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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5708 Introduced in House (IH)]

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.

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

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Preventing 
Recurring Trade Evasion and Circumvention Act'' or ``PROTECT Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title and table of contents.
Sec. 2. Definitions.
Sec. 3. Application to Canada and Mexico.
     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.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Appropriate congressional committees.--The term 
        ``appropriate congressional committees'' means--
                    (A) the Committee on Finance and the Committee on 
                Appropriations of the Senate; and
                    (B) the Committee on Ways and Means and the 
                Committee on Appropriations of the House of 
                Representatives.
            (2) Commissioner.--The term ``Commissioner'' means the 
        Commissioner responsible for U.S. Customs and Border 
        Protection.
            (3) Covered merchandise.--The term ``covered merchandise'' 
        means merchandise that is subject to--
                    (A) a countervailing duty order issued under 
                section 706 of the Tariff Act of 1930; or
                    (B) an antidumping duty order issued under section 
                736 of the Tariff Act of 1930.
            (4) Eligible small business.--
                    (A) In general.--The term ``eligible small 
                business'' means any business concern which, in the 
                Commissioner's judgment, due to its small size, has 
                neither adequate internal resources nor financial 
                ability to obtain qualified outside assistance in 
                preparing and submitting for consideration allegations 
                of evasion.
                    (B) Non-reviewability.--Any agency decision 
                regarding whether a business concern is an eligible 
                small business for purposes of section 101(b)(3) is not 
                reviewable by any other agency or by any court.
            (5) Enter; entry.--The terms ``enter'' and ``entry'' refer 
        to the entry, or withdrawal from warehouse for consumption, in 
        the customs territory of the United States.
            (6) Evade; evasion.--The terms ``evade'' and ``evasion'' 
        refer 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.
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of the Treasury.
            (8) Trade remedy laws.--The term ``trade remedy laws'' 
        means title VII of the Tariff Act of 1930.

SEC. 3. 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), this Act and the amendments made 
by this Act shall apply with respect to goods from Canada and Mexico.

     TITLE I--ACTIONS RELATING TO ENFORCEMENT OF TRADE REMEDY LAWS

SEC. 101. TRADE REMEDY LAW ENFORCEMENT DIVISION.

    (a) Establishment.--
            (1) In general.--The Secretary of Homeland Security shall 
        establish and maintain within the Office of International Trade 
        of U.S. Customs and Border Protection, established under 
        section 2(d) of the Act of March 3, 1927 (44 Stat. 1381, 
        chapter 348; 19 U.S.C. 2072(d)), a Trade Remedy Law Enforcement 
        Division.
            (2) Composition.--The Trade Law Remedy Enforcement Division 
        shall be composed of--
                    (A) headquarters personnel led by a Director, who 
                shall report to the Assistant Commissioner of the 
                Office of International Trade; and
                    (B) a National Targeting and Analysis Group 
                dedicated to preventing and countering evasion.
            (3) Duties.--The Trade Remedy Law Enforcement Division 
        shall be dedicated--
                    (A) to the development and administration of 
                policies to prevent and counter evasion;
                    (B) to direct enforcement and compliance assessment 
                activities concerning evasion;
                    (C) to the development and conduct of commercial 
                risk assessment targeting with respect to cargo 
                destined for the United States in accordance with 
                subsection (c);
                    (D) to issuing Trade Alerts described in subsection 
                (d); and
                    (E) to the development 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 noncollection.
    (b) Duties of Director.--The duties of the Director of the Trade 
Remedy Law Enforcement Division shall include--
            (1) directing the trade enforcement and compliance 
        assessment activities of U.S. Customs and Border Protection 
        that concern evasion;
            (2) facilitating, promoting, and coordinating cooperation 
        and the exchange of information between U.S. Customs and Border 
        Protection, U.S. Immigration and Customs Enforcement, and other 
        relevant agencies regarding evasion;
            (3) notifying on a timely basis the administering authority 
        (as defined in section 771(1) of the Tariff Act of 1930 (19 
        U.S.C. 1677(1))) and the Commission (as defined in section 
        771(2) of the Tariff Act of 1930 (19 U.S.C. 1677(2))) of any 
        finding, determination, civil action, or criminal action taken 
        by U.S. Customs and Border Protection or other Federal agency 
        regarding evasion;
            (4) serving as the primary liaison between U.S. Customs and 
        Border Protection and the public regarding United States 
        Government activities concerning evasion, including--
                    (A) receive and transmit to the appropriate U.S. 
                Customs and Border Protection office allegations from 
                parties of evasion;
                    (B) upon request by the party or parties that 
                submitted an allegation of evasion, provide information 
                to such party or parties on the status of U.S. Customs 
                and Border Protection's consideration of the allegation 
                and decision to pursue or not pursue any investigations 
                or other actions, such as changes in policies, 
                procedures, or resource allocation as a result of the 
                allegation;
                    (C) as needed, request from the party or parties 
                that submitted an allegation of evasion any additional 
                information that may be relevant for U.S. Customs and 
                Border Protection determining whether to initiate an 
                investigation or take any other action regarding the 
                allegation;
                    (D) notify on a timely basis the party or parties 
                that submitted such an allegation of the results of any 
                civil or criminal actions taken by U.S. Customs and 
                Border Protection or other Federal agency regarding 
                evasion as a direct or indirect result of the 
                allegation;
                    (E) upon request, provide technical assistance and 
                advice to eligible small businesses to enable such 
                businesses to prepare and submit allegations of 
                evasion, except that the Director may deny assistance 
                if the Director concludes that the allegation, if 
                submitted, would not lead to the initiation of an 
                investigation or any other action to address the 
                allegation;
                    (F) in cooperation with the public, the Advisory 
                Committee on Commercial Operations of the United States 
                Customs Service, the Trade Support Network and any 
                other relevant parties and organizations, develop 
                guidelines on the types and nature of information that 
                may be provided in allegations of evasion; and
                    (G) regularly consult with the public, the Advisory 
                Committee on Commercial Operations of the United States 
                Customs Service, the Trade Support Network, and any 
                other relevant parties and organizations regarding the 
                development and implementation of regulations, 
                interpretations, and policies related to countering 
                evasion.
    (c) Preventing and Countering Evasion of the Trade Remedy Laws.--In 
carrying out its duties with respect to preventing and countering 
evasion, the National Targeting and Analysis Group dedicated to 
preventing and countering evasion shall--
            (1) establish targeted risk assessment methodologies and 
        standards--
                    (A) for evaluating the risk that cargo destined for 
                the United States may constitute evading covered 
                merchandise; and
                    (B) for issuing, as appropriate, Trade Alerts 
                described in subsection (d); and
            (2) to the extent practicable and otherwise authorized by 
        law, use information available from the Automated Commercial 
        System, the Automated Commercial Environment computer system, 
        the Automated Targeting System, the Automated Entry System, the 
        International Trade Data System, and the Treasury Enforcement 
        Communications System, and any successor systems, to administer 
        the methodologies and standards established under paragraph 
        (1).
    (d) Trade Alerts.--Based upon the application of the targeted risk 
assessment methodologies and standards established under subsection 
(c), the Director of the Trade Remedy Law Enforcement Division shall 
issue Trade Alerts or other such means of notification to directors of 
United States ports of entry directing further inspection, or physical 
examination or testing, of specific merchandise to ensure compliance 
with the trade remedy laws.
    (e) Definitions.--In this section--
            (1) the term ``Advisory Committee on Commercial Operations 
        of the United States Customs Service'' means the Advisory 
        Committee established under section 9503(c) of the Omnibus 
        Budget Reconciliation Act of 1987 (19 U.S.C. 2071 note); and
            (2) the term ``Trade Support Network'' means the network of 
        private sector entities that provide input on the design and 
        development of modernization projects of U.S. Customs and 
        Border Protection.
    (f) Use of Trade Data for Commercial Enforcement Purposes.--Section 
343(a)(3) of the Trade Act of 2002 (19 U.S.C. 2071 note) is amended--
            (1) by striking subparagraph (F); and
            (2) by redesignating subparagraphs (G) through (L) as 
        subparagraphs (F) through (K), respectively.

SEC. 102. COLLECTION OF INFORMATION ON EVASION OF TRADE REMEDY LAWS.

    (a) Authority To Collect Information.--To determine whether covered 
merchandise is being entered into the customs territory of the United 
States through evasion, the Secretary, acting through the 
Commissioner--
            (1) shall exercise all existing authorities to collect 
        information needed to make the determination; and
            (2) may collect such additional information as is necessary 
        to make the determination through such methods as the 
        Commissioner considers appropriate, including by issuing 
        questionnaires with respect to the entry or entries at issue 
        to--
                    (A) a person who filed an allegation with respect 
                to the covered merchandise;
                    (B) a person who is alleged to have entered the 
                covered merchandise into the customs territory of the 
                United States through evasion; or
                    (C) any other person who is determined to have 
                information relevant to the allegation of entry of 
                covered merchandise into the customs territory of the 
                United States through evasion.
    (b) Adverse Inference.--
            (1) In general.--If the Secretary finds that a person who 
        filed an allegation, a person alleged to have entered covered 
        merchandise into the customs territory of the United States 
        through evasion, or a foreign producer or exporter of covered 
        merchandise that is alleged to have entered into the customs 
        territory of the United States through evasion, has failed to 
        cooperate by not acting to the best of the person's ability to 
        comply with a request for information, the Secretary may, in 
        making a determination whether an entry or entries of covered 
        merchandise may constitute merchandise that is entered into the 
        customs territory of the United States through evasion, use an 
        inference that is adverse to the interests of that person in 
        selecting from among the facts otherwise available to determine 
        whether evasion has occurred.
            (2) Adverse inference described.--An adverse inference used 
        under paragraph (1) may include reliance on information derived 
        from--
                    (A) the allegation of evasion of the trade remedy 
                laws, if any, submitted to U.S. Customs and Border 
                Protection;
                    (B) a determination by the Commissioner in another 
                investigation, proceeding, or other action regarding 
                evasion of the unfair trade laws; or
                    (C) any other available information.

SEC. 103. ACCESS TO INFORMATION.

    (a) In General.--Section 777(b)(1)(A)(ii) of the Trade Act of 1930 
(19 U.S.C. 1677f(b)(1)(A)(ii)) is amended by inserting ``negligence, 
gross negligence, or''after ``regarding''.
    (b) Additional Information.--Notwithstanding any other provision of 
law, the Secretary is authorized to provide to the Secretary of 
Commerce or the U.S. International Trade Commission any information 
that is necessary to enable the Secretary of Commerce or the U.S. 
International Trade Commission to assist the Secretary to identify, 
through risk assessment targeting or otherwise, covered merchandise 
that is entered into the customs territory of the United States through 
evasion.

SEC. 104. COOPERATION WITH FOREIGN COUNTRIES ON PREVENTING EVASION OF 
              TRADE REMEDY LAWS.

    (a) Bilateral Agreements.--
            (1) In general.--The Secretary shall seek to negotiate and 
        enter into bilateral agreements with the customs authorities or 
        other appropriate authorities of foreign countries for purposes 
        of cooperation on preventing evasion of the trade remedy laws 
        of the United States and the trade remedy laws of the other 
        country.
            (2) Provisions and authorities.--The Secretary shall seek 
        to include in each such bilateral agreement the following 
        provisions and authorities:
                    (A) On the request of the importing party, the 
                exporting party shall provide, consistent with its 
                laws, regulations, and procedures, production, trade, 
                and transit documents and other information necessary 
                to determine whether an entry or entries exported from 
                the exporting party are subject to the importing 
                party's trade remedy laws.
                    (B) On the written request of the importing party, 
                the exporting party shall conduct a verification for 
                purposes of enabling the importing party to make a 
                determination described in subparagraph (A).
                    (C) The exporting party may allow the importing 
                party to participate in a verification described in 
                subparagraph (B), including through a site visit.
                    (D) If the exporting party does not allow 
                participation of the importing party in a verification 
                described in subparagraph (B), the importing party may 
                take this fact into consideration in its trade 
                enforcement and compliance assessment activities 
                regarding the compliance of the exporting countries' 
                exports with the importing countries' trade remedy 
                laws.
    (b) Consideration.--The Commissioner is authorized to take into 
consideration whether a country is a signatory to a bilateral agreement 
described in subsection (a) and the extent to which the country is 
cooperating under the bilateral agreement for purposes of trade 
enforcement and compliance assessment activities of U.S. Customs and 
Border Protection that concern evasion by such country's exports.
    (c) Report.--Not later than December 31 of each year beginning 
after the date of the enactment of this Act, the Secretary shall submit 
to the appropriate congressional committees a report summarizing--
            (1) the status of any ongoing negotiations of bilateral 
        agreements described in subsection (a), including the 
        identities of the countries involved in such negotiations;
            (2) the terms of any completed bilateral agreements 
        described in subsection (a); and
            (3) bilateral cooperation and other activities conducted 
        pursuant to or enabled by any completed bilateral agreements 
        described in subsection (a).

SEC. 105. TRADE NEGOTIATING OBJECTIVES.

    The principal negotiating objectives of the United States shall 
include obtaining the objectives of the bilateral agreements described 
under section 104(a) for any trade agreements under negotiation as of 
the date of the enactment of this Act or future trade agreement 
negotiations.

                        TITLE II--OTHER MATTERS

SEC. 201. ALLOCATION AND TRAINING OF PERSONNEL.

    The Commissioner shall, to the maximum extent possible, ensure that 
U.S. Customs and Border Protection--
            (1) employs sufficient personnel who have expertise in, and 
        responsibility for, preventing and investigating the entry of 
        covered merchandise into the customs territory of the United 
        States through evasion;
            (2) on the basis of risk assessment metrics, assigns 
        sufficient personnel with primary responsibility for preventing 
        the entry of covered merchandise into the customs territory of 
        the United States through evasion to the ports of entry in the 
        United States at which the Commissioner determines potential 
        evasion presents the most substantial threats to the revenue of 
        the United States; and
            (3) provides adequate training to relevant personnel to 
        increase expertise and effectiveness in the prevention and 
        investigation of entries of covered merchandise into the 
        customs territory of the United States through evasion.

SEC. 202. ANNUAL REPORT ON PREVENTION OF EVASION OF ANTIDUMPING AND 
              COUNTERVAILING DUTY ORDERS.

    (a) In General.--Not later than February 28 of each year, beginning 
in 2013, the Commissioner, in consultation with the Secretary of 
Commerce and the Assistant Secretary for U.S. Immigration and Customs 
Enforcement, shall submit to the appropriate congressional committees a 
report on the efforts being taken to prevent and investigate 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 evasion;
                    (B) the number of allegations of evasion received 
                and the number of allegations of evasion resulting in 
                investigations by U.S. Customs and Border Protection or 
                any other agency;
                    (C) a summary of the completed investigations of 
                evasion, including the number and nature of the 
                investigations initiated, conducted, or completed, as 
                well as their resolution;
                    (D) with respect to investigations that lead to 
                lead to issuance of a penalty notice, the penalty 
                amounts;
                    (E) the amounts 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;
                    (F) 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 investigation evasion, including any 
                assessments conducted regarding the allocation of such 
                personnel and resources; and
                    (G) a description of training conducted to increase 
                expertise and effectiveness in the prevention and 
                investigation of evasion; and
            (2) a description of U.S. Customs and Border Protection 
        processes and procedures 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 such existing 
                guidelines, policies, and practices;
                    (C) identification of any changes since the last 
                report that have materially improved or reduced the 
                effectiveness of U.S. Customs and Border Protection to 
                prevent and investigate 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 on noncollection;
                    (E) 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) identification of any recommended policy 
                changes of other Federal agencies or legislative 
                changes to improve the effectiveness of U.S. Customs 
                and Border Protection to prevent and investigate 
                evasion.

SEC. 203. ADDRESSING CIRCUMVENTION BY NEW SHIPPERS.

    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) inserting after clause (iii), as redesignated by 
        paragraph (2) of this section, the following:
                            ``(iv) Any weighted average dumping margin 
                        or individual countervailing duty rate 
                        determined for an exporter or producer in a 
                        review conducted under clause (i) shall be 
                        based solely on the bona fide United States 
                        sales of an exporter or producer, as the case 
                        may be, made during the period covered by the 
                        review. In determining whether the United 
                        States sales of an exporter or producer made 
                        during the period covered by the review were 
                        bona fide, the administering authority shall 
                        consider, depending on the circumstances 
                        surrounding such sales--
                                    ``(I) the prices of such sales;
                                    ``(II) whether such sales were made 
                                in commercial quantities;
                                    ``(III) the timing of such sales;
                                    ``(IV) the expenses arising from 
                                such sales;
                                    ``(V) whether the subject 
                                merchandise involved in such sales were 
                                resold in the United States at a 
                                profit;
                                    ``(VI) whether such sales were made 
                                on an arms-length basis; and
                                    ``(VII) any other factor the 
                                administering authority determines to 
                                be relevant as to whether such sales 
                                are, or are not, likely to be typical 
                                of those the exporter or producer will 
                                make after completion of the review.''.
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