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:

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.