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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3524 Placed on Calendar Senate (PCS)]

                                                       Calendar No. 500
112th CONGRESS
  2d Session
                                S. 3524

                          [Report No. 112-209]

To deter the evasion of antidumping and countervailing duty orders, and 
                          for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           September 10, 2012

   Mr. Baucus, from the Committee on Finance, reported the following 
     original bill; which was read twice and placed on the calendar

_______________________________________________________________________

                                 A BILL

 
To deter 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.

    This Act may be cited as the ``Enforcing Orders and Reducing 
Customs Evasion Act of 2012''.

SEC. 2. 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.
    ``(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 a person that 
                is a producer in the United States of merchandise--
                            ``(i) that is like, or in the absence of 
                        like, most similar in characteristics and uses 
                        with, such covered merchandise; or
                            ``(ii) into which merchandise described in 
                        clause (i) is incorporated; and
                    ``(B) accompanied by information reasonably 
                available to the person 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.
    ``(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--
                            ``(i) a person 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 
        person described in clause (i), (ii), or (iii) of paragraph 
        (2)(A) has failed to cooperate by not acting to the best of the 
        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 
        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 person 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, 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 a person 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 a person 
        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. 3. 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 
enactment of this Act, the Commissioner, in consultation with the 
Secretary of Commerce and the Assistant Secretary for 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 2 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 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 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 2 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 ``Commissioner'', 
``covered merchandise'', and ``evasion'' have the meanings given those 
terms in section 517(a) of the Tariff Act of 1930 (as added by section 
2 of this Act).
                                                       Calendar No. 500

112th CONGRESS

  2d Session

                                S. 3524

                          [Report No. 112-209]

_______________________________________________________________________

                                 A BILL

To deter the evasion of antidumping and countervailing duty orders, and 
                          for other purposes.

_______________________________________________________________________

                           September 10, 2012

                 Read twice and placed on the calendar
```