Senators Rob Portman, R-Ohio, and Sherrod Brown, D-Ohio, recently called on U.S. Customs and Border Protection to toughen regulations on its investigations of antidumping and countervailing duty order evasion. CBP published interim final regulations to implement its expanded role on this issue under the Enforce and Protect Act (part of the Trade Facilitation and Trade Enforcement Act) in August 2016 and recently pushed back to November the date by which it anticipates issuing a final rule.

Under CBP’s interim regulations any interested party, including competing importers and federal government agencies, may submit allegations that AD/CV duties are being evaded; e.g., through misrepresentation of the goods’ true country of origin, false or incorrect shipping and entry documentation, or misreporting of the goods’ physical characteristics. CBP has broad authority to conduct investigations of these claims and can impose initial remedial measures that could interrupt a supply chain in as little as 90 days. Any final determination of evasion may be met with not only AD/CV duties but also other enforcement measures such as civil or criminal investigations.

However, the two senators asserted that the interim rule “is inconsistent with Congress’ intent and falls short of what is needed to make the duty evasion process more transparent, timely, and accessible to stakeholders.” They therefore urged CBP to issue a revised rule that makes the following changes.

- adds an administrative protective order process to protect confidential information from public disclosure while also ensuring that the legal representatives of interested parties can view the data upon which CBP will base its determinations

- expands the range of entities that may participate in a duty evasion investigation, which is currently limited to the filer of the allegation and the alleged evader, to include foreign manufacturers, U.S. importers, U.S. manufacturers or producers, unions or groups of workers, and trade or business associations

- rescinds the requirement for an allegation to include the name and address of the accused importer, as the importer’s identity is often unknown and mandating its inclusion “will significantly limit the number of duty evasion cases that can be successfully filed”

- adopts disclosure standards that require CBP to publicly announce when key steps in an investigation are made, despite the fact that EAPA did not include specific requirements for such disclosures, because CBP’s infrequent notifications have made it difficult for interested parties to follow the status of investigations

- clarifies that CBP will comply (not “strive to ensure compliance”) with the EAPA’s deadlines for completing investigations (300 calendar days after initiation, with a possible extension of up to 60 days)

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