[Congressional Record Volume 161, Number 76 (Monday, May 18, 2015)]
[Senate]
[Pages S2990-S2992]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1315. Mr. BLUNT 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--EVASION OF ANTIDUMPING AND COUNTERVAILING DUTY ORDERS
SEC. 301. SHORT TITLE.
This title may be cited as the ``Enforcing Orders and
Reducing Customs Evasion Act of 2015''.
SEC. 302. 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.
``(6) Interested party.--
``(A) In general.--The term `interested party' means--
``(i) a manufacturer, producer, or wholesaler in the United
States of a domestic like product;
``(ii) a certified union or recognized union or group of
workers that is representative of an industry engaged in the
manufacture, production, or wholesale in the United States of
a domestic like product;
``(iii) a trade or business association a majority of whose
members manufacture, produce, or wholesale a domestic like
product in the United States;
``(iv) an association, a majority of whose members is
composed of interested parties described in clause (i), (ii),
or (iii) with respect to a domestic like product; and
``(v) if the covered merchandise is a processed
agricultural product, as defined in section 771(4)(E), a
coalition or trade association that is representative of
either--
``(I) processors;
``(II) processors and producers; or
``(III) processors and growers,
but this clause shall cease to have effect if the United
States Trade Representative notifies the administering
authority and the Commission that the application of this
clause is inconsistent with the international obligations of
the United States.
``(B) Domestic like product.--For purposes of subparagraph
(A), the term `domestic like product' means a product that is
like, or in the absence of like, most similar in
characteristics and uses with, covered 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 an interested party;
and
``(B) accompanied by information reasonably available to
the party 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.
``(6) Technical assistance and advice.--
``(A) In general.--Upon request, the Commissioner shall
provide technical assistance and advice to eligible small
businesses to enable such businesses to prepare and submit
allegations described in paragraph (2), except that the
Commissioner may deny assistance if the Commissioner
concludes that the allegation, if submitted, would not lead
to the initiation of an investigation under this subsection
or any other action to address the allegation.
``(B) Eligible small business defined.--
``(i) In general.--In this paragraph, the term `eligible
small business' means any business concern that the
Commissioner determines, due to its small size, has neither
adequate internal resources nor the financial ability to
obtain qualified outside assistance in preparing and filing
allegations described in paragraph (2).
``(ii) Non-reviewability.--The determination of the
Commissioner regarding whether a business concern is an
eligible small business for purposes of this paragraph is not
reviewable by any other agency or by any court.
``(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--
[[Page S2991]]
``(i) an interested party 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
party or person described in clause (i), (ii), or (iii) of
paragraph (2)(A) has failed to cooperate by not acting to the
best of the party or 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 party or 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 interested party 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 authorized
under section 13031(f) of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (19 U.S.C. 58c(f)), 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 an interested party 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 an
interested party 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. 303. 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
[[Page S2992]]
enactment of this Act, the Commissioner, in consultation with
the Secretary of Commerce and the Director of 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 302 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 processes and procedures of U.S.
Customs and Border Protection 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
302 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 ``covered
merchandise'' and ``evasion'' have the meanings given those
terms in section 517(a) of the Tariff Act of 1930, as added
by section 302 of this Act.
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