[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3725 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3725

 To prevent the importation of merchandise into the United States in a 
manner that evades antidumping and countervailing duty orders, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 5, 2010

  Mr. Wyden (for himself, Ms. Snowe, and Mr. Schumer) introduced the 
 following bill; which was read twice and referred to the Committee on 
                                Finance

_______________________________________________________________________

                                 A BILL


 
 To prevent the importation of merchandise into the United States in a 
manner that evades 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 
Circumvention and Evasion Act of 2010''.

SEC. 2. PROCEDURES FOR PREVENTION OF CIRCUMVENTION AND EVASION OF 
              ANTIDUMPING AND COUNTERVAILING DUTY ORDERS.

    (a) In General.--Title VII of the Tariff Act of 1930 (19 U.S.C. 
1671 et seq.) is amended by inserting after section 781 the following:

``SEC. 781A. PROCEDURES FOR PREVENTION OF CIRCUMVENTION AND EVASION OF 
              ANTIDUMPING AND COUNTERVAILING DUTY ORDERS.

    ``(a) Definitions.--In this section:
            ``(1) Commissioner.--The term `Commissioner' means the 
        Commissioner responsible for U.S. Customs and Border 
        Protection.
            ``(2) Covered merchandise.--
                    ``(A) In general.--The term `covered merchandise' 
                means merchandise that--
                            ``(i) is subject to--
                                    ``(I) an antidumping duty order 
                                issued under section 736;
                                    ``(II) a finding issued under the 
                                Antidumping Act, 1921; or
                                    ``(III) a countervailing duty order 
                                issued under section 706; and
                            ``(ii) is represented in any manner, 
                        including by mislabeling, misidentification, or 
                        misreporting of the merchandise, as merchandise 
                        that--
                                    ``(I) is not subject to such an 
                                order or finding; or
                                    ``(II) is subject to a lower rate 
                                of duty than the rate of duty 
                                applicable to the merchandise under 
                                such an order or finding.
                    ``(B) Applicability to determinations of the 
                administering authority.--For purposes of 
                investigations and determinations of the administering 
                authority under subsection (b), the administering 
                authority shall determine if merchandise is covered 
                merchandise without regard to the intent of the 
                importer.
    ``(b) Prevention by Administering Authority.--
            ``(1) Procedures for initiating investigations.--
                    ``(A) Initiation by administering authority.--An 
                investigation under this subsection shall be initiated 
                with respect to merchandise imported into the United 
                States whenever the administering authority determines, 
                from information available to the administering 
                authority, that an investigation is warranted with 
                respect to whether the merchandise is covered 
                merchandise.
                    ``(B) Initiation by petition or referral.--
                            ``(i) In general.--The administering 
                        authority shall determine whether to initiate 
                        an investigation under this subparagraph not 
                        later than 30 days after the date on which the 
                        administering authority receives a petition 
                        described in clause (ii) or a referral 
                        described in clause (iii).
                            ``(ii) Petition described.--A petition 
                        described in this clause is a petition that--
                                    ``(I) is filed with the 
                                administering authority by an 
                                interested party specified in 
                                subparagraph (A), (C), (D), (E), (F), 
                                or (G) of section 771(9);
                                    ``(II) alleges that merchandise 
                                imported into the United States is 
                                covered merchandise; and
                                    ``(III) is accompanied by 
                                information reasonably available to the 
                                petitioner supporting those 
                                allegations.
                            ``(iii) Referral described.--A referral 
                        described in this clause is a referral made by 
                        the Commissioner pursuant to subsection 
                        (c)(2)(B).
            ``(2) Time limits for determinations.--
                    ``(A) Preliminary determination.--
                            ``(i) In general.--Not later than 30 days 
                        after the administering authority initiates an 
                        investigation under paragraph (1) with respect 
                        to merchandise, the administering authority 
                        shall issue a preliminary determination, based 
                        on information available to the administering 
                        authority at the time of the determination, 
                        with respect to whether there is a reasonable 
                        basis to believe or suspect that the 
                        merchandise is covered merchandise.
                            ``(ii) Expedited procedures.--If the 
                        administering authority determines that 
                        expedited action is warranted with respect to 
                        an investigation initiated under paragraph (1), 
                        the administering authority may publish the 
                        notice of initiation of the investigation and 
                        the notice of the preliminary determination in 
                        the Federal Register at the same time.
                    ``(B) Final determination by the administering 
                authority.--The administering authority shall, to the 
                maximum extent practicable, issue a final determination 
                with respect to whether merchandise is covered 
                merchandise not later than 180 days after the date on 
                which the administering authority initiates an 
                investigation under paragraph (1) with respect to the 
                merchandise.
            ``(3) Access to information.--
                    ``(A) Entry documents and records.--Upon receiving 
                a request from the administering authority, and not 
                later than the date on which the administering 
                authority initiates an investigation under paragraph 
                (1) with respect to merchandise, the Commissioner shall 
                transmit to the administering authority copies of the 
                documentation and information required by section 
                484(a)(1) with respect to the entry of the merchandise.
                    ``(B) Access of interested parties.--Not later than 
                10 business days after the date on which the 
                administering authority initiates an investigation 
                under paragraph (1) with respect to merchandise, the 
                administering authority shall provide to the authorized 
                representative of each interested party that filed a 
                petition under paragraph (1) or otherwise participates 
                in a proceeding, pursuant to a protective order, the 
                copies of the entry documentation and information 
                received by the administering authority under 
                subparagraph (A).
            ``(4) Effect of affirmative preliminary determination.--If 
        the administering authority makes a preliminary determination 
        under paragraph (2)(A) that merchandise is covered merchandise, 
        the administering authority shall instruct U.S. Customs and 
        Border Protection--
                    ``(A) to suspend liquidation of each entry of the 
                merchandise that--
                            ``(i) enters on or after the date of the 
                        preliminary determination; or
                            ``(ii) enters before that date, if the 
                        liquidation of the entry is not final on that 
                        date; and
                    ``(B) to require the posting of a cash deposit for 
                each entry of the merchandise in an amount determined 
                pursuant to the order or finding described in 
                subsection (a)(2)(A)(i), or administrative review 
                conducted under section 751, that applies to the 
                merchandise.
            ``(5) Effect of affirmative final determination.--
                    ``(A) In general.--If the administering authority 
                makes a final determination under paragraph (2)(B) that 
                merchandise is covered merchandise, the administering 
                authority shall instruct U.S. Customs and Border 
                Protection--
                            ``(i) to assess duties on the merchandise 
                        in an amount determined pursuant to the order 
                        or finding described in subsection 
                        (a)(2)(A)(i), or administrative review 
                        conducted under section 751, that applies to 
                        the merchandise;
                            ``(ii) notwithstanding section 501, to 
                        reliquidate, in accordance with such order, 
                        finding, or administrative review, each entry 
                        of the merchandise that was liquidated--
                                    ``(I) on or after the date that is 
                                one year before the date on which the 
                                investigation was initiated under 
                                paragraph (1) with respect to the 
                                merchandise; and
                                    ``(II) before the date of the final 
                                determination; and
                            ``(iii) to 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 the final determination 
                        to ensure the protection of revenue and 
                        compliance with the law.
                    ``(B) Additional authority.--If the administering 
                authority makes a final determination under paragraph 
                (2)(B) that merchandise is covered merchandise, the 
                administering authority may instruct U.S. Customs and 
                Border Protection to require the importer of the 
                merchandise to post a cash deposit or bond on such 
                merchandise entered on or after the date of the final 
                determination in an amount the administering authority 
                determines in the final determination to be owed with 
                respect to the merchandise.
            ``(6) Effect of negative final determination.--If the 
        administering authority makes a final determination under 
        paragraph (2)(B) that merchandise is not covered merchandise, 
        the administering authority shall terminate the suspension of 
        liquidation and refund any cash deposit imposed pursuant to 
        paragraph (4) with respect to the merchandise.
            ``(7) Special rule for cases in which the producer or 
        exporter is unknown.--If the administering authority is unable 
        to determine the actual producer or exporter of the merchandise 
        with respect to which the administering authority initiated an 
        investigation under paragraph (1), the administering authority 
        shall, in requiring the posting of a cash deposit under 
        paragraph (4) or assessing duties pursuant to paragraph (5)(A), 
        impose the cash deposit or duties (as the case may be) in the 
        highest amount applicable to any producer or exporter of the 
        merchandise pursuant to any order or finding described in 
        subsection (a)(2)(A)(i), or any administrative review conducted 
        under section 751.
            ``(8) Publication of determinations.--The administering 
        authority shall publish each preliminary determination made 
        under paragraph (2)(A) and each final determination made under 
        paragraph (2)(B) in the Federal Register.
            ``(9) Referrals to other agencies.--
                    ``(A) After preliminary determination.--
                Notwithstanding section 777 and subject to subparagraph 
                (C), when the administering authority makes an 
                affirmative preliminary determination under paragraph 
                (2)(A), the administering authority shall--
                            ``(i) transmit the administrative record to 
                        the Commissioner for such additional action as 
                        the Commissioner determines appropriate, 
                        including proceedings under section 592; and
                            ``(ii) at the request of the head of 
                        another agency, transmit the administrative 
                        record to the head of that agency.
                    ``(B) After final determination.--Notwithstanding 
                section 777 and subject to subparagraph (C), when the 
                administering authority makes an affirmative final 
                determination under paragraph (2)(B), the administering 
                authority shall--
                            ``(i) transmit the complete administrative 
                        record to the Commissioner; and
                            ``(ii) at the request of the head of 
                        another agency, transmit the complete 
                        administrative record to the head of that 
                        agency.
                    ``(C) Protective orders.--Before transmitting the 
                administrative record with respect to a proceeding to 
                the Commissioner or the head of another agency under 
                subparagraph (A) or (B), the administering authority 
                shall verify that U.S. Customs and Border Protection or 
                such other agency (as the case may be) has in effect 
                with respect to the administrative record a protective 
                order that provides the same or a similar level of 
                protection for the information in the administrative 
                record as the protective order in effect with respect 
                to such information under this subsection.
    ``(c) Prevention by U.S. Customs and Border Protection.--
            ``(1) Investigations.--Not later than 180 days after the 
        date of the enactment of the Enforcing Orders and Reducing 
        Circumvention and Evasion Act of 2010, the Commissioner, in 
        consultation with the Under Secretary for International Trade 
        of the Department of Commerce and subject to the requirements 
        of this subsection, shall establish procedures--
                    ``(A) to permit an interested party specified in 
                subparagraph (A), (C), (D), (E), (F), or (G) of section 
                771(9) of the Tariff Act of 1930 (19 U.S.C. 1677(9)) to 
                submit to U.S. Customs and Border Protection a petition 
                alleging that an importer is importing covered 
                merchandise into the United States;
                    ``(B) to investigate the allegations in a petition 
                submitted under subparagraph (A) and make 
                determinations or referrals under paragraph (2) with 
                respect to those allegations; and
                    ``(C) to notify the interested party that submitted 
                the petition of the determination or referral (as the 
                case may be) and the outcome of the investigation.
            ``(2) Determinations; referrals.--Not later than 60 days 
        after a petition is submitted under paragraph (1)(B), the 
        Commissioner shall--
                    ``(A) make a determination with respect to whether 
                an importer is importing covered merchandise into the 
                United States based on whether the Commissioner has a 
                reasonable basis to believe or suspect that the 
                importer is importing such merchandise; or
                    ``(B) if the Commissioner is unable to make such a 
                determination--
                            ``(i) refer the matter to the administering 
                        authority for additional proceedings under 
                        subsection (b); and
                            ``(ii) transmit to the administering 
                        authority--
                                    ``(I) the petition submitted under 
                                paragraph (1)(A);
                                    ``(II) copies of the entry 
                                documents and information required by 
                                section 484(a)(1) relating to the 
                                merchandise; and
                                    ``(III) to the extent otherwise 
                                permitted by law, any additional 
                                records or information that the 
                                Commissioner considers appropriate.
            ``(3) Suspension of liquidation and deposit requirement.--
                    ``(A) In general.--If the Commissioner makes a 
                determination under paragraph (2) that an importer is 
                importing covered merchandise into the United States, 
                the Commissioner shall--
                            ``(i) suspend liquidation of each entry of 
                        the merchandise that--
                                    ``(I) enters on or after the date 
                                of the determination; or
                                    ``(II) enters before that date, if 
                                the liquidation of the entry is not 
                                final on that date; and
                            ``(ii) with respect to each entry of the 
                        merchandise referred to in clause (i), require 
                        the posting of a cash deposit, assess any 
                        duties, and impose any other requirements that 
                        are applicable to the merchandise under an 
                        order or finding described in subsection 
                        (a)(2)(A)(i) or pursuant to an administrative 
                        review conducted under section 751.
                    ``(B) Special rule for cases in which the producer 
                or exporter is unknown.--If the Commissioner is unable 
                to determine the actual producer or exporter of 
                merchandise with respect to which the Commissioner 
                initiated an investigation under paragraph (1)(B), the 
                Commissioner shall, in requiring the posting of a cash 
                deposit or assessing duties under subparagraph (A)(ii), 
                impose the cash deposit or duties (as the case may be) 
                in the highest amount applicable to any producer or 
                exporter of the merchandise pursuant to an order or 
                finding described in subsection (a)(2)(A)(i) or an 
                administrative review conducted under section 751.
    ``(d) Cooperation Between U.S. Customs and Border Protection and 
the Department of Commerce.--
            ``(1) Notification of investigations.--
                    ``(A) Investigations by administering authority.--
                Upon receiving a petition and upon initiating an 
                investigation under subsection (b), the administering 
                authority shall notify the Commissioner.
                    ``(B) Investigations by u.s. customs and border 
                protection.--Upon initiating an investigation under 
                subsection (c), the Commissioner shall notify the 
                administering authority.
            ``(2) Procedures for cooperation.--Not later than 180 days 
        after the date of the enactment of the Enforcing Orders and 
        Reducing Circumvention and Evasion Act of 2010, the 
        Commissioner and the administering authority shall establish 
        procedures to ensure maximum cooperation and communication 
        between U.S. Customs and Border Protection and the 
        administering authority in order to quickly, efficiently, and 
        accurately investigate allegations of circumvention or evasion 
        of antidumping and countervailing duty orders.
    ``(e) Annual Report on Preventing Circumvention and Evasion of 
Antidumping and Countervailing Duty Orders.--
            ``(1) In general.--Not later than February 28 of each year 
        beginning in 2012, the Under Secretary for International Trade 
        of the Department of Commerce and the Commissioner shall 
        jointly submit to the Committee on Finance and the Committee on 
        Appropriations of the Senate and the Committee on Ways and 
        Means and the Committee on Appropriations of the House of 
        Representatives a report on the efforts being taken under 
        subsections (b) and (c) to prevent circumvention and evasion of 
        antidumping and countervailing duty orders.
            ``(2) Contents.--Each report required by paragraph (1) 
        shall include, for the year preceding the submission of the 
        report--
                    ``(A)(i) the number of investigations initiated 
                pursuant to subsection (b); and
                    ``(ii) a description of such investigations, 
                including--
                            ``(I) the results of such investigations; 
                        and
                            ``(II) the amount of antidumping and 
                        countervailing duties collected as a result of 
                        such investigations;
                    ``(B)(i) the number of petitions submitted pursuant 
                to subsection (c)(1); and
                    ``(ii) a description of the investigations 
                initiated by U.S. Customs and Border Protection 
                pursuant to subsection (c) and any enforcement actions 
                related to the investigations, including--
                            ``(I) the results of the investigations; 
                        and
                            ``(II) the amount of antidumping and 
                        countervailing duties collected as a result of 
                        the investigations;
                    ``(C)(i) the number of inquiries initiated pursuant 
                to section 781; and
                    ``(ii) a description of such inquiries, including--
                            ``(I) the results of such inquiries; and
                            ``(II) the amount of antidumping and 
                        countervailing duties collected as a result of 
                        such inquiries; and
                    ``(D) a description of investigations initiated by 
                other Federal agencies as a result of referrals under 
                subsection (b)(10).''.
    (b) Technical Amendment.--The table of contents for title VII of 
the Tariff Act of 1930 is amended by inserting after the item relating 
to section 781 the following:

``Sec. 781A. Procedures for prevention of circumvention and evasion of 
                            antidumping and countervailing duty 
                            orders.''.
    (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)(i)(I), by striking ``or (viii)'' 
        and inserting ``(viii), or (ix)''; and
            (2) in subparagraph (B), by inserting at the end the 
        following:
                            ``(ix) A determination by the administering 
                        authority or the Commissioner responsible for 
                        U.S. Customs and Border Protection under 
                        section 781A.''.
    (d) Time Limits for Determinations of Circumvention.--Section 
781(f) of the Tariff Act of 1930 (19 U.S.C. 1677(f)) is amended by 
striking ``, to the maximum extent practicable,''.
    (e) Regulations.--Not later than 180 days after the date of the 
enactment of this Act--
            (1) the Secretary of Commerce shall prescribe such 
        regulations as may be necessary to carry out subsection (b) of 
        section 781A of the Tariff Act of 1930 (as added by subsection 
        (a) of this section); and
            (2) the Commissioner responsible for U.S. Customs and 
        Border Protection shall prescribe such regulations as may be 
        necessary to carry out subsection (c) of such section 781A.
    (f) Effective Date.--The amendments made by this section shall--
            (1) take effect on the date that is 180 days after the date 
        of the enactment of this Act; and
            (2) apply with respect to merchandise entered on or after 
        such date of enactment.

SEC. 3. MODIFICATIONS TO PROTECTIVE ORDERS.

    Section 777(c)(1)(B) of the Tariff Act of 1930 (19 U.S.C. 
1677f(c)(1)(B)) is amended to read as follows:
                    ``(B) Protective order.--
                            ``(i) In general.--Except as specifically 
                        provided in this subparagraph, the protective 
                        order under which information is made available 
                        shall contain such requirements as the 
                        administering authority or the Commission may 
                        determine by regulation to be appropriate. The 
                        administering authority and the Commission 
                        shall provide by regulation for such sanctions 
                        as the administering authority and the 
                        Commission determine to be appropriate, 
                        including disbarment from practice before the 
                        agency.
                            ``(ii) Concurrent proceedings.--In the case 
                        of concurrent proceedings covering the same 
                        subject merchandise conducted pursuant to 
                        subtitles A and B of this title, a single 
                        protective order shall be issued for both 
                        proceedings.
                            ``(iii) Applicability to proceedings before 
                        u.s. customs and border protection.--A 
                        protective order issued pursuant to this 
                        paragraph shall authorize the use of business 
                        proprietary information made available pursuant 
                        to a protective order in proceedings before 
                        U.S. Customs and Border Protection.''.

SEC. 4. GOVERNMENT ACCOUNTABILITY OFFICE REPORT.

    Not later than 2 years after the date of the enactment of this Act, 
the Comptroller General of the United States shall submit to the 
Committee on Finance and the Committee on Appropriations of the Senate 
and the Committee on Ways and Means and the Committee on Appropriations 
of the House of Representatives a report assessing the effectiveness 
of--
            (1) the provisions of, and amendments made by, this Act; 
        and
            (2) the actions taken and procedures developed by the 
        Secretary of Commerce and the Commissioner responsible for U.S. 
        Customs and Border Protection pursuant to such provisions and 
        amendments to prevent circumvention and evasion of antidumping 
        and countervailing duty orders under title VII of the Tariff 
        Act of 1930 (19 U.S.C. 1671 et seq.).

SEC. 5. ALLOCATION OF U.S. CUSTOMS AND BORDER PROTECTION PERSONNEL.

    The Commissioner responsible for U.S. Customs and Border Protection 
shall, to the maximum extent practicable, 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 antidumping and countervailing duty orders 
        issued under title VII of the Tariff Act of 1930 (19 U.S.C. 
        1671 et seq.); and
            (2) assigns sufficient personnel with primary 
        responsibility for preventing the importation of merchandise in 
        a manner that evades antidumping and countervailing duty orders 
        to the ports of entry in the United States at which the 
        Commissioner determines the largest quantity of merchandise 
        imported in such a manner entered the United States during the 
        most recent 2-year period for which data are available.

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, the amendments made by this Act shall apply with 
respect to goods from Canada and Mexico.
                                 <all>