U.S. Customs and Border Protection currently cannot issue administrative protective orders in duty evasion investigations.
U.S. Customs and Border Protection would like the authority to use administrative protective orders (APOs) in Enforce and Protect Act (EAPA) duty evasion proceedings, CBP Commissioner Kevin McAleenan said during a Senate Finance subcommittee hearing on Wednesday.
One of the reasons CBP duty evasion investigations have been underutilized is that CBP doesn’t have authority to issue an APO, a process that sets guidelines for information sharing and keeping certain information confidential during legal proceedings, Sen. Rob Portman, R-Ohio, said during the hearing on trade and commerce at U.S. ports of entry conducted by the Senate Finance Subcommittee on International Trade, Customs, and Global Competitiveness.
The Commerce Department and International Trade Commission issue APOs in antidumping and countervailing duty proceedings, among other cases.
“The key elements of it — the sharing of additional information with an interested party — is very helpful, and whether we can do that through a final rule on our own, or whether an APO would materially advance that, that’s worth discussing,” McAleenan said, adding CBP would be willing to have discussions with Congress on the matter.
After CBP issued interim rulemaking in August 2016 establishing the EAPA process, the agency will apply lessons learned from the results of ongoing investigations and from incoming allegations to inform development of a final rule, McAleenan said.
CBP has initiated 20 EAPA investigations and completed nine, preventing $50 million worth of duty evasion, he said. The agency has conducted foreign site visits in 18 locations in connection with EAPA proceedings as well.
Those visits have “really given us a sense of where there is a fraudulent issue of ‘fake transshipment,’ if you will, we’re able to actually look at that factory, using our international network, our partnership of foreign governments and with [ICE Homeland Security Investigations] HSI.”
Portman and McAleenan agreed that another thing that would facilitate more petitions is giving would-be petitioners the ability to file allegations when the importer associated with suspected evasion is not known, which EAPA investigations currently don’t allow.
“That’s the case sometimes,” Portman said. “They see an evasion coming. They’re tracking prices, market dynamics. They know it’s coming; they’re just not sure who’s doing it.”
McAleenan responded, “We agree with that. That’s an improvement we’d like to make in the process.”
CBP wants authority to share information
