[Congressional Record Volume 161, Number 76 (Monday, May 18, 2015)]
[Senate]
[Pages S2976-S2977]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1252. Mr. BROWN (for himself, Mr. Portman, Mrs. McCaskill, Mr.
Graham, Mr. Bennet, Mr. Burr, Mr. Casey, Mr. Donnelly, Mr. Franken, Ms.
Klobuchar, and Mrs. Capito) submitted an amendment intended to be
proposed to amendment SA 1221 proposed by Mr. Hatch to the bill H.R.
1314, to amend the Internal Revenue Code of 1986 to provide for a right
to an administrative appeal relating to adverse determinations of tax-
exempt status of certain organizations; which was ordered to lie on the
table; as follows:
At the end, add the following:
TITLE III--AMENDMENTS TO ANTIDUMPING AND COUNTERVAILING DUTY LAWS
SEC. 301. 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'';
(2) in subsection (c)--
(A) by striking ``Corroboration of Secondary Information.--
When the'' and inserting the following: ``Corroboration of
Secondary Information.--
``(1) In general.--Except as provided in paragraph (2),
when the''; and
(B) by adding at the end the following:
``(2) Exception.--The administrative authority and the
Commission shall not be required to corroborate any dumping
margin
[[Page S2977]]
or countervailing duty applied in a separate segment of the
same proceeding.''; 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 the facts otherwise
available, the administering authority may--
``(A) in the case of a countervailing duty proceeding--
``(i) use a countervailable subsidy rate applied for the
same or similar program in a countervailing duty proceeding
involving the same country, or
``(ii) if there is no same or similar program, use a
countervailable subsidy rate for a subsidy program from a
proceeding that the administering authority considers
reasonable to use, and
``(B) in the case of an antidumping duty proceeding, use
any dumping margin from any segment of the proceeding under
the applicable antidumping order.
``(2) Discretion to apply highest rate.--In carrying out
paragraph (1), the administering authority may apply any of
the countervailable subsidy rates or dumping margins
specified under that paragraph, including the highest such
rate or margin, based on the evaluation by the administering
authority of the situation that resulted in the administering
authority using an adverse inference in selecting among the
facts otherwise available.
``(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 the 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 an alleged commercial reality of the interested
party.''.
SEC. 302. DEFINITION OF MATERIAL INJURY.
(a) Effect of Profitability of Domestic Industries.--
Section 771(7) of the Tariff Act of 1930 (19 U.S.C. 1677(7))
is amended by adding at the end the following:
``(J) Effect of profitability.--The Commission shall not
determine that there is no material injury or threat of
material injury to an industry in the United States merely
because that industry is profitable or because the
performance of that industry has recently improved.''.
(b) Evaluation of Impact on Domestic Industry in
Determination of Material Injury.--Subclause (I) of section
771(7)(C)(iii) of the Tariff Act of 1930 (19 U.S.C.
1677(7)(C)(iii)) is amended to read as follows:
``(I) 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,''.
(c) Captive Production.--Section 771(7)(C)(iv) of the
Tariff Act of 1930 (19 U.S.C. 1677(7)(C)(iv)) is amended--
(1) in subclause (I), by striking the comma and inserting
``, and'';
(2) in subclause (II), by striking ``, and'' and inserting
a comma; and
(3) by striking subclause (III).
SEC. 303. PARTICULAR MARKET SITUATION.
(a) Definition of Ordinary Course of Trade.--Section
771(15) of the Tariff Act of 1930 (19 U.S.C. 1677(15)) is
amended by adding at the end the following:
``(C) Situations in which the administering authority
determines that the particular market situation prevents a
proper comparison with the export price or constructed export
price.''.
(b) Definition of Normal Value.--Section
773(a)(1)(B)(ii)(III) of the Tariff Act of 1930 (19 U.S.C.
1677b(a)(1)(B)(ii)(III)) is amended by striking ``in such
other country.''.
(c) Definition of Constructed Value.--Section 773(e) of the
Tariff Act of 1930 (19 U.S.C. 1677b(e)) is amended--
(1) in paragraph (1), by striking ``business'' and
inserting ``trade''; and
(2) By striking the flush text at the end and inserting the
following:
``For purposes of paragraph (1), if a particular market
situation exists such that the cost of materials and
fabrication or other processing of any kind does not
accurately reflect the cost of production in the ordinary
course of trade, the administering authority may use another
calculation methodology under this subtitle or any other
calculation methodology. For purposes of paragraph (1), the
cost of materials shall be determined without regard to any
internal tax in the exporting country imposed on such
materials or their disposition that is remitted or refunded
upon exportation of the subject merchandise produced from
such materials.''.
SEC. 304. DISTORTION OF PRICES OR COSTS.
(a) Investigation of Below-cost Sales.--Section 773(b)(2)
of the Tariff Act of 1930 (19 U.S.C. 1677b(b)(2)) is amended
by striking subparagraph (A) and inserting the following:
``(A) Reasonable grounds to believe or suspect.--
``(i) Review.--In a review conducted under section 751
involving a specific exporter, there are reasonable grounds
to believe or suspect that sales of the foreign like product
have been made at prices that are less than the cost of
production of the product if the administering authority
disregarded some or all of the exporter's sales pursuant to
paragraph (1) in the investigation or, if a review has been
completed, in the most recently completed review.
``(ii) Requests for information.--In an investigation
initiated under section 732 or a review conducted under
section 751, the administering authority shall request
information necessary to calculate the constructed value and
cost of production under subsections (e) and (f) to determine
whether there are reasonable grounds to believe or suspect
that sales of the foreign like product have been made at
prices that represent less than the cost of production of the
product.''.
(b) Prices and Costs in Nonmarket Economies.--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 without further
investigation if the administering authority has determined
that broadly available export subsidies existed or particular
instances of subsidization occurred with respect to those
price or cost values or if those price or cost values were
subject to an antidumping order.''.
SEC. 305. 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 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. 306. 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 title shall apply with respect to goods from
Canada and Mexico.
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