EAPA Final Rule Allows (Representatives of) Parties to Access Business Confidential Information

Mar. 18, 2024
By: Pietro N. Bianchi

Customs published its final rule formally adopting the 2016 interim rule on proceedings of the Prevention of Evasion of Antidumping and Countervailing Duty Orders, also known as the Enforce and Protect Act or EAPA. EAPA regulates CBP’s process for determining whether an antidumping and countervailing duty order was evaded.

The most notable change from the interim rules is the addition of an administrative protection order (“APO”) process, which permits representatives of parties under an evasion investigation to access the business confidential information obtained by CBP during its investigation. Commenters on the final rule claimed that “the lack of an APO hinders the parties' ability to meaningfully participate in EAPA proceedings in multiple ways,” including providing rebuttal information and submitting arguments.

Comments aside, the APO process was mandated by the U.S. Court of Appeals in its decision in Royal Brush Mfg. v. United States, 75 F.4th 1250 (Fed. Cir. 2023). To summarize Royal Brush, the Court held that a pencil importer’s due process rights were violated when lack of access to business confidential information prevented the importer from rebutting CBP’s assertions. This information included photos, manufacturer site verification reports, and invoices and purchase orders used to establish manufacturing capability and capacity limits. You can read more about Royal Brush here.

The addition of an APO process to the final rules is a win for parties under EAPA investigation and due process in general. Previously, CBP could state photos showed transshipment, and find that a party evaded AD/CVD orders, without providing those photos for rebuttal or review. Now, CBP cannot use factual information to support its evasion determinations without providing that information to the party under investigation.

If you have questions about evasion investigations and other antidumping and countervailing duties issues, do not hesitate to contact an attorney at Barnes Richardson, & Colburn LLP.