Effective April 17, 2024, U.S. Customs and Border Protection (“CBP”) has amended its regulations implementing the Enforce and Protect Act of 2015 (“EAPA”), a statute granting increased authority to investigate allegations of evasion of antidumping and countervailing duty (“AD/CVD”) orders. The amendments were issued in a final rule of March 18, 2024, and they are the first since CBP issued interim regulations following EAPA’s enactment.
One of the most anticipated amendments is that CBP will now issue administrative protective orders (“APOs) granting parties access to business confidential information in EAPA investigations. The change follows the Federal Circuit’s decision in the Royal Brush case last summer. As described in a prior post, that decision held that CBP has inherent authority to use APOs even though EAPA does not explicitly provide for them, and that CBP violates importers’ due process rights when it denies access to confidential information used against them in EAPA determinations. The final rule states that additional guidance on the new APO process is forthcoming, and that CBP may initiate separate rulemaking to further codify the process.
Other amendments include formalizing the EAPA Portal through which allegations are made, streamlining investigation procedures, including maintenance and access to the administrative record through the EAPA Portal, and revising EAPA’s verification process. CBP’s final rule also provides numerous clarifications, including with respect to the process by which it makes referrals to the Department of Commerce (“Commerce”) to determine whether merchandise described in an EAPA allegation is within the scope of an AD/CVD order, as well as the interaction between EAPA investigations and CBP’s penalty provisions.
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