[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 891 Introduced in Senate (IS)]

114th CONGRESS
  1st Session
                                 S. 891

 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

                             March 26, 2015

 Mr. Brown (for himself, Mr. Graham, Mr. Franken, and Mrs. McCaskill) 
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 A PROCEEDING.

    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) Potential sources of information for adverse 
        inferences.--An adverse inference under paragraph (1)(A) may 
        include''; and
            (2) by adding at the end the following:
    ``(d) Judicial Review.--Notwithstanding any other provision of law, 
any determination made by the administering authority or the Commission 
in selecting the facts otherwise available or using an inference that 
is adverse to the interests of a party under subsection (b)(1)(A) shall 
not be subject to judicial review.''.

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.
                                    ``(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 as the Commission 
                                considers appropriate.''.

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 may be 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--
                                            ``(aa) is not affiliated 
                                        with an exporter or producer 
                                        who exported subject 
                                        merchandise during the period 
                                        covered by the review or 
                                        exported subject merchandise to 
                                        the United States during any 
                                        period, and
                                            ``(bb) demonstrates that 
                                        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 that are 
                                        relied upon as the basis for 
                                        requesting the review and the 
                                        calculation of an individual 
                                        dumping margin or individual 
                                        countervailing duty rate, 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 
                                sales in the United States by an 
                                exporter or producer 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 OF PROVISION BY IMPORTER OF CERTIFICATION BY 
              IMPORTER OR OTHER PARTY.

    (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 FOR CERTIFICATION BY IMPORTER OR OTHER PARTY.

    ``(a) Requirement.--
            ``(1) In general.--For imports of merchandise into the 
        customs territory of the United States, the administering 
        authority may require an importer--
                    ``(A) to provide a certification described in 
                paragraph (2) physically or by electronic means at the 
                time of entry or with the entry summary, or
                    ``(B) to otherwise demonstrate compliance with the 
                requirements for a certification described in paragraph 
                (2).
            ``(2) Certification described.--A certification described 
        in this paragraph is a certification by the importer of the 
        merchandise or another party, as required by the administering 
        authority, such as a certification that the merchandise is not 
        subject to an antidumping or countervailing duty under this 
        title.
            ``(3) Available upon request.--If a certification required 
        under paragraph (1) is required to be maintained by the 
        importer or another party, as determined by the administering 
        authority in consultation with the Commissioner responsible for 
        U.S. Customs and Border Protection (in this section referred to 
        as the `Commissioner'), the Commissioner or administering 
        authority may require that the importer or other party make the 
        certification available to the Commissioner or administering 
        authority upon request.
    ``(b) Penalties.--
            ``(1) Authority to collect cash deposits and to assess 
        duties.--If the administering authority requires an importer or 
        other party to provide a certification described in paragraph 
        (2) of subsection (a) for merchandise imported into the customs 
        territory of the United States pursuant to paragraph (1) of 
        that subsection, and the importer or other party does not 
        provide that certification or that certification contains any 
        false, misleading, or fraudulent statement or representation or 
        any material omission, the administering authority shall 
        instruct the Commissioner--
                    ``(A) to suspend liquidation of the entry;
                    ``(B) to require that the importer or other party 
                post a cash deposit at an amount equal to the 
                antidumping duty or countervailing duty applicable to 
                the merchandise; and
                    ``(C) to assess the rate of duty determined under 
                paragraph (2) upon liquidation or reliquidation of the 
                entry.
            ``(2) Other penalties.--If the administering authority 
        requires an importer or other party to provide a certification 
        described in paragraph (2) of subsection (a) for merchandise 
        imported into the customs territory of the United States 
        pursuant to paragraph (1) of that subsection, and the importer 
        or other party does not provide that certification or that 
        certification contains any false, misleading, or fraudulent 
        statement or representation or any material omission, 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 for certification by importer or other 
                            party.''.

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, reviews under section 751, and other 
                proceedings being conducted by the administering 
                authority as of the date of the determination.
                    ``(D) Such other factors relating to the timely 
                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.--
                    ``(A) In general.--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 an input for the 
                subject merchandise is subsidized or dumped.
                    ``(B) Prior investigations.--
                            ``(i) In general.--The administering 
                        authority has reason to believe or suspect 
                        under subparagraph (A) that an input for the 
                        subject merchandise is subsidized or dumped if 
                        an investigation has found broadly available 
                        export subsidies or specific instances of 
                        dumping or subsidies with respect to that input 
                        from a country or customs territory.
                            ``(ii) Further investigation.--If the 
                        administering authority makes a finding 
                        described in clause (i), the administering 
                        authority is not required to conduct further 
                        investigation with respect to that input for 
                        purposes of this paragraph.''.

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>