Investigation of Claims of Evasion of Antidumping and Countervailing Duties, 19239-19262 [2024-04713]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• U.S. Customs and Border Protection
• DEPARTMENT OF THE TREASURY

[Federal Register Volume 89, Number 53 (Monday, March 18, 2024)]
[Rules and Regulations]
[Pages 19239-19262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04713]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Part 165

[USCBP-2016-0053; CBP Dec. 24-04]
RIN 1515-AE10


Investigation of Claims of Evasion of Antidumping and 
Countervailing Duties

AGENCY: U.S. Customs and Border Protection, Department of Homeland 
Security; Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document adopts as final, with changes, interim 
amendments to the U.S. Customs and Border Protection (CBP) regulations 
that were published in the Federal Register on August 22, 2016, as CBP 
Dec. 16-11, which implemented procedures to investigate claims of 
evasion of antidumping and countervailing duty (AD/CVD) orders in 
accordance with section 421 of the Trade Facilitation and Trade 
Enforcement Act of 2015. This document also announces that CBP deployed 
a case management system in April 2021, which CBP and the public use 
for filing, tracking, and adjudicating allegations of evasion of AD/CVD 
orders.

DATES: Effective on April 17, 2024.

FOR FURTHER INFORMATION CONTACT: Victoria Cho, Chief, EAPA 
Investigations Branch, Office of Trade, U.S. Customs and Border 
Protection, (202) 945-7900, or [email protected], or Kristina 
Horgan, Supervisory International Trade Analyst, EAPA Investigations 
Branch, Office of Trade, U.S. Customs and Border Protection, (202) 897-
9399, or [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Enforce and Protect Act of 2015
    B. Interim Final Rule
    C. Operations
II. Discussion of Comments
    A. Subpart A--General Provisions
    B. Subpart B--Initiation of Investigations
    C. Subpart C--Investigation Procedures
    D. Subpart D--Administrative Review of Determinations
    E. Other Comments
III. Technical Changes and Clarifications to the Interim Regulations
IV. Conclusion
V. Statutory and Regulatory Requirements
    A. Executive Orders 13563 and 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
Signing Authority
List of Subjects
Amendments to the Regulations

I. Background

A. Enforce and Protect Act of 2015

    On February 24, 2016, President Obama signed into law the Trade 
Facilitation and Trade Enforcement Act of 2015 (TFTEA), which contains 
Title IV--Prevention of Evasion of Antidumping and Countervailing Duty 
Orders (short title ``Enforce and Protect Act of 2015'' or ``EAPA'') 
(Pub. L. 114-125, 130 Stat. 122, 155 (Feb. 24, 2016) (19 U.S.C. 4301 
note)). EAPA established a formal process for U.S. Customs and Border 
Protection (CBP) to investigate allegations of evasion of antidumping 
and countervailing duty (AD/CVD) orders. Section 421 of TFTEA amended 
the Tariff Act of 1930 by establishing a new framework for CBP to 
investigate allegations of evasion of AD/CVD orders, under newly 
created section 517 (``Procedures for Investigating Claims of Evasion 
of Antidumping and Countervailing Duty Orders''), and required that 
regulations be prescribed as necessary, and provisions be implemented 
within 180 days of TFTEA's enactment. See 19 U.S.C. 1517.

B. Interim Final Rule

    On August 22, 2016, CBP published an interim final rule (the 
``IFR'') (CBP Dec. 16-11) in the Federal Register (81 FR 56477), 
setting forth procedures for the investigation of claims of evasion of 
antidumping and countervailing duty orders in a new part 165 in title 
19 of the Code of Federal Regulations (19 CFR part 165), with a 60-day 
public comment period. The IFR became effective on August 22, 2016. On 
September 8, 2016, CBP published a technical correction in the Federal 
Register (81 FR 62004) to correct language in the definition of ``evade 
or evasion'' in 19 CFR 165.1, by adding a comma that was inadvertently 
omitted. On October 21, 2016, CBP published an extension of the comment 
period in the

[[Page 19240]]

Federal Register (81 FR 72692), providing an additional 60 days for 
interested persons to submit comments in response to the IFR in order 
to have as much public participation as possible in the formulation of 
the final rule.
Operations
    The first EAPA allegation was submitted to CBP in September 2016, 
approximately one month after the interim regulations became effective. 
Between September 2016 and the end of fiscal year 2021, CBP's Trade 
Remedy Law Enforcement Directorate (TRLED) has processed approximately 
490 EAPA allegations and initiated 179 investigations; in addition, CBP 
has processed 39 requests for administrative review and issued 19 final 
administrative determinations.
    In these past few years, CBP has gained considerable expertise 
processing EAPA allegations and has continued to ensure that EAPA 
proceedings are transparent and that all parties are afforded an 
opportunity for full participation and engagement during the 
investigation. To enhance convenience and provide further transparency, 
on April 1, 2021, CBP deployed the EAPA Portal, an electronic case 
management system for the filing, tracking, and adjudicating of EAPA 
allegations, and maintaining an administrative record, in one 
centralized location, which may be accessed on CBP's website at https://www.cbp.gov/trade/trade-enforcement/tftea/eapa when clicking on the 
field titled ``Filing an EAPA Allegation.'' \1\
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    \1\ Trade users must submit an EAPA allegation through the EAPA 
Portal. The EAPA Portal can be reached in two ways. First, through 
the Trade Violation Reporting (TVR) system, also known as e-
Allegations, used for reporting various trade violations. Trade 
users can access e-Allegations at https://eallegations.cbp.gov/s and 
submit an EAPA allegation by clicking on the field entitled ``Report 
Enforce and Protect Act Violations.'' Second, trade users may also 
access the EAPA Portal via the EAPA website at https://cbp.gov/trade/trade-enforcement/tftea/eapa by clicking the field titled 
``Filing an EAPA Allegation.'' To submit an EAPA allegation in the 
EAPA Portal, trade users must create a CBP user account first, at 
https://www.login.gov/create-an-account. As new technology becomes 
available, CBP may replace the current process or utilize additional 
methods for accepting EAPA allegations or requests for 
investigations from Federal agencies.
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    In the EAPA Portal, parties to the investigation may view decisions 
and public administrative record documents (including public versions 
of documents associated with the investigation), check the status of 
the investigation, and submit factual information, written arguments, 
and documents relevant to the investigation. The EAPA Portal also sends 
notifications to the parties to the investigation with deadline 
reminders and actions to be taken. In addition, when this final rule is 
effective, an alleger will be able to withdraw an allegation and a 
Federal agency will be able to withdraw a request for an investigation 
(referral) in the EAPA Portal.\2\ With a new case management system in 
place, and CBP's extensive experience with the current EAPA process, 
CBP is now ready to finalize the interim regulations, with several 
modifications as described below.
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    \2\ Guidance for trade users regarding the EAPA Portal, and 
additional resources, such as a quick reference guide and a recorded 
demonstration on how to access and navigate within the EAPA Portal, 
can be found on CBP's website at https://www.cbp.gov/trade/trade-enforcement/tftea/eapa when clicking on the field titled ``Filing an 
EAPA Allegation'' at the bottom of the page.
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II. Discussion of Comments

    Although the interim regulatory amendments were promulgated without 
prior public notice and comment procedures pursuant to the agency 
organization, procedure, and practice exemption in 5 U.S.C. 553(b)(A), 
the IFR provided for the submission of public comments that would be 
considered by CBP before adopting the interim amendments as final. The 
60-day public comment period was set to end on October 21, 2016, but 
was extended that day for an additional 60 days. The extended comment 
period closed on December 20, 2016.
    CBP received 17 submissions in response to the publication of the 
interim regulations, each of them including comments on multiple 
topics. The comments involved various aspects of the EAPA process, from 
the initiation of an investigation to the administrative review of a 
determination as to evasion. CBP reviewed all public comments received 
in response to the interim final rule and made some changes to the 
interim regulations based on those comments. In addition, CBP has 
included some clarifications where needed to ensure a transparent 
investigation process. A description of the public comments received, 
along with CBP's analysis, are set forth below. The comments and 
responses have been grouped together by subpart of the EAPA 
regulations, where appropriate.
General Provisions (Subpart A)
    Subpart A (General Provisions) provides definitions of terms 
relevant to the EAPA process, specifies the entries that may be the 
subject of an allegation, identifies when a power of attorney is 
required, and addresses the submission of business confidential 
information. This subpart further sets forth the means by which CBP may 
obtain information for EAPA proceedings, addresses the circumstances 
when CBP may apply adverse inferences in an EAPA investigation and in 
an administrative review, and details the reporting responsibilities in 
case of public health and safety issues associated with an 
investigation. Multiple comments were received regarding subpart A, 
dealing with questions on the various definitions in Sec.  165.1, and 
the submission requirements in Sec. Sec.  165.3 and 165.5. Some 
commenters requested clarification on certain aspects of the 
application of adverse inferences in case of a party's failure to 
comply with CBP's request for information.
    Comment: Multiple commenters stated that CBP should not require the 
identification of an importer as a condition for initiation of an 
investigation. The commenters noted that Congress did not require the 
identification of an importer of record and that by doing so, CBP could 
be encouraging the proliferation of shell or paper companies to act as 
importers. The commenters further stated that TFTEA instructed CBP to 
investigate any allegation that reasonably suggests that covered 
merchandise has been entered into the customs territory of the United 
States through evasion. Therefore, the commenters suggest that CBP 
should remove the phrase ``by an importer'' in Sec.  165.1 in the 
``allegation'' definition, and, for the same reason, remove references 
to the identification of an importer in various sections of part 165, 
such as Sec. Sec.  165.4(c)(3), 165.11(b)(3) and 165.14(b)(1). One 
commenter referenced the Trade Secrets Act (18 U.S.C. 1905) and the 
statute's goal to bar against unauthorized disclosure by government 
officials of confidential information received in the course of their 
employment or official duties, which could include the identity of an 
importer. The commenter argued that CBP may protect the identity of an 
importer without having to narrow the scope of the investigation by 
simply not requiring the specific identification of an importer of 
record in an allegation.
    Response: CBP disagrees with the commenters' suggestion to remove 
language in the regulations that requires that an alleger provide the 
identity of the importer against whom an allegation is filed. The text 
of 19 U.S.C. 1517(b)(2) refers to ``. . . an allegation that a person 
has entered covered merchandise . . .'' (emphasis added), which 
requires the specific identification of an importer. Removing the 
reference to ``a person,'' i.e., an importer, in the regulations, would 
require a statutory change prior to making a change in the regulation.

[[Page 19241]]

Furthermore, CBP considers the requirements in the regulations to be 
consistent with the Trade Secrets Act. While the Trade Secrets Act 
protects against the unauthorized disclosure of confidential 
information, CBP does not consider the identity of the importer to be 
confidential. In fact, Sec.  165.4(c)(3) specifically states that the 
name and address of an importer against whom the allegation is brought 
is not protected as business confidential information.
    Comment: One commenter requested that an illustrative list of 
examples of evasion schemes be included in the definition of ``evade or 
evasion'' in Sec.  165.1.
    Response: CBP agrees with the commenter that it would be helpful to 
add some examples of evasion to the definition, such as the 
transshipment, misclassification and/or undervaluation of covered 
merchandise. Accordingly, CBP has added such language at the end of the 
definition of ``evade or evasion'' in Sec.  165.1.
    Comment: One commenter expressed concern that the EAPA provisions 
would be misused by domestic interested parties or competitors in an 
effort to disrupt the supply chains of foreign producers and U.S. 
importers. Another commenter raised the concern that the EAPA 
provisions have the potential to brand innocent importers as evaders of 
the law, regardless of their good faith efforts to comply with AD/CVD 
orders.
    Response: While CBP understands these concerns, CBP carefully 
investigates and reviews the evidence, in accordance with all 
applicable legal requirements, at each stage of the process before 
making a determination as to evasion.
    Comment: Multiple commenters asked CBP to expand the list of 
interested parties who are allowed to participate in EAPA 
investigations. The commenters argued that the limitation in the 
interim regulations deprives CBP of the resources, experience, and 
insights from other domestic producers or importers, especially in 
cases when Federal agencies request an investigation, such that the 
domestic industry affected by the evasion would have no right to 
provide information or otherwise participate in the investigation. One 
of the commenters suggested to amend the regulation to include in an 
EAPA investigation, whether initiated pursuant to the filing of an 
allegation by an interested party or pursuant to a request by a Federal 
agency, ``any other party meeting the definition of ``interested 
party'' in Sec.  165.1 that submits an entry of appearance to CBP in a 
timely fashion,'' in addition to the interested party who filed an 
allegation and the importer who allegedly engaged in evasion. Two other 
commenters stated that CBP should expand the regulatory definition of 
``interested party'' to align with the broader statutory definition of 
the ``United States importer'' in section 517(a)(6)(A)(i) of the Tariff 
Act of 1930.
    Response: CBP disagrees with the commenters' requests to expand the 
list of interested parties who are allowed to participate in EAPA 
investigations. The primary focus of CBP's determination in an EAPA 
investigation is narrow, i.e., whether evasion, as defined by 19 U.S.C. 
1517(a)(5), occurred or not. CBP's current EAPA process does not allow 
for interested parties other than the alleger to participate during the 
first 90 days of an investigation.
    Moreover, the regulatory definition of the term ``interested 
party'' aligns with the statutory definition. See 19 U.S.C. 
1517(a)(6)(A) and 19 CFR 165.1. Both provisions allow for interested 
parties to participate in an investigation by filing an allegation. The 
statutory definition for ``interested party'' includes, inter alia, the 
United States importer of covered merchandise. The regulatory 
definition of an ``interested party'' in Sec.  165.1, which is not 
limited to importers of record, but includes any importer of covered 
merchandise, including the party against whom the allegation is 
brought, is consistent with the statutory definition.
    Comment: One commenter suggested to limit the definition of the 
term ``importer'' to an importer of record of covered merchandise and 
amend the definition of ``interested party'' in Sec.  165.1 
accordingly. The commenter argued that CBP did not provide any reason 
for expanding the definition beyond the importer of record, and thus 
only the alleger and alleged evader should be included in the 
definition.
    Response: CBP disagrees with the commenter's definition of 
``importer.'' In current practice, allegations are usually made against 
importers of record of covered merchandise, in accordance with the 
statute. However, CBP has defined the term ``importer'' by regulation 
in 19 CFR 101.1 as the importer of record, the consignee, the actual 
owner of the merchandise, or the transferee of the merchandise, and CBP 
may initiate investigations against such parties if an allegation 
reasonably suggests that evasion is occurring.
    Comment: Multiple commenters asked for clarification of the 
interaction of the evasion provisions with the penalties provision 
(section 592 of the Tariff Act of 1930, as amended (19 U.S.C. 1592)), 
the impact of a prior disclosure pursuant to section 592(c)(4) on an 
EAPA investigation, and identification of appropriate cases involving 
AD/CVD orders where penalties would be contemplated and potentially 
assessed. One of the commenters opined that an EAPA investigation is 
not a section 592 investigation and cannot lead to a section 592 
penalties matter; thus, the investigation definition in Sec.  165.1 
should be deleted. Another commenter suggested that CBP clarify in 
Sec.  165.28(a) that CBP is not required to initiate any other actions, 
including a section 592 proceeding. Lastly, a commenter asked for the 
revision of Sec.  165.11 to expressly provide that the filing of an 
evasion allegation operates as a ``formal investigation'' to preclude 
the acceptance of a prior disclosure, with regard to the same set of 
facts, importer(s), entries and AD/CVD orders, under 19 U.S.C. 1592.
    Response: CBP welcomes the opportunity to provide some 
clarification in response to the comments received on the interaction 
between an EAPA investigation and section 592 actions, as well as the 
impact of a prior disclosure on an EAPA investigation. An importer may 
be precluded from filing a prior disclosure for violations discovered 
during the course of an EAPA investigation but may not be precluded 
from filing a prior disclosure for violations discovered outside of the 
course of the EAPA investigation. The determination of whether a prior 
disclosure is accepted requires a fact-specific assessment as to the 
importer(s), entries and AD/CVD order(s) involved. In addition, CBP 
disagrees with the commenter's request for a regulatory change to the 
``investigation'' definition in Sec.  165.1 as the definition is 
accurate and should not be removed. CBP retains the discretion to 
accept or reject a prior disclosure for any facts that were not 
discovered during the course of an EAPA investigation.
    Further, CBP does not agree with the amendment of Sec.  165.28(a), 
as one of the commenters suggested. CBP appreciates the opportunity to 
clarify that CBP is not required to initiate any other actions, 
including section 592 proceedings. If CBP finds that entries are 
already liquidated when an affirmative determination as to evasion is 
made, then CBP's recourse to recover the lost duties is to initiate a 
section 592 proceeding or any other appropriate action separate from 
the EAPA proceeding. If TRLED makes an affirmative determination of 
evasion, pursuant to Sec.  165.27, a Center of Excellence and Expertise 
(Center) will

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be directed to collect cash deposits and take other enforcement actions 
as necessary. TRLED may also refer the case to other components within 
CBP and partner government agencies (PGAs) to review the facts and 
perhaps assess a penalty, depending on the circumstances.
    Finally, CBP disagrees with the last commenter, that an EAPA 
investigation operates as a formal investigation and precludes prior 
disclosure under 19 U.S.C. 1592. The importer who is alleged to have 
engaged in evasion will have the burden to show that it is not aware of 
an ongoing investigation. If the importer is able to do so, and meets 
all other relevant criteria, then the importer may have the opportunity 
to file a prior disclosure with CBP.
    Comment: Multiple commenters stated that the one-year threshold for 
entries that may be the subject of an allegation is too narrow as it 
severely restricts the allegations that can be pursued, and thus should 
be eliminated. One of the commenters argued that there is no statutory 
support for this limitation. Another commenter suggested the 
application of a statute of limitations (SOL) that is consistent with 
the SOL for violations of section 592 of the Tariff Act of 1930, as 
amended, in order to provide interested parties with sufficient time to 
uncover evasion and prepare an allegation. See 19 U.S.C. 1621. Finally, 
one commenter expressed support for the regulation and claimed that 
only entries made within one year before receipt of an allegation may 
be the subject of an allegation.
    Response: CBP appreciates the comments but disagrees that CBP is 
limited to investigating entries of merchandise made within one year 
before the receipt of an allegation. As stated in the preamble of the 
IFR, CBP deemed a one-year period for an EAPA investigation appropriate 
as it would allow for a timely determination using current and readily 
available information, and prevent situations where CBP would encounter 
entries that were already liquidated, or importers that are no longer 
active. See 81 FR 56477, at 56479. Notwithstanding the above, the 
regulations provide CBP with the discretion to investigate other 
entries of such covered merchandise, and CBP will exercise such 
authority on a case-by-case basis. See 19 CFR 165.2.
    Comment: One commenter stated that Sec.  165.3 does not specify 
what action CBP will take if the required proof of execution of a power 
of attorney is missing.
    Response: CBP agrees with the commenter's statement and, 
accordingly, has added a new paragraph (f) in Sec.  165.3, clarifying 
that CBP will reject any submission, and not consider or place such 
submission on the administrative record, if a party has not provided 
proof of execution of a power of attorney to CBP, as required pursuant 
to the first sentence of paragraph (e) of Sec.  165.3, within five 
business days of an interested party's first submission during an 
investigation or administrative review. CBP further added language in 
the new paragraph (f), that CBP will reject any submission, and not 
consider or place such submission on the administrative record, if a 
party has not provided proof of authority to execute a power of 
attorney pursuant to paragraph (c) of Sec.  165.3 upon CBP's request.
    Comment: One commenter stated that CBP did not specify what action 
it may take if a submission fails to meet the form requirements of 
Sec.  165.5(b)(1), and thus proposed to add a paragraph (b)(4) to 
include the rejection of a submission as a consequence for failure to 
meet those requirements.
    Response: CBP welcomes the opportunity to clarify that CBP will 
reject a submission that does not fulfill the form requirements of 
Sec.  165.5(b)(1), and will not consider or place it on the 
administrative record. Accordingly, CBP added a new paragraph (b)(4) in 
Sec.  165.5 to reflect this clarification. For the same reasons, CBP 
amended Sec.  165.41(f) to clarify that CBP will reject a request for 
administrative review if the content requirements in paragraph (f) are 
not met.
    Comment: One commenter stated that it is unclear whether the person 
making a submission pursuant to Sec.  165.5(b)(2) can be the authorized 
representative of the party, the party itself, or both. The commenter 
stated that the final regulation should clarify who needs to sign each 
type of certification.
    Response: CBP disagrees with the commenter's statement. The interim 
regulation is clear as it reads ``on behalf of,'' allowing for an 
authorized representative, such as an attorney, in addition to the 
party itself to make the certification. Moreover, this has not been an 
issue in practice.
    Comment: One commenter expressed concern that adverse inferences 
may be imposed on a party if an importer complies with CBP's request, 
but the foreign supplier does not. The commenter requested 
clarification as to whether evasion could be found in the described 
scenario with regard to the foreign supplier, but not the importer, and 
what such a finding would mean in terms of the application of duties or 
other measures. Another commenter expressed a similar concern and asked 
for Sec.  165.5 to be amended to include a requirement that CBP notify 
the importer whenever CBP issues a questionnaire to a foreign supplier 
to give the importer the opportunity to leverage its relationship with 
the supplier to obtain the supplier's full cooperation and avoid 
adverse inferences.
    Response: A determination of evasion is based on an analysis of the 
record, including responses to requests for information by both the 
U.S. importer and foreign manufacturer. The scenario where one party 
cooperates to the best of its ability, and another does not, creates a 
difficult situation for CBP to conduct its analysis, and thus evasion 
could still be found, depending on the available information. CBP 
evaluates carefully on a case-by-case basis and may apply adverse 
inferences as to the party not acting to the best of its ability to 
cooperate with the investigation, in accordance with 19 U.S.C. 
1517(c)(3)(B). The consequences, if any, that flow from such a finding 
will vary on a case-by-case basis. With regard to the suggestion to 
include a notification requirement in Sec.  165.5, CBP provides the 
public versions of all documents, including questionnaires, to all 
parties to the investigation and does not believe that any additional 
notifications are necessary.
    Comment: Two commenters noted that the use of a party's behavior in 
a prior proceeding should not be an indicator for whether to apply 
adverse inferences in the current proceeding, as stated in Sec.  
165.6(b), arguing that only the party's behavior in the current 
proceeding should be relevant for adverse inferences. Another commenter 
asked CBP to amend paragraph (b) to clarify the distinction between the 
intent of paragraph (a) and paragraph (b) by stating that CBP may 
select from facts otherwise available, including information from a 
prior determination in another CBP investigation, when applying adverse 
inferences under paragraph (a).
    One of the commenters also stated that the way paragraph (c) of 
Sec.  165.6 is written, it unfairly applies adverse inferences even if 
the information sought is already on the record. According to the 
commenter, it should be irrelevant which party provided the information 
as long as the information was provided to CBP.
    Response: CBP disagrees; section 165.6, as written, accurately 
reflects the statutory language. Both the statute and the regulation 
distinguish between adverse inferences to be applied when a party fails 
to cooperate and comply with CBP's request for more information

[[Page 19243]]

in the current proceeding (Sec.  165.6(a) and section 412(b)(1)(A) of 
TFTEA), and adverse inferences to be applied based on a prior 
determination in another CBP proceeding, or any other available 
information (Sec.  165.6(b) and section 412(b)(2)(B) and (C) of TFTEA). 
However, to be clearer and avoid any confusion, CBP has revised Sec.  
165.6(b) so the regulatory language more closely resembles the 
statutory language in section 412(b)(2) of TFTEA, without making any 
changes to the substance of the language. In addition, CBP further 
amended Sec.  165.6(b) to clarify that CBP may only consider ``any 
other available information'' that has been placed on the 
administrative record for purposes of applying adverse inferences.
    CBP believes that when it comes to adverse inferences, the 
determination to be made is whether the party from whom CBP requested 
information provided the information. The fact that another party had 
already provided information to CBP does not relieve the party of its 
obligation to provide the requested information, as the other party's 
submission may have been incorrect or incomplete. Lastly, as to the 
commenter's unfairness argument, the regulations allow for due process 
via administrative review by CBP and judicial review by the U.S. Court 
of International Trade (CIT) in case an interested party believes that 
adverse inferences were inappropriately applied.
    Comment: One commenter talked about instances where CBP requests 
information from a foreign government and receives no response, and 
stated that, in such situations, CBP would need to examine the facts 
available on the record to determine how to address the failure to 
respond, and reach a determination based on those facts available.
    Response: CBP agrees as 19 U.S.C. 1517(c)(2)(a)(iv) and (c)(3) 
clearly state that CBP cannot apply adverse inferences as a result of 
failure of a foreign government to respond to a CBP information 
request. CBP will make a determination based on the facts available on 
the administrative record, which may include, among other things, 
adverse inferences made against other interested parties.
    Comment: One commenter stated that the ``to the best of its 
ability'' standard in Sec.  165.6(a) is vague and lacks a definition. 
The commenter argued that it is unclear as to what level of cooperation 
with CBP's information request is acceptable and what level is 
insufficient, making the regulatory language unfair.
    Response: CBP disagrees with the commenter's statement. CBP ensures 
that the request procedure is transparent to those parties involved in 
an EAPA investigation by providing all documents on the administrative 
record. Further, the parties to the investigation, which include the 
party filing the allegation and the importer, and the foreign producer 
or exporter of the covered merchandise, are given sufficient time 
during an EAPA investigation to gather and provide the requested 
information to CBP. CBP then carefully evaluates the information on a 
case-by-case basis to determine whether the party cooperated and 
complied with CBP's request to the best of its ability and takes into 
account the specific circumstances surrounding each request before 
deciding whether adverse inferences are appropriate. The regulations 
also provide for due process in the form of administrative review and 
judicial review in cases where the importer is of the opinion that the 
``to the best of its ability'' standard was met, but CBP nonetheless 
applied adverse inferences.

B. Initiation of Investigations (Subpart B)

    Subpart B (Initiation of Investigations) deals with the initiation 
of an investigation, such as the filing of an allegation by an 
interested party or a request for investigation (referral) by another 
Federal agency, specifies the date of receipt of an allegation, and 
discusses the consolidation of allegations, as well as referrals to the 
Department of Commerce (Commerce) to determine whether merchandise 
described in the allegation is properly within the scope of an AD/CVD 
order. Commenters submitted questions on the availability of technical 
assistance and guidance for small businesses and requested additional 
methods for withdrawal of allegations and requests from Federal 
agencies. CBP also received several comments surrounding the process of 
the consolidation of allegations, and CBP's notification procedures. 
Lastly, commenters asked for additional information about the timing of 
CBP's scope referral and Commerce's scope proceeding.
    Comment: While one commenter supported the requirement in Sec.  
165.11(e) for CBP to provide technical assistance and guidance to small 
businesses, another commenter was concerned with the provision and 
stated that CBP should not assist small businesses with the preparation 
and filing of an allegation. The commenter argued that it should be the 
filing party's responsibility to meet the filing requirements in order 
to maintain a fair and transparent investigation.
    Response: CBP appreciates the comments. Small businesses are 
entitled to technical assistance, upon request, from CBP if they 
satisfy the applicable standards set forth in 15 U.S.C. 632 and 13 CFR 
part 121. CBP notes that section 411(b)(4)(E) of TFTEA requires the 
provision of technical assistance and advice to eligible small 
businesses to prepare and submit an allegation. Furthermore, CBP 
encourages filings by small and medium businesses and continues to 
provide technical assistance to those businesses upon request.
    Comment: One commenter suggested that CBP include a paragraph (f) 
in Sec.  165.11, limiting communications with CBP to the parties to the 
investigation. The commenter asked CBP not to publicize the filing of 
an allegation or accept or respond to any unsolicited oral 
communication concerning the allegation or investigation from any 
person other than from a party to the investigation prior to a 
determination to not initiate an investigation under Sec.  165.15, or a 
determination as to evasion under Sec.  165.27(a).
    Response: CBP disagrees with the commenter's request to include a 
paragraph (f) in Sec.  165.11 that would limit communications to the 
parties to the investigation. CBP believes that the notice of 
initiation of an investigation, which includes facts and evidence from 
the submitted allegation, is the best time at which to notify all 
parties to the investigation, as well as the public, in an effort to 
make the EAPA proceedings as transparent as possible. If, and when, 
unsolicited information is submitted to CBP regarding an allegation or 
investigation, CBP has the discretion to decide, throughout the 
investigation, if it will place this information on the administrative 
record or not (including prior to the notice of initiation of an 
investigation).
    Comment: Multiple commenters disagreed with the term ``date of 
receipt'' in Sec.  165.12(a). The commenters argued that the overall 
intent of TFTEA is for CBP to proceed swiftly and adhere to strict 
deadlines, but claimed that the way the interim regulation is written, 
the date of receipt is entirely within CBP's control, and thus the 
regulatory language runs counter to the statutory language that states 
unambiguously that not later than 15 business days after receiving an 
allegation, CBP shall initiate an investigation. See 19 U.S.C. 
1517(b)(1). For the same reasons, additional commenters requested that 
CBP specify the exact number of days within which CBP is required to 
issue

[[Page 19244]]

an acknowledgment of receipt, one of the suggestions being that the 
deadline is no later than two days after receipt of the allegation.
    Response: CBP disagrees with the commenters' request to redefine 
the term ``date of receipt'' and specify an exact number of days within 
which CBP issues an acknowledgment of receipt of an allegation. It is 
clearly stated in the regulation that an allegation is received when 
CBP acknowledges a properly filed allegation. An allegation cannot be 
considered to be received until it is properly filed, i.e., the 
allegation contains all the information and certifications required 
pursuant to Sec.  165.11. The statute and interim regulations provide 
CBP the flexibility to properly examine the allegations as resources 
allow. Initiating an investigation within 15 business days of an 
allegation being in CBP's possession could lead to an inefficient use 
of CBP's resources, as poorly filed allegations or incomplete 
allegations would cause CBP to perform work that should have been done 
by the alleger.
    Comment: One commenter called attention to a scenario that could 
arise in the context of an interaction between Sec.  165.12 (date of 
receipt of an allegation) and Sec.  165.2 (entries dating back to one 
year before receipt of an allegation). The commenter stated that, 
depending on the time of receipt of the allegation by CBP pursuant to 
Sec.  165.12, the time period for investigating entries made within one 
year prior to CBP's receipt of the allegation could become shorter 
unintentionally if CBP takes time to acknowledge the receipt of the 
allegation, and thus entries of allegedly covered merchandise could 
potentially end up outside of the one-year period from the date of 
receipt, as specified in Sec.  165.2.
    Response: CBP disagrees that the regulation should be changed to 
cover entries made within one year before the original date of 
submission of the allegation, instead of the date of receipt of the 
allegation. CBP acknowledges that the scenario described above could 
make it difficult in certain instances to cover the alleged actions in 
the time frame set forth in Sec.  165.2. However, as mentioned above in 
response to another comment, it is in CBP's discretion to investigate 
other entries of covered merchandise, i.e., entries outside of the one-
year time frame, if the circumstances warrant.
    Comment: One commenter stated that CBP should amend Sec.  165.12(b) 
to provide for consequences for withdrawing an allegation, such as 
prohibiting re-submission of a new allegation for a specified time 
period after withdrawal. In addition, the commenter stated that there 
should be consequences for providing false allegations.
    Response: CBP disagrees with the commenter that consequences should 
be tied to a withdrawal of an allegation. CBP further notes that 
consequences for making false statements in EAPA investigations are 
provided for in Sec.  165.5(b)(3).
    Comment: One commenter asked CBP to amend Sec.  165.12(b) and Sec.  
165.14(a) to allow for the withdrawal of a submission through any other 
method approved or designated by CBP, in addition to email, to make 
these provisions consistent with other provisions, such as Sec.  
165.5(b)(1) and Sec.  165.11(a).
    Response: CBP agrees with the commenter. One of the new 
functionalities of the EAPA Portal is the ability for parties to submit 
withdrawal requests through this system as a method approved or 
designated by CBP. Accordingly, CBP has amended the language in 
Sec. Sec.  165.12(b) and 165.14(a) to allow for additional methods for 
the submission of withdrawal requests. As mentioned above, this 
functionality will be available in the EAPA Portal upon effectiveness 
of this final rule.
    Comment: One commenter asked CBP to consolidate allegations prior 
to the initiation of an investigation, noting that the ``reasonably 
suggests'' standard in Sec.  165.15(b)(2) is met in a case where 
multiple importers are contributing to an evasion scheme, but each 
importer-specific allegation may present, on its own, insufficient 
information to satisfy the initiation standard. The commenter stated 
that it would be imperative under those circumstances for CBP to 
consider and consolidate the multiple allegations to meet the 
``reasonably suggests'' standard.
    Response: Under Sec.  165.13(a), CBP has the authority to 
consolidate allegations at any point prior to the issuance of a 
determination (even prior to the initiation of an investigation) and 
may do so if certain criteria set forth in Sec.  165.13(b) are met.
    Comment: One commenter suggested that CBP modify its regulations to 
grant the parties to the investigation an opportunity to comment on (or 
object to) consolidation prior to any decision to consolidate. The 
commenter argued that such a regulatory change would promote engagement 
with the parties as to why or why not consolidation would be beneficial 
or burdensome.
    Response: CBP disagrees with the commenter's suggestion to modify 
the regulatory language. The interim regulations already include the 
ability for comments to be placed on the administrative record 
regarding consolidation of allegations once interim measures are 
announced. Pursuant to Sec.  165.23(c), the parties to the 
investigation have the opportunity to submit factual information up to 
day 200 of the investigation. Relatedly, CBP has revised the regulatory 
language in Sec.  165.23(c)(2) providing CBP with the discretion to 
officially extend the 200-day deadline for providing factual 
information, as discussed in more detail in section III below.
    Comment: One commenter wrote that a consolidation of allegations 
does not seem appropriate in evasion investigations because only the 
importer is submitting the import declaration as to whether merchandise 
is covered by an AD/CVD order, and only the importer may evade an AD/
CVD order. The commenter opined that a mere similarity of covered 
merchandise should not be the basis for a claim of evasion and, thus, 
not a basis for consolidation.
    Response: CBP disagrees with the commenter. Each EAPA allegation 
regarding an importer stands on its own merit. CBP judiciously uses the 
consolidation ability and bases consolidation on various criteria, such 
as those listed in Sec.  165.13(b)(1)-(4). When allegations against 
importers are consolidated at the interim measures point, it is because 
there is reasonable suspicion that all the importers are engaged in 
evasion.
    Comment: Two commenters stated that CBP should allow for the filing 
of one allegation against multiple importers if they are involved 
together in a duty evasion scheme. Given that the entities involved in 
an evasion may use a host of different importers of record as alter 
egos by which to improperly enter goods, limiting an allegation to a 
single importer would decrease efficiency for filers of allegations and 
CBP, and increase the burden to determine which importer was involved 
in an evasion. One of the commenters added that if confidentiality is a 
concern, CBP should implement an administrative protective order (APO) 
process in such cases.
    Response: CBP disagrees with both commenters. Every EAPA allegation 
stands on its own. Allowing one allegation against multiple importers 
would be problematic if the alleger did not correctly name one of the 
importers or provided insufficient facts against one of the importers. 
In that instance, the alleger would have to withdraw the allegation 
against all the importers in order to re-submit an allegation against 
only one or more importers. In addition, since the statutory language 
in 19 U.S.C.

[[Page 19245]]

1517(b)(2) (``. . . allegation that a person has entered covered 
merchandise . . .'') (emphasis added) is written in singular form, 
allowing allegations against more than one importer would be 
inconsistent with the current statutory language and would require a 
statutory change. Nonetheless, CBP may consolidate allegations under 
certain circumstances. However, as explained in more detail below, CBP 
will provide for the use of APOs as part of the EAPA process going 
forward.
    Comment: Multiple commenters voiced a concern regarding the 95-day 
period for notification of CBP's decision to initiate an investigation 
pursuant to Sec.  165.15(d)(1). The commenters argued that such a 
lengthy delay in notifying the alleged evader about the initiation of 
an investigation could impede an importer's due process rights by 
significantly limiting the time to prepare a defense. It could deprive 
the alleged evader of an opportunity to provide information or 
arguments until after the interim measures are in effect. For similar 
reasons, another commenter asked for immediate publication of notice of 
the initiation of an investigation to enhance transparency.
    Response: CBP disagrees with the commenters' suggestion that CBP 
issue a notice of initiation of an investigation earlier than 95 
calendar days after a decision to initiate has been made. CBP needs 
adequate time to investigate the alleged evader's actions, before 
notifying the parties to the investigation about the initiation of an 
investigation. Issuing a notice of initiation early would allow the 
alleged evader to change its tactics in order to disrupt CBP's 
investigatory efforts. Pursuant to 19 U.S.C. 1517(b)(1), CBP must make 
a decision as to whether the allegation reasonably suggests evasion 
within 15 business days of receiving a properly filed allegation in 
order to initiate an investigation. No later than 90 calendar days 
after commencing an investigation, CBP must make a decision as to 
whether there is reasonable suspicion that covered merchandise has been 
entered into the U.S. customs territory through evasion. If CBP finds 
reasonable suspicion, CBP issues a combined notice of initiation of 
investigation and interim measures within five business days of that 
decision. Alternatively, if no interim measures are taken, CBP may 
issue a notice of initiation of investigation only, by day 95 of the 
case. Thus, for ease of administrability of this regulation and others 
in part 165 that provide for the notification of decisions five 
business days after a decision has been made, CBP has revised Sec.  
165.15(d)(1). The revised regulation states in the first sentence that 
CBP will issue a notice of its decision to initiate an investigation to 
all parties to the investigation no later than five business days after 
day 90 of the investigation, removing the current reference to the 95-
calendar-day period. For consistency purposes, CBP also has changed the 
second sentence in paragraph (d)(1) to state that in case of interim 
measures, a notice to all parties to the investigation will occur no 
later than five business days after day 90 of the investigation.
    Furthermore, this change will make the regulatory language 
consistent with the statutory language, which only mentions a 90-day 
timeline, and will also create uniformity for the processes for 
initiating and notifying of an investigation, and for taking and 
notifying of interim measures. Notwithstanding those time frames, CBP 
may make a decision earlier than 90 days if it is ready to do so after 
a thorough investigation and notify the parties to the investigation 
within five business days of that decision. Additionally, when revising 
Sec.  165.15(d)(1), CBP has replaced the word ``notification'' in the 
existing regulation with ``notice'' since CBP serves an actual notice 
of initiation of an investigation on the parties to the investigation, 
as opposed to notification of the parties in some other fashion.
    Comment: One commenter asked CBP to amend Sec.  165.15(d) to 
provide that CBP notify not only the interested party who filed the 
allegation, but also the importer alleged to have engaged in evasion in 
a case where CBP determines to not initiate an investigation.
    Response: CBP does not agree with the commenter to amend the 
regulation. In order to discourage any potential retaliatory actions by 
the alleged evader against the alleging party, CBP will not notify the 
alleged evader in case of a decision to not initiate an investigation. 
If CBP determines to not initiate an investigation due to insufficient 
evidence that there is a likelihood of evasion, CBP does not see a need 
to make the alleged evader's name public in a notice to not initiate an 
investigation.
    Comment: One commenter asked that CBP provide for the opportunity 
to request an administrative review of a decision to not initiate an 
investigation so that the Commissioner of CBP may assess whether the 
decision was rendered in accordance with the legislative intent of a 
functioning mechanism for potential duty evasion and the plain language 
of the EAPA.
    Response: Under the plain language of paragraph (f) of 19 U.S.C. 
1517, administrative review may be requested for determinations made 
under 19 U.S.C. 1517(c). No provision in the statute authorizes CBP to 
conduct an administrative review of a decision to not initiate an 
investigation, which is not a determination under 19 U.S.C. 1517(c). 
Furthermore, CBP provides technical assistance to allegers on 
strengthening their allegations as a matter of practice and allegers 
have the opportunity to refile insufficient allegations as more 
information becomes available which would show that potential evasion 
is occurring.
    Comment: One commenter recommended that the regulations be revised 
to create a single time frame for the notification of decisions to 
initiate and to not initiate an investigation and suggested both time 
frames be within 30 days of receipt of an allegation.
    Response: CBP disagrees with the commenter's recommendation for the 
creation of a single time frame for the notification of CBP's decisions 
to initiate and to not initiate. Due to the different nature of these 
decisions, it is not practical to have one single timeframe for CBP to 
follow. There are different evidentiary standards and different timing 
requirements attached to the two types of decisions. As mentioned 
above, CBP has 15 business days to determine whether to initiate or to 
not initiate an investigation under the ``reasonably suggests'' 
standard. If CBP determines that it will not initiate an investigation, 
it will notify the alleger within five business days of that decision 
pursuant to Sec.  165.15(d). If CBP determines within 15 business days 
of a properly filed allegation that it will initiate an investigation, 
CBP usually takes 90 calendar days to determine whether ``reasonable 
suspicion'' exists before making a decision to implement interim 
measures (or not) and informing the alleger and importer in case of a 
decision to implement interim measures. Thus, a notification 30 days 
after receipt of an allegation, as suggested by the commenter, is 
generally too short a time frame for CBP to examine all the facts and 
both determine whether to initiate an investigation and whether there 
is reasonable suspicion that evasion is occurring.
    Comment: One commenter asked CBP to specify how CBP will notify of 
its decision to initiate, and asked CBP to require parties making 
allegations to provide certain information, such as the name of a 
contact person, mailing and email address of the importer alleged to 
have evaded, the foreign producer or exporter of covered merchandise, 
and the government of the country from

[[Page 19246]]

which the covered merchandise was exported.
    Response: CBP has been providing notices of initiation of an 
investigation to the parties to the investigation pursuant to Sec.  
165.15(d)(1) via email. With the implementation of the EAPA Portal, CBP 
notifies the parties to the investigation through the system via an 
email to the alleging party and the alleged evader. In addition, CBP 
publishes public versions of the notices of initiation of an 
investigation on its website. Further, to respond to the second part of 
the comment, CBP already requires name and address for importers; any 
additional specific contact information would be too burdensome for 
allegers to include in an allegation, as not all the contact 
information the commenter listed above is relevant, and, in some 
instances, it is already publicly available. CBP believes that 
requiring this additional information would hinder the submission of 
allegations, without benefit to the EAPA investigation process.
    Comment: One commenter stated that CBP should add language that 
would authorize CBP to self-initiate cases where the criteria in Sec.  
165.15(b) are met.
    Response: CBP disagrees with the commenter. An amendment of Sec.  
165.15(b) would require a statutory change, as 19 U.S.C. 1517(b)(1) and 
(b)(3) allow for the initiation of an investigation pursuant to the 
submission of an allegation by an interested party or a request by 
another Federal agency, but not self-initiation by CBP.
    Comment: One commenter stated that the ``reasonably suggests'' 
standard in Sec.  165.15(b)(2) burdens domestic producers having to 
prove evasion at the outset in order to have an investigation 
initiated, whereas the statute only asks for information reasonably 
available to the party who filed the allegation. See 19 U.S.C. 
1517(b)(2)(B).
    Response: CBP disagrees with the commenter. Pursuant to 19 U.S.C. 
1517(b)(2)(B), the allegation must be accompanied by information 
reasonably available to the party who filed the allegation. However, 
the threshold for initiating an investigation is that the information 
provided by the alleger reasonably suggests that evasion occurred, 
pursuant to 19 U.S.C. 1517(b)(1), which is the same standard as in 
Sec.  165.15(b)(2). The regulatory language does not unduly burden the 
alleger by imposing a stricter standard. Moreover, CBP evaluates on a 
case-by-case basis the merits of each allegation and decides if the 
``reasonably suggests'' standard for initiation of an investigation is 
met.
    Comment: One commenter suggested that CBP periodically publish 
examples of information that was deemed reasonably available to the 
interested party and sufficient to support an allegation in prior 
investigations, as well as examples of information sufficient to meet 
the initiation standard.
    Response: CBP currently informs the public through outreach to the 
industry in the form of presentations on EAPA and provides technical 
assistance and guidance when allegations are filed. In addition, as 
mentioned above, CBP publishes public versions of notices of initiation 
of an investigation on CBP.gov, providing examples of information that 
meets the initiation standard.
    Comment: One commenter stated that CBP should urge Commerce to make 
public the procedures it intends to use in case of a covered 
merchandise referral and include provisions to allow interested parties 
to file comments.
    Response: CBP disagrees with the commenter. Commerce decides how to 
best respond to covered merchandise referrals in EAPA investigations, 
according to its authority and current practices. Moreover, the 
referral process has been working well between the two agencies and CBP 
does not see a need for a change.
    Comment: One commenter supported the requirement in Sec.  165.16 
that CBP refer a scope issue to Commerce at any point after receipt of 
the allegation, whereas a second commenter stated that CBP should, 
where possible, wait until after the issuance of interim measures to 
request a covered merchandise determination from Commerce. The second 
commenter argued that if CBP requested a covered merchandise 
determination prior to interim measures, then the covered merchandise 
referral might be the first time that an importer or other party 
learned about the evasion proceedings, which could undermine CBP's law 
enforcement interest to quickly investigate the allegations and gather 
information prior to issuing interim measures. In addition, the second 
commenter asked CBP to encourage Commerce to act expeditiously when 
processing a covered merchandise referral.
    Response: CBP appreciates the comments. CBP decides on a case-by-
case basis whether there is a need to refer scope issues to Commerce. 
According to Sec.  165.16(a), CBP may refer the issue to Commerce for 
Commerce to determine whether imported merchandise constitutes covered 
merchandise, at any point after receiving the allegation. The statute 
(19 U.S.C. 1517(b)(4)) does not limit CBP's ability to refer a scope 
matter to Commerce within a certain time frame but allows CBP to make 
this decision depending on the circumstances of the specific 
investigation. With regard to the second part of the last comment, CBP 
has no jurisdiction over Commerce's authority to set timelines, and no 
influence over another agency's internal processes.
    Comment: One commenter asked that CBP modify the interim 
regulations to further explain Commerce's covered merchandise 
proceeding, clarify whether or not interested parties would be able to 
participate in that proceeding, and whether Commerce's scope 
determination is appealable.
    Response: Commerce processes covered merchandise referrals and 
determinations according to its own statutory and regulatory authority 
and CBP cannot amend CBP's regulations to discuss or clarify Commerce's 
authority and procedures. Nor is CBP in a position to opine on judicial 
review related to Commerce proceedings. We note, however, that Commerce 
has promulgated regulations to address covered merchandise referrals 
from CBP, at 19 CFR 351.227.
    Comment: One commenter asked that CBP add a definition in Sec.  
165.16(c) for the word ``promptly.'' The commenter also suggested that 
CBP make a referral to Commerce within 30 days of initiation of the 
investigation, and CBP provide notice of the referral within five days 
of the referral.
    Response: CBP disagrees with the commenter's request to add a 
definition for the word ``promptly.'' CBP makes determinations 
regarding covered merchandise referrals on a case-by-case basis and 
refers scope issues to Commerce as appropriate. As stated above, CBP 
may refer to Commerce at any point after receipt of an allegation. 
Further, CBP notifies the parties to the investigation as to when CBP 
sends the covered merchandise referral to Commerce.
    Comment: One commenter argued that CBP should provide for a 
mechanism for an interested party to seek relief when CBP improperly 
refuses to refer a scope issue to Commerce and for situations where CBP 
improperly suspends liquidation of entries when the scope issue is 
being disputed.
    Response: CBP disagrees with the commenter's argument. CBP works 
with the appropriate internal subject matter experts during an EAPA 
investigation and, in addition, works with the Customs Liaison Unit at 
Commerce, and

[[Page 19247]]

refers cases to Commerce regarding the scope of an AD/CVD order when 
appropriate. The covered merchandise referral to Commerce pursuant to 
19 U.S.C. 1517(b)(4) is a specific authority for CBP to use in EAPA 
investigations, as needed, and should remain within CBP's discretion. 
Apart from CBP's authority to refer issues to Commerce for a covered 
merchandise determination, an interested party also has the ability to 
seek resolution of a scope issue before Commerce pursuant to Commerce's 
regulations found at 19 CFR 351.225 and 19 CFR 351.227. CBP does not 
believe that an additional mechanism is needed in this rulemaking. With 
regard to the second part of the comment, CBP does not believe that a 
process is needed for a situation where the importer alleges that CBP 
improperly suspended liquidation of entries when the scope was being 
disputed. If CBP determines that there is reasonable suspicion that the 
importer entered covered merchandise into the customs territory of the 
United States, TRLED will instruct the Center to suspend liquidation of 
entries of such covered merchandise that entered on or after the date 
of initiation of the investigation or extend the period for liquidating 
each unliquidated entry of such covered merchandise that entered before 
the date of the initiation of the investigation, and take other 
measures necessary to protect the revenue. CBP needs to conclude its 
investigation to issue a determination as to evasion, and does not 
overturn interim measures, such as the suspension of liquidation or the 
extension of the liquidation period, until a determination has been 
made.
Investigation Procedures (Subpart C)
    Subpart C (Investigation Procedures) includes provisions setting 
forth the EAPA investigation procedures, such as the maintenance of an 
administrative record, the time period provided for an investigation 
and the deadline for making a determination, the types and requirements 
for the submission of factual information, and the issuance of interim 
measures. This subpart also describes CBP's authority to conduct 
verifications of information, deals with the submission of written 
arguments to CBP and responses to written arguments, and finally sets 
forth the process for the issuance of a determination as to evasion and 
the assessment of duties and other actions in case of an affirmative 
determination. Commenters submitted questions regarding public access 
to the administrative record, questions surrounding the submission of 
factual information, and the interim measures process, as well as the 
verification process.
    Comment: One commenter stated that it is unclear from the 
regulations how and to what extent parties to the investigation would 
be able to access public information during the course of the 
investigation or administrative review. The commenter asked that CBP 
amend the regulations to include a provision that sets forth where CBP 
would maintain an up-to-date public administrative record, how CBP 
would guarantee access, and when and how CBP would share public 
information.
    Response: The EAPA Portal provides the parties to the investigation 
with access to the public documents and public versions of documents 
relating to the EAPA proceeding and allows the parties to the 
investigation to view the public administrative record. In addition, 
CBP publishes public versions of notices of initiation of an 
investigation, notices of initiation of an investigation and interim 
measures, covered merchandise referrals, and determinations as to 
evasion on its website, in a timely manner. Finally, CBP appreciates 
the opportunity to announce that CBP has started publishing public 
versions of final administrative review determinations.\3\ CBP has 
uploaded earlier public versions of final administrative review 
determinations to its website.
---------------------------------------------------------------------------

    \3\ The final administrative review determinations may be found 
online at https://www.cbp.gov/trade/trade-enforcement/tftea/eapa by 
clicking on the field titled ``Request for Administrative Review,'' 
and then on the blue ``Final Administrative Determinations'' button. 
The published determinations may also be found online at https://www.cbp.gov/trade/trade-enforcement/tftea/eapa/requests-administrative-review by clicking on the field titled ``Final 
Administrative Determination,'' or on the blue ``Final 
Administrative Determinations'' button.
---------------------------------------------------------------------------

    Comment: While one commenter supported the opportunity for parties 
to the investigation to submit factual information pursuant to Sec.  
165.23(b), another commenter asked CBP to clarify in Sec.  165.23(a) 
that CBP may request information from any party who has relevant 
information.
    Response: CBP appreciates the comments. However, CBP disagrees with 
the second commenter that a regulatory change is needed to clarify that 
CBP may request information from any party who has relevant 
information. The universe of persons from whom CBP may request 
information pursuant to Sec.  165.23(a) is broad, and CBP does not 
believe that it needs to be specifically defined.
    Comment: One commenter stated that it would be useful for the 
purpose of identifying an importer, especially in situations where 
importers are incorporated under multiple different names, or when 
several related companies act as importers of record through an agent, 
that CBP include in the scope of an EAPA investigation activities 
engaged in by companies related to an identified importer, which 
support the allegation.
    Response: CBP disagrees with the commenter's suggestion. Although 
an alleger is free to include information about the activities of a 
company related to an identified importer in its allegation, the 
statutory language does not require the inclusion of such information. 
Furthermore, such a requirement would create an additional barrier that 
may inhibit the submission of some legitimate allegations.
    Comment: One commenter supported the establishment of a service 
list for purposes of serving other parties with public versions of 
documents, and asked CBP to amend the regulations to set forth the 
requirements for the maintenance of such a list.
    Response: CBP does not agree with the commenter's request to add a 
requirement for maintenance of a service list in the regulations. CBP 
currently releases public versions of documents to the parties to the 
investigation, which CBP believes is sufficient. Public documents and 
public versions of documents are also available to the parties to the 
investigation in the EAPA Portal.
    Comment: Multiple commenters asked CBP to modify its regulations so 
that parties can submit confidential documents via a secure electronic 
filing system, as opposed to email, and allow attorneys and other 
interested parties to easily monitor the ongoing investigation. One 
commenter also asked CBP to provide for the hand delivery of documents 
if documents contain confidential information, or delivery by mail if 
the document to be submitted exceeds a certain size limit.
    Response: The EAPA Portal allows parties to submit confidential 
documents, and the parties to the investigation, as well as their 
attorneys, are able to monitor the status of an EAPA proceeding. 
Further, CBP already allows for hand delivery on a case-by-case basis, 
in instances of voluminous submissions or the submission of 
confidential documents. A party who wishes to hand-deliver documents 
must file a request with TRLED and provide a reason why the documents 
cannot be filed electronically. The regulation does not need to be 
amended as the option of hand delivery is already included in Sec.  
165.5(b)(1) as a method approved or designated by CBP. Regarding the 
last

[[Page 19248]]

comment, delivery by mail is not allowed, but if there are size 
limitation issues with the EAPA Portal, parties may contact the EAPA 
Investigations Branch at [email protected].
    Comment: One commenter requested that CBP add a provision in the 
regulations to allow for the filing of a ``Bracketing Not Final'' 
version of a submission first, followed by the final, public version 
the next business day. The commenter believes that this additional time 
is necessary to review any business confidential information to make 
sure that the public version is correct. The commenter argued that this 
change would make CBP's regulations consistent with those of Commerce, 
the U.S. International Trade Commission (ITC), and the CIT.
    Response: CBP disagrees with the commenter's request to allow for 
the filing of a ``Bracketing Not Final'' version first, followed by a 
final, public version the next business day. Section 165.4(a)(2) states 
that the public version should be filed on the same date as the 
business confidential version and gives CBP the opportunity to reject a 
public version, if needed. Simultaneous filing ensures that the other 
parties to the investigation timely receive documents, since only 
public versions are provided to other parties in an EAPA investigation. 
Commerce, ITC, and CIT procedures differ in this regard, in that 
confidential versions are provided to other parties under protective 
orders.
    Comment: One commenter asked CBP to modify Sec.  165.23(c)(1) to 
set a deadline for service of the public version of a submission of 
factual information, which currently is missing in the regulations.
    Response: CBP disagrees with the commenter. Section 165.23, first 
sentence, refers to Sec. Sec.  165.4 and 165.5 with regard to the 
submission requirements. Specifically, Sec.  165.4(a)(2) addresses the 
requirement to submit a public version on the same date as the business 
confidential version.
    Comment: One commenter asked CBP to clarify in Sec.  165.23(c)(2) 
whether the service requirement applies to the submission of all 
factual information, or only to factual information submitted after a 
certain point in the investigation. The commenter stated that pursuant 
to Sec.  165.23(c)(2), parties submitting factual information are 
required to serve on parties to the investigation a public version of 
the submission. The commenter went on to say that if an alleging party 
submitted factual information after the initial allegation, but prior 
to the issuance of interim measures, it would be unclear whether 
service of that information on other parties would interfere with CBP's 
enforcement efforts in case CBP had not yet notified certain parties of 
the investigation.
    Response: CBP disagrees with the commenter's request to modify 
Sec.  165.23(c)(2). The service requirements in Sec.  165.4 apply 
throughout the investigation; there is no distinction in the 
regulation, or in practice, regarding the timing of the submission of 
factual information. However, CBP wishes to clarify that any documents 
submitted prior to the notice of initiation of an investigation will be 
served by TRLED on the parties to the investigation soon after the 
issuance of the notice, regardless of who submitted those documents. 
For additional clarity, CBP added a sentence to that effect at the end 
of Sec.  165.15(e).
    Comment: One commenter stated that CBP should adopt a regulation 
that imposes interim measures if Commerce finds that imported 
merchandise is covered by an AD/CVD order and that tolls the CBP 
deadlines for the completion of the investigation. Otherwise, the 
commenter noted, if Commerce issues a scope determination which is 
subject to judicial review and CBP's regulations do not toll CBP's 
administrative deadlines during the pendency of judicial review, it may 
be the case that an importer is labeled an ``evader'' even though the 
underlying facts for the scope determination are subject to dispute. 
The commenter opined that adding a regulation as described above would 
ensure that importers will not be labeled as duty evaders unless and 
until all their due process rights have been exhausted.
    Response: CBP disagrees with the commenter. CBP considers decisions 
by various internal stakeholders as well as other government agencies 
when reaching the decision to take interim measures, but CBP has 
independent authority to determine if or when to impose interim 
measures. CBP takes interim measures after careful examination of the 
facts and information provided, concluding that there is reasonable 
suspicion that evasion has taken place. Judicial review of a scope 
determination should not put the EAPA investigation on hold because CBP 
needs to timely continue its process, as provided in the regulations, 
to fully investigate the facts relating to the allegation and make a 
determination as to evasion. CBP notes that Congress, through the 
statutory timelines set forth in EAPA, made clear that it intended 
prompt action on the part of CBP.
    Comment: One commenter requested that CBP amend Sec.  165.24(c) to 
state that CBP will share the public administrative record with 
Commerce upon issuing interim measures. The commenter argued that the 
connection between Commerce's administration and enforcement of AD/CVD 
orders and CBP's efforts to combat evasion under EAPA necessitates that 
the agencies share information and work together to maximize 
enforcement.
    Response: CBP does not see a need to amend the regulations so CBP 
may share the administrative record with Commerce after the issuance of 
interim measures. CBP regularly shares information with Commerce, based 
on the circumstances of the case and in accordance with law.
    Comment: One commenter asked CBP to clarify in Sec.  165.25 that 
the verification process takes place sometime between initiation of the 
investigation and the 200th calendar day after the initiation, that a 
verification agenda is included, and modify the regulations to provide 
for a verification report that CBP will place on the administrative 
record.
    Response: CBP does not agree with the commenter that the 
verification process must be completed by the 200th calendar day after 
initiation of an investigation. Rather, verification generally occurs 
after all new factual information has been submitted to the 
administrative record. The deadline for voluntary submission of new 
factual information is established in Sec.  165.23. To clarify that CBP 
may conduct verifications before and after the deadline for voluntary 
submission of factual information, CBP has revised the language in 
Sec.  165.25(b). In addition, CBP added a sentence in paragraph (b) to 
confirm that the purpose of the verification is to verify the accuracy 
of the information already placed on the administrative record. 
Regarding the commenter's second request, CBP already provides a 
verification agenda to the parties to the investigation and does not 
believe that it needs to be specifically stated in the regulation.
    To respond to the commenter's request regarding the verification 
report, CBP added a new paragraph (c) stating that CBP will place a 
report about the verification, i.e., the verification report, on the 
administrative record. CBP will also require the party that underwent 
the verification to place verification exhibits, which will generally 
contain information compiled and verified by CBP at CBP's discretion 
during the verification, on the administrative record. In accordance 
with Sec.  165.4, CBP and the party that underwent the verification 
will provide public versions of their verification documents, which 
will be served on all parties to the

[[Page 19249]]

investigation. CBP will not accept voluntary submissions of new factual 
information at the verification after the deadline for such 
submissions, as referenced in Sec.  165.23. Further, parties to the 
investigation cannot submit rebuttal information to either CBP's 
verification report or the verification exhibits. Parties to the 
investigation, however, may submit to CBP written arguments in relation 
to the verification report and/or its exhibits in accordance with Sec.  
165.26.
    CBP also added a new paragraph (d) stating that if CBP determines 
that information discovered during a verification is relevant to the 
investigation and constitutes new factual information, CBP will place 
it on the administrative record separately, in accordance with Sec.  
165.23, and allow the parties to the investigation to submit rebuttal 
information.
    Comment: One commenter expressed support of Sec.  165.26 but was 
concerned that the 50-page limit in paragraph (d) may be too short in 
some cases. The commenter suggested that CBP explicitly state in the 
regulation that it would increase the page limitation upon request when 
good cause is shown.
    Response: CBP disagrees with the commenter's suggestion and 
supports the regulation as currently written. Written arguments are a 
summary of record evidence and new information is not permitted. CBP 
believes that 50 pages is a reasonable limit and does not see a need to 
provide for exceptions in the regulation.
    Comment: One commenter stated that CBP should clarify in Sec.  
165.26(c) that CBP may request written arguments on any issue from any 
interested party.
    Response: CBP believes that Sec.  165.26(c) as currently written is 
properly limited to the parties to the investigation. However, to make 
the terminology in Sec.  165.26(c) clearer, CBP changed the regulatory 
language from ``any party'' to the investigation to ``the parties'' to 
the investigation.
    Comment: One commenter argued that CBP should make it clear in 
Sec.  165.27(a) that a determination must be based on substantial 
evidence on the record, and add a reference to the administrative 
record, as defined in Sec.  165.21.
    Response: CBP does not see a need to add a clarification in the 
regulation. Section 165.27(a) already contains language that a 
determination is based on substantial evidence as to whether covered 
merchandise was entered into the U.S. customs territory through 
evasion. In addition, Sec.  165.21(a) states that CBP maintains an 
administrative record for purposes of making a determination as to 
evasion under Sec.  165.27. When both regulations are read together, it 
is clearly stated that CBP's determination as to evasion is based on 
substantial evidence on the administrative record. In current practice, 
CBP states in its affirmative determinations that CBP reviewed the 
administrative record and found that it contained substantial evidence 
of evasion.
    Comment: One commenter suggested that CBP add a sentence to Sec.  
165.27(b) to state that CBP will provide parties to the investigation 
with a public version of the administrative record no later than five 
business days after making a determination as to evasion, the same date 
that CBP sends the parties to the investigation a summary of the 
determination limited to publicly available information. This suggested 
language would mirror the language in Sec.  165.24(c) for interim 
measures, which includes a notification of the decision to the parties 
of the investigation, along with a public version of the administrative 
record on the same date.
    Another commenter suggested that Sec.  165.27(b) be amended to 
provide a detailed and meaningful public explanation as to what should 
be covered by the summary of CBP's determination as to evasion since 
that summary would serve as the primary basis for a party's decision 
whether to request an administrative review and subsequent judicial 
review.
    Response: With regard to the first comment, once parties to the 
investigation are notified of an investigation, and then throughout the 
remainder of the investigation, the administrative record is made 
available in the EAPA Portal. CBP does not agree that the regulation 
needs to be amended to that effect. Pursuant to Sec.  165.27(b), CBP 
will provide a summary of the determination as to evasion, limited to 
publicly available information, to the parties to the investigation. As 
part of the public version of the determination as to evasion, CBP 
includes a short summary of the redacted information in brackets that 
was deemed business confidential information. Additionally, as 
discussed in more detail below, CBP will provide for an APO process so 
parties to the investigation may access business confidential 
information. Thus, an amendment to Sec.  165.27(b) as suggested by the 
second commenter is not necessary.
    Comment: One commenter stated that Sec.  165.27 does not appear to 
contemplate the publication of a determination as to evasion, and a 
summary is available only to the parties to the investigation. The 
commenter suggested that CBP add a new paragraph (c) to Sec.  165.27 
stating that no later than 90 days after making a determination as to 
evasion, CBP would publish a summary of the determination limited to 
publicly available information in the Customs Bulletin or make the 
determination otherwise available for public inspection.
    Response: CBP disagrees with the commenter's suggestion to amend 
Sec.  165.27. In addition to informing the parties to the investigation 
about the determination electronically, CBP has been publishing a 
public version of the determination on its website. The public version 
of a determination is also available to the parties to the 
investigation in the EAPA Portal.
    Comment: One commenter stated that a party's right to judicial 
review, as granted in 19 U.S.C. 1517(g), is restricted by the 
regulations as the regulations limit a party's right to public 
information only, and thereby deprive the party of full knowledge of 
the basis for CBP's determination. It is the commenter's opinion that 
CBP must provide the parties to the investigation with some level of 
access to proprietary information in order for CBP to give full effect 
to the statute.
    Response: CBP agrees with the commenter's request to provide access 
to another party's proprietary information. As discussed in more detail 
below, CBP will establish an APO process to allow for the release of 
business confidential information to parties to the investigation.
Administrative Review of Determinations (Subpart D)
    Subpart D (Administrative Review of Determinations) specifies the 
requirements for requesting an administrative review of a determination 
as to evasion, discusses the submission of responses to the request for 
administrative review, and describes CBP's authority to request 
additional information from the parties to the investigation. This 
subpart also deals with the administrative review standard, the ability 
to file for judicial review of the final administrative determination, 
and, finally, potential penalties and other actions that CBP may 
undertake pursuant to any other relevant laws. CBP received comments 
regarding the publication of final administrative determinations, the 
availability of rebuttal information during an administrative review, 
and questions on the de novo review process for administrative reviews.
    Comment: One commenter expressed concern with regard to the 30-
business-day deadline (Sec.  165.41(d)) for requesting

[[Page 19250]]

an administrative review of a determination as to evasion and asked for 
clarification in the regulations. The commenter stated that it is 
unclear whether ``issuance'' in the regulation refers to the date CBP 
signs the initial determination, the date it is sent to the parties, 
the date it is received by the parties, or some other date.
    Response: CBP appreciates the opportunity to clarify that the date 
of issuance is the date that the determination is signed by CBP and 
also electronically transmitted to the parties to the investigation. In 
a rare case where the determination as to evasion is signed on one day 
and electronically transmitted the next business day, the date of 
electronic transmittal is considered the date of issuance.
    Comment: One commenter asked for the regulations to be amended to 
expressly allow for rebuttal information in administrative reviews.
    Response: CBP disagrees with the commenter. Under Sec.  165.44, CBP 
may request additional written information from the parties to the 
investigation at any time during the administrative review process; 
however, these requests are narrowly tailored for specific information 
related to a record that has already been created during the course of 
the investigation. CBP has a strict 60-business-day review period to 
issue a determination on the request for administrative review. See 19 
U.S.C. 1517(f) and 19 CFR 165.41(i). Any rebuttal information from the 
parties on additional information requested by CBP would reduce the 
number of days that Regulations and Rulings (RR) has available to 
conduct a de novo review of the record information and issue a final 
administrative determination. However, should CBP determine that 
rebuttal information is useful, then Sec.  165.44 permits CBP to 
request such information.
    Comment: One commenter stated that the language in Sec.  165.45 is 
contradictory because the administrative review process is described to 
be de novo and, at the same time, based on specific facts and 
circumstances already on the administrative record. It is the 
commenter's opinion that parties should be able to provide any 
information they deem appropriate in the administrative review process 
since it is a de novo review.
    Response: CBP disagrees with the commenter's request. EAPA requires 
that an administrative review be rendered within 60 business days (19 
U.S.C. 1517(f)), which is in contrast to a much longer time frame (up 
to 360 calendar days) that CBP has available to render a determination 
as to evasion. The short deadline for the administrative review makes 
it impracticable for CBP to accept additional information that parties 
wish to submit. Rather, the administrative review must be based solely 
on the facts already on the record, with the exception being if CBP 
believes that it needs additional information in accordance with Sec.  
165.44 to be able to render its decision, as mentioned above. To 
clarify even further, CBP added the phrase ``in response to a request 
by CBP'' before ``pursuant to Sec.  165.44'' to emphasize that CBP will 
only consider additional information if CBP specifically requested that 
information.
    Comment: One commenter asked CBP to add a paragraph in Sec.  165.46 
that sets forth that final administrative determinations are published 
in the Customs Bulletin or are otherwise made available for public 
inspection no later than 90 days after the issuance of the final 
administrative determination.
    Response: CBP disagrees with the commenter's suggestion to amend 
the regulation as there is no need to include in the regulatory text a 
requirement for the publication of the final administrative 
determination. As mentioned in more detail above, CBP has started 
publishing final administrative determinations, limited to public 
information, on its website.
    Comment: One commenter stated that CBP should clarify that any 
actions taken apart from the EAPA investigation will not disadvantage 
False Claims Act (FCA) relators. The commenter stated that Sec.  165.47 
expressly states that no action taken under EAPA prevents CBP from 
assessing penalties of any sort related to such cases or taking action 
under any other relevant laws and that CBP should extend this 
recognition to claims brought under the FCA in the final regulations.
    Response: CBP disagrees with the commenter's request for 
clarification of Sec.  165.47. EAPA investigations do not prevent 
actions by CBP or other government agencies under other authorities, 
including FCA, and CBP's and other governmental agencies' rights to 
undertake additional investigations or enforcement actions in cases 
covered by the EAPA provisions are already established in Sec.  165.47. 
See also 19 U.S.C. 1517(h).
    Comment: Multiple commenters stated that a determination as to 
evasion should not be a protestable decision and asked that CBP clarify 
in the regulations that the administrative process and judicial review 
under 19 U.S.C. 1517(f)-(g) are the only avenues by which a party may 
challenge a determination.
    Response: CBP agrees with the commenters that a determination as to 
evasion in an EAPA investigation is not a protestable decision. 
Sections 1517(f)-(g) of 19 U.S.C. establish both an administrative and 
judicial review process for EAPA determinations made by CBP. The 
administrative and judicial review processes are the exclusive means by 
which EAPA determinations can be reviewed. However, CBP does not see a 
need to clarify this in the final regulations at this time.
Other Comments
    Comment: Multiple commenters asked that CBP publicly disclose key 
events, such as the initiation of an investigation, or determination as 
to evasion, to a wider trade community, either in form of a searchable 
docket or some other type of publication process for the key documents. 
The commenters argued that such disclosure would deter future evasion 
attempts and promote increased compliance by all parties.
    Response: CBP already publishes public versions of notices of 
initiation of an investigation, notices of initiation of an 
investigation along with interim measures (if CBP takes interim 
measures after initiating an investigation), covered merchandise 
referrals, determinations as to evasion, and now final administrative 
determinations as well, on its website. To further promote transparency 
of the EAPA process, those decisions are viewable in the EAPA Portal by 
the parties to the investigation.
    Comment: Multiple commenters have urged CBP to create an APO 
process or similar process in the final regulations, which would allow 
authorized representatives of interested parties to obtain and review 
confidential information submitted by other interested parties. While 
the commenters acknowledge that the statute did not explicitly 
authorize CBP to create an APO, these commenters note that such 
specific statutory authorization is not necessary given that Congress 
has broadly authorized CBP to promulgate regulations necessary to 
implement the provisions of TFTEA. The commenters claim that the lack 
of an APO hinders the parties' ability to meaningfully participate in 
EAPA proceedings in multiple ways. The commenters argue that the 
parties affected by CBP's decision-making will not have full access to 
information contained on the administrative record unless and until 
judicial review is requested. Further, the inability to have access to 
other parties' business confidential information prevents other parties 
to the investigation from providing rebuttal information and from

[[Page 19251]]

submitting arguments at the administrative level based on a review of 
the complete information. Finally, the commenters argue that the lack 
of an APO makes the administrative process more burdensome for CBP, 
because CBP must respond to irrelevant arguments and evidence submitted 
by parties, who, without full access to the record, are unable to 
assess the nature of that record and other parties' claims.
    Response: CBP agrees with the commenters that Congress provided CBP 
with authority to ``prescribe such regulations as may be necessary'' to 
implement the requirements under the statute. CBP, by regulation, has 
created an investigation procedure that allows participation by the 
parties to the investigation. Under Sec.  165.4, any party submitting 
information to CBP may request confidential treatment for information 
protectable under 5 U.S.C. 552(b)(4). The party must identify such 
confidential information by placing it in brackets, marking the first 
page as confidential, and providing an explanation for requesting 
confidential treatment. The interested party must also file a public 
version of the confidential document. Under Sec.  165.4(a)(2), the 
public version must contain a summary of the confidential information 
with sufficient detail to permit a reasonable understanding of the 
substance of the information. If the submitting interested party claims 
that summarization is not possible, the claim must be accompanied by a 
full explanation of the reasons supporting that claim. Public summaries 
that do not meet this requirement will be rejected.
    Moreover, in order to allow meaningful participation in the 
proceedings, and for purposes of transparency, CBP will not accept 
claims of confidential treatment for the following information: (1) 
name of the party to the investigation providing the information, its 
agent filing on its behalf, if any, and email address for communication 
and service purposes; (2) basis upon which the party making the 
allegation qualifies as an interested party as defined in Sec.  165.1; 
(3) name and address of importer against whom the allegation is 
brought; (4) description of covered merchandise; and (5) applicable AD/
CVD orders.
    While CBP believes that the above process provides parties to the 
investigation with a meaningful opportunity to participate in the EAPA 
investigation, CBP acknowledges that, on July 27, 2023, the U.S. Court 
of Appeals issued a decision in Royal Brush Mfg. v. United States, 75 
F.4th 1250 (Fed. Cir. 2023), with respect to the issue of a need for an 
administrative protective order in that case. In light of that 
precedential decision, CBP is reviewing its procedures with respect to 
the disclosure of business confidential information during EAPA 
investigations. As such, CBP has amended Sec.  165.4 and added language 
in the introductory text of paragraph (a) to state that if the 
requirements of Sec.  165.4 are satisfied and the information is 
privileged or confidential in accordance 5 U.S.C. 552(b)(4), CBP will 
grant business confidential treatment and issue an APO, in compliance 
with the mandate in Royal Brush. Further, CBP added a new paragraph 
(f), stating that in each investigation where CBP grants a request for 
business confidential treatment, CBP will issue an APO which will 
contain terms that allow the representatives of the parties to the 
investigation to access the business confidential information. CBP will 
publish guidance to provide additional information on this new APO 
process, and CBP is also considering whether to initiate a separate 
rulemaking for purposes of further codifying an APO process. Finally, 
CBP made several additional changes to Sec.  165.4, unrelated to an APO 
process, which may be found in section III below.
    Comment: Multiple commenters stated that CBP must follow the 
statutorily mandated deadlines and should clarify in the final 
regulations that they are mandatory.
    Response: CBP abides by all statutory deadlines such as CBP's 
decision to take interim measures no later than 90 days after 
initiating an investigation under 19 U.S.C. 1517(e), CBP's 
determination as to evasion no later than 300 days after initiating an 
investigation pursuant to section 1517 (c)(1)(A), and the 60-business-
day timeline for making a final administrative determination pursuant 
to section 1517(f)(2). CBP does not believe that a clarification in the 
final regulations is necessary.
    Comment: One commenter stated that CBP should clarify in the final 
regulations that all ex parte communications of substance will be 
memorialized in the administrative record and public versions of such 
written memorialization should be promptly disclosed to the other 
parties to the proceeding.
    Response: CBP disagrees with the commenter that the memorialization 
of ex parte communications needs to be specifically outlined in the 
regulations. Substantive ex parte communications are memorialized, and 
public versions are disclosed to the parties to the investigation as a 
matter of practice.
    Comment: One commenter voiced concerns with regard to section 
411(b)(4)(B) of TFTEA, specifically the provision of information on the 
status of CBP's consideration of an evasion allegation and related 
decision whether or not to pursue any administrative inquiries or other 
actions as a result of an allegation to a party or parties who 
submitted an allegation as to evasion. The commenter stated that this 
provision appears to authorize CBP to allow the alleging party to 
request Federal documents, which will likely include business 
confidential information of the importer. The commenter further argued 
that this provision disadvantages the importer by giving the alleging 
party information that the importer cannot review and of which the 
importer is not aware, making this provision fundamentally unfair.
    Response: CBP disagrees with the commenter, who is not interpreting 
the statute in the way that CBP is administering EAPA. While the 
alleging party may be aware that CBP is processing an allegation before 
the alleged evader is, CBP does not share business confidential 
information of other entities with the alleging party at any stage of 
the investigation. All parties to the investigation are notified 
whether or not interim measures are taken once an investigation is 
ongoing and are allowed to participate in the investigation from that 
point forward.
    Comment: One commenter stated that CBP should prescribe regulations 
that obligate customs brokers to collect and verify meaningful 
information regarding companies that approach the broker seeking to act 
as an importer of record.
    Response: CBP thanks the commenter for its contribution; however, 
this comment is beyond the scope of this EAPA rulemaking.

III. Technical Changes and Clarifications to the Interim Regulations

    In addition to carefully considering and responding to the public 
comments, CBP has reviewed the interim regulations in their totality to 
assess the effectiveness of the established EAPA process and determine 
whether any regulations, other than the ones addressed above in 
response to public comments, should be amended. Pursuant to this 
review, CBP has made some changes to clarify and update the interim 
regulations, emphasizing CBP's goal for a clear and transparent process 
and aligning CBP's current practice with the regulations.
    CBP made some changes to Sec.  165.1 by clarifying and updating 
some of the existing definitions and adding a definition. First, CBP 
slightly rearranged the sentence of the definition of

[[Page 19252]]

``allegation'' in Sec.  165.1 for clarity. Next, in the definition of 
``TRLED'' in Sec.  165.1, CBP removed the reference to EAPA and 
replaced it with a reference to the Trade Facilitation and Trade 
Enforcement Act of 2015 (TFTEA) as it is a more accurate reference. CBP 
also added a definition for ``Business day'' in Sec.  165.1, which 
mirrors the language in 19 CFR 101.1. CBP had received a general 
comment regarding the treatment of Inauguration Day (January 20 or 
January 21 if January 20 falls on a Sunday) in the context of 
calculating deadlines, and CBP wants to take the opportunity to clarify 
its position on this subject since this legal holiday in the 
Washington, DC, area occurs every four years. Thus, pursuant to the new 
definition, and in accordance with 5 U.S.C. 6103(c), Inauguration Day 
is not considered a business day for purposes of an EAPA investigation.
    CBP made several changes to Sec.  165.4, in addition to the changes 
mentioned above. In paragraph (a), CBP added a sentence at the end of 
the paragraph to state that all documents and communications that are 
submitted to CBP after notice of initiation must be served on all 
parties to the investigation by the submitting entity. For business 
confidential documents, a public version must be served as well, in 
accordance with Sec.  165.4(a)(2). This addition is not a change but 
merely a confirmation of CBP's practice. Further, CBP included language 
in the introductory sentence in paragraph (b) clarifying that rejected 
submissions due to failure to meet the requirements of Sec.  165.4(a) 
will not be placed on the administrative record. The same language 
regarding the placement on the administrative record was added in Sec.  
165.4(b)(3), setting forth the effects of a rejected submission. 
Finally, CBP added the phrase ``unless the submitting interested party 
takes any of the actions in paragraph (b)(2) of this section within the 
timeframe specified in that paragraph'' at the end of the introductory 
sentence in paragraph (b), referring to the possibility of corrective 
action pursuant to Sec.  165.4(b)(2) in case of a nonconforming 
submission.
    In addition, CBP added two sentences at the end of paragraph (e), 
stating that parties who are not already subject to the requirements of 
Sec.  165.4, such as suppliers or customers, must adhere to the 
requirements set forth in Sec.  165.4 and Sec.  165.5 when filing 
submissions. With this change, CBP is clarifying its current 
expectation that interested parties and other parties who submit 
information to CBP must follow the same submission requirements. 
Additionally, Sec.  165.5(b) states that all submissions to CBP must 
adhere to the requirements in part 165. Thus, the addition of the two 
sentences in paragraph (e) simply clarifies the requirements set forth 
in Sec.  165.4 and Sec.  165.5 and the effect of a nonconforming 
submission.\4\
---------------------------------------------------------------------------

    \4\ CBP added Sec.  165.5(b)(4) in this final rule and the 
addition is explained in further detail below.
---------------------------------------------------------------------------

    In Sec.  165.5(b)(2), CBP added language to clarify that the 
certification requirement, along with other submission requirements in 
sections 165.4 and 165.5, applies not only to submissions by interested 
parties, but also to submissions requested by CBP from any other party. 
Lastly, CBP replaced the reference to ``19 CFR'' with a section symbol 
in two places in Sec.  165.5(b)(2)(ii) and (iii) to make those 
references consistent with other references in the regulations.
    In addition, CBP added a new paragraph Sec.  165.5(b)(4), titled 
``Nonconforming submissions,'' clarifying that CBP will reject 
submissions that do not meet the requirements of paragraph (b) of this 
section, and will not consider or place them on the administrative 
record. In Sec.  165.5(c)(1), CBP added language in the first sentence 
to clarify that the request for extensions applies not only to 
regulatory time limits, but also to any deadlines for the submission of 
information requested by CBP. CBP has allowed for requests for 
extension of non-regulatory deadlines in prior investigations and takes 
the opportunity to confirm in the regulation that a party may request 
an extension of a deadline set by CBP. In addition, CBP added the words 
``by the requester'' at the end of the third sentence of paragraph 
(c)(1) in the definition of an extraordinary circumstance, which is an 
unexpected event that could not have been prevented even if the 
requester had taken reasonable measures. In paragraph (c)(2), CBP 
replaced ``retain it in'' the administrative record with ``place it 
on'' the administrative record to make the language consistent with 
other sections that have similar language.
    CBP revised the language in the second sentence of Sec.  165.13(c) 
by replacing the 95-calendar-day reference with regulatory language 
that reflects CBP's practice of notifying the parties to the 
investigation within five business days of making formal a decision to 
initiate an investigation and a decision to consolidate after day 90 of 
the investigation. This change is similar to the change in Sec.  
165.15(d)(1), as explained above. The changes to both Sec.  165.13(c) 
and Sec.  165.15(d)(1) will create uniformity among the regulations 
dealing with the timing of notification of decisions that CBP makes 
throughout the EAPA investigation process. CBP further reorganized the 
first sentence in Sec.  165.13(d) to read more easily and added a 
reference to public documents that need to be served on parties to the 
previously unconsolidated investigation once the parties subject to the 
consolidation are notified. Both public versions of documents and 
public documents are placed on the administrative record as part of the 
EAPA investigation. Lastly, CBP replaced the second and third mentions 
of the word ``upon'' in the first sentence of Sec.  165.13(d) with 
``on'' for clarity.
    CBP amended the first sentence of Sec.  165.14(a) to include the 
words ``but not limited to'' after ``including'' to emphasize that any 
Federal agency, in addition to Commerce and the ITC, may request an 
investigation under part 165.
    CBP added a phrase to Sec.  165.16(d) to include interim measures 
under Sec.  165.24, along with the deadline to decide whether to 
initiate an investigation and the deadline to issue a determination as 
to evasion under Sec.  165.27, setting forth that the time period for 
any referral to and determination by Commerce will not be counted 
toward the deadlines mentioned in this paragraph. The regulation is 
based on language in 19 U.S.C. 1517(b)(4)(C), which states that the 
period required for the referral to Commerce and the determination 
shall not be counted in calculating any deadline under this section, 
and interim measures are mentioned in paragraph (e) of section 1517 as 
well.
    In Sec. Sec.  165.22(a) and (d), CBP replaced the phrase ``not 
later'' with ``no later'' to be consistent with the use of the phrase 
in other regulations. This technical change does not change the 
deadlines associated with a determination as to evasion in this 
section. In paragraph (d), CBP changed the word ``notification'' to 
``notice'' in the paragraph heading to better reflect CBP's practice of 
serving the parties to the investigation with a notice, instead of 
simply notifying them of an extension of time to make a determination 
as to evasion. Further, CBP rephrased some of the language in Sec.  
165.22(b) to mirror the language in Sec.  165.13(a), and with this 
final rule, both sections will include the ``date of receipt of the 
first properly filed allegation'' instead of the ``date on which CBP 
receives the first of such allegations.''
    In Sec.  165.23(b), CBP changed the words ``Any party'' to the 
investigation at the beginning of the sentence to ``The parties'' to 
the investigation. This change clarifies CBP's intent as to who may 
submit additional information and makes the language consistent with 
the

[[Page 19253]]

term ``parties to the investigation,'' as defined in Sec.  165.1. For 
ease of reading, CBP reorganized 165.23(c)(2), breaking it out into 
subparagraph (i) dealing with the requirements associated with the 
voluntary submission of factual information and subparagraph (ii) 
detailing the requirements for the submission of rebuttal information 
to the submitted factual information.
    In the newly created paragraph (c)(2)(i), CBP added language to 
provide CBP with the discretion to extend the deadline for voluntary 
submission of factual information if CBP determines that circumstances 
warrant an extension. In many past investigations, CBP was under 
considerable time constraints to timely review and assess the 
information gathered during the investigation before making a 
determination as to evasion. In exceptional cases, CBP had already 
extended the deadline in Sec.  165.23(c)(2). When the interim 
regulations were drafted, the timelines stated therein seemed feasible; 
however, CBP's experience over the past seven years has shown that 
there are situations where CBP needs additional time to investigate 
and, therefore, needs to have the discretion to extend the deadline for 
the voluntary submission of factual information when the circumstances 
warrant. There may be situations where verifications are difficult to 
conduct due to travel restrictions or other obstacles, and CBP needs 
the flexibility to extend the deadline for the voluntary submission of 
factual information in order to conduct a fulsome investigation. If CBP 
extends the deadline in Sec.  165.23(c)(2)(i), the parties to the 
investigation will be notified of the extension and will be given the 
opportunity to make submissions up to the end of the extended deadline. 
To make the remaining language in Sec.  165.23 consistent with this 
change, CBP revised the last sentence of (c)(1) by removing the 
reference to the 200-day deadline and replacing it with a reference to 
(c)(2), which sets forth the deadline, including the possibility for 
CBP to extend the deadline at its discretion. It is important to note 
that this discretionary extension of the deadline in Sec.  
165.23(c)(2)(i) does not go beyond the statutory limit of 360 days (19 
U.S.C. 1517(c)(1)) by which CBP is required to make a determination as 
to evasion.
    In addition, in newly created Sec.  165.23(c)(2)(i), CBP replaced 
the clause ``except rebuttal information as permitted pursuant to the 
next sentence herein'' with a reference to (c)(2)(ii), pointing to the 
time frame and requirements for the submission of rebuttal information. 
Lastly, in the newly created paragraph (c)(2)(ii), CBP removed the 
phrase ``from the date of service of any factual information,'' keeping 
only the phrase ``from the date of placement of any new factual 
information'' because CBP's practice has been to use the date of 
placement of new factual information on the administrative record as 
the trigger for the 10-calendar-day period for providing rebuttal 
information. Removing this phrase does not change the parties' rights 
to provide rebuttal information and the time frame for submitting 
rebuttal information.
    In Sec.  165.23(d), CBP included language in the second sentence to 
clarify that CBP intends to place a written summary of an oral 
discussion between CBP and any party from whom CBP requests factual 
information on the administrative record once an investigation has been 
initiated, consistent with CBP's practice. It is important to note that 
oral discussions between the alleger and CBP regarding flaws in an 
allegation will not be placed on the administrative record. In 
addition, CBP switched the order of the words ``confidential'' and 
``business'' in the third sentence of paragraph (d) as the proper term 
is ``business confidential information'' and it was erroneously written 
in the interim regulations as ``confidential business information.''
    In Sec.  165.24, CBP replaced the word ``notification'' in the 
first sentence of paragraph (c) with ``notice'' as CBP serves an actual 
notice of the decision to take interim measures. In addition, CBP 
amended the last sentence of paragraph (c) stating that CBP will 
provide the public version of the administrative record within 10 
business days of issuing a notice of initiation of an investigation. 
When the interim regulations were drafted, it seemed operationally 
feasible to provide the public version of the administrative record and 
the notice of initiation of investigation and interim measures on the 
same date. However, due to TRLED's heavy workload, it has proven 
difficult in many cases to provide the entire administrative record, 
limited to public information, after day 90 of the investigation, on 
the same day as the notice of initiation of investigation and interim 
measures, as CBP needs time to prepare the public versions of documents 
on the administrative record before providing them to the parties to 
the investigation.
    CBP made changes to Sec.  165.26(a)(1) and (b)(1) that are similar 
to the changes discussed above for Sec.  165.23(c), providing CBP the 
discretion to extend the deadlines for submitting written arguments and 
responses to written arguments if the circumstances warrant. The need 
to extend a deadline under Sec.  165.26(a) has frequently become 
apparent, usually due to the verification process not being completed 
in time. The purpose of such an extension is to grant an additional 60 
days in those instances to complete the verification, give parties 
adequate time to present written arguments, and for CBP to make a 
determination as to evasion. In addition, CBP reorganized paragraph 
(a)(1) and included language stating that an extension of the 230-
calendar-day deadline cannot exceed 300 calendar days after the 
investigation was initiated, or 360 calendar days after the 
investigation was initiated (in case of an extension of the deadline 
for a determination as to evasion pursuant to Sec.  165.22(c)). This 
change will provide CBP the additional time needed to make a sound 
decision if circumstances warrant an extension. CBP also reorganized 
paragraph (b)(1) to include language regarding CBP's discretion to 
extend the 15-calendar-day deadline if CBP deems it necessary. Further, 
CBP slightly revised Sec.  165.26(d)(2) to make the language read more 
easily without changing the substance or meaning of the language.
    In Sec.  165.28(c), CBP added the phrase ``in accordance with the 
instructions received from the Department of Commerce'' at the end of 
the sentence in order to align the regulatory language with the 
statutory language in 19 U.S.C. 1517(d)(1)(D) and provide further 
clarity.
    In order to bring the EAPA regulations in line with the statutory 
language in 19 U.S.C. 1517(c), CBP removed the word ``initial'' before 
the word ``determination'' throughout Sec. Sec.  165.41, 165.45 and 
165.46. CBP added ``as to evasion'' after ``determination'' in the 
heading of subpart D, as well as in the section heading for Sec.  
165.41 to distinguish a determination as to evasion from a 
determination that is made during the administrative review. In 
addition, CBP has removed the last sentence of Sec.  165.41(i) as it is 
redundant and potentially confusing. The 30-business-day deadline for 
filing a request for an administrative review is set forth in Sec.  
165.41(d).
    CBP made three changes in the introductory paragraph of Sec.  
165.41(f). First, at the end of the first sentence, CBP added the 
phrase ``in total (including exhibits but not table of contents or 
table of authorities),'' which can also be found in Sec.  165.42, in 
order to make the page limit requirements for a request for 
administrative review

[[Page 19254]]

consistent with the requirements for a response to a request for 
administrative review. Second, CBP replaced the word ``upon'' with ``on 
for clarity. And third, CBP added a sentence to clarify that CBP will 
reject a request for administrative review that does not meet the 
requirements of paragraph (f) and will not consider it or place it on 
the administrative record. Further, in Sec.  165.41(h), CBP removed the 
language ``involving the same importer and merchandise'' as this is not 
a correct statement as to the consolidation of requests for 
administrative review. There is no limitation in practice as to the 
possibility of consolidating separate requests for administrative 
review that relate to one consolidated investigation, which may include 
different importers and merchandise.
    In addition, CBP added a sentence in Sec.  165.42 to clarify that 
the original submitter of a request for administrative review is not 
included as one of the parties who may submit a written response to the 
filed request for review. It has never been CBP's intent that a party 
who submitted a request for administrative review be able to respond to 
its own submission, and CBP wants to confirm this intent in the final 
regulation. CBP also replaced the word ``upon'' with ``on'' in Sec.  
165.42 for clarity.
    CBP amended Sec.  165.44 by adding two sentences at the end of the 
section to clarify that CBP will only accept written submissions of 
additional information in response to a request by CBP, and that 
meetings or any other methods of unsolicited submission of additional 
information during the administrative review are not permitted. 
Throughout subpart D, only written submissions and additional written 
information, and no other methods, such as oral discussions as allowed 
in subpart C, will be accepted. See Sec. Sec.  165.41(f), 165.42, and 
165.44.
    Lastly, CBP made two minor changes in Sec.  165.46. In paragraph 
(a), CBP replaced the reference to ``EAPA'' with a reference to 
``TFTEA'' as it is more accurate. In addition, CBP replaced the term 
``final administrative determination'' in Sec.  165.46(b) with 
``administrative review'' to mirror the statutory language used in 19 
U.S.C. 1517(f).

IV. Conclusion

    Based on the analysis of the comments and further consideration, 
CBP has decided to adopt as final the interim regulations published in 
the Federal Register on August 22, 2016, as modified by the changes 
based on public comments, and the technical changes and clarifications 
discussed above.

V. Statutory and Regulatory Requirements

A. Executive Orders 13563 and 12866

    Executive Orders 13563 (Improving Regulation and Regulatory Review) 
and 12866 (Regulatory Planning and Review), as amended by Executive 
Order 14094 (Modernizing Regulatory Review), direct agencies to assess 
the costs and benefits of available regulatory alternatives, and if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility.
    The Office of Management and Budget (OMB) has not designated this 
rule a significant regulatory action under section 3(f) of Executive 
Order 12866, as amended by Executive Order 14094. Accordingly, OMB has 
not reviewed it.
    This rule has resulted in undiscounted costs to the public of 
$20,008,985 to file allegations and communicate to CBP during the EAPA 
investigation process and to file administrative review requests since 
the IFR was published in 2016. The rule has resulted in $20,542,915 in 
costs to CBP. Qualitative benefits of this rule include improved 
enforcement of AD/CVD orders, increased transparency and predictability 
in the processing of AD/CVD evasion allegations, and increased 
communication with the public.
1. Purpose of the Rule
    As mentioned above, on February 24, 2016, President Obama signed 
into law the Trade Facilitation and Trade Enforcement Act of 2015, 
which contains Title IV-Prevention of Evasion of Antidumping and 
Countervailing Duty Orders (short title ``Enforce and Protect Act of 
2015'' or ``EAPA'') (Pub. L. 114-125, 130 Stat. 122, 155, (Feb. 24, 
2016) (19 U.S.C. 4301 note)). Section 421 of TFTEA requires that 
regulations be promulgated where necessary to implement the provisions 
of EAPA. Previous customs laws did not establish a set of specific 
formal procedures for parties to submit allegations of antidumping or 
countervailing duty (AD/CVD) evasion to CBP. EAPA provides CBP with new 
and additional tools with which to combat the problem of AD/CVD evasion 
with the establishment of a formal process for investigating 
allegations of the evasion of AD/CVD orders. On August 22, 2016, CBP 
published an interim final rule (IFR) in the Federal Register (81 FR 
56477), which established a transparent process for making allegations, 
investigating such allegations, and reporting the results of 
investigations. This process provides access to information for the 
parties to the investigation, giving CBP the opportunity to conduct 
improved and more thorough investigations of each allegation and to 
make informed AD/CVD evasion decisions. This final rule makes permanent 
the interim regulations, including a change based on the previously 
published technical correction, changes in light of the public comments 
received in the comment period, as well as changes based on CBP's own 
review of the interim regulations and the established investigation 
process.
    AD/CVD duties are an important trade measure that shields domestic 
companies from unfair trade practices by overseas competitors. In 
fiscal years 2020 and 2021, CBP assessed approximately $1.8 billion \5\ 
and $2.4 billion \6\ in antidumping and countervailing duties, 
respectively. With so much money at stake, the incentives to circumvent 
AD/CVD orders imposing these duties are high. The public benefits from 
having a more formalized and clear AD/CVD evasion allegation process, 
and such a process gives CBP the information it needs to be more 
effective with AD/CVD enforcement. Furthermore, this rule fulfills the 
legal mandate set forth in EAPA to establish a formal AD/CVD evasion 
allegations process and an investigation program.
---------------------------------------------------------------------------

    \5\ Source: CBP. CBP Trade and Travel Report. Available at 
https://www.cbp.gov/sites/default/files/assets/documents/2021-Feb/CBP-FY2020-Trade-and-Travel-Report.pdf. Accessed June 15, 2022.
    \6\ Source: CBP. CBP Trade and Travel Report. Available at 
https://www.cbp.gov/sites/default/files/assets/documents/2022-Apr/FINAL%20FY2021_%20Trade%20and%20Travel%20Report%20%28508%20Compliant%29%20%28April%202022%29_0.pdf. Accessed June 15, 2022.
---------------------------------------------------------------------------

Background
    The antidumping (AD) law provides relief to domestic industries 
that have been materially injured or are threatened with material 
injury by imported merchandise sold in the U.S. market at prices below 
fair market value. The countervailing duty (CVD) law provides relief to 
domestic industries that have been materially injured or are threatened 
with material injury by imported merchandise sold in the U.S. market 
that has been unfairly subsidized by a foreign government or

[[Page 19255]]

public entity. AD/CVD laws provide for additional import duties to be 
placed on the dumped or subsidized imports to offset the unfair dumping 
or subsidization of those imports.
    Before the promulgation of interim final regulations, there was not 
a formal procedure for interested parties and other Federal agencies to 
submit allegations and evidence of AD/CVD evasion to CBP or a 
requirement for CBP to undertake a formal investigation in response to 
allegations of evasion. If an entity wanted to file an AD/CVD grievance 
against another business it would have had to submit a grievance via 
CBP's Trade Violation Reporting (TVR) system for general e-Allegations 
or contact CBP by other means, and a CBP employee would assist it in 
submitting its allegation. After the alleger provided all the required 
information, CBP would examine the information and determine whether to 
initiate an informal inquiry. There was not a formal process in place 
for CBP to reach out to the entity initiating the allegation to inform 
it of the results of its grievance and in many cases the alleger never 
heard back from CBP after the allegation was made. There was also no 
mechanism for the accused entity to know that it was under an e-
Allegation investigation nor opportunity for it to provide information 
in its defense unless CBP decided to open a formal investigation. AD/
CVD grievances submitted via the ``Report Trade Violation'' option on 
the TVR website are commonly referred to as ``e-Allegations.''
Costs
    EAPA provides CBP with a formal process for conducting 
administrative investigations involving possible evasion of AD/CVD 
orders. CBP has established a new process under EAPA whereby CBP can 
formally reach out to the alleger, the alleged evader, and other 
interested parties with separate and distinct questionnaires in order 
to acquire information that will be used to determine whether an 
investigation is warranted and whether evasion is occurring or has 
occurred.
    Parties submitting EAPA allegations do so through the EAPA Portal, 
which was launched in April 2021. New users are prompted to create an 
account and provide their name and email address in the account 
creation process. The creation of an account and submission of an 
allegation via the EAPA Portal are estimated to take three minutes 
(0.05 hours) and 12 minutes (0.20 hours) respectively, for a total time 
burden of 15 minutes (0.25 hours) for a first EAPA allegation by a 
user. Information provided during account creation is automatically 
inserted into documents submitted to CBP through the EAPA Portal and 
reduces the time burden to submit an EAPA allegation by three minutes 
when compared to the time burden prior to the introduction of the EAPA 
Portal. Users would also save the three minutes related to account 
creation for each allegation submitted after the first when compared to 
the previous method of having to submit the information again directly 
into the EAPA Portal. Prior to the launching of the EAPA Portal (and 
its EAPA-dedicated predecessor), EAPA allegations were submitted via a 
dedicated link on CBP's TVR system to a document for the alleger to 
complete and documents submitted as part of the investigation were sent 
via email. The time it takes to enroll in the EAPA Portal is equal to 
the time saved the first time the EAPA Portal is used. For repeat 
users, there will be a three-minute time savings, but CBP lacks data to 
estimate how often this takes place. To the extent the EAPA Portal is 
used more than once by individual users, there will be a three-minute 
savings per use. For the purpose of this analysis, CBP assumes the EAPA 
Portal has no impact on time burdens.
    CBP estimates that the submission of an EAPA allegation takes 
approximately 15 minutes (0.25 hours).\7\ The statute requires a CBP 
employee to advise and provide technical assistance to the alleger in 
the filing of the EAPA allegation. In practice, this has eliminated the 
necessity of a follow-up questionnaire to be filled out by the alleger.
---------------------------------------------------------------------------

    \7\ Source: U.S. Customs and Border Protection. Supporting 
Statement for Paperwork Reduction Act Submission: 1651-0131, e-
Allegations Submission. September 24, 2020. Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202009-1651-006. 
Accessed November 24, 2020.
---------------------------------------------------------------------------

    The alleged evader may receive a CBP Form 28 (CF-28) (Request for 
Information) or an Initial Request for Information questionnaire and 
other interested parties may receive an Initial Request for Information 
questionnaire. Responding to CBP's request for information via these 
instruments is optional; however, any party, except, e.g., a foreign 
government, customer, or supplier, that chooses not to respond could be 
subject to adverse inferences and the investigation may lead to an 
unfavorable outcome for that party. The expected time burdens to 
complete and submit a response to the CF-28 and Initial Request for 
Information are approximately 60 and 90 hours, respectively.\8\ If CBP 
determines that more information is required to bring an EAPA case to a 
close, relevant parties will receive a Supplemental Request for 
Information questionnaire. A Supplemental Request for Information 
questionnaire is typically issued because a party did not fully answer 
questions in the CF-28 or Initial Request for Information 
questionnaire. The Supplemental Request for Information questionnaire 
is estimated to have a time burden of 60 hours to complete and 
submit.\9\
---------------------------------------------------------------------------

    \8\ Source: Email correspondence with CBP's Enforcement 
Operations Division on May 20, 2021.
    \9\ Source: Email correspondence with CBP's Enforcement 
Operations Division on May 20, 2021.
---------------------------------------------------------------------------

    To estimate the cost to the industry from filing an EAPA allegation 
and responding to the subsequent forms, CBP must first determine a 
value of time for entities who would complete and file the forms. CBP 
expects that, in most cases, these documents will be completed and 
filed by an outside attorney due to the complex and specialized nature 
of international trade law. CBP estimated the cost to companies to hire 
an outside attorney to be $400 per hour in 2016 \10\ and adjusted the 
wage to $466.38 in 2022 dollars.\11\ Each document's time burden is 
then multiplied by the hourly cost to hire an outside attorney to 
determine a total cost for each form. As shown in Table 1, the cost to 
file a single EAPA allegation is monetized by multiplying the time 
burden (.25 hours) and the hourly attorney costs ($466.38 in 2022 
dollars) which results in a cost of $116.60 per filing. The estimated 
cost to the industry for filing each document is shown in Table 1 along 
with their corresponding time burdens.
---------------------------------------------------------------------------

    \10\ Source: American Intellectual Property Law Association. 
2017 Report of the Economic Survey. ``Billable Hours, Billing Rate, 
Dollars Billed (Q29, Q30, Q27).'' June 2017.
    \11\ CBP calculated the 2021 adjusted dollar amount using the 
percent increase in the Annual Average GDP Price Deflator (2012=100) 
between 2016 and 2021. The annual average GDP Price Deflator value 
in 2016 = 105.74, the annual average GDP Price Deflator value in 
2021 = 118.37, the percent increase was estimated to be around 
11.19444% (118.37/105.74 = 1.119444 or 11.19444%). This percent 
increase was applied to the 2016 estimated hourly billing rate of 
$400 for external attorneys to estimate the 2021 hourly billing rate 
of $447.78 for external attorneys. CBP assumes an annual growth rate 
of 4.15% based on the prior year's change in the implicit price 
deflator, published by the Bureau of Economic Analysis, to arrive at 
the 2022 figure.
---------------------------------------------------------------------------

    This rule formalized the written argument process with the 
implementation of timelines for submittal. There is no additional cost 
to the public as a result of the new formal written argument process as 
the public already had the ability to submit written

[[Page 19256]]

arguments to CBP, though not as part of a formal process.
    This rule also established a process by which either the alleger or 
the alleged evader may request an administrative review of a 
determination as to evasion. The interested party has 30 business days 
after the determination to request an administrative review. CBP 
estimates an administrative review request takes 50 hours to complete 
and submit.

          Table 1--Time Burdens for Documents Submitted to CBP
------------------------------------------------------------------------
                                     Time burden    Cost per submission
        Document submitted           (in hours)      (in 2022 dollars)
------------------------------------------------------------------------
e-Allegations....................            0.25                $116.60
EAPA allegation..................            0.25                 116.60
CF-28 Response...................              60              27,982.80
Initial Request for Information                90              41,974.20
 Response........................
Supplemental Request for                       60              27,982.80
 Information Response............
Administrative Review Request....              50              23,319.00
------------------------------------------------------------------------

    The total cost of this rule to the industry is fully monetized by 
multiplying the cost per submission from Table 1 and the number of 
submissions in Table 2 and then summing the results for each year. The 
product of the cost per submission and the submissions by fiscal year 
are shown in Table 3, as well as the summing of each year's 
undiscounted costs.

                                       Table 2--Submissions by Fiscal Year
----------------------------------------------------------------------------------------------------------------
        Document submitted              2016         2017         2018         2019         2020         2021
----------------------------------------------------------------------------------------------------------------
e-Allegations (AD/CVD) *..........          115           76          106           91          106          147
EAPA allegations..................            2           29           57          127          149          127
CF-28 Response....................            1           17           19           54           46           47
Initial Request for Information               2           27           18           66           42           98
 Response.........................
Supplemental Request for                      0           13           18           26           13           47
 Information Response.............
Administrative Review Requests....            0            0            2            2           14           21
                                   -----------------------------------------------------------------------------
    Total Filings Caused by Rule..            5           86          114          275          264          340
----------------------------------------------------------------------------------------------------------------
Note: Submissions are sorted by the fiscal year the case was initiated, not by the year the individual document
  was received.
* Note: e-Allegation (AD/CVD) submissions are not included in Total Filings Caused by Rule.


                                                  Table 3--Industry Costs Caused by Rule by Fiscal Year
                                                             [In undiscounted 2022 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                6 Year
                      Document submitted                           2016         2017         2018         2019         2020         2021        Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
e-Allegations (AD/CVD) *.....................................      $13,408       $8,861      $12,359      $10,610      $12,359      $17,139      $74,737
EAPA allegations.............................................          233        3,381        6,646       14,808       17,373       14,808       57,248
CF-28 Response...............................................       27,983      475,708      531,673    1,511,071    1,287,209    1,315,192    5,148,835
Initial Request for Information Response.....................       83,948    1,133,303      755,536    2,770,297    1,762,916    4,113,472   10,619,473
Supplemental Request for Information Response................            0      363,776      503,690      727,553      363,776    1,315,192    3,273,988
Administrative Review Requests...............................            0            0       46,638       46,638      326,466      489,699      909,441
                                                              ------------------------------------------------------------------------------------------
    Total Industry Costs Caused by Rule......................      112,164    1,976,169    1,844,183    5,070,367    3,757,740    7,248,361   20,008,985
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Submissions are sorted by the fiscal year the case was initiated, not by the year the individual document was received.
* Note: e-Allegation (AD/CVD) submissions are not included in Total Industry Costs Caused by Rule.

    CBP incurs costs throughout the EAPA investigative process and 
created two new branches to handle the new filings and resulting 
investigations. These two new branches are staffed with a total of 15 
full-time equivalent (FTE) employees. The average CBP Trade and Revenue 
fully-loaded salary in fiscal year 2022 was $228,254.61.\12\ This rule 
created 15 full-time equivalent positions and multiplying this by the 
FY 2022 wage rate results in $3,423,819 in undiscounted costs annually 
since 2016. As shown in Table 5, the total costs to CBP for the fiscal 
years 2016-2021 were $22,811,066 and $26,205,984 discounted at three 
and seven percent, respectively.
---------------------------------------------------------------------------

    \12\ CBP bases this wage on the FY 2022 salary, benefits, 
premium pay, non-salary costs, and awards of the national average of 
CBP Trade and Revenue positions, which is equal to a GS-12, Step 10. 
Source: Email correspondence with CBP's Office of Finance on June 
27, 2022.
---------------------------------------------------------------------------

    In summary, this rule resulted in a cost to the public of 
$18,337,822 to file EAPA allegations and respond to the questionnaires, 
under the EAPA investigation process since the EAPA IFR was published 
in 2016. In addition, CBP estimates that it cost the public $873,171 to 
file administrative review requests. In total, this rule has resulted 
in an undiscounted cost to the public of $19,210,993 and $20,542,915 to 
CBP.

[[Page 19257]]



                                               Table 4--Total Cost
                                       [In undiscounted 2022 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
                           Fiscal year                               Industry           CBP            Total
----------------------------------------------------------------------------------------------------------------
2016............................................................        $112,164      $3,423,819      $3,535,984
2017............................................................       1,976,169       3,423,819       5,399,988
2018............................................................       1,844,183       3,423,819       5,268,002
2019............................................................       5,070,367       3,423,819       8,494,186
2020............................................................       3,757,740       3,423,819       7,181,559
2021............................................................       7,248,361       3,423,819      10,672,181
                                                                 -----------------------------------------------
    Total.......................................................      20,008,985      20,542,915      40,551,900
----------------------------------------------------------------------------------------------------------------


                      Table 5--Monetized Present Value and Annualized Costs by Fiscal Year
----------------------------------------------------------------------------------------------------------------
                                       Industry                       CBP                        Total
                             -----------------------------------------------------------------------------------
         Fiscal year           3% Discount   7% Discount   3% Discount   7% Discount   3% Discount   7% Discount
                                  rate          rate          rate          rate          rate          rate
----------------------------------------------------------------------------------------------------------------
2016........................      $133,930      $168,329    $4,088,219    $5,138,229    $4,222,149    $5,306,558
2017........................     2,290,921     2,771,679     3,969,145     4,802,084     6,260,066     7,573,762
2018........................     2,075,644     2,417,348     3,853,539     4,487,929     5,929,183     6,905,276
2019........................     5,540,527     6,211,417     3,741,300     4,194,326     9,281,826    10,405,743
2020........................     3,986,587     4,302,237     3,632,330     3,919,931     7,618,916     8,222,167
2021........................     7,465,812     7,755,747     3,526,534     3,663,487    10,992,346    11,419,233
                             -----------------------------------------------------------------------------------
    Total...................    21,493,421    23,626,756    22,811,066    26,205,984    44,304,487    49,832,740
                             -----------------------------------------------------------------------------------
    Annualized Cost.........     3,226,048     3,086,842     3,423,819     3,423,819     6,649,867     6,510,661
----------------------------------------------------------------------------------------------------------------

4. Benefits
    Domestic producers and legitimate importers benefit from better 
enforcement as a result of this rule. In fiscal year 2021, the EAPA 
process prevented the evasion of over $375 million in AD/CVD 
duties.\13\ As domestic producers and legitimate importers grow more 
accustomed to the EAPA process, it is likely that this number will 
increase but CBP is unable to quantify this growth at this time.
---------------------------------------------------------------------------

    \13\ Source: CBP. CBP Trade and Travel Report. Available at 
https://www.cbp.gov/sites/default/files/assets/documents/2022-Apr/FINAL%20FY2021_%20Trade%20and%20Travel%20Report%20%28508%20Compliant%29%20%28April%202022%29_0.pdf. Accessed on June 16, 2022. Although 
data is available for some years prior to fiscal year 2021, in light 
of the newness of the EAPA program, CBP does not believe the data 
can be used to extrapolate a trend.
---------------------------------------------------------------------------

    Importers and domestic producers also benefit from increased 
transparency and predictability in the processing of AD/CVD evasion 
allegations because of this rule. Previously, an alleger submitted an 
e-Allegation to CBP and CBP was not able to provide any subsequent 
follow up to that alleger. This rule increased the transparency of the 
allegation process and set clear time frames for all parties involved. 
Furthermore, CBP increased communication with the public as a result of 
this rule, specifically regarding technical assistance and advice on 
how to properly file AD/CVD evasion allegations. This outreach could 
result in faster processing and response times for grievances; however, 
CBP is unable to quantify these benefits.
    Additionally, this rule established a stronger working relationship 
among CBP, the trade community, and foreign governments in the effort 
to prevent evasion of AD/CVD duties. This rule gave CBP access to more 
information from all affected parties, which helps CBP improve AD/CVD 
enforcement. This rule helps prevent the circumvention of the AD/CVD 
laws, which benefits domestic producers by shielding them from unfair 
trade practices. Furthermore, to the extent that this rule reduces the 
evasion of AD/CVD payments, the government will benefit through higher 
AD/CVD revenue.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
requires agencies to prepare and make available to the public a 
regulatory flexibility analysis that describes the effect of a proposed 
rule on small entities (i.e., small businesses, small organizations, 
and small governmental jurisdictions) when the agency is required to 
publish a general notice of proposed rulemaking for a rule. Since a 
general notice of proposed rulemaking was not necessary for the IFR, 
CBP is not required to prepare a regulatory flexibility analysis for 
this rule.
Paperwork Reduction Act
    The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d)) 
requires that CBP consider the impact of paperwork and other 
information collection burdens imposed on the public. An agency may not 
conduct, and a person is not required to respond to, a collection of 
information unless the collection of information displays a valid 
control number assigned by the Office of Management and Budget (OMB).
    The e-Allegations submission information collection, which is 
assigned OMB control number: 1651-0131,\14\ is being amended to reflect 
the change in burden hours caused by the EAPA requirements, and to 
include the EAPA Portal as described above, and to reflect the 
provisions of Sec. Sec.  165.5(a) and 165.23(a). To create an account 
to access the EAPA Portal and submit an EAPA allegation, users provide 
their first name, last name, and email address and the process of 
account creation is estimated to take three minutes (0.05 hours). CBP 
estimates that the creation of 250 EAPA Portal accounts annually will 
add a total time burden of approximately 13 hours to the public.

[[Page 19258]]

CBP estimates that 149 EAPA allegations will be filed annually which is 
an increase of 82 from what was previously approved by OMB. These 
additional 82 EAPA allegations will result in an additional time burden 
of approximately 13 hours to the public, resulting in a total time 
burden of 30 hours to the public. In total, this rule resulted in an 
overall increase of 26 burden hours from what is currently approved by 
OMB. This increases the total burden hours for this collection from 289 
to 315. The e-Allegations submission revisions described in this rule 
have been submitted to OMB for review and approval in accordance with 
the requirements of the Paperwork Reduction Act (44 U.S.C. 3507). OMB 
control number 1651-0131 is being revised to reflect the change in 
burden hours for EAPA respondents (i.e., those responding to the EAPA 
submission requirements) and to confirm the burden hours for e-
Allegations as follows:
---------------------------------------------------------------------------

    \14\ CBP notes that the TVR system continues to be used for 
purposes other than EAPA.
---------------------------------------------------------------------------

E-Allegations
    Estimated number of annual respondents: 1,088.
    Estimated number of annual responses: 1,088.
    Estimated time burden per response: 15 minutes (.25 hours).
    Estimated total annual time burden: 272 hours.
EAPA Allegations
    Estimated number of annual respondents: 149.
    Estimated number of annual responses: 149.
    Estimated time burden per response: 12 minutes (0.20 hours).
    Estimated total annual time burden: 30 hours.
EAPA Portal Account Creation
    Estimated number of annual respondents: 250.
    Estimated number of annual responses: 250.
    Estimated time burden per response: 3 minutes (0.05 hours).
    Estimated total annual time burden: 13 hours.
    Comments concerning the collections of information and the accuracy 
of the estimated annual burden, and suggestions for reducing that 
burden, should be submitted to OMB via https://www.reginfo.gov.

Signing Authority

    This document is being issued in accordance with 19 CFR 0.1(a)(1) 
pertaining to the authority of the Secretary of the Treasury (or the 
Secretary's delegate) to approve regulations related to certain customs 
revenue functions.
    Troy A. Miller, Senior Official Performing the Duties of the 
Commissioner, having reviewed and approved this document, has delegated 
the authority to electronically sign this document to the Director (or 
Acting Director, if applicable) of the Regulations and Disclosure Law 
Division of CBP, for purposes of publication in the Federal Register.

List of Subjects in 19 CFR Part 165

    Administrative practice and procedure, Business and industry, 
Imports.

Amendments to the Regulations

    For the reasons given above, the IFR, which was published at 81 FR 
56477 on August 22, 2016, adding part 165 to Chapter I of the CBP 
regulations (19 CFR part 165), is adopted as final with the following 
changes:

PART 165--INVESTIGATION OF CLAIMS OF EVASION OF ANTIDUMPING AND 
COUNTERVAILING DUTIES

0
1. The general authority citation for part 165 continues to read as 
follows:

    Authority: 19 U.S.C. 66, 1481, 1484, 1508, 1517 (as added by 
Pub. L. 114-125, 130 Stat. 122, 155 (19 U.S.C. 4301 note)), 1623, 
1624, 1671, 1673.


0
2. Section 165.1 is amended by:
0
a. Revising the definition of ``Allegation'';
0
b. Adding the definition ``Business day'' in alphabetical order;
0
c. Revising the definition of ``Evade or evasion''; and
0
d. Revising the definition of ``TRLED''.
    The addition and revisions read as follows:


Sec.  165.1  Definitions.

* * * * *
    Allegation. The term ``allegation'' refers to a filing with CBP 
under Sec.  165.11 by an interested party that alleges an act of 
evasion of AD/CVD orders by an importer.
* * * * *
    Business day. The term ``business day'' means a weekday (Monday 
through Friday), excluding national holidays as specified in Sec.  
101.6(a) of this chapter.
* * * * *
    Evade or Evasion. The terms ``evade'' and ``evasion'' refer to the 
entry of covered merchandise into the customs territory of the United 
States for consumption by means of any document or electronically 
transmitted data or information, written or oral statement, or act that 
is material and false, or any omission that is material, and that 
results in any cash deposit or other security or any amount of 
applicable antidumping or countervailing duties being reduced or not 
being applied with respect to the covered merchandise. Examples of 
evasion include, but are not limited to, the transshipment, 
misclassification, and/or undervaluation of covered merchandise.
* * * * *
    TRLED. The term ``TRLED'' refers to the Trade Remedy Law 
Enforcement Directorate, Office of Trade, that conducts the 
investigation of alleged evasion under this part, and that was 
established as required by section 411 of the Trade Facilitation and 
Trade Enforcement Act of 2015 (TFTEA).

0
f. Section 165.3 is amended by adding a new paragraph (f) to read as 
follows:


Sec.  165.3   Power of attorney.

* * * * *
    (f) Return of submission. If a party has not provided proof of 
execution of a power of attorney to CBP within five business days of an 
agent's first submission on behalf of an interested party pursuant to 
paragraph (e) of this section, or proof of authority to execute a power 
of attorney, if requested by CBP, pursuant to paragraph (c) of this 
section, CBP will reject the submission and will not consider or place 
such submission on the administrative record.

0
4. Section 165.4 is amended by:
0
a. Revising the introductory text of paragraphs (a) and (b);
0
b. Revising paragraph (b)(3) and (e);
0
c. Adding a new paragraph (f).
    The revisions and addition read as follows:


Sec.  165.4  Release of information provided by interested parties.

    (a) Claim for business confidential treatment. Any interested party 
that makes a submission to CBP in connection with an investigation 
under this part, including for its initiation and administrative 
review, may request that CBP treat any part of the submission as 
business confidential information except for the information specified 
in paragraph (c) of this section. If the requirements of this section 
are satisfied and the information for which protection is sought 
consists of trade secrets and/or commercial or financial information 
obtained from any person, which is privileged or confidential in 
accordance with 5 U.S.C. 552(b)(4), CBP will grant business 
confidential treatment and issue an administrative protective order 
pursuant to paragraph (f) of this section. All documents and

[[Page 19259]]

communications that are submitted to CBP after notice of initiation of 
an investigation must be served on all parties to the investigation by 
the submitting entity (for business confidential documents, a public 
version must be served as well, in accordance with paragraph (a)(2) of 
this section).
* * * * *
    (b) Nonconforming submissions. CBP will reject a submission that 
includes a request for business confidential treatment but does not 
meet the requirements of paragraph (a) of this section and will not 
consider or place such submission on the administrative record unless 
the submitting interested party takes any of the actions in paragraph 
(b)(2) of this section within the timeframe specified in paragraph 
(b)(2) of this section.
* * * * *
    (3) Effects of rejection. If the submitting interested party does 
not take any of the actions in accordance with paragraph (b)(2) of this 
section, CBP will not consider the rejected submission, not place such 
submission on the administrative record, and, if applicable, adverse 
inferences may be drawn pursuant to Sec.  165.6.
* * * * *
    (e) Information placed on the record by CBP. Any information that 
CBP places on the administrative record, when obtained other than from 
an interested party subject to the requirements of this section, will 
include a public summary of the business confidential information as 
described in paragraph (a)(2) of this section, when applicable. If CBP 
places information on the record from parties who are not already 
subject to the requirements of this section, CBP will require these 
parties to conform to the requirements of this section and Sec.  165.5 
when filing submissions. Otherwise, such submissions may be treated as 
nonconforming submissions pursuant to paragraph (b) of this section 
and/or Sec.  165.5(b)(4).
    (f) Administrative protective order. In each investigation where 
CBP has granted a request by an interested party to treat any part of 
its submission as business confidential information, CBP will issue an 
administrative protective order which will contain terms to allow the 
representatives of parties to the investigation to access the business 
confidential information.

0
5. Section 165.5 is amended by:
0
a. Revising paragraph (b)(2) introductory text;
0
b. Removing in paragraphs (b)(2)(ii) and (iii) the reference ``19 CFR'' 
and adding in its place ``Sec. '';
0
c. Adding a new paragraph (b)(4); and
0
d. Revising paragraphs (c)(1) and (2).
    The revisions and addition read as follows:


Sec.  165.5  Obtaining and submitting information.

* * * * *
    (b) * * *
    (2) Certifications. Every written submission made to CBP by an 
interested party or requested by CBP from any other party pursuant to 
Sec. Sec.  165.4 and 165.5 must be accompanied by the following 
certifications from the person making the submission:
* * * * *
    (4) Nonconforming submissions. CBP will reject a submission that 
does not meet the requirements of paragraph (b) of this section and 
will not consider it or place it on the administrative record.
    (c) * * *
    (1) Requests for extensions. CBP may, for good cause, extend any 
regulatory time limit, or any deadline for the submission of 
information requested by CBP, if a party requests an extension in a 
separate, stand-alone submission and states the reasons for the 
request. Such requests must be submitted no less than three business 
days before the time limit expires unless there are extraordinary 
circumstances. An extraordinary circumstance is an unexpected event 
that could not have been prevented even if reasonable measures had been 
taken by the requester. It is within CBP's reasonable discretion to 
determine what constitutes extraordinary circumstances, what 
constitutes good cause, and to grant or deny a request for an 
extension.
    (2) Rejection of untimely submissions. If a submission is untimely 
filed, CBP will not consider it or place it on the administrative 
record and adverse inferences may be applied, if applicable.

0
6. Section 165.6 is amended by revising paragraph (b) to read as 
follows:


Sec.  165.6  Adverse inferences.

* * * * *
    (b) Adverse inferences described. An adverse inference used under 
paragraph (a) may include reliance on information derived from an 
allegation, a prior determination in another CBP investigation, 
proceeding, or action that involves evasion of AD/CVD orders, or any 
other available information on the administrative record.
* * * * *

0
7. Section 165.12 is amended by revising paragraph (b) to read as 
follows:


Sec.  165.12  Receipt of allegations.

* * * * *
    (b) Withdrawal. An allegation may be withdrawn by the party that 
filed it if that party submits a request to withdraw the allegation to 
the designated email address specified by CBP or through any other 
method approved or designated by CBP.

0
8. Section 165.13 is amended by revising paragraphs (c) and (d) to read 
as follows:


Sec.  165.13   Consolidation of allegations.

* * * * *
    (c) Notice. Notice of consolidation will be promptly transmitted to 
all parties to the investigation if consolidation occurs at a point in 
the investigation after which they have already been notified of the 
ongoing investigation. Otherwise, parties will be notified no later 
than five business days after day 90 of the investigation.
    (d) Service requirements for other parties to the investigation. 
Upon notification of consolidation, parties to the consolidated 
investigation must serve on the newly added parties to the 
investigation, via an email message or through any other method 
approved or designated by CBP, public documents and the public versions 
of any documents that were previously served on parties to the 
unconsolidated investigation. Service must take place within five 
business days of the notice of consolidation.

0
9. Section 165.14 is amended by revising paragraph (a) to read as 
follows:


Sec.  165.14  Other Federal agency requests for investigation.

    (a) Requests for investigations. Any other Federal agency, 
including but not limited to the Department of Commerce or the United 
States International Trade Commission, may request an investigation 
under this part. CBP will initiate an investigation if the Federal 
agency has provided information that reasonably suggests that an 
importer has entered covered merchandise into the customs territory of 
the United States through evasion, unless the agency submits a request 
to withdraw to the designated email address specified by CBP or through 
any other method approved or designated by CBP.
* * * * *

0
10. Section 165.15 is amended by revising paragraphs (d)(1) and (e) to 
read as follows:


Sec.  165.15   Initiation of investigations.

* * * * *
    (d) * * *
    (1) In general. CBP will issue a notice of its decision to initiate 
an

[[Page 19260]]

investigation to all parties to the investigation no later than five 
business days after day 90 of the investigation, and the actual date of 
initiation of the investigation will be specified therein. In cases 
where interim measures are taken pursuant to Sec.  165.24, notice to 
all parties to the investigation will occur no later than five business 
days after day 90 of the investigation.
* * * * *
    (e) Record of the investigation. If an investigation is initiated 
pursuant to subpart B of this part, then the information considered by 
CBP prior to initiation will be part of the administrative record 
pursuant to Sec.  165.21. Any documents submitted prior to the issuance 
of a notice of CBP's decision to initiate an investigation will be 
served by CBP on the parties to the investigation, regardless of who 
submitted those documents.

0
11. Section 165.16 is amended by revising paragraph (d).


Sec.  165.16   Referrals to Department of Commerce.

* * * * *
    (d) Effect on investigation. The time period required for any 
referral and determination by the Department of Commerce will not be 
counted toward the deadlines for CBP to decide on whether to initiate 
an investigation under Sec.  165.15, whether to take interim measures 
under Sec.  165.24, or the deadline to issue a determination as to 
evasion under Sec.  165.27.
* * * * *

0
12. Section 165.22 is amended by:
0
a. In paragraph (a) removing the words ``not later'' and adding in 
their place the words ``no later'';
0
b. Revising paragraph (b);
0
c. In paragraph (d), removing the words ``not later'' and adding in 
their place the words ``no later''; and
0
c. In paragraph (d), removing the word ``Notification'' and adding in 
its place the word ``Notice''.
    The revision reads as follows:


Sec.  165.22   Time for investigations.

* * * * *
    (b) Time for determination with consolidated allegations. If CBP 
consolidates multiple allegations under Sec.  165.13 into a single 
investigation under Sec.  165.15, the date of receipt of the first 
properly filed allegation will be used for the purposes of the 
requirement under paragraph (a) of this section with respect to the 
timing of the initiation of the investigation.
* * * * *

0
13. Section 165.23 is amended by:
0
a. Revising paragraph (b);
0
b. Revising the last sentence of paragraph (c)(1);
0
c. Revising paragraph (c)(2); and
0
d. Revising paragraph (d).
    The revisions read as follows:


Sec.  165.23  Submission of factual information.

* * * * *
    (b) Voluntary submission of factual information. The parties to the 
investigation may submit additional information in order to support the 
allegation of evasion or to negate or clarify the allegation of 
evasion.
    (c) * * *
    (1) * * * If CBP places new factual information on the 
administrative record on or after the deadline for submissions of new 
factual information pursuant to paragraph (c)(2) of this section (or if 
such information is placed on the record at CBP's request), the parties 
to the investigation will have 10 calendar days to provide rebuttal 
information to the new factual information.
    (2) Voluntary submission of factual information. (i) Factual 
information voluntarily submitted to CBP pursuant to paragraph (b) of 
this section must be submitted no later than 200 calendar days after 
CBP initiated the investigation under Sec.  165.15, unless this 
deadline is officially extended by CBP solely at CBP's discretion. If 
CBP extends this deadline, parties to the investigation will be 
notified and may make submissions up through the end of the extended 
deadline. Voluntary submissions made after the 200th calendar day after 
initiation of the investigation, or after the extended deadline, will 
not be considered or placed on the administrative record, except 
rebuttal information as provided in paragraph (c)(2)(ii) of this 
section. The public version must also be served via an email message or 
through any other method approved or designated by CBP on the parties 
to the investigation.
    (ii) Parties to the investigation will have 10 calendar days from 
the date of placement of any new factual information on the record to 
provide rebuttal information to that new factual information, if the 
information being rebutted was placed on the administrative record no 
later than 200 calendar days after CBP initiated the investigation 
under Sec.  165.15, or no later than the extended deadline.
    (d) Oral discussions. Notwithstanding the time limits in paragraph 
(c) of this section, CBP may request oral discussion either in-person 
or by teleconference. CBP will memorialize such discussions with a 
written summary that identifies who participated and the topic of 
discussion, and place the written summary on the administrative record. 
In the event that business confidential information is included in the 
written summary, CBP will also place a public version on the 
administrative record.

0
14. Section Sec.  165.24 is amended by revising paragraph (c) to read 
as follows:


Sec.  165.24   Interim measures.

* * * * *
    (c) Notice. If CBP decides that there is reasonable suspicion under 
paragraph (a) of this section, CBP will issue a notice of this decision 
to the parties to the investigation within five business days after 
taking interim measures. CBP will also provide parties to the 
investigation with a public version of the administrative record within 
10 business days of the issuance of a notice of initiation of an 
investigation.

0
15. Section 165.25 is amended by:
0
a. Revising paragraph (b); and
0
b. Adding new paragraphs (c) and (d).
    The revision and additions read as follows:


Sec.  165.25   Verifications of information.

* * * * *
    (b) CBP may conduct verifications before and after the deadline for 
the voluntary submission of new factual information as referenced in 
Sec.  165.23. The general purpose of the verification is to verify the 
accuracy of the information already placed on the administrative 
record.
    (c) CBP will place a report about the verification, i.e., the 
verification report, on the administrative record. CBP will require the 
party that underwent the verification to place verification exhibits on 
the administrative record. Verification exhibits will generally contain 
information compiled and verified by CBP at CBP's discretion during the 
verification. In accordance with Sec.  165.4, both CBP and the party 
that underwent the verification will provide public versions of their 
verification documents, which will be served on all parties to the 
investigation. CBP will not accept voluntary submissions of new factual 
information at the verification after the deadline for voluntary 
submission of new factual information, as referenced in Sec.  165.23. 
Parties to the investigation cannot submit rebuttal information to 
either CBP's verification report or the verification exhibits. Parties 
to the investigation may submit to CBP written arguments in relation to 
the verification report and/or its exhibits in accordance with Sec.  
165.26.
    (d) If CBP determines that information discovered during a 
verification is

[[Page 19261]]

relevant to the investigation and constitutes new factual information, 
CBP will place it on the administrative record separately, in 
accordance with Sec.  165.23, and allow parties to the investigation to 
submit rebuttal information.

0
16. Section 165.26 is amended by revising paragraphs (a), (b), (c), and 
(d)(2) to read as follows:


Sec.  165.26  Written arguments.

* * * * *
    (a) Written arguments. Parties to the investigation:
    (1) May submit to CBP written arguments that contain all arguments 
that are relevant to the determination as to evasion and based solely 
upon facts already on the administrative record in that proceeding. All 
written arguments must be:
    (i) Submitted to the designated email address specified by CBP or 
through any other method approved or designated by CBP;
    (ii) Submitted no later than 230 calendar days after the 
investigation was initiated pursuant to Sec.  165.15, unless extended 
by CBP solely at CBP's discretion but no later than 300 calendar days 
after the investigation was initiated, or 360 calendar days after the 
investigation was initiated if the deadline for a determination as to 
evasion has been extended by CBP pursuant to Sec.  165.22(c); and
    (2) Must serve a public version of the written arguments prepared 
in accordance with Sec.  165.4 on the other parties to the 
investigation by an email message or through any other method approved 
or designated by CBP the same day it is filed with CBP.
    (b) Responses to the written arguments. Parties to the 
investigation:
    (1) May submit to CBP a response to a written argument filed by 
another party to the investigation, fulfilling the following 
requirements:
    (i) The response must be in writing and submitted to the designated 
email address specified by CBP, or through any other method approved or 
designated by CBP, no later than 15 calendar days after the written 
argument was filed with CBP, unless extended by CBP solely at CBP's 
discretion; and
    (ii) The response must be limited to the issues raised in the 
written argument; any portion of a response that is outside the scope 
of the issues raised in the written argument will not be considered; 
and
    (2) Must serve a public version of the response prepared in 
accordance with Sec.  165.4 on the other parties to the investigation 
by an email message or through any other method approved or designated 
by CBP the same day it is filed with CBP.
    (c) Written arguments submitted upon request. Notwithstanding 
paragraphs (a) and (b) of this section, CBP may request written 
arguments on any issue from the parties to the investigation at any 
time during an investigation.
    (d) * * *
    (2) A concise summary of the argument or response to the argument;
* * * * *

0
17. Section 165.28 is amended by revising paragraph (c) to read as 
follows:


Sec.  165.28   Assessments of duties owed; other actions.

* * * * *
    (c) Cash deposits and duty assessment. CBP will require the posting 
of cash deposits and assess duties on entries of covered merchandise 
subject to its affirmative determination of evasion in accordance with 
the instructions received from the Department of Commerce.

0
18. Revise the heading to subpart D to read as follows:

Subpart D--Administrative Review of Determinations as to Evasion

0
19. Section 165.41 is amended by:
0
a. Removing the word ``initial'' in the section heading and each time 
it appears in the section;
0
b. Revising the introductory text of paragraph (f);
0
c. Revising paragraph (h); and
0
d. Removing the last sentence of paragraph (i).
    The revisions read as follows:


Sec.  165.41   Filing a request for review of the determination as to 
evasion.

* * * * *
    (f) Content. Each request for review must be based solely on the 
facts on the administrative record in the proceeding, in writing, and 
may not exceed 30 pages in total (including exhibits but not table of 
contents or table of authorities). It must be double-spaced with 
headings and footnotes single spaced, margins one inch on all four 
sides, and 12-point font Times New Roman. If it exceeds 10 pages, it 
must include a table of contents and a table of cited authorities. CBP 
will reject a request for review that does not meet the requirements of 
this paragraph, and will not consider it or place it on the 
administrative record. Each request for review must set forth the 
following:
* * * * *
    (h) Consolidation of requests for administrative review. Multiple 
requests under the same allegation control number assigned by CBP may 
be consolidated into a single administrative review matter.
* * * * *

0
20. Revise Sec.  165.42 to read as follows:


Sec.  165.42  Responses to requests for administrative review.

    Any party to the investigation, regardless of whether it submitted 
a request for administrative review, may submit a written response to 
the filed request(s) for review. A party who submitted a request for 
administrative review may not respond to its own submission. Each 
written response may not exceed 30 pages in total (including exhibits 
but not table of contents or table of authorities) and must follow the 
requirements in Sec.  165.41(f). The written responses to the 
request(s) for review must be limited to the issues raised in the 
request(s) for review and must be based solely on the facts already on 
the administrative record in that proceeding. The responses must be 
filed in a manner prescribed by CBP no later than 10 business days from 
the commencement of the administrative review. All responses must be 
accompanied by the certifications provided for in Sec.  165.5. Each 
party seeking business confidential treatment must comply with the 
requirements in Sec.  165.4. The public version of the response(s) to 
the request(s) for review must be provided to the other parties to the 
investigation via an email message or through any other method approved 
or designated by CBP.

0
21. Revise Sec.  165.44 to read as follows:


Sec.  165.44  Additional information.

    CBP may request additional written information from the parties to 
the investigation at any time during the review process. The parties 
who provide the requested additional information must provide a public 
version to the other parties to the investigation via an email message 
or through any other method approved or designated by CBP. The 
submission of additional information requested by CBP must comply with 
requirements for release of information in Sec.  165.4. CBP may apply 
an adverse inference as stated in Sec.  165.6 if the additional 
information requested under this section is not provided. CBP will only 
accept written submissions of additional information in response to a 
request by CBP. No meetings or any other methods of unsolicited 
submission of additional information are permitted during the 
administrative review.

0
22. Revise Sec.  165.45 to read as follows:

[[Page 19262]]

Sec.  165.45   Standard for administrative review.

    CBP will apply a de novo standard of review and will render a 
determination appropriate under law according to the specific facts and 
circumstances on the record. For that purpose, CBP will review the 
entire administrative record upon which the determination as to evasion 
was made, the timely and properly filed request(s) for review and 
responses, and any additional information that was received in response 
to a request by CBP pursuant to Sec.  165.44. The administrative review 
will be completed within 60 business days of the commencement of the 
review.

0
23. Section Sec.  165.46 is amended by:
0
a. Removing in paragraph (a) the acronym ``EAPA'' and adding in its 
place the acronym ``TFTEA''; and
0
b. Revising paragraph (b).
    The revision reads as follows:


Sec.  165.46  Final administrative determination.

* * * * *
    (b) Effect of the administrative review. If the administrative 
review affirms the determination as to evasion, then no further CBP 
action is needed. If the administrative review reverses the 
determination as to evasion, then CBP will take appropriate actions 
consistent with the administrative review.

Robert F. Altneu,
Director, Regulations & Disclosure Law Division, Regulations & Rulings, 
Office of Trade, U.S. Customs and Border Protection.
Aviva R. Aron-Dine,
Acting Assistant Secretary of the Treasury for Tax Policy.
[FR Doc. 2024-04713 Filed 3-15-24; 8:45 am]
BILLING CODE 9111-14-P