[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3524 Placed on Calendar Senate (PCS)]
Calendar No. 500
112th CONGRESS
2d Session
S. 3524
[Report No. 112-209]
To deter the evasion of antidumping and countervailing duty orders, and
for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 10, 2012
Mr. Baucus, from the Committee on Finance, reported the following
original bill; which was read twice and placed on the calendar
_______________________________________________________________________
A BILL
To deter 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 2012''.
SEC. 2. PROCEDURES FOR INVESTIGATING CLAIMS OF EVASION OF ANTIDUMPING
AND COUNTERVAILING DUTY ORDERS.
(a) In General.--The Tariff Act of 1930 is amended by inserting
after section 516A (19 U.S.C. 1516a) the following:
``SEC. 517. PROCEDURES FOR INVESTIGATING CLAIMS OF EVASION OF
ANTIDUMPING AND COUNTERVAILING DUTY ORDERS.
``(a) Definitions.--In this section:
``(1) Administering authority.--The term `administering
authority' has the meaning given that term in section 771(1).
``(2) Commissioner.--The term `Commissioner' means the
Commissioner responsible for U.S. Customs and Border
Protection, acting pursuant to the delegation by the Secretary
of the Treasury of the authority of the Secretary with respect
to customs revenue functions (as defined in section 415 of the
Homeland Security Act of 2002 (6 U.S.C. 215)).
``(3) Covered merchandise.--The term `covered merchandise'
means merchandise that is subject to--
``(A) an antidumping duty order issued under
section 736;
``(B) a finding issued under the Antidumping Act,
1921; or
``(C) a countervailing duty order issued under
section 706.
``(4) Enter; entry.--The terms `enter' and `entry' refer to
the entry, or withdrawal from warehouse for consumption, of
merchandise in the customs territory of the United States.
``(5) Evasion.--
``(A) In general.--Except as provided in
subparagraph (B), the term `evasion' refers to entering
covered merchandise into the customs territory of the
United States 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
merchandise.
``(B) Exception for clerical error.--
``(i) In general.--Except as provided in
clause (ii), the term `evasion' does not
include entering covered merchandise into the
customs territory of the United States by means
of--
``(I) a document or electronically
transmitted data or information,
written or oral statement, or act that
is false as a result of a clerical
error; or
``(II) an omission that results
from a clerical error.
``(ii) Patterns of negligent conduct.--If
the Commissioner determines that a person has
entered covered merchandise into the customs
territory of the United States by means of a
clerical error referred to in subclause (I) or
(II) of clause (i) and that the clerical error
is part of a pattern of negligent conduct on
the part of that person, the Commissioner may
determine, notwithstanding clause (i), that the
person has entered such covered merchandise
into the customs territory of the United States
through evasion.
``(iii) Electronic repetition of errors.--
For purposes of clause (ii), the mere
nonintentional repetition by an electronic
system of an initial clerical error does not
constitute a pattern of negligent conduct.
``(iv) Rule of construction.--A
determination by the Commissioner that a person
has entered covered merchandise into the
customs territory of the United States by means
of a clerical error referred to in subclause
(I) or (II) of clause (i) rather than through
evasion shall not be construed to excuse that
person from the payment of any duties
applicable to the merchandise.
``(b) Investigations.--
``(1) In general.--Not later than 10 business days after
receiving an allegation described in paragraph (2) or a
referral described in paragraph (3), the Commissioner shall
initiate an investigation if the Commissioner determines that
the information provided in the allegation or the referral, as
the case may be, reasonably suggests that covered merchandise
has been entered into the customs territory of the United
States through evasion.
``(2) Allegation described.--An allegation described in
this paragraph is an allegation that a person has entered
covered merchandise into the customs territory of the United
States through evasion that is--
``(A) filed with the Commissioner by a person that
is a producer in the United States of merchandise--
``(i) that is like, or in the absence of
like, most similar in characteristics and uses
with, such covered merchandise; or
``(ii) into which merchandise described in
clause (i) is incorporated; and
``(B) accompanied by information reasonably
available to the person that filed the allegation.
``(3) Referral described.--A referral described in this
paragraph is information submitted to the Commissioner by any
other Federal agency, including the Department of Commerce or
the United States International Trade Commission, that
reasonably suggests that a person has entered covered
merchandise into the customs territory of the United States
through evasion.
``(4) Consolidation of allegations and referrals.--
``(A) In general.--The Commissioner may consolidate
multiple allegations described in paragraph (2) and
referrals described in paragraph (3) into a single
investigation if the Commissioner determines it is
appropriate to do so.
``(B) Effect on timing requirements.--If the
Commissioner consolidates multiple allegations or
referrals into a single investigation under
subparagraph (A), the date on which the Commissioner
receives the first such allegation or referral shall be
used for purposes of the requirement under paragraph
(1) with respect to the timing of the initiation of the
investigation.
``(5) Information-sharing to protect health and safety.--
If, during the course of conducting an investigation under
paragraph (1) with respect to covered merchandise, the
Commissioner has reason to suspect that such covered
merchandise may pose a health or safety risk to consumers, the
Commissioner shall provide, as appropriate, information to the
appropriate Federal agencies for purposes of mitigating the
risk.
``(c) Determinations.--
``(1) In general.--Not later than 270 calendar days after
the date on which the Commissioner initiates an investigation
under subsection (b) with respect to covered merchandise, the
Commissioner shall make a determination, based on substantial
evidence, with respect to whether such covered merchandise was
entered into the customs territory of the United States through
evasion.
``(2) Authority to collect and verify additional
information.--In making a determination under paragraph (1)
with respect to covered merchandise, the Commissioner may
collect such additional information as is necessary to make the
determination through such methods as the Commissioner
considers appropriate, including by--
``(A) issuing a questionnaire with respect to such
covered merchandise to--
``(i) a person that filed an allegation
under paragraph (2) of subsection (b) that
resulted in the initiation of an investigation
under paragraph (1) of that subsection with
respect to such covered merchandise;
``(ii) a person alleged to have entered
such covered merchandise into the customs
territory of the United States through evasion;
``(iii) a person that is a foreign producer
or exporter of such covered merchandise; or
``(iv) the government of a country from
which such covered merchandise was exported;
and
``(B) conducting verifications, including on-site
verifications, of any relevant information.
``(3) Adverse inference.--If the Commissioner finds that a
person described in clause (i), (ii), or (iii) of paragraph
(2)(A) has failed to cooperate by not acting to the best of the
person's ability to comply with a request for information, the
Commissioner may, in making a determination under paragraph
(1), use an inference that is adverse to the interests of that
person in selecting from among the facts otherwise available to
make the determination.
``(4) Notification.--Not later than 5 business days after
making a determination under paragraph (1) with respect to
covered merchandise, the Commissioner--
``(A) shall provide to each person that filed an
allegation under paragraph (2) of subsection (b) that
resulted in the initiation of an investigation under
paragraph (1) of that subsection with respect to such
covered merchandise a notification of the determination
and may, in addition, include an explanation of the
basis for the determination; and
``(B) may provide to importers, in such manner as
the Commissioner determines appropriate, information
discovered in the investigation that the Commissioner
determines will help educate importers with respect to
importing merchandise into the customs territory of the
United States in accordance with all applicable laws
and regulations.
``(d) Effect of Determinations.--
``(1) In general.--If the Commissioner makes a
determination under subsection (c) that covered merchandise was
entered into the customs territory of the United States through
evasion, the Commissioner shall--
``(A)(i) suspend the liquidation of unliquidated
entries of such covered merchandise that are subject to
the determination and that enter on or after the date
of the initiation of the investigation under subsection
(b) with respect to such covered merchandise and on or
before the date of the determination; or
``(ii) if the Commissioner has already suspended
the liquidation of such entries pursuant to subsection
(e)(1), continue to suspend the liquidation of such
entries;
``(B) pursuant to the Commissioner's authority
under section 504(b)--
``(i) extend the period for liquidating
unliquidated entries of such covered
merchandise that are subject to the
determination and that entered before the date
of the initiation of the investigation; or
``(ii) if the Commissioner has already
extended the period for liquidating such
entries pursuant to subsection (e)(1), continue
to extend the period for liquidating such
entries;
``(C) notify the administering authority of the
determination and request that the administering
authority--
``(i) identify the applicable antidumping
or countervailing duty assessment rates for
entries described in subparagraphs (A) and (B);
or
``(ii) if no such assessment rate for such
an entry is available at the time, identify the
applicable cash deposit rate to be applied to
the entry, with the applicable antidumping or
countervailing duty assessment rate to be
provided as soon as that rate becomes
available;
``(D) require the posting of cash deposits and
assess duties on entries described in subparagraphs (A)
and (B) in accordance with the instructions received
from the administering authority under paragraph (2);
and
``(E) take such additional enforcement measures as
the Commissioner determines appropriate, such as--
``(i) initiating proceedings under section
592 or 596;
``(ii) implementing, in consultation with
the relevant Federal agencies, rule sets or
modifications to rules sets for identifying,
particularly through the Automated Targeting
System and the Automated Commercial
Environment, 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
deposit estimated duties at the time of entry;
and
``(iv) referring the record in whole or in
part to U.S. Immigration and Customs
Enforcement for civil or criminal
investigation.
``(2) Cooperation of administering authority.--
``(A) In general.--Upon receiving a notification
from the Commissioner under paragraph (1)(C), 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 the
administering authority are unable to determine the
producer or exporter of the merchandise with respect to
which a notification is made under paragraph (1)(C),
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-others' 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.
``(e) Interim Measures.--Not later than 90 calendar days after
initiating an investigation under subsection (b) with respect to
covered merchandise, the Commissioner shall decide based on the
investigation if there is a reasonable suspicion that such covered
merchandise was entered into the customs territory of the United States
through evasion and, if the Commissioner decides there is such a
reasonable suspicion, the Commissioner shall--
``(1) suspend the liquidation of each unliquidated entry of
such covered merchandise that entered on or after the date of
the initiation of the investigation;
``(2) pursuant to the Commissioner's authority under
section 504(b), extend the period for liquidating each
unliquidated entry of such covered merchandise that entered
before the date of the initiation of the investigation; and
``(3) pursuant to the Commissioner's authority under
section 623, take such additional measures as the Commissioner
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.
``(f) Administrative Review.--
``(1) In general.--Not later than 30 business days after
the Commissioner makes a determination under subsection (c)
with respect to whether covered merchandise was entered into
the customs territory of the United States through evasion, a
person determined to have entered such covered merchandise
through evasion or a person that filed an allegation under
paragraph (2) of subsection (b) that resulted in the initiation
of an investigation under paragraph (1) of that subsection with
respect to such covered merchandise may file an appeal with the
Commissioner for de novo review of the determination.
``(2) Timeline for review.--Not later than 60 business days
after an appeal of a determination is filed under paragraph
(1), the Commissioner shall complete the review of the
determination.
``(g) Judicial Review.--
``(1) In general.--Not later than 30 business days after
the Commissioner completes a review under subsection (f) of a
determination under subsection (c) with respect to whether
covered merchandise was entered into the customs territory of
the United States through evasion, a person determined to have
entered such covered merchandise through evasion or a person
that filed an allegation under paragraph (2) of subsection (b)
that resulted in the initiation of an investigation under
paragraph (1) of that subsection with respect to such covered
merchandise may commence a civil action in the United States
Court of International Trade by filing concurrently a summons
and complaint contesting any factual findings or legal
conclusions upon which the determination is based.
``(2) Standard of review.--In a civil action under this
subsection, the court shall hold unlawful any determination,
finding, or conclusion found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.
``(h) Rule of Construction With Respect to Other Civil and Criminal
Proceedings and Investigations.--No determination under subsection (c)
or action taken by the Commissioner pursuant to this section shall be
construed to limit the authority to carry out, or the scope of, any
other proceeding or investigation pursuant to any other provision of
Federal or State law, including sections 592 and 596.''.
(b) Conforming Amendment.--Section 1581(c) of title 28, United
States Code, is amended by inserting ``or 517'' after ``516A''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date that is 180 days after the date of the enactment of
this Act.
(d) Regulations.--Not later than the date that is 180 days after
the date of the enactment of this Act, the Secretary of the Treasury
shall prescribe such regulations as may be necessary to implement the
amendments made by this section.
(e) 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 section shall apply with respect to goods from
Canada and Mexico.
SEC. 3. ANNUAL REPORT ON PREVENTION AND INVESTIGATION OF EVASION OF
ANTIDUMPING AND COUNTERVAILING DUTY ORDERS.
(a) In General.--Not later than January 15 of each calendar year
that begins on or after the date that is 270 days after the date of the
enactment of this Act, the Commissioner, in consultation with the
Secretary of Commerce and the Assistant Secretary for U.S. Immigration
and Customs Enforcement, shall submit to the Committee on Finance of
the Senate and the Committee on Ways and Means of the House of
Representatives a report on the efforts being taken to prevent and
investigate the entry of covered merchandise into the customs territory
of the United States through evasion.
(b) Contents.--Each report required under subsection (a) shall
include--
(1) for the calendar year preceding the submission of the
report--
(A) a summary of the efforts of U.S. Customs and
Border Protection to prevent and investigate the entry
of covered merchandise into the customs territory of
the United States through evasion;
(B) the number of allegations of evasion received
under subsection (b) of section 517 of the Tariff Act
of 1930 (as added by section 2 of this Act) and the
number of such allegations resulting in investigations
by U.S. Customs and Border Protection or any other
agency;
(C) a summary of investigations initiated under
subsection (b) of such section 517, including--
(i) the number and nature of the
investigations initiated, conducted, and
completed; and
(ii) the resolution of each completed
investigation;
(D) the number of investigations initiated under
that subsection not completed during the time provided
for making determinations under subsection (c) of such
section 517 and an explanation for why the
investigations could not be completed on time;
(E) the amount of additional duties that were
determined to be owed as a result of such
investigations, the amount of such duties that were
collected, and, for any such duties not collected, a
description of the reasons those duties were not
collected;
(F) with respect to each such investigation that
led to the imposition of a penalty, the amount of the
penalty;
(G) an identification of the countries of origin of
covered merchandise determined under subsection (c) of
such section 517 to be entered into the customs
territory of the United States through evasion;
(H) the amount of antidumping and countervailing
duties collected as a result of any investigations or
other actions by U.S. Customs and Border Protection or
any other agency;
(I) a description of the allocation of personnel
and other resources of U.S. Customs and Border
Protection and U.S. Immigration and Customs Enforcement
to prevent and investigate evasion, including any
assessments conducted regarding the allocation of such
personnel and resources; and
(J) a description of training conducted to increase
expertise and effectiveness in the prevention and
investigation of evasion; and
(2) a description of U.S. Customs and Border Protection
processes and procedures to prevent and investigate evasion,
including--
(A) the specific guidelines, policies, and
practices used by U.S. Customs and Border Protection to
ensure that allegations of evasion are promptly
evaluated and acted upon in a timely manner;
(B) an evaluation of the efficacy of those
guidelines, policies, and practices;
(C) an identification of any changes since the last
report required by this section, if any, that have
materially improved or reduced the effectiveness of
U.S. Customs and Border Protection in preventing and
investigating evasion;
(D) a description of the development and
implementation of policies for the application of
single entry and continuous bonds for entries of
covered merchandise to sufficiently protect the
collection of antidumping and countervailing duties
commensurate with the level of risk of not collecting
those duties;
(E) a description of the processes and procedures
for increased cooperation and information sharing with
the Department of Commerce, U.S. Immigration and
Customs Enforcement, and any other relevant Federal
agencies to prevent and investigate evasion; and
(F) an identification of any recommended policy
changes for other Federal agencies or legislative
changes to improve the effectiveness of U.S. Customs
and Border Protection in preventing and investigating
evasion.
(c) Public Summary.--The Commissioner shall make available to the
public a summary of the report required by subsection (a) that
includes, at a minimum--
(1) a description of the type of merchandise with respect
to which investigations were initiated under subsection (b) of
section 517 of the Tariff Act of 1930 (as added by section 2 of
this Act);
(2) the amount of additional duties determined to be owed
as a result of such investigations and the amount of such
duties that were collected;
(3) an identification of the countries of origin of covered
merchandise determined under subsection (c) of such section 517
to be entered into the customs territory of the United States
through evasion; and
(4) a description of the types of measures used by U.S.
Customs and Border Protection to prevent and investigate
evasion.
(d) Definitions.--In this section, the terms ``Commissioner'',
``covered merchandise'', and ``evasion'' have the meanings given those
terms in section 517(a) of the Tariff Act of 1930 (as added by section
2 of this Act).
Calendar No. 500
112th CONGRESS
2d Session
S. 3524
[Report No. 112-209]
_______________________________________________________________________
A BILL
To deter the evasion of antidumping and countervailing duty orders, and
for other purposes.
_______________________________________________________________________
September 10, 2012
Read twice and placed on the calendar