e-Allegations 2016 IFR

Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Rules and Regulations
applicant who applied to the FAA for
approval of these features on the
airplane.
The substance of these special
conditions has been subjected to the
notice and comment period in several
prior instances and has been derived
without substantive change from those
previously issued. It is unlikely that
prior public comment would result in a
significant change from the substance
contained herein. Therefore, because a
delay would significantly affect the
certification of the airplane, which is
imminent, the FAA has determined that
prior public notice and comment are
unnecessary and impracticable, and
good cause exists for adopting these
special conditions upon publication in
the Federal Register. The FAA is
requesting comments to allow interested
persons to submit views that may not
have been submitted in response to the
prior opportunities for comment
described above.
List of Subjects in 14 CFR Part 25
Aircraft, Aviation safety, Reporting
and recordkeeping requirements.

Authority: 49 U.S.C. 106(g), 40113, 44701,
44702, 44704.

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The Special Conditions
Accordingly, pursuant to the
authority delegated to me by the
Administrator, the following special
conditions are issued as part of the type
certification basis for Beechcraft Model
400A airplanes modified by Garmin.
1. The applicant must ensure that the
airplane electronic systems are
protected from access by unauthorized
sources external to the airplane,
including those possibly caused by
maintenance activity.
2. The applicant must ensure that
electronic system-security threats are
identified and assessed, and that
effective electronic system-security
protection strategies are implemented to
protect the airplane from all adverse
impacts on safety, functionality, and
continued airworthiness.
3. The applicant must establish
appropriate procedures to allow the
operator to ensure that continued
airworthiness of the airplane is
maintained, including all post-typecertification modifications that may
have an impact on the approved
electronic system-security safeguards.

15:11 Aug 19, 2016

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[FR Doc. 2016–20000 Filed 8–19–16; 8:45 am]
BILLING CODE 4910–13–P

DEPARTMENT OF HOMELAND
SECURITY
Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Part 165
[USCBP–2016–0053; CBP Dec. 16–11]
RIN 1515–AE10

Investigation of Claims of Evasion of
Antidumping and Countervailing
Duties
U.S. Customs and Border
Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Interim regulations; solicitation
of comments.
AGENCY:

In accordance with section
421 of the Trade Facilitation and Trade
Enforcement Act of 2015, this rule
amends the U.S. Customs and Border
Protection regulations to set forth
procedures for CBP to investigate claims
of evasion of antidumping and
countervailing duty orders.
DATES: The interim rule is effective
August 22, 2016; comments must be
received by October 21, 2016.
ADDRESSES: You may submit comments,
identified by docket number, by one of
the following methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments
via docket number USCBP–2016–0053.
• Mail: Trade and Commercial
Regulations Branch, Regulations and
Rulings, Office of Trade, U.S. Customs
and Border Protection, 90 K Street NE.,
10th Floor, Washington, DC 20229–
1177.
Instructions: All submissions received
must include the agency name and
docket number for this rulemaking. All
comments received will be posted
without change to http://
www.regulations.gov, including any
personal information provided. For
detailed instructions on submitting
comments and additional information
on the rulemaking process, see the
‘‘Public Participation’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
SUMMARY:

The authority citation for these
special conditions is as follows:

VerDate Sep<11>2014

Issued in Renton, Washington, on August
11, 2016.
Paul Bernado,
Acting Manager, Transport Airplane
Directorate, Aircraft Certification Service.

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Docket: For access to the docket to
read background documents or
comments received, go to http://
www.regulations.gov. Submitted
comments may also be inspected during
regular business days between the hours
of 9 a.m. and 4:30 p.m. at the Trade and
Commercial Regulations Branch,
Regulations and Rulings, Office of
Trade, U.S. Customs and Border
Protection, 90 K Street NE., 10th Floor,
Washington, DC Arrangements to
inspect submitted comments should be
made in advance by calling Mr. Joseph
Clark at (202) 325–0118.
FOR FURTHER INFORMATION CONTACT:
Kevin M. McCann, Chief, Analytical
Communications Branch, Office of
Trade, U.S. Customs and Border
Protection, 202–863–6078.
SUPPLEMENTARY INFORMATION:
Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of the interim
rule. U.S. Customs and Border
Protection (CBP) also invites comments
that relate to the economic,
environmental, or federalism effects that
might result from this interim rule.
Comments that will provide the most
assistance to CBP in developing these
regulations will reference a specific
portion of the interim rule, explain the
reason for any recommended change,
and include data, information, or
authority that support such
recommended change. See ADDRESSES
above for information on how to submit
comments.
Background
On February 24, 2016, President
Obama signed into law 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). The EAPA
establishes a formal process for CBP to
investigate allegations of the evasion of
AD/CVD orders. Section 421 of the
EAPA requires that regulations be
prescribed as necessary and within 180
days of TFTEA’s enactment to
implement the provisions of the EAPA
that establish procedures for
investigating claims of evasion of AD/
CVD orders.
Antidumping and Countervailing Duty
Orders
The antidumping (AD) law provides
for increased duties on imported

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products that the United States
International Trade Commission (ITC)
has found to have materially injured or
threatened with material injury a
domestic industry and that the United
States Department of Commerce
(Commerce) has found to have been sold
in the U.S. market at prices below fair
market value. The countervailing duty
(CVD) law provides for increased duties
on imported products that the ITC has
found to have materially injured or
threatened with material injury a
domestic industry and that Commerce
has found to have benefitted from a
countervailable subsidy from a foreign
government or public entity. Statutory
authority for AD and CVD investigations
derives from Title VII of the Tariff Act
of 1930, as amended, 19 U.S.C. 1671
and 1673.
If both Commerce and the ITC issue
affirmative final determinations,
Commerce issues an AD and/or CVD
order that establishes cash deposit rates
for the additional duties on entries of
imported merchandise subject to the
order. Those entries will be liquidated
at the cash deposit rate, unless
interested parties request an
administrative review to establish a
revised and final dumping or
countervailing duty rate. U.S. Customs
and Border Protection is responsible for
the collection of cash deposits and final
duties on imports of subject
merchandise.
Evasion of Antidumping and
Countervailing Duty Orders
Evasion refers to entering
merchandise into the customs territory
of the United States for consumption by
an act or omission that is material and
false, and which results in antidumping
or countervailing duties being reduced
or not applied to or collected on such
merchandise.
Examples of evasion could include,
but are not limited to, the
misrepresentation of the merchandise’s
true country of origin (e.g., through
fraudulent country of origin markings
on the product itself or false sales), false
or incorrect shipping and entry
documentation, or misreporting of the
merchandise’s physical characteristics.
CBP is responsible for ensuring that the
appropriate duties are collected on
imports of merchandise. U.S.
Immigration and Customs Enforcement
(ICE) is responsible for conducting
criminal investigations of the evasion of
AD/CVD orders.
Under current customs laws, CBP can
take enforcement actions against the
evasion of AD/CVD orders, which
include the assessment of civil penalties
against importers who evade such

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orders. However, allegations as to
evasion submitted by private parties
prior to the implementation of the
EAPA, did not afford the parties an
opportunity to participate in the
investigation nor did CBP have an
obligation to notify parties that
submitted allegations of evasion as to
the outcome of CBP’s review.
Enforce and Protect Act of 2015
Section 421 of the EAPA amends the
Tariff Act of 1930 by creating a new
framework for CBP to investigate
allegations of evasion of AD/CVD
orders, under newly created section 517
(‘‘Procedures for Investigating Claims of
Evasion of Antidumping and
Countervailing Duty Orders’’).
Section 421 of the EAPA requires the
Commissioner of U.S. Customs and
Border Protection (the Commissioner) to
initiate an investigation within 15
business days of receipt of a properly
filed allegation from an interested party
or referral from another Federal agency
(hereinafter referred to as a ‘‘request for
an investigation’’ from or by another
Federal agency) that reasonably suggests
that merchandise covered by an AD/
CVD order has entered the customs
territory of the United States through
evasion.
Under the EAPA, when CBP receives
properly filed allegations from
interested parties that merchandise
covered by an AD/CVD order has
entered the United States through
evasion, or receives requests from
Federal agencies for an investigation,
the statute requires CBP to take certain
actions within specified timeframes.
The EAPA requires CBP to determine,
not later than 300 calendar days (or 360
calendar days in extraordinarily
complicated cases) after the date of
initiation of an EAPA investigation,
whether there is substantial evidence
that merchandise covered by an AD/
CVD order was entered into the customs
territory of the United States through
evasion.
The EAPA authorizes CBP to collect
such information as is necessary to
make the determination through such
methods as CBP considers appropriate.
One such method specifically
mentioned by the EAPA is the use of
questionnaires, which can be used to
request information from the interested
party making the allegation and the
government of the foreign country from
which the allegedly covered
merchandise was exported, as well as
the importer, foreign producer or
exporter of the allegedly covered
merchandise. The EAPA provides that
pursuant to sections 412(b) and 421(a),
CBP may make an adverse inference if

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the importer, foreign producer or
exporter of the merchandise under
investigation, or the interested party
making the allegation, did not act to the
best of its ability to provide the
information requested by CBP. The
EAPA further requires CBP, no later
than five business days after making a
determination, to communicate the
determination to the interested party
who made an allegation that initiated
the evasion investigation.
If CBP makes an affirmative
determination of evasion, CBP will: (1)
Suspend the liquidation of unliquidated
entries of the covered merchandise that
is subject to the determination; (2)
extend the period for liquidating the
unliquidated entries of covered
merchandise that entered before the
initiation of the investigation; (3) when
necessary, notify Commerce of the
determination and request that
Commerce determine the appropriate
duty rates for such covered
merchandise; (4) require importers of
covered merchandise to post cash
deposits and assess duties on the
covered merchandise; and/or (5) take
such additional enforcement measures
as CBP deems appropriate, including
(but not limited to) modifying CBP’s
procedures for identifying future
evasion, reliquidating entries as
provided by law, and referring the
matter to ICE for a possible civil or
criminal investigation.
In order to ensure that appropriate
duties can be collected on entries of
covered merchandise made during the
pendency of an EAPA investigation, the
EAPA provides for an interim measures
mechanism. Under this mechanism,
CBP will determine within 90 calendar
days of initiation of an EAPA
investigation whether there exists
reasonable suspicion that covered
merchandise subject to an allegation
was entered through evasion. If CBP
determines that such reasonable
suspicion exists, CBP will: (1) Suspend
the liquidation of unliquidated entries
of the covered merchandise entered
after the date of initiation; (2) extend the
period for liquidating the unliquidated
entries of covered merchandise that
entered before the initiation of the
investigation; and (3) take any
additional measures necessary to protect
the ability to collect appropriate duties,
which may include requiring a single
transaction bond or posting cash
deposits or reliquidating entries as
provided by law with respect to entries
of the covered merchandise. As
provided for in section 517(b)(6) of the
Tariff Act of 1930, as amended by the
EAPA (19 U.S.C. 1517(b)(6)), if CBP
determines during the course of an

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EAPA investigation that the
merchandise being investigated poses a
health or safety risk, CBP will notify the
appropriate Federal agencies of that risk
and will exercise its administrative
powers, as appropriate.
The EAPA provides a period of 30
business days after a determination for
the interested party who made the
allegation of evasion or the person
determined to have entered the covered
merchandise subject to the evasion
determination to request a de novo
administrative review. And not later
than 60 business days after such a
request for a review of an initial
determination is properly filed, CBP
must complete the review and issue a
final administrative determination.
Section 517(g) of the Tariff Act of
1930, as amended by the EAPA (19
U.S.C. 1517(g)), provides that judicial
review of the final administrative
determination and the original
determination as to evasion will be
available to the party alleging evasion or
the party found to have entered
merchandise subject to the investigation
through evasion. A request for such
judicial review must be made not later
than 30 business days after completion
of the final administrative
determination. The request for judicial
review must be made to the U.S. Court
of International Trade (CIT).
In accordance with section 421 of
TFTEA requiring that regulations be
prescribed as necessary to implement
these procedures, CBP is amending title
19 of the Code of Federal Regulations to
create new part 165 setting forth
procedures for investigating claims of
evasion of AD and CVD orders. In these
regulations, CBP has endeavored to
make the proceedings under the EAPA
as transparent as possible and to
provide for full participation and
engagement by all parties involved in an
EAPA proceeding.
New part 165 is drafted with a scope
section followed by four subparts:
General Provisions; Initiation of
Investigations; Investigation Procedures;
and Administrative Review of
Determinations.
Discussion of New Part 165

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Scope
Section 165.0 briefly describes the
nature of EAPA investigations and the
types of requirements that are set forth
in this part. Investigations under the
EAPA will be conducted by CBP’s Trade
Remedy Law Enforcement Directorate
(TRLED) which has been established
consistent with section 411 of the
EAPA. It should be noted that
investigations under the EAPA are not

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the exclusive means, or only statutory
authority, by which CBP can investigate
allegations by the public or requests by
other Federal agencies with respect to
the evasion of AD/CVD orders. For
example, the public currently has the
option to make more general allegations
of evasion through CBP’s ‘‘eAllegations’’ system, an official online
portal for the public to report violations
of the trade laws. This current
functionality will remain in eAllegations, but e-Allegations will also
have another option for filing
allegations of evasion under the EAPA.
Subpart A—General Provisions
Section 165.1 lists definitional terms
that are used throughout the new part.
It is noted that the definition of
‘‘interested party’’ includes not only the
importer of the covered merchandise
who is alleged to have engaged in
evasion, but also importers of the
covered merchandise who wish to bring
allegations against competing importers.
The term ‘‘interested party’’ does not
include other Federal agencies. CBP also
notes that the term ‘‘domestic like
product’’ is referenced in the definition
of ‘‘interested party.’’ CBP will rely on
the definition of this term, as it is
applied by the U.S. International Trade
Commission, pursuant to 19 U.S.C.
1677(10).
Section 165.2 specifies that entries
that may be the subject of an allegation
under § 165.11 or of a request from a
Federal agency made under § 165.14 are
those entries of allegedly covered
merchandise made within one year
prior to the receipt of such an allegation
or such a request from a Federal agency.
CBP is specifying the one-year period
for an EAPA investigation in order that
the information required for conducting
the investigation and rendering a timely
determination will be current and
readily available. This does not limit
CBP’s authority, however, to act under
any other provision of law with respect
to information obtained during an EAPA
investigation. For example, CBP has the
right to assess penalties pursuant to 19
U.S.C. 1592 in appropriate cases
involving the evasion of AD and CVD
orders.
Section 165.3 identifies the persons
that may make submissions on behalf of
interested parties and specifies when
power of attorney documentation is
required. Agents may act on behalf of an
interested party in an EAPA proceeding,
including an importer against whom an
allegation has been brought. Also, an
affiliate of an importer may file
documents on the importer’s behalf for
the EAPA proceedings, but nonetheless
must be authorized to act as an agent by

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56479

means of a power of attorney. A power
of attorney is required when an agent
who is not an attorney at law is used to
make filings under the EAPA.
Section 165.4 addresses how an
interested party that makes a
submission to CBP in an EAPA
proceeding can protect confidential
business information. Examples of the
kinds of information that may be
considered business confidential
include: Trade secrets concerning the
nature of a product or production
process; production costs and other
pricing information; and lists of
customers, distributors, and suppliers.
This section also specifies what
information must be provided to CBP as
public information in order to facilitate
the consolidation of allegations and
administration of the proceedings. This
section was included in order to protect
business confidential information while
at the same time ensuring transparency
so that an alleged evader will be notified
of the allegation and parties to the
investigation can participate in the
proceeding. Finally, as there is no
administrative protective order (APO)
process provided for in the EAPA,
parties involved in an EAPA proceeding
are advised not to submit information to
CBP that they obtained exclusively
under a protective order from another
agency, court, or proceeding unless the
scope of that protective order explicitly
covers the EAPA investigation or
proceeding under consideration.
Accordingly, parties are advised to
exercise caution when submitting
information to CBP in an EAPA
proceeding.
Section 165.5 sets forth the scope of
and general means by which CBP will
obtain information for EAPA
proceedings (which must be submitted
electronically). CBP requires that only
English language or English language
translations of written submissions will
be accepted. Oral discussions or
communications with CBP will not be
considered part of the record unless
memorialized in written submissions.
During CBP’s investigation, it is possible
that there will be other parties from
whom CBP will solicit information and
that CBP will put that information on
the record. Those parties (who are not
parties to the investigation as defined in
§ 165.1), however, do not have a right to
participate in the proceedings.
Additionally, CBP may, for good cause,
grant requests for extensions of
regulatory (but not statutory) deadlines
imposed under this part.
Section 165.6 provides that CBP may
draw adverse inferences both in an
EAPA investigation and in an
administrative review of an evasion

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determination when the party making
the allegation, the alleged evader, a
foreign producer or exporter fails to
cooperate and comply to the best of its
ability with a request for information
made by CBP. It also establishes that
adverse inferences may be based on the
allegation of evasion; other CBP
investigations, proceedings or other
actions regarding evasion; or any other
available information. CBP will not
apply an adverse inference against a
foreign government if the foreign
government does not respond to a
request for information.
Section 165.7 obligates interested
parties to report to CBP any knowledge
or reason to suspect that the covered
merchandise may pose a health or safety
risk to U.S. consumers. It also requires
CBP to report to the appropriate Federal
agencies any health or safety risk that
the covered merchandise may pose to
U.S. consumers.
Subpart B—Initiation of Investigations
Section 165.11 provides the criteria
for filing an allegation of evasion
pursuant to the EAPA and the specific
information that must be contained in
an allegation. Each allegation may only
concern one importer (because business
confidential information may be
involved in an EAPA proceeding),
although an interested party may file
multiple allegations.
Section 165.11 authorizes CBP to
provide technical assistance and
guidance to small businesses (and to
other parties as resources permit) that
consider filing an EAPA allegation. It
also specifies that technical assistance is
available prior to the submission of an
allegation to CBP in order to ensure that
the filing requirements are satisfied.
Any technical assistance and guidance
that are provided, however, will not
become part of the record, and the fact
that assistance or guidance was
provided does not guarantee that CBP
will proceed to initiate an EAPA
investigation. Moreover, such technical
assistance and guidance provided by
CBP does not include providing
research assistance to support an
allegation of evasion or to identify
potential parties that might be involved
in the evasion of AD or CVD orders.
Section 165.12 provides that the date
of receipt of a properly filed allegation
is the date that CBP determines that the
EAPA allegation contains all the
information and certifications required
in § 165.11 of this part and transmits
notice thereof together with a CBPassigned control number to the party
that filed the allegation. CBP will
promptly review each allegation as filed
for sufficiency. If an allegation is found

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to be insufficient, the party who filed
the allegation will be notified of the
insufficiencies and be given the
opportunity to remedy them. The CBPassigned control number should be used
to monitor the status of an allegation
throughout the pendency of the EAPA
proceeding. CBP has 15 business days
from the date of receipt to determine
whether to initiate an investigation
under the EAPA. A party filing an
allegation may withdraw the allegation
by submitting a request to withdraw the
allegation to the designated email
address specified by CBP. Decisions
regarding whether to initiate an
investigation under the EAPA will be
effectuated by CBP’s TRLED. Such
decisions are not subject to
administrative or judicial review. In the
event that an allegation is withdrawn,
CBP may continue to investigate (other
than under the EAPA) whether evasion
has occurred as originally alleged using
but not limited to any information
obtained (including from the party who
filed the allegation) prior to the date of
the request to withdraw the allegation.
Section 165.13 allows for the
consolidation of multiple allegations
against one or more importers and sets
forth criteria for that purpose. It also
indicates that the time period to make
a decision on whether to investigate is
triggered by the first properly filed
allegation received by CBP.
As discussed above, requests for an
investigation relating to potential
evasion of AD/CVD orders may be filed
by other Federal agencies with CBP.
Section 165.14 sets forth the procedures
for such requests for an investigation.
Federal agencies are not considered a
‘‘party to the investigation’’ as defined
in § 165.1. It should be noted, however,
that other Federal agencies may
continue to use methods other than
under the EAPA, as permitted under the
law, to inform CBP of possible instances
of evasion.
Section 165.15 specifies that CBP will
decide if an investigation is warranted
based on whether the allegation made
under § 165.11 or a request from a
Federal agency made under § 165.14
reasonably suggests that evasion has
occurred (i.e., the covered merchandise
at issue has been entered into the
customs territory of the United States
through evasion). The deadline to
decide whether to initiate an
investigation is 15 business days from
the date of receipt by CBP of a properly
filed allegation or request. If CBP
determines that it will initiate an
investigation, it will notify all known
parties to the investigation no later than
95 calendar days after the initiation of
the investigation. CBP will use this 95

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calendar-day period in order to
investigate the allegation. This
timeframe for notification takes into
account the dual considerations of
transparency and the need to provide
adequate time for CBP’s investigatory
process. Alternatively, if CBP
determines that it will not initiate an
investigation, it will notify the
interested party who filed the allegation
within five business days of that
determination.
Section 165.16 specifies that CBP
may, at its discretion, refer the issue to
the Department of Commerce if there is
uncertainty as to whether the goods that
are the subject of the allegation are
within the scope of the applicable AD/
CVD order(s). It also directs that the
parties to the investigation must be
advised of the date of this referral and
the time taken by Commerce to decide
this issue does not count against any of
the deadlines for the EAPA
investigation (i.e., the referral to
Commerce tolls these deadlines).
Subpart C—Investigation Procedures
As described in § 165.21, CBP will
maintain an electronic administrative
record for purposes of making a
determination as to evasion and
conducting an administrative review of
the determination as described in
subpart D of this part.
Section 165.22 provides that the
determination as to whether evasion
occurred will be made within 300
calendar days from the date of initiation
of the investigation unless, for an
extraordinarily complicated case, CBP,
at its discretion, extends the deadline by
an additional 60 calendar days. This
section also sets forth the statutory
criteria for extraordinarily complicated
cases. Notice of such an extension will
be provided to all parties to the
investigation. CBP will strive to ensure
compliance with these time periods
during the course of an investigation. If
CBP does not make a determination by
the deadline, however, this will not
result in a deemed decision with respect
to whether or not evasion occurred.
Section 165.23 sets forth the types of
and requirements for the submission of
factual information. This information
will become part of the administrative
record. CBP may obtain factual
information in a variety of ways. Parties
to the investigation may voluntarily
submit information to CBP or may
provide information in response to
requests by CBP (including in response
to questionnaires). Interested parties
who are not parties to the investigation
may provide information only in
response to requests by CBP.

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Section 165.24 provides that no later
than 90 calendar days after the initiation
of an investigation, CBP will suspend
the liquidation of entries made on or
after the date of initiation of the
investigation and extend the liquidation
for entries made prior to the date of
initiation of the investigation if there is
reasonable suspicion that evasion has
taken place. CBP will give notice to the
parties to the investigation of any
interim measures it takes within five
business days after it takes such
measures.
Section 165.25 specifies that, at its
discretion, CBP has the authority to
conduct verifications of information
collected under § 165.23 of this part, in
the United States or in foreign countries
as is necessary to make its
determination. Verifications in foreign
countries will be conducted as
appropriate and consistent with any
agreements or memoranda relating to
such activities with the foreign
government in whose country the
proposed verification is scheduled to
occur.
Section 165.26 deals with the ability
of parties to the investigation to submit
written arguments to CBP in order that
they may actively participate in an
EAPA proceeding. It provides that the
parties to the investigation may submit
written arguments to CBP and must
serve all other parties to the
investigation by an email message or
through any other method approved or
designated by CBP with a public version
of the written arguments. Parties to the
investigation receiving a written
argument may file a response within 15
calendar days of the filing of the written
argument. The party filing a written
response must provide it to CBP and
serve a public version on all other
parties to the investigation via an email
message or through any other method
approved or designated by CBP.
Section 165.27 provides that upon
conclusion of the investigation, CBP
will determine whether there is
substantial evidence based upon the
record that evasion of an AD/CVD order
has occurred. Within five business days
of CBP’s initial determination as to
evasion, CBP will issue notice of its
determination to the interested party or
parties who made the allegation and to
the importer alleged to have evaded an
AD/CVD order. This section also
addresses action by CBP in the event of
a negative determination.
Section 165.28 discusses what actions
CBP may take if there is an affirmative
determination as to evasion.

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Subpart D—Administrative Review of
Determinations
Subpart D specifies the requirements
for requesting an administrative review
of an initial determination. Under
§ 165.41, any party to the investigation
has up to 30 business days after the date
the initial determination is issued to
request an administrative review of that
determination by Regulations and
Rulings, Office of Trade. Parties seeking
review of the initial determination must
serve all other parties to the
investigation with a public version of
the request via an email message or
through any other method approved or
designated by CBP.
Under § 165.42, parties to the
investigation are given an opportunity
to submit responses to the request for
administrative review.
Section 165.43 provides that any
requests for review and responses to
requests for review will remain part of
the administrative record and cannot be
withdrawn.
Section 165.44 provides that
Regulations and Rulings may request
additional written information from the
parties to the investigation at any time
during the administrative review
process.
Section 165.45 describes that under
an administrative review the initial
determination will be reviewed de novo.
The final administrative determination
will be issued within 60 business days
from the date of request for review. The
review will be based upon the
administrative record developed during
the initial investigation period and any
requests for administrative review and
responses to those requests.
Section 165.46 states that Regulations
and Rulings will issue a final
administrative determination to all
parties to the investigation. The final
administrative determination is subject
to judicial review in accordance with
section 421 of the EAPA.
Finally, § 165.47 notifies the public
that nothing within this part precludes
CBP from taking any action authorized
under the law, such as assessing
penalties under 19 U.S.C. 1592.
Inapplicability of Notice and Delayed
Effective Date Requirements
Under the Administrative Procedure
Act (APA) (5 U.S.C. 553), agencies
generally are required to publish a
notice of proposed rulemaking in the
Federal Register that solicits public
comments on the proposed regulatory
amendments and consider public
comments in deciding on the content of
the final amendments. Section 553(b)(A)
of the APA, however, provides that the

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standard prior notice and comment
procedures do not apply to an agency
rulemaking to the extent that the rule is
a rule of procedure.
The substantive provisions of the
EAPA have been established by
Congress, and these regulations set forth
the procedures for implementing the
statute and do not include substantive
requirements. Although CBP could issue
this as a final rule without prior notice
and comment, CBP is soliciting
comments in this interim rule and will
consider all comments received before
issuing a final rule.
Statutory and Regulatory Requirements
Executive Orders 13563 and 12866
Executive Orders 13563 and 12866
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule is
not a ‘‘significant regulatory action,’’ as
defined in section 3(f) of Executive
Order 12866. Accordingly, OMB has not
reviewed this regulation.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.), as amended by the
Small Business Regulatory Enforcement
and Fairness Act of 1996, requires an
agency to prepare and make available to
the public a regulatory flexibility
analysis that describes the effect of a
proposed rule on small entities (i.e.,
small businesses, small organizations,
and small governmental jurisdictions)
when the agency is required to publish
a general notice of proposed rulemaking
for a rule. Since a general notice of
proposed rulemaking is not necessary
for this rule, CBP is not required to
prepare a regulatory flexibility analysis
for this rule.
Paperwork Reduction Act
An agency may not conduct, and a
person is not required to respond to, a
collection of information unless the
collection of information displays a
valid control number assigned by OMB.
OMB approved collection 1651–0131
will be amended to reflect the
additional respondents for e-Allegations
and the three new questionnaires for
EAPA requirements as described above
in accordance with 19 CFR 165.5(a) and
165.23(a). We estimate that this rule will

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result in an additional 419 responses
annually and an additional 9,386
burden hours. The revision to the
information collection includes 44
additional e-Allegations which is in
addition to the previously approved
1,600 total e-Allegation submissions
annually (for a total of 1,644 eAllegation submissions). It also
establishes new questionnaires for
allegers of AD/CVD violations, alleged
evaders of AD/CVD orders, and other
interested parties, such as the foreign
producer or exporter or a foreign
government. This revision to this
information collection includes 150 new
alleger questionnaires annually, 150
new alleged evader questionnaires
annually, and 75 new other interested
party questionnaires annually. The
other interested party could be a foreign
producer or exporter or foreign
government, or any other interested
party. Collection 1651–0131 will be
revised to reflect the increased burden
hours for each additional e-Allegation
submission and EAPA questionnaire
added to e-Allegations as follows:
E-Allegations
Estimated number of annual
respondents: 44.
Estimated number of annual
responses: 44.
Estimated time burden per response:
15 minutes (.25 hours).
Estimated total annual time burden:
11 hours.
Alleger Questionnaire
Estimated number of annual
respondents: 150.
Estimated number of annual
responses: 150.
Estimated time burden per response:
25 hours.
Estimated total annual time burden:
3,750 hours.

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Alleged Evader Questionnaire
Estimated number of annual
respondents: 150.
Estimated number of annual
responses: 150.
Estimated time burden per response:
25 hours.
Estimated total annual time burden:
3,750 hours.
Other Interested Party Questionnaire
Estimated number of annual
respondents: 75.
Estimated number of annual
responses: 75.
Estimated time burden per response:
25 hours.
Estimated total annual time burden:
1,875 hours.
Comments concerning the collections
of information and the accuracy of the

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estimated annual burden, and
suggestions for reducing that burden,
should be directed to the Office of
Management and Budget, Attention:
Desk Officer for the Department of the
Treasury, Office of Information and
Regulatory Affairs, Washington, DC
20503. A copy should also be sent to the
Trade and Commercial Regulations
Branch, Regulations and Rulings, Office
of Trade, U.S. Customs and Border
Protection, 90 K Street NE., 10th Floor,
Washington, DC 20229–1177.

165.28 Assessment as to duties owed; other
actions.

Signing Authority

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.

This document is being issued in
accordance with § 0.1(a)(1) of the CBP
regulations (19 CFR 0.1(a)(1)) pertaining
to the authority of the Secretary of the
Treasury (or his or her delegate) to
approve regulations related to certain
customs revenue functions.
List of Subjects in 19 CFR Part 165
Administrative practice and
procedure, Business and industry,
Customs duties and inspection.
Amendments to the Regulations
For the reasons set forth above,
chapter I of title 19, Code of Federal
Regulations (19 CFR chapter I), is
amended by adding part 165 to read as
follows:

■

PART 165—INVESTIGATION OF
CLAIMS OF EVASION OF
ANTIDUMPING AND
COUNTERVAILING DUTIES
Sec.
165.0

Scope.

Subpart A—General Provisions
165.1 Definitions.
165.2 Entries subject to this part.
165.3 Power of attorney.
165.4 Release of information provided by
interested parties.
165.5 Obtaining and submitting
information.
165.6 Adverse inferences.
165.7 Protection of public health and safety.
Subpart B—Initiation of Investigations
165.11 Allegations by interested parties.
165.12 Receipt of allegations.
165.13 Consolidation of allegations.
165.14 Other Federal agency requests for
investigations.
165.15 Initiation of investigations.
165.16 Referrals to Department of
Commerce.
Subpart C—Investigation Procedures
165.21 Administrative record.
165.22 Time for investigation.
165.23 Submission of factual information.
165.24 Interim measures.
165.25 Verifications of information.
165.26 Written argument.
165.27 Determination as to evasion.

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Subpart D—Administrative Review of
Determinations
165.41 Filing a request for review of the
initial determination.
165.42 Responses to requests for
administrative review.
165.43 Withdrawal.
165.44 Additional information.
165.45 Standard for administrative review.
165.46 Final administrative determination.
165.47 Potential penalties and other
actions.

§ 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. The term ‘‘allegation’’
refers to a filing with CBP under
§ 165.11 by an interested party that
alleges an act of evasion by an importer
of AD/CVD orders.

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AD. The term ‘‘AD’’ refers to
antidumping duty, consistent with
section 736, Tariff Act of 1930, as
amended (19 U.S.C. 1673e).
AD/CVD. The term ‘‘AD/CVD’’ refers
to antidumping/countervailing duty, as
these terms are defined in this section.
Covered merchandise. The term
‘‘covered merchandise’’ means
merchandise that is subject to a CVD
order issued under section 706, Tariff
Act of 1930, as amended (19 U.S.C.
1671e), and/or an AD order issued
under section 736, Tariff Act of 1930, as
amended (19 U.S.C. 1673e).
CVD. The term ‘‘CVD’’ refers to
countervailing duty, consistent with
section 706, Tariff Act of 1930, as
amended (19 U.S.C. 1671e).
Enter or entry. The terms ‘‘enter’’ and
‘‘entry’’ refer to the entry for
consumption, or withdrawal from
warehouse for consumption, of
merchandise in the customs territory of
the United States, see § 101.1 of this
chapter, or to the filing with CBP of the
necessary documentation to withdraw
merchandise from a duty-deferral
program in the United States for
exportation to Canada or Mexico or for
entry into a duty-deferral program in
Canada or Mexico, see §§ 141.0a(f) and
181.53 of this chapter.
Evade or evasion. The terms ‘‘evade’’
and ‘‘evasion’’ refer to the entry of
covered merchandise into the customs
territory of the United States for
consumption by means of any document
or electronically transmitted data or
information, written or oral statement,
or act that is material and false, or any
omission that is material and that
results in any cash deposit or other
security or any amount of applicable
antidumping or countervailing duties
being reduced or not being applied with
respect to the covered merchandise.
Interested party. The term ‘‘interested
party’’ in this part refers only to the
following:
(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;

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(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. The term
‘‘investigation’’ refers to the CBP
administrative process described in
subpart C of this part, and is a formal
investigation within the meaning of
section 592(c)(4), Tariff Act of 1930, as
amended (19 U.S.C. 1592(c)(4)).
Parties to the investigation. The
phrase ‘‘parties to the investigation’’
means the interested party (or interested
parties, in the case of consolidation
pursuant to § 165.13) who filed the
allegation of evasion and the importer
(or importers, in the case of
consolidation pursuant to § 165.13) who
allegedly engaged in evasion. In the case
of investigations initiated based upon a
request from a Federal agency, parties to
the investigation only refers to the
importer or importers who allegedly
engaged in evasion, and not the Federal
agency.
Regulations and Rulings. The term
‘‘Regulations and Rulings’’ means the
Executive
Director, Regulations and Rulings,
Office of Trade, or his or her designee.
TRLED. The term ‘‘TRLED’’ refers to
the Trade Remedy Law Enforcement
Directorate, Office of Trade, that
conducts the investigation of alleged
evasion under this part, and that was
established as required by section 411 of
the EAPA.
§ 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. Any submission
made under this part other than by a

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principal or its employees may be filed
by a person acting as agent or attorney
in fact for the principal; a power of
attorney must specifically authorize
such person to make, sign, and file the
submission or grant unlimited authority
to such person.
(b) Exception. No power of attorney is
required for an attorney at law to act as
agent or attorney for the principal. The
signing of a submission as agent or
attorney for the principal by the
attorney at law will be considered a
declaration by the attorney that the
attorney is currently an active member
in good standing of the highest court of
a state, possession, territory,
commonwealth, or the District of
Columbia, and has been authorized to
sign and file the submission for the
principal.
(c) Execution—(1) Corporation. A
corporate power of attorney to file the
submissions described in paragraph (a)
of this section must be signed by a duly
authorized officer or employee of the
corporation.
(2) Partnership. A partnership power
of attorney to file the submissions
described in paragraph (a) of this
section must be signed by at least one
member in the name of the partnership
or by at least one duly authorized
employee of the partnership, provided
the power recites the name(s) of all of
the members.
(3) Other persons. A power of attorney
filed by a person other than a
corporation or partnership must be
signed by that person or an employee of
that person who has the legal authority
to act on that person’s behalf when
filing the submissions described in
paragraph (a) of this section.
(d) Revocation. Any power of attorney
will be subject to revocation at any time
by written notice given to and received
by CBP, Office of Trade.
(e) Proof. CBP will require proof of
execution of a power of attorney, where
applicable, the first time that an agent
makes a submission on behalf of any
interested party during an investigation
or administrative review of a
determination as to evasion. CBP may
require proof of authority to execute a
power of attorney pursuant to paragraph
(c) of this section, at any point during
the proceedings described in this part.
§ 165.4 Release of information provided by
interested parties.

(a) Claim for business confidential
treatment. Any interested party that
makes a submission to CBP in
connection with an investigation under
this part, including for its initiation and
administrative review, may request that
CBP treat any part of the submission as

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business confidential information
except for the information specified in
paragraph (c) of this section. Business
confidential treatment will be granted if
the requirements of this section are
satisfied and the information for which
protection is sought consists of trade
secrets and commercial or financial
information obtained from any person,
which is privileged or confidential in
accordance with 5 U.S.C. 552(b)(4).
(1) Identification of business
confidential information. An interested
party submitting information must
identify the information for which
business confidential treatment is
claimed by enclosing the claimed
confidential information within single
brackets. The first page of any
submission containing business
confidential information must clearly
state that the submission contains
business confidential information. The
submitting interested party must also
provide with the claimed business
confidential information an explanation
of why each item of bracketed
information is entitled to business
confidential treatment.
(2) Public version. An interested party
filing a submission containing claimed
business confidential information must
also file a public version of the
submission. The public version must be
filed on the same date as the business
confidential version and contain a
summary of the bracketed information
in sufficient detail to permit a
reasonable understanding of the
substance of the information. If the
submitting interested party claims that
summarization is not possible, the claim
must be accompanied by a full
explanation of the reasons supporting
that claim. The public version must be
clearly marked as a public version on
the first page.
(b) Nonconforming submissions. CBP
will reject a submission that includes a
request for business confidential
treatment but does not meet the
requirements of paragraph (a) of this
section.
(1) Notice of rejection. If CBP
determines that the claim of
confidentiality is nonconforming, it will
treat the relevant portion of the
submission as business confidential
information until the appropriate
corrective action is taken or the
submission is rejected.
(2) Corrective action. The submitting
interested party may take any of the
following actions within two business
days after receiving CBP’s notice of
rejection:
(i) Correct the problems and resubmit
the information by an email message or

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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. If the
submitting interested party does not
take any of the actions in paragraph
(b)(2) of this section, CBP will not
consider the rejected submission and, if
applicable, adverse inferences may be
drawn pursuant to § 165.6.
(c) Information that will not be
protected as confidential. The following
information provided by a party to the
investigation in an allegation of evasion
will not be protected as business
confidential information and will be
treated as public pursuant to the
certification of informed consent
referenced in § 165.11(c):
(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. In accordance with
paragraph (a)(2) of this section, when
providing a public version of their
submissions, interested parties must
certify that the information they are
providing is either their own
information (i.e., information from their
own business records and not business
confidential information of another
entity) or information that was publicly
obtained or in the public domain.
(e) Information placed on the record
by CBP. Any information that CBP
places on the administrative record,
when obtained other than from an
interested party subject to the
requirements of this section, will
include a public summary of the
business confidential information as
described in paragraph (a)(2) of this
section, when applicable.
§ 165.5 Obtaining and submitting
information.

(a) Obtaining of information by CBP.
In obtaining information necessary to
carry out its functions and duties under
this part, CBP may employ any means
authorized by law. In general, CBP will
obtain information from its own files,

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from other agencies of the United States
Government, through questionnaires
and correspondence, and through field
work by its officials.
(b) Submissions to CBP. The following
requirements pertain to all parties who
knowingly make submissions covered in
this part:
(1) Form. All submissions to CBP
must be in writing in the English
language or accompanied by an
adequate English language translation as
they will be part of the record for
proceedings and determinations covered
in this part. Oral discussions or
communications with CBP will not be
considered part of the record, unless
they are memorialized in a written
document that is placed on the record.
All submissions must be made
electronically to the designated email
address specified by CBP for purposes
of the investigation or through any other
method approved or designated by CBP.
(2) Certifications. Every written
submission made to CBP by an
interested party under this part must be
accompanied by the following
certifications from the person making
the submission:
(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 19 CFR 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 19
CFR 165.7(a).’’
(3) False statement. Any interested
party that provides a material false
statement or makes a material omission
or otherwise attempts to conceal
material facts at any point in the
proceedings may be subject to adverse
inferences (see § 165.6) and prosecution
pursuant to 18 U.S.C. 1001.
(c) Compliance with CBP time limits—
(1) Requests for extensions. CBP may,
for good cause, extend any regulatory
time limit if a party requests an
extension in a separate, stand-alone
submission and states the reasons for
the request. Such requests must be
submitted no less than three business
days before the time limit expires unless
there are extraordinary circumstances.
An extraordinary circumstance is an
unexpected event that could not have

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been prevented even if reasonable
measures had been taken. It is within
CBP’s reasonable discretion to
determine what constitutes
extraordinary circumstances, what
constitutes good cause, and to grant or
deny a request for an extension.
(2) Rejection of untimely submissions.
If a submission is untimely filed, then
CBP will not consider or retain it in the
administrative record and adverse
inferences may be applied, if applicable.
§ 165.6

Adverse inferences.

(a) In general. If the party to the
investigation that filed an allegation, the
importer, or the foreign producer or
exporter of the covered merchandise
fails to cooperate and comply to the best
of its ability with a request for
information made by CBP, CBP may
apply an inference adverse to the
interests of that party in selecting from
among the facts otherwise available to
make the determination as to evasion
pursuant to § 165.27 and subpart D of
this part.
(b) Other adverse inferences. CBP may
also apply an inference adverse to the
interests of a party based on a prior
determination in another CBP
investigation, proceeding, or action that
involves evasion with respect to AD/
CVD orders, or any other available
information.
(c) Application. An adverse inference
described in this section may be used
with respect to the importer of the
covered merchandise, or the foreign
producer or exporter of the covered
merchandise without regard to whether
another party involved in the same
transaction or transactions under
examination has provided the
information sought by CBP, such as
import or export documentation.

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§ 165.7
safety.

Protection of public health and

(a) Notification to CBP. Any interested
party, including an importer, must
promptly notify CBP if it has knowledge
or reason to suspect that the covered
merchandise may pose a health or safety
risk to U.S. consumers at any point
during the proceedings described in this
part.
(b) Transmission by CBP. During the
course of an investigation or
administrative review of a
determination as to evasion under this
part, CBP will consider whether the
covered merchandise may pose a health
or safety risk to U.S. consumers and will
take into account any notification
received under paragraph (a) of this
section. CBP will promptly transmit
information to the appropriate Federal
agencies for purposes of mitigating the

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risk and will exercise its administrative
powers, as appropriate.
Subpart B—Initiation of Investigations
§ 165.11

Allegations by interested parties.

(a) Filing of allegation. Any interested
party, as defined in § 165.1, may file an
allegation that an importer of covered
merchandise has evaded AD/CVD
orders. An allegation must be filed
electronically through the appropriate
portal on CBP’s online e-Allegations
system or through any other method
approved or designated by CBP. Each
allegation must be limited to one
importer, but an interested party may
file multiple allegations. An allegation
must satisfy the requirements in
paragraphs (b) through (d) of this
section.
(b) Contents. An allegation of evasion
must include, but is not limited to, the
following information:
(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. An allegation must
also be accompanied by the
certifications required under § 165.5(b)
and the following statement of informed
consent from the person making the
submission: ‘‘I certify my understanding
and consent that the information
provided for in § 165.11(b)(1) through
(5) may be released for public
consumption.’’
(d) Signature. The person signing the
allegation on behalf of the interested
party must include his or her name,
position in the company or other
affiliation, and provide contact
information. Electronic submission of
this information will be considered
‘‘signed’’ for purpose of filing the
allegation.
(e) Technical assistance and
guidance—(1) Availability. CBP will
provide technical assistance and
guidance for the preparation of an
allegation of evasion and its submission
to CBP, as described in this section.
(i) Small businesses. Small businesses
are entitled to technical assistance upon

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request. In general, small businesses are
eligible to make such requests if they
have neither adequate internal resources
nor financial ability to obtain qualified
outside assistance in preparing and
submitting for CBP’s consideration
allegations of evasion. Small businesses
must satisfy the applicable standards set
forth in 15 U.S.C. 632 and implemented
in 13 CFR part 121.
(ii) Other parties. Other parties may
request technical assistance, which CBP
may provide if resources are reasonably
available.
(2) Requests. Requests for technical
assistance may be made at any time via
the email address designated on CBP’s
online e-Allegations system or through
any other method approved or
designated by CBP.
(3) Limitations. The act of providing
technical assistance is not part of the
record for the investigation, nor does it
compel a decision by CBP to initiate an
investigation pursuant to § 165.15.
§ 165.12

Receipt of allegations.

(a) Date of receipt. The ‘‘date of
receipt’’ of a properly filed allegation is
the date on which CBP provides an
acknowledgment of receipt of an
allegation containing all the information
and certifications required in § 165.11,
together with a CBP-assigned control
number, to the party that filed the
allegation. CBP has 15 business days
from the date of receipt to determine
whether to initiate an investigation
under the EAPA.
(b) Withdrawal. An allegation may be
withdrawn by the party that filed it if
that party submits a request to withdraw
the allegation to the designated email
address specified by CBP.
§ 165.13

Consolidation of allegations.

(a) In general. Multiple allegations
against one or more importers may be
consolidated into a single investigation
at CBP’s discretion. Consolidations may
be made at any point prior to the
issuance of a determination as to
evasion with respect to a particular
importer. If multiple allegations are
received and consolidated prior to the
initiation of an investigation, then the
date of receipt of the first properly filed
allegation will start the time period for
the deadline to initiate the investigation
described in § 165.15 with respect to
that allegation.
(b) Criteria. CBP may consolidate
multiple allegations if warranted based
on the consideration of certain factors.
The factors that CBP may consider
include, but are not limited to, whether
the multiple allegations involve:
(1) Relationships between the
importers;

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(2) Similarity of covered merchandise;
(3) Similarity of AD/CVD orders; and
(4) Overlap in time periods for entries
of covered merchandise.
(c) Notice. Notice of consolidation
will be promptly transmitted to all
parties to the investigation if
consolidation occurs at a point in the
investigation after which they have
already been notified of the ongoing
investigation. Otherwise, parties will be
notified no later than 95 calendar days
after the date of initiation of the
investigation.
(d) Service requirements for other
parties to the investigation. Upon
notification of consolidation, parties to
the consolidated investigation must
serve via an email message or through
any other method approved or
designated by CBP upon the newly
added parties to the investigation the
public versions of any documents that
were previously served upon parties to
the unconsolidated investigation.
Service must take place within five
business days of the notice of
consolidation.

Lhorne on DSK30JT082PROD with RULES

§ 165.14 Other Federal agency requests
for investigations.

(a) Requests for investigations. Any
other Federal agency, including the
Department of Commerce or the United
States International Trade Commission,
may request an investigation under this
part. CBP will initiate an investigation
if the Federal agency has provided
information that reasonably suggests
that an importer has entered covered
merchandise into the customs territory
of the United States through evasion,
unless the agency submits a request to
withdraw to the designated email
address specified by CBP.
(b) Contents of requests. The
following information must be included
in the request for an investigation:
(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. Requests for an
investigation must be filed
electronically via CBP’s online eAllegations system or through any other
method approved or designated by CBP.

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The date of receipt is the date that CBP
transmits notice of the assigned control
number to the Federal agency that filed
the request.
(d) Notice of release of information—
(1) Public information. CBP will treat
the information required by paragraphs
(b)(1) through (3) of this section as
public information.
(2) Business confidential treatment.
CBP will create a public summary of the
information required by paragraphs
(b)(4) and (6) of this section.
(e) Access to investigation. The
Federal agency is not a party to the
investigation. Therefore, it will neither
receive official notice of developments
after CBP’s receipt of the request for an
investigation nor will it receive service
of any documents filed by interested
parties. Only the parties to the
investigation will be entitled to notice
and service, as well as the related rights
to administrative review and judicial
review.
§ 165.15

Initiation of investigations.

(a) Time for determination. CBP will
make a determination as to whether to
initiate an investigation on or before the
15th business day after the date on
which a properly filed allegation is
received under § 165.12(a) or a request
for an investigation is received from a
Federal agency under § 165.14.
(b) Criteria for initiation. CBP will
initiate an investigation under subpart C
of this part if the following criteria are
satisfied:
(1) Nature of merchandise. The
covered merchandise described in the
allegation or Federal agency request for
an investigation is properly within the
scope of an AD/CVD order. If CBP lacks
sufficient information to make such
determination as to the scope of the
order, then it will refer the matter to the
Department of Commerce pursuant to
§ 165.16.
(2) Likelihood of evasion. The
information provided in the allegation
or Federal agency request for an
investigation reasonably suggests that
the covered merchandise has been
entered for consumption into the
customs territory of the United States
through evasion as it is defined in
§ 165.1.
(c) Exceptions. Even if the criteria in
paragraph (b) of this section are
satisfied, CBP will not initiate an
investigation under the following
circumstances:
(1) Clerical error. A clerical error, as
defined in 19 U.S.C. 1517(a)(5)(B), is not
evasion, although CBP will take
appropriate actions to ensure that AD/
CVD duties are assessed and collected.

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(2) Withdrawal. An allegation or a
request for an investigation from
another Federal agency may be
withdrawn pursuant to the requirements
of § 165.12(b) or § 165.14(a), as
applicable.
(d) Notification of the investigation. If
CBP determines that it will not initiate
an investigation, it will notify the
interested party who filed the allegation
within five business days of that
determination. Otherwise, the parties to
the investigation will be notified
consistent with the following time
limits:
(1) In general. CBP will issue
notification of its decision to initiate an
investigation to all parties to the
investigation no later than 95 calendar
days after the decision has been made,
and the actual date of initiation will be
specified therein. However, notification
to all parties to the investigation will
occur no later than five business days
after interim measures are taken
pursuant to § 165.24.
(2) Consolidated allegations. If
multiple allegations are consolidated,
any interested party who filed an
allegation after initiation of an
investigation will be notified by CBP of
the date of the decision to initiate an
investigation when that party receives
notice of consolidation under
§ 165.13(c).
(e) Record of the investigation. If an
investigation is initiated pursuant to
subpart B of this part, then the
information considered by CBP prior to
initiation will be part of the
administrative record pursuant to
§ 165.21.
§ 165.16 Referrals to Department of
Commerce.

(a) When required. A referral is
required if at any point after receipt of
an allegation, CBP cannot determine
whether the merchandise described in
an allegation is properly within the
scope of an antidumping or
countervailing duty order.
(b) Referral. The referral may contain
any necessary information available to
CBP regarding whether the merchandise
described in an allegation is subject to
the relevant AD/CVD orders.
(c) Notice of referral. TRLED will
promptly notify the parties to the
investigation of the date of the referral.
(d) Effect on investigation. The time
period required for any referral and
determination by the Department of
Commerce will not be counted toward
the deadlines for CBP to decide on
whether to initiate an investigation
under § 165.15 or the deadline to issue
a determination as to evasion under
§ 165.27.

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(e) Notice of decision. CBP will place
the determination by the Department of
Commerce on the administrative record
of CBP’s proceeding and will
electronically notify the parties to the
investigation.
Subpart C—Investigation Procedures
§ 165.21

Administrative record.

(a) Administrative record. CBP will
maintain a record for purposes of
making a determination as to evasion
under § 165.27 and conducting an
administrative review under § 165.46.
The administrative record will contain
all of the following, if applicable, but is
not limited to:
(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. CBP
will maintain the administrative record
of each investigation or review
conducted by CBP pursuant to this part.
All information properly filed with CBP
pursuant to §§ 165.4 and 165.5 will be
placed on the administrative record.
CBP will not consider in its
determinations or include on the
administrative record any information
that is not properly filed with CBP.

Lhorne on DSK30JT082PROD with RULES

§ 165.22

Time for investigations.

(a) Time for determination. Unless
CBP has extended the deadline in
accordance with paragraph (c) of this
section or due to a referral to the
Department of Commerce pursuant to
§ 165.16, CBP will make a determination
under § 165.27 not later than 300
calendar days after the date on which
CBP initiates an investigation under
§ 165.15 with respect to whether
covered merchandise was entered
through evasion.
(b) Time for determination with
consolidated allegations. If CBP
consolidates multiple allegations under
§ 165.13 into a single investigation
under § 165.15, the date on which CBP
receives the first of such allegations will
be used for the purposes of the
requirement under paragraph (a) of this
section with respect to the timing of the
initiation of the investigation.

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(c) Extension of time for
determination. CBP may extend the time
to make a determination under
paragraph (a) of this section by not more
than 60 calendar days if CBP determines
that—
(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) Notification of extension of time
for determination. CBP will notify all
parties to the investigation of an
extension not later than 300 calendar
days after the date on which CBP
initiates an investigation under § 165.15.
§ 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. In
making a determination under § 165.27,
CBP may require additional information
as is necessary, from, among others:
(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. Any party to the
investigation may submit additional
information in order to support the
allegation of evasion or to negate or
clarify the allegation of evasion.
(c) Time limits and service
requirements—(1) Responses to CBP
requests for factual information. Factual
information requested by CBP pursuant
to paragraph (a) of this section must be
submitted to CBP within the timeframe
set forth by CBP in the request. The
public version must also be served via
an email message or through any other
method approved or designated by CBP
on the parties to the investigation. If
CBP places new factual information on
the administrative record on or after the
200th calendar day after the initiation of
the investigation (or if such information
is placed on the record at CBP’s

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56487

request), the parties to the investigation
will have ten calendar days to provide
rebuttal information to the new factual
information.
(2) Voluntary submission of factual
information. Factual information
voluntarily submitted to CBP pursuant
to paragraph (b) of this section must be
submitted no later than 200 calendar
days after CBP initiated the
investigation under § 165.15. The public
version must also be served via an email
message or through any other method
approved or designated by CBP on the
parties to the investigation. Voluntary
submissions made after the 200th
calendar day after initiation of the
investigation will not be considered or
placed on the administrative record,
except rebuttal information as permitted
pursuant to the next sentence herein.
Parties to the investigation will have ten
calendar days from the date of service
of any factual information or from the
date of placement of any factual
information on the record to provide
rebuttal information to that 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.
(d) Oral discussions. Notwithstanding
the time limits in paragraph (c) of this
section, CBP may request oral
discussions either in-person or by
teleconference. CBP will memorialize
such discussions with a written
summary that identifies who
participated and the topic of discussion.
In the event that confidential business
information is included in the written
summary, CBP will also place a public
version on the administrative record.
§ 165.24

Interim measures.

(a) Reasonable suspicion. No later
than 90 calendar days after initiating an
investigation under § 165.15, CBP will
take interim measures if there is a
reasonable suspicion that the importer
entered covered merchandise into the
customs territory of the United States
through evasion.
(b) Measures. If CBP decides that
there is reasonable suspicion under
paragraph (a) of this section, then:
(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

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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. If CBP decides that there is
reasonable suspicion under paragraph
(a) of this section, CBP will issue
notification of this decision to the
parties to the investigation within five
business days after taking interim
measures. CBP will also provide parties
to the investigation with a public
version of the administrative record as
of that date.
§ 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 will place any relevant
information on the administrative
record and provide a public summary.

Lhorne on DSK30JT082PROD with RULES

§ 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. Parties to the
investigation:
(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 submitted to the designated
email address specified by CBP or
through any other method approved or
designated by CBP no later than 230
calendar days after the investigation was
initiated pursuant to § 165.15; 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. Parties to the investigation:
(1) May submit to CBP a response to
a written argument filed by another
party to the investigation. The response

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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. 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. Notwithstanding paragraphs (a)
and (b) of this section, CBP may request
written arguments on any issue from
any party to the investigation at any
time during an investigation.
(d) Form of written argument and
response to the written arguments. The
written argument and response to the
written argument must be doublespaced, with headings and footnotes
single-spaced, margins one inch on all
four sides, and font Times New Roman,
12-point font size. The written argument
must be no more than 50 pages in
length, including exhibits, and the
response to the written argument must
be no more than 50 pages in length,
including exhibits, excluding any pages
containing the table of contents and the
table of cited authorities. Each written
argument and response to the written
argument must contain:
(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 summary of the argument or
response to the argument, which is a
concise summary;
(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.

this section, CBP will send via an email
message or through any other method
approved or designated by CBP a
summary of the determination limited
to publicly available information under
paragraph (a) to the parties to the
investigation.
(c) Negative determination. If CBP
makes a determination under paragraph
(a) of this section that covered
merchandise was not entered into the
customs territory of the United States
through evasion, then CBP will cease
applying any interim measures taken
under § 165.24 and liquidate the entries
in the normal course.
§ 165.28 Assessments of duties owed;
other actions.

(a) Effect on liquidation. For entries of
covered merchandise that are already
liquidated when an affirmative
determination is made as to evasion
under § 165.27, CBP will initiate or
continue any appropriate actions
separate from this proceeding. For
entries of covered merchandise that are
unliquidated:
(1) Suspension of liquidation. (i) CBP
will suspend the liquidation of
unliquidated entries of covered
merchandise that is subject to the
determination and that entered on or
after the date of the initiation of the
investigation under § 165.15 with
respect to such covered merchandise; or
(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. (i) If
liquidation is not suspended, then CBP
will extend the period for liquidating
the unliquidated entries of covered
merchandise that is subject to the
determination, pursuant to CBP’s
authority under section 504(b), Tariff
Act of 1930, as amended (19 U.S.C.
1504(b)); or
(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. If CBP makes a
determination under § 165.27 that
covered merchandise was entered into
§ 165.27 Determination as to evasion.
the customs territory of the United
(a) Determination. Upon conclusion of States through evasion, CBP will notify
the investigation, CBP will make a
the Department of Commerce of the
determination based on substantial
determination and request, if necessary,
evidence as to whether covered
that the Department of Commerce:
(1) Identify the applicable
merchandise was entered into the
antidumping or countervailing duty
customs territory of the United States
assessment rates for merchandise
through evasion.
(b) Notification. No later than five
covered by the determination; and/or
(2) If no assessment rate is available
business days after making a
at the time, identify the applicable cash
determination under paragraph (a) of

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Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Rules and Regulations
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. CBP will require the
posting of cash deposits and assess
duties on entries of covered
merchandise subject to its affirmative
determination of evasion.
Subpart D—Administrative Review of
Determinations

Lhorne on DSK30JT082PROD with RULES

§ 165.41 Filing a request for review of the
initial determination.

(a) How to file a request for
administrative review. Requests for
administrative review of the initial
determination as to evasion pursuant to
§ 165.27 must be submitted
electronically to Regulations and
Rulings, in a manner as prescribed by
CBP. Requests for review may be filed
by any party to the investigation or its
attorney at law, or duly authorized
agent, and must comply with the
requirements specified in § 165.3.
Electronic signatures are acceptable.
(b) Release of information and service.
Requests for review must comply with
the requirements for release of
information specified in § 165.4.
(c) Notice to parties to the
investigation. Each party who files a
request for review must provide the
other parties to the investigation with a
public version in accordance with
§ 165.4.
(d) When filed. Requests for review
must be filed no later than 30 business
days after the issuance of the initial
determination as to evasion. Untimely
or incomplete requests for review will
not be accepted.
(e) True and accurate information. All
requests must be accompanied by the
certifications required pursuant to
§ 165.5. Any false statements contained
in a request for review may subject the
party to prosecution under 18 U.S.C.
1001 or other applicable laws.
(f) Content. Each request for review
must be based solely on the facts
already upon the administrative record
in the proceeding, in writing, and may
not exceed 30 pages. It must be doublespaced with headings and footnotes
single spaced, margins one inch on all
four sides, and 12-point font Times New
Roman. If it exceeds 10 pages, it must
include a table of contents and a table
of cited authorities. Each request for
review must set forth the following:
(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

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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 initial 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. Upon
receipt of a timely request for review,
the submission will be reviewed to
ensure it has been properly filed. If the
submission has been properly filed, a
case number will be assigned for
tracking purposes.
(h) Consolidation of requests for
administrative review. Multiple requests
for review under the same allegation
control number assigned by CBP
involving the same importer and
merchandise may be consolidated into a
single administrative review matter.
(i) Commencement of administrative
review. The 60 business-day review
period will commence on the date when
CBP accepts the last properly filed
request for administrative review and
transmits electronically the assigned
administrative review case number to
all parties to the investigation. All
properly filed requests for
administrative review must be
submitted to CBP no later than 30
business days after the issuance of the
initial determination.
§ 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. 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 upon the administrative
record in that proceeding. The
responses must be filed in a manner

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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.
§ 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.
§ 165.45
review.

Standard for administrative

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 initial determination
was made, the timely and properly filed
request(s) for review and responses, and
any additional information that was
received pursuant to § 165.44. The
administrative review will be completed
within 60 business days of the
commencement of the review.
§ 165.46 Final administrative
determination.

(a) Finality. The final administrative
determination issued by Regulations
and Rulings will be in writing and will
set forth the conclusion reached on the
matter. The conclusion will be
transmitted electronically to all parties
to the investigation. The final
administrative determination is subject
to judicial review pursuant to section
421 of the EAPA.
(b) Effect of the final administrative
determination. If the final

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Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Rules and Regulations

administrative determination affirms the
initial determination as to evasion, then
no further CBP action is needed. If the
final administrative determination
reverses the initial determination, then
CBP will take appropriate actions
consistent with the final administrative
determination.
§ 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.
R. Gil Kerlikowske,
Commissioner, U.S. Customs and Border,
Protection.
Approved: August 17, 2016.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2016–20007 Filed 8–18–16; 4:15 pm]
BILLING CODE 9111–14–P

DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade
Bureau
27 CFR Part 9
[Docket No. TTB–2015–0010: T.D. TTB–142;
Ref: Notice No. 154]
RIN 1513–AC19

Establishment of the Champlain Valley
of New York Viticultural Area
Alcohol and Tobacco Tax and
Trade Bureau, Treasury.
ACTION: Final rule; Treasury decision.
AGENCY:

The Alcohol and Tobacco Tax
and Trade Bureau (TTB) establishes the
approximately 500-square mile
‘‘Champlain Valley of New York’’
viticultural area in Clinton and Essex
Counties, New York. The Champlain
Valley of New York viticultural area is
not located within any other established
viticultural area. TTB designates
viticultural areas to allow vintners to
better describe the origin of their wines
and to allow consumers to better
identify wines they may purchase.
DATES: This final rule is effective
September 21, 2016.
FOR FURTHER INFORMATION CONTACT: Kate
M. Bresnahan, Regulations and Rulings
Division, Alcohol and Tobacco Tax and
Trade Bureau, 1310 G Street NW., Box
12, Washington, DC 20005; phone 202–
453–1039, ext. 151.

Lhorne on DSK30JT082PROD with RULES

SUMMARY:

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SUPPLEMENTARY INFORMATION:

Requirements

Background on Viticultural Areas

Section 4.25(e)(2) of the TTB
regulations (27 CFR 4.25(e)(2)) outlines
the procedure for proposing an AVA
and provides that any interested party
may petition TTB to establish a grapegrowing region as an AVA. Section 9.12
of the TTB regulations (27 CFR 9.12)
prescribes standards for petitions for the
establishment or modification of AVAs.
Petitions to establish an AVA must
include the following:
• Evidence that the area within the
proposed AVA boundary is nationally
or locally known by the viticultural area
name specified in the petition;
• An explanation of the basis for
defining the boundary of the proposed
AVA;
• A narrative description of the
features of the proposed AVA affecting
viticulture, such as climate, geology,
soils, physical features, and elevation,
that make the proposed AVA distinctive
and distinguish it from adjacent areas
outside the proposed AVA boundary;
• The appropriate United States
Geological Survey (USGS) map(s)
showing the location of the proposed
AVA, with the boundary of the
proposed AVA clearly drawn thereon;
and
• A detailed narrative description of
the proposed AVA boundary based on
USGS map markings.

TTB Authority
Section 105(e) of the Federal Alcohol
Administration Act (FAA Act), 27
U.S.C. 205(e), authorizes the Secretary
of the Treasury to prescribe regulations
for the labeling of wine, distilled spirits,
and malt beverages. The FAA Act
provides that these regulations should,
among other things, prohibit consumer
deception and the use of misleading
statements on labels and ensure that
labels provide the consumer with
adequate information as to the identity
and quality of the product. The Alcohol
and Tobacco Tax and Trade Bureau
(TTB) administers the FAA Act
pursuant to section 1111(d) of the
Homeland Security Act of 2002,
codified at 6 U.S.C. 531(d). The
Secretary has delegated various
authorities through Treasury
Department Order 120–01, dated
December 10, 2013 (superseding
Treasury Order 120–01, dated January
24, 2003), to the TTB Administrator to
perform the functions and duties in the
administration and enforcement of these
laws.
Part 4 of the TTB regulations (27 CFR
part 4) authorizes TTB to establish
definitive viticultural areas and regulate
the use of their names as appellations of
origin on wine labels and in wine
advertisements. Part 9 of the TTB
regulations (27 CFR part 9) sets forth
standards for the preparation and
submission to TTB of petitions for the
establishment or modification of
American viticultural areas (AVAs) and
lists the approved AVAs.
Definition
Section 4.25(e)(1)(i) of the TTB
regulations (27 CFR 4.25(e)(1)(i)) defines
a viticultural area for American wine as
a delimited grape-growing region having
distinguishing features, as described in
part 9 of the regulations, and a name
and a delineated boundary, as
established in part 9 of the regulations.
These designations allow vintners and
consumers to attribute a given quality,
reputation, or other characteristic of a
wine made from grapes grown in an area
to the wine’s geographic origin. The
establishment of AVAs allows vintners
to describe more accurately the origin of
their wines to consumers and helps
consumers to identify wines they may
purchase. Establishment of an AVA is
neither an approval nor an endorsement
by TTB of the wine produced in that
area.

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Champlain Valley of New York Petition
TTB received a petition from Colin
Read, owner of North Star Vineyard, on
behalf of the Lake Champlain Grape
Growers Association, proposing the
establishment of the ‘‘Champlain Valley
of New York’’ AVA in Clinton and Essex
Counties, New York. The proposed
Champlain Valley of New York AVA
covers approximately 500 square miles
and is not located within any other
AVA. There are 11 commercial
vineyards covering a total of
approximately 15.47 acres within the
proposed AVA, as well as 6 wineries.
According to the petition, the
distinguishing feature of the proposed
Champlain Valley of New York AVA is
its short growing season, which is
conducive to growing cold-hardy North
American hybrid grape varieties (such
as Frontenac, La Crescent, and
Marquette) but not the Vitis vinifera
grapes that are grown in the
surrounding areas. The petition
provides information comparing the
length of the growing season within the
AVA to those of the surrounding areas.
In South Hero, Vermont, to the east of
the proposed AVA, the growing season
is four weeks longer than that in the
proposed AVA. In Whitehall, New York,

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