[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 5329 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 5329
To amend section 321 of the Tariff Act of 1930 to enhance transparency
with respect to shipments seeking an administrative exemption from
duties for low-value entries, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 14, 2024
Mr. Wyden (for himself, Ms. Lummis, Mr. Brown, Ms. Collins, and Mr.
Casey) introduced the following bill; which was read twice and referred
to the Committee on Finance
_______________________________________________________________________
A BILL
To amend section 321 of the Tariff Act of 1930 to enhance transparency
with respect to shipments seeking an administrative exemption from
duties for low-value entries, 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.
This Act may be cited as the ``Fighting Illicit Goods, Helping
Trustworthy Importers, and Netting Gains for America Act of 2024'' or
the ``FIGHTING for America Act of 2024''.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) driven by the COVID-19 pandemic and other global
factors, the volume of low-value imports into the United States
that are eligible for an administrative exemption from duties
under section 321 of the Tariff Act of 1930 (19 U.S.C. 1321),
known as the ``de minimis'' exemption, has accelerated in
recent years;
(2) as the patterns of trade change, it is necessary to
periodically review customs procedures to ensure that those
procedures are sufficient to protect the revenue of the United
States, provide for the interdiction of illicit goods, and
otherwise facilitate legitimate trade and the appropriate use
of customs resources;
(3) since the amendment to section 321 of the Tariff Act of
1930 made by section 901 of the Trade Facilitation and Trade
Enforcement Act of 2015 (Public Law 114-125; 130 Stat. 223),
growth in the direct-to-consumer model of business has
accelerated attempts to ship illicit drugs and other
unauthorized products through low-value shipments and tariff-
based remedies seeking to ensure a level playing field for
United States workers have increased; and
(4) as such, the conditions of trade require Congress to
reevaluate the purpose and intent of the powers delegated to
the Secretary of the Treasury under section 321 of the Tariff
Act of 1930, as so amended, to both protect the revenue of the
United States and properly scrutinize shipments subject to an
administrative exemption established under that section.
SEC. 3. DESIGNATION OF PRIORITY TRADE ISSUE.
Section 117(a) of the Trade Facilitation and Trade Enforcement Act
of 2015 (19 U.S.C. 4322(a)) is amended by adding at the end the
following:
``(8) The smuggling of fentanyl, other illicit drugs, and
related material by abusing entry procedures for merchandise
qualifying for an administrative exemption pursuant to section
321 of the Tariff Act of 1930 (19 U.S.C. 1321).''.
SEC. 4. ENHANCED TRANSPARENCY FOR SHIPMENTS.
Section 321 of the Tariff Act of 1930 (19 U.S.C. 1321) is amended
by adding at the end the following:
``(c) Documentation and Information Supporting Eligibility for
Exemption.--
``(1) In general.--Not later than 180 days after the date
of the enactment of this subsection, the Secretary of the
Treasury, in consultation with the Postmaster General, shall
prescribe regulations to require the provision to U.S. Customs
and Border Protection, separate from any entry filing, of such
documentation or information with respect to an article that
may qualify for an administrative exemption under subsection
(a)(2)(C) as the Secretary determines is reasonably necessary
for U.S. Customs and Border Protection to determine the
admissibility of the article and the eligibility of the article
for the exemption when in a postal or other shipment.
``(2) Included documentation or information.--Pursuant to
paragraph (1), the Secretary may require, with respect to an
article that may qualify for an administrative exemption under
subsection (a)(2)(C), documentation or information regarding--
``(A) the offer for sale or purchase, or the
subsequent sale, purchase, transportation, importation,
or warehousing of, the article, including documentation
or information related to the offering of the article
for sale or purchase within the United States through a
commercial or marketing platform, including an
electronic commerce platform or marketplace, if
applicable;
``(B) the identity of the seller, the shipper, the
carrier, the final delivery party, or the purchaser of
the article, as applicable;
``(C) the fair retail value in the country of
shipment; and
``(D) other information determined to be necessary
to protect the revenue and prevent unlawful
importations.
``(3) Identification of harmonized tariff schedule
classification.--Notwithstanding any other provision of law,
the Secretary, in consultation with the Postmaster General,
shall require, with respect to an article claimed as qualifying
for an administrative exemption under subsection (a)(2)(C), the
submission of the following information as part of the entry
filing:
``(A) The identification of the 10-digit
statistical reporting number of the Harmonized Tariff
Schedule of the United States under which the article
is classifiable.
``(B) A description of the article with sufficient
specificity to allow U.S. Customs and Border Protection
to evaluate the correctness of the statistical
reporting number for the article identified under
subparagraph (A).
``(C) The country of origin of the article.
``(4) Parties providing documentation and information.--The
documentation or information required pursuant to paragraph (1)
with respect to an article that may qualify for an
administrative exemption under subsection (a)(2)(C) may be
provided by a party or parties other than one of the parties
qualifying to make entry, as specified by the Secretary by
regulations prescribed under section 498.
``(5) Veracity of documentation and information.--A person
providing documentation or information to U.S. Customs and
Border Protection pursuant to paragraph (1) shall ensure that
the documentation or information is true and correct to the
best of the person's knowledge and belief, subject to any
penalties authorized by law.
``(6) Use of information.--U.S. Customs and Border
Protection may use documentation or information provided
pursuant to paragraph (1) for any lawful purpose necessary to
fulfill the mission of U.S. Customs and Border Protection.
``(7) Penalties.--
``(A) Violation of regulations.--
``(i) Civil penalty.--Any person that
violates the regulations prescribed under this
subsection is liable for a civil penalty in an
amount not to exceed--
``(I) $1,000 for the first
violation; and
``(II) $5,000 for each subsequent
violation.
``(ii) Additional penalties.--A penalty
imposed under this subparagraph shall be in
addition to any other penalty provided by law.
``(iii) Remission; mitigation.--
``(I) In general.--Except as
provided by subclause (II), a penalty
imposed under this subparagraph may be
remitted or mitigated on a per package
or shipment basis, as appropriate,
under section 618.
``(II) Exception.--If a penalty is
being considered with respect to a
fourth or subsequent violation
described in clause (i) by the same
person, the maximum penalty under
clause (i)(II) shall be imposed with
respect to the violation.
``(B) Additional violations.--
``(i) In general.--A person commits fraud
if the person provides a false statement to
U.S. Customs and Border Protection with respect
to an article and U.S. Customs and Border
Protection--
``(I) permits the entry of that
article at less than the proper rate of
duty; or
``(II) improperly treats that
article as qualifying for an
administrative exemption under
subsection (a)(2)(C).
``(ii) Civil penalty.--A person that
engages in conduct described in clause (i) is
liable for a civil penalty in an amount not to
exceed--
``(I) $5,000 for the first instance
of such conduct; and
``(II) $10,000 for each subsequent
instance of such conduct.
``(iii) Additional penalties.--A penalty
imposed under this subparagraph shall be in
addition to any other penalty provided by
section 592 or any other provision of law.
``(iv) Remission; mitigation.--
``(I) In general.--Except as
provided by subclause (II), a penalty
imposed under this subparagraph may be
remitted or mitigated on a per package
or shipment basis, as appropriate,
under section 618.
``(II) Exception.--If a penalty is
being considered with respect to a
fourth or subsequent violation
described in clause (i) by the same
person, the maximum penalty under
clause (ii)(II) shall be imposed with
respect to the violation.
``(8) Definition.--In this subsection, the terms `provide',
`providing', and `provision', with respect to documentation or
information provided to U.S. Customs and Border Protection,
include the submission, transmission, or otherwise making
available of the documentation or information to U.S. Customs
and Border Protection.''.
SEC. 5. LIMITATIONS ON EXEMPTION FROM DUTIES.
Section 321 of the Tariff Act of 1930 (19 U.S.C. 1321) is amended
by striking ``(b) The Secretary of the Treasury'' and inserting the
following:
``(b) Exceptions.--
``(1) In general.--The Secretary of the Treasury may not
exempt from duties and taxes under subsection (a)(2)(C)--
``(A) any article that is--
``(i) subject to an antidumping or
countervailing duty determination, instruction,
or order under title VII of this Act;
``(ii) subject to a tariff-rate quota or
other quota;
``(iii) subject to a tax imposed under the
Internal Revenue Code of 1986 that is collected
by U.S. Customs and Border Protection;
``(iv) subject to an action taken under--
``(I) section 201(a) or 301(c) of
the Trade Act of 1974 (19 U.S.C.
2251(a) and 2411(c)); or
``(II) section 232(c) of the Trade
Expansion Act of 1962 (19 U.S.C.
1862(c)); or
``(v) as of January 1, 2025, not designated
by the President under section 503 of the Trade
Act of 1974 (19 U.S.C. 2463) as an eligible
article for purposes of the Generalized System
of Preferences under title V of that Act (19
U.S.C. 2461 et seq.), as reflected in the
Harmonized Tariff Schedule of the United
States, without regard to whether the
Generalized System of Preferences otherwise
applies to the article, including for reasons
of country of origin of the article or
expiration of the Generalized System of
Preferences; or
``(B) any article of a type or class that the
Secretary determines is not able to be exempted from
duties and taxes under subsection (a) in a manner that
will protect the revenue and prevent unlawful
importations because the type or class is subject to--
``(i) a significant increase in imports
over the trend for a recent representative base
period; or
``(ii) persistent and significant evidence
of hiding the shipment of illicit goods, fraud,
counterfeiting, or other malfeasance.
``(2) List of articles determined unable to be exempted.--
The Secretary shall identify any article of a type or class
that the Secretary determines under paragraph (1)(B) is not
able to be exempted from duties and taxes under subsection (a)
on a list maintained on a publicly accessible website and
reviewed not less frequently than annually by the Secretary.
``(3) Other exceptions.--The Secretary''.
SEC. 6. DISPOSITION OF DETAINED MERCHANDISE.
Section 499 of the Tariff Act of 1930 (19 U.S.C. 1499) is amended--
(1) in subsection (c)--
(A) in paragraph (2)--
(i) by redesignating subparagraphs (A)
through (E) as clauses (i) through (v),
respectively, and by moving such clauses, as so
redesignated, 2 ems to the right;
(ii) by striking ``The Customs Service
shall'' and inserting the following:
``(A) In general.--U.S. Customs and Border
Protection shall''; and
(iii) by adding at the end the following:
``(B) Merchandise for which entry sought under
administrative exemption from duties.--In the case of
detained merchandise for which entry under an
administrative exemption under section 321(a)(2)(C) is
claimed--
``(i) U.S. Customs and Border Protection
shall provide the notice required by
subparagraph (A) to each party that appears to
have an interest in the merchandise, based on
information reasonably available to U.S.
Customs and Border Protection, in such form and
manner as the Secretary shall by regulation
prescribe;
``(ii) in addition to the matter required
by clauses (i) through (v) of subparagraph (A),
the notice shall advise the interested party
that, instead of providing information in
response to subparagraph (A)(v), the interested
party may voluntarily abandon the merchandise;
and
``(iii) if U.S. Customs and Border
Protection does not receive a response from an
interested party by the date that is 15 days
after the date of the notice--
``(I) the merchandise shall be
deemed abandoned; and
``(II) title to the merchandise
shall be vested in the United States
and disposed of in accordance with
law.''; and
(B) in paragraph (5), by adding at the end the
following:
``(D) Subparagraphs (A), (B), and (C) do not apply
with respect to merchandise for which entry under an
administrative exemption under section 321(a)(2)(C) is
claimed.'';
(2) by striking ``The Customs Service'' each place it
appears and inserting ``U.S. Customs and Border Protection'';
and
(3) by striking ``the Customs Service'' each place it
appears and inserting ``U.S. Customs and Border Protection''.
SEC. 7. REPORT ON REVIEW OF MERCHANDISE BY PARTNER GOVERNMENT AGENCIES.
Not later than 270 days after the date of the enactment of this
Act, the Secretary of the Treasury shall submit to Congress a report on
the engagement of partner government agencies of U.S. Customs and
Border Protection in the review and detention of merchandise for which
an administrative exemption under section 321 of the Tariff Act of 1930
(19 U.S.C. 1321) is claimed that includes recommendations for improving
such engagement and the interdiction of merchandise inconsistent with
the requirements of such agencies.
SEC. 8. SUMMARY FORFEITURE OF CERTAIN MERCHANDISE IMPORTED CONTRARY TO
LAW.
Section 596 of the Tariff Act of 1930 (19 U.S.C. 1595a) is amended
by adding at the end the following:
``(e) Summary Forfeiture.--
``(1) In general.--Merchandise described in paragraph (2)
may be summarily forfeited to the United States and title shall
vest immediately in the United States.
``(2) Merchandise described.--Merchandise described in this
paragraph is merchandise being imported or attempted to be
imported--
``(A) for which an administrative exemption under
section 321(a)(2)(C) is claimed; and
``(B) that is described in paragraph (1), (2), or
(3) of section 596(c).
``(3) Notice.--In any case in which merchandise is
summarily forfeited pursuant to this subsection, U.S. Customs
and Border Protection shall notify the carrier of the
merchandise, and may notify a customs broker involved in the
importation or attempted importation of the merchandise, in
such form and manner as the Secretary shall prescribe by
regulation, which may include communication through an
authorized electronic data interchange system.''.
SEC. 9. MODIFICATION OF PENALTY FOR AIDING UNLAWFUL IMPORTATION.
Section 596(b) of the Tariff Act of 1930 (19 U.S.C. 1595a(b)) is
amended by striking ``the preceding subsection'' and all that follows
and inserting the following: ``subsection (a) shall be liable, without
regard to whether the article or articles introduced or attempted to be
introduced were seized, for a penalty equal to the greater of--
``(1) the domestic value of the article or articles; or
``(2) $5,000.''.
SEC. 10. SHARING OF INFORMATION WITH RESPECT TO SUSPECTED VIOLATIONS OF
INTELLECTUAL PROPERTY RIGHTS.
Section 628A(a) of the Tariff Act of 1930 (19 U.S.C. 1628a(a)) is
amended--
(1) in the matter preceding paragraph (1)--
(A) by striking ``suspects'' and inserting ``has a
reasonable suspicion''; and
(B) by striking ``testing--'' and inserting
``testing, may--'';
(2) in paragraph (1)--
(A) by striking ``shall''; and
(B) by striking ``; and'' and inserting a
semicolon;
(3) in paragraph (2)--
(A) by striking ``may,''; and
(B) by striking the period at the end and inserting
``; and''; and
(4) by adding at the end the following:
``(3) provide to the person nonpublic information about the
merchandise that was--
``(A) generated by an online marketplace or other
similar market platform, an express consignment
operator, a freight forwarder, or any other entity that
plays a role in the sale or importation of merchandise
into the United States or the facilitation of such sale
or importation, including copies or images of
packaging, materials, labeling, or containers; and
``(B) provided to, shared with, or obtained by,
U.S. Customs and Border Protection.''.
SEC. 11. CUSTOMS USER FEE FOR PROCESSING SHIPMENTS.
(a) In General.--Section 13031(a)(10) of the Consolidated Omnibus
Budget Reconciliation Act of 1985 (19 U.S.C. 58c(a)(10)) is amended--
(1) in subparagraph (C)--
(A) in clause (ii), by striking ``; or'' and
inserting a semicolon;
(B) in clause (iii), by striking the period at the
end and inserting ``; or''; and
(C) by inserting after clause (iii) the following:
``(iv) $2 for each shipment, to be paid by
the party making entry, if the entry or release
of that shipment, whether automated or manual,
is made under section 321(a)(2)(C) of the
Tariff Act of 1930 (19 U.S.C.
1321(a)(2)(C)).''; and
(2) in the flush text at the end, by adding at the end the
following: ``In the case of shipments the entry or release of
which is made under section 321(a)(2)(C) of the Tariff Act of
1930 (19 U.S.C. 1321(a)(2)(C)) that are sent to the United
States through the international postal network, the Secretary,
in consultation with the Postmaster General, shall determine
whether it is appropriate to impose fees that are the same or
similar as the fees applicable to shipments under subparagraph
(C)(iv) on shipments by the United States Postal Service. If
the Secretary determines that such requirements are
appropriate, such requirements shall be prescribed by
regulation.''.
(b) Payment.--Section 13031(b)(8)(D)(i) of the Consolidated Omnibus
Budget Reconciliation Act of 1985 (19 U.S.C. 58c(b)(8)(D)(i)) is
amended by inserting after ``merchandise'' the following: ``, except in
the case of fees charged under subsection (a)(10)(C)(iv), in which case
such fees shall be paid by the party making entry''.
SEC. 12. REPORT ON USE OF ADMINISTRATIVE EXEMPTIONS AND ENFORCEMENT
ACTIONS.
(a) In General.--Not later than one year after the date of the
enactment of this Act, and annually thereafter, the Secretary of the
Treasury, in consultation with the Commissioner of U.S. Customs and
Border Protection, shall submit to the Committee on Finance of the
Senate and the Committee on Ways and Means of the House of
Representatives a report, followed by a briefing, on the use of
administrative exemptions under section 321 of the Tariff Act of 1930
(19 U.S.C. 1321).
(b) Elements.--Each report required by subsection (a) shall
include, for the year preceding submission of the report, the
following:
(1) An assessment of the volume of imports claiming an
administrative exemption under section 321(a)(2)(C) of the
Tariff Act of 1930 (19 U.S.C. 1321(a)(2)(C)), including--
(A) the total number of shipments of imports
claiming such an exemption; and
(B) the volume of merchandise claiming such an
exemption, identified by--
(i) the 4-digit heading of the Harmonized
Tariff Schedule of the United States under
which the merchandise was classified; and
(ii) the country of origin of the
merchandise.
(2) An assessment of the total revenue forgone by the
United States Government as a result of permitting the entry of
merchandise free of duty pursuant to that section.
(3) The number and a description of the type of violations
of the regulations prescribed under subsection (c) of section
321 of the Tariff Act of 1930, as added by section 4,
identified in shipments claiming an administrative exemption
under that section, and penalties applied to such shipments,
including a description of the type and frequency of mitigation
actions applicable to such shipments.
(4) A detailed description of shipments, disaggregated by
port of entry, for which an administrative exemption under
section 321(a)(2)(C) of the Tariff Act of 1930 (19 U.S.C.
1321(a)(2)(C)) was claimed that were subject to detention or
forfeiture and the reasons for the detention or forfeiture.
(5) A description of any merchandise or shipments under
evaluation as ineligible, under subsection (b)(1)(B) of section
321 of the Tariff Act of 1930, as amended by section 5, for
such an administrative exemption.
(6) The average number of referrals of criminal matters to
the Department of Justice or Homeland Security Investigations
made on a monthly basis for merchandise for which such an
administrative exemption was claimed.
(7) A description of the use of administrative exemptions
under section 321 of the Tariff Act of 1930 (19 U.S.C. 1321)
for merchandise shipped from Mexico or Canada to the United
States, including the volume and type of such merchandise for
which such an exemption was claimed, and any trends in the use
of such exemptions.
(8) A description of current staffing, risk mitigation, and
other actions to ensure that administrative exemptions under
section 321 of the Tariff Act of 1930 (19 U.S.C. 1321) are used
in compliance with United States law.
SEC. 13. EFFECTIVE DATE; APPLICABILITY.
The amendments made by this Act shall--
(1) take effect on the date that is 60 days after the date
of the enactment of this Act; and
(2) apply with respect to articles entered on or after the
date that is 30 days after the effective date of the
regulations prescribed under subsection (c) of section 321 of
the Tariff Act of 1930, as added by section 4.
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