Sen. Brown Joins Ohio Colleague in Urging Improvement to CBP's EAPA Process
Ohio's two senators are concerned that an existing CBP rule may interfere with attempts to halt customs duty evasion by foreign companies. Sens. Rob Portman, a Republican, and Sherrod Brown, a Democrat, told Acting CBP Commissioner Kevin McAleenan that an agency interim final rule (from August 2016) to implement Enforce and Protect Act (EAPA) provisions of the Trade Facilitation and Trade Enforcement Act will undermine CBP efforts to stop duty evasion, and recommended that the agency release a revised rule. Among the concerns detailed in a letter (here) to McAleenan were that the rule doesn’t establish an administrative protective order process for evasion cases, and that the rule limits authorized evasion proceedings to too narrow a group of stakeholders, or "parties to the investigation."
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“We are concerned that the rule uses the phrase ‘parties to the investigation’ to include only the filer of the allegation and the alleged evader,” Portman and Brown said. “The term ‘parties to the investigation’ is not included in the law. In fact, Congress explicitly intended for a much broader group of stakeholders to be able to participate in duty evasion proceedings.” EAPA defines “interested parties” to include a foreign manufacturer, U.S. importer, U.S. manufacturer or producer, a union or group of workers, and a trade or business association, and CBP’s rule breaks with congressional intent, the senators said.
It’s “imperative” for CBP to accept evasion allegations even if the importer is unknown, as the current name and address requirement for evasion claims will inhibit the number of successfully filed evasion cases because stakeholders often don’t know the importer, the senators said. Portman and Brown also criticized CBP’s “infrequent notifications” during duty evasion proceedings and urged the agency to follow EAPA timelines. Although EAPA didn’t include public disclosure requirements, the senators asked McAleenan to “formally adopt disclosure standards” requiring CBP to publicly announce key investigatory steps to foster transparency and accountability in proceedings.
Portman and Brown indicated that CBP’s declared lack of adherence to parts of EAPA casts doubt on whether it will follow the statute’s deadlines, which provide 300 days for the completion of an evasion investigation after its initiation date, as well as an extension of up to 60 days if the CBP commissioner deems it necessary under certain circumstances. “We urge CBP to clarify that it will follow the law and complete investigations within the required period of time,” the senators said. “We urge you to issue a revised rule that addresses the concerns outlined above to ensure all U.S. workers and companies who are affected by unfair trade practices get the relief they deserve.” Portman expressed transparency concerns about the interim final rule just after it was released (see 1608230016). CBP did not comment, though a spokeswoman said the agency will "respond directly to the senators."