Emily Fuller Opp Quoted by Bloomberg BNA on Customs Evasion Rule

Emily Fuller Opp, counsel in the international trade practice at Akin Gump, has been quoted in the Bloomberg BNA article “Ohio Senators Fault Customs Rule on Duty Evasion Probes,” regarding calls by Ohio’s two U.S. senators for improvements in Customs and Border Protection (CBP)’s evasion rule.

Senators Rob Portman and Sherrod Brown say in a letter that duty evasion has left American companies at a competitive disadvantage. This comes as the Trump administration, the article notes, looks into ways to improve antidumping (AD) and countervailing duty (CVD) collection as directed by an executive order. Meanwhile, President Trump’s nominee for CBP commissioner is expected to face questions on duty evasion and collection, among other things, at his confirmation hearing this week.

Fuller Opp said transparency of the AD/CVD duty evasion investigation process has been a concern since the original interim final rule was released, though there has been some improvement in the transparency that U.S. parties could previously expect.

Among other matters, Fuller Opp said the new regulations clarify that the information parties provide to CBP during an investigation will become a part of CBP’s administrative record and may become public. This applies to allegations, submission of factual information to CBP (e.g., in response to CBP requests), written arguments that the parties provide and summaries of oral discussions with the interested parties. These regulations go further, she said, than CBP typically goes since, for the most part, CBP’s administrative review of other violations does not become a part of a public record.

An administrative protective order process may provide even greater transparency to those involved parties, Fuller Opp added, but the new regulations still allow for more transparency than has been provided in the past, and CBP may not have the authority to establish an APO process for this procedure, she said. Without protection for confidential information, she said it is possible that many companies may be nervous about moving forward with a complaint to CBP.