Current EAPA Process Likely Unconstitutional, Trade Lawyers Say

CBP's process for carrying out Enforce and Protect Act investigations could eventually be found by the courts to be unconstitutional, trade lawyers Jen Diaz and David Craven of Diaz Trade Law said during an April 21 webinar. The EAPA investigations, which seek to determine if a company evaded antidumping or countervailing duty orders, are mostly secret and do not inform entities if they are being investigated or what evidence stands against them.

This system could be a violation of the constitutional right to due process and “is a process that is significantly unfair,” Craven said. “Potentially unconstitutional as well, so think about defending yourself,” Diaz added on. “God forbid you were charged with a felony, you would have all the information to defend yourself; this is basically Customs charging you, and you're going to 'Customs court' and you only have a quarter of the facts.” Craven responded by asserting that this process only exists because of the recency of the EAPA law, which came into effect in 2015.

Perhaps one of the first dominoes to fall for EAPA came from importer Royal Brush Manufacturing who successfully challenged certain secrecy portions of the investigation process in the Court of International Trade in December 2020 (see 2012020050). There are currently several related lawsuits in CIT challenging the lack of due process afforded to importers in EAPA investigations.

Another unfair portion of the investigation process stems from the policy of not allowing foreign producers to participate in the investigation, the lawyers said. Companies should demand proof that a foreign producer actually manufactures the goods it says it does and document the fact that the question was even asked. Beyond that, Diaz and Craven recommended to not panic or lose hope if an importer is aware it's subjected to an EAPA investigation because, although difficult, they are not impossible to win.

One part of the process to counter an EAPA investigation begins with the CBP Form 28. The CF 28 could be the start of a lengthy investigation and could be used to get information from a company under an EAPA investigation without their knowledge, she said. Importers should consider what a “request for information” is really asking, she said. Diaz recommended moving to request certain elements of commercial manifests be held confidential since they can be used by competitors to allege antidumping or countervailing duty order evasion to CBP.