The Enforce and Protect Act (“EAPA”), signed into law as part of the Trade Facilitation and Trade Enforcement Act of 2015, established procedures for a wide variety of stakeholders to submit allegations of evasion of antidumping and countervailing duties to U.S. Customs and Border Protection (“CBP”). After several years, it appears this new tool for addressing evasion of duties has started to take off.

CBP’s Trade and Travel Report for Fiscal Year 2018 relates a significant uptick in the agency’s investigative work stemming from EAPA allegations. In particular, CBP received nearly double the allegations in fiscal year 2018 that it received in fiscal year 2017. The agency also issued final determinations in 12 investigations, up from only 1 the year before. Despite the uptick in work, CBP touts having “met every statutory deadline for all EAPA investigations,” even rendering decisions ahead of statutory deadlines in some cases, and proclaims that this process has “proven to be a success{}.” CBP’s bullish outlook should encourage even more stakeholders to come forward with allegations and to participate in the process.

There are, however, a few considerations that potential allegers should consider before filing an allegation. CBP’s regulations define the “date of receipt” of an allegation, as the date “on which CBP provides an acknowledgement of receipt of an allegation.” As a practical matter, by defining the date of receipt as the date that CBP acknowledges receipt, CBP has built in a period of time where it can work with allegers to ensure that the agency understands the allegation and identify any potential holes in the allegation that the agency sees at this early stage.

After notifying the alleger that its allegation has been received, the statutory clock on initiation and imposition of interim measures starts ticking. Although the statutory deadline for initiating an investigation is 15 days from CBP’s receipt of an allegation, CBP does not notify the public of its determination to initiate until CBP determines whether it is appropriate to impose interim measures, or not more than 95 days from the date of receipt.

During this 95-day window, CBP seeks to determine whether there is “a reasonable suspicion” that evasion is occurring. If the record does not support such a determination, CBP provides the alleger with an opportunity to withdraw its allegation so that the allegation will not become a matter of public record. This preserves the alleger’s ability to undertake additional research and/or gather additional information, without alerting the alleged evading parties to the allegation.

If CBP determines “a reasonable suspicion” of evasion does exist, or the alleger does not withdraw its allegation, CBPpublishes a notice on its portal. All of CBP’s notices of action can be found here.

Given this interactive approach, it is likely that CBP has devoted significant resources to ensuring evasion of antidumping and countervailing duties is not occurring. Further, as additional stakeholders become aware of this process, it is likely that EAPA investigations will become more commonplace.

AD/CVD Evasion Enforcement Uptick in 2018