In a recent decision the Court of International Trade ruled against two U.S. Customs and Border Protection regulations governing the timing of Enforce and Protect Act investigations, which cover evasion of antidumping and countervailing duty orders.
Under 19 USC 1517(b)(1), CBP must initiate an EAPA investigation within 15 business days of receiving an allegation of evasion. However, CBP’s regulation at 19 CFR 165.12 effectively grants the agency broad discretion to delay the start of this 15-day clock by defining the date of receipt as the date CBP issues an acknowledgment of receipt rather than the date the allegation is submitted. The CIT concluded that Congress clearly intended EAPA investigations to proceed swiftly, that the statutory language regarding the date of initiation is mandatory, and that CBP’s regulation is therefore not in accordance with the law.
The plaintiff also challenged CBP’s regulation in 19 CFR 165.15(d)(1), which allows the agency to provide notice to all parties to an EAPA investigation no later than 95 days after a decision to initiate has been made and no later than five business days after interim measures have been imposed. While the EAPA statute is silent on the timing of such notifications, the CIT noted that the Court of Appeals for the Federal Circuit has recognized that importers participating in EAPA proceedings have a procedural due process right to notice and a meaningful opportunity to be heard; i.e., before a temporary deprivation (like CBP’s imposition of significant duties in this case) takes place. The CIT found that 19 CFR 165.15(d)(1) is arbitrary, capricious, and not in accordance with the law because it does not provide such opportunities.
However, the CIT did not vacate CBP’s EAPA proceeding in this case, which it said would be “too strict a remedy.” Instead, the court ordered CBP to rescind interim and final enforcement measures on entries entered after the date the investigation should have begun.
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