Specific Importer Information Shouldn't Be Required in AD/CV Duty Evasion Allegations, Domestic Producers Group Says

Identifying information about an importer of record should not be a requirement for filing antidumping or countervailing duty evasion allegations with CBP, the Committee to Support U.S. Trade Laws (CSUSTL) said in comments to the agency (here). Such evasion often occurs through a "shell-game" of related companies, making identifying the formal importer of record very difficult, it said. The CSUSTL, largely made up of domestic producer representatives, filed the comments as part of CBP's effort to finalize AD/CV duty evasion allegation procedures at the agency under the Enforce and Protect Act (EAPA) (see 1608190014).

That requirement may effectively incentivize the use of the shell-game, the CSUSTL said. "Making the initiation of investigations contingent upon guessing the right name would significantly reduce the effectiveness of the EAPA procedure in a way that Congress does not appear to have intended," said the group. "It would also further encourage the proliferation of paper company importers to shield certain evasion schemes from the reach of the EAPA administrative proceedings." Congress didn't make importer of record identification a prerequisite for investigation and there's no "support in the legislative history for CBP to exercise discretion to decline to initiate an investigation where an allegation reasonably suggests that covered merchandise has been entered" through evasion, it said.

The agency can find a way around worries of public disclosures that violate the Trade Secrets Act, the CSUSTL said. For example, "to the extent that CBP is concerned that public disclosure of the name of an importer is integral to its enforcement efforts under the EAPA, such public identification may be provided by the alleged importer itself," it said. To follow up on an allegation that doesn't include importer of record information, "CBP may issue an initial questionnaire to relevant importers seeking information regarding the entity's identity and the entry at issue," the group said. "Any response by that entity provides a basis for identification of the importer of record separate and apart from documents submitted regarding the entry of imported merchandise, and the entity cannot claim that its identity constitutes business confidential information." A refusal to respond could also be used as an adverse inference in the proceeding, it said.

CBP should allow for allegations based on import entries made beyond the one-year limit that's included in the interim regulations, the CSUSTL said. That limit wasn't mentioned within the law and it "appears to undermine Congress' expressed intent of ensuring that importers that are evading duties pay all antidumping and countervailing duties for which they are liable." The group also said that an administrative protective order process is necessary, something that other groups also said is of concern (see 1610140044). While CBP extended the comment due date to Dec. 20 (see 1610200012), several trade groups already filed comments on the proceeding (see 1610170012, 1610240014 and 1610260026).

CBP's findings within an investigation deserve public dissemination, the group said. "Limitations on the distribution and publication of agency evasion determinations are inconsistent with CBP's overarching goal of effectively addressing evasion of antidumping and countervailing duty orders, while, at the same time, ensuring that importers are adequately educated so as to be able to properly and accurately declare their imports of goods subject to trade remedy orders," the CSUSTL said. Declining to provide such decisions "improperly handicaps the trade community from being able to evaluate whether the EAPA proceedings are achieving their objective of countering illegal evasion and robs importers of information that could assist them in avoiding others' mistakes." CBP should instead include information on both initial determinations and administrative determinations in the Customs Bulletin within 90 days of CBP's decisions, the committee said.