Text: H.R.6549 — 111th Congress (2009-2010)All Bill Information (Except Text)

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Introduced in House (12/17/2010)


111th CONGRESS
2d Session
H. R. 6549

To prevent the evasion of antidumping and countervailing duty orders, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES
December 17, 2010

Ms. Linda T. Sánchez of California (for herself, Mr. Jones, and Mr. Critz) introduced the following bill; which was referred to the Committee on Ways and Means


A BILL

To prevent the evasion of antidumping and countervailing duty orders, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Enforcing Orders and Reducing Customs Evasion Act of 2010”.

SEC. 2. Procedures for investigating claims of evasion.

(a) In general.—The Tariff Act of 1930 is amended by inserting after section 516A (19 U.S.C. 1516a) the following new section:

“SEC. 516B. Procedures for investigating claims of evasion.

“(a) Definitions.—In this section:

“(1) ADMINISTERING AUTHORITY.—The term ‘administering authority’ means the authority described in section 771(1).

“(2) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term ‘appropriate congressional committees’ means—

“(A) the Committee on Finance and the Committee on Appropriations of the Senate; and

“(B) the Committee on Ways and Means and the Committee on Appropriations of the House of Representatives.

“(3) COMMISSIONER.—The term ‘Commissioner’ means the Commissioner responsible for U.S. Customs and Border Protection.

“(4) COVERED MERCHANDISE.—The term ‘covered merchandise’ means merchandise that is subject to—

“(A) an antidumping order issued under section 736;

“(B) a finding issued under the Antidumping Act, 1921; or

“(C) a countervailing duty order issued under section 706.

“(5) EVADE; EVASION.—The terms ‘evade’ and ‘evasion’ refer to entering or introducing covered merchandise into the commerce of the United States by means of—

“(A) any document or electronically transmitted data or information, written or oral statement, or act which is material and false, or

“(B) any omission which is material,

that results in any cash deposit or other security or any amount of applicable antidumping or countervailing duties being reduced or not being applied on the merchandise.

“(6) INTERESTED PARTY.—The term ‘interested party’ means an interested party as defined in section 771(9).

“(b) Clarifications.—

“(1) NEGLIGENCE OR INTENT OF IMPORTER.—The Commissioner shall investigate and make determinations regarding evasion pursuant to this section without taking into consideration whether the importer concerned intended to violate or failed to exercise reasonable care resulting in a violation of an antidumping order or countervailing duty order under section 736 or 706, respectively, or a finding issued under the Antidumping Act, 1921.

“(2) RULE OF CONSTRUCTION RELATING TO PENALTIES.—Nothing in this section limits the authority of U.S. Customs and Border Protection to assess penalties and collect applicable duties, taxes, and fees, including assessment of penalties and collection of applicable duties, taxes, and fees pursuant to section 592.

“(c) Procedures for investigating claims of evasion.—

“(1) INITIATION BY PETITION OR REFERRAL.—

“(A) IN GENERAL.—The Commissioner shall initiate an investigation pursuant to this paragraph not later than 10 days after the date on which the Commissioner receives a petition described in subparagraph (B) or a referral described in subparagraph (C).

“(B) PETITION DESCRIBED.—A petition described in this subparagraph is a petition that—

“(i) is filed with the Commissioner by any party who is an interested party with respect to covered merchandise;

“(ii) alleges evasion with respect to covered merchandise; and

“(iii) is accompanied by information reasonably available to the petitioner supporting such allegations.

“(C) REFERRAL DESCRIBED.—A referral described in this subparagraph is information submitted to the Commissioner by any other Federal department or agency, including the Department of Commerce or the United States International Trade Commission, indicating evasion with respect to covered merchandise.

“(2) DETERMINATIONS.—

“(A) PRELIMINARY DETERMINATION.—

“(i) IN GENERAL.—Not later than 60 days after the date on which the Commissioner initiates an investigation under paragraph (1), the Commissioner shall issue a preliminary determination, based on information available to the Commissioner at the time of such determination, as to whether there is a reasonable indication the covered merchandise was entered or introduced into the United States through evasion.

“(ii) EXTENSION.—The Commissioner may extend up to 45 days the time period specified in clause (i) if the Commissioner determines that sufficient information to make such preliminary determination is not available within such time period or the inquiry is unusually complex.

“(B) FINAL DETERMINATION.—

“(i) IN GENERAL.—Not later than 120 days after making an affirmative preliminary determination under subparagraph (A), the Commissioner shall make a final determination as to whether the covered merchandise was entered or introduced into the United States through evasion.

“(ii) EXTENSION.—The Commissioner may extend up to 60 days the time period specified in clause (i) if the Commissioner determines that sufficient information to make such final determination is not available within such time period or the inquiry is unusually complex.

“(iii) OPPORTUNITY FOR COMMENT; HEARING.—Before issuing such final determination, the Commissioner shall provide an opportunity for public comment and, to the maximum extent practicable, hold a hearing as to whether the covered merchandise was entered or introduced into the United States through evasion.

“(C) AUTHORITY TO COLLECT AND VERIFY ADDITIONAL INFORMATION.—In making a preliminary determination under subparagraph (A) or a final determination under subparagraph (B), the Commissioner—

“(i) shall exercise all existing authorities to collect information needed to make such determinations; and

“(ii) may collect such additional information needed to make such determinations, including issuing questionnaires to an interested party with respect to covered merchandise and conducting verifications, including on-site verifications, of any information.

“(D) ADVERSE INFERENCE.—If the Commissioner finds that an interested party with respect to covered merchandise has failed to cooperate by not acting to the best of its ability to comply with a request for information the Commissioner may, in making a preliminary determination under subparagraph (A) or a final determination under subparagraph (B), use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available to determine whether evasion has occurred. Such adverse inference may include reliance on information derived from—

“(i) the petition;

“(ii) a final determination by the Commissioner in an investigation under this section;

“(iii) an investigation or review by the administering authority under title VII; or

“(iv) any other information placed on the record.

“(E) NOTIFICATION AND PUBLICATION.—After making a preliminary determination under subparagraph (A) or a final determination under subparagraph (B), the Commissioner shall not later than 14 days after the date on which such determination is made—

“(i) send notification of such determination to—

“(I) the administering authority;

“(II) any petitioning party or referring Federal department or agency; and

“(III) any importer of such products; and

“(ii) publish such determination in the Customs Bulletin.

“(3) BUSINESS PROPRIETARY INFORMATION.—

“(A) ESTABLISHMENT OF PROCEDURES.—For each investigation under paragraph (1), the Commissioner shall establish procedures for the submission of business proprietary information under an administrative protective order that protects against public disclosure of such information but provides limited access to parties to the investigation identified in paragraph (1)(B)(i) for purposes of submitting comments to the Commissioner. Such procedures shall be administered, to the maximum extent practicable, in accordance with administrative protective order procedures under section 777 by the administering authority.

“(B) DISCLOSURE OF BUSINESS PROPRIETARY INFORMATION.—The Commissioner shall, in accordance with the procedures established under subparagraph (A), make all business proprietary information presented to, or obtained by, the Commissioner during an investigation available to parties to the investigation under an administrative protective order, regardless of when such information is submitted during an investigation.

“(d) Effect of determinations.—

“(1) EFFECT OF AFFIRMATIVE PRELIMINARY DETERMINATION.—If the Commissioner makes a preliminary determination in accordance with subsection (c)(2)(A) that there is a reasonable indication that covered merchandise was entered or introduced into the United States through evasion, the Commissioner shall—

“(A)(i) suspend liquidation of each entry of the covered merchandise with respect to which such determination has been made that—

“(I) enters on or after the date of such determination; or

“(II) entered before such date, if the liquidation of such entry is not final on such date; and

“(ii) notwithstanding section 501, reopen and hold in suspension any liquidated entry subject to the investigation that was liquidated on or after the later of—

“(I) the date that is one year before the date on which the investigation was initiated; or

“(II) the date on which suspension of liquidation of entries of the covered merchandise was first ordered pursuant to title VII or the Antidumping Act, 1921;

“(B) notify the administering authority of such determination that there is a reasonable indication that covered merchandise was entered or introduced into the United States through evasion and request that the administering authority identify the applicable cash deposit rate to be applied to the entries at issue; and

“(C) require the posting of such cash deposit for each such entry.

“(2) EFFECT OF NEGATIVE PRELIMINARY DETERMINATION.—If the Commissioner makes a preliminary determination in accordance with subsection (c)(2)(A) that there is not a reasonable indication that covered merchandise was entered or introduced into the United States through evasion, the Commissioner shall continue the investigation and notify the administering authority pending a final determination under subsection (c)(2)(B).

“(3)(A) EFFECT OF AFFIRMATIVE FINAL DETERMINATION.—If the Commissioner makes a final determination in accordance with subsection (c)(2)(B) that covered merchandise was entered or introduced into the United States through evasion, the Commissioner shall—

“(i) suspend, or as the case may be, continue to suspend liquidation of each entry of merchandise with respect to which such final determination has been made that enters on or after the date of such determination;

“(ii) notify the administering authority of the determination that covered merchandise was entered or introduced into the United States through evasion and request that the administering authority—

“(I) identify the applicable antidumping or countervailing duty assessment rate for the entries for which liquidation is suspended under subclause (I) or (II) of paragraph (1)(A)(i) or clause (i) of this subparagraph; or

“(II) if no such assessment rates are available at the time, identify the applicable cash deposit rate to be applied to the entries under clause (i), with the applicable antidumping or countervailing duty assessment rates to be provided as soon as such rates become available;

“(iii) require the posting of cash deposits and assess duties on each entry in accordance with the instructions received from the administering authority under paragraph (5);

“(iv) review and reassess the amount of bond or other security the importer is required to post for such merchandise entered on or after the date of such determination to ensure the protection of revenue and compliance with the law; and

“(v) take such additional enforcement measures as the Commissioner determines appropriate, such as—

“(I) initiating proceedings under sections 592 or 596;

“(II) implementing, in consultation with the relevant Federal departments and agencies, rule sets or modifications to rules sets for identifying, particularly through the Automated Targeting System, importers, other parties, and merchandise that may be associated with evasion;

“(III) requiring, with respect to merchandise for which the importer has repeatedly provided incomplete or erroneous entry summary information in connection with determinations of evasion, the importer to submit entry summary documentation and to deposit estimated duties at the time of entry;

“(IV) referring the record in whole or in part to U.S. Immigration and Customs Enforcement for criminal investigation; and

“(V) transmitting the administrative record to the administering authority for further appropriate proceedings.

“(B) SPECIAL RULE.—Notwithstanding the initiation of an investigation under subsection (c) or a final determination under paragraph (2)(B) of such subsection, the Commissioner may pursue all enforcement measures against an evasion of antidumping or countervailing duties as the Commissioner determines necessary, including enforcement measures described in subclauses (I) through (IV) of subparagraph (A)(v).

“(4) EFFECT OF NEGATIVE FINAL DETERMINATION.—If the Commissioner makes a final determination in accordance with subsection (c)(2)(B) that covered merchandise was not entered or introduced into the United States through evasion, the Commissioner shall terminate the suspension of liquidation pursuant to paragraph (1)(A) and refund any cash deposits collected pursuant to paragraph (1)(C).

“(5) ADMINISTERING AUTHORITY.—

“(A) IN GENERAL.—Upon receiving a notification from the Commissioner under paragraph (1)(B) or (3)(A)(ii), the administering authority shall promptly provide to the Commissioner the applicable cash deposit rates and antidumping or countervailing duty assessment rates and any necessary liquidation instructions.

“(B) SPECIAL RULE FOR CASES IN WHICH THE PRODUCER OR EXPORTER IS UNKNOWN.—If the Commissioner and administering authority are unable to determine the producer or exporter of the merchandise with respect to which a notification is made under paragraph (1)(B) or (3)(A)(ii), the administering authority shall identify, as the applicable cash deposit rate or antidumping or countervailing duty assessment rate, the cash deposit or duty (as the case may be) in the highest amount applicable to any producer or exporter, including the ‘all other’ rate of the merchandise subject to an antidumping order or countervailing duty order under section 736 or 706, respectively, or a finding issued under the Antidumping Act, 1921, or any administrative review conducted under section 751.”.

(b) Technical amendment.—Clause (ii) of section 777(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1677f(b)(1)(A)) is amended to read as follows:

“(ii) to an officer or employee of U.S. Customs and Border Protection who is directly involved in conducting an investigation regarding fraud under this title or claims of evasion under section 516B.”.

(c) Judicial review.—Section 516A(a)(2) of the Tariff Act of 1930 (19 U.S.C. 1516a(a)(2)) is amended—

(1) in subparagraph (A)—

(A) in clause (i)(III), by striking “or” at the end;

(B) in clause (ii), by adding “or” at the end; and

(C) by adding at the end the following new clause:

“(iii) the date of publication in the Customs Bulletin of a final determination described in clause (ix) of subparagraph (B),”; and

(2) in subparagraph (B), by adding at the end the following new clause:

“(ix) A final determination by the Commissioner responsible for U.S. Customs and Border Protection under section 516B.”.

(d) Finality of determinations.—Section 514(b) of the Tariff Act of 1930 (19 U.S.C. 1514(b)) is amended by striking “section 303” and all that follows through “which are reviewable” and inserting “section 303, section 516B, or title VII which are reviewable”.

SEC. 3. Allocation of U.S. Customs and Border Protection personnel.

(a) Reassignment and allocation.—The Commissioner responsible for U.S. Customs and Border Protection shall, to the maximum extent possible, ensure that U.S. Customs and Border Protection—

(1) employs sufficient personnel who have expertise and responsibility for preventing the importation of merchandise in a manner that evades an antidumping order or countervailing duty order under section 736 or 706, respectively, of the Tariff Act of 1930, or a finding issued under the Antidumping Act, 1921; and

(2) on the basis of risk assessment metrics, assigns sufficient personnel with primary responsibility for preventing the importation of merchandise in a manner that evades an antidumping order or countervailing duty order under section 736 or 706, respectively, of the Tariff Act of 1930, or a finding issued under the Antidumping Act, 1921 to the ports of entry in the United States at which the Commissioner determines the most substantial threats to revenue exist.

(b) Commercial Enforcement Officers.—

(1) IN GENERAL.—Not later than September 30, 2011, and subject to the availability of appropriations, the Commissioner shall hire not less than an additional 100 full-time equivalent personnel to serve as Commercial Enforcement Officers within the Office of Field Operations.

(2) ASSIGNMENT.—The Commissioner shall assign Commercial Enforcement Officers hired under paragraph (1) among the 20 United States ports of entry that experienced the highest volume of trade during fiscal year 2009.

(3) DUTIES.—The duties of a Commercial Enforcement Officer hired under paragraph (1) shall be principally related to the enforcement of priority trade issues as identified by the Commissioner, and shall include—

(A) supervising all trade enforcement activities of personnel of the Office of Field Operations at the port of entry to which the Commercial Enforcement Officer has been assigned;

(B) coordinating with the Office of International Trade all trade enforcement activities at such port of entry;

(C) directing the training of personnel at such port of entry to effectuate the trade enforcement activities of the Office of Field Operations; and

(D) otherwise conducting trade enforcement activities at such port of entry.

(4) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to carry out this subsection $20,000,000 for fiscal year 2012 and each fiscal year thereafter.

SEC. 4. Regulations.

(a) In general.—Not later than 240 days after the date of the enactment of this Act, the Commissioner responsible for U.S. Customs and Border Protection shall issue regulations to carry out this Act and the amendments made by this Act.

(b) Cooperation between U.S. Customs and Border Protection and Department of Commerce.—Not later than 240 days after the date of the enactment of this Act, the Commissioner and the Secretary of Commerce shall establish procedures to ensure maximum cooperation and communication between U.S. Customs and Border Protection and the Department of Commerce in order to quickly, efficiently, and accurately investigate allegations of evasion under this Act and the amendments made by this Act.

SEC. 5. Annual report on prevention of evasion of antidumping and countervailing duty orders.

(a) In general.—Not later than February 28 of each year, beginning in 2012, the Commissioner responsible for U.S. Customs and Border Protection, in consultation with the Secretary of Commerce, shall submit to the appropriate congressional committees a report on the efforts being taken to prevent evasion pursuant to section 516B of the Tariff Act of 1930 (as added by section 2 of this Act).

(b) Contents.—Each report required under subsection (a) shall include, for the immediately preceding year—

(1) the number and a brief description of petitions and referrals received pursuant to section 516B(c)(1) of the Tariff Act of 1930 (as added by section 2 of this Act);

(2) the results of such investigations, including any related enforcement actions, and the amount of antidumping and countervailing duties collected as a result of such investigations; and

(3) to the extent appropriate, a summary of the efforts of U.S. Customs and Border Protection, other than efforts initiated pursuant section 516B of the Tariff Act of 1930 (as added by section 2 of this Act), to prevent evasion.

SEC. 6. Application to Canada and Mexico.

Pursuant to article 1902 of the North American Free Trade Agreement and section 408 of the North American Free Trade Agreement Implementation Act (19 U.S.C. 3438), the amendments made by this Act shall apply with respect to goods from Canada and Mexico.

SEC. 7. Definitions.

In this Act, the terms “appropriate congressional committees”, “Commissioner”, and “evade” and “evasion” have the meaning given such terms in section 516B(a) of the Tariff Act of 1930 (as added by section 2 of this Act).