Enforcing Orders and Reducing Customs Evasion Act of 2011 - Amends the Tariff Act of 1930 to require the Commissioner responsible for U.S. Customs and Border Protection (CBP) to initiate, upon petition or a referral from another federal agency, an investigation into claims of evasion of antidumping or countervailing duties (including any cash deposits or other security) with respect to covered merchandise entered into the United States.
Requires the Commissioner, in the case of an affirmative preliminary determination, to: (1) suspend liquidation of each unliquidated entry of the covered merchandise and extend the liquidation of covered merchandise entered before such determination, (2) review and reassess the amount of bond or other security required to be posted for each entry of covered merchandise, (3) require the posting of a cash deposit for each entry, and (4) take other appropriate measures to ensure the collection of any duties that may be owed on covered merchandise.
Requires the Commissioner, in the case of an affirmative final determination, to: (1) suspend or continue to suspend liquidation of each entry of covered merchandise and extend the liquidation of covered merchandise entered before such determination, (2) notify the administering authority (Secretary of Commerce or other responsible U.S. officer) of the determination and request identification of the applicable antidumping or countervailing duties or cash deposit rate for such entries, (3) require the posting of cash deposits and assess duties, (4) review and reassess the amount of bond or other security required to be posted for covered merchandise entered on or after the date of such determination, and (5) take appropriate additional enforcement measures.
Requires the administering authority to apply the highest applicable cash deposit or antidumping or countervailing duty in cases where the producer or exporter of covered merchandise is unknown.
Applies the amendments made by this Act to goods from Canada and Mexico.
Requires the Commissioner, to the maximum extent practicable, to ensure that CBP employs and assigns sufficient personnel to prevent the entry of covered merchandise in a manner that evades antidumping and countervailing duty orders or findings.
Requires the Secretary of Homeland Security (DHS), the Commissioner, and the Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE) to assess and properly allocate the resources of CBP and ICE to improve efforts to investigate and combat evasion.
Directs the Comptroller General to report on: (1) efforts to prevent the entry of covered merchandise into the U.S. customs territory through evasion, and (2) the estimated amount of duties that could not be collected on covered merchandise that entered U.S. customs territory through evasion during FY2009-FY2010 because the Commissioner did not have the authority to reliquidate the entries of such merchandise.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3057 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 3057
To prevent the evasion of antidumping and countervailing duty orders,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 23, 2011
Mr. Long (for himself, Mr. Nunnelee, Mrs. Emerson, Mr. Luetkemeyer, Mr.
Akin, Ms. Linda T. Sanchez of California, Mr. Bachus, Mr. Manzullo, Mr.
Chandler, Mr. Critz, Mr. Conyers, Mr. Stark, Mr. Carnahan, and Mr.
Lipinski) 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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Enforcing Orders
and Reducing Customs Evasion Act of 2011''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--PROCEDURES
Sec. 101. Procedures for investigating claims of evasion of antidumping
and countervailing duty orders.
Sec. 102. Application to Canada and Mexico.
TITLE II--OTHER MATTERS
Sec. 201. Definitions.
Sec. 202. Allocation of U.S. Customs and Border Protection personnel.
Sec. 203. Regulations.
Sec. 204. Annual report on prevention of evasion of antidumping and
countervailing duty orders.
Sec. 205. Government Accountability Office report on reliquidation
authority.
TITLE I--PROCEDURES
SEC. 101. PROCEDURES FOR INVESTIGATING CLAIMS OF EVASION OF ANTIDUMPING
AND COUNTERVAILING DUTY ORDERS.
(a) In General.--The Tariff Act of 1930 is amended by inserting
after section 516A (19 U.S.C. 1516a) the following:
``SEC. 516B. PROCEDURES FOR INVESTIGATING CLAIMS OF EVASION OF
ANTIDUMPING AND COUNTERVAILING DUTY ORDERS.
``(a) Definitions.--In this section:
``(1) Administering authority.--The term `administering
authority' has the meaning given that term in section 771(1).
``(2) Appropriate congressional committees.--The term
`appropriate congressional committees' means--
``(A) the Committee on Finance and the Committee on
Appropriations of the Senate; and
``(B) the Committee on Ways and Means and the
Committee on Appropriations of the House of
Representatives.
``(3) Commissioner.--The term `Commissioner' means the
Commissioner responsible for U.S. Customs and Border
Protection.
``(4) Covered merchandise.--The term `covered merchandise'
means merchandise that is subject to--
``(A) an antidumping duty order issued under
section 736;
``(B) a finding issued under the Antidumping Act,
1921; or
``(C) a countervailing duty order issued under
section 706.
``(5) Enter; entry.--The terms `enter' and `entry' refer to
the entry, or withdrawal from warehouse for consumption, in the
customs territory of the United States.
``(6) Evade; evasion.--The terms `evade' and `evasion'
refer to entering covered merchandise into the customs
territory of the United States by means of any document or
electronically transmitted data or information, written or oral
statement, or act that is material and false, or any omission
that is material, and that results in any cash deposit or other
security or any amount of applicable antidumping or
countervailing duties being reduced or not being applied with
respect to the merchandise.
``(7) Interested party.--The term `interested party' has
the meaning given that term in section 771(9).
``(b) Procedures for Investigating Allegations of Evasion.--
``(1) Initiation by petition or referral.--
``(A) In general.--Not later than 10 days after the
date on which the Commissioner receives a petition
described in subparagraph (B) or a referral described
in subparagraph (C), the Commissioner shall initiate an
investigation pursuant to this paragraph.
``(B) Petition described.--A petition described in
this subparagraph is a petition that--
``(i) is filed with the Commissioner by any
party who is an interested party with respect
to covered merchandise;
``(ii) alleges that a person has entered
covered merchandise into the customs territory
of the United States through evasion; and
``(iii) is accompanied by information
reasonably available to the petitioner
supporting the allegation.
``(C) Referral described.--A referral described in
this subparagraph is information submitted to the
Commissioner by any other Federal agency, including the
Department of Commerce or the United States
International Trade Commission, indicating that a
person has entered covered merchandise into the customs
territory of the United States through evasion.
``(2) Determinations.--
``(A) Preliminary determination.--
``(i) In general.--Not later than 90 days
after the date on which the Commissioner
initiates an investigation under paragraph (1),
the Commissioner shall issue a preliminary
determination, based on information available
to the Commissioner at the time of the
determination, with respect to whether there is
a reasonable basis to believe or suspect that
the covered merchandise was entered into the
customs territory of the United States through
evasion.
``(ii) Extension.--The Commissioner may
extend by not more than 45 days the time period
specified in clause (i) if the Commissioner
determines that sufficient information to make
a preliminary determination under that clause
is not available within that time period or the
inquiry is unusually complex.
``(B) Final determination.--
``(i) In general.--Not later than 120 days
after making a preliminary determination under
subparagraph (A), the Commissioner shall make a
final determination, based on substantial
evidence, with respect to whether covered
merchandise was entered into the customs
territory of the United States through evasion.
``(ii) Extension.--The Commissioner may
extend by not more than 60 days the time period
specified in clause (i) if the Commissioner
determines that sufficient information to make
a final determination under that clause is not
available within that time period or the
inquiry is unusually complex.
``(iii) Opportunity for comment; hearing.--
After making a preliminary determination under
subparagraph (A) and before issuing a final
determination under this subparagraph with
respect to whether covered merchandise was
entered into the customs territory of the
United States through evasion, the Commissioner
shall--
``(I) provide any person alleged to
have entered the merchandise into the
customs territory of the United States
through evasion, and any person that is
an interested party with respect to the
merchandise, with an opportunity to be
heard;
``(II) upon request, hold a hearing
with respect to whether the covered
merchandise was entered into the
customs territory of the United States
through evasion; and
``(III) provide an opportunity for
public comment.
``(C) Authority to collect and verify additional
information.--In making a preliminary determination
under subparagraph (A) or a final determination under
subparagraph (B), the Commissioner--
``(i) shall exercise all existing
authorities to collect information needed to
make the determination; and
``(ii) may collect such additional
information as is necessary to make the
determination through such methods as the
Commissioner considers appropriate, including
by--
``(I) issuing a questionnaire with
respect to covered merchandise to--
``(aa) a person that filed
a petition under paragraph
(1)(B);
``(bb) a person alleged to
have entered covered
merchandise into the customs
territory of the United States
through evasion; or
``(cc) any other person
that is an interested party
with respect to the covered
merchandise; or
``(II) conducting verifications,
including on-site verifications, of any
relevant information.
``(D) Adverse inference.--
``(i) In general.--If the Commissioner
finds that a person that filed a petition under
paragraph (1)(B), a person alleged to have
entered covered merchandise into the customs
territory of the United States through evasion,
or a foreign producer or exporter, has failed
to cooperate by not acting to the best of the
person's ability to comply with a request for
information, the Commissioner may, in making a
preliminary determination under subparagraph
(A) or a final determination under subparagraph
(B), use an inference that is adverse to the
interests of that person in selecting from
among the facts otherwise available to
determine whether evasion has occurred.
``(ii) Adverse inference described.--An
adverse inference used under clause (i) may
include reliance on information derived from--
``(I) the petition, if any,
submitted under paragraph (1)(B) with
respect to the covered merchandise;
``(II) a determination by the
Commissioner in another investigation
under this section;
``(III) an investigation or review
by the administering authority under
title VII; or
``(IV) any other information placed
on the record.
``(E) Notification and publication.--Not later than
7 days after making a preliminary determination under
subparagraph (A) or a final determination under
subparagraph (B), the Commissioner shall--
``(i) provide notification of the
determination to--
``(I) the administering authority;
and
``(II) the person that submitted
the petition under paragraph (1)(B) or
the Federal agency that submitted the
referral under paragraph (1)(C); and
``(ii) provide the determination for
publication in the Federal Register.
``(3) Business proprietary information.--
``(A) Establishment of procedures.--For each
investigation initiated under paragraph (1), the
Commissioner shall establish procedures for the
submission of business proprietary information under an
administrative protective order that--
``(i) protects against public disclosure of
such information; and
``(ii) for purposes of submitting comments
to the Commissioner, provides limited access to
such information for--
``(I) the person that submitted the
petition under paragraph (1)(B) or the
Federal agency that submitted the
referral under paragraph (1)(C); and
``(II) the person alleged to have
entered covered merchandise into the
customs territory of the United States
through evasion.
``(B) Administration in accordance with other
procedures.--The procedures established under
subparagraph (A) shall be administered, to the maximum
extent practicable, in accordance with administrative
protective order procedures under section 777 by the
administering authority.
``(C) Disclosure of business proprietary
information.--The Commissioner shall, in accordance
with the procedures established under subparagraph (A),
make all business proprietary information presented to,
or obtained by, the Commissioner during an
investigation available to the persons specified in
subparagraph (A)(ii) under an administrative protective
order, regardless of when such information is submitted
during an investigation.
``(4) Referrals to other federal agencies.--
``(A) After preliminary determination.--
Notwithstanding section 777 and subject to subparagraph
(C), when the Commissioner makes an affirmative
preliminary determination under paragraph (2)(A), the
Commissioner shall, at the request of the head of
another Federal agency, transmit the administrative
record to the head of that agency.
``(B) After final determination.--Notwithstanding
section 777 and subject to subparagraph (C), when the
Commissioner makes an affirmative final determination
under paragraph (2)(B), the Commissioner shall, at the
request of the head of another Federal agency, transmit
the complete administrative record to the head of that
agency.
``(C) Protective orders.--Before transmitting an
administrative record to the head of another Federal
agency under subparagraph (A) or (B), the Commissioner
shall verify that the other agency has in effect with
respect to the administrative record a protective order
that provides the same or a similar level of protection
for the information in the administrative record as the
protective order in effect with respect to such
information under this subsection.
``(c) Effect of Determinations.--
``(1) Effect of affirmative preliminary determination.--If
the Commissioner makes a preliminary determination in
accordance with subsection (b)(2)(A) that there is a reasonable
basis to believe or suspect that covered merchandise was
entered into the customs territory of the United States through
evasion, the Commissioner shall--
``(A) suspend the liquidation of each unliquidated
entry of the covered merchandise that is subject to the
preliminary determination and that entered on or after
the date of the initiation of the investigation under
paragraph (1) and, pursuant to the Commissioner's
authority under section 504(b), extend liquidation of
each unliquidated entry of the covered merchandise that
is subject to the preliminary determination and that
entered prior to the date of the initiation of the
investigation under paragraph (1);
``(B) review and reassess the amount of bond or
other security the importer is required to post for
each entry of merchandise described in subparagraph
(A);
``(C) require the posting of a cash deposit with
respect to each entry of merchandise described in
subparagraph (A); and
``(D) take such other measures as the Commissioner
determines appropriate to ensure the collection of any
duties that may be owed with respect to merchandise
described in subparagraph (A) as a result of a final
determination under subsection (b)(2)(B).
``(2) Effect of negative preliminary determination.--If the
Commissioner makes a preliminary determination in accordance
with subsection (b)(2)(A) that there is not a reasonable basis
to believe or suspect that covered merchandise was entered into
the customs territory of the United States through evasion, the
Commissioner shall continue the investigation and notify the
administering authority pending a final determination under
subsection (b)(2)(B).
``(3) Effect of affirmative final determination.--If the
Commissioner makes a final determination in accordance with
subsection (b)(2)(B) that covered merchandise was entered into
the customs territory of the United States through evasion, the
Commissioner shall--
``(A) suspend or continue to suspend, as the case
may be, the liquidation of each entry of the covered
merchandise that is subject to the determination and
that enters on or after the date of the determination
and, pursuant to the Commissioner's authority under
section 504(b), extend or continue to extend, as the
case may be, the liquidation of each entry of the
covered merchandise that is subject to the
determination and that entered prior to the date of the
determination;
``(B) notify the administering authority of the
determination and request that the administering
authority--
``(i) identify the applicable antidumping
or countervailing duty assessment rate for the
entries for which liquidation is suspended
under paragraph (1)(A) or subparagraph (A) of
this paragraph; or
``(ii) if no such assessment rates are
available at the time, identify the applicable
cash deposit rate to be applied to the entries
described in subparagraph (A), with the
applicable antidumping or countervailing duty
assessment rates to be provided as soon as such
rates become available;
``(C) require the posting of cash deposits and
assess duties on each entry of merchandise described in
subparagraph (A) in accordance with the instructions
received from the administering authority under
paragraph (5);
``(D) review and reassess the amount of bond or
other security the importer is required to post for
merchandise described in subparagraph (A) to ensure the
protection of revenue and compliance with the law; and
``(E) take such additional enforcement measures as
the Commissioner determines appropriate, such as--
``(i) initiating proceedings under section
592 or 596;
``(ii) implementing, in consultation with
the relevant Federal agencies, rule sets or
modifications to rules sets for identifying,
particularly through the Automated Targeting
System and the Automated Commercial
Environment, importers, other parties, and
merchandise that may be associated with
evasion;
``(iii) requiring, with respect to
merchandise for which the importer has
repeatedly provided incomplete or erroneous
entry summary information in connection with
determinations of evasion, the importer to
submit entry summary documentation and to
deposit estimated duties at the time of entry;
``(iv) referring the record in whole or in
part to U.S. Immigration and Customs
Enforcement for civil or criminal
investigation; and
``(v) transmitting the administrative
record to the administering authority for
further appropriate proceedings.
``(4) Effect of negative final determination.--If the
Commissioner makes a final determination in accordance with
subsection (b)(2)(B) that covered merchandise was not entered
into the customs territory of the United States through
evasion, the Commissioner shall terminate the suspension of
liquidation pursuant to paragraph (1)(A) and refund any cash
deposits collected pursuant to paragraph (1)(C) that are in
excess of the cash deposit rate that would otherwise have been
applicable the merchandise.
``(5) Cooperation of administering authority.--
``(A) In general.--Upon receiving a notification
from the Commissioner under paragraph (3)(B), the
administering authority shall promptly provide to the
Commissioner the applicable cash deposit rates and
antidumping or countervailing duty assessment rates and
any necessary liquidation instructions.
``(B) Special rule for cases in which the producer
or exporter is unknown.--If the Commissioner and
administering authority are unable to determine the
producer or exporter of the merchandise with respect to
which a notification is made under paragraph (3)(B),
the administering authority shall identify, as the
applicable cash deposit rate or antidumping or
countervailing duty assessment rate, the cash deposit
or duty (as the case may be) in the highest amount
applicable to any producer or exporter, including the
`all-others' rate of the merchandise subject to an
antidumping order or countervailing duty order under
section 736 or 706, respectively, or a finding issued
under the Antidumping Act, 1921, or any administrative
review conducted under section 751.
``(d) Special Rules.--
``(1) Effect on other authorities.--Neither the initiation
of an investigation under subsection (b)(1) nor a preliminary
determination or a final determination under subsection (b)(2)
shall affect the authority of the Commissioner--
``(A) to pursue such other enforcement measures
with respect to the evasion of antidumping or
countervailing duties as the Commissioner determines
necessary, including enforcement measures described in
clauses (i) through (iv) of subsection (c)(3)(E); or
``(B) to assess any penalties or collect any
applicable duties, taxes, and fees, including pursuant
to section 592.
``(2) Effect of determinations on fraud actions.--Neither a
preliminary determination nor a final determination under
subsection (b)(2) shall be determinative in a proceeding under
section 592.
``(3) Negligence or intent.--The Commissioner shall
investigate and make a preliminary determination or a final
determination under this section with respect to whether a
person has entered covered merchandise into the customs
territory of the United States through evasion without regard
to whether the person--
``(A) intended to violate an antidumping duty order
or countervailing duty order under section 736 or 706,
respectively, or a finding issued under the Antidumping
Act, 1921; or
``(B) exercised reasonable care with respect to
avoiding a violation of such an order or finding.''.
(b) Technical Amendment.--Clause (ii) of section 777(b)(1)(A) of
the Tariff Act of 1930 (19 U.S.C. 1677f(b)(1)(A)) is amended to read as
follows:
``(ii) to an officer or employee of U.S.
Customs and Border Protection who is directly
involved in conducting an investigation
regarding fraud under this title or claims of
evasion under section 516B.''.
(c) Judicial Review.--Section 516A(a)(2) of the Tariff Act of 1930
(19 U.S.C. 1516a(a)(2)) is amended--
(1) in subparagraph (A)--
(A) in clause (i)(III), by striking ``or'' at the
end;
(B) in clause (ii), by adding ``or'' at the end;
and
(C) by inserting after clause (ii) the following:
``(iii) the date of publication in the
Federal Register of a determination described
in clause (ix) of subparagraph (B),''; and
(2) in subparagraph (B), by adding at the end the following
new clause:
``(ix) A determination by the Commissioner
responsible for U.S. Customs and Border
Protection under section 516B that merchandise
has been entered into the customs territory of
the United States through evasion.''.
(d) Finality of Determinations.--Section 514(b) of the Tariff Act
of 1930 (19 U.S.C. 1514(b)) is amended by striking ``section 303'' and
all that follows through ``which are reviewable'' and inserting
``section 516B or title VII that are reviewable''.
SEC. 102. 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 title
shall apply with respect to goods from Canada and Mexico.
TITLE II--OTHER MATTERS
SEC. 201. DEFINITIONS.
In this title, the terms ``appropriate congressional committees'',
``Commissioner'', ``covered merchandise'', ``enter'' and ``entry'', and
``evade'' and ``evasion'' have the meanings given those terms in
section 516B(a) of the Tariff Act of 1930 (as added by section 101 of
this Act).
SEC. 202. ALLOCATION OF U.S. CUSTOMS AND BORDER PROTECTION PERSONNEL.
(a) Reassignment and Allocation.--The Commissioner shall, to the
maximum extent possible, ensure that U.S. Customs and Border
Protection--
(1) employs sufficient personnel who have expertise in, and
responsibility for, preventing the entry of covered merchandise
into the customs territory of the United States through
evasion; and
(2) on the basis of risk assessment metrics, assigns
sufficient personnel with primary responsibility for preventing
the entry of covered merchandise into the customs territory of
the United States through evasion to the ports of entry in the
United States at which the Commissioner determines potential
evasion presents the most substantial threats to the revenue of
the United States.
(b) Commercial Enforcement Officers.--Not later than 30 days after
the enactment of this Act, the Secretary of Homeland Security, the
Commissioner, and the Assistant Secretary for U.S. Immigration and
Customs Enforcement shall assess and properly allocate the resources of
U.S. Customs and Border Protection and U.S. Immigration and Customs
Enforcement--
(1) to effectively implement the provisions of, and
amendments made by, this Act; and
(2) to improve efforts to investigate and combat evasion.
SEC. 203. REGULATIONS.
(a) In General.--Not later than 240 days after the date of the
enactment of this Act, the Commissioner shall issue regulations to
carry out this title and the amendments made by title I.
(b) Cooperation Between U.S. Customs and Border Protection, U.S.
Immigration and Customs Enforcement, and Department of Commerce.--Not
later than 240 days after the date of the enactment of this Act, the
Commissioner, the Assistant Secretary for U.S. Immigration and Customs
Enforcement, and the Secretary of Commerce shall establish procedures
to ensure maximum cooperation and communication between U.S. Customs
and Border Protection, U.S. Immigration and Customs Enforcement, and
the Department of Commerce in order to quickly, efficiently, and
accurately investigate allegations of evasion under section 516B of the
Tariff Act of 1930 (as added by section 101 of this Act).
SEC. 204. ANNUAL REPORT ON PREVENTION OF EVASION OF ANTIDUMPING AND
COUNTERVAILING DUTY ORDERS.
(a) In General.--Not later than February 28 of each year, beginning
in 2012, the Commissioner, in consultation with the Secretary of
Commerce, shall submit to the appropriate congressional committees a
report on the efforts being taken pursuant to section 516B of the
Tariff Act of 1930 (as added by section 101 of this Act) to prevent the
entry of covered merchandise into the customs territory of the United
States through evasion.
(b) Contents.--Each report required under subsection (a) shall
include--
(1) for the fiscal year preceding the submission of the
report--
(A) the number and a brief description of petitions
and referrals received pursuant to section 516B(b)(1)
of the Tariff Act of 1930 (as added by section 101 of
this Act);
(B) the results of the investigations initiated
under such section, including any related enforcement
actions, and the amount of antidumping and
countervailing duties collected as a result of those
investigations; and
(C) to the extent appropriate, a summary of the
efforts of U.S. Customs and Border Protection, other
than efforts initiated pursuant section 516B of the
Tariff Act of 1930 (as added by section 101 of this
Act), to prevent the entry of covered merchandise into
the customs territory of the United States through
evasion; and
(2) for the 3 fiscal years preceding the submission of the
report, an estimate of--
(A) the amount of covered merchandise that entered
the customs territory of the United States through
evasion; and
(B) the amount of duties that could not be
collected on such merchandise because the Commissioner
did not have the authority to reliquidate the entries
of such merchandise.
SEC. 205. GOVERNMENT ACCOUNTABILITY OFFICE REPORT ON RELIQUIDATION
AUTHORITY.
Not later than 60 days after the date of the enactment of this Act,
the Comptroller General of the United States shall submit to the
appropriate congressional committees, and make available to the public,
a report estimating the amount of duties that could not be collected on
covered merchandise that entered the customs territory of the United
States through evasion during fiscal years 2009 and 2010 because the
Commissioner did not have the authority to reliquidate the entries of
such merchandise.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Ways and Means.
Referred for a period ending not later than October 5 2011, (or for a later time if the Chairman so designates) to the Subcommittee on Trade, in each case for consideration of such provisions as fall within the jurisdiction of the subcommittee concerned.
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