CBP Adds APO Process for EAPA Investigations

CBP is adding an administrative protective order process for companies involved in Enforce and Protect Act investigations to access business confidential information of other "interested parties," so the companies can have full access to CBP's decision-making in a duty evasion investigation, the agency said.

The process will mean that in each investigation where CBP has granted a party confidentiality for any part of its submission, CBP will issue an APO that will allow representatives of parties to the investigation access to the business confidential information, the agency said.

The new APO process is being added as part of a final rule that formally adopts the interim rule on EAPA proceedings CBP issued in 2016 (see 1608190014), with some changes. Released on March 15, the final rule will go into effect on April 17.

The agency also said that it will publish additional guidance on the APO process, and CBP is also considering whether to initiate a separate rulemaking for "purposes of further codifying an APO process," it said.

The new provisions come after the U.S. Court of Appeals for the Federal Circuit ruled in July 2023 that CBP violated importer Royal Brush Manufacturing's due process rights by failing to provide it with access to business confidential information in an antidumping and countervailing duty evasion proceeding (see 2307270038).

Commenters on the final rule argued that the lack of an APO process or similar process hinders their ability to "meaningfully participate" in EAPA proceedings. The lack of an APO process means that parties affected will not have full access to information on the administrative record "unless and until judicial review is requested," CBP said.

The commenters also argued that the lack of information prevents parties from providing rebuttal information and from submitting arguments, CBP said. The process is more burdensome for CBP without an APO because the agency must respond to "irrelevant arguments and evidence" when parties are unable to access the full information of what is on the record and the other parties' claims, the commenters said to CBP.

CBP responded that its current process provides parties with a meaningful opportunity to participate in EAPA investigations, but acknowledged the Royal Brush case and said it would add the APO process so it would be in compliance with the decision.

CBP also specified what action CBP will take if the "required proof of execution of a power of attorney is missing," CBP said. The agency clarified it will reject any submission if a party has not provided a power of attorney to CBP within five business days of an interested party's first submission.

And CBP provided clarification about how EAPA cases can affect prior disclosures. Importers "may be precluded" from filing a prior disclosure of violations discovered during an EAPA investigation but may be allowed to file a prior disclosure if the violations are outside the scope of the EAPA investigation, CBP said. There will be a "fact-specific assessment" to determine whether a prior disclosure will be accepted, CBP said. The assessment will involve the importers, entries and AD/CVD orders that are part of the disclosure.

The importer alleged to have engaged in evasion will have to show that it isn't aware of an ongoing investigation before it can file a prior disclosure, CBP said.

CBP made other amendments, technical changes and clarifications in the final rule, including providing that a verification report must be placed on the record by CBP after a verification, and that the party undergoing verification must subsequently put any verification exhibits on the record of the case.