefers that that information be publicly released, does not confer upon it the right to demand that another party’s confidential information be made public," DOJ said.

As for the mistaken redaction of the volume of the shipment in the remand results, DOJ said that this does not undermine the remand determination since the mishap was harmless. The brief said that CBP's bracketing mistake "is not evidence that fairly detracts from CBP’s conclusion because its reasoning and conclusions would not be affected by the one instance of alleged over-bracketing."