Interim EAPA Regulations Allow CBP Too Much Leeway for Investigation Timing, Kelley Drye Says
CBP allowed itself more discretion than statutorily allowed for deciding when to begin an investigation following submission of an antidumping or countervailing duty evasion allegation, law firm Kelley Drye said in comments to CBP (here). The firm submitted the comments as part of CBP's request for comments on its interim regulations implementing the Enforce and Protect Act provisions (see 1608190014). The interim rule gives CBP 15 days to decide whether to begin an investigation after the "date of receipt," which effectively "permits the agency an unlimited, and undefined, period of time to initiate an investigation," Kelley Drye said.
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CBP's interim rule strays from the congressional intent within EAPA, the firm said. The law specifies that CBP has to determine whether to begin an investigation 15 days after "receiving an allegation," Kelley Drye said in the filing. The agency defined "date of receipt" as "the date on which CBP provides an acknowledgement of receipt of an allegation containing all the information and certifications required." That results in a "date that is entirely within the control of CBP pursuant to its interim regulations rather than the date the allegation is first in CBP's possession as the statute requires," it said. "Indeed, this definition runs counter to the plain language of the statute."
CBP should instead initiate an investigation within 15 days of receiving "a properly filed allegation if the standard for initiation is met," the firm said. Otherwise, CBP should specify the exact number of days -- no more than two days -- "with which it is permitted to issue an acknowledgement of receipt and control number to the party making the allegation," it said. The agency recently released information on its first two actions taken in response to EAPA allegations (see 1612190004). While CBP extended the comment due date to Dec. 20 (see 1610200012), several comments were filed early (see 1610170012, 1610240014, 1610260026 and 1611210009).
The interim rules also create some potential judicial review issues for appeals to the Court of International Trade, the firm said. "The regulations create a Catch-22 for a party that wishes to exercise its statutory right to appeal," it said. "The regulations do not provide for any mechanism by which parties can review confidential information submitted during the course of a proceeding." That restriction means "a party to the investigation that has standing to appeal would not have complete knowledge of the basis for CBP's determination of evasion." This also would make it more difficult to satisfy requirements for a temporary restraining order, "particularly the party's likelihood of success on the merits," to prevent liquidation of entries subject to the investigation, Kelley Drye said. The rule should also clarify that CIT is the only venue for judicial review, it said.