American Trade Enforcement Effectiveness Act

To make improvements to the antidumping and countervailing duty laws. 1. Short title This Act may be cited as the American Trade Enforcement Effectiveness Act 2. Consequences of failure to cooperate with a request for information in a proceeding Section 776 of the Tariff Act of 1930 ( 19 U.S.C. 1677e (1) in subsection (b)— (A) by redesignating paragraphs (1) through (4) as subparagraphs (A) through (D), respectively, and by moving such subparagraphs, as so redesignated, 2 ems to the right; (B) by striking Adverse Inferences Adverse Inferences (1) In general If ; (C) by striking under this title, may use (A) may use ; and (D) by striking facts otherwise available. Such adverse inference may include (B) is not required to determine, or make any adjustments to, a countervailable subsidy rate or weighted average dumping margin based on any assumptions about information the interested party would have provided if the interested party had complied with the request for information. (2) Potential sources of information for adverse inferences An adverse inference under paragraph (1)(A) may include ; (2) in subsection (c)— (A) by striking Corroboration of Secondary Information Corroboration of Secondary Information (1) In general Except as provided in paragraph (2), when the ; and (B) by adding at the end the following: (2) Exception The administrative authority and the Commission shall not be required to corroborate any dumping margin or countervailing duty applied in a separate segment of the same proceeding. ; and (3) by adding at the end the following: (d) Subsidy rates and dumping margins in adverse inference determinations (1) In general If the administering authority uses an inference that is adverse to the interests of a party under subsection (b)(1)(A) in selecting among the facts otherwise available, the administering authority may— (A) in the case of a countervailing duty proceeding— (i) use a countervailable subsidy rate applied for the same or similar program in a countervailing duty proceeding involving the same country, or (ii) if there is no same or similar program, use a countervailable subsidy rate for a subsidy program from a proceeding that the administering authority considers reasonable to use, and (B) in the case of an antidumping duty proceeding, use any dumping margin from any segment of the proceeding under the applicable antidumping order. (2) Discretion to apply highest rate In carrying out paragraph (1), the administering authority may apply any of the countervailable subsidy rates or dumping margins specified under that paragraph, including the highest such rate or margin, based on the evaluation by the administering authority of the situation that resulted in the administering authority using an adverse inference in selecting among the facts otherwise available. (3) No obligation to make certain estimates or address certain claims If the administering authority uses an adverse inference under subsection (b)(1)(A) in selecting among the facts otherwise available, the administering authority is not required, for purposes of subsection (c) or for any other purpose— (A) to estimate what the countervailable subsidy rate or dumping margin would have been if the interested party found to have failed to cooperate under subsection (b)(1) had cooperated, or (B) to demonstrate that the count­er­vail­a­ble subsidy rate or dumping margin used by the administering authority reflects an alleged commercial reality of the interested party. . 3. Definition of material injury (a) Effect of profitability of domestic industries Section 771(7) of the Tariff Act of 1930 ( 19 U.S.C. 1677(7) (J) Effect of profitability The Commission shall not determine that there is no material injury or threat of material injury to an industry in the United States merely because that industry is profitable or because the performance of that industry has recently improved. . (b) Evaluation of impact on domestic industry in determination of material injury Subclause (I) of section 771(7)(C)(iii) of the Tariff Act of 1930 ( 19 U.S.C. 1677(7)(C)(iii) (I) actual and potential decline in output, sales, market share, gross profits, operating profits, net profits, ability to service debt, productivity, return on investments, return on assets, and utilization of capacity, . (c) Captive production Section 771(7)(C)(iv) of the Tariff Act of 1930 ( 19 U.S.C. 1677(7)(C)(iv) (1) in subclause (I), by striking the comma and inserting , and (2) in subclause (II), by striking , and (3) by striking subclause (III). 4. Particular market situation (a) Definition of ordinary course of trade Section 771(15) of the Tariff Act of 1930 ( 19 U.S.C. 1677(15) (C) Situations in which the administering authority determines that the particular market situation prevents a proper comparison with the export price or constructed export price. . (b) Definition of normal value Section 773(a)(1)(B)(ii)(III) of the Tariff Act of 1930 ( 19 U.S.C. 1677b(a)(1)(B)(ii)(III) in such other country. (c) Definition of constructed value Section 773(e) of the Tariff Act of 1930 ( 19 U.S.C. 1677b(e) (1) in paragraph (1), by striking business trade (2) by striking the flush text at the end and inserting the following: For purposes of paragraph (1), if a particular market situation exists such that the cost of materials and fabrication or other processing of any kind does not accurately reflect the cost of production in the ordinary course of trade, the administering authority may use another calculation methodology under this subtitle or any other calculation methodology. For purposes of paragraph (1), the cost of materials shall be determined without regard to any internal tax in the exporting country imposed on such materials or their disposition that is remitted or refunded upon exportation of the subject merchandise produced from such materials. . 5. Distortion of prices or costs (a) Investigation of below-Cost sales Section 773(b)(2) of the Tariff Act of 1930 ( 19 U.S.C. 1677b(b)(2) (A) Reasonable grounds to believe or suspect (i) Review In a review conducted under section 751 involving a specific exporter, there are reasonable grounds to believe or suspect that sales of the foreign like product have been made at prices that are less than the cost of production of the product if the administering authority disregarded some or all of the exporter’s sales pursuant to paragraph (1) in the investigation or, if a review has been completed, in the most recently completed review. (ii) Requests for information In an investigation initiated under section 732 or a review conducted under section 751, the administering authority shall request information necessary to calculate the constructed value and cost of production under subsections (e) and (f) to determine whether there are reasonable grounds to believe or suspect that sales of the foreign like product have been made at prices that represent less than the cost of production of the product. . (b) Prices and costs in nonmarket economies Section 773(c) of the Tariff Act of 1930 ( 19 U.S.C. 1677b(c) (5) Discretion to disregard certain price or cost values In valuing the factors of production under paragraph (1) for the subject merchandise, the administering authority may disregard price or cost values without further investigation if the administering authority has determined that broadly available export subsidies existed or particular instances of subsidization occurred with respect to those price or cost values or if those price or cost values were subject to an antidumping order. . 6. Reduction in burden on Department of Commerce by reducing the number of voluntary respondents Section 782(a) of the Tariff Act of 1930 ( 19 U.S.C. 1677m(a) (1) in paragraph (1), by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively, and by moving such clauses, as so redesignated, 2 ems to the right; (2) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively, and by moving such subparagraphs, as so redesignated, 2 ems to the right; (3) by striking Investigations and Reviews Investigations and Reviews (1) In general In ; (4) in paragraph (1), as designated by paragraph (3), by amending subparagraph (B), as redesignated by paragraph (2), to read as follows: (B) the number of exporters or producers subject to the investigation or review is not so large that any additional individual examination of such exporters or producers would be unduly burdensome to the administering authority and inhibit the timely completion of the investigation or review. ; and (5) by adding at the end the following: (2) Determination of unduly burdensome In determining if an individual examination under paragraph (1)(B) would be unduly burdensome, the administering authority may consider the following: (A) The complexity of the issues or information presented in the proceeding, including questionnaires and any responses thereto. (B) Any prior experience of the administering authority in the same or similar proceeding. (C) The total number of investigations under subtitle A or B and reviews under section 751 being conducted by the administering authority as of the date of the determination. (D) Such other factors relating to the timely completion of each such investigation and review as the administering authority considers appropriate. . 7. 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

Summary: American Trade Enforcement Effectiveness Act This bill amends the Tariff Act of 1930 with respect to the administration and enforcement of antidumping (AD) and countervailing duty (CVD) orders. Neither the administering authority (the Secretary of Commerce, or another U.S. officer given the responsibility by law) nor the U.S. International Trade Commission (USITC), as the case may be, is required to determine, or make any adjustments to, a countervailable subsidy rate or weighted average dumping margin based on any assumptions about information the interested party would have provided if it had complied with a request for information. The USITC shall not determine that there is no material injury or threat of material injury to a domestic industry from imports merely because that industry is profitable or its performance has recently improved. This bill includes gross profits, operating profits, net profits, and ability to service debt among the relevant economic factors the USITC must evaluate in examining the impact of imports of merchandise on a domestic industry in material injury determinations. The administering authority may use another calculation methodology than the ordinary one in determining the constructed value of subject merchandise being imported at less than fair value if a particular market situation exists where the cost of materials and fabrication or other processing of any kind does not accurately reflect the cost production in the ordinary course of trade. This bill revises requirements regarding administering authority determinations as to whether there are reasonable grounds to believe or suspect that a foreign like product is being sold at less than cost of production in AD investigations or reviews. The administering authority in making its determinations, however, shall request information necessary to calculate the constructed value and cost of production of subject merchandise in such investigations or reviews. The administering authority, in valuing the factors of production to determine the normal value of merchandise exported from a nonmarket economy country, may disregard price or cost values without further investigation if it determines that broadly available export subsidies existed or instances of subsidization occurred with respect to those price or cost values or if they were subject to an AD order. Certain factors are specified for the administering authority to consider when deciding whether it would be unduly burdensome in CVD or AD investigations and reviews to examine voluntary responses from exporters or producers which are not the subjects of the investigation or review.