Improvements Sought in Evasion Regulations

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By Rossella Brevetti

Law firms and organizations representing U.S. domestic industries presented U.S. Customs and Border Protection with a laundry list of suggestions for improving interim regulations aimed at cracking down on trade cheats.

The Committee on Pipe & Tube Imports (CPTI), representing U.S. steel pipe, tube and fittings producers on trade and competition issues, said in a comment letter that Customs should amend the regulations to remove certain barriers it identified to launching duty evasion investigations.

CPTI and other commenters also said authorized individuals should be given access to confidential information under an administrative protective order. Without this, the ability of interested parties such as importers to defend their interests would be compromised, commenters said.

The comments were among several recently posted by the agency on its interim regulations implementing provisions of the Enforce and Protect Act of 2015, contained in a wide-ranging customs bill (Pub. L. No. 114-125).

The interim regulations established procedures for Customs to investigate claims of evasion of dumping and anti-subsidy duties. When the agency published the interim regulations Oct. 21, it said it would consider comments in formulating the final regulations.

CPTI said the interim regulations contravene legislative intent by limiting allegations that may be investigated to those where the importer is known. Domestic producers won't always know the importer who is responsible for duty evasion, the letter said.

Further, the interim regulations limit allegations to those involving entries “within one year before the receipt of an allegation.” There is no statutory support for this requirement, the letter said. The CPTI also said Customs should make several other changes to the interim regulations, including improving procedural deadlines and creating an administrative protective order procedure.

Administrative Protective Order

Other comments also called for an administrative protective order procedure, which would allow authorized representatives of private parties access to confidential information.

Among these comments, a joint letter from the Coalition to Enforce Antidumping and Countervailing Duty Orders, Aluminum Extruders Council, American Wire Producers Association and Diamond Sawblade Manufacturers Coalition said protective orders allow interested parties to fully participate and engage in the proceedings based on a common set of information. Without protective orders, Customs won't be able to benefit from affected industries' input on information collected during an investigation. “The lack of protective orders will prejudice all parties. Even the most comprehensive summary of confidential information is still a summary,” the letter said.

Wiley Rein LLP, a Washington, D.C.-based law firm representing domestic steel, solar, lined paper, diamond sawblades and heavy forged hand tools industries in unfair trade proceedings, said lack of a protective order procedure is likely to complicate the investigative process and make it far less effective. “In the absence of access to information filed by other parties, each interested party's ability to represent its interests will be compromised. Importers may be left unaware of the bases for the allegations filed against them; likewise, allegers may be left unaware of the full nature of importers' responses,” the letter said.

Customs should ensure that there is a publicly searchable database of public filings in evasion investigations, Wiley Rein continued. At a minimum, the final regulations should explicitly provide for public notice of the initiation of investigations, the imposition of any interim measures and the final results of investigations, the letter said. The interim regulations' requirement that allegations name a specific importer will significantly reduce the utility of the process, the letter said. Petitioning industries rarely have access to information allowing them to link a given importer to a particular shipment of goods, Wiley Rein told Customs. Trade attorneys Alan H. Price, Timothy C. Brightbill and Maureen E. Thorson signed the Wiley Rein letter.

Relevant, Responsive Information

The Committee to Support U.S. Trade Laws, an organization comprised of U.S. companies, trade associations and workers, also said lack of an administrative protective order process will complicate all parties' ability to provide Customs with relevant and responsive information and to make useful arguments supporting their positions.

The interim regulations provide that allegations should be premised on entries made one year or less before receipt of the allegation, Washington-based law firm Stewart & Stewart said. The Stewart & Stewart letter said the one-year limitation should be removed or that a longer period should be adopted. Stewart & Stewart represents U.S. manufacturers and trade unions in unfair trade proceedings.

Among other issues, National Fisheries Institute (NFI) Vice President Government Relations Robert DeHaan said NFI is concerned that Customs would provide assistance to parties wishing to submit an evasion allegation. The interim regulations authorize Customs to provide “technical assistance and guidance for the preparation of an allegation of evasion and its submission to CBP.” Companies should be responsible for meeting filing requirements, DeHaan said. “If the allegation is improperly prepared or submitted, then that is the fault of the complaining party, and not the responsibility of CBP,” he said.

To contact the reporter on this story: Rossella Brevetti in Washington at

To contact the editor responsible for this story: Jerome Ashton at

For More Information

Comments on the regulations (Docket ID No. USCBP-2016-0053) are available at

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