II 114th CONGRESS 1st Session S. 891 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. Short title This Act may be cited as the Leveling the Playing Field 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 ) is amended— (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 .—If and inserting the following: “ Adverse Inferences .— (1) In general If ; (C) by striking under this title, may use and inserting the following: “under this title— (A) may use ; and (D) by striking facts otherwise available. Such adverse inference may include and inserting the following: “facts otherwise available; and (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 ; and (2) by adding at the end the following: (d) Judicial review Notwithstanding any other provision of law, any determination made by the administering authority or the Commission in selecting the facts otherwise available or using an inference that is adverse to the interests of a party under subsection (b)(1)(A) shall not be subject to judicial review. . 3. Evaluation of impact on domestic industry in determination of material injury Section 771(7)(C) of the Tariff Act of 1930 ( 19 U.S.C. 1677(7)(C) ) is amended by striking clause (iii) and inserting the following: (iii) Impact on affected domestic industry (I) In general In examining the impact required to be considered under subparagraph (B)(i)(III), the Commission shall evaluate all relevant economic factors that have a bearing on the state of the industry in the United States, including— (aa) 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, (bb) factors affecting domestic prices, (cc) actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment, (dd) actual and potential negative effects on the existing development and production efforts of the domestic industry, including efforts to develop a derivative or more advanced version of the domestic like product, and (ee) in a proceeding under subtitle B, the magnitude of the margin of dumping. (II) Evaluation of economic factors in context (aa) In general The Commission shall evaluate all relevant economic factors described in subclause (I) within the context of the business cycle and conditions of competition that are distinct to the affected industry. (bb) Industry performance The fact that the performance of the affected industry has improved during the period of investigation shall not preclude a finding of material injury or threat of material injury. (III) Effect of recession In the case of an investigation initiated by petition, if the National Bureau of Economic Research or another government agency responsible for business cycle evaluation declares that a recession began at any time during the 3-year period preceding the date on which the petition was filed, the Commission may, if timely requested by an interested party, extend its normal period of investigation as the Commission considers appropriate. . 4. Determination of duties for new exporters and producers based on bona fide United States sales Section 751(a)(2)(B) of the Tariff Act of 1930 ( 19 U.S.C. 1675(a)(2)(B) ) is amended— (1) by striking clause (iii); (2) by redesignating clause (iv) as clause (iii); and (3) by adding at the end the following: (iv) Bona fide United States sales (I) Eligibility for individual margin or rate An exporter or producer may be eligible for an individual weighted average dumping margin or individual countervailing duty rate established in a review conducted under clause (i) only if that exporter or producer— (aa) is not affiliated with an exporter or producer who exported subject merchandise during the period covered by the review or exported subject merchandise to the United States during any period, and (bb) demonstrates that sales of subject merchandise by that exporter or producer in the United States, or for exportation to the United States, during the period covered by the review that are relied upon as the basis for requesting the review and the calculation of an individual dumping margin or individual countervailing duty rate, are— (AA) bona fide, and (BB) sold to a person that is not affiliated with that exporter or producer. (II) Elements of bona fide determination In determining whether sales in the United States by an exporter or producer are bona fide for purposes of subclause (I)(aa), the administering authority shall consider, depending on the circumstances surrounding such sales— (aa) the prices of such sales, (bb) whether such sales were made in commercial quantities, (cc) the timing of such sales, (dd) the expenses arising from such sales, (ee) whether the subject merchandise involved in such sales was resold in the United States at a profit, (ff) whether such sales were made on an arms-length basis, and (gg) any other factor the administering authority considers to be relevant with respect to whether such sales are, or are not, likely to be typical of sales the exporter or producer will make after completion of the review. . 5. Requirement of provision by importer of certification by importer or other party (a) In general Subtitle D of title VII of the Tariff Act of 1930 ( 19 U.S.C. 1677 et seq. ) is amended by adding at the end the following: 784. Requirement for certification by importer or other party (a) Requirement (1) In general For imports of merchandise into the customs territory of the United States, the administering authority may require an importer— (A) to provide a certification described in paragraph (2) physically or by electronic means at the time of entry or with the entry summary, or (B) to otherwise demonstrate compliance with the requirements for a certification described in paragraph (2). (2) Certification described A certification described in this paragraph is a certification by the importer of the merchandise or another party, as required by the administering authority, such as a certification that the merchandise is not subject to an antidumping or countervailing duty under this title. (3) Available upon request If a certification required under paragraph (1) is required to be maintained by the importer or another party, as determined by the administering authority in consultation with the Commissioner responsible for U.S. Customs and Border Protection (in this section referred to as the Commissioner ), the Commissioner or administering authority may require that the importer or other party make the certification available to the Commissioner or administering authority upon request. (b) Penalties (1) Authority To collect cash deposits and To assess duties If the administering authority requires an importer or other party to provide a certification described in paragraph (2) of subsection (a) for merchandise imported into the customs territory of the United States pursuant to paragraph (1) of that subsection, and the importer or other party does not provide that certification or that certification contains any false, misleading, or fraudulent statement or representation or any material omission, the administering authority shall instruct the Commissioner— (A) to suspend liquidation of the entry; (B) to require that the importer or other party post a cash deposit at an amount equal to the antidumping duty or countervailing duty applicable to the merchandise; and (C) to assess the rate of duty determined under paragraph (2) upon liquidation or reliquidation of the entry. (2) Other penalties If the administering authority requires an importer or other party to provide a certification described in paragraph (2) of subsection (a) for merchandise imported into the customs territory of the United States pursuant to paragraph (1) of that subsection, and the importer or other party does not provide that certification or that certification contains any false, misleading, or fraudulent statement or representation or any material omission, the importer of the merchandise may be subject to a penalty pursuant to section 592 of this Act, section 1001 of title 18, United States Code, or any other applicable provision of law. . (b) Clerical amendment The table of contents for title VII of the Tariff Act of 1930 is amended by inserting after the item relating to section 783 the following: Sec. 784. Requirement for certification by importer or other party. . 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) ) is amended— (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 .—In and inserting the following: “ 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, reviews under section 751, and other proceedings 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. Clarification of discretion of Secretary of Commerce to disregard certain price or cost values in calculation of normal value Section 773(c) of the Tariff Act of 1930 ( 19 U.S.C. 1677b(c) ) is amended by adding at the end the following: (5) Discretion to disregard certain price or cost values (A) In general In valuing the factors of production under paragraph (1) for the subject merchandise, the administering authority may disregard price or cost values if the administering authority has reason to believe or suspect that an input for the subject merchandise is subsidized or dumped. (B) Prior investigations (i) In general The administering authority has reason to believe or suspect under subparagraph (A) that an input for the subject merchandise is subsidized or dumped if an investigation has found broadly available export subsidies or specific instances of dumping or subsidies with respect to that input from a country or customs territory. (ii) Further investigation If the administering authority makes a finding described in clause (i), the administering authority is not required to conduct further investigation with respect to that input for purposes of this paragraph. . 8. Clarification of factors for determining whether a country is a nonmarket economy country Section 771(18)(B) of the Tariff Act of 1930 ( 19 U.S.C. 1677(18)(B) ) is amended— (1) in clause (v), by striking and at the end; (2) by redesignating clause (vi) as clause (vii); and (3) by inserting after clause (v) the following: (vi) the extent to which the government of the foreign country enforces and administers its laws, legal and administrative procedures, and other policies in an open and transparent manner that affords all parties, whether foreign or domestic, due process and equal and non-discriminatory treatment under those laws, procedures, and policies, and . 9. 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.