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Enforce and Protect Act (EAPA) Definitions

Enforce and Protect Act Definitions
19 C.F.R. Part 165*

Administrative record: The administrative record will contain all of the following, if applicable, but is not limited to:

(1) Materials obtained and considered by CBP during the course of an investigation under this part;

(2) Factual information submitted;

(3) Information obtained during and the results of any verification conducted;

(4) Materials from other agencies provided to CBP pursuant to the investigation;

(5) Written arguments; and

(6) Summaries of oral discussions with interested parties relevant to the investigation.

CBP will maintain the administrative record of each investigation or review conducted by CBP pursuant to this part.  All information properly filed with CBP will be placed on the administrative record.  CBP will not consider in its determinations or include on the administrative record any information that is not properly filed with CBP.

Adverse inferencesIn general. If the party to the investigation that filed an allegation, the importer, or the foreign producer or exporter of the covered merchandise fails to cooperate and comply to the best of its ability with a request for information made by CBP, CBP may apply an inference adverse to the interests of that party in selecting from among the facts otherwise available to make the determination as to evasion.

Determination as to evasion:  Upon conclusion of the investigation, CBP will make a determination based on substantial evidence as to whether covered merchandise was entered into the customs territory of the United States through evasion.

Entries subject to this part/Period of investigation: Entries that may be the subject of an allegation or a request for an investigation are those entries of allegedly covered merchandise made within one year before the receipt of an allegation or of a request for an investigation.  In addition, at its discretion, CBP may investigate other entries of such covered merchandise.

Evade or evasion: The terms “evade” and “evasion” refer to the entry of covered merchandise into the customs territory of the United States for consumption by means of any document or  electronically transmitted data or information, written or oral statement, or act that is material and false, or any omission that is material and that results in any cash deposit or other security or any amount of applicable antidumping or countervailing duties being reduced or not being applied with respect to the covered merchandise.

Initiation of investigations: CBP will make a determination as to whether to initiate an investigation on or before the 15th business day after the date on which a properly filed allegation is received or a request for an investigation is received from a Federal agency.

Interested party:  The term ‘‘interested party’’ in this part refers only to the following:

(1) A foreign manufacturer, producer, or exporter, or any importer (not limited to importers of record and including the party against whom the allegation is brought), of covered merchandise or a trade or business association a majority of the members of which are producers, exporters, or importers of such merchandise;

(2) A manufacturer, producer, or wholesaler in the United States of a domestic like product;

(3) A certified union or recognized union or group of workers that is representative of an industry engaged in the manufacture, production, or wholesale in the United States of a domestic like product;

(4) A trade or business association a majority of the members of which manufacture, produce, or wholesale a domestic like product in the United States;

(5) An association a majority of the members of which is composed of interested parties described in paragraphs (2), (3), and (4) of this definition with respect to a domestic like product; or,

(6) If the covered merchandise is a processed agricultural product, as defined in 19 U.S.C. 1677(4)(E), a coalition or trade association that is representative of any of the following: processors; processors and producers; or processors and growers.

Interim measures:  CBP will take interim measures if there is a reasonable suspicion that the importer entered covered merchandise into the customs territory of the United States through evasion.  If CBP decides that there is reasonable suspicion, then:

(1) For entries that remain unliquidated, CBP will:

(i) Suspend the liquidation of each unliquidated entry of such covered merchandise that entered on or after the date of the initiation of the investigation;

(ii) Extend the period for liquidating each unliquidated entry of such covered merchandise that entered before the date of the initiation of the investigation; and

(iii) Take such additional measures as CBP determines necessary to protect the revenue of the United States, including requiring a single transaction bond or additional security or the posting of a cash deposit with respect to such covered merchandise.

(2) For entries that are liquidated, CBP may initiate or continue any appropriate measures separate from this proceeding.

Parties to the investigation:  The phrase “parties to the investigation” means the interested party (or interested parties, in the case of consolidation) who filed the allegation of evasion and the importer (or importers, in the case of consolidation) who allegedly engaged in evasion.  In the case of investigations initiated based upon a request from a Federal agency, parties to the investigation only refers to the importer or importers who allegedly engaged in evasion, and not the Federal agency.

Receipt of allegations:  The “date of receipt” of a properly filed allegation is the date on which CBP provides an acknowledgment of receipt of an allegation containing all the information and certifications required, together with a CBP-assigned control number, to the party that filed the allegation.

Verifications of information: Prior to making a determination, CBP may in its discretion, verify information in the United States or foreign countries as is necessary to make its determination.

 

*All definitions are from CBP’s Regulations, 19 C.F.R. Part 165.  Internal citations have been removed.  Please refer to those regulations for additional definitions and instructions on EAPA investigations.

Last modified: 
December 16, 2016