Lars-Erik Hjelm Quoted in Media on CBP’s New Regulations on Anti-Dumping and Countervailing Duty Evasion

Lars-Erik Hjelm, an international trade partner at Akin Gump, was quoted in POLITICO’s “Morning Trade” column on Customs and Border Protection’s (CBP) new regulations regarding anti-dumping and countervailing duty evasion.

The article reports that members of Congress have been complaining that CBP has not been serious enough about investigating charges of anti-dumping and countervailing duty evasion. Despite a new CBP rule published this week on implementing the Enforce and Protect Act of 2015, Sen. Rob Portman of Ohio said it’s still not clear whether the agency will take a more aggressive tact.

Hjelm, however, said the rules should lead to “an uptick” of duty evasion cases. He attributes this to new requirements that give industry and unions more opportunity to provide evidence on the record and congressionally mandated deadlines for CBP to conclude its investigations.

In the Law360 story “Duty Evasion Rules Usher In New Customs Enforcement Era,” Hjelm said that importers and their business partners must prepare to face new scrutiny, in light of the new rules. “For any company,” he said, “that is selling to importers that are not declaring those goods as anti-dumping duty entries … they need to be concerned. This threatens to expose, in a public way, what they are doing. Those companies are going to be subject to more scrutiny if they are the recipients of an allegation.”

This article notes that, as part of the new rules, once an allegation of wrongdoing is filed, an investigation must begin within 15 days and CBP must issue a decision within 300 days. Hjelm pointed out, “A number of these deadlines are provided for by law, so Customs is hewing closely to the legal mandate. Congress tied the agency’s hands in large measure.”

Echoing his remarks about criticism of CBP by members of Congress, Hjelm, in the Bloomberg BNA story “Customs Could Crack Whip on Duty Evasion, Lawyers Say,” said Customs is under greater pressure to make sure they are collecting duties. They can assess steep penalties against importers who avoid payment, he said, because “importers are supposed to follow the rules today.”

Hjelm also noted that, while the domestic industry would have preferred an administrative protective order (APO) process, the statute does not provide for that. The Trade Secrets Act, he said, precludes customs officers from disclosing confidential information.

“The agency by and large has walked a fine line and come up with a reasonable and defensible process,” Hjelm added. An earlier version of the bill did provide for an APO process, but it was taken out in later versions. Hjelm said the Customs process was not analogous to Commerce’s regime for investigating dumping and subsidy allegations since it is not an adversarial proceeding.