EAPA Investigations Being 'Gamed' to Favor Allegers, Trade Lawyers Say

The Enforce and Protect Act evasion investigation process is being gamed by both allegers and CBP to tilt it in favor of finding evasion by importers to the point that the agency finds evasion 90% of the time, customs lawyers Jennifer Diaz and David Craven said during a June 29 webinar hosted by National Customs Brokers & Forwarders Association of America Educational Institute.

Diaz and Craven said the EAPA consolidation process is being manipulated by both allegers and by CBP to get more evasion results. A savvy alleger can potentially make multiple allegations against small companies, wait a few months and then make a similar allegation against another company better equipped to defend itself. If those cases get consolidated, the respondent in the latter allegation can be deprived of full time to respond due to the EAPA time constraints, Craven said

CBP itself can also decline to consolidate when doing so would make an evasion determination more likely, Diaz said. When there are separate allegations against a number of small companies that could, by pooling resources and information, improve their chances, CBP can, and does, decline to combine those investigations and make small companies fend for themselves in an opaque process, often without even being aware similar proceedings are going on, Diaz said.

Diaz and Craven also were critical of the secretive nature of the EAPA process. While you're trying to defend an EAPA allegation, you don't have full access to the record, Diaz said. Importers have 100% liability for their shipments but don't have all the facts in these investigations. They are "fundamentally changing the risk of importing," she said.

"EAPA is the only administrative proceeding I can think of where the lawyers can't see all the information," Craven said. Because the decisions themselves are often partially secret, it makes it very hard to decide whether to contest an outcome at court. Once things get to the court level, they become much more transparent, Craven said, but the Court of International Trade has not pushed back on the EAPA process nearly as much as he thought it might.