II 

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. 

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. 

4 This Act may be cited as the ‘‘Enforcing Orders and 

5 Reducing Customs Evasion Act of 2012’’. 


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1 SEC. 2. PROCEDURES FOR INVESTIGATING CLAIMS OF EVA2 SION OF ANTIDUMPING AND COUNTER3 VAILING DUTY ORDERS. 

4 (a) IN GENERAL.—The Tariff Act of 1930 is amend5 ed by inserting after section 516A (19 U.S.C. 1516a) the 

6 following: 

7 ‘‘SEC. 517. PROCEDURES FOR INVESTIGATING CLAIMS OF 

8 EVASION OF ANTIDUMPING AND COUNTER9 VAILING DUTY ORDERS. 

10 ‘‘(a) DEFINITIONS.—In this section: 

11 ‘‘(1) ADMINISTERING AUTHORITY.—The term 

12 ‘administering authority’ has the meaning given that 

13 term in section 771(1). 

14 ‘‘(2) COMMISSIONER.—The term ‘Commis15 sioner’ means the Commissioner responsible for U.S. 

16 Customs and Border Protection, acting pursuant to 

17 the delegation by the Secretary of the Treasury of 

18 the authority of the Secretary with respect to cus19 toms revenue functions (as defined in section 415 of 

20 the Homeland Security Act of 2002 (6 U.S.C. 215)). 

21 ‘‘(3) COVERED MERCHANDISE.—The term ‘cov22 ered merchandise’ means merchandise that is subject 

23 to— 

24 ‘‘(A) an antidumping duty order issued 

25 under section 736; 


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1 ‘‘(B) a finding issued under the Anti2 dumping Act, 1921; or 

3 ‘‘(C) a countervailing duty order issued 

4 under section 706. 

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

6 ‘entry’ refer to the entry, or withdrawal from ware7 house for consumption, of merchandise in the cus8 toms territory of the United States. 

9 ‘‘(5) EVASION.— 

10 ‘‘(A) IN GENERAL.—Except as provided in 

11 subparagraph (B), the term ‘evasion’ refers to 

12 entering covered merchandise into the customs 

13 territory of the United States by means of any 

14 document or electronically transmitted data or 

15 information, written or oral statement, or act 

16 that is material and false, or any omission that 

17 is material, and that results in any cash deposit 

18 or other security or any amount of applicable 

19 antidumping or countervailing duties being re20 duced or not being applied with respect to the 

21 merchandise. 

22 ‘‘(B) EXCEPTION FOR CLERICAL ERROR.— 

23 ‘‘(i) IN GENERAL.—Except as pro24 vided in clause (ii), the term ‘evasion’ does 

25 not include entering covered merchandise 


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1 into the customs territory of the United 

2 States by means of— 

3 ‘‘(I) a document or electronically 

4 transmitted data or information, writ5 ten or oral statement, or act that is 

6 false as a result of a clerical error; or 

7 ‘‘(II) an omission that results 

8 from a clerical error. 

9 ‘‘(ii) PATTERNS OF NEGLIGENT CON10 DUCT.—If the Commissioner determines 

11 that a person has entered covered mer12 chandise into the customs territory of the 

13 United States by means of a clerical error 

14 referred to in subclause (I) or (II) of 

15 clause (i) and that the clerical error is part 

16 of a pattern of negligent conduct on the 

17 part of that person, the Commissioner may 

18 determine, notwithstanding clause (i), that 

19 the person has entered such covered mer20 chandise into the customs territory of the 

21 United States through evasion. 

22 ‘‘(iii) ELECTRONIC REPETITION OF

23 ERRORS.—For purposes of clause (ii), the 

24 mere nonintentional repetition by an elec25 tronic system of an initial clerical error 


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1 does not constitute a pattern of negligent 

2 conduct. 

3 ‘‘(iv) RULE OF CONSTRUCTION.—A 

4 determination by the Commissioner that a 

5 person has entered covered merchandise 

6 into the customs territory of the United 

7 States by means of a clerical error referred 

8 to in subclause (I) or (II) of clause (i) 

9 rather than through evasion shall not be 

10 construed to excuse that person from the 

11 payment of any duties applicable to the 

12 merchandise. 

13 ‘‘(b) INVESTIGATIONS.— 

14 ‘‘(1) IN GENERAL.—Not later than 10 business 

15 days after receiving an allegation described in para16 graph (2) or a referral described in paragraph (3), 

17 the Commissioner shall initiate an investigation if 

18 the Commissioner determines that the information 

19 provided in the allegation or the referral, as the case 

20 may be, reasonably suggests that covered merchan21 dise has been entered into the customs territory of 

22 the United States through evasion. 

23 ‘‘(2) ALLEGATION DESCRIBED.—An allegation 

24 described in this paragraph is an allegation that a 

25 person has entered covered merchandise into the 


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1 customs territory of the United States through eva2 sion that is— 

3 ‘‘(A) filed with the Commissioner by a per4 son that is a producer in the United States of 

5 merchandise— 

6 ‘‘(i) that is like, or in the absence of 

7 like, most similar in characteristics and 

8 uses with, such covered merchandise; or 

9 ‘‘(ii) into which merchandise described 

10 in clause (i) is incorporated; and 

11 ‘‘(B) accompanied by information reason12 ably available to the person that filed the alle13 gation. 

14 ‘‘(3) REFERRAL DESCRIBED.—A referral de15 scribed in this paragraph is information submitted 

16 to the Commissioner by any other Federal agency, 

17 including the Department of Commerce or the 

18 United States International Trade Commission, that 

19 reasonably suggests that a person has entered cov20 ered merchandise into the customs territory of the 

21 United States through evasion. 

22 ‘‘(4) CONSOLIDATION OF ALLEGATIONS AND

23 REFERRALS.— 

24 ‘‘(A) IN GENERAL.—The Commissioner 

25 may consolidate multiple allegations described 


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1 in paragraph (2) and referrals described in 

2 paragraph (3) into a single investigation if the 

3 Commissioner determines it is appropriate to do 

4 so. 

5 ‘‘(B) EFFECT ON TIMING REQUIRE6 MENTS.—If the Commissioner consolidates mul7 tiple allegations or referrals into a single inves8 tigation under subparagraph (A), the date on 

9 which the Commissioner receives the first such 

10 allegation or referral shall be used for purposes 

11 of the requirement under paragraph (1) with 

12 respect to the timing of the initiation of the in13 vestigation. 

14 ‘‘(5) INFORMATION-SHARING TO PROTECT

15 HEALTH AND SAFETY.—If, during the course of con16 ducting an investigation under paragraph (1) with 

17 respect to covered merchandise, the Commissioner 

18 has reason to suspect that such covered merchandise 

19 may pose a health or safety risk to consumers, the 

20 Commissioner shall provide, as appropriate, informa21 tion to the appropriate Federal agencies for pur22 poses of mitigating the risk. 

23 ‘‘(c) DETERMINATIONS.— 

24 ‘‘(1) IN GENERAL.—Not later than 270 cal25 endar days after the date on which the CommisVerDate Mar 15 2010 02:25 Sep 11, 2012 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3524.PCS S3524

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1 sioner initiates an investigation under subsection (b) 

2 with respect to covered merchandise, the Commis3 sioner shall make a determination, based on sub4 stantial evidence, with respect to whether such cov5 ered merchandise was entered into the customs terri6 tory of the United States through evasion. 

7 ‘‘(2) AUTHORITY TO COLLECT AND VERIFY AD8 DITIONAL INFORMATION.—In making a determina9 tion under paragraph (1) with respect to covered 

10 merchandise, the Commissioner may collect such ad11 ditional information as is necessary to make the de12 termination through such methods as the Commis13 sioner considers appropriate, including by— 

14 ‘‘(A) issuing a questionnaire with respect 

15 to such covered merchandise to— 

16 ‘‘(i) a person that filed an allegation 

17 under paragraph (2) of subsection (b) that 

18 resulted in the initiation of an investiga19 tion under paragraph (1) of that sub20 section with respect to such covered mer21 chandise; 

22 ‘‘(ii) a person alleged to have entered 

23 such covered merchandise into the customs 

24 territory of the United States through eva25 sion; 


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1 ‘‘(iii) a person that is a foreign pro2 ducer or exporter of such covered merchan3 dise; or 

4 ‘‘(iv) the government of a country 

5 from which such covered merchandise was 

6 exported; and 

7 ‘‘(B) conducting verifications, including on8 site verifications, of any relevant information. 

9 ‘‘(3) ADVERSE INFERENCE.—If the Commis10 sioner finds that a person described in clause (i), 

11 (ii), or (iii) of paragraph (2)(A) has failed to cooper12 ate by not acting to the best of the person’s ability 

13 to comply with a request for information, the Com14 missioner may, in making a determination under 

15 paragraph (1), use an inference that is adverse to 

16 the interests of that person in selecting from among 

17 the facts otherwise available to make the determina18 tion. 

19 ‘‘(4) NOTIFICATION.—Not later than 5 business 

20 days after making a determination under paragraph 

21 (1) with respect to covered merchandise, the Com22 missioner— 

23 ‘‘(A) shall provide to each person that filed 

24 an allegation under paragraph (2) of subsection 

25 (b) that resulted in the initiation of an invesVerDate Mar 15 2010 02:25 Sep 11, 2012 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3524.PCS S3524

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1 tigation under paragraph (1) of that subsection 

2 with respect to such covered merchandise a no3 tification of the determination and may, in ad4 dition, include an explanation of the basis for 

5 the determination; and 

6 ‘‘(B) may provide to importers, in such 

7 manner as the Commissioner determines appro8 priate, information discovered in the investiga9 tion that the Commissioner determines will help 

10 educate importers with respect to importing 

11 merchandise into the customs territory of the 

12 United States in accordance with all applicable 

13 laws and regulations. 

14 ‘‘(d) EFFECT OF DETERMINATIONS.— 

15 ‘‘(1) IN GENERAL.—If the Commissioner makes 

16 a determination under subsection (c) that covered 

17 merchandise was entered into the customs territory 

18 of the United States through evasion, the Commis19 sioner shall— 

20 ‘‘(A)(i) suspend the liquidation of unliqui21 dated entries of such covered merchandise that 

22 are subject to the determination and that enter 

23 on or after the date of the initiation of the in24 vestigation under subsection (b) with respect to 


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1 such covered merchandise and on or before the 

2 date of the determination; or 

3 ‘‘(ii) if the Commissioner has already sus4 pended the liquidation of such entries pursuant 

5 to subsection (e)(1), continue to suspend the 

6 liquidation of such entries; 

7 ‘‘(B) pursuant to the Commissioner’s au8 thority under section 504(b)— 

9 ‘‘(i) extend the period for liquidating 

10 unliquidated entries of such covered mer11 chandise that are subject to the determina12 tion and that entered before the date of 

13 the initiation of the investigation; or 

14 ‘‘(ii) if the Commissioner has already 

15 extended the period for liquidating such 

16 entries pursuant to subsection (e)(1), con17 tinue to extend the period for liquidating 

18 such entries; 

19 ‘‘(C) notify the administering authority of 

20 the determination and request that the admin21 istering authority— 

22 ‘‘(i) identify the applicable anti23 dumping or countervailing duty assessment 

24 rates for entries described in subpara25 graphs (A) and (B); or 


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1 ‘‘(ii) if no such assessment rate for 

2 such an entry is available at the time, 

3 identify the applicable cash deposit rate to 

4 be applied to the entry, with the applicable 

5 antidumping or countervailing duty assess6 ment rate to be provided as soon as that 

7 rate becomes available; 

8 ‘‘(D) require the posting of cash deposits 

9 and assess duties on entries described in sub10 paragraphs (A) and (B) in accordance with the 

11 instructions received from the administering au12 thority under paragraph (2); and 

13 ‘‘(E) take such additional enforcement 

14 measures as the Commissioner determines ap15 propriate, such as— 

16 ‘‘(i) initiating proceedings under sec17 tion 592 or 596; 

18 ‘‘(ii) implementing, in consultation 

19 with the relevant Federal agencies, rule 

20 sets or modifications to rules sets for iden21 tifying, particularly through the Auto22 mated Targeting System and the Auto23 mated Commercial Environment, import24 ers, other parties, and merchandise that 

25 may be associated with evasion; 


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1 ‘‘(iii) requiring, with respect to mer2 chandise for which the importer has re3 peatedly provided incomplete or erroneous 

4 entry summary information in connection 

5 with determinations of evasion, the im6 porter to deposit estimated duties at the 

7 time of entry; and 

8 ‘‘(iv) referring the record in whole or 

9 in part to U.S. Immigration and Customs 

10 Enforcement for civil or criminal investiga11 tion. 

12 ‘‘(2) COOPERATION OF ADMINISTERING AU13 THORITY.— 

14 ‘‘(A) IN GENERAL.—Upon receiving a noti15 fication from the Commissioner under para16 graph (1)(C), the administering authority shall 

17 promptly provide to the Commissioner the ap18 plicable cash deposit rates and antidumping or 

19 countervailing duty assessment rates and any 

20 necessary liquidation instructions. 

21 ‘‘(B) SPECIAL RULE FOR CASES IN WHICH

22 THE PRODUCER OR EXPORTER IS UNKNOWN.— 

23 If the Commissioner and the administering au24 thority are unable to determine the producer or 

25 exporter of the merchandise with respect to 


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1 which a notification is made under paragraph 

2 (1)(C), the administering authority shall iden3 tify, as the applicable cash deposit rate or anti4 dumping or countervailing duty assessment 

5 rate, the cash deposit or duty (as the case may 

6 be) in the highest amount applicable to any 

7 producer or exporter, including the ‘all-others’ 

8 rate of the merchandise subject to an anti9 dumping order or countervailing duty order 

10 under section 736 or 706, respectively, or a 

11 finding issued under the Antidumping Act, 

12 1921, or any administrative review conducted 

13 under section 751. 

14 ‘‘(e) INTERIM MEASURES.—Not later than 90 cal15 endar days after initiating an investigation under sub16 section (b) with respect to covered merchandise, the Com17 missioner shall decide based on the investigation if there 

18 is a reasonable suspicion that such covered merchandise 

19 was entered into the customs territory of the United 

20 States through evasion and, if the Commissioner decides 

21 there is such a reasonable suspicion, the Commissioner 

22 shall— 

23 ‘‘(1) suspend the liquidation of each unliqui24 dated entry of such covered merchandise that enVerDate Mar 15 2010 02:25 Sep 11, 2012 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S3524.PCS S3524

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1 tered on or after the date of the initiation of the in2 vestigation; 

3 ‘‘(2) pursuant to the Commissioner’s authority 

4 under section 504(b), extend the period for liqui5 dating each unliquidated entry of such covered mer6 chandise that entered before the date of the initi7 ation of the investigation; and 

8 ‘‘(3) pursuant to the Commissioner’s authority 

9 under section 623, take such additional measures as 

10 the Commissioner determines necessary to protect 

11 the revenue of the United States, including requiring 

12 a single transaction bond or additional security or 

13 the posting of a cash deposit with respect to such 

14 covered merchandise. 

15 ‘‘(f) ADMINISTRATIVE REVIEW.— 

16 ‘‘(1) IN GENERAL.—Not later than 30 business 

17 days after the Commissioner makes a determination 

18 under subsection (c) with respect to whether covered 

19 merchandise was entered into the customs territory 

20 of the United States through evasion, a person de21 termined to have entered such covered merchandise 

22 through evasion or a person that filed an allegation 

23 under paragraph (2) of subsection (b) that resulted 

24 in the initiation of an investigation under paragraph 

25 (1) of that subsection with respect to such covered 


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1 merchandise may file an appeal with the Commis2 sioner for de novo review of the determination. 

3 ‘‘(2) TIMELINE FOR REVIEW.—Not later than 

4 60 business days after an appeal of a determination 

5 is filed under paragraph (1), the Commissioner shall 

6 complete the review of the determination. 

7 ‘‘(g) JUDICIAL REVIEW.— 

8 ‘‘(1) IN GENERAL.—Not later than 30 business 

9 days after the Commissioner completes a review 

10 under subsection (f) of a determination under sub11 section (c) with respect to whether covered merchan12 dise was entered into the customs territory of the 

13 United States through evasion, a person determined 

14 to have entered such covered merchandise through 

15 evasion or a person that filed an allegation under 

16 paragraph (2) of subsection (b) that resulted in the 

17 initiation of an investigation under paragraph (1) of 

18 that subsection with respect to such covered mer19 chandise may commence a civil action in the United 

20 States Court of International Trade by filing concur21 rently a summons and complaint contesting any fac22 tual findings or legal conclusions upon which the de23 termination is based. 

24 ‘‘(2) STANDARD OF REVIEW.—In a civil action 

25 under this subsection, the court shall hold unlawful 


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1 any determination, finding, or conclusion found to be 

2 arbitrary, capricious, an abuse of discretion, or oth3 erwise not in accordance with law. 

4 ‘‘(h) RULE OF CONSTRUCTION WITH RESPECT TO

5 OTHER CIVIL AND CRIMINAL PROCEEDINGS AND INVES6 TIGATIONS.—No determination under subsection (c) or ac7 tion taken by the Commissioner pursuant to this section 

8 shall be construed to limit the authority to carry out, or 

9 the scope of, any other proceeding or investigation pursu10 ant to any other provision of Federal or State law, includ11 ing sections 592 and 596.’’. 

12 (b) CONFORMING AMENDMENT.—Section 1581(c) of 

13 title 28, United States Code, is amended by inserting ‘‘or 

14 517’’ after ‘‘516A’’. 

15 (c) EFFECTIVE DATE.—The amendments made by 

16 this section shall take effect on the date that is 180 days 

17 after the date of the enactment of this Act. 

18 (d) REGULATIONS.—Not later than the date that is 

19 180 days after the date of the enactment of this Act, the 

20 Secretary of the Treasury shall prescribe such regulations 

21 as may be necessary to implement the amendments made 

22 by this section. 

23 (e) APPLICATION TO CANADA AND MEXICO.—Pursu24 ant to article 1902 of the North American Free Trade 

25 Agreement and section 408 of the North American Free 


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1 Trade Agreement Implementation Act (19 U.S.C. 3438), 

2 the amendments made by this section shall apply with re3 spect to goods from Canada and Mexico. 

4 SEC. 3. ANNUAL REPORT ON PREVENTION AND INVESTIGA5 TION OF EVASION OF ANTIDUMPING AND 

6 COUNTERVAILING DUTY ORDERS. 

7 (a) IN GENERAL.—Not later than January 15 of 

8 each calendar year that begins on or after the date that 

9 is 270 days after the date of the enactment of this Act, 

10 the Commissioner, in consultation with the Secretary of 

11 Commerce and the Assistant Secretary for U.S. Immigra12 tion and Customs Enforcement, shall submit to the Com13 mittee on Finance of the Senate and the Committee on 

14 Ways and Means of the House of Representatives a report 

15 on the efforts being taken to prevent and investigate the 

16 entry of covered merchandise into the customs territory 

17 of the United States through evasion. 

18 (b) CONTENTS.—Each report required under sub19 section (a) shall include— 

20 (1) for the calendar year preceding the submis21 sion of the report— 

22 (A) a summary of the efforts of U.S. Cus23 toms and Border Protection to prevent and in24 vestigate the entry of covered merchandise into 


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1 the customs territory of the United States 

2 through evasion; 

3 (B) the number of allegations of evasion 

4 received under subsection (b) of section 517 of 

5 the Tariff Act of 1930 (as added by section 2 

6 of this Act) and the number of such allegations 

7 resulting in investigations by U.S. Customs and 

8 Border Protection or any other agency; 

9 (C) a summary of investigations initiated 

10 under subsection (b) of such section 517, in11 cluding— 

12 (i) the number and nature of the in13 vestigations initiated, conducted, and com14 pleted; and 

15 (ii) the resolution of each completed 

16 investigation; 

17 (D) the number of investigations initiated 

18 under that subsection not completed during the 

19 time provided for making determinations under 

20 subsection (c) of such section 517 and an expla21 nation for why the investigations could not be 

22 completed on time; 

23 (E) the amount of additional duties that 

24 were determined to be owed as a result of such 

25 investigations, the amount of such duties that 


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1 were collected, and, for any such duties not col2 lected, a description of the reasons those duties 

3 were not collected; 

4 (F) with respect to each such investigation 

5 that led to the imposition of a penalty, the 

6 amount of the penalty; 

7 (G) an identification of the countries of or8 igin of covered merchandise determined under 

9 subsection (c) of such section 517 to be entered 

10 into the customs territory of the United States 

11 through evasion; 

12 (H) the amount of antidumping and coun13 tervailing duties collected as a result of any in14 vestigations or other actions by U.S. Customs 

15 and Border Protection or any other agency; 

16 (I) a description of the allocation of per17 sonnel and other resources of U.S. Customs and 

18 Border Protection and U.S. Immigration and 

19 Customs Enforcement to prevent and inves20 tigate evasion, including any assessments con21 ducted regarding the allocation of such per22 sonnel and resources; and 

23 (J) a description of training conducted to 

24 increase expertise and effectiveness in the pre25 vention and investigation of evasion; and 


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

2 Protection processes and procedures to prevent and 

3 investigate evasion, including— 

4 (A) the specific guidelines, policies, and 

5 practices used by U.S. Customs and Border 

6 Protection to ensure that allegations of evasion 

7 are promptly evaluated and acted upon in a 

8 timely manner; 

9 (B) an evaluation of the efficacy of those 

10 guidelines, policies, and practices; 

11 (C) an identification of any changes since 

12 the last report required by this section, if any, 

13 that have materially improved or reduced the 

14 effectiveness of U.S. Customs and Border Pro15 tection in preventing and investigating evasion; 

16 (D) a description of the development and 

17 implementation of policies for the application of 

18 single entry and continuous bonds for entries of 

19 covered merchandise to sufficiently protect the 

20 collection of antidumping and countervailing 

21 duties commensurate with the level of risk of 

22 not collecting those duties; 

23 (E) a description of the processes and pro24 cedures for increased cooperation and informa25 tion sharing with the Department of Commerce, 


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1 U.S. Immigration and Customs Enforcement, 

2 and any other relevant Federal agencies to pre3 vent and investigate evasion; and 

4 (F) an identification of any recommended 

5 policy changes for other Federal agencies or 

6 legislative changes to improve the effectiveness 

7 of U.S. Customs and Border Protection in pre8 venting and investigating evasion. 

9 (c) PUBLIC SUMMARY.—The Commissioner shall 

10 make available to the public a summary of the report re11 quired by subsection (a) that includes, at a minimum— 

12 (1) a description of the type of merchandise 

13 with respect to which investigations were initiated 

14 under subsection (b) of section 517 of the Tariff Act 

15 of 1930 (as added by section 2 of this Act); 

16 (2) the amount of additional duties determined 

17 to be owed as a result of such investigations and the 

18 amount of such duties that were collected; 

19 (3) an identification of the countries of origin 

20 of covered merchandise determined under subsection 

21 (c) of such section 517 to be entered into the cus22 toms territory of the United States through evasion; 

23 and 


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1 (4) a description of the types of measures used 

2 by U.S. Customs and Border Protection to prevent 

3 and investigate evasion. 

4 (d) DEFINITIONS.—In this section, the terms ‘‘Com5 missioner’’, ‘‘covered merchandise’’, and ‘‘evasion’’ have 

6 the meanings given those terms in section 517(a) of the 

7 Tariff Act of 1930 (as added by section 2 of this Act). 


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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 


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