I 

112TH CONGRESS 

2D SESSION H. R. 5708 

To prevent the evasion of antidumping and countervailing duty orders, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 10, 2012 

Mr. BOUSTANY (for himself and Mr. RICHMOND) introduced the following bill; 

which was referred to the Committee on Ways and Means 

A BILL 

To prevent the evasion of antidumping and countervailing 

duty orders, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Preventing Recurring Trade Evasion and Circumvention 

6 Act’’ or ‘‘PROTECT Act’’. 

7 (b) TABLE OF CONTENTS.—The table of contents for 

8 this Act is as follows: 

Sec. 1. Short title and table of contents. 

Sec. 2. Definitions. 

Sec. 3. Application to Canada and Mexico. 


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TITLE I—ACTIONS RELATING TO ENFORCEMENT OF TRADE 

REMEDY LAWS 

Sec. 101. Trade Remedy Law Enforcement Division. 

Sec. 102. Collection of information on evasion of trade remedy laws. 

Sec. 103. Access to information. 

Sec. 104. Cooperation with foreign countries on preventing evasion of trade 

remedy laws. 

Sec. 105. Trade negotiating objectives. 

TITLE II—OTHER MATTERS 

Sec. 201. Allocation and training of personnel. 

Sec. 202. Annual report on prevention of evasion of antidumping and countervailing duty orders. 

Sec. 203. Addressing circumvention by new shippers. 

1 SEC. 2. DEFINITIONS. 

2 In this Act: 

3 (1) APPROPRIATE CONGRESSIONAL COMMIT4 TEES.—The term ‘‘appropriate congressional com5 mittees’’ means— 

6 (A) the Committee on Finance and the 

7 Committee on Appropriations of the Senate; 

8 and 

9 (B) the Committee on Ways and Means 

10 and the Committee on Appropriations of the 

11 House of Representatives. 

12 (2) COMMISSIONER.—The term ‘‘Commis13 sioner’’ means the Commissioner responsible for 

14 U.S. Customs and Border Protection. 

15 (3) COVERED MERCHANDISE.—The term ‘‘cov16 ered merchandise’’ means merchandise that is sub17 ject to— 


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1 (A) a countervailing duty order issued 

2 under section 706 of the Tariff Act of 1930; or 

3 (B) an antidumping duty order issued 

4 under section 736 of the Tariff Act of 1930. 

5 (4) ELIGIBLE SMALL BUSINESS.— 

6 (A) IN GENERAL.—The term ‘‘eligible 

7 small business’’ means any business concern 

8 which, in the Commissioner’s judgment, due to 

9 its small size, has neither adequate internal re10 sources nor financial ability to obtain qualified 

11 outside assistance in preparing and submitting 

12 for consideration allegations of evasion. 

13 (B) NON-REVIEWABILITY.—Any agency 

14 decision regarding whether a business concern 

15 is an eligible small business for purposes of sec16 tion 101(b)(3) is not reviewable by any other 

17 agency or by any court. 

18 (5) ENTER; ENTRY.—The terms ‘‘enter’’ and 

19 ‘‘entry’’ refer to the entry, or withdrawal from ware20 house for consumption, in the customs territory of 

21 the United States. 

22 (6) EVADE; EVASION.—The terms ‘‘evade’’ and 

23 ‘‘evasion’’ refer to entering covered merchandise into 

24 the customs territory of the United States by means 

25 of any document or electronically transmitted data 


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1 or information, written or oral statement, or act that 

2 is material and false, or any omission that is mate3 rial, and that results in any cash deposit or other se4 curity or any amount of applicable antidumping or 

5 countervailing duties being reduced or not being ap6 plied with respect to the merchandise. 

7 (7) SECRETARY.—The term ‘‘Secretary’’ means 

8 the Secretary of the Treasury. 

9 (8) TRADE REMEDY LAWS.—The term ‘‘trade 

10 remedy laws’’ means title VII of the Tariff Act of 

11 1930. 

12 SEC. 3. APPLICATION TO CANADA AND MEXICO. 

13 Pursuant to article 1902 of the North American Free 

14 Trade Agreement and section 408 of the North American 

15 Free Trade Agreement Implementation Act (19 U.S.C. 

16 3438), this Act and the amendments made by this Act 

17 shall apply with respect to goods from Canada and Mexico. 

18 TITLE I—ACTIONS RELATING TO 

19 ENFORCEMENT OF TRADE 

20 REMEDY LAWS 

21 SEC. 101. TRADE REMEDY LAW ENFORCEMENT DIVISION. 

22 (a) ESTABLISHMENT.— 

23 (1) IN GENERAL.—The Secretary of Homeland 

24 Security shall establish and maintain within the Of25 fice of International Trade of U.S. Customs and 


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1 Border Protection, established under section 2(d) of 

2 the Act of March 3, 1927 (44 Stat. 1381, chapter 

3 348; 19 U.S.C. 2072(d)), a Trade Remedy Law En4 forcement Division. 

5 (2) COMPOSITION.—The Trade Law Remedy 

6 Enforcement Division shall be composed of— 

7 (A) headquarters personnel led by a Direc8 tor, who shall report to the Assistant Commis9 sioner of the Office of International Trade; and 

10 (B) a National Targeting and Analysis 

11 Group dedicated to preventing and countering 

12 evasion. 

13 (3) DUTIES.—The Trade Remedy Law Enforce14 ment Division shall be dedicated— 

15 (A) to the development and administration 

16 of policies to prevent and counter evasion; 

17 (B) to direct enforcement and compliance 

18 assessment activities concerning evasion; 

19 (C) to the development and conduct of 

20 commercial risk assessment targeting with re21 spect to cargo destined for the United States in 

22 accordance with subsection (c); 

23 (D) to issuing Trade Alerts described in 

24 subsection (d); and 


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1 (E) to the development of policies for the 

2 application of single entry and continuous 

3 bonds for entries of covered merchandise to suf4 ficiently protect the collection of antidumping 

5 and countervailing duties commensurate with 

6 the level of risk of noncollection. 

7 (b) DUTIES OF DIRECTOR.—The duties of the Direc8 tor of the Trade Remedy Law Enforcement Division shall 

9 include— 

10 (1) directing the trade enforcement and compli11 ance assessment activities of U.S. Customs and Bor12 der Protection that concern evasion; 

13 (2) facilitating, promoting, and coordinating co14 operation and the exchange of information between 

15 U.S. Customs and Border Protection, U.S. Immigra16 tion and Customs Enforcement, and other relevant 

17 agencies regarding evasion; 

18 (3) notifying on a timely basis the admin19 istering authority (as defined in section 771(1) of 

20 the Tariff Act of 1930 (19 U.S.C. 1677(1))) and the 

21 Commission (as defined in section 771(2) of the 

22 Tariff Act of 1930 (19 U.S.C. 1677(2))) of any 

23 finding, determination, civil action, or criminal ac24 tion taken by U.S. Customs and Border Protection 

25 or other Federal agency regarding evasion; 


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1 (4) serving as the primary liaison between U.S. 

2 Customs and Border Protection and the public re3 garding United States Government activities con4 cerning evasion, including— 

5 (A) receive and transmit to the appropriate 

6 U.S. Customs and Border Protection office alle7 gations from parties of evasion; 

8 (B) upon request by the party or parties 

9 that submitted an allegation of evasion, provide 

10 information to such party or parties on the sta11 tus of U.S. Customs and Border Protection’s 

12 consideration of the allegation and decision to 

13 pursue or not pursue any investigations or 

14 other actions, such as changes in policies, pro15 cedures, or resource allocation as a result of the 

16 allegation; 

17 (C) as needed, request from the party or 

18 parties that submitted an allegation of evasion 

19 any additional information that may be relevant 

20 for U.S. Customs and Border Protection deter21 mining whether to initiate an investigation or 

22 take any other action regarding the allegation; 

23 (D) notify on a timely basis the party or 

24 parties that submitted such an allegation of the 

25 results of any civil or criminal actions taken by 


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1 U.S. Customs and Border Protection or other 

2 Federal agency regarding evasion as a direct or 

3 indirect result of the allegation; 

4 (E) upon request, provide technical assist5 ance and advice to eligible small businesses to 

6 enable such businesses to prepare and submit 

7 allegations of evasion, except that the Director 

8 may deny assistance if the Director concludes 

9 that the allegation, if submitted, would not lead 

10 to the initiation of an investigation or any other 

11 action to address the allegation; 

12 (F) in cooperation with the public, the Ad13 visory Committee on Commercial Operations of 

14 the United States Customs Service, the Trade 

15 Support Network and any other relevant parties 

16 and organizations, develop guidelines on the 

17 types and nature of information that may be 

18 provided in allegations of evasion; and 

19 (G) regularly consult with the public, the 

20 Advisory Committee on Commercial Operations 

21 of the United States Customs Service, the 

22 Trade Support Network, and any other relevant 

23 parties and organizations regarding the develop24 ment and implementation of regulations, interVerDate Mar 15 2010 01:07 May 13, 2012 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5708.IH H5708

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1 pretations, and policies related to countering 

2 evasion. 

3 (c) PREVENTING AND COUNTERING EVASION OF THE

4 TRADE REMEDY LAWS.—In carrying out its duties with 

5 respect to preventing and countering evasion, the National 

6 Targeting and Analysis Group dedicated to preventing and 

7 countering evasion shall— 

8 (1) establish targeted risk assessment meth9 odologies and standards— 

10 (A) for evaluating the risk that cargo des11 tined for the United States may constitute 

12 evading covered merchandise; and 

13 (B) for issuing, as appropriate, Trade 

14 Alerts described in subsection (d); and 

15 (2) to the extent practicable and otherwise au16 thorized by law, use information available from the 

17 Automated Commercial System, the Automated 

18 Commercial Environment computer system, the 

19 Automated Targeting System, the Automated Entry 

20 System, the International Trade Data System, and 

21 the Treasury Enforcement Communications System, 

22 and any successor systems, to administer the meth23 odologies and standards established under paragraph 

24 (1). 


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1 (d) TRADE ALERTS.—Based upon the application of 

2 the targeted risk assessment methodologies and standards 

3 established under subsection (c), the Director of the Trade 

4 Remedy Law Enforcement Division shall issue Trade 

5 Alerts or other such means of notification to directors of 

6 United States ports of entry directing further inspection, 

7 or physical examination or testing, of specific merchandise 

8 to ensure compliance with the trade remedy laws. 

9 (e) DEFINITIONS.—In this section— 

10 (1) the term ‘‘Advisory Committee on Commer11 cial Operations of the United States Customs Serv12 ice’’ means the Advisory Committee established 

13 under section 9503(c) of the Omnibus Budget Rec14 onciliation Act of 1987 (19 U.S.C. 2071 note); and 

15 (2) the term ‘‘Trade Support Network’’ means 

16 the network of private sector entities that provide 

17 input on the design and development of moderniza18 tion projects of U.S. Customs and Border Protec19 tion. 

20 (f) USE OF TRADE DATA FOR COMMERCIAL EN21 FORCEMENT PURPOSES.—Section 343(a)(3) of the Trade 

22 Act of 2002 (19 U.S.C. 2071 note) is amended— 

23 (1) by striking subparagraph (F); and 


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1 (2) by redesignating subparagraphs (G) 

2 through (L) as subparagraphs (F) through (K), re3 spectively. 

4 SEC. 102. COLLECTION OF INFORMATION ON EVASION OF 

5 TRADE REMEDY LAWS. 

6 (a) AUTHORITY TO COLLECT INFORMATION.—To de7 termine whether covered merchandise is being entered into 

8 the customs territory of the United States through eva9 sion, the Secretary, acting through the Commissioner— 

10 (1) shall exercise all existing authorities to col11 lect information needed to make the determination; 

12 and 

13 (2) may collect such additional information as 

14 is necessary to make the determination through such 

15 methods as the Commissioner considers appropriate, 

16 including by issuing questionnaires with respect to 

17 the entry or entries at issue to— 

18 (A) a person who filed an allegation with 

19 respect to the covered merchandise; 

20 (B) a person who is alleged to have en21 tered the covered merchandise into the customs 

22 territory of the United States through evasion; 

23 or 

24 (C) any other person who is determined to 

25 have information relevant to the allegation of 


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1 entry of covered merchandise into the customs 

2 territory of the United States through evasion. 

3 (b) ADVERSE INFERENCE.— 

4 (1) IN GENERAL.—If the Secretary finds that a 

5 person who filed an allegation, a person alleged to 

6 have entered covered merchandise into the customs 

7 territory of the United States through evasion, or a 

8 foreign producer or exporter of covered merchandise 

9 that is alleged to have entered into the customs ter10 ritory of the United States through evasion, has 

11 failed to cooperate by not acting to the best of the 

12 person’s ability to comply with a request for infor13 mation, the Secretary may, in making a determina14 tion whether an entry or entries of covered merchan15 dise may constitute merchandise that is entered into 

16 the customs territory of the United States through 

17 evasion, use an inference that is adverse to the inter18 ests of that person in selecting from among the facts 

19 otherwise available to determine whether evasion has 

20 occurred. 

21 (2) ADVERSE INFERENCE DESCRIBED.—An ad22 verse inference used under paragraph (1) may in23 clude reliance on information derived from— 


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1 (A) the allegation of evasion of the trade 

2 remedy laws, if any, submitted to U.S. Customs 

3 and Border Protection; 

4 (B) a determination by the Commissioner 

5 in another investigation, proceeding, or other 

6 action regarding evasion of the unfair trade 

7 laws; or 

8 (C) any other available information. 

9 SEC. 103. ACCESS TO INFORMATION. 

10 (a) IN GENERAL.—Section 777(b)(1)(A)(ii) of the 

11 Trade Act of 1930 (19 U.S.C. 1677f(b)(1)(A)(ii)) is 

12 amended by inserting ‘‘negligence, gross negligence, 

13 or’’after ‘‘regarding’’. 

14 (b) ADDITIONAL INFORMATION.—Notwithstanding 

15 any other provision of law, the Secretary is authorized to 

16 provide to the Secretary of Commerce or the U.S. Inter17 national Trade Commission any information that is nec18 essary to enable the Secretary of Commerce or the U.S. 

19 International Trade Commission to assist the Secretary 

20 to identify, through risk assessment targeting or other21 wise, covered merchandise that is entered into the customs 

22 territory of the United States through evasion. 


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1 SEC. 104. COOPERATION WITH FOREIGN COUNTRIES ON 

2 PREVENTING EVASION OF TRADE REMEDY 

3 LAWS. 

4 (a) BILATERAL AGREEMENTS.— 

5 (1) IN GENERAL.—The Secretary shall seek to 

6 negotiate and enter into bilateral agreements with 

7 the customs authorities or other appropriate authori8 ties of foreign countries for purposes of cooperation 

9 on preventing evasion of the trade remedy laws of 

10 the United States and the trade remedy laws of the 

11 other country. 

12 (2) PROVISIONS AND AUTHORITIES.—The Sec13 retary shall seek to include in each such bilateral 

14 agreement the following provisions and authorities: 

15 (A) On the request of the importing party, 

16 the exporting party shall provide, consistent 

17 with its laws, regulations, and procedures, pro18 duction, trade, and transit documents and other 

19 information necessary to determine whether an 

20 entry or entries exported from the exporting 

21 party are subject to the importing party’s trade 

22 remedy laws. 

23 (B) On the written request of the import24 ing party, the exporting party shall conduct a 

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1 ing party to make a determination described in 

2 subparagraph (A). 

3 (C) The exporting party may allow the im4 porting party to participate in a verification de5 scribed in subparagraph (B), including through 

6 a site visit. 

7 (D) If the exporting party does not allow 

8 participation of the importing party in a 

9 verification described in subparagraph (B), the 

10 importing party may take this fact into consid11 eration in its trade enforcement and compliance 

12 assessment activities regarding the compliance 

13 of the exporting countries’ exports with the im14 porting countries’ trade remedy laws. 

15 (b) CONSIDERATION.—The Commissioner is author16 ized to take into consideration whether a country is a sig17 natory to a bilateral agreement described in subsection (a) 

18 and the extent to which the country is cooperating under 

19 the bilateral agreement for purposes of trade enforcement 

20 and compliance assessment activities of U.S. Customs and 

21 Border Protection that concern evasion by such country’s 

22 exports. 

23 (c) REPORT.—Not later than December 31 of each 

24 year beginning after the date of the enactment of this Act, 


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1 the Secretary shall submit to the appropriate congres2 sional committees a report summarizing— 

3 (1) the status of any ongoing negotiations of bi4 lateral agreements described in subsection (a), in5 cluding the identities of the countries involved in 

6 such negotiations; 

7 (2) the terms of any completed bilateral agree8 ments described in subsection (a); and 

9 (3) bilateral cooperation and other activities 

10 conducted pursuant to or enabled by any completed 

11 bilateral agreements described in subsection (a). 

12 SEC. 105. TRADE NEGOTIATING OBJECTIVES. 

13 The principal negotiating objectives of the United 

14 States shall include obtaining the objectives of the bilat15 eral agreements described under section 104(a) for any 

16 trade agreements under negotiation as of the date of the 

17 enactment of this Act or future trade agreement negotia18 tions. 

19 TITLE II—OTHER MATTERS 

20 SEC. 201. ALLOCATION AND TRAINING OF PERSONNEL. 

21 The Commissioner shall, to the maximum extent pos22 sible, ensure that U.S. Customs and Border Protection— 

23 (1) employs sufficient personnel who have ex24 pertise in, and responsibility for, preventing and in25 vestigating the entry of covered merchandise into the 


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1 customs territory of the United States through eva2 sion; 

3 (2) on the basis of risk assessment metrics, as4 signs sufficient personnel with primary responsibility 

5 for preventing the entry of covered merchandise into 

6 the customs territory of the United States through 

7 evasion to the ports of entry in the United States at 

8 which the Commissioner determines potential eva9 sion presents the most substantial threats to the rev10 enue of the United States; and 

11 (3) provides adequate training to relevant per12 sonnel to increase expertise and effectiveness in the 

13 prevention and investigation of entries of covered 

14 merchandise into the customs territory of the United 

15 States through evasion. 

16 SEC. 202. ANNUAL REPORT ON PREVENTION OF EVASION 

17 OF ANTIDUMPING AND COUNTERVAILING 

18 DUTY ORDERS. 

19 (a) IN GENERAL.—Not later than February 28 of 

20 each year, beginning in 2013, the Commissioner, in con21 sultation with the Secretary of Commerce and the Assist22 ant Secretary for U.S. Immigration and Customs Enforce23 ment, shall submit to the appropriate congressional com24 mittees a report on the efforts being taken to prevent and 

25 investigate evasion. 


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1 (b) CONTENTS.—Each report required under sub2 section (a) shall include— 

3 (1) for the calendar year preceding the submis4 sion of the report— 

5 (A) a summary of the efforts of U.S. Cus6 toms and Border Protection to prevent and in7 vestigate evasion; 

8 (B) the number of allegations of evasion 

9 received and the number of allegations of eva10 sion resulting in investigations by U.S. Customs 

11 and Border Protection or any other agency; 

12 (C) a summary of the completed investiga13 tions of evasion, including the number and na14 ture of the investigations initiated, conducted, 

15 or completed, as well as their resolution; 

16 (D) with respect to investigations that lead 

17 to lead to issuance of a penalty notice, the pen18 alty amounts; 

19 (E) the amounts of antidumping and coun20 tervailing duties collected as a result of any in21 vestigations or other actions by U.S. Customs 

22 and Border Protection or any other agency; 

23 (F) a description of the allocation of per24 sonnel and other resources of U.S. Customs and 

25 Border Protection and U.S. Immigration and 


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1 Customs Enforcement to prevent and investiga2 tion evasion, including any assessments con3 ducted regarding the allocation of such per4 sonnel and resources; and 

5 (G) a description of training conducted to 

6 increase expertise and effectiveness in the pre7 vention and investigation of evasion; and 

8 (2) a description of U.S. Customs and Border 

9 Protection processes and procedures to prevent and 

10 investigate evasion, including— 

11 (A) the specific guidelines, policies, and 

12 practices used by U.S. Customs and Border 

13 Protection to ensure that allegations of evasion 

14 are promptly evaluated and acted upon in a 

15 timely manner; 

16 (B) an evaluation of the efficacy of such 

17 existing guidelines, policies, and practices; 

18 (C) identification of any changes since the 

19 last report that have materially improved or re20 duced the effectiveness of U.S. Customs and 

21 Border Protection to prevent and investigate 

22 evasion; 

23 (D) a description of the development and 

24 implementation of policies for the application of 

25 single entry and continuous bonds for entries of 


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1 covered merchandise to sufficiently protect the 

2 collection of antidumping and countervailing 

3 duties commensurate with the level of risk on 

4 noncollection; 

5 (E) the processes and procedures for in6 creased cooperation and information sharing 

7 with the Department of Commerce, U.S. Immi8 gration and Customs Enforcement, and any 

9 other relevant Federal agencies to prevent and 

10 investigate evasion; and 

11 (F) identification of any recommended pol12 icy changes of other Federal agencies or legisla13 tive changes to improve the effectiveness of 

14 U.S. Customs and Border Protection to prevent 

15 and investigate evasion. 

16 SEC. 203. ADDRESSING CIRCUMVENTION BY NEW SHIP17 PERS. 

18 Section 751(a)(2)(B) of the Tariff Act of 1930 (19 

19 U.S.C. 1675(a)(2)(B)) is amended— 

20 (1) by striking clause (iii); 

21 (2) by redesignating clause (iv) as clause (iii); 

22 and 

23 (3) inserting after clause (iii), as redesignated 

24 by paragraph (2) of this section, the following: 


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1 ‘‘(iv) Any weighted average dumping 

2 margin or individual countervailing duty 

3 rate determined for an exporter or pro4 ducer in a review conducted under clause 

5 (i) shall be based solely on the bona fide 

6 United States sales of an exporter or pro7 ducer, as the case may be, made during 

8 the period covered by the review. In deter9 mining whether the United States sales of 

10 an exporter or producer made during the 

11 period covered by the review were bona 

12 fide, the administering authority shall con13 sider, depending on the circumstances sur14 rounding such sales— 

15 ‘‘(I) the prices of such sales; 

16 ‘‘(II) whether such sales were 

17 made in commercial quantities; 

18 ‘‘(III) the timing of such sales; 

19 ‘‘(IV) the expenses arising from 

20 such sales; 

21 ‘‘(V) whether the subject mer22 chandise involved in such sales were 

23 resold in the United States at a prof24 it; 


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1 ‘‘(VI) whether such sales were 

2 made on an arms-length basis; and 

3 ‘‘(VII) any other factor the ad4 ministering authority determines to be 

5 relevant as to whether such sales are, 

6 or are not, likely to be typical of those 

7 the exporter or producer will make 

8 after completion of the review.’’. 

Æ 


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