II 

113TH CONGRESS 

2D SESSION S. 2994 

To amend the Tariff Act of 1930 to facilitate the administration and enforcement of antidumping and countervailing duty orders, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 10, 2014 

Mr. BROWN introduced the following bill; which was read twice and referred 

to the Committee on Finance 

A BILL 

To amend the Tariff Act of 1930 to facilitate the administration and enforcement 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 ‘‘Leveling the Playing 

5 Field Act’’. 


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1 SEC. 2. CONSEQUENCES OF FAILURE TO COOPERATE WITH 

2 A REQUEST FOR INFORMATION IN AN INVES3 TIGATION. 

4 Section 776 of the Tariff Act of 1930 (19 U.S.C. 

5 1677e) is amended— 

6 (1) in subsection (b)— 

7 (A) by redesignating paragraphs (1) 

8 through (4) as subparagraphs (A) through (D), 

9 respectively, and by moving such subpara10 graphs, as so redesignated, 2 ems to the right; 

11 (B) by striking ‘‘ADVERSE INFERENCES.— 

12 If’’ and inserting the following: ‘‘ADVERSE IN13 FERENCES.— 

14 ‘‘(1) IN GENERAL.—If’’; 

15 (C) by striking ‘‘under this title, may use’’ 

16 and inserting the following: ‘‘under this title— 

17 ‘‘(A) may use’’; and 

18 (D) by striking ‘‘facts otherwise available. 

19 Such adverse inference may include’’ and in20 serting the following: ‘‘facts otherwise available; 

21 and 

22 ‘‘(B) is not required to determine, or make 

23 any adjustments to, a countervailable subsidy 

24 rate or weighted average dumping margin based 

25 on any assumptions about information the in26 terested party would have provided if the interVerDate Sep 11 2014 00:22 Dec 18, 2014 Jkt 049200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2994.IS S2994

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1 ested party had complied with the request for 

2 information. 

3 ‘‘(2) ADVERSE INFERENCES.—An adverse infer4 ence under paragraph (1)(A) may include’’; 

5 (2) in subsection (c)— 

6 (A) by striking ‘‘CORROBORATION OF SEC7 ONDARY INFORMATION.—When the’’ and in8 serting the following: ‘‘CORROBORATION OF

9 SECONDARY INFORMATION.— 

10 ‘‘(1) IN GENERAL.—When the’’; and 

11 (B) by adding at the end the following: 

12 ‘‘(2) EXCEPTIONS.— 

13 ‘‘(A) INFORMATION PROVIDED BY

14 PARTY.—If the administrative authority or the 

15 Commission uses an inference that is adverse to 

16 the interests of a party under subsection 

17 (b)(1)(A), information provided by that party, 

18 including any dumping margin or subsidy rate 

19 calculated based on such information, shall not 

20 be considered secondary information under this 

21 subsection and shall not be subject to corrobo22 ration under paragraph (1), even if the infor23 mation was submitted by that party in a sepa24 rate proceeding under this title or a separate 

25 segment of the same proceeding. 


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1 ‘‘(B) INFORMATION RELATING TO DUMP2 ING MARGINS AND SUBSIDY RATES.—If the ad3 ministering authority uses a countervailable 

4 subsidy rate or dumping margin in accordance 

5 with subsection (d)(1), the administering au6 thority is not required to corroborate informa7 tion relating to that rate or margin under para8 graph (1) if that rate or margin was calculated, 

9 in whole or in part, using information— 

10 ‘‘(i) submitted by an interested party 

11 described in subparagraph (A) or (B) of 

12 section 771(9), and 

13 ‘‘(ii) certified by that interested party 

14 as accurate and complete to the best of 

15 that interested party’s knowledge under 

16 section 782(b).’’; and 

17 (3) by adding at the end the following: 

18 ‘‘(d) SUBSIDY RATES AND DUMPING MARGINS IN

19 ADVERSE INFERENCE DETERMINATIONS.— 

20 ‘‘(1) IN GENERAL.—If the administering au21 thority uses an inference that is adverse to the inter22 ests of a party under subsection (b)(1)(A) in select23 ing among facts otherwise available, the admin24 istering authority may— 


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1 ‘‘(A) in the case of a countervailing duty 

2 proceeding, use a subsidy rate— 

3 ‘‘(i) calculated with respect to a sub4 sidy program involved in the proceeding 

5 that is the same or similar to the subsidy 

6 program for which a determination is to be 

7 made under this section, or, in the absence 

8 of such a program, any other subsidy pro9 gram involved in the proceeding, 

10 ‘‘(ii) calculated in another counter11 vailing duty proceeding with respect to an12 other subsidy program implemented by the 

13 country that is implementing the subsidy 

14 program for which a determination is to be 

15 made under this section unless the admin16 istering authority has evidence that export17 ers or producers of the subject merchan18 dise could not have used such other sub19 sidy program, or 

20 ‘‘(iii) alleged in a petition filed under 

21 section 702(b) that was relied on by the 

22 administering authority to initiate the 

23 countervailing duty investigation, and 

24 ‘‘(B) in the case of an antidumping duty 

25 proceeding, use— 


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1 ‘‘(i) a dumping margin based on any 

2 individual sale of the subject merchandise 

3 calculated with respect to any exporter or 

4 producer involved in the proceeding during 

5 the investigation or review, 

6 ‘‘(ii) an individual weighted average 

7 dumping margin calculated with respect to 

8 any exporter or producer involved in the 

9 proceeding during the investigation or a re10 view, 

11 ‘‘(iii) any dumping margin alleged in 

12 a petition filed under section 732(b) that 

13 was relied on by the administering author14 ity to initiate the antidumping duty inves15 tigation, or 

16 ‘‘(iv) any dumping margin found in 

17 another antidumping duty proceeding with 

18 respect to a class or kind of merchandise 

19 that is the same or similar to and from the 

20 same country as subject merchandise in21 volved in the proceeding. 

22 ‘‘(2) DISCRETION TO APPLY HIGHEST RATE.— 

23 The administering authority has the discretion 

24 under paragraph (1), in selecting from among facts 

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1 able subsidy rates or dumping margins specified 

2 under that paragraph, including the highest such 

3 rate or margin. 

4 ‘‘(3) NO OBLIGATION TO MAKE CERTAIN ESTI5 MATES OR ADDRESS CERTAIN CLAIMS.—If the ad6 ministering authority uses an adverse inference 

7 under subsection (b)(1)(A) in selecting among facts 

8 otherwise available, the administering authority is 

9 not required, for purposes of subsection (c) or for 

10 any other purpose— 

11 ‘‘(A) to estimate what the countervailable 

12 subsidy rate or dumping margin would have 

13 been if the interested party found to have failed 

14 to cooperate under subsection (b)(1) had co15 operated, or 

16 ‘‘(B) to demonstrate that the countervail17 able subsidy rate or dumping margin used by 

18 the administering authority reflects the com19 mercial reality of the interested party. 

20 ‘‘(4) RULE OF CONSTRUCTION.—Nothing in 

21 this subsection shall be construed to limit the discre22 tion of the administering authority to use any other 

23 countervailable subsidy rate or dumping margin not 

24 specified in paragraph (1), subject to the corrobora25 tion requirements of subsection (c).’’. 


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1 SEC. 3. EVALUATION OF IMPACT ON DOMESTIC INDUSTRY 

2 IN DETERMINATION OF MATERIAL INJURY. 

3 Section 771(7)(C) of the Tariff Act of 1930 (19 

4 U.S.C. 1677(7)(C)) is amended by striking clause (iii) and 

5 inserting the following: 

6 ‘‘(iii) IMPACT ON AFFECTED DOMES7 TIC INDUSTRY.— 

8 ‘‘(I) IN GENERAL.—In examining 

9 the impact required to be considered 

10 under subparagraph (B)(i)(III), the 

11 Commission shall evaluate all relevant 

12 economic factors that have a bearing 

13 on the state of the industry in the 

14 United States, including— 

15 ‘‘(aa) actual and potential 

16 decline in output, sales, market 

17 share, gross profits, operating 

18 profits, net profits, ability to 

19 service debt, productivity, return 

20 on investments, return on assets, 

21 and utilization of capacity, 

22 ‘‘(bb) factors affecting do23 mestic prices, 

24 ‘‘(cc) actual and potential 

25 negative effects on cash flow, in26 ventories, employment, wages, 


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1 growth, ability to raise capital, 

2 and investment, 

3 ‘‘(dd) actual and potential 

4 negative effects on the existing 

5 development and production ef6 forts of the domestic industry, in7 cluding efforts to develop a deriv8 ative or more advanced version of 

9 the domestic like product, and 

10 ‘‘(ee) in a proceeding under 

11 subtitle B, the magnitude of the 

12 margin of dumping. 

13 ‘‘(II) EVALUATION OF ECONOMIC

14 FACTORS IN CONTEXT.— 

15 ‘‘(aa) IN GENERAL.—The 

16 Commission shall evaluate all rel17 evant economic factors described 

18 in subclause (I) within the con19 text of the business cycle and 

20 conditions of competition that are 

21 distinct to the affected industry. 

22 ‘‘(bb) INDUSTRY PERFORM23 ANCE.—The fact that the per24 formance of the affected industry 

25 has improved during the period 


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1 of investigation shall not preclude 

2 a finding of material injury or 

3 threat of material injury if the 

4 improvement in performance has 

5 been affected by imports of the 

6 subject merchandise. 

7 ‘‘(III) EFFECT OF RECESSION.— 

8 In the case of an investigation initi9 ated by petition, if the National Bu10 reau of Economic Research or another 

11 government agency responsible for 

12 business cycle evaluation declares that 

13 a recession began at any time during 

14 the 3-year period preceding the date 

15 on which the petition was filed, the 

16 Commission may, if timely requested 

17 by an interested party, extend its nor18 mal period of investigation to ensure 

19 that the period begins at least 365 

20 days before the beginning of the re21 cession to ensure that the condition of 

22 the affected industry can be appro23 priately assessed in relation to the 

24 business cycle.’’. 


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1 SEC. 4. DETERMINATION OF DUTIES FOR NEW EXPORTERS 

2 AND PRODUCERS BASED ON BONA FIDE 

3 UNITED STATES SALES. 

4 Section 751(a)(2)(B) of the Tariff Act of 1930 (19 

5 U.S.C. 1675(a)(2)(B)) is amended— 

6 (1) by striking clause (iii); 

7 (2) by redesignating clause (iv) as clause (iii); 

8 and 

9 (3) by adding at the end the following: 

10 ‘‘(iv) BONA FIDE UNITED STATES

11 SALES.— 

12 ‘‘(I) ELIGIBILITY FOR INDI13 VIDUAL MARGIN OR RATE.—An ex14 porter or producer is eligible for an 

15 individual weighted average dumping 

16 margin or individual countervailing 

17 duty rate established in a review con18 ducted under clause (i) only if that 

19 exporter or producer demonstrates 

20 that all sales of subject merchandise 

21 by that exporter or producer in the 

22 United States or for exportation to 

23 the United States during the period 

24 covered by the review are— 

25 ‘‘(aa) bona fide, and 


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1 ‘‘(bb) sold to a person that 

2 is not affiliated with that ex3 porter or producer. 

4 ‘‘(II) ELEMENTS OF BONA FIDE

5 DETERMINATION.—In determining 

6 whether the sales of an exporter or 

7 producer in the United States are 

8 bona fide for purposes of subclause 

9 (I)(aa), the administering authority 

10 shall consider, depending on the cir11 cumstances surrounding such sales— 

12 ‘‘(aa) the prices of such 

13 sales, 

14 ‘‘(bb) whether such sales 

15 were made in commercial quan16 tities, 

17 ‘‘(cc) the timing of such 

18 sales, 

19 ‘‘(dd) the expenses arising 

20 from such sales, 

21 ‘‘(ee) whether the subject 

22 merchandise involved in such 

23 sales was resold in the United 

24 States at a profit, 


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1 ‘‘(ff) whether such sales 

2 were made on an arms-length 

3 basis, and 

4 ‘‘(gg) any other factor the 

5 administering authority considers 

6 to be relevant with respect to 

7 whether such sales are, or are 

8 not, likely to be typical of sales 

9 the exporter or producer will 

10 make after completion of the re11 view.’’. 

12 SEC. 5. REQUIREMENT THAT CERTIFICATION BY IM13 PORTER AND EXPORTER ACCOMPANY CER14 TAIN MERCHANDISE UPON ENTRY. 

15 (a) IN GENERAL.—Subtitle D of title VII of the Tar16 iff Act of 1930 (19 U.S.C. 1677 et seq.) is amended by 

17 adding at the end the following: 

18 ‘‘SEC. 784. REQUIREMENT THAT CERTIFICATION BY IM19 PORTER AND EXPORTER ACCOMPANY CER20 TAIN MERCHANDISE UPON ENTRY. 

21 ‘‘(a) REQUIREMENT.— 

22 ‘‘(1) IN GENERAL.—In any case in which the 

23 administering authority requires that a certification 

24 described in paragraph (2) accompany imports of 

25 merchandise, the Commissioner responsible for U.S. 


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1 Customs and Border Protection (in this section re2 ferred to as the ‘Commissioner’) shall require the 

3 merchandise to be accompanied by that certification 

4 upon entry into the customs territory of the United 

5 States. 

6 ‘‘(2) CERTIFICATION DESCRIBED.—A certifi7 cation described in this paragraph is a certification, 

8 as required by the administering authority, by the 

9 importer or exporter of the merchandise that the 

10 merchandise is not subject to a duty under this title 

11 because the merchandise does not fall within the 

12 scope of any antidumping or countervailing duty 

13 order. 

14 ‘‘(b) AUTHORITY TO ASSESS HIGHEST RATE OF

15 DUTY.—If a certification described in paragraph (2) of 

16 subsection (a) is required to accompany the merchandise 

17 upon entry into the customs territory of the United States 

18 pursuant to paragraph (1) of that subsection, and that 

19 certification does not accompany the merchandise or a cer20 tification that contains any materially false, fictitious, or 

21 fraudulent statement or representation or any material 

22 omission accompanies the merchandise, the merchandise 

23 shall be liquidated or reliquidated at the highest rate of 

24 antidumping or countervailing duty applicable to the mer25 chandise. 


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1 ‘‘(c) PENALTIES.—If a certification described in 

2 paragraph (2) of subsection (a) is required to accompany 

3 the merchandise upon entry into the customs territory of 

4 the United States pursuant to paragraph (1) of that sub5 section, and that certification does not accompany the 

6 merchandise or a certification that contains any materially 

7 false, fictitious, or fraudulent statement or representation 

8 or any material omission accompanies the merchandise, 

9 the importer of the merchandise may be subject to a pen10 alty pursuant to section 592 of this Act, section 1001 of 

11 title 18, United States Code, or any other applicable provi12 sion of law.’’. 

13 (b) CLERICAL AMENDMENT.—The table of contents 

14 for title VII of the Tariff Act of 1930 is amended by in15 serting after the item relating to section 783 the following: 

‘‘Sec. 784. Requirement that certification by importer and exporter accompany 

certain merchandise upon entry.’’. 

16 SEC. 6. REDUCTION IN BURDEN ON DEPARTMENT OF COM17 MERCE BY REDUCING THE NUMBER OF VOL18 UNTARY RESPONDENTS. 

19 Section 782(a) of the Tariff Act of 1930 (19 U.S.C. 

20 1677m(a)) is amended— 

21 (1) in paragraph (1), by redesignating subpara22 graphs (A) and (B) as clauses (i) and (ii), respec23 tively, and by moving such clauses, as so redesig24 nated, 2 ems to the right; 


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1 (2) by redesignating paragraphs (1) and (2) as 

2 subparagraphs (A) and (B), respectively, and by 

3 moving such subparagraphs, as so redesignated, 2 

4 ems to the right; 

5 (3) by striking ‘‘INVESTIGATIONS AND RE6 VIEWS.—In’’ and inserting the following: ‘‘INVES7 TIGATIONS AND REVIEWS.— 

8 ‘‘(1) IN GENERAL.—In’’; 

9 (4) in paragraph (1), as designated by para10 graph (3), by amending subparagraph (B), as redes11 ignated by paragraph (2), to read as follows: 

12 ‘‘(B) the number of exporters or producers 

13 subject to the investigation or review is not so 

14 large that any additional individual examination 

15 of such exporters or producers would be unduly 

16 burdensome to the administering authority and 

17 inhibit the timely completion of the investiga18 tion or review.’’; and 

19 (5) by adding at the end the following: 

20 ‘‘(2) DETERMINATION OF UNDULY BURDEN21 SOME.—In determining if an individual examination 

22 under paragraph (1)(B) would be unduly burden23 some, the administering authority may consider the 

24 following: 


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1 ‘‘(A) The complexity of the issues or infor2 mation presented in the proceeding, including 

3 questionnaires and any responses thereto. 

4 ‘‘(B) Any prior experience of the admin5 istering authority in the same or similar pro6 ceeding. 

7 ‘‘(C) The total number of investigations 

8 under subtitle A or B and reviews under section 

9 751(a) being conducted by the administering 

10 authority as of the date of the determination. 

11 ‘‘(D) The availability of staff and other re12 sources considered necessary by the admin13 istering authority for the timely and accurate 

14 completion of each such investigation and re15 view. 

16 ‘‘(E) Such other factors relating to the 

17 timely and accurate completion of each such in18 vestigation and review as the administering au19 thority considers appropriate.’’. 

20 SEC. 7. CLARIFICATION OF DISCRETION OF SECRETARY OF 

21 COMMERCE TO DISREGARD CERTAIN PRICE 

22 OR COST VALUES IN CALCULATION OF NOR23 MAL VALUE. 

24 Section 773(c) of the Tariff Act of 1930 (19 U.S.C. 

25 1677b(c)) is amended by adding at the end the following: 


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1 ‘‘(5) DISCRETION TO DISREGARD CERTAIN

2 PRICE OR COST VALUES.—In valuing the factors of 

3 production under paragraph (1) for the subject mer4 chandise, the administering authority may disregard 

5 price or cost values if the administering authority 

6 has reason to believe or suspect that the subject 

7 merchandise is being subsidized or dumped, without 

8 investigating and determining that subsidization or 

9 dumping has occurred.’’. 

10 SEC. 8. CLARIFICATION OF FACTORS FOR DETERMINING 

11 WHETHER A COUNTRY IS A NONMARKET 

12 ECONOMY COUNTRY. 

13 Section 771(18)(B) of the Tariff Act of 1930 (19 

14 U.S.C. 1677(18)(B)) is amended— 

15 (1) in clause (v), by striking ‘‘and’’ at the end; 

16 (2) by redesignating clause (vi) as clause (vii); 

17 and 

18 (3) by inserting after clause (v) the following: 

19 ‘‘(vi) the extent to which the govern20 ment of the foreign country enforces and 

21 administers its laws, legal and administra22 tive procedures, and other policies in an 

23 open and transparent manner that affords 

24 all parties, whether foreign or domestic, 

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1 tory treatment under those laws, proce2 dures, and policies, and’’. 

3 SEC. 9. APPLICATION TO CANADA AND MEXICO. 

4 Pursuant to article 1902 of the North American Free 

5 Trade Agreement and section 408 of the North American 

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

7 3438), the amendments made by this Act shall apply with 

8 respect to goods from Canada and Mexico. 

Æ 


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