II 

114TH CONGRESS 

1ST SESSION S. 891 

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 

MARCH 26, 2015 

Mr. BROWN (for himself, Mr. GRAHAM, Mr. FRANKEN, and Mrs. MCCASKILL) 

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 A PRO3 CEEDING. 

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 23:09 Apr 06, 2015 Jkt 049200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S891.IS S891

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1 ested party had complied with the request for 

2 information. 

3 ‘‘(2) POTENTIAL SOURCES OF INFORMATION

4 FOR ADVERSE INFERENCES.—An adverse inference 

5 under paragraph (1)(A) may include’’; and 

6 (2) by adding at the end the following: 

7 ‘‘(d) JUDICIAL REVIEW.—Notwithstanding any other 

8 provision of law, any determination made by the admin9 istering authority or the Commission in selecting the facts 

10 otherwise available or using an inference that is adverse 

11 to the interests of a party under subsection (b)(1)(A) shall 

12 not be subject to judicial review.’’. 

13 SEC. 3. EVALUATION OF IMPACT ON DOMESTIC INDUSTRY 

14 IN DETERMINATION OF MATERIAL INJURY. 

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

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

17 inserting the following: 

18 ‘‘(iii) IMPACT ON AFFECTED DOMES19 TIC INDUSTRY.— 

20 ‘‘(I) IN GENERAL.—In examining 

21 the impact required to be considered 

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

23 Commission shall evaluate all relevant 

24 economic factors that have a bearing 


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1 on the state of the industry in the 

2 United States, including— 

3 ‘‘(aa) actual and potential 

4 decline in output, sales, market 

5 share, gross profits, operating 

6 profits, net profits, ability to 

7 service debt, productivity, return 

8 on investments, return on assets, 

9 and utilization of capacity, 

10 ‘‘(bb) factors affecting do11 mestic prices, 

12 ‘‘(cc) actual and potential 

13 negative effects on cash flow, in14 ventories, employment, wages, 

15 growth, ability to raise capital, 

16 and investment, 

17 ‘‘(dd) actual and potential 

18 negative effects on the existing 

19 development and production ef20 forts of the domestic industry, in21 cluding efforts to develop a deriv22 ative or more advanced version of 

23 the domestic like product, and 


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1 ‘‘(ee) in a proceeding under 

2 subtitle B, the magnitude of the 

3 margin of dumping. 

4 ‘‘(II) EVALUATION OF ECONOMIC

5 FACTORS IN CONTEXT.— 

6 ‘‘(aa) IN GENERAL.—The 

7 Commission shall evaluate all rel8 evant economic factors described 

9 in subclause (I) within the con10 text of the business cycle and 

11 conditions of competition that are 

12 distinct to the affected industry. 

13 ‘‘(bb) INDUSTRY PERFORM14 ANCE.—The fact that the per15 formance of the affected industry 

16 has improved during the period 

17 of investigation shall not preclude 

18 a finding of material injury or 

19 threat of material injury. 

20 ‘‘(III) EFFECT OF RECESSION.— 

21 In the case of an investigation initi22 ated by petition, if the National Bu23 reau of Economic Research or another 

24 government agency responsible for 

25 business cycle evaluation declares that 


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1 a recession began at any time during 

2 the 3-year period preceding the date 

3 on which the petition was filed, the 

4 Commission may, if timely requested 

5 by an interested party, extend its nor6 mal period of investigation as the 

7 Commission considers appropriate.’’. 

8 SEC. 4. DETERMINATION OF DUTIES FOR NEW EXPORTERS 

9 AND PRODUCERS BASED ON BONA FIDE 

10 UNITED STATES SALES. 

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

12 U.S.C. 1675(a)(2)(B)) is amended— 

13 (1) by striking clause (iii); 

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

15 and 

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

17 ‘‘(iv) BONA FIDE UNITED STATES

18 SALES.— 

19 ‘‘(I) ELIGIBILITY FOR INDI20 VIDUAL MARGIN OR RATE.—An ex21 porter or producer may be eligible for 

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1 view conducted under clause (i) only if 

2 that exporter or producer— 

3 ‘‘(aa) is not affiliated with 

4 an exporter or producer who ex5 ported subject merchandise dur6 ing the period covered by the re7 view or exported subject mer8 chandise to the United States 

9 during any period, and 

10 ‘‘(bb) demonstrates that 

11 sales of subject merchandise by 

12 that exporter or producer in the 

13 United States, or for exportation 

14 to the United States, during the 

15 period covered by the review that 

16 are relied upon as the basis for 

17 requesting the review and the 

18 calculation of an individual 

19 dumping margin or individual 

20 countervailing duty rate, are— 

21 ‘‘(AA) bona fide, and 

22 ‘‘(BB) sold to a person 

23 that is not affiliated with 

24 that exporter or producer. 


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1 ‘‘(II) ELEMENTS OF BONA FIDE

2 DETERMINATION.—In determining 

3 whether sales in the United States by 

4 an exporter or producer are bona fide 

5 for purposes of subclause (I)(aa), the 

6 administering authority shall consider, 

7 depending on the circumstances sur8 rounding such sales— 

9 ‘‘(aa) the prices of such 

10 sales, 

11 ‘‘(bb) whether such sales 

12 were made in commercial quan13 tities, 

14 ‘‘(cc) the timing of such 

15 sales, 

16 ‘‘(dd) the expenses arising 

17 from such sales, 

18 ‘‘(ee) whether the subject 

19 merchandise involved in such 

20 sales was resold in the United 

21 States at a profit, 

22 ‘‘(ff) whether such sales 

23 were made on an arms-length 

24 basis, and 


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1 ‘‘(gg) any other factor the 

2 administering authority considers 

3 to be relevant with respect to 

4 whether such sales are, or are 

5 not, likely to be typical of sales 

6 the exporter or producer will 

7 make after completion of the re8 view.’’. 

9 SEC. 5. REQUIREMENT OF PROVISION BY IMPORTER OF 

10 CERTIFICATION BY IMPORTER OR OTHER 

11 PARTY. 

12 (a) IN GENERAL.—Subtitle D of title VII of the Tar13 iff Act of 1930 (19 U.S.C. 1677 et seq.) is amended by 

14 adding at the end the following: 

15 ‘‘SEC. 784. REQUIREMENT FOR CERTIFICATION BY IM16 PORTER OR OTHER PARTY. 

17 ‘‘(a) REQUIREMENT.— 

18 ‘‘(1) IN GENERAL.—For imports of merchan19 dise into the customs territory of the United States, 

20 the administering authority may require an im21 porter— 

22 ‘‘(A) to provide a certification described in 

23 paragraph (2) physically or by electronic means 

24 at the time of entry or with the entry summary, 

25 or 


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1 ‘‘(B) to otherwise demonstrate compliance 

2 with the requirements for a certification de3 scribed in paragraph (2). 

4 ‘‘(2) CERTIFICATION DESCRIBED.—A certifi5 cation described in this paragraph is a certification 

6 by the importer of the merchandise or another party, 

7 as required by the administering authority, such as 

8 a certification that the merchandise is not subject to 

9 an antidumping or countervailing duty under this 

10 title. 

11 ‘‘(3) AVAILABLE UPON REQUEST.—If a certifi12 cation required under paragraph (1) is required to 

13 be maintained by the importer or another party, as 

14 determined by the administering authority in con15 sultation with the Commissioner responsible for U.S. 

16 Customs and Border Protection (in this section re17 ferred to as the ‘Commissioner’), the Commissioner 

18 or administering authority may require that the im19 porter or other party make the certification available 

20 to the Commissioner or administering authority 

21 upon request. 

22 ‘‘(b) PENALTIES.— 

23 ‘‘(1) AUTHORITY TO COLLECT CASH DEPOSITS

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1 vide a certification described in paragraph (2) of 

2 subsection (a) for merchandise imported into the 

3 customs territory of the United States pursuant to 

4 paragraph (1) of that subsection, and the importer 

5 or other party does not provide that certification or 

6 that certification contains any false, misleading, or 

7 fraudulent statement or representation or any mate8 rial omission, the administering authority shall in9 struct the Commissioner— 

10 ‘‘(A) to suspend liquidation of the entry; 

11 ‘‘(B) to require that the importer or other 

12 party post a cash deposit at an amount equal 

13 to the antidumping duty or countervailing duty 

14 applicable to the merchandise; and 

15 ‘‘(C) to assess the rate of duty determined 

16 under paragraph (2) upon liquidation or reliqui17 dation of the entry. 

18 ‘‘(2) OTHER PENALTIES.—If the administering 

19 authority requires an importer or other party to pro20 vide a certification described in paragraph (2) of 

21 subsection (a) for merchandise imported into the 

22 customs territory of the United States pursuant to 

23 paragraph (1) of that subsection, and the importer 

24 or other party does not provide that certification or 

25 that certification contains any false, misleading, or 


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1 fraudulent statement or representation or any mate2 rial omission, the importer of the merchandise may 

3 be subject to a penalty pursuant to section 592 of 

4 this Act, section 1001 of title 18, United States 

5 Code, or any other applicable provision of law.’’. 

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

7 for title VII of the Tariff Act of 1930 is amended by in8 serting after the item relating to section 783 the following: 

‘‘Sec. 784. Requirement for certification by importer or other party.’’. 

9 SEC. 6. REDUCTION IN BURDEN ON DEPARTMENT OF COM10 MERCE BY REDUCING THE NUMBER OF VOL11 UNTARY RESPONDENTS. 

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

13 1677m(a)) is amended— 

14 (1) in paragraph (1), by redesignating subpara15 graphs (A) and (B) as clauses (i) and (ii), respec16 tively, and by moving such clauses, as so redesig17 nated, 2 ems to the right; 

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

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

20 moving such subparagraphs, as so redesignated, 2 

21 ems to the right; 

22 (3) by striking ‘‘INVESTIGATIONS AND RE23 VIEWS.—In’’ and inserting the following: ‘‘INVES24 TIGATIONS AND REVIEWS.— 

25 ‘‘(1) IN GENERAL.—In’’; 


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1 (4) in paragraph (1), as designated by para2 graph (3), by amending subparagraph (B), as redes3 ignated by paragraph (2), to read as follows: 

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

5 subject to the investigation or review is not so 

6 large that any additional individual examination 

7 of such exporters or producers would be unduly 

8 burdensome to the administering authority and 

9 inhibit the timely completion of the investiga10 tion or review.’’; and 

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

12 ‘‘(2) DETERMINATION OF UNDULY BURDEN13 SOME.—In determining if an individual examination 

14 under paragraph (1)(B) would be unduly burden15 some, the administering authority may consider the 

16 following: 

17 ‘‘(A) The complexity of the issues or infor18 mation presented in the proceeding, including 

19 questionnaires and any responses thereto. 

20 ‘‘(B) Any prior experience of the admin21 istering authority in the same or similar pro22 ceeding. 

23 ‘‘(C) The total number of investigations 

24 under subtitle A or B, reviews under section 

25 751, and other proceedings being conducted by 


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1 the administering authority as of the date of 

2 the determination. 

3 ‘‘(D) Such other factors relating to the 

4 timely completion of each such investigation 

5 and review as the administering authority con6 siders appropriate.’’. 

7 SEC. 7. CLARIFICATION OF DISCRETION OF SECRETARY OF 

8 COMMERCE TO DISREGARD CERTAIN PRICE 

9 OR COST VALUES IN CALCULATION OF NOR10 MAL VALUE. 

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

12 1677b(c)) is amended by adding at the end the following: 

13 ‘‘(5) DISCRETION TO DISREGARD CERTAIN

14 PRICE OR COST VALUES.— 

15 ‘‘(A) IN GENERAL.—In valuing the factors 

16 of production under paragraph (1) for the sub17 ject merchandise, the administering authority 

18 may disregard price or cost values if the admin19 istering authority has reason to believe or sus20 pect that an input for the subject merchandise 

21 is subsidized or dumped. 

22 ‘‘(B) PRIOR INVESTIGATIONS.— 

23 ‘‘(i) IN GENERAL.—The administering 

24 authority has reason to believe or suspect 

25 under subparagraph (A) that an input for 


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1 the subject merchandise is subsidized or 

2 dumped if an investigation has found 

3 broadly available export subsidies or spe4 cific instances of dumping or subsidies 

5 with respect to that input from a country 

6 or customs territory. 

7 ‘‘(ii) FURTHER INVESTIGATION.—If 

8 the administering authority makes a find9 ing described in clause (i), the admin10 istering authority is not required to con11 duct further investigation with respect to 

12 that input for purposes of this para13 graph.’’. 

14 SEC. 8. CLARIFICATION OF FACTORS FOR DETERMINING 

15 WHETHER A COUNTRY IS A NONMARKET 

16 ECONOMY COUNTRY. 

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

18 U.S.C. 1677(18)(B)) is amended— 

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

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

21 and 

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

23 ‘‘(vi) the extent to which the govern24 ment of the foreign country enforces and 

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1 tive procedures, and other policies in an 

2 open and transparent manner that affords 

3 all parties, whether foreign or domestic, 

4 due process and equal and non-discrimina5 tory treatment under those laws, proce6 dures, and policies, and’’. 

7 SEC. 9. APPLICATION TO CANADA AND MEXICO. 

8 Pursuant to article 1902 of the North American Free 

9 Trade Agreement and section 408 of the North American 

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

11 3438), the amendments made by this Act shall apply with 

12 respect to goods from Canada and Mexico. 

Æ 


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