The Enforce and Protect Act, codified at 19 U.S.C. 1517, gives U.S. Customs and Border Protection a fixed timetable to investigate whether an importer evaded antidumping or countervailing duties: 15 business days to decide on initiation, 90 calendar days to impose interim measures, and 300 calendar days to determine evasion, extendable by 60.
An EAPA investigation is an administrative proceeding in which CBP determines, on substantial evidence, whether covered merchandise entered the United States by means of a materially false statement or material omission that resulted in duties being reduced or not applied. It is not a criminal case, and a determination of evasion is not a finding of fraud.
What does the statute actually prohibit?
Evasion, as defined in 19 U.S.C. 1517(a), is the entry of covered merchandise into the customs territory of the United States by means of any document, electronically transmitted data, statement, act, or omission that is material and false, and that results in applicable antidumping or countervailing duties being reduced or not applied.
Covered merchandise is merchandise subject to an antidumping or countervailing duty order. The statute carves out clerical errors, which do not constitute evasion unless they form part of a pattern of negligent conduct. That carve-out matters because the typical allegation involves transshipment through a third country, misdescription of the merchandise, or a misstated country of origin rather than an isolated data-entry mistake.
The distinction between an evasion determination and a fraud finding is procedural, not cosmetic. CBP may, upon determining that evasion occurred, refer the matter for penalty proceedings or to another agency, but the determination itself resolves duty liability and liquidation, not culpability.
Who can file an allegation, and what does CBP do with it?
Only an interested party may file. Under the implementing regulations at 19 CFR part 165, the category includes domestic manufacturers, producers and wholesalers of a like product, certified or recognized labor unions, trade associations representing those groups, and, for processed agricultural products, coalitions of processors and growers. Foreign manufacturers, exporters, and importers of the covered merchandise also qualify as interested parties, according to CBP's published EAPA definitions. A federal agency may instead refer a matter to CBP. Part 165 was created by an interim rule effective August 22, 2016 (docket USCBP-2016-0053, RIN 1515-AE10), issued by CBP and the Treasury Department to implement the statute.
Once a properly filed allegation is received, CBP has 15 business days to determine whether the information reasonably suggests that covered merchandise entered by means of evasion. The investigation may reach entries made within one year before the allegation or referral was received, which is why allegations are often timed against a specific entry window rather than filed at leisure.
Notice practice runs on its own clock. Under 19 CFR 165.15(a), CBP issues notice of its decision to initiate to all parties no later than five business days after day 90 of the investigation, meaning an importer can be under investigation for roughly three months before it is formally told.
What happens at the 90-day mark?
Within 90 calendar days of initiating, CBP must decide whether there is a reasonable suspicion that the importer entered covered merchandise by means of evasion. Reasonable suspicion is a lower threshold than the substantial-evidence standard that governs the final determination, and it is the trigger for interim measures under 19 U.S.C. 1517(e) and 19 CFR 165.24.
Interim measures are the commercially consequential stage. CBP may suspend liquidation, which is the final computation of duties owed on an entry, for entries made on or after the date of initiation; extend the liquidation period for entries made before that date; and impose additional security, typically single transaction bonds or cash deposits, on subsequent entries.
Because interim measures attach before any finding of evasion, an importer can face suspended liquidation and increased security for the remainder of the investigation on the strength of a suspicion finding alone. The regulations do not treat that as a penalty; it is a preservation of revenue pending determination.
How long does the whole process take?
The statutory sequence, from allegation to the courthouse, runs as follows.
- CBP receives an allegation from an interested party or a referral from a federal agency.
- Within 15 business days, CBP decides whether to initiate an investigation.
- Within 90 calendar days of initiation, CBP determines whether reasonable suspicion supports interim measures.
- Within 300 calendar days of initiation, CBP determines whether substantial evidence shows evasion; the deadline may be extended by not more than 60 calendar days where the investigation is extraordinarily complicated.
- Within 30 business days of the determination, a party may request de novo administrative review by CBP.
- CBP completes that review within 60 business days of its commencement.
- Within 30 business days after completion of administrative review, a party may seek judicial review in the U.S. Court of International Trade.
Two features of that timeline deserve emphasis. The final determination rests on substantial evidence, and CBP may apply an adverse inference against a party that fails to cooperate to the best of its ability, which in practice means an unanswered questionnaire can supply the evidentiary gap it created. Judicial review at the Court of International Trade examines whether CBP complied with the required procedures and whether the determination was arbitrary or capricious.
| Stage | Standard applied | Deadline | Authority |
|---|---|---|---|
| Initiation | Information reasonably suggests evasion | 15 business days | 19 U.S.C. 1517(b) |
| Interim measures | Reasonable suspicion | 90 calendar days | 19 U.S.C. 1517(e); 19 CFR 165.24 |
| Determination | Substantial evidence | 300 calendar days, plus up to 60 | 19 U.S.C. 1517(c); 19 CFR 165.22 |
| Administrative review | De novo | 60 business days | 19 U.S.C. 1517(f); 19 CFR 165.45 |
| Judicial review | Procedural compliance; arbitrary or capricious | 30 business days to file | 19 U.S.C. 1517(g) |
What did Royal Brush change about confidential information?
The record in an EAPA investigation is split between public and business confidential versions. Under 19 CFR 165.4, a submitter may request confidential treatment for information meeting trade-secret standards, but must file a public version summarizing the bracketed material in sufficient detail to permit a reasonable understanding of it. The regulation also lists categories that cannot be treated as confidential at all, among them the identity of the importer and the antidumping or countervailing duty orders at issue.
In Royal Brush Manufacturing, Inc. v. United States, No. 22-1226, decided July 27, 2023, the U.S. Court of Appeals for the Federal Circuit held that CBP violated the importer's due process rights by relying on confidential information that was never disclosed to it, reasoning that evidence used to prove the government's case must be disclosed so the affected party can respond. The court rejected the argument that the absence of a statutory protective-order provision barred disclosure, holding that the agency had inherent authority to issue one, and vacated and remanded with instructions that CBP provide access under a protective order and an opportunity to submit rebuttal evidence.
The regulation now reflects that outcome. Section 165.4(f), added by an amendment published at 89 FR 19258 on March 18, 2024, provides that CBP will issue an administrative protective order containing terms allowing representatives of parties to the investigation to access the business confidential information.
Why does this matter to importers?
The practical exposure in an EAPA proceeding is duty liability on suspended entries plus the carrying cost of additional security, both of which can accrue for the better part of a year before any determination issues. The one-year lookback for entries and the delayed notice of initiation mean the volume at risk is often fixed before an importer knows it is a respondent.
Participation rights follow the same schedule as the deadlines. Because the determination is made on the administrative record and judicial review is deferential to it, the questionnaire responses, factual submissions, and written arguments filed during the 300-day window are the record a court will later examine. This article is legal information, not legal advice; importers facing an allegation should consult qualified customs counsel about their own circumstances.
For a related business news perspective, read How SEC Investigations Move From Inquiry to Enforcement Action.