[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)]
[Rules and Regulations]
[Pages 56477-56490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20007]
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DEPARTMENT OF HOMELAND SECURITY
Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Part 165
[USCBP-2016-0053; CBP Dec. 16-11]
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: Interim regulations; solicitation of comments.
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SUMMARY: In accordance with section 421 of the Trade Facilitation and
Trade Enforcement Act of 2015, this rule amends the U.S. Customs and
Border Protection regulations to set forth procedures for CBP to
investigate claims of evasion of antidumping and countervailing duty
orders.
DATES: The interim rule is effective August 22, 2016; comments must be
received by October 21, 2016.
ADDRESSES: You may submit comments, identified by docket number, by one
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2016-0053.
Mail: Trade and Commercial Regulations Branch, Regulations
and Rulings, Office of Trade, U.S. Customs and Border Protection, 90 K
Street NE., 10th Floor, Washington, DC 20229-1177.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also be inspected during regular business days between the hours of
9 a.m. and 4:30 p.m. at the Trade and Commercial Regulations Branch,
Regulations and Rulings, Office of Trade, U.S. Customs and Border
Protection, 90 K Street NE., 10th Floor, Washington, DC Arrangements to
inspect submitted comments should be made in advance by calling Mr.
Joseph Clark at (202) 325-0118.
FOR FURTHER INFORMATION CONTACT: Kevin M. McCann, Chief, Analytical
Communications Branch, Office of Trade, U.S. Customs and Border
Protection, 202-863-6078.
SUPPLEMENTARY INFORMATION:
Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
interim rule. U.S. Customs and Border Protection (CBP) also invites
comments that relate to the economic, environmental, or federalism
effects that might result from this interim rule. Comments that will
provide the most assistance to CBP in developing these regulations will
reference a specific portion of the interim rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. See ADDRESSES above for
information on how to submit comments.
Background
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). The EAPA establishes a formal process for CBP to investigate
allegations of the evasion of AD/CVD orders. Section 421 of the EAPA
requires that regulations be prescribed as necessary and within 180
days of TFTEA's enactment to implement the provisions of the EAPA that
establish procedures for investigating claims of evasion of AD/CVD
orders.
Antidumping and Countervailing Duty Orders
The antidumping (AD) law provides for increased duties on imported
[[Page 56478]]
products that the United States International Trade Commission (ITC)
has found to have materially injured or threatened with material injury
a domestic industry and that the United States Department of Commerce
(Commerce) has found to have been sold in the U.S. market at prices
below fair market value. The countervailing duty (CVD) law provides for
increased duties on imported products that the ITC has found to have
materially injured or threatened with material injury a domestic
industry and that Commerce has found to have benefitted from a
countervailable subsidy from a foreign government or public entity.
Statutory authority for AD and CVD investigations derives from Title
VII of the Tariff Act of 1930, as amended, 19 U.S.C. 1671 and 1673.
If both Commerce and the ITC issue affirmative final
determinations, Commerce issues an AD and/or CVD order that establishes
cash deposit rates for the additional duties on entries of imported
merchandise subject to the order. Those entries will be liquidated at
the cash deposit rate, unless interested parties request an
administrative review to establish a revised and final dumping or
countervailing duty rate. U.S. Customs and Border Protection is
responsible for the collection of cash deposits and final duties on
imports of subject merchandise.
Evasion of Antidumping and Countervailing Duty Orders
Evasion refers to entering merchandise into the customs territory
of the United States for consumption by an act or omission that is
material and false, and which results in antidumping or countervailing
duties being reduced or not applied to or collected on such
merchandise.
Examples of evasion could include, but are not limited to, the
misrepresentation of the merchandise's true country of origin (e.g.,
through fraudulent country of origin markings on the product itself or
false sales), false or incorrect shipping and entry documentation, or
misreporting of the merchandise's physical characteristics. CBP is
responsible for ensuring that the appropriate duties are collected on
imports of merchandise. U.S. Immigration and Customs Enforcement (ICE)
is responsible for conducting criminal investigations of the evasion of
AD/CVD orders.
Under current customs laws, CBP can take enforcement actions
against the evasion of AD/CVD orders, which include the assessment of
civil penalties against importers who evade such orders. However,
allegations as to evasion submitted by private parties prior to the
implementation of the EAPA, did not afford the parties an opportunity
to participate in the investigation nor did CBP have an obligation to
notify parties that submitted allegations of evasion as to the outcome
of CBP's review.
Enforce and Protect Act of 2015
Section 421 of the EAPA amends the Tariff Act of 1930 by creating 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'').
Section 421 of the EAPA requires the Commissioner of U.S. Customs
and Border Protection (the Commissioner) to initiate an investigation
within 15 business days of receipt of a properly filed allegation from
an interested party or referral from another Federal agency
(hereinafter referred to as a ``request for an investigation'' from or
by another Federal agency) that reasonably suggests that merchandise
covered by an AD/CVD order has entered the customs territory of the
United States through evasion.
Under the EAPA, when CBP receives properly filed allegations from
interested parties that merchandise covered by an AD/CVD order has
entered the United States through evasion, or receives requests from
Federal agencies for an investigation, the statute requires CBP to take
certain actions within specified timeframes. The EAPA requires CBP to
determine, not later than 300 calendar days (or 360 calendar days in
extraordinarily complicated cases) after the date of initiation of an
EAPA investigation, whether there is substantial evidence that
merchandise covered by an AD/CVD order was entered into the customs
territory of the United States through evasion.
The EAPA authorizes CBP to collect such information as is necessary
to make the determination through such methods as CBP considers
appropriate. One such method specifically mentioned by the EAPA is the
use of questionnaires, which can be used to request information from
the interested party making the allegation and the government of the
foreign country from which the allegedly covered merchandise was
exported, as well as the importer, foreign producer or exporter of the
allegedly covered merchandise. The EAPA provides that pursuant to
sections 412(b) and 421(a), CBP may make an adverse inference if the
importer, foreign producer or exporter of the merchandise under
investigation, or the interested party making the allegation, did not
act to the best of its ability to provide the information requested by
CBP. The EAPA further requires CBP, no later than five business days
after making a determination, to communicate the determination to the
interested party who made an allegation that initiated the evasion
investigation.
If CBP makes an affirmative determination of evasion, CBP will: (1)
Suspend the liquidation of unliquidated entries of the covered
merchandise that is subject to the determination; (2) extend the period
for liquidating the unliquidated entries of covered merchandise that
entered before the initiation of the investigation; (3) when necessary,
notify Commerce of the determination and request that Commerce
determine the appropriate duty rates for such covered merchandise; (4)
require importers of covered merchandise to post cash deposits and
assess duties on the covered merchandise; and/or (5) take such
additional enforcement measures as CBP deems appropriate, including
(but not limited to) modifying CBP's procedures for identifying future
evasion, reliquidating entries as provided by law, and referring the
matter to ICE for a possible civil or criminal investigation.
In order to ensure that appropriate duties can be collected on
entries of covered merchandise made during the pendency of an EAPA
investigation, the EAPA provides for an interim measures mechanism.
Under this mechanism, CBP will determine within 90 calendar days of
initiation of an EAPA investigation whether there exists reasonable
suspicion that covered merchandise subject to an allegation was entered
through evasion. If CBP determines that such reasonable suspicion
exists, CBP will: (1) Suspend the liquidation of unliquidated entries
of the covered merchandise entered after the date of initiation; (2)
extend the period for liquidating the unliquidated entries of covered
merchandise that entered before the initiation of the investigation;
and (3) take any additional measures necessary to protect the ability
to collect appropriate duties, which may include requiring a single
transaction bond or posting cash deposits or reliquidating entries as
provided by law with respect to entries of the covered merchandise. As
provided for in section 517(b)(6) of the Tariff Act of 1930, as amended
by the EAPA (19 U.S.C. 1517(b)(6)), if CBP determines during the course
of an
[[Page 56479]]
EAPA investigation that the merchandise being investigated poses a
health or safety risk, CBP will notify the appropriate Federal agencies
of that risk and will exercise its administrative powers, as
appropriate.
The EAPA provides a period of 30 business days after a
determination for the interested party who made the allegation of
evasion or the person determined to have entered the covered
merchandise subject to the evasion determination to request a de novo
administrative review. And not later than 60 business days after such a
request for a review of an initial determination is properly filed, CBP
must complete the review and issue a final administrative
determination.
Section 517(g) of the Tariff Act of 1930, as amended by the EAPA
(19 U.S.C. 1517(g)), provides that judicial review of the final
administrative determination and the original determination as to
evasion will be available to the party alleging evasion or the party
found to have entered merchandise subject to the investigation through
evasion. A request for such judicial review must be made not later than
30 business days after completion of the final administrative
determination. The request for judicial review must be made to the U.S.
Court of International Trade (CIT).
In accordance with section 421 of TFTEA requiring that regulations
be prescribed as necessary to implement these procedures, CBP is
amending title 19 of the Code of Federal Regulations to create new part
165 setting forth procedures for investigating claims of evasion of AD
and CVD orders. In these regulations, CBP has endeavored to make the
proceedings under the EAPA as transparent as possible and to provide
for full participation and engagement by all parties involved in an
EAPA proceeding.
New part 165 is drafted with a scope section followed by four
subparts: General Provisions; Initiation of Investigations;
Investigation Procedures; and Administrative Review of Determinations.
Discussion of New Part 165
Scope
Section 165.0 briefly describes the nature of EAPA investigations
and the types of requirements that are set forth in this part.
Investigations under the EAPA will be conducted by CBP's Trade Remedy
Law Enforcement Directorate (TRLED) which has been established
consistent with section 411 of the EAPA. It should be noted that
investigations under the EAPA are not the exclusive means, or only
statutory authority, by which CBP can investigate allegations by the
public or requests by other Federal agencies with respect to the
evasion of AD/CVD orders. For example, the public currently has the
option to make more general allegations of evasion through CBP's ``e-
Allegations'' system, an official online portal for the public to
report violations of the trade laws. This current functionality will
remain in e-Allegations, but e-Allegations will also have another
option for filing allegations of evasion under the EAPA.
Subpart A--General Provisions
Section 165.1 lists definitional terms that are used throughout the
new part. It is noted that the definition of ``interested party''
includes not only the importer of the covered merchandise who is
alleged to have engaged in evasion, but also importers of the covered
merchandise who wish to bring allegations against competing importers.
The term ``interested party'' does not include other Federal agencies.
CBP also notes that the term ``domestic like product'' is referenced in
the definition of ``interested party.'' CBP will rely on the definition
of this term, as it is applied by the U.S. International Trade
Commission, pursuant to 19 U.S.C. 1677(10).
Section 165.2 specifies that entries that may be the subject of an
allegation under Sec. 165.11 or of a request from a Federal agency
made under Sec. 165.14 are those entries of allegedly covered
merchandise made within one year prior to the receipt of such an
allegation or such a request from a Federal agency. CBP is specifying
the one-year period for an EAPA investigation in order that the
information required for conducting the investigation and rendering a
timely determination will be current and readily available. This does
not limit CBP's authority, however, to act under any other provision of
law with respect to information obtained during an EAPA investigation.
For example, CBP has the right to assess penalties pursuant to 19
U.S.C. 1592 in appropriate cases involving the evasion of AD and CVD
orders.
Section 165.3 identifies the persons that may make submissions on
behalf of interested parties and specifies when power of attorney
documentation is required. Agents may act on behalf of an interested
party in an EAPA proceeding, including an importer against whom an
allegation has been brought. Also, an affiliate of an importer may file
documents on the importer's behalf for the EAPA proceedings, but
nonetheless must be authorized to act as an agent by means of a power
of attorney. A power of attorney is required when an agent who is not
an attorney at law is used to make filings under the EAPA.
Section 165.4 addresses how an interested party that makes a
submission to CBP in an EAPA proceeding can protect confidential
business information. Examples of the kinds of information that may be
considered business confidential include: Trade secrets concerning the
nature of a product or production process; production costs and other
pricing information; and lists of customers, distributors, and
suppliers. This section also specifies what information must be
provided to CBP as public information in order to facilitate the
consolidation of allegations and administration of the proceedings.
This section was included in order to protect business confidential
information while at the same time ensuring transparency so that an
alleged evader will be notified of the allegation and parties to the
investigation can participate in the proceeding. Finally, as there is
no administrative protective order (APO) process provided for in the
EAPA, parties involved in an EAPA proceeding are advised not to submit
information to CBP that they obtained exclusively under a protective
order from another agency, court, or proceeding unless the scope of
that protective order explicitly covers the EAPA investigation or
proceeding under consideration. Accordingly, parties are advised to
exercise caution when submitting information to CBP in an EAPA
proceeding.
Section 165.5 sets forth the scope of and general means by which
CBP will obtain information for EAPA proceedings (which must be
submitted electronically). CBP requires that only English language or
English language translations of written submissions will be accepted.
Oral discussions or communications with CBP will not be considered part
of the record unless memorialized in written submissions. During CBP's
investigation, it is possible that there will be other parties from
whom CBP will solicit information and that CBP will put that
information on the record. Those parties (who are not parties to the
investigation as defined in Sec. 165.1), however, do not have a right
to participate in the proceedings. Additionally, CBP may, for good
cause, grant requests for extensions of regulatory (but not statutory)
deadlines imposed under this part.
Section 165.6 provides that CBP may draw adverse inferences both in
an EAPA investigation and in an administrative review of an evasion
[[Page 56480]]
determination when the party making the allegation, the alleged evader,
a foreign producer or exporter fails to cooperate and comply to the
best of its ability with a request for information made by CBP. It also
establishes that adverse inferences may be based on the allegation of
evasion; other CBP investigations, proceedings or other actions
regarding evasion; or any other available information. CBP will not
apply an adverse inference against a foreign government if the foreign
government does not respond to a request for information.
Section 165.7 obligates interested parties to report to CBP any
knowledge or reason to suspect that the covered merchandise may pose a
health or safety risk to U.S. consumers. It also requires CBP to report
to the appropriate Federal agencies any health or safety risk that the
covered merchandise may pose to U.S. consumers.
Subpart B--Initiation of Investigations
Section 165.11 provides the criteria for filing an allegation of
evasion pursuant to the EAPA and the specific information that must be
contained in an allegation. Each allegation may only concern one
importer (because business confidential information may be involved in
an EAPA proceeding), although an interested party may file multiple
allegations.
Section 165.11 authorizes CBP to provide technical assistance and
guidance to small businesses (and to other parties as resources permit)
that consider filing an EAPA allegation. It also specifies that
technical assistance is available prior to the submission of an
allegation to CBP in order to ensure that the filing requirements are
satisfied. Any technical assistance and guidance that are provided,
however, will not become part of the record, and the fact that
assistance or guidance was provided does not guarantee that CBP will
proceed to initiate an EAPA investigation. Moreover, such technical
assistance and guidance provided by CBP does not include providing
research assistance to support an allegation of evasion or to identify
potential parties that might be involved in the evasion of AD or CVD
orders.
Section 165.12 provides that the date of receipt of a properly
filed allegation is the date that CBP determines that the EAPA
allegation contains all the information and certifications required in
Sec. 165.11 of this part and transmits notice thereof together with a
CBP-assigned control number to the party that filed the allegation. CBP
will promptly review each allegation as filed for sufficiency. If an
allegation is found to be insufficient, the party who filed the
allegation will be notified of the insufficiencies and be given the
opportunity to remedy them. The CBP-assigned control number should be
used to monitor the status of an allegation throughout the pendency of
the EAPA proceeding. CBP has 15 business days from the date of receipt
to determine whether to initiate an investigation under the EAPA. A
party filing an allegation may withdraw the allegation by submitting a
request to withdraw the allegation to the designated email address
specified by CBP. Decisions regarding whether to initiate an
investigation under the EAPA will be effectuated by CBP's TRLED. Such
decisions are not subject to administrative or judicial review. In the
event that an allegation is withdrawn, CBP may continue to investigate
(other than under the EAPA) whether evasion has occurred as originally
alleged using but not limited to any information obtained (including
from the party who filed the allegation) prior to the date of the
request to withdraw the allegation.
Section 165.13 allows for the consolidation of multiple allegations
against one or more importers and sets forth criteria for that purpose.
It also indicates that the time period to make a decision on whether to
investigate is triggered by the first properly filed allegation
received by CBP.
As discussed above, requests for an investigation relating to
potential evasion of AD/CVD orders may be filed by other Federal
agencies with CBP. Section 165.14 sets forth the procedures for such
requests for an investigation. Federal agencies are not considered a
``party to the investigation'' as defined in Sec. 165.1. It should be
noted, however, that other Federal agencies may continue to use methods
other than under the EAPA, as permitted under the law, to inform CBP of
possible instances of evasion.
Section 165.15 specifies that CBP will decide if an investigation
is warranted based on whether the allegation made under Sec. 165.11 or
a request from a Federal agency made under Sec. 165.14 reasonably
suggests that evasion has occurred (i.e., the covered merchandise at
issue has been entered into the customs territory of the United States
through evasion). The deadline to decide whether to initiate an
investigation is 15 business days from the date of receipt by CBP of a
properly filed allegation or request. If CBP determines that it will
initiate an investigation, it will notify all known parties to the
investigation no later than 95 calendar days after the initiation of
the investigation. CBP will use this 95 calendar-day period in order to
investigate the allegation. This timeframe for notification takes into
account the dual considerations of transparency and the need to provide
adequate time for CBP's investigatory process. Alternatively, if CBP
determines that it will not initiate an investigation, it will notify
the interested party who filed the allegation within five business days
of that determination.
Section 165.16 specifies that CBP may, at its discretion, refer the
issue to the Department of Commerce if there is uncertainty as to
whether the goods that are the subject of the allegation are within the
scope of the applicable AD/CVD order(s). It also directs that the
parties to the investigation must be advised of the date of this
referral and the time taken by Commerce to decide this issue does not
count against any of the deadlines for the EAPA investigation (i.e.,
the referral to Commerce tolls these deadlines).
Subpart C--Investigation Procedures
As described in Sec. 165.21, CBP will maintain an electronic
administrative record for purposes of making a determination as to
evasion and conducting an administrative review of the determination as
described in subpart D of this part.
Section 165.22 provides that the determination as to whether
evasion occurred will be made within 300 calendar days from the date of
initiation of the investigation unless, for an extraordinarily
complicated case, CBP, at its discretion, extends the deadline by an
additional 60 calendar days. This section also sets forth the statutory
criteria for extraordinarily complicated cases. Notice of such an
extension will be provided to all parties to the investigation. CBP
will strive to ensure compliance with these time periods during the
course of an investigation. If CBP does not make a determination by the
deadline, however, this will not result in a deemed decision with
respect to whether or not evasion occurred.
Section 165.23 sets forth the types of and requirements for the
submission of factual information. This information will become part of
the administrative record. CBP may obtain factual information in a
variety of ways. Parties to the investigation may voluntarily submit
information to CBP or may provide information in response to requests
by CBP (including in response to questionnaires). Interested parties
who are not parties to the investigation may provide information only
in response to requests by CBP.
[[Page 56481]]
Section 165.24 provides that no later than 90 calendar days after
the initiation of an investigation, CBP will suspend the liquidation of
entries made on or after the date of initiation of the investigation
and extend the liquidation for entries made prior to the date of
initiation of the investigation if there is reasonable suspicion that
evasion has taken place. CBP will give notice to the parties to the
investigation of any interim measures it takes within five business
days after it takes such measures.
Section 165.25 specifies that, at its discretion, CBP has the
authority to conduct verifications of information collected under Sec.
165.23 of this part, in the United States or in foreign countries as is
necessary to make its determination. Verifications in foreign countries
will be conducted as appropriate and consistent with any agreements or
memoranda relating to such activities with the foreign government in
whose country the proposed verification is scheduled to occur.
Section 165.26 deals with the ability of parties to the
investigation to submit written arguments to CBP in order that they may
actively participate in an EAPA proceeding. It provides that the
parties to the investigation may submit written arguments to CBP and
must serve all other parties to the investigation by an email message
or through any other method approved or designated by CBP with a public
version of the written arguments. Parties to the investigation
receiving a written argument may file a response within 15 calendar
days of the filing of the written argument. The party filing a written
response must provide it to CBP and serve a public version on all other
parties to the investigation via an email message or through any other
method approved or designated by CBP.
Section 165.27 provides that upon conclusion of the investigation,
CBP will determine whether there is substantial evidence based upon the
record that evasion of an AD/CVD order has occurred. Within five
business days of CBP's initial determination as to evasion, CBP will
issue notice of its determination to the interested party or parties
who made the allegation and to the importer alleged to have evaded an
AD/CVD order. This section also addresses action by CBP in the event of
a negative determination.
Section 165.28 discusses what actions CBP may take if there is an
affirmative determination as to evasion.
Subpart D--Administrative Review of Determinations
Subpart D specifies the requirements for requesting an
administrative review of an initial determination. Under Sec. 165.41,
any party to the investigation has up to 30 business days after the
date the initial determination is issued to request an administrative
review of that determination by Regulations and Rulings, Office of
Trade. Parties seeking review of the initial determination must serve
all other parties to the investigation with a public version of the
request via an email message or through any other method approved or
designated by CBP.
Under Sec. 165.42, parties to the investigation are given an
opportunity to submit responses to the request for administrative
review.
Section 165.43 provides that any requests for review and responses
to requests for review will remain part of the administrative record
and cannot be withdrawn.
Section 165.44 provides that Regulations and Rulings may request
additional written information from the parties to the investigation at
any time during the administrative review process.
Section 165.45 describes that under an administrative review the
initial determination will be reviewed de novo. The final
administrative determination will be issued within 60 business days
from the date of request for review. The review will be based upon the
administrative record developed during the initial investigation period
and any requests for administrative review and responses to those
requests.
Section 165.46 states that Regulations and Rulings will issue a
final administrative determination to all parties to the investigation.
The final administrative determination is subject to judicial review in
accordance with section 421 of the EAPA.
Finally, Sec. 165.47 notifies the public that nothing within this
part precludes CBP from taking any action authorized under the law,
such as assessing penalties under 19 U.S.C. 1592.
Inapplicability of Notice and Delayed Effective Date Requirements
Under the Administrative Procedure Act (APA) (5 U.S.C. 553),
agencies generally are required to publish a notice of proposed
rulemaking in the Federal Register that solicits public comments on the
proposed regulatory amendments and consider public comments in deciding
on the content of the final amendments. Section 553(b)(A) of the APA,
however, provides that the standard prior notice and comment procedures
do not apply to an agency rulemaking to the extent that the rule is a
rule of procedure.
The substantive provisions of the EAPA have been established by
Congress, and these regulations set forth the procedures for
implementing the statute and do not include substantive requirements.
Although CBP could issue this as a final rule without prior notice and
comment, CBP is soliciting comments in this interim rule and will
consider all comments received before issuing a final rule.
Statutory and Regulatory Requirements
Executive Orders 13563 and 12866
Executive Orders 13563 and 12866 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, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule is not a ``significant regulatory action,'' as
defined in section 3(f) of Executive Order 12866. Accordingly, OMB has
not reviewed this regulation.
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 an agency 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 is not necessary for this rule,
CBP is not required to prepare a regulatory flexibility analysis for
this rule.
Paperwork Reduction Act
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 OMB.
OMB approved collection 1651-0131 will be amended to reflect the
additional respondents for e-Allegations and the three new
questionnaires for EAPA requirements as described above in accordance
with 19 CFR 165.5(a) and 165.23(a). We estimate that this rule will
[[Page 56482]]
result in an additional 419 responses annually and an additional 9,386
burden hours. The revision to the information collection includes 44
additional e-Allegations which is in addition to the previously
approved 1,600 total e-Allegation submissions annually (for a total of
1,644 e-Allegation submissions). It also establishes new questionnaires
for allegers of AD/CVD violations, alleged evaders of AD/CVD orders,
and other interested parties, such as the foreign producer or exporter
or a foreign government. This revision to this information collection
includes 150 new alleger questionnaires annually, 150 new alleged
evader questionnaires annually, and 75 new other interested party
questionnaires annually. The other interested party could be a foreign
producer or exporter or foreign government, or any other interested
party. Collection 1651-0131 will be revised to reflect the increased
burden hours for each additional e-Allegation submission and EAPA
questionnaire added to e-Allegations as follows:
E-Allegations
Estimated number of annual respondents: 44.
Estimated number of annual responses: 44.
Estimated time burden per response: 15 minutes (.25 hours).
Estimated total annual time burden: 11 hours.
Alleger Questionnaire
Estimated number of annual respondents: 150.
Estimated number of annual responses: 150.
Estimated time burden per response: 25 hours.
Estimated total annual time burden: 3,750 hours.
Alleged Evader Questionnaire
Estimated number of annual respondents: 150.
Estimated number of annual responses: 150.
Estimated time burden per response: 25 hours.
Estimated total annual time burden: 3,750 hours.
Other Interested Party Questionnaire
Estimated number of annual respondents: 75.
Estimated number of annual responses: 75.
Estimated time burden per response: 25 hours.
Estimated total annual time burden: 1,875 hours.
Comments concerning the collections of information and the accuracy
of the estimated annual burden, and suggestions for reducing that
burden, should be directed to the Office of Management and Budget,
Attention: Desk Officer for the Department of the Treasury, Office of
Information and Regulatory Affairs, Washington, DC 20503. A copy should
also be sent to the Trade and Commercial Regulations Branch,
Regulations and Rulings, Office of Trade, U.S. Customs and Border
Protection, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.
Signing Authority
This document is being issued in accordance with Sec. 0.1(a)(1) of
the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority of
the Secretary of the Treasury (or his or her delegate) to approve
regulations related to certain customs revenue functions.
List of Subjects in 19 CFR Part 165
Administrative practice and procedure, Business and industry,
Customs duties and inspection.
Amendments to the Regulations
0
For the reasons set forth above, chapter I of title 19, Code of Federal
Regulations (19 CFR chapter I), is amended by adding part 165 to read
as follows:
PART 165--INVESTIGATION OF CLAIMS OF EVASION OF ANTIDUMPING AND
COUNTERVAILING DUTIES
Sec.
165.0 Scope.
Subpart A--General Provisions
165.1 Definitions.
165.2 Entries subject to this part.
165.3 Power of attorney.
165.4 Release of information provided by interested parties.
165.5 Obtaining and submitting information.
165.6 Adverse inferences.
165.7 Protection of public health and safety.
Subpart B--Initiation of Investigations
165.11 Allegations by interested parties.
165.12 Receipt of allegations.
165.13 Consolidation of allegations.
165.14 Other Federal agency requests for investigations.
165.15 Initiation of investigations.
165.16 Referrals to Department of Commerce.
Subpart C--Investigation Procedures
165.21 Administrative record.
165.22 Time for investigation.
165.23 Submission of factual information.
165.24 Interim measures.
165.25 Verifications of information.
165.26 Written argument.
165.27 Determination as to evasion.
165.28 Assessment as to duties owed; other actions.
Subpart D--Administrative Review of Determinations
165.41 Filing a request for review of the initial determination.
165.42 Responses to requests for administrative review.
165.43 Withdrawal.
165.44 Additional information.
165.45 Standard for administrative review.
165.46 Final administrative determination.
165.47 Potential penalties and other actions.
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.
Sec. 165.0 Scope.
This part relates to allegations by the public and requests from
Federal agencies for an investigation regarding the evasion of
antidumping (AD) and countervailing duty (CVD) orders and the
procedures by which CBP investigates such claims consistent with 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). This part includes the requirements for
the filing of allegations and requests for investigations, the
investigation procedures, and administrative review of determinations
as to evasion of AD/CVD orders under the EAPA. The procedures under
this part are not the exclusive manner by which CBP may receive
allegations or requests for an investigation from Federal agencies or
investigate such allegations or requests with respect to the evasion of
AD/CVD orders. An investigation as described in this part, if initiated
by CBP, does not preclude CBP or any other government entity from
initiating any other investigation or proceeding pursuant to any other
provision of law, including proceedings initiated under 19 U.S.C. 1592.
Subpart A--General Provisions
Sec. 165.1 Definitions.
As used in this part, the following terms will have the meanings
indicated unless either the context in which they are used requires a
different meaning or a different definition is prescribed for a
particular section of this part:
Allegation. The term ``allegation'' refers to a filing with CBP
under Sec. 165.11 by an interested party that alleges an act of
evasion by an importer of AD/CVD orders.
[[Page 56483]]
AD. The term ``AD'' refers to antidumping duty, consistent with
section 736, Tariff Act of 1930, as amended (19 U.S.C. 1673e).
AD/CVD. The term ``AD/CVD'' refers to antidumping/countervailing
duty, as these terms are defined in this section.
Covered merchandise. The term ``covered merchandise'' means
merchandise that is subject to a CVD order issued under section 706,
Tariff Act of 1930, as amended (19 U.S.C. 1671e), and/or an AD order
issued under section 736, Tariff Act of 1930, as amended (19 U.S.C.
1673e).
CVD. The term ``CVD'' refers to countervailing duty, consistent
with section 706, Tariff Act of 1930, as amended (19 U.S.C. 1671e).
Enter or entry. The terms ``enter'' and ``entry'' refer to the
entry for consumption, or withdrawal from warehouse for consumption, of
merchandise in the customs territory of the United States, see Sec.
101.1 of this chapter, or to the filing with CBP of the necessary
documentation to withdraw merchandise from a duty-deferral program in
the United States for exportation to Canada or Mexico or for entry into
a duty-deferral program in Canada or Mexico, see Sec. Sec. 141.0a(f)
and 181.53 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.
Interested party. The term ``interested party'' in this part refers
only to the following:
(1) A foreign manufacturer, producer, or exporter, or any importer
(not limited to importers of record and including the party against
whom the allegation is brought), of covered merchandise or a trade or
business association a majority of the members of which are producers,
exporters, or importers of such merchandise;
(2) A manufacturer, producer, or wholesaler in the United States of
a domestic like product;
(3) A certified union or recognized union or group of workers that
is representative of an industry engaged in the manufacture,
production, or wholesale in the United States of a domestic like
product;
(4) A trade or business association a majority of the members of
which manufacture, produce, or wholesale a domestic like product in the
United States;
(5) An association a majority of the members of which is composed
of interested parties described in paragraphs (2), (3), and (4) of this
definition with respect to a domestic like product; or,
(6) If the covered merchandise is a processed agricultural product,
as defined in 19 U.S.C. 1677(4)(E), a coalition or trade association
that is representative of any of the following: processors; processors
and producers; or processors and growers.
Investigation. The term ``investigation'' refers to the CBP
administrative process described in subpart C of this part, and is a
formal investigation within the meaning of section 592(c)(4), Tariff
Act of 1930, as amended (19 U.S.C. 1592(c)(4)).
Parties to the investigation. The phrase ``parties to the
investigation'' means the interested party (or interested parties, in
the case of consolidation pursuant to Sec. 165.13) who filed the
allegation of evasion and the importer (or importers, in the case of
consolidation pursuant to Sec. 165.13) who allegedly engaged in
evasion. In the case of investigations initiated based upon a request
from a Federal agency, parties to the investigation only refers to the
importer or importers who allegedly engaged in evasion, and not the
Federal agency.
Regulations and Rulings. The term ``Regulations and Rulings'' means
the Executive
Director, Regulations and Rulings, Office of Trade, or his or her
designee.
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 EAPA.
Sec. 165.2 Entries subject to this part.
Entries that may be the subject of an allegation made under Sec.
165.11 or a request for an investigation under Sec. 165.14 are those
entries of allegedly covered merchandise made within one year before
the receipt of an allegation under Sec. 165.11 or of a request for an
investigation under Sec. 165.14. In addition, at its discretion, CBP
may investigate other entries of such covered merchandise.
Sec. 165.3 Power of attorney.
(a) When required. Any submission made under this part other than
by a principal or its employees may be filed by a person acting as
agent or attorney in fact for the principal; a power of attorney must
specifically authorize such person to make, sign, and file the
submission or grant unlimited authority to such person.
(b) Exception. No power of attorney is required for an attorney at
law to act as agent or attorney for the principal. The signing of a
submission as agent or attorney for the principal by the attorney at
law will be considered a declaration by the attorney that the attorney
is currently an active member in good standing of the highest court of
a state, possession, territory, commonwealth, or the District of
Columbia, and has been authorized to sign and file the submission for
the principal.
(c) Execution--(1) Corporation. A corporate power of attorney to
file the submissions described in paragraph (a) of this section must be
signed by a duly authorized officer or employee of the corporation.
(2) Partnership. A partnership power of attorney to file the
submissions described in paragraph (a) of this section must be signed
by at least one member in the name of the partnership or by at least
one duly authorized employee of the partnership, provided the power
recites the name(s) of all of the members.
(3) Other persons. A power of attorney filed by a person other than
a corporation or partnership must be signed by that person or an
employee of that person who has the legal authority to act on that
person's behalf when filing the submissions described in paragraph (a)
of this section.
(d) Revocation. Any power of attorney will be subject to revocation
at any time by written notice given to and received by CBP, Office of
Trade.
(e) Proof. CBP will require proof of execution of a power of
attorney, where applicable, the first time that an agent makes a
submission on behalf of any interested party during an investigation or
administrative review of a determination as to evasion. CBP may require
proof of authority to execute a power of attorney pursuant to paragraph
(c) of this section, at any point during the proceedings described in
this part.
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
[[Page 56484]]
business confidential information except for the information specified
in paragraph (c) of this section. Business confidential treatment will
be granted if the requirements of this section are satisfied and the
information for which protection is sought consists of trade secrets
and commercial or financial information obtained from any person, which
is privileged or confidential in accordance with 5 U.S.C. 552(b)(4).
(1) Identification of business confidential information. An
interested party submitting information must identify the information
for which business confidential treatment is claimed by enclosing the
claimed confidential information within single brackets. The first page
of any submission containing business confidential information must
clearly state that the submission contains business confidential
information. The submitting interested party must also provide with the
claimed business confidential information an explanation of why each
item of bracketed information is entitled to business confidential
treatment.
(2) Public version. An interested party filing a submission
containing claimed business confidential information must also file a
public version of the submission. The public version must be filed on
the same date as the business confidential version and contain a
summary of the bracketed information in 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. The public version must be clearly marked as a
public version on the first page.
(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.
(1) Notice of rejection. If CBP determines that the claim of
confidentiality is nonconforming, it will treat the relevant portion of
the submission as business confidential information until the
appropriate corrective action is taken or the submission is rejected.
(2) Corrective action. The submitting interested party may take any
of the following actions within two business days after receiving CBP's
notice of rejection:
(i) Correct the problems and resubmit the information by an email
message or through any other method approved or designated by CBP;
(ii) If CBP denies a request for business confidential treatment,
agree to have the information in question treated as public
information;
(iii) Submit other material concerning the subject matter in lieu
of the rejected information.
(3) Effects of rejection. If the submitting interested party does
not take any of the actions in paragraph (b)(2) of this section, CBP
will not consider the rejected submission and, if applicable, adverse
inferences may be drawn pursuant to Sec. 165.6.
(c) Information that will not be protected as confidential. The
following information provided by a party to the investigation in an
allegation of evasion will not be protected as business confidential
information and will be treated as public pursuant to the certification
of informed consent referenced in Sec. 165.11(c):
(1) Name of the party to the investigation providing the
information and identification of the agent filing on its behalf, if
any, and email address for communication and service purposes;
(2) Specification as to the 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.
(d) Certification. In accordance with paragraph (a)(2) of this
section, when providing a public version of their submissions,
interested parties must certify that the information they are providing
is either their own information (i.e., information from their own
business records and not business confidential information of another
entity) or information that was publicly obtained or in the public
domain.
(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.
Sec. 165.5 Obtaining and submitting information.
(a) Obtaining of information by CBP. In obtaining information
necessary to carry out its functions and duties under this part, CBP
may employ any means authorized by law. In general, CBP will obtain
information from its own files, from other agencies of the United
States Government, through questionnaires and correspondence, and
through field work by its officials.
(b) Submissions to CBP. The following requirements pertain to all
parties who knowingly make submissions covered in this part:
(1) Form. All submissions to CBP must be in writing in the English
language or accompanied by an adequate English language translation as
they will be part of the record for proceedings and determinations
covered in this part. Oral discussions or communications with CBP will
not be considered part of the record, unless they are memorialized in a
written document that is placed on the record. All submissions must be
made electronically to the designated email address specified by CBP
for purposes of the investigation or through any other method approved
or designated by CBP.
(2) Certifications. Every written submission made to CBP by an
interested party under this part must be accompanied by the following
certifications from the person making the submission:
(i) ``On behalf of the party making this submission, I certify that
all statements in this submission (and any attachments) are accurate
and true to the best of my knowledge and belief.''
(ii) ``On behalf of the party making this submission, I certify
that any information for which I have not requested business
confidential treatment pursuant to 19 CFR 165.4(a), may be released for
public consumption.''
(iii) ``On behalf of the party making this submission, I certify
that I will advise CBP promptly of any knowledge of or reason to
suspect that the covered merchandise poses any health or safety risk to
U.S. consumers pursuant to 19 CFR 165.7(a).''
(3) False statement. Any interested party that provides a material
false statement or makes a material omission or otherwise attempts to
conceal material facts at any point in the proceedings may be subject
to adverse inferences (see Sec. 165.6) and prosecution pursuant to 18
U.S.C. 1001.
(c) Compliance with CBP time limits--(1) Requests for extensions.
CBP may, for good cause, extend any regulatory time limit 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
[[Page 56485]]
been prevented even if reasonable measures had been taken. 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, then CBP will not consider or retain it in the administrative
record and adverse inferences may be applied, if applicable.
Sec. 165.6 Adverse inferences.
(a) In general. If the party to the investigation that filed an
allegation, the importer, or the foreign producer or exporter of the
covered merchandise fails to cooperate and comply to the best of its
ability with a request for information made by CBP, CBP may apply an
inference adverse to the interests of that party in selecting from
among the facts otherwise available to make the determination as to
evasion pursuant to Sec. 165.27 and subpart D of this part.
(b) Other adverse inferences. CBP may also apply an inference
adverse to the interests of a party based on a prior determination in
another CBP investigation, proceeding, or action that involves evasion
with respect to AD/CVD orders, or any other available information.
(c) Application. An adverse inference described in this section may
be used with respect to the importer of the covered merchandise, or the
foreign producer or exporter of the covered merchandise without regard
to whether another party involved in the same transaction or
transactions under examination has provided the information sought by
CBP, such as import or export documentation.
Sec. 165.7 Protection of public health and safety.
(a) Notification to CBP. Any interested party, including an
importer, must promptly notify CBP if it has knowledge or reason to
suspect that the covered merchandise may pose a health or safety risk
to U.S. consumers at any point during the proceedings described in this
part.
(b) Transmission by CBP. During the course of an investigation or
administrative review of a determination as to evasion under this part,
CBP will consider whether the covered merchandise may pose a health or
safety risk to U.S. consumers and will take into account any
notification received under paragraph (a) of this section. CBP will
promptly transmit information to the appropriate Federal agencies for
purposes of mitigating the risk and will exercise its administrative
powers, as appropriate.
Subpart B--Initiation of Investigations
Sec. 165.11 Allegations by interested parties.
(a) Filing of allegation. Any interested party, as defined in Sec.
165.1, may file an allegation that an importer of covered merchandise
has evaded AD/CVD orders. An allegation must be filed electronically
through the appropriate portal on CBP's online e-Allegations system or
through any other method approved or designated by CBP. Each allegation
must be limited to one importer, but an interested party may file
multiple allegations. An allegation must satisfy the requirements in
paragraphs (b) through (d) of this section.
(b) Contents. An allegation of evasion must include, but is not
limited to, the following information:
(1) Name of the interested party making the allegation and
identification of the agent filing on its behalf, if any, and the email
address for communication and service purposes;
(2) An explanation as to how the interested party qualifies as an
interested party pursuant to Sec. 165.1;
(3) Name and address of importer against whom the allegation is
brought;
(4) Description of the covered merchandise;
(5) Applicable AD/CVD orders; and
(6) Information reasonably available to the interested party to
support its allegation that the importer with respect to whom the
allegation is filed is engaged in evasion.
(c) Certifications. An allegation must also be accompanied by the
certifications required under Sec. 165.5(b) and the following
statement of informed consent from the person making the submission:
``I certify my understanding and consent that the information provided
for in Sec. 165.11(b)(1) through (5) may be released for public
consumption.''
(d) Signature. The person signing the allegation on behalf of the
interested party must include his or her name, position in the company
or other affiliation, and provide contact information. Electronic
submission of this information will be considered ``signed'' for
purpose of filing the allegation.
(e) Technical assistance and guidance--(1) Availability. CBP will
provide technical assistance and guidance for the preparation of an
allegation of evasion and its submission to CBP, as described in this
section.
(i) Small businesses. Small businesses are entitled to technical
assistance upon request. In general, small businesses are eligible to
make such requests if they have neither adequate internal resources nor
financial ability to obtain qualified outside assistance in preparing
and submitting for CBP's consideration allegations of evasion. Small
businesses must satisfy the applicable standards set forth in 15 U.S.C.
632 and implemented in 13 CFR part 121.
(ii) Other parties. Other parties may request technical assistance,
which CBP may provide if resources are reasonably available.
(2) Requests. Requests for technical assistance may be made at any
time via the email address designated on CBP's online e-Allegations
system or through any other method approved or designated by CBP.
(3) Limitations. The act of providing technical assistance is not
part of the record for the investigation, nor does it compel a decision
by CBP to initiate an investigation pursuant to Sec. 165.15.
Sec. 165.12 Receipt of allegations.
(a) Date of receipt. The ``date of receipt'' of a properly filed
allegation is the date on which CBP provides an acknowledgment of
receipt of an allegation containing all the information and
certifications required in Sec. 165.11, together with a CBP-assigned
control number, to the party that filed the allegation. CBP has 15
business days from the date of receipt to determine whether to initiate
an investigation under the EAPA.
(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.
Sec. 165.13 Consolidation of allegations.
(a) In general. Multiple allegations against one or more importers
may be consolidated into a single investigation at CBP's discretion.
Consolidations may be made at any point prior to the issuance of a
determination as to evasion with respect to a particular importer. If
multiple allegations are received and consolidated prior to the
initiation of an investigation, then the date of receipt of the first
properly filed allegation will start the time period for the deadline
to initiate the investigation described in Sec. 165.15 with respect to
that allegation.
(b) Criteria. CBP may consolidate multiple allegations if warranted
based on the consideration of certain factors. The factors that CBP may
consider include, but are not limited to, whether the multiple
allegations involve:
(1) Relationships between the importers;
[[Page 56486]]
(2) Similarity of covered merchandise;
(3) Similarity of AD/CVD orders; and
(4) Overlap in time periods for entries of covered merchandise.
(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 95 calendar days after the date of initiation of the
investigation.
(d) Service requirements for other parties to the investigation.
Upon notification of consolidation, parties to the consolidated
investigation must serve via an email message or through any other
method approved or designated by CBP upon the newly added parties to
the investigation the public versions of any documents that were
previously served upon parties to the unconsolidated investigation.
Service must take place within five business days of the notice of
consolidation.
Sec. 165.14 Other Federal agency requests for investigations.
(a) Requests for investigations. Any other Federal agency,
including 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.
(b) Contents of requests. The following information must be
included in the request for an investigation:
(1) Name of importer against whom the allegation is brought;
(2) Description of the covered merchandise;
(3) Applicable AD/CVD orders;
(4) Information that reasonably suggests that an importer has
entered covered merchandise into the customs territory of the United
States through evasion;
(5) Identification of a point of contact at the agency; and
(6) Notification of any knowledge of or reason to suspect that the
covered merchandise poses any health or safety risk to U.S. consumers.
(c) Receipt of requests. Requests for an investigation must be
filed electronically via CBP's online e-Allegations system or through
any other method approved or designated by CBP. The date of receipt is
the date that CBP transmits notice of the assigned control number to
the Federal agency that filed the request.
(d) Notice of release of information--(1) Public information. CBP
will treat the information required by paragraphs (b)(1) through (3) of
this section as public information.
(2) Business confidential treatment. CBP will create a public
summary of the information required by paragraphs (b)(4) and (6) of
this section.
(e) Access to investigation. The Federal agency is not a party to
the investigation. Therefore, it will neither receive official notice
of developments after CBP's receipt of the request for an investigation
nor will it receive service of any documents filed by interested
parties. Only the parties to the investigation will be entitled to
notice and service, as well as the related rights to administrative
review and judicial review.
Sec. 165.15 Initiation of investigations.
(a) Time for determination. CBP will make a determination as to
whether to initiate an investigation on or before the 15th business day
after the date on which a properly filed allegation is received under
Sec. 165.12(a) or a request for an investigation is received from a
Federal agency under Sec. 165.14.
(b) Criteria for initiation. CBP will initiate an investigation
under subpart C of this part if the following criteria are satisfied:
(1) Nature of merchandise. The covered merchandise described in the
allegation or Federal agency request for an investigation is properly
within the scope of an AD/CVD order. If CBP lacks sufficient
information to make such determination as to the scope of the order,
then it will refer the matter to the Department of Commerce pursuant to
Sec. 165.16.
(2) Likelihood of evasion. The information provided in the
allegation or Federal agency request for an investigation reasonably
suggests that the covered merchandise has been entered for consumption
into the customs territory of the United States through evasion as it
is defined in Sec. 165.1.
(c) Exceptions. Even if the criteria in paragraph (b) of this
section are satisfied, CBP will not initiate an investigation under the
following circumstances:
(1) Clerical error. A clerical error, as defined in 19 U.S.C.
1517(a)(5)(B), is not evasion, although CBP will take appropriate
actions to ensure that AD/CVD duties are assessed and collected.
(2) Withdrawal. An allegation or a request for an investigation
from another Federal agency may be withdrawn pursuant to the
requirements of Sec. 165.12(b) or Sec. 165.14(a), as applicable.
(d) Notification of the investigation. If CBP determines that it
will not initiate an investigation, it will notify the interested party
who filed the allegation within five business days of that
determination. Otherwise, the parties to the investigation will be
notified consistent with the following time limits:
(1) In general. CBP will issue notification of its decision to
initiate an investigation to all parties to the investigation no later
than 95 calendar days after the decision has been made, and the actual
date of initiation will be specified therein. However, notification to
all parties to the investigation will occur no later than five business
days after interim measures are taken pursuant to Sec. 165.24.
(2) Consolidated allegations. If multiple allegations are
consolidated, any interested party who filed an allegation after
initiation of an investigation will be notified by CBP of the date of
the decision to initiate an investigation when that party receives
notice of consolidation under Sec. 165.13(c).
(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.
Sec. 165.16 Referrals to Department of Commerce.
(a) When required. A referral is required if at any point after
receipt of an allegation, CBP cannot determine whether the merchandise
described in an allegation is properly within the scope of an
antidumping or countervailing duty order.
(b) Referral. The referral may contain any necessary information
available to CBP regarding whether the merchandise described in an
allegation is subject to the relevant AD/CVD orders.
(c) Notice of referral. TRLED will promptly notify the parties to
the investigation of the date of the referral.
(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 or the deadline to issue a
determination as to evasion under Sec. 165.27.
[[Page 56487]]
(e) Notice of decision. CBP will place the determination by the
Department of Commerce on the administrative record of CBP's proceeding
and will electronically notify the parties to the investigation.
Subpart C--Investigation Procedures
Sec. 165.21 Administrative record.
(a) Administrative record. CBP will maintain a record for purposes
of making a determination as to evasion under Sec. 165.27 and
conducting an administrative review under Sec. 165.46. The
administrative record will contain all of the following, if applicable,
but is not limited to:
(1) Materials obtained and considered by CBP during the course of
an investigation under this part;
(2) Factual information submitted pursuant to Sec. 165.23;
(3) Information obtained during and the results of any verification
conducted pursuant to Sec. 165.25;
(4) Materials from other agencies provided to CBP pursuant to the
investigation;
(5) Written arguments submitted pursuant to Sec. 165.26 and
subpart D of this part; and
(6) Summaries of oral discussions with interested parties relevant
to the investigation pursuant to Sec. 165.23.
(b) Maintenance of the record. CBP will maintain the administrative
record of each investigation or review conducted by CBP pursuant to
this part. All information properly filed with CBP pursuant to
Sec. Sec. 165.4 and 165.5 will be placed on the administrative record.
CBP will not consider in its determinations or include on the
administrative record any information that is not properly filed with
CBP.
Sec. 165.22 Time for investigations.
(a) Time for determination. Unless CBP has extended the deadline in
accordance with paragraph (c) of this section or due to a referral to
the Department of Commerce pursuant to Sec. 165.16, CBP will make a
determination under Sec. 165.27 not later than 300 calendar days after
the date on which CBP initiates an investigation under Sec. 165.15
with respect to whether covered merchandise was entered through
evasion.
(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 on which CBP receives the
first of such allegations 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.
(c) Extension of time for determination. CBP may extend the time to
make a determination under paragraph (a) of this section by not more
than 60 calendar days if CBP determines that--
(1) The investigation is extraordinarily complicated because of--
(i) The number and complexity of the transactions to be
investigated;
(ii) The novelty of the issues presented; or
(iii) The number of entities to be investigated; and
(2) Additional time is necessary to make the determination under
paragraph (a) of this section.
(d) Notification of extension of time for determination. CBP will
notify all parties to the investigation of an extension not later than
300 calendar days after the date on which CBP initiates an
investigation under Sec. 165.15.
Sec. 165.23 Submission of factual information.
All submissions of factual information to CBP must comply with the
requirements specified in Sec. Sec. 165.4 and 165.5 and this section.
The submissions will be placed on the administrative record.
(a) Request for information by CBP. In making a determination under
Sec. 165.27, CBP may require additional information as is necessary,
from, among others:
(1) An interested party that filed an allegation under Sec.
165.11;
(2) An importer who allegedly engaged in evasion;
(3) A person that is a foreign producer or exporter of covered
merchandise; and/or
(4) The government of a country from which covered merchandise may
have been exported.
(b) Voluntary submission of factual information. Any party 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) Time limits and service requirements--(1) Responses to CBP
requests for factual information. Factual information requested by CBP
pursuant to paragraph (a) of this section must be submitted to CBP
within the timeframe set forth by CBP in the request. 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. If CBP places new factual information on the
administrative record on or after the 200th calendar day after the
initiation of the investigation (or if such information is placed on
the record at CBP's request), the parties to the investigation will
have ten calendar days to provide rebuttal information to the new
factual information.
(2) Voluntary submission of factual information. 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. 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.
Voluntary submissions made after the 200th calendar day after
initiation of the investigation will not be considered or placed on the
administrative record, except rebuttal information as permitted
pursuant to the next sentence herein. Parties to the investigation will
have ten calendar days from the date of service of any factual
information or from the date of placement of any factual information on
the record to provide rebuttal information to that 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.
(d) Oral discussions. Notwithstanding the time limits in paragraph
(c) of this section, CBP may request oral discussions either in-person
or by teleconference. CBP will memorialize such discussions with a
written summary that identifies who participated and the topic of
discussion. In the event that confidential business information is
included in the written summary, CBP will also place a public version
on the administrative record.
Sec. 165.24 Interim measures.
(a) Reasonable suspicion. No later than 90 calendar days after
initiating an investigation under Sec. 165.15, CBP will take interim
measures if there is a reasonable suspicion that the importer entered
covered merchandise into the customs territory of the United States
through evasion.
(b) Measures. If CBP decides that there is reasonable suspicion
under paragraph (a) of this section, then:
(1) For entries that remain unliquidated, CBP will:
(i) Suspend the liquidation of each unliquidated entry of such
covered merchandise that entered on or after the date of the initiation
of the investigation under Sec. 165.15;
(ii) Extend the period for liquidating each unliquidated entry of
such covered merchandise that entered before the date of the initiation
of the investigation under Sec. 165.15 pursuant to section
[[Page 56488]]
504(b), Tariff Act of 1930, as amended (19 U.S.C. 1504(b)); and
(iii) Take such additional measures as CBP determines necessary to
protect the revenue of the United States, including requiring a single
transaction bond or additional security or the posting of a cash
deposit with respect to such covered merchandise pursuant to section
623, Tariff Act of 1930, as amended (19 U.S.C. 1623).
(2) For entries that are liquidated, CBP may initiate or continue
any appropriate measures separate from this proceeding.
(c) Notice. If CBP decides that there is reasonable suspicion under
paragraph (a) of this section, CBP will issue notification 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 as of
that date.
Sec. 165.25 Verifications of information.
(a) Prior to making a determination under Sec. 165.27, CBP may in
its discretion verify information in the United States or foreign
countries collected under Sec. 165.23 as is necessary to make its
determination.
(b) CBP will place any relevant information on the administrative
record and provide a public summary.
Sec. 165.26 Written arguments.
All written arguments submitted to CBP pursuant to a proceeding
under this part must comply with the requirements specified in
Sec. Sec. 165.4 and 165.5 and this section. The submissions will be
placed on the administrative record.
(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 submitted to the designated email address
specified by CBP or through any other method approved or designated by
CBP no later than 230 calendar days after the investigation was
initiated pursuant to Sec. 165.15; 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. 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. 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 any party to the investigation at any time
during an investigation.
(d) Form of written argument and response to the written arguments.
The written argument and response to the written argument must be
double-spaced, with headings and footnotes single-spaced, margins one
inch on all four sides, and font Times New Roman, 12-point font size.
The written argument must be no more than 50 pages in length, including
exhibits, and the response to the written argument must be no more than
50 pages in length, including exhibits, excluding any pages containing
the table of contents and the table of cited authorities. Each written
argument and response to the written argument must contain:
(1) The name, address, and email address of the party and of his or
her duly authorized agent or attorney at law (if represented by a duly
authorized agent or attorney at law);
(2) A summary of the argument or response to the argument, which is
a concise summary;
(3) The argument or response to the argument that clearly and
accurately presents points of fact and law with applicable citations;
(4) A table of contents and a table of cited authorities; and
(5) A conclusion that states a proposal for CBP's determination as
to evasion.
Sec. 165.27 Determination as to evasion.
(a) Determination. Upon conclusion of the investigation, CBP will
make a determination based on substantial evidence as to whether
covered merchandise was entered into the customs territory of the
United States through evasion.
(b) Notification. No later than five business days after making a
determination under paragraph (a) of this section, CBP will send via an
email message or through any other method approved or designated by CBP
a summary of the determination limited to publicly available
information under paragraph (a) to the parties to the investigation.
(c) Negative determination. If CBP makes a determination under
paragraph (a) of this section that covered merchandise was not entered
into the customs territory of the United States through evasion, then
CBP will cease applying any interim measures taken under Sec. 165.24
and liquidate the entries in the normal course.
Sec. 165.28 Assessments of duties owed; other actions.
(a) Effect on liquidation. For entries of covered merchandise that
are already liquidated when an affirmative determination is made as to
evasion under Sec. 165.27, CBP will initiate or continue any
appropriate actions separate from this proceeding. For entries of
covered merchandise that are unliquidated:
(1) Suspension of liquidation. (i) CBP will suspend the liquidation
of unliquidated entries of covered merchandise that is subject to the
determination and that entered on or after the date of the initiation
of the investigation under Sec. 165.15 with respect to such covered
merchandise; or
(ii) If CBP has already suspended the liquidation of such entries
pursuant to Sec. 165.24, then CBP will continue to suspend their
liquidation.
(2) Extension of liquidation. (i) If liquidation is not suspended,
then CBP will extend the period for liquidating the unliquidated
entries of covered merchandise that is subject to the determination,
pursuant to CBP's authority under section 504(b), Tariff Act of 1930,
as amended (19 U.S.C. 1504(b)); or
(ii) If CBP has already extended the period for liquidating such
entries pursuant to Sec. 165.24, then CBP will continue to extend the
period for liquidating such entries.
(b) Notification to the Department of Commerce. If CBP makes a
determination under Sec. 165.27 that covered merchandise was entered
into the customs territory of the United States through evasion, CBP
will notify the Department of Commerce of the determination and
request, if necessary, that the Department of Commerce:
(1) Identify the applicable antidumping or countervailing duty
assessment rates for merchandise covered by the determination; and/or
(2) If no assessment rate is available at the time, identify the
applicable cash
[[Page 56489]]
deposit rate to be applied, with the applicable antidumping or
countervailing duty assessment rate to be provided as soon as that rate
becomes available.
(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.
Subpart D--Administrative Review of Determinations
Sec. 165.41 Filing a request for review of the initial
determination.
(a) How to file a request for administrative review. Requests for
administrative review of the initial determination as to evasion
pursuant to Sec. 165.27 must be submitted electronically to
Regulations and Rulings, in a manner as prescribed by CBP. Requests for
review may be filed by any party to the investigation or its attorney
at law, or duly authorized agent, and must comply with the requirements
specified in Sec. 165.3. Electronic signatures are acceptable.
(b) Release of information and service. Requests for review must
comply with the requirements for release of information specified in
Sec. 165.4.
(c) Notice to parties to the investigation. Each party who files a
request for review must provide the other parties to the investigation
with a public version in accordance with Sec. 165.4.
(d) When filed. Requests for review must be filed no later than 30
business days after the issuance of the initial determination as to
evasion. Untimely or incomplete requests for review will not be
accepted.
(e) True and accurate information. All requests must be accompanied
by the certifications required pursuant to Sec. 165.5. Any false
statements contained in a request for review may subject the party to
prosecution under 18 U.S.C. 1001 or other applicable laws.
(f) Content. Each request for review must be based solely on the
facts already upon the administrative record in the proceeding, in
writing, and may not exceed 30 pages. 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. Each
request for review must set forth the following:
(1) The allegation control number assigned by CBP with respect to
the investigation under consideration;
(2) The name, address and email address of the party seeking review
and the name, address and email address of his or her duly authorized
agent or attorney at law (if represented by a duly authorized agent or
an attorney at law);
(3) A statement of the procedural history and facts as set forth in
the administrative record and identified by specific page number or
exhibit number and relied upon by the party to prove or establish
whether evasion occurred or not;
(4) A concise summary of the argument;
(5) The argument expressing clearly and accurately the points of
fact and of law presented and citing the authorities and statutes
relied on; and
(6) A conclusion specifying whether the initial determination
should be affirmed or reversed.
(7) Each party seeking business confidential treatment must comply
with the requirements in Sec. 165.4.
(g) Assigned case number. Upon receipt of a timely request for
review, the submission will be reviewed to ensure it has been properly
filed. If the submission has been properly filed, a case number will be
assigned for tracking purposes.
(h) Consolidation of requests for administrative review. Multiple
requests for review under the same allegation control number assigned
by CBP involving the same importer and merchandise may be consolidated
into a single administrative review matter.
(i) Commencement of administrative review. The 60 business-day
review period will commence on the date when CBP accepts the last
properly filed request for administrative review and transmits
electronically the assigned administrative review case number to all
parties to the investigation. All properly filed requests for
administrative review must be submitted to CBP no later than 30
business days after the issuance of the initial determination.
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. 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 upon 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.
Sec. 165.43 Withdrawal.
Requests for review and responses to requests for review will
remain part of the administrative record and cannot be withdrawn.
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.
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 initial determination was
made, the timely and properly filed request(s) for review and
responses, and any additional information that was received pursuant to
Sec. 165.44. The administrative review will be completed within 60
business days of the commencement of the review.
Sec. 165.46 Final administrative determination.
(a) Finality. The final administrative determination issued by
Regulations and Rulings will be in writing and will set forth the
conclusion reached on the matter. The conclusion will be transmitted
electronically to all parties to the investigation. The final
administrative determination is subject to judicial review pursuant to
section 421 of the EAPA.
(b) Effect of the final administrative determination. If the final
[[Page 56490]]
administrative determination affirms the initial determination as to
evasion, then no further CBP action is needed. If the final
administrative determination reverses the initial determination, then
CBP will take appropriate actions consistent with the final
administrative determination.
Sec. 165.47 Potential penalties and other actions.
CBP and other government agencies reserve the right to undertake
additional investigations or enforcement actions in cases covered by
these provisions. Nothing within this part prevents CBP from assessing
penalties of any sort related to such cases or taking action under any
other relevant laws.
R. Gil Kerlikowske,
Commissioner, U.S. Customs and Border, Protection.
Approved: August 17, 2016.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2016-20007 Filed 8-18-16; 4:15 pm]
BILLING CODE 9111-14-P