[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