American Trade Enforcement Effectiveness Act

Summary: American Trade Enforcement Effectiveness Act  This bill amends the Tariff Act of 1930 with respect to the administration and enforcement of antidumping (AD) and countervailing duty (CVD) orders. Neither the administering authority (the Secretary of Commerce, or another U.S. officer given the responsibility by law) nor the U.S. International Trade Commission (USITC), as the case may be, is 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 it had complied with a request for information.  The USITC shall not determine that there is no material injury or threat of material injury to a domestic industry from imports merely because that industry is profitable or its performance has recently improved.  This bill includes gross profits, operating profits, net profits, and ability to service debt among the relevant economic factors the USITC must evaluate in examining the impact of imports of merchandise on a domestic industry in material injury determinations. The administering authority may use another calculation methodology than the ordinary one in determining the constructed value of subject merchandise being imported at less than fair value if a particular market situation exists where the cost of materials and fabrication or other processing of any kind does not accurately reflect the cost production in the ordinary course of trade.  This bill revises requirements regarding administering authority determinations as to whether there are reasonable grounds to believe or suspect that a foreign like product is being sold at less than cost of production in AD investigations or reviews. The administering authority in making its determinations, however, shall request information necessary to calculate the constructed value and cost of production of subject merchandise in such investigations or reviews. The administering authority, in valuing the factors of production to determine the normal value of merchandise exported from a nonmarket economy country, may disregard price or cost values without further investigation if it determines that broadly available export subsidies existed or instances of subsidization occurred with respect to those price or cost values or if they were subject to an AD order.  Certain factors are specified for the administering authority to consider when deciding whether it would be unduly burdensome in CVD or AD investigations and reviews to examine voluntary responses from exporters or producers which are not the subjects of the investigation or review.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``American Trade Enforcement 
Effectiveness 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'';
            (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 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. 3. 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. 4. 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. 5. 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. 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 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. 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.