PART 165—INVESTIGATION OF CLAIMS OF EVASION OF ANTIDUMPING AND COUNTERVAILING DUTIES Authority: 19 U.S.C. 66, 1481, 1484, 1508, 1517 (as added by Pub. L. 114-125, 130 Stat. 122, 155 (19 U.S.C. 4301 note)), 1623, 1624, 1671, 1673. Source: 81 FR 56482, Aug. 22, 2016, unless otherwise noted. § 165.0 Scope. This part relates to allegations by the public and requests from Federal agencies for an investigation regarding the evasion of antidumping (AD) and countervailing duty (CVD) orders and the procedures by which CBP investigates such claims consistent with the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which contains Title IV-Prevention of Evasion of Antidumping and Countervailing Duty Orders (short title “Enforce and Protect Act of 2015” or “EAPA”) (Pub. L. 114-125, 130 Stat. 122, 155, Feb. 24, 2016) (19 U.S.C. 4301 note). This part includes the requirements for the filing of allegations and requests for investigations, the investigation procedures, and administrative review of determinations as to evasion of AD/CVD orders under the EAPA. The procedures under this part are not the exclusive manner by which CBP may receive allegations or requests for an investigation from Federal agencies or investigate such allegations or requests with respect to the evasion of AD/CVD orders. An investigation as described in this part, if initiated by CBP, does not preclude CBP or any other government entity from initiating any other investigation or proceeding pursuant to any other provision of law, including proceedings initiated under 19 U.S.C. 1592. Subpart A—General Provisions § 165.1 Definitions. As used in this part, the following terms will have the meanings indicated unless either the context in which they are used requires a different meaning or a different definition is prescribed for a particular section of this part: Allegation. AD. AD/CVD. Business day. Covered merchandise. CVD. Enter entry. see see Evade Evasion. Interested party. (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. Investigation. Parties to the investigation. Regulations and Rulings. TRLED. [81 FR 56482, Aug. 22, 2016, as amended at 81 FR 62004, Sept. 8, 2016; 89 FR 19258, Mar. 18, 2024] § 165.2 Entries subject to this part. Entries that may be the subject of an allegation made under § 165.11 or a request for an investigation under § 165.14 are those entries of allegedly covered merchandise made within one year before the receipt of an allegation under § 165.11 or of a request for an investigation under § 165.14. In addition, at its discretion, CBP may investigate other entries of such covered merchandise. § 165.3 Power of attorney. (a) When required. (b) Exception. (c) Execution Corporation. (2) Partnership. (3) Other persons. (d) Revocation. (e) Proof. (f) Return of submission. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19258, Mar. 18, 2024] § 165.4 Release of information provided by interested parties. (a) Claim for business confidential treatment. (1) Identification of business confidential information. (2) Public version. (b) Nonconforming submissions. (1) Notice of rejection. (2) Corrective action. (i) Correct the problems and resubmit the information by an email message or through any other method approved or designated by CBP; (ii) If CBP denies a request for business confidential treatment, agree to have the information in question treated as public information; (iii) Submit other material concerning the subject matter in lieu of the rejected information. (3) Effects of rejection. (c) Information that will not be protected as confidential. (1) Name of the party to the investigation providing the information and identification of the agent filing on its behalf, if any, and email address for communication and service purposes; (2) Specification as to the basis upon which the party making the allegation qualifies as an interested party as defined in § 165.1; (3) Name and address of importer against whom the allegation is brought; (4) Description of covered merchandise; and (5) Applicable AD/CVD orders. (d) Certification. i.e. (e) Information placed on the record by CBP. (f) Administrative protective order. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19258, March 18, 2024] § 165.5 Obtaining and submitting information. (a) Obtaining of information by CBP. (b) Submissions to CBP. (1) Form. (2) Certifications. (i) “On behalf of the party making this submission, I certify that all statements in this submission (and any attachments) are accurate and true to the best of my knowledge and belief.” (ii) “On behalf of the party making this submission, I certify that any information for which I have not requested business confidential treatment pursuant to §165.4(a), may be released for public consumption.” (iii) “On behalf of the party making this submission, I certify that I will advise CBP promptly of any knowledge of or reason to suspect that the covered merchandise poses any health or safety risk to U.S. consumers pursuant to §165.7(a).” (3) False statement. see (4) Nonconforming submissions. (c) Compliance with CBP time limits Requests for extensions. (2) Rejection of untimely submissions. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19258, March 18, 2024] § 165.6 Adverse inferences. (a) In general. (b) Adverse inferences described. (c) Application. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19259, Mar. 18, 2024] § 165.7 Protection of public health and safety. (a) Notification to CBP. (b) Transmission by CBP. Subpart B—Initiation of Investigations § 165.11 Allegations by interested parties. (a) Filing of allegation. (b) Contents. (1) Name of the interested party making the allegation and identification of the agent filing on its behalf, if any, and the email address for communication and service purposes; (2) An explanation as to how the interested party qualifies as an interested party pursuant to § 165.1; (3) Name and address of importer against whom the allegation is brought; (4) Description of the covered merchandise; (5) Applicable AD/CVD orders; and (6) Information reasonably available to the interested party to support its allegation that the importer with respect to whom the allegation is filed is engaged in evasion. (c) Certifications. (d) Signature. (e) Technical assistance and guidance Availability. (i) Small businesses. (ii) Other parties. (2) Requests. (3) Limitations. § 165.12 Receipt of allegations. (a) Date of receipt. (b) Withdrawal. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19259, Mar. 18, 2024] § 165.13 Consolidation of allegations. (a) In general. (b) Criteria. (1) Relationships between the importers; (2) Similarity of covered merchandise; (3) Similarity of AD/CVD orders; and (4) Overlap in time periods for entries of covered merchandise. (c) Notice. (d) Service requirements for other parties to the investigation. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19259, Mar. 18, 2024] § 165.14 Other Federal agency requests for investigations. (a) Requests for investigations. (b) Contents of requests. (1) Name of importer against whom the allegation is brought; (2) Description of the covered merchandise; (3) Applicable AD/CVD orders; (4) Information that reasonably suggests that an importer has entered covered merchandise into the customs territory of the United States through evasion; (5) Identification of a point of contact at the agency; and (6) Notification of any knowledge of or reason to suspect that the covered merchandise poses any health or safety risk to U.S. consumers. (c) Receipt of requests. (d) Notice of release of information Public information. (2) Business confidential treatment. (e) Access to investigation. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19259, Mar. 18, 2024] § 165.15 Initiation of investigations. (a) Time for determination. (b) Criteria for initiation. (1) Nature of merchandise. (2) Likelihood of evasion. (c) Exceptions. (1) Clerical error. (2) Withdrawal. (d) Notification of the investigation. (1) In general. (2) Consolidated allegations. (e) Record of the investigation. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19259, Mar. 18, 2024] § 165.16 Referrals to Department of Commerce. (a) When required. (b) Referral. (c) Notice of referral. (d) Effect on investigation. (e) Notice of decision. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19260, Mar. 18, 2024] Subpart C—Investigation Procedures § 165.21 Administrative record. (a) Administrative record. (1) Materials obtained and considered by CBP during the course of an investigation under this part; (2) Factual information submitted pursuant to § 165.23; (3) Information obtained during and the results of any verification conducted pursuant to § 165.25; (4) Materials from other agencies provided to CBP pursuant to the investigation; (5) Written arguments submitted pursuant to § 165.26 and subpart D of this part; and (6) Summaries of oral discussions with interested parties relevant to the investigation pursuant to § 165.23. (b) Maintenance of the record. § 165.22 Time for investigations. (a) Time for determination. (b) Time for determination with consolidated allegations. (c) Extension of time for determination. (1) The investigation is extraordinarily complicated because of— (i) The number and complexity of the transactions to be investigated; (ii) The novelty of the issues presented; or (iii) The number of entities to be investigated; and (2) Additional time is necessary to make the determination under paragraph (a) of this section. (d) Notice of extension of time for determination. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19260, Mar. 18, 2024] § 165.23 Submission of factual information. All submissions of factual information to CBP must comply with the requirements specified in §§ 165.4 and 165.5 and this section. The submissions will be placed on the administrative record. (a) Request for information by CBP. (1) An interested party that filed an allegation under § 165.11; (2) An importer who allegedly engaged in evasion; (3) A person that is a foreign producer or exporter of covered merchandise; and/or (4) The government of a country from which covered merchandise may have been exported. (b) Voluntary submission of factual information. (c) Time limits and service requirements Responses to CBP requests for factual information. (2) Voluntary submission of factual information. (ii) Parties to the investigation will have 10 calendar days from the date of placement of any new factual information on the record to provide rebuttal information to that new factual information, if the information being rebutted was placed on the administrative record no later than 200 calendar days after CBP initiated the investigation under § 165.15, or no later than the extended deadline. (d) Oral discussions. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19260, Mar. 18, 2024] § 165.24 Interim measures. (a) Reasonable suspicion. (b) Measures. (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 under § 165.15; (ii) Extend the period for liquidating each unliquidated entry of such covered merchandise that entered before the date of the initiation of the investigation under § 165.15 pursuant to section 504(b), Tariff Act of 1930, as amended (19 U.S.C. 1504(b)); 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 pursuant to section 623, Tariff Act of 1930, as amended (19 U.S.C. 1623). (2) For entries that are liquidated, CBP may initiate or continue any appropriate measures separate from this proceeding. (c) Notice. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19260, Mar. 18, 2024] § 165.25 Verifications of information. (a) Prior to making a determination under § 165.27, CBP may in its discretion verify information in the United States or foreign countries collected under § 165.23 as is necessary to make its determination. (b) CBP may conduct verifications before and after the deadline for the voluntary submission of new factual information as referenced in § 165.23. The general purpose of the verification is to verify the accuracy of the information already placed on the administrative record. (c) CBP will place a report about the verification, i.e., (d) If CBP determines that information discovered during a verification is relevant to the investigation and constitutes new factual information, CBP will place it on the administrative record separately, in accordance with § 165.23, and allow parties to the investigation to submit rebuttal information. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19260, Mar. 18, 2024] § 165.26 Written arguments. All written arguments submitted to CBP pursuant to a proceeding under this part must comply with the requirements specified in §§ 165.4 and 165.5 and this section. The submissions will be placed on the administrative record. (a) Written arguments. (1) May submit to CBP written arguments that contain all arguments that are relevant to the determination as to evasion and based solely upon facts already on the administrative record in that proceeding. All written arguments must be: (i) Submitted to the designated email address specified by CBP or through any other method approved or designated by CBP; (ii) Submitted no later than 230 calendar days after the investigation was initiated pursuant to § 165.15, unless extended by CBP solely at CBP's discretion but no later than 300 calendar days after the investigation was initiated, or 360 calendar days after the investigation was initiated if the deadline for a determination as to evasion has been extended by CBP pursuant to § 165.22(c); and (2) Must serve a public version of the written arguments prepared in accordance with § 165.4 on the other parties to the investigation by an email message or through any other method approved or designated by CBP the same day it is filed with CBP. (b) Responses to the written arguments. (1) May submit to CBP a response to a written argument filed by another party to the investigation, fulfilling the following requirements: (i) The response must be in writing and submitted to the designated email address specified by CBP, or through any other method approved or designated by CBP, no later than 15 calendar days after the written argument was filed with CBP, unless extended by CBP solely at CBP's discretion; and (ii) The response must be limited to the issues raised in the written argument; any portion of a response that is outside the scope of the issues raised in the written argument will not be considered; and (2) Must serve a public version of the response prepared in accordance with § 165.4 on the other parties to the investigation by an email message or through any other method approved or designated by CBP the same day it is filed with CBP. (c) Written arguments submitted upon request. (d) Form of written argument and response to the written arguments. (1) The name, address, and email address of the party and of his or her duly authorized agent or attorney at law (if represented by a duly authorized agent or attorney at law); (2) A concise summary of the argument or response to the argument; (3) The argument or response to the argument that clearly and accurately presents points of fact and law with applicable citations; (4) A table of contents and a table of cited authorities; and (5) A conclusion that states a proposal for CBP's determination as to evasion. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19261, Mar. 18, 2024] § 165.27 Determination as to evasion. (a) Determination. (b) Notification. (c) Negative determination. § 165.28 Assessments of duties owed; other actions. (a) Effect on liquidation. (1) Suspension of liquidation. (ii) If CBP has already suspended the liquidation of such entries pursuant to § 165.24, then CBP will continue to suspend their liquidation. (2) Extension of liquidation. (ii) If CBP has already extended the period for liquidating such entries pursuant to § 165.24, then CBP will continue to extend the period for liquidating such entries. (b) Notification to the Department of Commerce. (1) Identify the applicable antidumping or countervailing duty assessment rates for merchandise covered by the determination; and/or (2) If no assessment rate is available at the time, identify the applicable cash deposit rate to be applied, with the applicable antidumping or countervailing duty assessment rate to be provided as soon as that rate becomes available. (c) Cash deposits and duty assessment. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19261, Mar. 18, 2024] Subpart D—Administrative Review of Determinations as to Evasion § 165.41 Filing a request for review of the determination. (a) How to file a request for administrative review. (b) Release of information and service. (c) Notice to parties to the investigation. (d) When filed. (e) True and accurate information. (f) Content. (1) The allegation control number assigned by CBP with respect to the investigation under consideration; (2) The name, address and email address of the party seeking review and the name, address and email address of his or her duly authorized agent or attorney at law (if represented by a duly authorized agent or an attorney at law); (3) A statement of the procedural history and facts as set forth in the administrative record and identified by specific page number or exhibit number and relied upon by the party to prove or establish whether evasion occurred or not; (4) A concise summary of the argument; (5) The argument expressing clearly and accurately the points of fact and of law presented and citing the authorities and statutes relied on; and (6) A conclusion specifying whether the determination should be affirmed or reversed. (7) Each party seeking business confidential treatment must comply with the requirements in § 165.4. (g) Assigned case number. (h) Consolidation of requests for administrative review. (i) Commencement of administrative review. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19261, Mar. 18, 2024] § 165.42 Responses to requests for administrative review. Any party to the investigation, regardless of whether it submitted a request for administrative review, may submit a written response to the filed request(s) for review. A party who submitted a request for administrative review may not respond to its own submission. Each written response may not exceed 30 pages in total (including exhibits but not table of contents or table of authorities) and must follow the requirements in § 165.41(f). The written responses to the request(s) for review must be limited to the issues raised in the request(s) for review and must be based solely on the facts already on the administrative record in that proceeding. The responses must be filed in a manner prescribed by CBP no later than 10 business days from the commencement of the administrative review. All responses must be accompanied by the certifications provided for in § 165.5. Each party seeking business confidential treatment must comply with the requirements in § 165.4. The public version of the response(s) to the request(s) for review must be provided to the other parties to the investigation via an email message or through any other method approved or designated by CBP. [89 FR 19261, Mar. 18, 2024] § 165.43 Withdrawal. Requests for review and responses to requests for review will remain part of the administrative record and cannot be withdrawn. § 165.44 Additional information. CBP may request additional written information from the parties to the investigation at any time during the review process. The parties who provide the requested additional information must provide a public version to the other parties to the investigation via an email message or through any other method approved or designated by CBP. The submission of additional information requested by CBP must comply with requirements for release of information in § 165.4. CBP may apply an adverse inference as stated in § 165.6 if the additional information requested under this section is not provided. CBP will only accept written submissions of additional information in response to a request by CBP. No meetings or any other methods of unsolicited submission of additional information are permitted during the administrative review. [89 FR 19261, Mar. 18, 2024] § 165.45 Standard for administrative review. CBP will apply a de novo standard of review and will render a determination appropriate under law according to the specific facts and circumstances on the record. For that purpose, CBP will review the entire administrative record upon which the determination as to evasion was made, the timely and properly filed request(s) for review and responses, and any additional information that was received in response to a request by CBP pursuant to § 165.44. The administrative review will be completed within 60 business days of the commencement of the review. [89 FR 19261, Mar. 18, 2024] § 165.46 Final administrative determination. (a) Finality. (b) Effect of the administrative review. [81 FR 56482, Aug. 22, 2016, as amended at 89 FR 19262, Mar. 18, 2024] § 165.47 Potential penalties and other actions. CBP and other government agencies reserve the right to undertake additional investigations or enforcement actions in cases covered by these provisions. Nothing within this part prevents CBP from assessing penalties of any sort related to such cases or taking action under any other relevant laws.