Preventing Recurring Trade Evasion and Circumvention Act or PROTECT Act - Directs the Secretary of Homeland Security (DHS) to establish within the Office of International Trade of the U.S. Customs and Border Protection (CBP) a Trade Remedy Law Enforcement Division (including a National Targeting and Analysis Group) to prevent and counter evasion of antidumping or countervailing duty orders with respect to covered merchandise entered into the United States.
Directs the Group to establish targeted risk assessment methodologies and standards for: (1) evaluating the risk that cargo destined for the United States may constitute evading covered merchandise, and (2) issuing Trade Alerts to U.S. ports of entry directing further inspection of specific merchandise to ensure compliance with U.S. trade remedy laws. Requires the Group also to use information available from the Automated Targeting System, the Automated Entry System, the International Trade Data System, and the Treasury Enforcement Communications System to administer such methodologies and standards.
Amends the Trade Act of 2002 to repeal the prohibition against use by the Secretary of the Treasury of certain trade data for merchandise entry or commercial enforcement determinations.
Requires the DHS Secretary, acting through the CBP Commissioner, to exercise all authorities to collect information needed to determine whether merchandise is entered into the United States through evasion.
Amends the Tariff Act of 1930 to permit access to proprietary information submitted to the administering authority or the U.S. International Trade Commission (ITC) to a CBP officer or employee who is conducting an investigation regarding negligence or gross negligence with respect to covered merchandise entered into the United States.
Directs the Secretary of the Treasury to negotiate and enter into bilateral agreements with customs authorities of foreign countries to prevent evasion of U.S. and foreign trade remedy laws.
Directs the CBP Commissioner to employ sufficient personnel who have expertise in and responsibility for preventing and investigating the entry of covered merchandise into the United States through evasion.
Requires the weighted average dumping margin or individual countervailing duty rate determined for a new exporter (shipper) or producer of merchandise in a review by the administering authority as to whether antidumping or countervailing duties shall be imposed to be based solely on the bona fide U.S. sales made by the exporter or producer during the period of review.
Applies the amendments made by this Act to goods from Canada and Mexico.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 166 Introduced in House (IH)]
113th CONGRESS
1st Session
H. R. 166
To prevent the evasion of antidumping and countervailing duty orders,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 4, 2013
Mr. Boustany (for himself and Mr. Richmond) 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 AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Preventing
Recurring Trade Evasion and Circumvention Act'' or ``PROTECT Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title and table of contents.
Sec. 2. Definitions.
Sec. 3. Application to Canada and Mexico.
TITLE I--ACTIONS RELATING TO ENFORCEMENT OF TRADE REMEDY LAWS
Sec. 101. Trade Remedy Law Enforcement Division.
Sec. 102. Collection of information on evasion of trade remedy laws.
Sec. 103. Access to information.
Sec. 104. Cooperation with foreign countries on preventing evasion of
trade remedy laws.
Sec. 105. Trade negotiating objectives.
TITLE II--OTHER MATTERS
Sec. 201. Allocation and training of personnel.
Sec. 202. Annual report on prevention of evasion of antidumping and
countervailing duty orders.
Sec. 203. Addressing circumvention by new shippers.
SEC. 2. DEFINITIONS.
In this Act:
(1) 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.
(2) Commissioner.--The term ``Commissioner'' means the
Commissioner responsible for U.S. Customs and Border
Protection.
(3) Covered merchandise.--The term ``covered merchandise''
means merchandise that is subject to--
(A) a countervailing duty order issued under
section 706 of the Tariff Act of 1930; or
(B) an antidumping duty order issued under section
736 of the Tariff Act of 1930.
(4) Eligible small business.--
(A) In general.--The term ``eligible small
business'' means any business concern which, in the
Commissioner's judgment, due to its small size, has
neither adequate internal resources nor financial
ability to obtain qualified outside assistance in
preparing and submitting for consideration allegations
of evasion.
(B) Non-reviewability.--Any agency decision
regarding whether a business concern is an eligible
small business for purposes of section 101(b)(3) is not
reviewable by any other agency or by any court.
(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) Secretary.--The term ``Secretary'' means the Secretary
of the Treasury.
(8) Trade remedy laws.--The term ``trade remedy laws''
means title VII of the Tariff Act of 1930.
SEC. 3. 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), this Act and the amendments made
by this Act shall apply with respect to goods from Canada and Mexico.
TITLE I--ACTIONS RELATING TO ENFORCEMENT OF TRADE REMEDY LAWS
SEC. 101. TRADE REMEDY LAW ENFORCEMENT DIVISION.
(a) Establishment.--
(1) In general.--The Secretary of Homeland Security shall
establish and maintain within the Office of International Trade
of U.S. Customs and Border Protection, established under
section 2(d) of the Act of March 3, 1927 (44 Stat. 1381,
chapter 348; 19 U.S.C. 2072(d)), a Trade Remedy Law Enforcement
Division.
(2) Composition.--The Trade Law Remedy Enforcement Division
shall be composed of--
(A) headquarters personnel led by a Director, who
shall report to the Assistant Commissioner of the
Office of International Trade; and
(B) a National Targeting and Analysis Group
dedicated to preventing and countering evasion.
(3) Duties.--The Trade Remedy Law Enforcement Division
shall be dedicated--
(A) to the development and administration of
policies to prevent and counter evasion;
(B) to direct enforcement and compliance assessment
activities concerning evasion;
(C) to the development and conduct of commercial
risk assessment targeting with respect to cargo
destined for the United States in accordance with
subsection (c);
(D) to issuing Trade Alerts described in subsection
(d); and
(E) to the development of policies for the
application of single entry and continuous bonds for
entries of covered merchandise to sufficiently protect
the collection of antidumping and countervailing duties
commensurate with the level of risk of noncollection.
(b) Duties of Director.--The duties of the Director of the Trade
Remedy Law Enforcement Division shall include--
(1) directing the trade enforcement and compliance
assessment activities of U.S. Customs and Border Protection
that concern evasion;
(2) facilitating, promoting, and coordinating cooperation
and the exchange of information between U.S. Customs and Border
Protection, U.S. Immigration and Customs Enforcement, and other
relevant agencies regarding evasion;
(3) notifying on a timely basis the administering authority
(as defined in section 771(1) of the Tariff Act of 1930 (19
U.S.C. 1677(1))) and the Commission (as defined in section
771(2) of the Tariff Act of 1930 (19 U.S.C. 1677(2))) of any
finding, determination, civil action, or criminal action taken
by U.S. Customs and Border Protection or other Federal agency
regarding evasion; and
(4) serving as the primary liaison between U.S. Customs and
Border Protection and the public regarding United States
Government activities concerning evasion, including--
(A) receive and transmit to the appropriate U.S.
Customs and Border Protection office allegations from
parties of evasion;
(B) upon request by the party or parties that
submitted an allegation of evasion, provide information
to such party or parties on the status of U.S. Customs
and Border Protection's consideration of the allegation
and decision to pursue or not pursue any investigations
or other actions, such as changes in policies,
procedures, or resource allocation as a result of the
allegation;
(C) as needed, request from the party or parties
that submitted an allegation of evasion any additional
information that may be relevant for U.S. Customs and
Border Protection determining whether to initiate an
investigation or take any other action regarding the
allegation;
(D) notify on a timely basis the party or parties
that submitted such an allegation of the results of any
civil or criminal actions taken by U.S. Customs and
Border Protection or other Federal agency regarding
evasion as a direct or indirect result of the
allegation;
(E) upon request, provide technical assistance and
advice to eligible small businesses to enable such
businesses to prepare and submit allegations of
evasion, except that the Director may deny assistance
if the Director concludes that the allegation, if
submitted, would not lead to the initiation of an
investigation or any other action to address the
allegation;
(F) in cooperation with the public, the Advisory
Committee on Commercial Operations of the United States
Customs Service, the Trade Support Network and any
other relevant parties and organizations, develop
guidelines on the types and nature of information that
may be provided in allegations of evasion; and
(G) regularly consult with the public, the Advisory
Committee on Commercial Operations of the United States
Customs Service, the Trade Support Network, and any
other relevant parties and organizations regarding the
development and implementation of regulations,
interpretations, and policies related to countering
evasion.
(c) Preventing and Countering Evasion of the Trade Remedy Laws.--In
carrying out its duties with respect to preventing and countering
evasion, the National Targeting and Analysis Group dedicated to
preventing and countering evasion shall--
(1) establish targeted risk assessment methodologies and
standards--
(A) for evaluating the risk that cargo destined for
the United States may constitute evading covered
merchandise; and
(B) for issuing, as appropriate, Trade Alerts
described in subsection (d); and
(2) to the extent practicable and otherwise authorized by
law, use information available from the Automated Commercial
System, the Automated Commercial Environment computer system,
the Automated Targeting System, the Automated Entry System, the
International Trade Data System, and the Treasury Enforcement
Communications System, and any successor systems, to administer
the methodologies and standards established under paragraph
(1).
(d) Trade Alerts.--Based upon the application of the targeted risk
assessment methodologies and standards established under subsection
(c), the Director of the Trade Remedy Law Enforcement Division shall
issue Trade Alerts or other such means of notification to directors of
United States ports of entry directing further inspection, or physical
examination or testing, of specific merchandise to ensure compliance
with the trade remedy laws.
(e) Definitions.--In this section--
(1) the term ``Advisory Committee on Commercial Operations
of the United States Customs Service'' means the Advisory
Committee established under section 9503(c) of the Omnibus
Budget Reconciliation Act of 1987 (19 U.S.C. 2071 note); and
(2) the term ``Trade Support Network'' means the network of
private sector entities that provide input on the design and
development of modernization projects of U.S. Customs and
Border Protection.
(f) Use of Trade Data for Commercial Enforcement Purposes.--Section
343(a)(3) of the Trade Act of 2002 (19 U.S.C. 2071 note) is amended--
(1) by striking subparagraph (F); and
(2) by redesignating subparagraphs (G) through (L) as
subparagraphs (F) through (K), respectively.
SEC. 102. COLLECTION OF INFORMATION ON EVASION OF TRADE REMEDY LAWS.
(a) Authority To Collect Information.--To determine whether covered
merchandise is being entered into the customs territory of the United
States through evasion, the Secretary, acting through the
Commissioner--
(1) shall exercise all existing authorities to collect
information needed to make the determination; and
(2) may collect such additional information as is necessary
to make the determination through such methods as the
Commissioner considers appropriate, including by issuing
questionnaires with respect to the entry or entries at issue
to--
(A) a person who filed an allegation with respect
to the covered merchandise;
(B) a person who is alleged to have entered the
covered merchandise into the customs territory of the
United States through evasion; or
(C) any other person who is determined to have
information relevant to the allegation of entry of
covered merchandise into the customs territory of the
United States through evasion.
(b) Adverse Inference.--
(1) In general.--If the Secretary finds that a person who
filed an allegation, a person alleged to have entered covered
merchandise into the customs territory of the United States
through evasion, or a foreign producer or exporter of covered
merchandise that is alleged to have entered into the customs
territory of the United States through evasion, has failed to
cooperate by not acting to the best of the person's ability to
comply with a request for information, the Secretary may, in
making a determination whether an entry or entries of covered
merchandise may constitute merchandise that is entered into the
customs territory of the United States through evasion, 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.
(2) Adverse inference described.--An adverse inference used
under paragraph (1) may include reliance on information derived
from--
(A) the allegation of evasion of the trade remedy
laws, if any, submitted to U.S. Customs and Border
Protection;
(B) a determination by the Commissioner in another
investigation, proceeding, or other action regarding
evasion of the unfair trade laws; or
(C) any other available information.
SEC. 103. ACCESS TO INFORMATION.
(a) In General.--Section 777(b)(1)(A)(ii) of the Trade Act of 1930
(19 U.S.C. 1677f(b)(1)(A)(ii)) is amended by inserting ``negligence,
gross negligence, or'' after ``regarding''.
(b) Additional Information.--Notwithstanding any other provision of
law, the Secretary is authorized to provide to the Secretary of
Commerce or the U.S. International Trade Commission any information
that is necessary to enable the Secretary of Commerce or the U.S.
International Trade Commission to assist the Secretary to identify,
through risk assessment targeting or otherwise, covered merchandise
that is entered into the customs territory of the United States through
evasion.
SEC. 104. COOPERATION WITH FOREIGN COUNTRIES ON PREVENTING EVASION OF
TRADE REMEDY LAWS.
(a) Bilateral Agreements.--
(1) In general.--The Secretary shall seek to negotiate and
enter into bilateral agreements with the customs authorities or
other appropriate authorities of foreign countries for purposes
of cooperation on preventing evasion of the trade remedy laws
of the United States and the trade remedy laws of the other
country.
(2) Provisions and authorities.--The Secretary shall seek
to include in each such bilateral agreement the following
provisions and authorities:
(A) On the request of the importing party, the
exporting party shall provide, consistent with its
laws, regulations, and procedures, production, trade,
and transit documents and other information necessary
to determine whether an entry or entries exported from
the exporting party are subject to the importing
party's trade remedy laws.
(B) On the written request of the importing party,
the exporting party shall conduct a verification for
purposes of enabling the importing party to make a
determination described in subparagraph (A).
(C) The exporting party may allow the importing
party to participate in a verification described in
subparagraph (B), including through a site visit.
(D) If the exporting party does not allow
participation of the importing party in a verification
described in subparagraph (B), the importing party may
take this fact into consideration in its trade
enforcement and compliance assessment activities
regarding the compliance of the exporting countries'
exports with the importing countries' trade remedy
laws.
(b) Consideration.--The Commissioner is authorized to take into
consideration whether a country is a signatory to a bilateral agreement
described in subsection (a) and the extent to which the country is
cooperating under the bilateral agreement for purposes of trade
enforcement and compliance assessment activities of U.S. Customs and
Border Protection that concern evasion by such country's exports.
(c) Report.--Not later than December 31 of each year beginning
after the date of the enactment of this Act, the Secretary shall submit
to the appropriate congressional committees a report summarizing--
(1) the status of any ongoing negotiations of bilateral
agreements described in subsection (a), including the
identities of the countries involved in such negotiations;
(2) the terms of any completed bilateral agreements
described in subsection (a); and
(3) bilateral cooperation and other activities conducted
pursuant to or enabled by any completed bilateral agreements
described in subsection (a).
SEC. 105. TRADE NEGOTIATING OBJECTIVES.
The principal negotiating objectives of the United States shall
include obtaining the objectives of the bilateral agreements described
under section 104(a) for any trade agreements under negotiation as of
the date of the enactment of this Act or future trade agreement
negotiations.
TITLE II--OTHER MATTERS
SEC. 201. ALLOCATION AND TRAINING OF PERSONNEL.
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 and investigating the entry of
covered merchandise into the customs territory of the United
States through evasion;
(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; and
(3) provides adequate training to relevant personnel to
increase expertise and effectiveness in the prevention and
investigation of entries of covered merchandise into the
customs territory of the United States through evasion.
SEC. 202. 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 2013, the Commissioner, in consultation with the Secretary of
Commerce and the Assistant Secretary for U.S. Immigration and Customs
Enforcement, shall submit to the appropriate congressional committees a
report on the efforts being taken to prevent and investigate evasion.
(b) Contents.--Each report required under subsection (a) shall
include--
(1) for the calendar year preceding the submission of the
report--
(A) a summary of the efforts of U.S. Customs and
Border Protection to prevent and investigate evasion;
(B) the number of allegations of evasion received
and the number of allegations of evasion resulting in
investigations by U.S. Customs and Border Protection or
any other agency;
(C) a summary of the completed investigations of
evasion, including the number and nature of the
investigations initiated, conducted, or completed, as
well as their resolution;
(D) with respect to investigations that lead to
issuance of a penalty notice, the penalty amounts;
(E) the amounts of antidumping and countervailing
duties collected as a result of any investigations or
other actions by U.S. Customs and Border Protection or
any other agency;
(F) a description of the allocation of personnel
and other resources of U.S. Customs and Border
Protection and U.S. Immigration and Customs Enforcement
to prevent and investigation evasion, including any
assessments conducted regarding the allocation of such
personnel and resources; and
(G) a description of training conducted to increase
expertise and effectiveness in the prevention and
investigation of evasion; and
(2) a description of U.S. Customs and Border Protection
processes and procedures to prevent and investigate evasion,
including--
(A) the specific guidelines, policies, and
practices used by U.S. Customs and Border Protection to
ensure that allegations of evasion are promptly
evaluated and acted upon in a timely manner;
(B) an evaluation of the efficacy of such existing
guidelines, policies, and practices;
(C) identification of any changes since the last
report that have materially improved or reduced the
effectiveness of U.S. Customs and Border Protection to
prevent and investigate evasion;
(D) a description of the development and
implementation of policies for the application of
single entry and continuous bonds for entries of
covered merchandise to sufficiently protect the
collection of antidumping and countervailing duties
commensurate with the level of risk on noncollection;
(E) the processes and procedures for increased
cooperation and information sharing with the Department
of Commerce, U.S. Immigration and Customs Enforcement,
and any other relevant Federal agencies to prevent and
investigate evasion; and
(F) identification of any recommended policy
changes of other Federal agencies or legislative
changes to improve the effectiveness of U.S. Customs
and Border Protection to prevent and investigate
evasion.
SEC. 203. ADDRESSING CIRCUMVENTION BY NEW SHIPPERS.
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) inserting after clause (iii), as redesignated by
paragraph (2) of this section, the following:
``(iv) Any weighted average dumping margin
or individual countervailing duty rate
determined for an exporter or producer in a
review conducted under clause (i) shall be
based solely on the bona fide United States
sales of an exporter or producer, as the case
may be, made during the period covered by the
review. In determining whether the United
States sales of an exporter or producer made
during the period covered by the review were
bona fide, the administering authority shall
consider, depending on the circumstances
surrounding such sales--
``(I) the prices of such sales;
``(II) whether such sales were made
in commercial quantities;
``(III) the timing of such sales;
``(IV) the expenses arising from
such sales;
``(V) whether the subject
merchandise involved in such sales were
resold in the United States at a
profit;
``(VI) whether such sales were made
on an arms-length basis; and
``(VII) any other factor the
administering authority determines to
be relevant as to whether such sales
are, or are not, likely to be typical
of those the exporter or producer will
make after completion of the review.''.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Ways and Means.
Referred to the Subcommittee on Trade.
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