Under Trade Facilitation and Trade Enforcement Act of 2015 CBP to Investigate Allegations of Evasion of Antidumping and Countervailing Duty Orders
On February 24, 2016, President Obama signed into law The Trade Facilitation and Trade Enforcement Act of 2015 (TFTE). TFTE is the first major customs law enacted since the Customs Modernization Act, which was enacted in 1993 as part of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182 (1993).
As to trade enforcement, the law covers three important issues: (1) importer-of-record identification; (2) intellectual property protection; and (3) antidumping and countervailing duty evasion. This document focuses on evasion of antidumping and countervailing duty orders contained in Title IV of the Act, which is separately titled as the Enforce and Protect Act of 2015. Title IV sets forth deadlines for Customs & Border Protection (CBP) to investigate allegations of antidumping and countervailing duty evasion. A timeline for such investigations, prepared by the Office of Regulations & Rulings (OR&R) is available here.
The law requires CBP to make its determinations based upon substantial evidence as to whether the subject merchandise entered the United States through evasion. CBP is to use techniques, more familiar to the U.S. International Trade Commissions and the U.S. Department of Commerce (DOC) in antidumping and countervailing investigations, of issuing questionnaires, conducting verifications and utilizing adverse inferences.
If CBP makes a determination of evasion, CBP shall: (1) suspend the liquidation of unliquidated entries of merchandise subject to the determination and that enter on or after the date of the initiation of the investigation; (2) extend the period for liquidating unliquidated entries of merchandise covered by its determination and that entered before the date of initiation; (3) notify the DOC of the determination and request that the DOC identify the applicable antidumping/ countervailing duty rates: and (4) require the posting of cash deposits and assess duties on the involved entries.
The person affected by CBP’s determination may file an administrative appeal to CBP within 30 days, which must be decided de novo within 60 days. The appeal decision is subject to judicial review at the U.S. Court of International Trade (USCIT). The standard of review at the USITC is whether the determination, finding or conclusion is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
During his testimony before the Senate Finance Committee on May 11, CBP Commissioner Gil Kerlikowske said that CBP will generally take a tougher enforcement stance on U.S. trade laws than in the past, including through aggressive use of the Enforce and Protect Act of 2015 to fight trade remedy duty evasion. He also said that CBP would issue an interim final regulation for implementing the new law’s duty evasion provisions within the statutory deadline of 180 days, which would occur in late August.