On March 18, 2024, U.S. Customs and Border Protection (CBP) published a final rule to implement procedures to investigate claims of evasion of antidumping and countervailing duty (AD/CVD) orders in accordance with Title IV of the Trade Facilitation and Trade Enforcement Act of 2015 (known as the Enforce and Protect Act or EAPA). This final rule will be effective on April 17, 2024.
With the passage of the EAPA, CBP was required to establish a formal process to investigate allegations of evasion of AD/CVD orders. In August 2016, CBP published an interim final rule establishing procedures for such investigations and allowed for public comment. In operating under the interim rules in conducting investigations, CBP notes in this final rule that it “has gained considerable expertise processing EAPA allegations and has continued to ensure that EAPA proceedings are transparent and that all parties are afforded an opportunity for full participation and engagement during the investigation.” This final rule adopts the 2016 interim rules with several modifications.
The final rule addresses numerous submitted public comments involving various aspects of the EAPA process, from the initiation of an investigation to the administrative review of a determination as to evasion. In doing so, CBP has included some clarifications where needed “to ensure a transparent investigation process.” This includes various revisions under 19 C.F.R. § 165.1 to clarify and update some of the existing definitions and to add definitions.
Notably, the final rule addresses the July 2023 U.S. Court of Appeals of the Federal Circuit decision in Royal Brush Mfg. v. United States (Fed. Cir. 2023) concerning the issuance of an administrative protective order (APO) for the disclosure of business confidential information during an EAPA investigation. For additional details on this court decision, see Thompson Hine Update of August 2, 2023. CBP has amended 19 C.F.R. § 165.4 and added language stating that if the requirements are satisfied and the information is privileged or confidential in accordance with 5 U.S.C. § 552(b)(4), CBP will grant business confidential treatment and issue an APO. This will likely allow counsel of interested parties granted access under the APO to view all the business confidential information on the record and not only the business confidential information of their own clients. CBP notes in this final rule that it will publish guidance to provide additional information on this new APO process and indicated that it is also considering whether to initiate a separate rulemaking for purposes of further codifying an APO process.
The final rule also provides information and data on the costs involved in EAPA investigations. In fiscal years 2020 and 2021, CBP notes that it assessed approximately $1.8 billion and $2.4 billion in AD/CVD duties, respectively. In fiscal year 2021, CBP notes that the EAPA process prevented the evasion of over $375 million in AD/CVD duties, and proposes that this amount will grow as domestic producers and legitimate importers make further use of the EAPA process.
In addition to finalizing EAPA investigation procedures with this final rule, CBP in April 2021 created an EAPA Portal, an electronic case management system in one centralized location for the filing, tracking, and adjudicating of EAPA allegations and the maintenance of the administrative records.