Duty Evasion Updates: CBP Publishes EAPA Final Rule and Launches AD/CVD Evasion Statistics Tool

By: Olga Torres, Managing Member, Derrick Kyle, Senior Associate
Date: 04/20/2024

March 2024 was a busy month for U.S. Customs and Border Protection (“CBP” or “Customs”) with respect to the Enforce and Protect Act (“EAPA”) regulations related to the evasion of antidumping and countervailing duties (“AD/CVD”). On March 11, CBP made a new dashboard available, which allows the public to review statistics related to EAPA cases that have made it to the “interim measures” or “determination of evasion” stages of investigations. Separately, on March 18, CBP published a final rule, which adopts amendments to the initial EAPA regulations originally published as an interim final rule on August 22, 2016.


The EAPA was passed as Title IV of the Trade Facilitation and Trade Enforcement Act of 2015 (“TFTEA”) and was signed into law on February 24, 2016. The EAPA implementing regulations are found at 19 C.F.R. § 165. The EAPA established a formal mechanism for parties, including other Federal government agencies and competitors, to allege evasion of AD/CVD orders by importers. Evasion of AD/CVD deprives the U.S. Government of revenue and harms domestic industry by avoiding the duties imposed to counteract the negative consequences of the dumping, in the case of ADD, or foreign government subsidies, in the case of CVD. For a more in-depth discussion of AD/CVD, see our previous article, Are My Products Subject to Anti-Dumping/Countervailing Duties?

Through the EAPA allegation mechanism, interested parties can make allegations of evasion directly to CBP, and Customs is required to meet statutory deadlines in the investigation of the AD/CVD evasion allegation. CBP must determine whether to initiate an investigation within 15 days of receiving the evasion allegation. Within 90 days of commencing an investigation, CBP must determine whether “interim measures” should be imposed to protect revenue of potentially evading imports. CBP must make a final determination as to evasion within 300 days of initiation, or 360 days in complicated cases. For more information regarding the evasion allegation process, see the article we published at the time of publication of the initial EAPA regulations, CBP Extends Deadline for Public Comment: AD/CVD Evasion. And for a description of an EAPA allegation leading to a final determination of evasion, see Key Takeaways from CBPs First Final Determination of Evasion under EAPA.

Statistics Dashboard

The EAPA Statistics Dashboard (“Dashboard”) contains statistics related to the 228 EAPA investigations initiated since the EAPA became effective in 2016. CBP collected the data for the Dashboard from the EAPA Case Management System. The cases can be reviewed using filters, including AD/CVD Order, Possible Country of Origin, Product Description, Evasion Scheme, and others. The Dashboard shows that of the 228 total cases, 178 cases involve China as the possible country of origin, followed by 17 cases with South Korea as the possible country of origin and 16 cases where Germany is the possible country of origin.

Most cases involved an evasion scheme of transshipment, which represented the primary evasion scheme in 207 of the 228 cases, and the Dashboard ranks countries by number of cases involving transshipment through the country. Malaysia ranks first with 65 cases of transshipment, followed by Mexico with 29 cases of transshipment, then Cambodia and India with 18 and 17 cases of transshipment, respectively. Other AD/CVD evasion schemes include Misclassification, Failure to Pay AD/CVD Duties, and Use of Wrong AD/CVD Rate.

EAPA Final Rule

The EAPA Final Rule (“Final Rule”), effective April 17, 2024, was published nearly eight years after the interim final rule became effective on August 22, 2016. CBP claims that it is now ready to finalize the interim final rule due to the launching of its EAPA Portal in April 2021 and “CBP’s extensive experience with the current EAPA process.”

The Final Rule addresses many public comments that were received during the initial 120-day comment period between August and December of 2016. Changes made in response to public comments include:

  • Adding a list of examples of evasion schemes to the definition of “evade or evasion” in 19 C.F.R. §165.1;

  • Clarifying that CBP will not consider or add a submission to the administrative record of an EAPA case if the party has not provided proof of the execution of a power of attorney to CBP within five business days of an interested party’s first submission during an investigation or administrative review; and

  • Clarifying that CBP will reject a submission that does not fulfill the form requirements of 19 C.F.R. § 165.5(b)(1).

In response to certain public comments, CBP also clarified its position regarding the interaction of the EAPA regulations and the prior disclosure statute at 19 U.S.C. § 1592. Specifically, CBP responded that “an importer may be precluded from filing a prior disclosure for violations discovered during the course of an EAPA investigation but may not be precluded from filing a prior disclosure for violations discovered outside of the course of the EAPA investigation.” Further, CBP clarified that, where entries subject to an affirmative determination of evasion are already liquidated, CBP’s recourse for recovering the lost duty is to initiate a § 1592 proceeding or “any other appropriate action separate from the EAPA proceeding.”

The Final Rule also addresses the request by multiple commenters for the final regulations to include a process by which CBP allows authorized representatives of interested parties to receive, under the protection of an administrative protective order (“APO”), confidential information submitted by other interested parties. The provision of business confidential information to interested parties under an APO in an EAPA investigation was the subject of a 2023 case before the U.S. Court of Appeals for the Federal Circuit. In that case, Royal Brush Mfg. v. United States (Fed. Cir. 2023), the Federal Circuit found that to comply with due process requirements, CBP must provide interested parties with business confidential information and the opportunity to rebut the information, and that the EAPA does not bar the use of APOs. Pursuant to the decision in Royal Brush, CBP has amended the EAPA regulations to explicitly state that, where the requirements of § 165.4 are satisfied, CBP will grant business confidential treatment and issue an APO, “which will contain terms that allow the representatives of the parties to the investigation to access the business confidential information.”

In the Final Rule, CBP claims that the EAPA process prevented the evasion of over $375 million in AD/CVD in 2021 alone. CBP expects this number to grow “as domestic producers and legitimate importers grow more accustomed to the EAPA process.”


Companies facing evasion allegations and those alleging evasive conduct should be prepared for the rigors of an EAPA investigation. The best way to prepare is to hire experienced customs counsel. If you have any questions about the EAPA updates discussed in this article or EAPA investigations generally, do not hesitate to contact the attorneys at Torres Trade Law.

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