WASHINGTON – U.S. Customs and Border Protection (CBP) announced a process that will allow authorized individuals to access business confidential information in Enforce and Protect Act (EAPA) administrative proceedings, increasing transparency in investigations.
"CBP is dedicated to maintaining the transparency of its EAPA investigations while protecting proprietary information,” said CBP Executive Assistant Commissioner AnnMarie R. Highsmith. “Administrative Protective Orders are the latest development in maintaining that balance."
The process includes an Administrative Protective Order (APO), which, once issued, will increase transparency for parties to the investigation in EAPA proceedings. EAPA investigations protect U.S. economic interests by deterring evasion of U.S. antidumping and countervailing duties and leveling the playing field for domestic industries injured by unfair trade practices.
The APO process will allow eligible parties to apply to receive access to business confidential information contained in the administrative record for cases in which they are subject to the investigation. This will enable eligible parties to more meaningful participation in investigations. CBP implemented the new APO process in response to Royal Brush Manufacturing Inc. v. United States, 75 F.4th 1250 (Fed. Cir. 2023), in which the court held that CBP has authority to implement an APO process in order to provide access to the parties to an EAPA investigation and the information that it relied on to reach a determination of evasion. Moreover, the APO process will provide more transparent proceedings for parties to the investigation.
Eligible applicants may apply for access under an APO in cases in which they represent an importer alleged to be engaged in evasion or the alleger who submitted the allegation of evasion. Eligible applicants are defined as 1) a U.S.-licensed attorney admitted to practice before the bar of a U.S. state or territory, who represents a party to the investigation, and is not employed as in-house counsel to a party to the investigation; or 2) a non-attorney staff member employed and/or retained by and working under the direction and supervision of a U.S.-licensed attorney who is authorized to receive business confidential information under the APO. Once an APO is issued, all documents and information on the administrative record for the case will be shared with the authorized individual.
CBP published an APO Handbook and a factsheet that include detailed information on the APO application process and additional instructions for applicants. Visit the APO Webpage or the EAPA Final Rule to learn more, or email questions on the APO process to CBP at [email protected].
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