I 

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. SA ́NCHEZ 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. 

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 2010’’. 

6 SEC. 2. PROCEDURES FOR INVESTIGATING CLAIMS OF EVA7 SION. 

8 (a) IN GENERAL.—The Tariff Act of 1930 is amend9 ed by inserting after section 516A (19 U.S.C. 1516a) the 

10 following new section: 


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1 ‘‘SEC. 516B. PROCEDURES FOR INVESTIGATING CLAIMS OF 

2 EVASION. 

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

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

5 ‘administering authority’ means the authority de6 scribed in section 771(1). 

7 ‘‘(2) APPROPRIATE CONGRESSIONAL COMMIT8 TEES.—The term ‘appropriate congressional com9 mittees’ means— 

10 ‘‘(A) the Committee on Finance and the 

11 Committee on Appropriations of the Senate; 

12 and 

13 ‘‘(B) the Committee on Ways and Means 

14 and the Committee on Appropriations of the 

15 House of Representatives. 

16 ‘‘(3) COMMISSIONER.—The term ‘Commis17 sioner’ means the Commissioner responsible for U.S. 

18 Customs and Border Protection. 

19 ‘‘(4) COVERED MERCHANDISE.—The term ‘cov20 ered merchandise’ means merchandise that is subject 

21 to— 

22 ‘‘(A) an antidumping order issued under 

23 section 736; 

24 ‘‘(B) a finding issued under the Anti25 dumping Act, 1921; or 


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1 ‘‘(C) a countervailing duty order issued 

2 under section 706. 

3 ‘‘(5) EVADE; EVASION.—The terms ‘evade’ and 

4 ‘evasion’ refer to entering or introducing covered 

5 merchandise into the commerce of the United States 

6 by means of— 

7 ‘‘(A) any document or electronically trans8 mitted data or information, written or oral 

9 statement, or act which is material and false, or 

10 ‘‘(B) any omission which is material, 

11 that results in any cash deposit or other security or 

12 any amount of applicable antidumping or counter13 vailing duties being reduced or not being applied on 

14 the merchandise. 

15 ‘‘(6) INTERESTED PARTY.—The term ‘inter16 ested party’ means an interested party as defined in 

17 section 771(9). 

18 ‘‘(b) CLARIFICATIONS.— 

19 ‘‘(1) NEGLIGENCE OR INTENT OF IMPORTER.— 

20 The Commissioner shall investigate and make deter21 minations regarding evasion pursuant to this section 

22 without taking into consideration whether the im23 porter concerned intended to violate or failed to ex24 ercise reasonable care resulting in a violation of an 

25 antidumping order or countervailing duty order 


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1 under section 736 or 706, respectively, or a finding 

2 issued under the Antidumping Act, 1921. 

3 ‘‘(2) RULE OF CONSTRUCTION RELATING TO

4 PENALTIES.—Nothing in this section limits the au5 thority of U.S. Customs and Border Protection to 

6 assess penalties and collect applicable duties, taxes, 

7 and fees, including assessment of penalties and col8 lection of applicable duties, taxes, and fees pursuant 

9 to section 592. 

10 ‘‘(c) PROCEDURES FOR INVESTIGATING CLAIMS OF

11 EVASION.— 

12 ‘‘(1) INITIATION BY PETITION OR REFERRAL.— 

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

14 shall initiate an investigation pursuant to this 

15 paragraph not later than 10 days after the date 

16 on which the Commissioner receives a petition 

17 described in subparagraph (B) or a referral de18 scribed in subparagraph (C). 

19 ‘‘(B) PETITION DESCRIBED.—A petition 

20 described in this subparagraph is a petition 

21 that— 

22 ‘‘(i) is filed with the Commissioner by 

23 any party who is an interested party with 

24 respect to covered merchandise; 


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1 ‘‘(ii) alleges evasion with respect to 

2 covered merchandise; and 

3 ‘‘(iii) is accompanied by information 

4 reasonably available to the petitioner sup5 porting such allegations. 

6 ‘‘(C) REFERRAL DESCRIBED.—A referral 

7 described in this subparagraph is information 

8 submitted to the Commissioner by any other 

9 Federal department or agency, including the 

10 Department of Commerce or the United States 

11 International Trade Commission, indicating 

12 evasion with respect to covered merchandise. 

13 ‘‘(2) DETERMINATIONS.— 

14 ‘‘(A) PRELIMINARY DETERMINATION.— 

15 ‘‘(i) IN GENERAL.—Not later than 60 

16 days after the date on which the Commis17 sioner initiates an investigation under 

18 paragraph (1), the Commissioner shall 

19 issue a preliminary determination, based 

20 on information available to the Commis21 sioner at the time of such determination, 

22 as to whether there is a reasonable indica23 tion the covered merchandise was entered 

24 or introduced into the United States 

25 through evasion. 


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1 ‘‘(ii) EXTENSION.—The Commissioner 

2 may extend up to 45 days the time period 

3 specified in clause (i) if the Commissioner 

4 determines that sufficient information to 

5 make such preliminary determination is 

6 not available within such time period or 

7 the inquiry is unusually complex. 

8 ‘‘(B) FINAL DETERMINATION.— 

9 ‘‘(i) IN GENERAL.—Not later than 

10 120 days after making an affirmative pre11 liminary determination under subpara12 graph (A), the Commissioner shall make a 

13 final determination as to whether the cov14 ered merchandise was entered or intro15 duced into the United States through eva16 sion. 

17 ‘‘(ii) EXTENSION.—The Commissioner 

18 may extend up to 60 days the time period 

19 specified in clause (i) if the Commissioner 

20 determines that sufficient information to 

21 make such final determination is not avail22 able within such time period or the inquiry 

23 is unusually complex. 

24 ‘‘(iii) OPPORTUNITY FOR COMMENT; 

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1 mination, the Commissioner shall provide 

2 an opportunity for public comment and, to 

3 the maximum extent practicable, hold a 

4 hearing as to whether the covered mer5 chandise was entered or introduced into 

6 the United States through evasion. 

7 ‘‘(C) AUTHORITY TO COLLECT AND VERIFY

8 ADDITIONAL INFORMATION.—In making a pre9 liminary determination under subparagraph (A) 

10 or a final determination under subparagraph 

11 (B), the Commissioner— 

12 ‘‘(i) shall exercise all existing authori13 ties to collect information needed to make 

14 such determinations; and 

15 ‘‘(ii) may collect such additional infor16 mation needed to make such determina17 tions, including issuing questionnaires to 

18 an interested party with respect to covered 

19 merchandise and conducting verifications, 

20 including on-site verifications, of any infor21 mation. 

22 ‘‘(D) ADVERSE INFERENCE.—If the Com23 missioner finds that an interested party with re24 spect to covered merchandise has failed to co25 operate by not acting to the best of its ability 


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1 to comply with a request for information the 

2 Commissioner may, in making a preliminary de3 termination under subparagraph (A) or a final 

4 determination under subparagraph (B), use an 

5 inference that is adverse to the interests of that 

6 party in selecting from among the facts other7 wise available to determine whether evasion has 

8 occurred. Such adverse inference may include 

9 reliance on information derived from— 

10 ‘‘(i) the petition; 

11 ‘‘(ii) a final determination by the 

12 Commissioner in an investigation under 

13 this section; 

14 ‘‘(iii) an investigation or review by the 

15 administering authority under title VII; or 

16 ‘‘(iv) any other information placed on 

17 the record. 

18 ‘‘(E) NOTIFICATION AND PUBLICATION.— 

19 After making a preliminary determination 

20 under subparagraph (A) or a final determina21 tion under subparagraph (B), the Commissioner 

22 shall not later than 14 days after the date on 

23 which such determination is made— 

24 ‘‘(i) send notification of such deter25 mination to— 


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1 ‘‘(I) the administering authority; 

2 ‘‘(II) any petitioning party or re3 ferring Federal department or agency; 

4 and 

5 ‘‘(III) any importer of such prod6 ucts; and 

7 ‘‘(ii) publish such determination in the 

8 Customs Bulletin. 

9 ‘‘(3) BUSINESS PROPRIETARY INFORMATION.— 

10 ‘‘(A) ESTABLISHMENT OF PROCEDURES.— 

11 For each investigation under paragraph (1), the 

12 Commissioner shall establish procedures for the 

13 submission of business proprietary information 

14 under an administrative protective order that 

15 protects against public disclosure of such infor16 mation but provides limited access to parties to 

17 the investigation identified in paragraph 

18 (1)(B)(i) for purposes of submitting comments 

19 to the Commissioner. Such procedures shall be 

20 administered, to the maximum extent prac21 ticable, in accordance with administrative pro22 tective order procedures under section 777 by 

23 the administering authority. 

24 ‘‘(B) DISCLOSURE OF BUSINESS PROPRI25 ETARY INFORMATION.—The Commissioner 


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1 shall, in accordance with the procedures estab2 lished under subparagraph (A), make all busi3 ness proprietary information presented to, or 

4 obtained by, the Commissioner during an inves5 tigation available to parties to the investigation 

6 under an administrative protective order, re7 gardless of when such information is submitted 

8 during an investigation. 

9 ‘‘(d) EFFECT OF DETERMINATIONS.— 

10 ‘‘(1) EFFECT OF AFFIRMATIVE PRELIMINARY

11 DETERMINATION.—If the Commissioner makes a 

12 preliminary determination in accordance with sub13 section (c)(2)(A) that there is a reasonable indica14 tion that covered merchandise was entered or intro15 duced into the United States through evasion, the 

16 Commissioner shall— 

17 ‘‘(A)(i) suspend liquidation of each entry 

18 of the covered merchandise with respect to 

19 which such determination has been made that— 

20 ‘‘(I) enters on or after the date of 

21 such determination; or 

22 ‘‘(II) entered before such date, if the 

23 liquidation of such entry is not final on 

24 such date; and 


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1 ‘‘(ii) notwithstanding section 501, reopen 

2 and hold in suspension any liquidated entry 

3 subject to the investigation that was liquidated 

4 on or after the later of— 

5 ‘‘(I) the date that is one year before 

6 the date on which the investigation was 

7 initiated; or 

8 ‘‘(II) the date on which suspension of 

9 liquidation of entries of the covered mer10 chandise was first ordered pursuant to title 

11 VII or the Antidumping Act, 1921; 

12 ‘‘(B) notify the administering authority of 

13 such determination that there is a reasonable 

14 indication that covered merchandise was en15 tered or introduced into the United States 

16 through evasion and request that the admin17 istering authority identify the applicable cash 

18 deposit rate to be applied to the entries at 

19 issue; and 

20 ‘‘(C) require the posting of such cash de21 posit for each such entry. 

22 ‘‘(2) EFFECT OF NEGATIVE PRELIMINARY DE23 TERMINATION.—If the Commissioner makes a pre24 liminary determination in accordance with sub25 section (c)(2)(A) that there is not a reasonable indiVerDate Mar 15 2010 19:07 Dec 20, 2010 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H6549.IH H6549

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1 cation that covered merchandise was entered or in2 troduced into the United States through evasion, the 

3 Commissioner shall continue the investigation and 

4 notify the administering authority pending a final 

5 determination under subsection (c)(2)(B). 

6 ‘‘(3)(A) EFFECT OF AFFIRMATIVE FINAL DE7 TERMINATION.—If the Commissioner makes a final 

8 determination in accordance with subsection 

9 (c)(2)(B) that covered merchandise was entered or 

10 introduced into the United States through evasion, 

11 the Commissioner shall— 

12 ‘‘(i) suspend, or as the case may be, 

13 continue to suspend liquidation of each 

14 entry of merchandise with respect to which 

15 such final determination has been made 

16 that enters on or after the date of such de17 termination; 

18 ‘‘(ii) notify the administering author19 ity of the determination that covered mer20 chandise was entered or introduced into 

21 the United States through evasion and re22 quest that the administering authority— 

23 ‘‘(I) identify the applicable anti24 dumping or countervailing duty as25 sessment rate for the entries for 


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1 which liquidation is suspended under 

2 subclause (I) or (II) of paragraph 

3 (1)(A)(i) or clause (i) of this subpara4 graph; or 

5 ‘‘(II) if no such assessment rates 

6 are available at the time, identify the 

7 applicable cash deposit rate to be ap8 plied to the entries under clause (i), 

9 with the applicable antidumping or 

10 countervailing duty assessment rates 

11 to be provided as soon as such rates 

12 become available; 

13 ‘‘(iii) require the posting of cash de14 posits and assess duties on each entry in 

15 accordance with the instructions received 

16 from the administering authority under 

17 paragraph (5); 

18 ‘‘(iv) review and reassess the amount 

19 of bond or other security the importer is 

20 required to post for such merchandise en21 tered on or after the date of such deter22 mination to ensure the protection of rev23 enue and compliance with the law; and 


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1 ‘‘(v) take such additional enforcement 

2 measures as the Commissioner determines 

3 appropriate, such as— 

4 ‘‘(I) initiating proceedings under 

5 sections 592 or 596; 

6 ‘‘(II) implementing, in consulta7 tion with the relevant Federal depart8 ments and agencies, rule sets or modi9 fications to rules sets for identifying, 

10 particularly through the Automated 

11 Targeting System, importers, other 

12 parties, and merchandise that may be 

13 associated with evasion; 

14 ‘‘(III) requiring, with respect to 

15 merchandise for which the importer 

16 has repeatedly provided incomplete or 

17 erroneous entry summary information 

18 in connection with determinations of 

19 evasion, the importer to submit entry 

20 summary documentation and to de21 posit estimated duties at the time of 

22 entry; 

23 ‘‘(IV) referring the record in 

24 whole or in part to U.S. Immigration 


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1 and Customs Enforcement for crimi2 nal investigation; and 

3 ‘‘(V) transmitting the adminis4 trative record to the administering au5 thority for further appropriate pro6 ceedings. 

7 ‘‘(B) SPECIAL RULE.—Notwithstanding 

8 the initiation of an investigation under sub9 section (c) or a final determination under para10 graph (2)(B) of such subsection, the Commis11 sioner may pursue all enforcement measures 

12 against an evasion of antidumping or counter13 vailing duties as the Commissioner determines 

14 necessary, including enforcement measures de15 scribed in subclauses (I) through (IV) of sub16 paragraph (A)(v). 

17 ‘‘(4) EFFECT OF NEGATIVE FINAL DETERMINA18 TION.—If the Commissioner makes a final deter19 mination in accordance with subsection (c)(2)(B) 

20 that covered merchandise was not entered or intro21 duced into the United States through evasion, the 

22 Commissioner shall terminate the suspension of liq23 uidation pursuant to paragraph (1)(A) and refund 

24 any cash deposits collected pursuant to paragraph 

25 (1)(C). 


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1 ‘‘(5) ADMINISTERING AUTHORITY.— 

2 ‘‘(A) IN GENERAL.—Upon receiving a noti3 fication from the Commissioner under para4 graph (1)(B) or (3)(A)(ii), the administering 

5 authority shall promptly provide to the Commis6 sioner the applicable cash deposit rates and 

7 antidumping or countervailing duty assessment 

8 rates and any necessary liquidation instruc9 tions. 

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

11 THE PRODUCER OR EXPORTER IS UNKNOWN.— 

12 If the Commissioner and administering author13 ity are unable to determine the producer or ex14 porter of the merchandise with respect to which 

15 a notification is made under paragraph (1)(B) 

16 or (3)(A)(ii), the administering authority shall 

17 identify, as the applicable cash deposit rate or 

18 antidumping or countervailing duty assessment 

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

20 be) in the highest amount applicable to any 

21 producer or exporter, including the ‘all other’ 

22 rate of the merchandise subject to an anti23 dumping order or countervailing duty order 

24 under section 736 or 706, respectively, or a 

25 finding issued under the Antidumping Act, 


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1 1921, or any administrative review conducted 

2 under section 751.’’. 

3 (b) TECHNICAL AMENDMENT.—Clause (ii) of section 

4 777(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 

5 1677f(b)(1)(A)) is amended to read as follows: 

6 ‘‘(ii) to an officer or employee of U.S. 

7 Customs and Border Protection who is di8 rectly involved in conducting an investiga9 tion regarding fraud under this title or 

10 claims of evasion under section 516B.’’. 

11 (c) JUDICIAL REVIEW.—Section 516A(a)(2) of the 

12 Tariff Act of 1930 (19 U.S.C. 1516a(a)(2)) is amended— 

13 (1) in subparagraph (A)— 

14 (A) in clause (i)(III), by striking ‘‘or’’ at 

15 the end; 

16 (B) in clause (ii), by adding ‘‘or’’ at the 

17 end; and 

18 (C) by adding at the end the following new 

19 clause: 

20 ‘‘(iii) the date of publication in the 

21 Customs Bulletin of a final determination 

22 described in clause (ix) of subparagraph 

23 (B),’’; and 

24 (2) in subparagraph (B), by adding at the end 

25 the following new clause: 


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1 ‘‘(ix) A final determination by the 

2 Commissioner responsible for U.S. Cus3 toms and Border Protection under section 

4 516B.’’. 

5 (d) FINALITY OF DETERMINATIONS.—Section 514(b) 

6 of the Tariff Act of 1930 (19 U.S.C. 1514(b)) is amended 

7 by striking ‘‘section 303’’ and all that follows through 

8 ‘‘which are reviewable’’ and inserting ‘‘section 303, section 

9 516B, or title VII which are reviewable’’. 

10 SEC. 3. ALLOCATION OF U.S. CUSTOMS AND BORDER PRO11 TECTION PERSONNEL. 

12 (a) REASSIGNMENT AND ALLOCATION.—The Com13 missioner responsible for U.S. Customs and Border Pro14 tection shall, to the maximum extent possible, ensure that 

15 U.S. Customs and Border Protection— 

16 (1) employs sufficient personnel who have ex17 pertise and responsibility for preventing the importa18 tion of merchandise in a manner that evades an 

19 antidumping order or countervailing duty order 

20 under section 736 or 706, respectively, of the Tariff 

21 Act of 1930, or a finding issued under the Anti22 dumping Act, 1921; and 

23 (2) on the basis of risk assessment metrics, as24 signs sufficient personnel with primary responsibility 

25 for preventing the importation of merchandise in a 


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1 manner that evades an antidumping order or coun2 tervailing duty order under section 736 or 706, re3 spectively, of the Tariff Act of 1930, or a finding 

4 issued under the Antidumping Act, 1921 to the 

5 ports of entry in the United States at which the 

6 Commissioner determines the most substantial 

7 threats to revenue exist. 

8 (b) COMMERCIAL ENFORCEMENT OFFICERS.— 

9 (1) IN GENERAL.—Not later than September 

10 30, 2011, and subject to the availability of appro11 priations, the Commissioner shall hire not less than 

12 an additional 100 full-time equivalent personnel to 

13 serve as Commercial Enforcement Officers within 

14 the Office of Field Operations. 

15 (2) ASSIGNMENT.—The Commissioner shall as16 sign Commercial Enforcement Officers hired under 

17 paragraph (1) among the 20 United States ports of 

18 entry that experienced the highest volume of trade 

19 during fiscal year 2009. 

20 (3) DUTIES.—The duties of a Commercial En21 forcement Officer hired under paragraph (1) shall be 

22 principally related to the enforcement of priority 

23 trade issues as identified by the Commissioner, and 

24 shall include— 


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1 (A) supervising all trade enforcement ac2 tivities of personnel of the Office of Field Oper3 ations at the port of entry to which the Com4 mercial Enforcement Officer has been assigned; 

5 (B) coordinating with the Office of Inter6 national Trade all trade enforcement activities 

7 at such port of entry; 

8 (C) directing the training of personnel at 

9 such port of entry to effectuate the trade en10 forcement activities of the Office of Field Oper11 ations; and 

12 (D) otherwise conducting trade enforce13 ment activities at such port of entry. 

14 (4) AUTHORIZATION OF APPROPRIATIONS.— 

15 There are authorized to be appropriated to carry out 

16 this subsection $20,000,000 for fiscal year 2012 and 

17 each fiscal year thereafter. 

18 SEC. 4. REGULATIONS. 

19 (a) IN GENERAL.—Not later than 240 days after the 

20 date of the enactment of this Act, the Commissioner re21 sponsible for U.S. Customs and Border Protection shall 

22 issue regulations to carry out this Act and the amend23 ments made by this Act. 

24 (b) COOPERATION BETWEEN U.S. CUSTOMS AND

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1 MERCE.—Not later than 240 days after the date of the 

2 enactment of this Act, the Commissioner and the Sec3 retary of Commerce shall establish procedures to ensure 

4 maximum cooperation and communication between U.S. 

5 Customs and Border Protection and the Department of 

6 Commerce in order to quickly, efficiently, and accurately 

7 investigate allegations of evasion under this Act and the 

8 amendments made by this Act. 

9 SEC. 5. ANNUAL REPORT ON PREVENTION OF EVASION OF 

10 ANTIDUMPING AND COUNTERVAILING DUTY 

11 ORDERS. 

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

13 each year, beginning in 2012, the Commissioner respon14 sible for U.S. Customs and Border Protection, in consulta15 tion with the Secretary of Commerce, shall submit to the 

16 appropriate congressional committees a report on the ef17 forts being taken to prevent evasion pursuant to section 

18 516B of the Tariff Act of 1930 (as added by section 2 

19 of this Act). 

20 (b) CONTENTS.—Each report required under sub21 section (a) shall include, for the immediately preceding 

22 year— 

23 (1) the number and a brief description of peti24 tions and referrals received pursuant to section 


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1 516B(c)(1) of the Tariff Act of 1930 (as added by 

2 section 2 of this Act); 

3 (2) the results of such investigations, including 

4 any related enforcement actions, and the amount of 

5 antidumping and countervailing duties collected as a 

6 result of such investigations; and 

7 (3) to the extent appropriate, a summary of the 

8 efforts of U.S. Customs and Border Protection, 

9 other than efforts initiated pursuant section 516B of 

10 the Tariff Act of 1930 (as added by section 2 of this 

11 Act), to prevent evasion. 

12 SEC. 6. APPLICATION TO CANADA AND MEXICO. 

13 Pursuant to article 1902 of the North American Free 

14 Trade Agreement and section 408 of the North American 

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

16 3438), the amendments made by this Act shall apply with 

17 respect to goods from Canada and Mexico. 

18 SEC. 7. DEFINITIONS. 

19 In this Act, the terms ‘‘appropriate congressional 

20 committees’’, ‘‘Commissioner’’, and ‘‘evade’’ and ‘‘eva21 sion’’ have the meaning given such terms in section 

22 516B(a) of the Tariff Act of 1930 (as added by section 

23 2 of this Act). 

Æ 


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