[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2994 Introduced in Senate (IS)]

113th CONGRESS
  2d Session
                                S. 2994

 To amend the Tariff Act of 1930 to facilitate the administration and 
  enforcement of antidumping and countervailing duty orders, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 10, 2014

   Mr. Brown introduced the following bill; which was read twice and 
                  referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
 To amend the Tariff Act of 1930 to facilitate the administration and 
  enforcement 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 ``Leveling the Playing Field Act''.

SEC. 2. CONSEQUENCES OF FAILURE TO COOPERATE WITH A REQUEST FOR 
              INFORMATION IN AN INVESTIGATION.

    Section 776 of the Tariff Act of 1930 (19 U.S.C. 1677e) is 
amended--
            (1) in subsection (b)--
                    (A) by redesignating paragraphs (1) through (4) as 
                subparagraphs (A) through (D), respectively, and by 
                moving such subparagraphs, as so redesignated, 2 ems to 
                the right;
                    (B) by striking ``Adverse Inferences.--If'' and 
                inserting the following: ``Adverse Inferences.--
            ``(1) In general.--If'';
                    (C) by striking ``under this title, may use'' and 
                inserting the following: ``under this title--
                    ``(A) may use''; and
                    (D) by striking ``facts otherwise available. Such 
                adverse inference may include'' and inserting the 
                following: ``facts otherwise available; and
                    ``(B) is not required to determine, or make any 
                adjustments to, a countervailable subsidy rate or 
                weighted average dumping margin based on any 
                assumptions about information the interested party 
                would have provided if the interested party had 
                complied with the request for information.
            ``(2) Adverse inferences.--An adverse inference under 
        paragraph (1)(A) may include'';
            (2) in subsection (c)--
                    (A) by striking ``Corroboration of Secondary 
                Information.--When the'' and inserting the following: 
                ``Corroboration of Secondary Information.--
            ``(1) In general.--When the''; and
                    (B) by adding at the end the following:
            ``(2) Exceptions.--
                    ``(A) Information provided by party.--If the 
                administrative authority or the Commission uses an 
                inference that is adverse to the interests of a party 
                under subsection (b)(1)(A), information provided by 
                that party, including any dumping margin or subsidy 
                rate calculated based on such information, shall not be 
                considered secondary information under this subsection 
                and shall not be subject to corroboration under 
                paragraph (1), even if the information was submitted by 
                that party in a separate proceeding under this title or 
                a separate segment of the same proceeding.
                    ``(B) Information relating to dumping margins and 
                subsidy rates.--If the administering authority uses a 
                countervailable subsidy rate or dumping margin in 
                accordance with subsection (d)(1), the administering 
                authority is not required to corroborate information 
                relating to that rate or margin under paragraph (1) if 
                that rate or margin was calculated, in whole or in 
                part, using information--
                            ``(i) submitted by an interested party 
                        described in subparagraph (A) or (B) of section 
                        771(9), and
                            ``(ii) certified by that interested party 
                        as accurate and complete to the best of that 
                        interested party's knowledge under section 
                        782(b).''; and
            (3) by adding at the end the following:
    ``(d) Subsidy Rates and Dumping Margins in Adverse Inference 
Determinations.--
            ``(1) In general.--If the administering authority uses an 
        inference that is adverse to the interests of a party under 
        subsection (b)(1)(A) in selecting among facts otherwise 
        available, the administering authority may--
                    ``(A) in the case of a countervailing duty 
                proceeding, use a subsidy rate--
                            ``(i) calculated with respect to a subsidy 
                        program involved in the proceeding that is the 
                        same or similar to the subsidy program for 
                        which a determination is to be made under this 
                        section, or, in the absence of such a program, 
                        any other subsidy program involved in the 
                        proceeding,
                            ``(ii) calculated in another countervailing 
                        duty proceeding with respect to another subsidy 
                        program implemented by the country that is 
                        implementing the subsidy program for which a 
                        determination is to be made under this section 
                        unless the administering authority has evidence 
                        that exporters or producers of the subject 
                        merchandise could not have used such other 
                        subsidy program, or
                            ``(iii) alleged in a petition filed under 
                        section 702(b) that was relied on by the 
                        administering authority to initiate the 
                        countervailing duty investigation, and
                    ``(B) in the case of an antidumping duty 
                proceeding, use--
                            ``(i) a dumping margin based on any 
                        individual sale of the subject merchandise 
                        calculated with respect to any exporter or 
                        producer involved in the proceeding during the 
                        investigation or review,
                            ``(ii) an individual weighted average 
                        dumping margin calculated with respect to any 
                        exporter or producer involved in the proceeding 
                        during the investigation or a review,
                            ``(iii) any dumping margin alleged in a 
                        petition filed under section 732(b) that was 
                        relied on by the administering authority to 
                        initiate the antidumping duty investigation, or
                            ``(iv) any dumping margin found in another 
                        antidumping duty proceeding with respect to a 
                        class or kind of merchandise that is the same 
                        or similar to and from the same country as 
                        subject merchandise involved in the proceeding.
            ``(2) Discretion to apply highest rate.--The administering 
        authority has the discretion under paragraph (1), in selecting 
        from among facts otherwise available, to apply any of the 
        countervailable subsidy rates or dumping margins specified 
        under that paragraph, including the highest such rate or 
        margin.
            ``(3) No obligation to make certain estimates or address 
        certain claims.--If the administering authority uses an adverse 
        inference under subsection (b)(1)(A) in selecting among facts 
        otherwise available, the administering authority is not 
        required, for purposes of subsection (c) or for any other 
        purpose--
                    ``(A) to estimate what the countervailable subsidy 
                rate or dumping margin would have been if the 
                interested party found to have failed to cooperate 
                under subsection (b)(1) had cooperated, or
                    ``(B) to demonstrate that the countervailable 
                subsidy rate or dumping margin used by the 
                administering authority reflects the commercial reality 
                of the interested party.
            ``(4) Rule of construction.--Nothing in this subsection 
        shall be construed to limit the discretion of the administering 
        authority to use any other countervailable subsidy rate or 
        dumping margin not specified in paragraph (1), subject to the 
        corroboration requirements of subsection (c).''.

SEC. 3. EVALUATION OF IMPACT ON DOMESTIC INDUSTRY IN DETERMINATION OF 
              MATERIAL INJURY.

    Section 771(7)(C) of the Tariff Act of 1930 (19 U.S.C. 1677(7)(C)) 
is amended by striking clause (iii) and inserting the following:
                            ``(iii) Impact on affected domestic 
                        industry.--
                                    ``(I) In general.--In examining the 
                                impact required to be considered under 
                                subparagraph (B)(i)(III), the 
                                Commission shall evaluate all relevant 
                                economic factors that have a bearing on 
                                the state of the industry in the United 
                                States, including--
                                            ``(aa) actual and potential 
                                        decline in output, sales, 
                                        market share, gross profits, 
                                        operating profits, net profits, 
                                        ability to service debt, 
                                        productivity, return on 
                                        investments, return on assets, 
                                        and utilization of capacity,
                                            ``(bb) factors affecting 
                                        domestic prices,
                                            ``(cc) actual and potential 
                                        negative effects on cash flow, 
                                        inventories, employment, wages, 
                                        growth, ability to raise 
                                        capital, and investment,
                                            ``(dd) actual and potential 
                                        negative effects on the 
                                        existing development and 
                                        production efforts of the 
                                        domestic industry, including 
                                        efforts to develop a derivative 
                                        or more advanced version of the 
                                        domestic like product, and
                                            ``(ee) in a proceeding 
                                        under subtitle B, the magnitude 
                                        of the margin of dumping.
                                    ``(II) Evaluation of economic 
                                factors in context.--
                                            ``(aa) In general.--The 
                                        Commission shall evaluate all 
                                        relevant economic factors 
                                        described in subclause (I) 
                                        within the context of the 
                                        business cycle and conditions 
                                        of competition that are 
                                        distinct to the affected 
                                        industry.
                                            ``(bb) Industry 
                                        performance.--The fact that the 
                                        performance of the affected 
                                        industry has improved during 
                                        the period of investigation 
                                        shall not preclude a finding of 
                                        material injury or threat of 
                                        material injury if the 
                                        improvement in performance has 
                                        been affected by imports of the 
                                        subject merchandise.
                                    ``(III) Effect of recession.--In 
                                the case of an investigation initiated 
                                by petition, if the National Bureau of 
                                Economic Research or another government 
                                agency responsible for business cycle 
                                evaluation declares that a recession 
                                began at any time during the 3-year 
                                period preceding the date on which the 
                                petition was filed, the Commission may, 
                                if timely requested by an interested 
                                party, extend its normal period of 
                                investigation to ensure that the period 
                                begins at least 365 days before the 
                                beginning of the recession to ensure 
                                that the condition of the affected 
                                industry can be appropriately assessed 
                                in relation to the business cycle.''.

SEC. 4. DETERMINATION OF DUTIES FOR NEW EXPORTERS AND PRODUCERS BASED 
              ON BONA FIDE UNITED STATES SALES.

    Section 751(a)(2)(B) of the Tariff Act of 1930 (19 U.S.C. 
1675(a)(2)(B)) is amended--
            (1) by striking clause (iii);
            (2) by redesignating clause (iv) as clause (iii); and
            (3) by adding at the end the following:
                            ``(iv) Bona fide united states sales.--
                                    ``(I) Eligibility for individual 
                                margin or rate.--An exporter or 
                                producer is eligible for an individual 
                                weighted average dumping margin or 
                                individual countervailing duty rate 
                                established in a review conducted under 
                                clause (i) only if that exporter or 
                                producer demonstrates that all sales of 
                                subject merchandise by that exporter or 
                                producer in the United States or for 
                                exportation to the United States during 
                                the period covered by the review are--
                                            ``(aa) bona fide, and
                                            ``(bb) sold to a person 
                                        that is not affiliated with 
                                        that exporter or producer.
                                    ``(II) Elements of bona fide 
                                determination.--In determining whether 
                                the sales of an exporter or producer in 
                                the United States are bona fide for 
                                purposes of subclause (I)(aa), the 
                                administering authority shall consider, 
                                depending on the circumstances 
                                surrounding such sales--
                                            ``(aa) the prices of such 
                                        sales,
                                            ``(bb) whether such sales 
                                        were made in commercial 
                                        quantities,
                                            ``(cc) the timing of such 
                                        sales,
                                            ``(dd) the expenses arising 
                                        from such sales,
                                            ``(ee) whether the subject 
                                        merchandise involved in such 
                                        sales was resold in the United 
                                        States at a profit,
                                            ``(ff) whether such sales 
                                        were made on an arms-length 
                                        basis, and
                                            ``(gg) any other factor the 
                                        administering authority 
                                        considers to be relevant with 
                                        respect to whether such sales 
                                        are, or are not, likely to be 
                                        typical of sales the exporter 
                                        or producer will make after 
                                        completion of the review.''.

SEC. 5. REQUIREMENT THAT CERTIFICATION BY IMPORTER AND EXPORTER 
              ACCOMPANY CERTAIN MERCHANDISE UPON ENTRY.

    (a) In General.--Subtitle D of title VII of the Tariff Act of 1930 
(19 U.S.C. 1677 et seq.) is amended by adding at the end the following:

``SEC. 784. REQUIREMENT THAT CERTIFICATION BY IMPORTER AND EXPORTER 
              ACCOMPANY CERTAIN MERCHANDISE UPON ENTRY.

    ``(a) Requirement.--
            ``(1) In general.--In any case in which the administering 
        authority requires that a certification described in paragraph 
        (2) accompany imports of merchandise, the Commissioner 
        responsible for U.S. Customs and Border Protection (in this 
        section referred to as the `Commissioner') shall require the 
        merchandise to be accompanied by that certification upon entry 
        into the customs territory of the United States.
            ``(2) Certification described.--A certification described 
        in this paragraph is a certification, as required by the 
        administering authority, by the importer or exporter of the 
        merchandise that the merchandise is not subject to a duty under 
        this title because the merchandise does not fall within the 
        scope of any antidumping or countervailing duty order.
    ``(b) Authority To Assess Highest Rate of Duty.--If a certification 
described in paragraph (2) of subsection (a) is required to accompany 
the merchandise upon entry into the customs territory of the United 
States pursuant to paragraph (1) of that subsection, and that 
certification does not accompany the merchandise or a certification 
that contains any materially false, fictitious, or fraudulent statement 
or representation or any material omission accompanies the merchandise, 
the merchandise shall be liquidated or reliquidated at the highest rate 
of antidumping or countervailing duty applicable to the merchandise.
    ``(c) Penalties.--If a certification described in paragraph (2) of 
subsection (a) is required to accompany the merchandise upon entry into 
the customs territory of the United States pursuant to paragraph (1) of 
that subsection, and that certification does not accompany the 
merchandise or a certification that contains any materially false, 
fictitious, or fraudulent statement or representation or any material 
omission accompanies the merchandise, the importer of the merchandise 
may be subject to a penalty pursuant to section 592 of this Act, 
section 1001 of title 18, United States Code, or any other applicable 
provision of law.''.
    (b) Clerical Amendment.--The table of contents for title VII of the 
Tariff Act of 1930 is amended by inserting after the item relating to 
section 783 the following:

``Sec. 784. Requirement that certification by importer and exporter 
                            accompany certain merchandise upon 
                            entry.''.

SEC. 6. REDUCTION IN BURDEN ON DEPARTMENT OF COMMERCE BY REDUCING THE 
              NUMBER OF VOLUNTARY RESPONDENTS.

    Section 782(a) of the Tariff Act of 1930 (19 U.S.C. 1677m(a)) is 
amended--
            (1) in paragraph (1), by redesignating subparagraphs (A) 
        and (B) as clauses (i) and (ii), respectively, and by moving 
        such clauses, as so redesignated, 2 ems to the right;
            (2) by redesignating paragraphs (1) and (2) as 
        subparagraphs (A) and (B), respectively, and by moving such 
        subparagraphs, as so redesignated, 2 ems to the right;
            (3) by striking ``Investigations and Reviews.--In'' and 
        inserting the following: ``Investigations and Reviews.--
            ``(1) In general.--In'';
            (4) in paragraph (1), as designated by paragraph (3), by 
        amending subparagraph (B), as redesignated by paragraph (2), to 
        read as follows:
                    ``(B) the number of exporters or producers subject 
                to the investigation or review is not so large that any 
                additional individual examination of such exporters or 
                producers would be unduly burdensome to the 
                administering authority and inhibit the timely 
                completion of the investigation or review.''; and
            (5) by adding at the end the following:
            ``(2) Determination of unduly burdensome.--In determining 
        if an individual examination under paragraph (1)(B) would be 
        unduly burdensome, the administering authority may consider the 
        following:
                    ``(A) The complexity of the issues or information 
                presented in the proceeding, including questionnaires 
                and any responses thereto.
                    ``(B) Any prior experience of the administering 
                authority in the same or similar proceeding.
                    ``(C) The total number of investigations under 
                subtitle A or B and reviews under section 751(a) being 
                conducted by the administering authority as of the date 
                of the determination.
                    ``(D) The availability of staff and other resources 
                considered necessary by the administering authority for 
                the timely and accurate completion of each such 
                investigation and review.
                    ``(E) Such other factors relating to the timely and 
                accurate completion of each such investigation and 
                review as the administering authority considers 
                appropriate.''.

SEC. 7. CLARIFICATION OF DISCRETION OF SECRETARY OF COMMERCE TO 
              DISREGARD CERTAIN PRICE OR COST VALUES IN CALCULATION OF 
              NORMAL VALUE.

    Section 773(c) of the Tariff Act of 1930 (19 U.S.C. 1677b(c)) is 
amended by adding at the end the following:
            ``(5) Discretion to disregard certain price or cost 
        values.--In valuing the factors of production under paragraph 
        (1) for the subject merchandise, the administering authority 
        may disregard price or cost values if the administering 
        authority has reason to believe or suspect that the subject 
        merchandise is being subsidized or dumped, without 
        investigating and determining that subsidization or dumping has 
        occurred.''.

SEC. 8. CLARIFICATION OF FACTORS FOR DETERMINING WHETHER A COUNTRY IS A 
              NONMARKET ECONOMY COUNTRY.

    Section 771(18)(B) of the Tariff Act of 1930 (19 U.S.C. 
1677(18)(B)) is amended--
            (1) in clause (v), by striking ``and'' at the end;
            (2) by redesignating clause (vi) as clause (vii); and
            (3) by inserting after clause (v) the following:
                            ``(vi) the extent to which the government 
                        of the foreign country enforces and administers 
                        its laws, legal and administrative procedures, 
                        and other policies in an open and transparent 
                        manner that affords all parties, whether 
                        foreign or domestic, due process and equal and 
                        non-discriminatory treatment under those laws, 
                        procedures, and policies, and''.

SEC. 9. 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.
                                 <all>