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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6549 Introduced in House (IH)]

111th CONGRESS
  2d Session
                                H. R. 6549

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

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           December 17, 2010

  Ms. Linda T. Sanchez of California (for herself, Mr. Jones, and Mr. 
    Critz) 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.

    This Act may be cited as the ``Enforcing Orders and Reducing 
Customs Evasion Act of 2010''.

SEC. 2. PROCEDURES FOR INVESTIGATING CLAIMS OF EVASION.

    (a) In General.--The Tariff Act of 1930 is amended by inserting 
after section 516A (19 U.S.C. 1516a) the following new section:

``SEC. 516B. PROCEDURES FOR INVESTIGATING CLAIMS OF EVASION.

    ``(a) Definitions.--In this section:
            ``(1) Administering authority.--The term `administering 
        authority' means the authority described in section 771(1).
            ``(2) 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.
            ``(3) Commissioner.--The term `Commissioner' means the 
        Commissioner responsible for U.S. Customs and Border 
        Protection.
            ``(4) Covered merchandise.--The term `covered merchandise' 
        means merchandise that is subject to--
                    ``(A) an antidumping order issued under section 
                736;
                    ``(B) a finding issued under the Antidumping Act, 
                1921; or
                    ``(C) a countervailing duty order issued under 
                section 706.
            ``(5) Evade; evasion.--The terms `evade' and `evasion' 
        refer to entering or introducing covered merchandise into the 
        commerce of the United States by means of--
                    ``(A) any document or electronically transmitted 
                data or information, written or oral statement, or act 
                which is material and false, or
                    ``(B) any omission which is material,
        that results in any cash deposit or other security or any 
        amount of applicable antidumping or countervailing duties being 
        reduced or not being applied on the merchandise.
            ``(6) Interested party.--The term `interested party' means 
        an interested party as defined in section 771(9).
    ``(b) Clarifications.--
            ``(1) Negligence or intent of importer.--The Commissioner 
        shall investigate and make determinations regarding evasion 
        pursuant to this section without taking into consideration 
        whether the importer concerned intended to violate or failed to 
        exercise reasonable care resulting in a violation of an 
        antidumping order or countervailing duty order under section 
        736 or 706, respectively, or a finding issued under the 
        Antidumping Act, 1921.
            ``(2) Rule of construction relating to penalties.--Nothing 
        in this section limits the authority of U.S. Customs and Border 
        Protection to assess penalties and collect applicable duties, 
        taxes, and fees, including assessment of penalties and 
        collection of applicable duties, taxes, and fees pursuant to 
        section 592.
    ``(c) Procedures for Investigating Claims of Evasion.--
            ``(1) Initiation by petition or referral.--
                    ``(A) In general.--The Commissioner shall initiate 
                an investigation pursuant to this paragraph not later 
                than 10 days after the date on which the Commissioner 
                receives a petition described in subparagraph (B) or a 
                referral described in subparagraph (C).
                    ``(B) Petition described.--A petition described in 
                this subparagraph is a petition that--
                            ``(i) is filed with the Commissioner by any 
                        party who is an interested party with respect 
                        to covered merchandise;
                            ``(ii) alleges evasion with respect to 
                        covered merchandise; and
                            ``(iii) is accompanied by information 
                        reasonably available to the petitioner 
                        supporting such allegations.
                    ``(C) Referral described.--A referral described in 
                this subparagraph is information submitted to the 
                Commissioner by any other Federal department or agency, 
                including the Department of Commerce or the United 
                States International Trade Commission, indicating 
                evasion with respect to covered merchandise.
            ``(2) Determinations.--
                    ``(A) Preliminary determination.--
                            ``(i) In general.--Not later than 60 days 
                        after the date on which the Commissioner 
                        initiates an investigation under paragraph (1), 
                        the Commissioner shall issue a preliminary 
                        determination, based on information available 
                        to the Commissioner at the time of such 
                        determination, as to whether there is a 
                        reasonable indication the covered merchandise 
                        was entered or introduced into the United 
                        States through evasion.
                            ``(ii) Extension.--The Commissioner may 
                        extend up to 45 days the time period specified 
                        in clause (i) if the Commissioner determines 
                        that sufficient information to make such 
                        preliminary determination is not available 
                        within such time period or the inquiry is 
                        unusually complex.
                    ``(B) Final determination.--
                            ``(i) In general.--Not later than 120 days 
                        after making an affirmative preliminary 
                        determination under subparagraph (A), the 
                        Commissioner shall make a final determination 
                        as to whether the covered merchandise was 
                        entered or introduced into the United States 
                        through evasion.
                            ``(ii) Extension.--The Commissioner may 
                        extend up to 60 days the time period specified 
                        in clause (i) if the Commissioner determines 
                        that sufficient information to make such final 
                        determination is not available within such time 
                        period or the inquiry is unusually complex.
                            ``(iii) Opportunity for comment; hearing.--
                        Before issuing such final determination, the 
                        Commissioner shall provide an opportunity for 
                        public comment and, to the maximum extent 
                        practicable, hold a hearing as to whether the 
                        covered merchandise was entered or introduced 
                        into the United States through evasion.
                    ``(C) Authority to collect and verify additional 
                information.--In making a preliminary determination 
                under subparagraph (A) or a final determination under 
                subparagraph (B), the Commissioner--
                            ``(i) shall exercise all existing 
                        authorities to collect information needed to 
                        make such determinations; and
                            ``(ii) may collect such additional 
                        information needed to make such determinations, 
                        including issuing questionnaires to an 
                        interested party with respect to covered 
                        merchandise and conducting verifications, 
                        including on-site verifications, of any 
                        information.
                    ``(D) Adverse inference.--If the Commissioner finds 
                that an interested party with respect to covered 
                merchandise has failed to cooperate by not acting to 
                the best of its ability to comply with a request for 
                information the Commissioner may, in making a 
                preliminary determination under subparagraph (A) or a 
                final determination under subparagraph (B), use an 
                inference that is adverse to the interests of that 
                party in selecting from among the facts otherwise 
                available to determine whether evasion has occurred. 
                Such adverse inference may include reliance on 
                information derived from--
                            ``(i) the petition;
                            ``(ii) a final determination by the 
                        Commissioner in an investigation under this 
                        section;
                            ``(iii) an investigation or review by the 
                        administering authority under title VII; or
                            ``(iv) any other information placed on the 
                        record.
                    ``(E) Notification and publication.--After making a 
                preliminary determination under subparagraph (A) or a 
                final determination under subparagraph (B), the 
                Commissioner shall not later than 14 days after the 
                date on which such determination is made--
                            ``(i) send notification of such 
                        determination to--
                                    ``(I) the administering authority;
                                    ``(II) any petitioning party or 
                                referring Federal department or agency; 
                                and
                                    ``(III) any importer of such 
                                products; and
                            ``(ii) publish such determination in the 
                        Customs Bulletin.
            ``(3) Business proprietary information.--
                    ``(A) Establishment of procedures.--For each 
                investigation under paragraph (1), the Commissioner 
                shall establish procedures for the submission of 
                business proprietary information under an 
                administrative protective order that protects against 
                public disclosure of such information but provides 
                limited access to parties to the investigation 
                identified in paragraph (1)(B)(i) for purposes of 
                submitting comments to the Commissioner. Such 
                procedures shall be administered, to the maximum extent 
                practicable, in accordance with administrative 
                protective order procedures under section 777 by the 
                administering authority.
                    ``(B) Disclosure of business proprietary 
                information.--The Commissioner shall, in accordance 
                with the procedures established under subparagraph (A), 
                make all business proprietary information presented to, 
                or obtained by, the Commissioner during an 
                investigation available to parties to the investigation 
                under an administrative protective order, regardless of 
                when such information is submitted during an 
                investigation.
    ``(d) Effect of Determinations.--
            ``(1) Effect of affirmative preliminary determination.--If 
        the Commissioner makes a preliminary determination in 
        accordance with subsection (c)(2)(A) that there is a reasonable 
        indication that covered merchandise was entered or introduced 
        into the United States through evasion, the Commissioner 
        shall--
                    ``(A)(i) suspend liquidation of each entry of the 
                covered merchandise with respect to which such 
                determination has been made that--
                            ``(I) enters on or after the date of such 
                        determination; or
                            ``(II) entered before such date, if the 
                        liquidation of such entry is not final on such 
                        date; and
                    ``(ii) notwithstanding section 501, reopen and hold 
                in suspension any liquidated entry subject to the 
                investigation that was liquidated on or after the later 
                of--
                            ``(I) the date that is one year before the 
                        date on which the investigation was initiated; 
                        or
                            ``(II) the date on which suspension of 
                        liquidation of entries of the covered 
                        merchandise was first ordered pursuant to title 
                        VII or the Antidumping Act, 1921;
                    ``(B) notify the administering authority of such 
                determination that there is a reasonable indication 
                that covered merchandise was entered or introduced into 
                the United States through evasion and request that the 
                administering authority identify the applicable cash 
                deposit rate to be applied to the entries at issue; and
                    ``(C) require the posting of such cash deposit for 
                each such entry.
            ``(2) Effect of negative preliminary determination.--If the 
        Commissioner makes a preliminary determination in accordance 
        with subsection (c)(2)(A) that there is not a reasonable 
        indication that covered merchandise was entered or introduced 
        into the United States through evasion, the Commissioner shall 
        continue the investigation and notify the administering 
        authority pending a final determination under subsection 
        (c)(2)(B).
            ``(3)(A) Effect of affirmative final determination.--If the 
        Commissioner makes a final determination in accordance with 
        subsection (c)(2)(B) that covered merchandise was entered or 
        introduced into the United States through evasion, the 
        Commissioner shall--
                            ``(i) suspend, or as the case may be, 
                        continue to suspend liquidation of each entry 
                        of merchandise with respect to which such final 
                        determination has been made that enters on or 
                        after the date of such determination;
                            ``(ii) notify the administering authority 
                        of the determination that covered merchandise 
                        was entered or introduced into the United 
                        States through evasion and request that the 
                        administering authority--
                                    ``(I) identify the applicable 
                                antidumping or countervailing duty 
                                assessment rate for the entries for 
                                which liquidation is suspended under 
                                subclause (I) or (II) of paragraph 
                                (1)(A)(i) or clause (i) of this 
                                subparagraph; or
                                    ``(II) if no such assessment rates 
                                are available at the time, identify the 
                                applicable cash deposit rate to be 
                                applied to the entries under clause 
                                (i), with the applicable antidumping or 
                                countervailing duty assessment rates to 
                                be provided as soon as such rates 
                                become available;
                            ``(iii) require the posting of cash 
                        deposits and assess duties on each entry in 
                        accordance with the instructions received from 
                        the administering authority under paragraph 
                        (5);
                            ``(iv) review and reassess the amount of 
                        bond or other security the importer is required 
                        to post for such merchandise entered on or 
                        after the date of such determination to ensure 
                        the protection of revenue and compliance with 
                        the law; and
                            ``(v) take such additional enforcement 
                        measures as the Commissioner determines 
                        appropriate, such as--
                                    ``(I) initiating proceedings under 
                                sections 592 or 596;
                                    ``(II) implementing, in 
                                consultation with the relevant Federal 
                                departments and agencies, rule sets or 
                                modifications to rules sets for 
                                identifying, particularly through the 
                                Automated Targeting System, 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 submit entry 
                                summary documentation and to deposit 
                                estimated duties at the time of entry;
                                    ``(IV) referring the record in 
                                whole or in part to U.S. Immigration 
                                and Customs Enforcement for criminal 
                                investigation; and
                                    ``(V) transmitting the 
                                administrative record to the 
                                administering authority for further 
                                appropriate proceedings.
                    ``(B) Special rule.--Notwithstanding the initiation 
                of an investigation under subsection (c) or a final 
                determination under paragraph (2)(B) of such 
                subsection, the Commissioner may pursue all enforcement 
                measures against an evasion of antidumping or 
                countervailing duties as the Commissioner determines 
                necessary, including enforcement measures described in 
                subclauses (I) through (IV) of subparagraph (A)(v).
            ``(4) Effect of negative final determination.--If the 
        Commissioner makes a final determination in accordance with 
        subsection (c)(2)(B) that covered merchandise was not entered 
        or introduced into the United States through evasion, the 
        Commissioner shall terminate the suspension of liquidation 
        pursuant to paragraph (1)(A) and refund any cash deposits 
        collected pursuant to paragraph (1)(C).
            ``(5) Administering authority.--
                    ``(A) In general.--Upon receiving a notification 
                from the Commissioner under paragraph (1)(B) or 
                (3)(A)(ii), 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 
                administering authority are unable to determine the 
                producer or exporter of the merchandise with respect to 
                which a notification is made under paragraph (1)(B) or 
                (3)(A)(ii), 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 other' 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.''.
    (b) Technical Amendment.--Clause (ii) of section 777(b)(1)(A) of 
the Tariff Act of 1930 (19 U.S.C. 1677f(b)(1)(A)) is amended to read as 
follows:
                            ``(ii) to an officer or employee of U.S. 
                        Customs and Border Protection who is directly 
                        involved in conducting an investigation 
                        regarding fraud under this title or claims of 
                        evasion under section 516B.''.
    (c) Judicial Review.--Section 516A(a)(2) of the Tariff Act of 1930 
(19 U.S.C. 1516a(a)(2)) is amended--
            (1) in subparagraph (A)--
                    (A) in clause (i)(III), by striking ``or'' at the 
                end;
                    (B) in clause (ii), by adding ``or'' at the end; 
                and
                    (C) by adding at the end the following new clause:
                            ``(iii) the date of publication in the 
                        Customs Bulletin of a final determination 
                        described in clause (ix) of subparagraph 
                        (B),''; and
            (2) in subparagraph (B), by adding at the end the following 
        new clause:
                            ``(ix) A final determination by the 
                        Commissioner responsible for U.S. Customs and 
                        Border Protection under section 516B.''.
    (d) Finality of Determinations.--Section 514(b) of the Tariff Act 
of 1930 (19 U.S.C. 1514(b)) is amended by striking ``section 303'' and 
all that follows through ``which are reviewable'' and inserting 
``section 303, section 516B, or title VII which are reviewable''.

SEC. 3. ALLOCATION OF U.S. CUSTOMS AND BORDER PROTECTION PERSONNEL.

    (a) Reassignment and Allocation.--The Commissioner responsible for 
U.S. Customs and Border Protection shall, to the maximum extent 
possible, ensure that U.S. Customs and Border Protection--
            (1) employs sufficient personnel who have expertise and 
        responsibility for preventing the importation of merchandise in 
        a manner that evades an antidumping order or countervailing 
        duty order under section 736 or 706, respectively, of the 
        Tariff Act of 1930, or a finding issued under the Antidumping 
        Act, 1921; and
            (2) on the basis of risk assessment metrics, assigns 
        sufficient personnel with primary responsibility for preventing 
        the importation of merchandise in a manner that evades an 
        antidumping order or countervailing duty order under section 
        736 or 706, respectively, of the Tariff Act of 1930, or a 
        finding issued under the Antidumping Act, 1921 to the ports of 
        entry in the United States at which the Commissioner determines 
        the most substantial threats to revenue exist.
    (b) Commercial Enforcement Officers.--
            (1) In general.--Not later than September 30, 2011, and 
        subject to the availability of appropriations, the Commissioner 
        shall hire not less than an additional 100 full-time equivalent 
        personnel to serve as Commercial Enforcement Officers within 
        the Office of Field Operations.
            (2) Assignment.--The Commissioner shall assign Commercial 
        Enforcement Officers hired under paragraph (1) among the 20 
        United States ports of entry that experienced the highest 
        volume of trade during fiscal year 2009.
            (3) Duties.--The duties of a Commercial Enforcement Officer 
        hired under paragraph (1) shall be principally related to the 
        enforcement of priority trade issues as identified by the 
        Commissioner, and shall include--
                    (A) supervising all trade enforcement activities of 
                personnel of the Office of Field Operations at the port 
                of entry to which the Commercial Enforcement Officer 
                has been assigned;
                    (B) coordinating with the Office of International 
                Trade all trade enforcement activities at such port of 
                entry;
                    (C) directing the training of personnel at such 
                port of entry to effectuate the trade enforcement 
                activities of the Office of Field Operations; and
                    (D) otherwise conducting trade enforcement 
                activities at such port of entry.
            (4) Authorization of appropriations.--There are authorized 
        to be appropriated to carry out this subsection $20,000,000 for 
        fiscal year 2012 and each fiscal year thereafter.

SEC. 4. REGULATIONS.

    (a) In General.--Not later than 240 days after the date of the 
enactment of this Act, the Commissioner responsible for U.S. Customs 
and Border Protection shall issue regulations to carry out this Act and 
the amendments made by this Act.
    (b) Cooperation Between U.S. Customs and Border Protection and 
Department of Commerce.--Not later than 240 days after the date of the 
enactment of this Act, the Commissioner and the Secretary of Commerce 
shall establish procedures to ensure maximum cooperation and 
communication between U.S. Customs and Border Protection and the 
Department of Commerce in order to quickly, efficiently, and accurately 
investigate allegations of evasion under this Act and the amendments 
made by this Act.

SEC. 5. 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 2012, the Commissioner responsible for U.S. Customs and Border 
Protection, in consultation with the Secretary of Commerce, shall 
submit to the appropriate congressional committees a report on the 
efforts being taken to prevent evasion pursuant to section 516B of the 
Tariff Act of 1930 (as added by section 2 of this Act).
    (b) Contents.--Each report required under subsection (a) shall 
include, for the immediately preceding year--
            (1) the number and a brief description of petitions and 
        referrals received pursuant to section 516B(c)(1) of the Tariff 
        Act of 1930 (as added by section 2 of this Act);
            (2) the results of such investigations, including any 
        related enforcement actions, and the amount of antidumping and 
        countervailing duties collected as a result of such 
        investigations; and
            (3) to the extent appropriate, a summary of the efforts of 
        U.S. Customs and Border Protection, other than efforts 
        initiated pursuant section 516B of the Tariff Act of 1930 (as 
        added by section 2 of this Act), to prevent evasion.

SEC. 6. APPLICATION TO CANADA AND MEXICO.

    Pursuant to article 1902 of the North American Free Trade Agreement 
and section 408 of the North American Free Trade Agreement 
Implementation Act (19 U.S.C. 3438), the amendments made by this Act 
shall apply with respect to goods from Canada and Mexico.

SEC. 7. DEFINITIONS.

    In this Act, the terms ``appropriate congressional committees'', 
``Commissioner'', and ``evade'' and ``evasion'' have the meaning given 
such terms in section 516B(a) of the Tariff Act of 1930 (as added by 
section 2 of this Act).
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