[House Report 114-114]
[From the U.S. Government Publishing Office]
114th Congress } { Rept. 114-114
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
_______________________________________________________________________
TRADE FACILITATION AND TRADE ENFORCEMENT ACT OF 2015
----------
R E P O R T
of the
COMMITTEE ON WAYS AND MEANS
HOUSE OF REPRESENTATIVES
on
H.R. 1907
together with
ADDITIONAL VIEWS
[Including cost estimate of the Congressional Budget Office]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
May 14, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
114th Congress } { Rept. 114-114
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
_______________________________________________________________________
TRADE FACILITATION AND TRADE ENFORCEMENT ACT OF 2015
__________
R E P O R T
of the
COMMITTEE ON WAYS AND MEANS
HOUSE OF REPRESENTATIVES
on
H.R. 1907
together with
ADDITIONAL VIEWS
[Including cost estimate of the Congressional Budget Office]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
May 14, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
94-600 WASHINGTON : 2015
C O N T E N T S
Page
I. SUMMARY AND BACKGROUND..........................................49
A. Purpose and Summary................................. 49
B. Background and Need for Legislation................. 50
C. Legislative History................................. 51
II. EXPLANATION OF THE BILL.........................................52
A. TRADE FACILITATION AND TRADE ENFORCEMENT ACT OF 2015 52
III. VOTES OF THE COMMITTEE.........................................105
IV. BUDGET EFFECTS OF THE BILL.....................................105
A. Committee Estimate of Budgetary Effects............. 105
B. Statement Regarding New Budget Authority and Tax
Expenditures Budget Authority...................... 105
C. Cost Estimate Prepared by the Congressional Budget
Office............................................. 105
V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE.....112
A. Committee Oversight Findings and Recommendations.... 112
B. Statement of General Performance Goals and
Objectives......................................... 112
C. Information Relating to Unfunded Mandates........... 112
D. Congressional Earmarks, Limited Tax Benefits, and
Limited Tariff Benefits............................ 112
E. Duplication of Federal Programs..................... 113
F. Disclosure of Directed Rule Makings................. 113
VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED..........113
A. Text of Existing Law Amended or Repealed by the
Bill, as Reported.................................. 113
B. Changes in Existing Law Proposed by the Bill, as
Reported........................................... 234
VII. ADDITIONAL VIEWS...............................................381
114th Congress } { Rept. 114-114
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
TRADE FACILITATION AND TRADE ENFORCEMENT ACT OF 2015
_______
May 14, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Ryan of Wisconsin, from the Committee on Ways and Means, submitted
the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1907]
[Including cost estimate of the Congressional Budget Office]
The Committee on Ways and Means, to whom was referred the
bill (H.R. 1907) to reauthorize trade facilitation and trade
enforcement functions and activities, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Trade Facilitation
and Trade Enforcement Act of 2015''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--TRADE FACILITATION AND TRADE ENFORCEMENT
Sec. 101. Improving partnership programs.
Sec. 102. Report on effectiveness of trade enforcement activities.
Sec. 103. Priorities and performance standards for customs
modernization, trade facilitation, and trade enforcement functions and
programs.
Sec. 104. Educational seminars to improve efforts to classify and
appraise imported articles, to improve trade enforcement efforts, and
to otherwise facilitate legitimate international trade.
Sec. 105. Joint strategic plan.
Sec. 106. Automated Commercial Environment.
Sec. 107. International Trade Data System.
Sec. 108. Consultations with respect to mutual recognition
arrangements.
Sec. 109. Commercial Customs Operations Advisory Committee.
Sec. 110. Centers of Excellence and Expertise.
Sec. 111. Commercial Targeting Division and National Targeting and
Analysis Groups.
Sec. 112. Report on oversight of revenue protection and enforcement
measures.
Sec. 113. Report on security and revenue measures with respect to
merchandise transported in bond.
Sec. 114. Importer of record program.
Sec. 115. Establishment of new importer program.
Sec. 116. Customs broker identification of importers.
Sec. 117. Requirements applicable to non-resident importers.
TITLE II--IMPORT HEALTH AND SAFETY
Sec. 201. Interagency import safety working group.
Sec. 202. Joint import safety rapid response plan.
Sec. 203. Training.
TITLE III--IMPORT-RELATED PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
Sec. 301. Definition of intellectual property rights.
Sec. 302. Exchange of information related to trade enforcement.
Sec. 303. Seizure of circumvention devices.
Sec. 304. Enforcement by U.S. Customs and Border Protection of works
for which copyright registration is pending.
Sec. 305. National Intellectual Property Rights Coordination Center.
Sec. 306. Joint strategic plan for the enforcement of intellectual
property rights.
Sec. 307. Personnel dedicated to the enforcement of intellectual
property rights.
Sec. 308. Training with respect to the enforcement of intellectual
property rights.
Sec. 309. International cooperation and information sharing.
Sec. 310. Report on intellectual property rights enforcement.
Sec. 311. Information for travelers regarding violations of
intellectual property rights.
TITLE IV--PREVENTION OF EVASION OF ANTIDUMPING AND COUNTERVAILING DUTY
ORDERS
Sec. 401. Short title.
Sec. 402. Definitions.
Sec. 403. Application to Canada and Mexico.
Subtitle A--Actions Relating to Enforcement of Trade Remedy Laws
Sec. 411. Trade remedy law enforcement division.
Sec. 412. Collection of information on evasion of trade remedy laws.
Sec. 413. Access to information.
Sec. 414. Cooperation with foreign countries on preventing evasion of
trade remedy laws.
Sec. 415. Trade negotiating objectives.
Subtitle B--Investigation of Evasion of Trade Remedy Laws
Sec. 421. Procedures for investigation of evasion of antidumping and
countervailing duty orders.
Sec. 422. Government Accountability Office report.
Subtitle C--Other Matters
Sec. 431. Allocation and training of personnel.
Sec. 432. Annual report on prevention of evasion of antidumping and
countervailing duty orders.
Sec. 433. Addressing circumvention by new shippers.
TITLE V--ADDITIONAL ENFORCEMENT PROVISIONS
Sec. 501. Trade enforcement priorities.
Sec. 502. Exercise of WTO authorization to suspend concessions or other
obligations under trade agreements.
Sec. 503. Trade monitoring.
TITLE VI--MISCELLANEOUS PROVISIONS
Sec. 601. De minimis value.
Sec. 602. Consultation on trade and customs revenue functions.
Sec. 603. Penalties for customs brokers.
Sec. 604. Amendments to chapter 98 of the Harmonized Tariff Schedule of
the United States.
Sec. 605. Exemption from duty of residue of bulk cargo contained in
instruments of international traffic previously exported from the
United States.
Sec. 606. Drawback and refunds.
Sec. 607. Office of the United States Trade Representative.
Sec. 608. United States-Israel Trade and Commercial Enhancement.
Sec. 609. Elimination of consumptive demand exception to prohibition on
importation of goods made with convict labor, forced labor, or
indentured labor; report.
Sec. 610. Customs user fees.
Sec. 611. Report on certain U.S. Customs and Border Protection
agreements.
Sec. 612. Certain interest to be included in distributions under
Continued Dumping and Subsidy Offset Act of 2000.
SEC. 2. DEFINITIONS.
In this Act:
(1) Automated commercial environment.--The term ``Automated
Commercial Environment'' means the Automated Commercial
Environment computer system authorized under section
13031(f)(4) of the Consolidated Omnibus Budget Reconciliation
Act of 1985 (19 U.S.C. 58c(f)(4)).
(2) Commissioner.--The term ``Commissioner'' means the
Commissioner responsible for U.S. Customs and Border
Protection.
(3) Customs and trade laws of the united states.--The term
``customs and trade laws of the United States'' includes the
following:
(A) The Tariff Act of 1930 (19 U.S.C. 1202 et seq.).
(B) Section 249 of the Revised Statutes (19 U.S.C.
3).
(C) Section 2 of the Act of March 4, 1923 (42 Stat.
1453, chapter 251; 19 U.S.C. 6).
(D) The Act of March 3, 1927 (44 Stat. 1381, chapter
348; 19 U.S.C. 2071 et seq.).
(E) Section 13031 of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (19 U.S.C. 58c).
(F) Section 251 of the Revised Statutes (19 U.S.C.
66).
(G) Section 1 of the Act of June 26, 1930 (46 Stat.
817, chapter 617; 19 U.S.C. 68).
(H) The Foreign Trade Zones Act (19 U.S.C. 81a et
seq.).
(I) Section 1 of the Act of March 2, 1911 (36 Stat.
965, chapter 191; 19 U.S.C. 198).
(J) The Trade Act of 1974 (19 U.S.C. 2102 et seq.).
(K) The Trade Agreements Act of 1979 (19 U.S.C. 2501
et seq.).
(L) The North American Free Trade Agreement
Implementation Act (19 U.S.C. 3301 et seq.).
(M) The Uruguay Round Agreements Act (19 U.S.C. 3501
et seq.).
(N) The Caribbean Basin Economic Recovery Act (19
U.S.C. 2701 et seq.).
(O) The Andean Trade Preference Act (19 U.S.C. 3201
et seq.).
(P) The African Growth and Opportunity Act (19 U.S.C.
3701 et seq.).
(Q) The Customs Enforcement Act of 1986 (Public Law
99-570; 100 Stat. 3207-79).
(R) The Customs and Trade Act of 1990 (Public Law
101-382; 104 Stat. 629).
(S) The Customs Procedural Reform and Simplification
Act of 1978 (Public Law 95-410; 92 Stat. 888).
(T) The Trade Act of 2002 (Public Law 107-210; 116
Stat. 933).
(U) The Convention on Cultural Property
Implementation Act (19 U.S.C. 2601 et seq.).
(V) The Act of March 28, 1928 (45 Stat. 374, chapter
266; 19 U.S.C. 2077 et seq.).
(W) The Act of August 7, 1939 (53 Stat. 1263, chapter
566).
(X) Any other provision of law implementing a trade
agreement.
(Y) Any other provision of law vesting customs
revenue functions in the Secretary of the Treasury.
(Z) Any other provision of law relating to trade
facilitation or trade enforcement that is administered
by U.S. Customs and Border Protection on behalf of any
Federal agency that is required to participate in the
International Trade Data System.
(AA) Any other provision of customs or trade law
administered by U.S. Customs and Border Protection or
U.S. Immigration and Customs Enforcement.
(4) Private sector entity.--The term ``private sector
entity'' means--
(A) an importer;
(B) an exporter;
(C) a forwarder;
(D) an air, sea, or land carrier or shipper;
(E) a contract logistics provider;
(F) a customs broker; or
(G) any other person (other than an employee of a
government) affected by the implementation of the
customs and trade laws of the United States.
(5) Trade enforcement.--The term ``trade enforcement'' means
the enforcement of the customs and trade laws of the United
States.
(6) Trade facilitation.--The term ``trade facilitation''
refers to policies and activities of U.S. Customs and Border
Protection with respect to facilitating the movement of
merchandise into and out of the United States in a manner that
complies with the customs and trade laws of the United States.
TITLE I--TRADE FACILITATION AND TRADE ENFORCEMENT
SEC. 101. IMPROVING PARTNERSHIP PROGRAMS.
(a) In General.--In order to advance the security, trade enforcement,
and trade facilitation missions of U.S. Customs and Border Protection,
the Commissioner shall ensure that partnership programs of U.S. Customs
and Border Protection established before the date of the enactment of
this Act, such as the Customs-Trade Partnership Against Terrorism
established under subtitle B of title II of the Security and
Accountability for Every Port Act of 2006 (6 U.S.C. 961 et seq.), and
partnership programs of U.S. Customs and Border Protection established
after such date of enactment, provide trade benefits to private sector
entities that meet the requirements for participation in those programs
established by the Commissioner under this section.
(b) Elements.--In developing and operating partnership programs under
subsection (a), the Commissioner shall--
(1) consult with private sector entities, the public, and
other Federal agencies when appropriate, to ensure that
participants in those programs receive commercially significant
and measurable trade benefits, including providing pre-
clearance of merchandise for qualified persons that demonstrate
the highest levels of compliance with the customs and trade
laws of the United States, regulations of U.S. Customs and
Border Protection, and other requirements the Commissioner
determines to be necessary;
(2) ensure an integrated and transparent system of trade
benefits and compliance requirements for all partnership
programs of U.S. Customs and Border Protection;
(3) consider consolidating partnership programs in situations
in which doing so would support the objectives of such
programs, increase participation in such programs, enhance the
trade benefits provided to participants in such programs, and
enhance the allocation of the resources of U.S. Customs and
Border Protection;
(4) coordinate with the Director of U.S. Immigration and
Customs Enforcement, and other Federal agencies with authority
to detain and release merchandise entering the United States--
(A) to ensure coordination in the release of such
merchandise through the Automated Commercial
Environment, or its predecessor, and the International
Trade Data System;
(B) to ensure that the partnership programs of those
agencies are compatible with the partnership programs
of U.S. Customs and Border Protection;
(C) to develop criteria for authorizing the release,
on an expedited basis, of merchandise for which
documentation is required from one or more of those
agencies to clear or license the merchandise for entry
into the United States; and
(D) to create pathways, within and among the
appropriate Federal agencies, for qualified persons
that demonstrate the highest levels of compliance to
receive immediate clearance absent information that a
transaction may pose a national security or compliance
threat; and
(5) ensure that trade benefits are provided to participants
in partnership programs.
(c) Report Required.--Not later than the date that is 180 days after
the date of the enactment of this Act, and December 31 of each year
thereafter, the Commissioner shall submit to the Committee on Finance
of the Senate and the Committee on Ways and Means of the House of
Representatives a report that--
(1) identifies each partnership program referred to in
subsection (a);
(2) for each such program, identifies--
(A) the requirements for participants in the program;
(B) the commercially significant and measurable trade
benefits provided to participants in the program;
(C) the number of participants in the program; and
(D) in the case of a program that provides for
participation at multiple tiers, the number of
participants at each such tier;
(3) identifies the number of participants enrolled in more
than one such partnership program;
(4) assesses the effectiveness of each such partnership
program in advancing the security, trade enforcement, and trade
facilitation missions of U.S. Customs and Border Protection,
based on historical developments, the level of participation in
the program, and the evolution of benefits provided to
participants in the program;
(5) summarizes the efforts of U.S. Customs and Border
Protection to work with other Federal agencies with authority
to detain and release merchandise entering the United States to
ensure that partnership programs of those agencies are
compatible with partnership programs of U.S. Customs and Border
Protection;
(6) summarizes criteria developed with those agencies for
authorizing the release, on an expedited basis, of merchandise
for which documentation is required from one or more of those
agencies to clear or license the merchandise for entry into the
United States;
(7) summarizes the efforts of U.S. Customs and Border
Protection to work with private sector entities and the public
to develop and improve partnership programs referred to in
subsection (a);
(8) describes measures taken by U.S. Customs and Border
Protection to make private sector entities aware of the trade
benefits available to participants in such programs; and
(9) summarizes the plans, targets, and goals of U.S. Customs
and Border Protection with respect to such programs for the 2
years following the submission of the report.
SEC. 102. REPORT ON EFFECTIVENESS OF TRADE ENFORCEMENT ACTIVITIES.
(a) In General.--Not later than one year after the date of the
enactment of this Act, the Comptroller General of the United States
shall submit to the Committee on Finance of the Senate and the
Committee on Ways and Means of the House of Representatives a report on
the effectiveness of trade enforcement activities of U.S. Customs and
Border Protection.
(b) Contents.--The report required by subsection (a) shall include--
(1) a description of the use of resources, results of audits
and verifications, targeting, organization, and training of
personnel of U.S. Customs and Border Protection; and
(2) a description of trade enforcement activities to address
undervaluation, transshipment, legitimacy of entities making
entry, protection of revenues, fraud prevention and detection,
and penalties, including intentional misclassification,
inadequate bonding, and other misrepresentations.
SEC. 103. PRIORITIES AND PERFORMANCE STANDARDS FOR CUSTOMS
MODERNIZATION, TRADE FACILITATION, AND TRADE
ENFORCEMENT FUNCTIONS AND PROGRAMS.
(a) Priorities and Performance Standards.--
(1) In general.--The Commissioner, in consultation with the
Committee on Finance of the Senate and the Committee on Ways
and Means of the House of Representatives, shall establish
priorities and performance standards to measure the development
and levels of achievement of the customs modernization, trade
facilitation, and trade enforcement functions and programs
described in subsection (b).
(2) Minimum priorities and standards.--Such priorities and
performance standards shall, at a minimum, include priorities
and standards relating to efficiency, outcome, output, and
other types of applicable measures.
(b) Functions and Programs Described.--The functions and programs
referred to in subsection (a) are the following:
(1) The Automated Commercial Environment.
(2) Each of the priority trade issues described in paragraph
(3)(B)(ii) of section 2(d) of the Act of March 3, 1927 (44
Stat. 1381, chapter 348; 19 U.S.C. 2072(d)), as added by
section 111(a) of this Act.
(3) The Centers of Excellence and Expertise described in
section 110 of this Act.
(4) Drawback for exported merchandise under section 313 of
the Tariff Act of 1930 (19 U.S.C. 1313), as amended by section
406 of this Act.
(5) Transactions relating to imported merchandise in bond.
(6) Collection of countervailing duties assessed under
subtitle A of title VII of the Tariff Act of 1930 (19 U.S.C.
1671 et seq.) and antidumping duties assessed under subtitle B
of title VII of the Tariff Act of 1930 (19 U.S.C. 1673 et
seq.).
(7) The expedited clearance of cargo.
(8) The issuance of regulations and rulings.
(9) The issuance of Regulatory Audit Reports.
(c) Consultations and Notification.--
(1) Consultations.--The consultations required by subsection
(a)(1) shall occur, at a minimum, on an annual basis.
(2) Notification.--The Commissioner shall notify the
Committee on Finance of the Senate and the Committee on Ways
and Means of the House of Representatives of any changes to the
priorities referred to in subsection (a) not later than 30 days
before such changes are to take effect.
SEC. 104. EDUCATIONAL SEMINARS TO IMPROVE EFFORTS TO CLASSIFY AND
APPRAISE IMPORTED ARTICLES, TO IMPROVE TRADE
ENFORCEMENT EFFORTS, AND TO OTHERWISE FACILITATE
LEGITIMATE INTERNATIONAL TRADE.
(a) In General.--
(1) Establishment.--The Commissioner and the Director shall
establish and carry out on a fiscal year basis educational
seminars to--
(A) improve the ability of U.S. Customs and Border
Protection personnel to classify and appraise articles
imported into the United States in accordance with the
customs and trade laws of the United States;
(B) improve the trade enforcement efforts of U.S.
Customs and Border Protection personnel and U.S.
Immigration and Customs Enforcement personnel; and
(C) otherwise improve the ability and effectiveness
of U.S. Customs and Border Protection personnel and
U.S. Immigration and Customs Enforcement personnel to
facilitate legitimate international trade.
(b) Content.--
(1) Classifying and appraising imported articles.--In
carrying out subsection (a)(1)(A), the Commissioner, the
Director, and interested parties in the private sector selected
under subsection (c) shall provide instruction and related
instructional materials at each educational seminar under this
section to U.S. Customs and Border Protection personnel and, as
appropriate, to U.S. Immigration and Customs Enforcement
personnel on the following:
(A) Conducting a physical inspection of an article
imported into the United States, including testing of
samples of the article, to determine if the article is
mislabeled in the manifest or other accompanying
documentation.
(B) Reviewing the manifest and other accompanying
documentation of an article imported into the United
States to determine if the country of origin of the
article listed in the manifest or other accompanying
documentation is accurate.
(C) Customs valuation.
(D) Industry supply chains and other related matters
as determined to be appropriate by the Commissioner.
(2) Trade enforcement efforts.--In carrying out subsection
(a)(1)(B), the Commissioner, the Director, and interested
parties in the private sector selected under subsection (c)
shall provide instruction and related instructional materials
at each educational seminar under this section to U.S. Customs
and Border Protection personnel and, as appropriate, to U.S.
Immigration and Customs Enforcement personnel to identify
opportunities to enhance enforcement of the following:
(A) Collection of countervailing duties assessed
under subtitle A of title VII of the Tariff Act of 1930
(19 U.S.C. 1671 et seq.) and antidumping duties
assessed under subtitle B of title VII of the Tariff
Act of 1930 (19 U.S.C. 1673 et seq.).
(B) Addressing evasion of duties on imports of
textiles.
(C) Protection of intellectual property rights.
(D) Enforcement of child labor laws.
(3) Approval of commissioner and director.--The instruction
and related instructional materials at each educational seminar
under this section shall be subject to the approval of the
Commissioner and the Director.
(c) Selection Process.--
(1) In general.--The Commissioner shall establish a process
to solicit, evaluate, and select interested parties in the
private sector for purposes of assisting in providing
instruction and related instructional materials described in
subsection (b) at each educational seminar under this section.
(2) Criteria.--The Commissioner shall evaluate and select
interested parties in the private sector under the process
established under paragraph (1) based on--
(A) availability and usefulness;
(B) the volume, value, and incidence of mislabeling
or misidentification of origin of imported articles;
and
(C) other appropriate criteria established by the
Commissioner.
(3) Public availability.--The Commissioner and the Director
shall publish in the Federal Register a detailed description of
the process established under paragraph (1) and the criteria
established under paragraph (2).
(d) Special Rule for Antidumping and Countervailing Duty Orders.--
(1) In general.--The Commissioner shall give due
consideration to carrying out an educational seminar under this
section in whole or in part to improve the ability of U.S.
Customs and Border Protection personnel to enforce a
countervailing or antidumping duty order issued under section
706 or 736 of the Tariff Act of 1930 (19 U.S.C. 1671e or 1673e)
upon the request of a petitioner in an action underlying such
countervailing or antidumping duty order.
(2) Interested party.--A petitioner described in paragraph
(1) shall be treated as an interested party in the private
sector for purposes of the requirements of this section.
(e) Performance Standards.--The Commissioner and the Director shall
establish performance standards to measure the development and level of
achievement of educational seminars under this section.
(f) Reporting.--Beginning September 30, 2016, the Commissioner and
the Director shall submit to the Committee of Finance of the Senate and
the Committee of Ways and Means of the House of Representatives an
annual report on the effectiveness of educational seminars under this
section.
(g) Definitions.--In this section:
(1) Director.--The term ``Director'' means the Director of
U.S. Immigration and Customs Enforcement.
(2) United states.--The term ``United States'' means the
customs territory of the United States, as defined in General
Note 2 to the Harmonized Tariff Schedule of the United States.
(3) U.S. customs and border protection personnel.--The term
``U.S. Customs and Border Protection personnel'' means import
specialists, auditors, and other appropriate employees of the
U.S. Customs and Border Protection.
(4) U.S. immigration and customs enforcement personnel.--The
term ``U.S. Immigrations and Customs Enforcement personnel''
means Homeland Security Investigations Directorate personnel
and other appropriate employees of U.S. Immigrations and
Customs Enforcement.
SEC. 105. JOINT STRATEGIC PLAN.
(a) In General.--Not later than one year after the date of the
enactment of this Act, and every 2 years thereafter, the Commissioner
and the Director of U.S. Immigration and Customs Enforcement shall
jointly develop and submit to the Committee on Finance of the Senate
and the Committee on Ways and Means of the House of Representatives, a
joint strategic plan.
(b) Contents.--The joint strategic plan required under this section
shall be comprised of a comprehensive multi-year plan for trade
enforcement and trade facilitation, and shall include--
(1) a summary of actions taken during the 2-year period
preceding the submission of the plan to improve trade
enforcement and trade facilitation, including a description and
analysis of specific performance measures to evaluate the
progress of U.S. Customs and Border Protection and U.S.
Immigration and Customs Enforcement in meeting each such
responsibility;
(2) a statement of objectives and plans for further improving
trade enforcement and trade facilitation;
(3) a specific identification of the priority trade issues
described in paragraph (3)(B)(ii) of section 2(d) of the Act of
March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072(d)),
as added by section 111(a) of this Act, that can be addressed
in order to enhance trade enforcement and trade facilitation,
and a description of strategies and plans for addressing each
such issue;
(4) a description of efforts made to improve consultation and
coordination among and within Federal agencies, and in
particular between U.S. Customs and Border Protection and U.S.
Immigration and Customs Enforcement, regarding trade
enforcement and trade facilitation;
(5) a description of the training that has occurred to date
within U.S. Customs and Border Protection and U.S. Immigration
and Customs Enforcement to improve trade enforcement and trade
facilitation, including training under section 104 of this Act;
(6) a description of efforts to work with the World Customs
Organization and other international organizations, in
consultation with other Federal agencies as appropriate, with
respect to enhancing trade enforcement and trade facilitation;
(7) a description of U.S. Custom and Border Protection
organizational benchmarks for optimizing staffing and wait
times at ports of entry;
(8) a specific identification of any domestic or
international best practices that may further improve trade
enforcement and trade facilitation;
(9) any legislative recommendations to further improve trade
enforcement and trade facilitation; and
(10) a description of efforts made to improve consultation
and coordination with the private sector to enhance trade
enforcement and trade facilitation.
(c) Consultations.--
(1) In general.--In developing the joint strategic plan
required under this section, the Commissioner and the Director
shall consult with--
(A) appropriate officials from the relevant Federal
agencies, including--
(i) the Department of the Treasury;
(ii) the Department of Agriculture;
(iii) the Department of Commerce;
(iv) the Department of Justice;
(v) the Department of the Interior;
(vi) the Department of Health and Human
Services;
(vii) the Food and Drug Administration;
(viii) the Consumer Product Safety
Commission; and
(ix) the Office of the United States Trade
Representative; and
(B) the Commercial Customs Operations Advisory
Committee established by section 109 of this Act.
(2) Other consultations.--In developing the joint strategic
plan required under this section, the Commissioner and the
Director shall seek to consult with--
(A) appropriate officials from relevant foreign law
enforcement agencies and international organizations,
including the World Customs Organization; and
(B) interested parties in the private sector.
SEC. 106. AUTOMATED COMMERCIAL ENVIRONMENT.
(a) Funding.--Section 13031(f)(4)(B) of the Consolidated Omnibus
Budget Reconciliation Act of 1985 (19 U.S.C. 58c(f)(4)(B)) is amended--
(1) by striking ``2003 through 2005'' and inserting ``2016
through 2018'';
(2) by striking ``such amounts as are available in that
Account'' and inserting ``not less than $153,736,000''; and
(3) by striking ``for the development'' and inserting ``to
complete the development and implementation''.
(b) Report.--Section 311(b)(3) of the Customs Border Security Act of
2002 (19 U.S.C. 2075 note) is amended to read as follows:
``(3) Report.--
``(A) In general.--Not later than December 31, 2016,
the Commissioner responsible for U.S. Customs and
Border Protection shall submit to the Committee on
Appropriations and the Committee on Finance of the
Senate and the Committee on Appropriations and the
Committee on Ways and Means of the House of
Representatives a report detailing--
``(i) U.S. Customs and Border Protection's
incorporation of all core trade processing
capabilities, including cargo release, entry
summary, cargo manifest, cargo financial data,
and export data elements into the Automated
Commercial Environment computer system
authorized under section 13031(f)(4) of the
Consolidated Omnibus Budget and Reconciliation
Act of 1985 (19 U.S.C. 58c(f)(4)) not later
than September 30, 2016, to conform with the
admissibility criteria of agencies
participating in the International Trade Data
System identified pursuant to section
411(d)(4)(A)(iii) of the Tariff Act of 1930;
``(ii) U.S. Customs and Border Protection's
remaining priorities for processing entry
summary data elements, cargo manifest data
elements, cargo financial data elements, and
export elements in the Automated Commercial
Environment computer system, and the objectives
and plans for implementing these remaining
priorities;
``(iii) the components of the National
Customs Automation Program specified in
subsection (a)(2) of section 411 of the Tariff
Act of 1930 that have not been implemented; and
``(iv) any additional components of the
National Customs Automation Program initiated
by the Commissioner to complete the
development, establishment, and implementation
of the Automated Commercial Environment
computer system.
``(B) Update of reports.--Not later than September
30, 2017, the Commissioner shall submit to the
Committee on Appropriations and the Committee on
Finance of the Senate and the Committee on
Appropriations and the Committee on Ways and Means of
the House of Representatives an updated report
addressing each of the matters referred to in
subparagraph (A), and--
``(i) evaluating the effectiveness of the
implementation of the Automated Commercial
Environment computer system; and
``(ii) detailing the percentage of trade
processed in the Automated Commercial
Environment every month since September 30,
2016.''.
(c) Government Accountability Office Report.--Not later than December
31, 2017, the Comptroller General of the United States shall submit to
the Committee on Appropriations and the Committee on Finance of the
Senate and the Committee on Appropriations and the Committee on Ways
and Means of the House of Representatives a report--
(1) assessing the progress of other Federal agencies in
accessing and utilizing the Automated Commercial Environment;
and
(2) assessing the potential cost savings to the United States
Government and importers and exporters and the potential
benefits to enforcement of the customs and trade laws of the
United States if the elements identified in clauses (i) through
(iv) of section 311(b)(3)(A) of the Customs Border Security Act
of 2002, as amended by subsection (b) of this section, are
implemented.
SEC. 107. INTERNATIONAL TRADE DATA SYSTEM.
Section 411(d) of the Tariff Act of 1930 (19 U.S.C. 1411(d)) is
amended--
(1) by redesignating paragraphs (4) through (7) as paragraphs
(5) through (8), respectively;
(2) by inserting after paragraph (3) the following:
``(4) Information technology infrastructure.--
``(A) In general.--The Secretary shall work with the
head of each agency participating in the ITDS and the
Interagency Steering Committee to ensure that each
agency--
``(i) develops and maintains the necessary
information technology infrastructure to
support the operation of the ITDS and to submit
all data to the ITDS electronically;
``(ii) enters into a memorandum of
understanding, or takes such other action as is
necessary, to provide for the information
sharing between the agency and U.S. Customs and
Border Protection necessary for the operation
and maintenance of the ITDS;
``(iii) not later than June 30, 2016,
identifies and transmits to the Commissioner
responsible for U.S. Customs and Border
Protection the admissibility criteria and data
elements required by the agency to authorize
the release of cargo by U.S. Customs and Border
Protection for incorporation into the
operational functionality of the Automated
Commercial Environment computer system
authorized under section 13031(f)(4) of the
Consolidated Omnibus Budget and Reconciliation
Act of 1985 (19 U.S.C. 58c(f)(4)); and
``(iv) not later than December 31, 2016,
utilizes the ITDS as the primary means of
receiving from users the standard set of data
and other relevant documentation, exclusive of
applications for permits, licenses, or
certifications required for the release of
imported cargo and clearance of cargo for
export.
``(B) Rule of construction.--Nothing in this
paragraph shall be construed to require any action to
be taken that would compromise an ongoing law
enforcement investigation or national security.''; and
(3) in paragraph (8), as redesignated, by striking ``section
9503(c) of the Omnibus Budget Reconciliation Act of 1987 (19
U.S.C. 2071 note)'' and inserting ``section 109 of the Trade
Facilitation and Trade Enforcement Act of 2015''.
SEC. 108. CONSULTATIONS WITH RESPECT TO MUTUAL RECOGNITION
ARRANGEMENTS.
(a) Consultations.--The Secretary of Homeland Security, with respect
to any proposed mutual recognition arrangement or similar agreement
between the United States and a foreign government providing for mutual
recognition of supply chain security programs and customs revenue
functions, shall consult--
(1) not later than 30 days before initiating negotiations to
enter into any such arrangement or similar agreement, with the
Committee on Finance of the Senate and the Committee on Ways
and Means of the House of Representatives; and
(2) not later than 30 days before entering into any such
arrangement or similar agreement, with the Committee on Finance
of the Senate and the Committee on Ways and Means of the House
of Representatives.
(b) Negotiating Objective.--It shall be a negotiating objective of
the United States in any negotiation for a mutual recognition
arrangement with a foreign country on partnership programs, such as the
Customs-Trade Partnership Against Terrorism established under subtitle
B of title II of the Security and Accountability for Every Port Act of
2006 (6 U.S.C. 961 et seq.), to seek to ensure the compatibility of the
partnership programs of that country with the partnership programs of
U.S. Customs and Border Protection to enhance trade facilitation and
trade enforcement.
SEC. 109. COMMERCIAL CUSTOMS OPERATIONS ADVISORY COMMITTEE.
(a) Establishment.--Not later than the date that is 60 days after the
date of the enactment of this Act, the Secretary of the Treasury and
the Secretary of Homeland Security shall jointly establish a Commercial
Customs Operations Advisory Committee (in this section referred to as
the ``Advisory Committee'').
(b) Membership.--
(1) In general.--The Advisory Committee shall be comprised
of--
(A) 20 individuals appointed under paragraph (2);
(B) the Assistant Secretary for Tax Policy of the
Department of the Treasury and the Commissioner, who
shall jointly co-chair meetings of the Advisory
Committee; and
(C) the Assistant Secretary for Policy and the
Director of U.S. Immigration and Customs Enforcement of
the Department of Homeland Security, who shall serve as
deputy co-chairs of meetings of the Advisory Committee.
(2) Appointment.--
(A) In general.--The Secretary of the Treasury and
the Secretary of Homeland Security shall jointly
appoint 20 individuals from the private sector to the
Advisory Committee.
(B) Requirements.--In making appointments under
subparagraph (A), the Secretary of the Treasury and the
Secretary of Homeland Security shall appoint members--
(i) to ensure that the membership of the
Advisory Committee is representative of the
individuals and firms affected by the
commercial operations of U.S. Customs and
Border Protection; and
(ii) without regard to political affiliation.
(C) Terms.--Each individual appointed to the Advisory
Committee under this paragraph shall be appointed for a
term of not more than 3 years, and may be reappointed
to subsequent terms, but may not serve more than 2
terms sequentially.
(3) Transfer of membership.--The Secretary of the Treasury
and the Secretary of Homeland Security may transfer members
serving on the Advisory Committee on Commercial Operations of
the United States Customs Service established under section
9503(c) of the Omnibus Budget Reconciliation Act of 1987 (19
U.S.C. 2071 note) on the day before the date of the enactment
of this Act to the Advisory Committee established under
subsection (a).
(c) Duties.--The Advisory Committee established under subsection (a)
shall--
(1) advise the Secretary of the Treasury and the Secretary of
Homeland Security on all matters involving the commercial
operations of U.S. Customs and Border Protection, including
advising with respect to significant changes that are proposed
with respect to regulations, policies, or practices of U.S.
Customs and Border Protection;
(2) provide recommendations to the Secretary of the Treasury
and the Secretary of Homeland Security on improvements to the
commercial operations of U.S. Customs and Border Protection;
(3) collaborate in developing the agenda for Advisory
Committee meetings; and
(4) perform such other functions relating to the commercial
operations of U.S. Customs and Border Protection as prescribed
by law or as the Secretary of the Treasury and the Secretary of
Homeland Security jointly direct.
(d) Meetings.--
(1) In general.--The Advisory Committee shall meet at the
call of the Secretary of the Treasury and the Secretary of
Homeland Security, or at the call of not less than \2/3\ of the
membership of the Advisory Committee. The Advisory Committee
shall meet at least 4 times each calendar year.
(2) Open meetings.--Notwithstanding section 10(a) of the
Federal Advisory Committee Act (5 U.S.C. App.), the Advisory
Committee meetings shall be open to the public unless the
Secretary of the Treasury or the Secretary of Homeland Security
determines that the meeting will include matters the disclosure
of which would compromise the development of policies,
priorities, or negotiating objectives or positions that could
impact the commercial operations of U.S. Customs and Border
Protection or the operations or investigations of U.S.
Immigration and Customs Enforcement.
(e) Annual Report.--Not later than December 31, 2016, and annually
thereafter, the Advisory Committee shall submit to the Committee on
Finance of the Senate and the Committee on Ways and Means of the House
of Representatives a report that--
(1) describes the activities of the Advisory Committee during
the preceding fiscal year; and
(2) sets forth any recommendations of the Advisory Committee
regarding the commercial operations of U.S. Customs and Border
Protection.
(f) Termination.--Section 14(a)(2) of the Federal Advisory Committee
Act (5 U.S.C. App.; relating to the termination of advisory committees)
shall not apply to the Advisory Committee.
(g) Conforming Amendment.--
(1) In general.--Effective on the date on which the Advisory
Committee is established under subsection (a), section 9503(c)
of the Omnibus Budget Reconciliation Act of 1987 (19 U.S.C.
2071 note) is repealed.
(2) Reference.--Any reference in law to the Advisory
Committee on Commercial Operations of the United States Customs
Service established under section 9503(c) of the Omnibus Budget
Reconciliation Act of 1987 (19 U.S.C. 2071 note) made on or
after the date on which the Advisory Committee is established
under subsection (a), shall be deemed a reference to the
Commercial Customs Operations Advisory Committee established
under subsection (a).
SEC. 110. CENTERS OF EXCELLENCE AND EXPERTISE.
(a) In General.--The Commissioner shall, in consultation with the
Committee on Finance of the Senate, the Committee on Ways and Means of
the House of Representatives, and the Commercial Customs Operations
Advisory Committee established by section 109 of this Act, develop and
implement Centers of Excellence and Expertise throughout U.S. Customs
and Border Protection that--
(1) enhance the economic competitiveness of the United States
by consistently enforcing the laws and regulations of the
United States at all ports of entry of the United States and by
facilitating the flow of legitimate trade through increasing
industry-based knowledge;
(2) improve enforcement efforts, including enforcement of
priority trade issues described in subparagraph (B)(ii) of
section 2(d)(3) of the Act of March 3, 1927 (44 Stat. 1381,
chapter 348; 19 U.S.C. 2072(d)), as added by section 111(a) of
this Act, in specific industry sectors through the application
of targeting information from the Commercial Targeting Division
established under subparagraph (A) of such section 2(d)(3) and
from other means of verification;
(3) build upon the expertise of U.S. Customs and Border
Protection in particular industry operations, supply chains,
and compliance requirements;
(4) promote the uniform implementation at each port of entry
of the United States of policies and regulations relating to
imports;
(5) centralize the trade enforcement and trade facilitation
efforts of U.S. Customs and Border Protection;
(6) formalize an account-based approach to apply, as the
Commissioner determines appropriate, to the importation of
merchandise into the United States;
(7) foster partnerships though the expansion of trade
programs and other trusted partner programs;
(8) develop applicable performance measurements to meet
internal efficiency and effectiveness goals; and
(9) whenever feasible, facilitate a more efficient flow of
information between Federal agencies.
(b) Report.--Not later than December 31, 2016, the Commissioner shall
submit to the Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives a report describing--
(1) the scope, functions, and structure of each Center of
Excellence and Expertise developed and implemented under
subsection (a);
(2) the effectiveness of each such Center of Excellence and
Expertise in improving enforcement efforts, including
enforcement of priority trade issues, and facilitating
legitimate trade;
(3) the quantitative and qualitative benefits of each such
Center of Excellence and Expertise to the trade community,
including through fostering partnerships through the expansion
of trade programs such as the Importer Self Assessment program
and other trusted partner programs;
(4) all applicable performance measurements with respect to
each such Center of Excellence and Expertise, including
performance measures with respect to meeting internal
efficiency and effectiveness goals;
(5) the performance of each such Center of Excellence and
Expertise in increasing the accuracy and completeness of data
with respect to international trade and facilitating a more
efficient flow of information between Federal agencies; and
(6) any planned changes in the number, scope, functions or
any other aspect of the Centers of Excellence and Expertise
developed and implemented under subsection (a).
SEC. 111. COMMERCIAL TARGETING DIVISION AND NATIONAL TARGETING AND
ANALYSIS GROUPS.
(a) In General.--Section 2(d) of the Act of March 3, 1927 (44 Stat.
1381, chapter 348; 19 U.S.C. 2072(d)) is amended by adding at the end
the following:
``(3) Commercial targeting division and national targeting
and analysis groups.--
``(A) Establishment of commercial targeting
division.--
``(i) In general.--The Secretary of Homeland
Security shall establish and maintain within
the Office of International Trade a Commercial
Targeting Division.
``(ii) Composition.--The Commercial Targeting
Division shall be composed of--
``(I) headquarters personnel led by
an Executive Director, who shall report
to the Assistant Commissioner for
Trade; and
``(II) individual National Targeting
and Analysis Groups, each led by a
Director who shall report to the
Executive Director of the Commercial
Targeting Division.
``(iii) Duties.--The Commercial Targeting
Division shall be dedicated--
``(I) to the development and conduct
of commercial risk assessment targeting
with respect to cargo destined for the
United States in accordance with
subparagraph (C); and
``(II) to issuing Trade Alerts
described in subparagraph (D).
``(B) National targeting and analysis groups.--
``(i) In general.--A National Targeting and
Analysis Group referred to in subparagraph
(A)(ii)(II) shall, at a minimum, be established
for each priority trade issue described in
clause (ii).
``(ii) Priority trade issues.--
``(I) In general.--The priority trade
issues described in this clause are the
following:
``(aa) Agriculture programs.
``(bb) Antidumping and
countervailing duties.
``(cc) Import safety.
``(dd) Intellectual property
rights.
``(ee) Revenue.
``(ff) Textiles and wearing
apparel.
``(gg) Trade agreements and
preference programs.
``(II) Modification.--The
Commissioner is authorized to establish
new priority trade issues and
eliminate, consolidate, or otherwise
modify the priority trade issues
described in this paragraph if the
Commissioner--
``(aa) determines it
necessary and appropriate to do
so;
``(bb) submits to the
Committee on Finance of the
Senate and the Committee on
Ways and Means of the House of
Representatives a summary of
proposals to consolidate,
eliminate, or otherwise modify
existing priority trade issues
not later than 60 days before
such changes are to take
effect; and
``(cc) submits to the
Committee on Finance of the
Senate and the Committee on
Ways and Means of the House of
Representatives a summary of
proposals to establish new
priority trade issues not later
than 30 days after such changes
are to take effect.
``(iii) Duties.--The duties of each National
Targeting and Analysis Group shall include--
``(I) directing the trade enforcement
and compliance assessment activities of
U.S. Customs and Border Protection that
relate to the Group's priority trade
issue;
``(II) 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 Federal departments
and agencies regarding the Group's
priority trade issue; and
``(III) serving as the primary
liaison between U.S. Customs and Border
Protection and the public regarding
United States Government activities
regarding the Group's priority trade
issue, including--
``(aa) providing for receipt
and transmission to the
appropriate U.S. Customs and
Border Protection office of
allegations from interested
parties in the private sector
of violations of customs and
trade laws of the United States
of merchandise relating to the
priority trade issue;
``(bb) obtaining information
from the appropriate U.S.
Customs and Border Protection
office on the status of any
activities resulting from the
submission of any such
allegation, including any
decision not to pursue the
allegation, and providing any
such information to each
interested party in the private
sector that submitted the
allegation every 90 days after
the allegation was received by
U.S. Customs and Border
Protection unless providing
such information would
compromise an ongoing law
enforcement investigation; and
``(cc) notifying on a timely
basis each interested party in
the private sector that
submitted such allegation of
any civil or criminal actions
taken by U.S. Customs and
Border Protection or other
Federal department or agency
resulting from the allegation.
``(C) Commercial risk assessment targeting.--In
carrying out its duties with respect to commercial risk
assessment targeting, the Commercial Targeting Division
shall--
``(i) establish targeted risk assessment
methodologies and standards--
``(I) for evaluating the risk that
cargo destined for the United States
may violate the customs and trade laws
of the United States, particularly
those laws applicable to merchandise
subject to the priority trade issues
described in subparagraph (B)(ii); and
``(II) for issuing, as appropriate,
Trade Alerts described in subparagraph
(D); and
``(ii) to the extent practicable and
otherwise authorized by law, use, to administer
the methodologies and standards established
under clause (i) --
``(I) publicly available information;
``(II) information available from the
Automated Commercial System, the
Automated Commercial Environment
computer system, the Automated
Targeting System, the Automated Export
System, the International Trade Data
System, the TECS (formerly known as the
`Treasury Enforcement Communications
System'), the case management system of
U.S. Immigration and Customs
Enforcement, and any successor systems;
and
``(III) information made available to
the Commercial Targeting Division,
including information provided by
private sector entities.
``(D) Trade alerts.--
``(i) Issuance.--Based upon the application
of the targeted risk assessment methodologies
and standards established under subparagraph
(C), the Executive Director of the Commercial
Targeting Division and the Directors of the
National Targeting and Analysis Groups may
issue Trade Alerts to directors of United
States ports of entry directing further
inspection, or physical examination or testing,
of specific merchandise to ensure compliance
with all applicable customs and trade laws and
regulations administered by U.S. Customs and
Border Protection.
``(ii) Determinations not to implement trade
alerts.--The director of a United States port
of entry may determine not to conduct further
inspections, or physical examination or
testing, pursuant to a Trade Alert issued under
clause (i) if--
``(I) the director finds that such a
determination is justified by security
interests; and
``(II) notifies the Assistant
Commissioner of the Office of Field
Operations and the Assistant
Commissioner of International Trade of
U.S. Customs and Border Protection of
the determination and the reasons for
the determination not later than 48
hours after making the determination.
``(iii) Summary of determinations not to
implement.--The Assistant Commissioner of the
Office of Field Operations of U.S. Customs and
Border Protection shall--
``(I) compile an annual public
summary of all determinations by
directors of United States ports of
entry under clause (ii) and the reasons
for those determinations;
``(II) conduct an evaluation of the
utilization of Trade Alerts issued
under clause (i); and
``(III) submit the summary to the
Committee on Finance of the Senate and
the Committee on Ways and Means of the
House of Representatives not later than
December 31 of each year.
``(iv) Inspection defined.--In this
subparagraph, the term `inspection' means the
comprehensive evaluation process used by U.S.
Customs and Border Protection, other than
physical examination or testing, to permit the
entry of merchandise into the United States, or
the clearance of merchandise for transportation
in bond through the United States, for purposes
of--
``(I) assessing duties;
``(II) identifying restricted or
prohibited items; and
``(III) ensuring compliance with all
applicable customs and trade laws and
regulations administered by U.S.
Customs and Border Protection.''.
(b) Use of Trade Data for Commercial Enforcement Purposes.--Section
343(a)(3)(F) of the Trade Act of 2002 (19 U.S.C. 2071 note) is amended
to read as follows:
``(F) The information collected pursuant to the
regulations shall be used exclusively for ensuring
cargo safety and security, preventing smuggling, and
commercial risk assessment targeting, and shall not be
used for any commercial enforcement purposes, including
for determining merchandise entry. Notwithstanding the
preceding sentence, nothing in this section shall be
treated as amending, repealing, or otherwise modifying
title IV of the Tariff Act of 1930 or regulations
prescribed thereunder.''.
SEC. 112. REPORT ON OVERSIGHT OF REVENUE PROTECTION AND ENFORCEMENT
MEASURES.
(a) In General.--Not later the March 31, 2016, and not later than
March 31 of each second year thereafter, the Inspector General of the
Department of the Treasury shall submit to the Committee on Finance of
the Senate and the Committee on Ways and Means of the House of
Representatives a report assessing, with respect to the period covered
by the report, as specified in subsection (b), the following:
(1) The effectiveness of the measures taken by U.S. Customs
and Border Protection with respect to protection of revenue,
including--
(A) the collection of countervailing duties assessed
under subtitle A of title VII of the Tariff Act of 1930
(19 U.S.C. 1671 et seq.) and antidumping duties
assessed under subtitle B of title VII of the Tariff
Act of 1930 (19 U.S.C. 1673 et seq.);
(B) the assessment, collection, and mitigation of
commercial fines and penalties;
(C) the use of bonds, including continuous and single
transaction bonds, to secure that revenue; and
(D) the adequacy of the policies of U.S. Customs and
Border Protection with respect to the monitoring and
tracking of merchandise transported in bond and
collecting duties, as appropriate.
(2) The effectiveness of actions taken by U.S. Customs and
Border Protection to measure accountability and performance
with respect to protection of revenue.
(3) The number and outcome of investigations instituted by
U.S. Customs and Border Protection with respect to the
underpayment of duties.
(4) The effectiveness of training with respect to the
collection of duties provided for personnel of U.S. Customs and
Border Protection.
(b) Period Covered by Report.--Each report required by subsection (a)
shall cover the period of 2 fiscal years ending on September 30 of the
calendar year preceding the submission of the report.
SEC. 113. REPORT ON SECURITY AND REVENUE MEASURES WITH RESPECT TO
MERCHANDISE TRANSPORTED IN BOND.
(a) In General.--Not later than December 31 of 2016, 2017, and 2018,
the Secretary of Homeland Security and the Secretary of the Treasury
shall jointly submit to the Committee on Finance of the Senate and the
Committee on Ways and Means of the House of Representatives a report on
efforts undertaken by U.S. Customs and Border Protection to ensure the
secure transportation of merchandise in bond through the United States
and the collection of revenue owed upon the entry of such merchandise
into the United States for consumption.
(b) Elements.--Each report required by subsection (a) shall include,
for the fiscal year preceding the submission of the report, information
on--
(1) the overall number of entries of merchandise for
transportation in bond through the United States;
(2) the ports at which merchandise arrives in the United
States for transportation in bond and at which records of the
arrival of such merchandise are generated;
(3) the average time taken to reconcile such records with the
records at the final destination of the merchandise in the
United States to demonstrate that the merchandise reaches its
final destination or is re-exported;
(4) the average time taken to transport merchandise in bond
from the port at which the merchandise arrives in the United
States to its final destination in the United States;
(5) the total amount of duties, taxes, and fees owed with
respect to shipments of merchandise transported in bond and the
total amount of such duties, taxes, and fees paid;
(6) the total number of notifications by carriers of
merchandise being transported in bond that the destination of
the merchandise has changed; and
(7) the number of entries that remain unreconciled.
SEC. 114. IMPORTER OF RECORD PROGRAM.
(a) Establishment.--Not later than the date that is 180 days after
the date of the enactment of this Act, the Secretary of Homeland
Security shall establish an importer of record program to assign and
maintain importer of record numbers.
(b) Requirements.--The Secretary shall ensure that, as part of the
importer of record program, U.S. Customs and Border Protection--
(1) develops criteria that importers must meet in order to
obtain an importer of record number, including--
(A) criteria to ensure sufficient information is
collected to allow U.S. Customs and Border Protection
to verify the existence of the importer requesting the
importer of record number;
(B) criteria to ensure sufficient information is
collected to allow U.S. Customs and Border Protection
to identify linkages or other affiliations between
importers that are requesting or have been assigned
importer of record numbers; and
(C) criteria to ensure sufficient information is
collected to allow U.S. Customs and Border Protection
to identify changes in address and corporate structure
of importers;
(2) provides a process by which importers are assigned
importer of record numbers;
(3) maintains a centralized database of importer of record
numbers, including a history of importer of record numbers
associated with each importer, and the information described in
subparagraphs (A), (B), and (C) of paragraph (1);
(4) evaluates and maintains the accuracy of the database if
such information changes; and
(5) takes measures to ensure that duplicate importer of
record numbers are not issued.
(c) Report.--Not later than one year after the date of the enactment
of this Act, the Secretary shall submit to the Committee on Finance of
the Senate and the Committee on Ways and Means of the House of
Representatives a report on the importer of record program established
under subsection (a).
(d) Number Defined.--In this subsection, the term ``number'', with
respect to an importer of record, means a filing identification number
described in section 24.5 of title 19, Code of Federal Regulations (or
any corresponding similar regulation) that fully supports the
requirements of subsection (b) with respect to the collection and
maintenance of information.
SEC. 115. ESTABLISHMENT OF NEW IMPORTER PROGRAM.
(a) In General.--Not later than the date that is 180 days after the
date of the enactment of this Act, the Commissioner shall establish a
new importer program that directs U.S. Customs and Border Protection to
adjust bond amounts for new importers based on the level of risk
assessed by U.S. Customs and Border Protection for protection of
revenue of the Federal Government.
(b) Requirements.--The Commissioner shall ensure that, as part of the
new importer program established under subsection (a), U.S. Customs and
Border Protection--
(1) develops risk-based criteria for determining which
importers are considered to be new importers for the purposes
of this subsection;
(2) develops risk assessment guidelines for new importers to
determine if and to what extent--
(A) to adjust bond amounts of imported products of
new importers; and
(B) to increase screening of imported products of new
importers;
(3) develops procedures to ensure increased oversight of
imported products of new importers relating to the enforcement
of the priority trade issues described in paragraph (3)(B)(ii)
of section 2(d) of the Act of March 3, 1927 (44 Stat. 1381,
chapter 348; 19 U.S.C. 2072(d)), as added by section 111(a) of
this Act;
(4) develops procedures to ensure increased oversight of
imported products of new importers by Centers of Excellence and
Expertise established under section 110 of this Act; and
(5) establishes a centralized database of new importers to
ensure accuracy of information that is required to be provided
by new importers to U.S. Customs and Border Protection.
SEC. 116. CUSTOMS BROKER IDENTIFICATION OF IMPORTERS.
(a) In General.--Section 641 of the Tariff Act of 1930 (19 U.S.C.
1641) is amended by adding at the end the following:
``(i) Identification of Importers.--
``(1) In general.--The Secretary shall prescribe regulations
setting forth the minimum standards for customs brokers and
importers, including nonresident importers, regarding the
identity of the importer that shall apply in connection with
the importation of merchandise into the United States.
``(2) Minimum requirements.--The regulations shall, at a
minimum, require customs brokers to implement, and importers
(after being given adequate notice) to comply with, reasonable
procedures for--
``(A) collecting the identity of importers, including
nonresident importers, seeking to import merchandise
into the United States to the extent reasonable and
practicable; and
``(B) maintaining records of the information used to
substantiate a person's identity, including name,
address, and other identifying information.
``(3) Penalties.--Any customs broker who fails to collect
information required under the regulations prescribed under
this subsection shall be liable to the United States, at the
discretion of the Secretary, for a monetary penalty not to
exceed $10,000 for each violation of those regulations and
subject to revocation or suspension of a license or permit of
the customs broker pursuant to the procedures set forth in
subsection (d).
``(4) Definitions.--In this subsection--
``(A) the term `importer' means one of the parties
qualifying as an importer of record under section
484(a)(2)(B); and
``(B) the term `nonresident importer' means an
importer who is--
``(i) an individual who is not a citizen of
the United States or an alien lawfully admitted
for permanent residence in the United States;
or
``(ii) a partnership, corporation, or other
commercial entity that is not organized under
the laws of a jurisdiction within the customs
territory of the United States (as such term is
defined in General Note 2 of the Harmonized
Tariff Schedule of the United States) or in the
Virgin Islands of the United States.''.
(b) Study and Report Required.--Not later than 180 days after the
date of enactment of this Act, the Commissioner shall submit to
Congress a report containing recommendations for--
(1) determining the most timely and effective way to require
foreign nationals to provide customs brokers with appropriate
and accurate information, comparable to that which is required
of United States nationals, concerning the identity, address,
and other related information relating to such foreign
nationals necessary to enable customs brokers to comply with
the requirements of section 641(i) of the Tariff Act of 1930
(as added by subsection (a)); and
(2) establishing a system for customs brokers to review
information maintained by relevant Federal agencies for
purposes of verifying the identities of importers, including
nonresident importers, seeking to import merchandise into the
United States.
SEC. 117. REQUIREMENTS APPLICABLE TO NON-RESIDENT IMPORTERS.
(a) In General.--Part III of title IV of the Tariff Act of 1930 (19
U.S.C. 1481 et seq.) is amended by inserting after section 484b the
following new section:
``SEC. 484C. REQUIREMENTS APPLICABLE TO NON-RESIDENT IMPORTERS.
``(a) In General.--Except as provided in subsection (c), if an
importer of record under section 484 of this Act is not a resident of
the United States, the Commissioner of U.S. Customs and Border
Protection shall require the non-resident importer to designate a
resident agent in the United States subject to the requirements
described in subsection (b).
``(b) Requirements.--The requirements described in this subsection
are the following:
``(1) The resident agent shall be authorized to accept
service of process against the non-resident importer in
connection with the importation of merchandise.
``(2) The Commissioner of U.S. Customs and Border Protection
shall require the non-resident importer to establish a power of
attorney with the resident agent in connection with the
importation of merchandise.
``(c) Non-applicability.--The requirements of this section shall not
apply with respect to a non-resident importer who is a validated Tier 2
or Tier 3 participant in the Customs-Trade Partnership Against
Terrorism program established under subtitle B of title II of the SAFE
Port Act (6 U.S.C. 961 et seq.).
``(d) Penalties.--
``(1) In general.--It shall be unlawful for any person to
import into the United States any merchandise in violation of
this section.
``(2) Civil penalties.--Any person who violates paragraph (1)
shall be liable for a civil penalty of $50,000 for each such
violation.
``(3) Other penalties.--In addition to the penalties
specified in paragraph (2), any violation of this section that
violates any other customs and trade laws of the United States
shall be subject to any applicable civil and criminal penalty,
including seizure and forfeiture, that may be imposed under
such customs or trade law or title 18, United States Code, with
respect to the importation of merchandise.
``(4) Definition.--In this subsection, the term `customs and
trade laws of the United States' has the meaning given such
term in section 2 of the Customs Trade Facilitation and
Enforcement Act of 2015.''.
(b) Effective Date.--Section 484c of the Tariff Act of 1930, as added
by subsection (a), takes effect on the date of the enactment of this
Act and applies with respect to the importation of merchandise of an
importer of record under section 484 of the Tariff Act of 1930 who is
not resident of the United States on or after the date that is 180 days
after such date of enactment.
TITLE II--IMPORT HEALTH AND SAFETY
SEC. 201. INTERAGENCY IMPORT SAFETY WORKING GROUP.
(a) Establishment.--There is established an interagency Import Safety
Working Group.
(b) Membership.--The interagency Import Safety Working Group shall
consist of the following officials or their designees:
(1) The Secretary of Homeland Security, who shall serve as
the Chair.
(2) The Secretary of Health and Human Services, who shall
serve as the Vice Chair.
(3) The Secretary of the Treasury.
(4) The Secretary of Commerce.
(5) The Secretary of Agriculture.
(6) The United States Trade Representative.
(7) The Director of the Office of Management and Budget.
(8) The Commissioner of Food and Drugs.
(9) The Commissioner responsible for U.S. Customs and Border
Protection.
(10) The Chairman of the Consumer Product Safety Commission.
(11) The Director of U.S. Immigration and Customs
Enforcement.
(12) The head of any other Federal agency designated by the
President to participate in the interagency Import Safety
Working Group, as appropriate.
(c) Duties.--The duties of the interagency Import Safety Working
Group shall include--
(1) consulting on the development of the joint import safety
rapid response plan required by section 202 of this Act;
(2) periodically evaluating the adequacy of the plans,
practices, and resources of the Federal Government dedicated to
ensuring the safety of merchandise imported in the United
States and the expeditious entry of such merchandise,
including--
(A) minimizing the duplication of efforts among
agencies the heads of which are members of the
interagency Import Safety Working Group and ensuring
the compatibility of the policies and regulations of
those agencies; and
(B) recommending additional administrative actions,
as appropriate, designed to ensure the safety of
merchandise imported into the United States and the
expeditious entry of such merchandise and considering
the impact of those actions on private sector entities;
(3) reviewing the engagement and cooperation of foreign
governments and foreign manufacturers in facilitating the
inspection and certification, as appropriate, of such
merchandise to be imported into the United States and the
facilities producing such merchandise to ensure the safety of
the merchandise and the expeditious entry of the merchandise
into the United States;
(4) identifying best practices, in consultation with private
sector entities as appropriate, to assist United States
importers in taking all appropriate steps to ensure the safety
of merchandise imported into the United States, including with
respect to--
(A) the inspection of manufacturing facilities in
foreign countries;
(B) the inspection of merchandise destined for the
United States before exportation from a foreign country
or before distribution in the United States; and
(C) the protection of the international supply chain
(as defined in section 2 of the Security and
Accountability For Every Port Act of 2006 (6 U.S.C.
901));
(5) identifying best practices to assist Federal, State, and
local governments and agencies, and port authorities, to
improve communication and coordination among such agencies and
authorities with respect to ensuring the safety of merchandise
imported into the United States and the expeditious entry of
such merchandise; and
(6) otherwise identifying appropriate steps to increase the
accountability of United States importers and the engagement of
foreign government agencies with respect to ensuring the safety
of merchandise imported into the United States and the
expeditious entry of such merchandise.
SEC. 202. JOINT IMPORT SAFETY RAPID RESPONSE PLAN.
(a) In General.--Not later than December 31, 2016, the Secretary of
Homeland Security, in consultation with the interagency Import Safety
Working Group, shall develop a plan (to be known as the ``joint import
safety rapid response plan'') that sets forth protocols and defines
practices for U.S. Customs and Border Protection to use--
(1) in taking action in response to, and coordinating Federal
responses to, an incident in which cargo destined for or
merchandise entering the United States has been identified as
posing a threat to the health or safety of consumers in the
United States; and
(2) in recovering from or mitigating the effects of actions
and responses to an incident described in paragraph (1).
(b) Contents.--The joint import safety rapid response plan shall
address--
(1) the statutory and regulatory authorities and
responsibilities of U.S. Customs and Border Protection and
other Federal agencies in responding to an incident described
in subsection (a)(1);
(2) the protocols and practices to be used by U.S. Customs
and Border Protection when taking action in response to, and
coordinating Federal responses to, such an incident;
(3) the measures to be taken by U.S. Customs and Border
Protection and other Federal agencies in recovering from or
mitigating the effects of actions taken in response to such an
incident after the incident to ensure the resumption of the
entry of merchandise into the United States; and
(4) exercises that U.S. Customs and Border Protection may
conduct in conjunction with Federal, State, and local agencies,
and private sector entities, to simulate responses to such an
incident.
(c) Updates of Plan.--The Secretary of Homeland Security shall review
and update the joint import safety rapid response plan, as appropriate,
after conducting exercises under subsection (d).
(d) Import Health and Safety Exercises.--
(1) In general.--The Secretary of Homeland Security and the
Commissioner shall periodically engage in the exercises
referred to in subsection (b)(4), in conjunction with Federal,
State, and local agencies and private sector entities, as
appropriate, to test and evaluate the protocols and practices
identified in the joint import safety rapid response plan at
United States ports of entry.
(2) Requirements for exercises.--In conducting exercises
under paragraph (1), the Secretary and the Commissioner shall--
(A) make allowance for the resources, needs, and
constraints of United States ports of entry of
different sizes in representative geographic locations
across the United States;
(B) base evaluations on current risk assessments of
merchandise entering the United States at
representative United States ports of entry located
across the United States;
(C) ensure that such exercises are conducted in a
manner consistent with the National Incident Management
System, the National Response Plan, the National
Infrastructure Protection Plan, the National
Preparedness Guidelines, the Maritime Transportation
System Security Plan, and other such national
initiatives of the Department of Homeland Security, as
appropriate; and
(D) develop metrics with respect to the resumption of
the entry of merchandise into the United States after
an incident described in subsection (a)(1).
(3) Requirements for testing and evaluation.--The Secretary
and the Commissioner shall ensure that the testing and
evaluation carried out in conducting exercises under paragraph
(1)--
(A) are performed using clear and objective
performance measures; and
(B) result in the identification of specific
recommendations or best practices for responding to an
incident described in subsection (a)(1).
(4) Dissemination of recommendations and best practices.--The
Secretary and the Commissioner shall--
(A) share the recommendations or best practices
identified under paragraph (3)(B) among the members of
the interagency Import Safety Working Group and with,
as appropriate--
(i) State, local, and tribal governments;
(ii) foreign governments; and
(iii) private sector entities; and
(B) use such recommendations and best practices to
update the joint import safety rapid response plan.
SEC. 203. TRAINING.
The Commissioner shall ensure that personnel of U.S. Customs and
Border Protection assigned to United States ports of entry are trained
to effectively administer the provisions of this title and to otherwise
assist in ensuring the safety of merchandise imported into the United
States and the expeditious entry of such merchandise.
TITLE III--IMPORT-RELATED PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
SEC. 301. DEFINITION OF INTELLECTUAL PROPERTY RIGHTS.
In this title, the term ``intellectual property rights'' refers to
copyrights, trademarks, and other forms of intellectual property rights
that are enforced by U.S. Customs and Border Protection or U.S.
Immigration and Customs Enforcement.
SEC. 302. EXCHANGE OF INFORMATION RELATED TO TRADE ENFORCEMENT.
(a) In General.--The Tariff Act of 1930 is amended by inserting after
section 628 (19 U.S.C. 1628) the following new section:
``SEC. 628A. EXCHANGE OF INFORMATION RELATED TO TRADE ENFORCEMENT.
``(a) In General.--Subject to subsections (c) and (d), if the
Commissioner responsible for U.S. Customs and Border Protection
suspects that merchandise is being imported into the United States in
violation of section 526 of this Act or section 602, 1201(a)(2), or
1201(b)(1) of title 17, United States Code, and determines that the
examination or testing of the merchandise by a person described in
subsection (b) would assist the Commissioner in determining if the
merchandise is being imported in violation of that section, the
Commissioner, to permit the person to conduct the examination and
testing--
``(1) shall provide to the person information that appears on
the merchandise and its packaging and labels, including
unredacted images of the merchandise and its packaging and
labels; and
``(2) may, subject to any applicable bonding requirements,
provide to the person unredacted samples of the merchandise.
``(b) Person Described.--A person described in this subsection is--
``(1) in the case of merchandise suspected of being imported
in violation of section 526, the owner of the trademark
suspected of being copied or simulated by the merchandise;
``(2) in the case of merchandise suspected of being imported
in violation of section 602 of title 17, United States Code,
the owner of the copyright suspected of being infringed by the
merchandise;
``(3) in the case of merchandise suspected of being primarily
designed or produced for the purpose of circumventing a
technological measure that effectively controls access to a
work protected under that title, and being imported in
violation of section 1201(a)(2) of that title, the owner of a
copyright in the work; and
``(4) in the case of merchandise suspected of being primarily
designed or produced for the purpose of circumventing
protection afforded by a technological measure that effectively
protects a right of an owner of a copyright in a work or a
portion of a work, and being imported in violation of section
1201(b)(1) of that title, the owner of the copyright.
``(c) Limitation.--Subsection (a) applies only with respect to
merchandise suspected of infringing a trademark or copyright that is
recorded with U.S. Customs and Border Protection.
``(d) Exception.--The Commissioner may not provide under subsection
(a) information, photographs, or samples to a person described in
subsection (b) if providing such information, photographs, or samples
would compromise an ongoing law enforcement investigation or national
security.''.
(b) Termination of Previous Authority.--Notwithstanding paragraph (2)
of section 818(g) of the National Defense Authorization Act for Fiscal
Year 2012 (Public Law 112-81; 125 Stat. 1496; 10 U.S.C. 2302 note),
paragraph (1) of that section shall have no force or effect on or after
the date of the enactment of this Act.
SEC. 303. SEIZURE OF CIRCUMVENTION DEVICES.
(a) In General.--Section 596(c)(2) of the Tariff Act of 1930 (19
U.S.C. 1595a(c)(2)) is amended--
(1) in subparagraph (E), by striking ``or'';
(2) in subparagraph (F), by striking the period and inserting
``; or''; and
(3) by adding at the end the following:
``(G) U.S. Customs and Border Protection determines
it is a technology, product, service, device,
component, or part thereof the importation of which is
prohibited under subsection (a)(2) or (b)(1) of section
1201 of title 17, United States Code.''.
(b) Notification of Persons Injured.--
(1) In general.--Not later than the date that is 30 business
days after seizing merchandise pursuant to subparagraph (G) of
section 596(c)(2) of the Tariff Act of 1930, as added by
subsection (a), the Commissioner shall provide to any person
identified under paragraph (2) information regarding the
merchandise seized that is equivalent to information provided
to copyright owners under regulations of U.S. Customs and
Border Protection for merchandise seized for violation of the
copyright laws.
(2) Persons to be provided information.--Any person injured
by the violation of (a)(2) or (b)(1) of section 1201 of title
17, United States Code, that resulted in the seizure of the
merchandise shall be provided information under paragraph (1),
if that person is included on a list maintained by the
Commissioner that is revised annually through publication in
the Federal Register.
(3) Regulations.--Not later than one year after the date of
the enactment of this Act, the Secretary of the Treasury shall
prescribe regulations establishing procedures that implement
this subsection.
SEC. 304. ENFORCEMENT BY U.S. CUSTOMS AND BORDER PROTECTION OF WORKS
FOR WHICH COPYRIGHT REGISTRATION IS PENDING.
Not later than the date that is 180 days after the date of the
enactment of this Act, the Secretary of Homeland Security shall
authorize a process pursuant to which the Commissioner shall enforce a
copyright for which the owner has submitted an application for
registration under title 17, United States Code, with the United States
Copyright Office, to the same extent and in the same manner as if the
copyright were registered with the Copyright Office, including by
sharing information, images, and samples of merchandise suspected of
infringing the copyright under section 628A of the Tariff Act of 1930,
as added by section 302.
SEC. 305. NATIONAL INTELLECTUAL PROPERTY RIGHTS COORDINATION CENTER.
(a) Establishment.--The Secretary of Homeland Security shall--
(1) establish within U.S. Immigration and Customs Enforcement
a National Intellectual Property Rights Coordination Center;
and
(2) appoint an Assistant Director to head the National
Intellectual Property Rights Coordination Center.
(b) Duties.--The Assistant Director of the National Intellectual
Property Rights Coordination Center shall--
(1) coordinate the investigation of sources of merchandise
that infringe intellectual property rights to identify
organizations and individuals that produce, smuggle, or
distribute such merchandise;
(2) conduct and coordinate training with other domestic and
international law enforcement agencies on investigative best
practices--
(A) to develop and expand the capability of such
agencies to enforce intellectual property rights; and
(B) to develop metrics to assess whether the training
improved enforcement of intellectual property rights;
(3) coordinate, with U.S. Customs and Border Protection,
activities conducted by the United States to prevent the
importation or exportation of merchandise that infringes
intellectual property rights;
(4) support the international interdiction of merchandise
destined for the United States that infringes intellectual
property rights;
(5) collect and integrate information regarding infringement
of intellectual property rights from domestic and international
law enforcement agencies and other non-Federal sources;
(6) develop a means to receive and organize information
regarding infringement of intellectual property rights from
such agencies and other sources;
(7) disseminate information regarding infringement of
intellectual property rights to other Federal agencies, as
appropriate;
(8) develop and implement risk-based alert systems, in
coordination with U.S. Customs and Border Protection, to
improve the targeting of persons that repeatedly infringe
intellectual property rights;
(9) coordinate with the offices of United States attorneys in
order to develop expertise in, and assist with the
investigation and prosecution of, crimes relating to the
infringement of intellectual property rights; and
(10) carry out such other duties as the Secretary of Homeland
Security may assign.
(c) Coordination With Other Agencies.--In carrying out the duties
described in subsection (b), the Assistant Director of the National
Intellectual Property Rights Coordination Center shall coordinate
with--
(1) U.S. Customs and Border Protection;
(2) the Food and Drug Administration;
(3) the Department of Justice;
(4) the Department of Commerce, including the United States
Patent and Trademark Office;
(5) the United States Postal Inspection Service;
(6) the Office of the United States Trade Representative;
(7) any Federal, State, local, or international law
enforcement agencies that the Director of U.S. Immigration and
Customs Enforcement considers appropriate; and
(8) any other entities that the Director considers
appropriate.
(d) Private Sector Outreach.--
(1) In general.--The Assistant Director of the National
Intellectual Property Rights Coordination Center shall work
with U.S. Customs and Border Protection and other Federal
agencies to conduct outreach to private sector entities in
order to determine trends in and methods of infringing
intellectual property rights.
(2) Information sharing.--The Assistant Director shall share
information and best practices with respect to the enforcement
of intellectual property rights with private sector entities,
as appropriate, in order to coordinate public and private
sector efforts to combat the infringement of intellectual
property rights.
SEC. 306. JOINT STRATEGIC PLAN FOR THE ENFORCEMENT OF INTELLECTUAL
PROPERTY RIGHTS.
The Commissioner and the Director of U.S. Immigration and Customs
Enforcement shall include in the joint strategic plan required by
section 105 of this Act--
(1) a description of the efforts of the Department of
Homeland Security to enforce intellectual property rights;
(2) a list of the 10 United States ports of entry at which
U.S. Customs and Border Protection has seized the most
merchandise, both by volume and by value, that infringes
intellectual property rights during the most recent 2-year
period for which data are available; and
(3) a recommendation for the optimal allocation of personnel,
resources, and technology to ensure that U.S. Customs and
Border Protection and U.S. Immigration and Customs Enforcement
are adequately enforcing intellectual property rights.
SEC. 307. PERSONNEL DEDICATED TO THE ENFORCEMENT OF INTELLECTUAL
PROPERTY RIGHTS.
(a) Personnel of U.S. Customs and Border Protection.--The
Commissioner and the Director of U.S. Immigration and Customs
Enforcement shall ensure that sufficient personnel are assigned
throughout U.S. Customs and Border Protection and U.S. Immigration and
Customs Enforcement, respectively, who have responsibility for
preventing the importation into the United States of merchandise that
infringes intellectual property rights.
(b) Staffing of National Intellectual Property Rights Coordination
Center.--The Commissioner shall--
(1) assign not fewer than 3 full-time employees of U.S.
Customs and Border Protection to the National Intellectual
Property Rights Coordination Center established under section
305 of this Act; and
(2) ensure that sufficient personnel are assigned to United
States ports of entry to carry out the directives of the
Center.
SEC. 308. TRAINING WITH RESPECT TO THE ENFORCEMENT OF INTELLECTUAL
PROPERTY RIGHTS.
(a) Training.--The Commissioner shall ensure that officers of U.S.
Customs and Border Protection are trained to effectively detect and
identify merchandise destined for the United States that infringes
intellectual property rights, including through the use of technologies
identified under subsection (c).
(b) Consultation With Private Sector.--The Commissioner shall consult
with private sector entities to better identify opportunities for
collaboration between U.S. Customs and Border Protection and such
entities with respect to training for officers of U.S. Customs and
Border Protection in enforcing intellectual property rights.
(c) Identification of New Technologies.--In consultation with private
sector entities, the Commissioner shall identify--
(1) technologies with the cost-effective capability to detect
and identify merchandise at United States ports of entry that
infringes intellectual property rights; and
(2) cost-effective programs for training officers of U.S.
Customs and Border Protection to use such technologies.
(d) Donations of Technology.--Not later than the date that is 180
days after the date of the enactment of this Act, the Commissioner
shall prescribe regulations to enable U.S. Customs and Border
Protection to receive donations of hardware, software, equipment, and
similar technologies, and to accept training and other support
services, from private sector entities, for the purpose of enforcing
intellectual property rights.
SEC. 309. INTERNATIONAL COOPERATION AND INFORMATION SHARING.
(a) Cooperation.--The Secretary of Homeland Security shall coordinate
with the competent law enforcement and customs authorities of foreign
countries, including by sharing information relevant to enforcement
actions, to enhance the efforts of the United States and such
authorities to enforce intellectual property rights.
(b) Technical Assistance.--The Secretary of Homeland Security shall
provide technical assistance to competent law enforcement and customs
authorities of foreign countries to enhance the ability of such
authorities to enforce intellectual property rights.
(c) Interagency Collaboration.--The Commissioner and the Director of
U.S. Immigration and Customs Enforcement shall lead interagency efforts
to collaborate with law enforcement and customs authorities of foreign
countries to enforce intellectual property rights.
SEC. 310. REPORT ON INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT.
Not later than June 30, 2016, and annually thereafter, the
Commissioner and the Director of U.S. Immigration and Customs
Enforcement shall jointly submit to the Committee on Finance of the
Senate and the Committee on Ways and Means of the House of
Representatives a report that contains the following:
(1) With respect to the enforcement of intellectual property
rights, the following:
(A) The number of referrals from U.S. Customs and
Border Protection to U.S. Immigration and Customs
Enforcement relating to infringement of intellectual
property rights during the preceding year.
(B) The number of investigations relating to the
infringement of intellectual property rights referred
by U.S. Immigration and Customs Enforcement to a United
States attorney for prosecution and the United States
attorneys to which those investigations were referred.
(C) The number of such investigations accepted by
each such United States attorney and the status or
outcome of each such investigation.
(D) The number of such investigations that resulted
in the imposition of civil or criminal penalties.
(E) A description of the efforts of U.S. Custom and
Border Protection and U.S. Immigration and Customs
Enforcement to improve the success rates of
investigations and prosecutions relating to the
infringement of intellectual property rights.
(2) An estimate of the average time required by the Office of
International Trade of U.S. Customs and Border Protection to
respond to a request from port personnel for advice with
respect to whether merchandise detained by U.S. Customs and
Border Protection infringed intellectual property rights,
distinguished by types of intellectual property rights
infringed.
(3) A summary of the outreach efforts of U.S. Customs and
Border Protection and U.S. Immigration and Customs Enforcement
with respect to--
(A) the interdiction and investigation of, and the
sharing of information between those agencies and other
Federal agencies to prevent the infringement of
intellectual property rights;
(B) collaboration with private sector entities--
(i) to identify trends in the infringement
of, and technologies that infringe,
intellectual property rights;
(ii) to identify opportunities for enhanced
training of officers of U.S. Customs and Border
Protection and U.S. Immigration and Customs
Enforcement; and
(iii) to develop best practices to enforce
intellectual property rights; and
(C) coordination with foreign governments and
international organizations with respect to the
enforcement of intellectual property rights.
(4) A summary of the efforts of U.S. Customs and Border
Protection and U.S. Immigration and Customs Enforcement to
address the challenges with respect to the enforcement of
intellectual property rights presented by Internet commerce and
the transit of small packages and an identification of the
volume, value, and type of merchandise seized for infringing
intellectual property rights as a result of such efforts.
(5) A summary of training relating to the enforcement of
intellectual property rights conducted under section 308 of
this Act and expenditures for such training.
SEC. 311. INFORMATION FOR TRAVELERS REGARDING VIOLATIONS OF
INTELLECTUAL PROPERTY RIGHTS.
(a) In General.--The Secretary of Homeland Security shall develop and
carry out an educational campaign to inform travelers entering or
leaving the United States about the legal, economic, and public health
and safety implications of acquiring merchandise that infringes
intellectual property rights outside the United States and importing
such merchandise into the United States in violation of United States
law.
(b) Declaration Forms.--The Commissioner shall ensure that all
versions of Declaration Form 6059B of U.S. Customs and Border
Protection, or a successor form, including any electronic equivalent of
Declaration Form 6059B or a successor form, printed or displayed on or
after the date that is 30 days after the date of the enactment of this
Act include a written warning to inform travelers arriving in the
United States that importation of merchandise into the United States
that infringes intellectual property rights may subject travelers to
civil or criminal penalties and may pose serious risks to safety or
health.
TITLE IV--PREVENTION OF EVASION OF ANTIDUMPING AND COUNTERVAILING DUTY
ORDERS
SEC. 401. SHORT TITLE.
This title may be cited as the ``Preventing Recurring Trade Evasion
and Circumvention Act'' or ``PROTECT Act''.
SEC. 402. DEFINITIONS.
In this title:
(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) 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.
(3) 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 411(b)(4)(E) is not
reviewable by any other agency or by any court.
(4) 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.
(5) 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.
(6) Secretary.--The term ``Secretary'' means the Secretary of
the Treasury.
(7) Trade remedy laws.--The term ``trade remedy laws'' means
title VII of the Tariff Act of 1930.
SEC. 403. 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 title and the amendments made
by this title shall apply with respect to goods from Canada and Mexico.
Subtitle A--Actions Relating to Enforcement of Trade Remedy Laws
SEC. 411. 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;
(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 administrative
inquiries 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
administrative inquiry 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
administrative, 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
administrative inquiry or any other action to address
the allegation;
(F) in cooperation with the public, the Commercial
Customs Operations Advisory Committee, 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 Commercial
Customs Operations Advisory Committee, 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 Export System,
the International Trade Data System, and the TECS, and any
similar and 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, physical
examination, or testing of merchandise to ensure compliance with the
trade remedy laws and to require additional bonds, cash deposits, or
other security to ensure collection of any duties, taxes and fees owed.
SEC. 412. 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. 413. ACCESS TO INFORMATION.
(a) In General.--Section 777(b)(1)(A)(ii) of the Tariff 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 United States International Trade Commission any
information that is necessary to enable the Secretary of Commerce or
the United States 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. 414. 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 country, the
exporting country 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 country are subject to the importing
country's trade remedy laws.
(B) On the written request of the importing country,
the exporting country shall conduct a verification for
purposes of enabling the importing country to make a
determination described in subparagraph (A).
(C) The exporting country may allow the importing
country to participate in a verification described in
subparagraph (B), including through a site visit.
(D) If the exporting country does not allow
participation of the importing country in a
verification described in subparagraph (B), the
importing country may take this fact into consideration
in its trade enforcement and compliance assessment
activities regarding the compliance of the exporting
country's exports with the importing country's 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. 415. TRADE NEGOTIATING OBJECTIVES.
The principal negotiating objectives of the United States shall
include obtaining the objectives of the bilateral agreements described
under section 414(a) for any trade agreements under negotiation as of
the date of the enactment of this Act or future trade agreement
negotiations.
Subtitle B--Investigation of Evasion of Trade Remedy Laws
SEC. 421. PROCEDURES FOR INVESTIGATION OF EVASION OF ANTIDUMPING AND
COUNTERVAILING DUTY ORDERS.
(a) In General.--Title VII of the Tariff Act of 1930 (19 U.S.C. 1671
et seq.) is amended by inserting after section 781 the following:
``SEC. 781A. PROCEDURES FOR PREVENTION 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.
``(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; or
``(B) an antidumping duty order issued under section
736.
``(4) Evasion.--
``(A) In general.--Except as provided in subparagraph
(B), the term `evasion' refers 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.
``(B) Exception for clerical error.--
``(i) In general.--Except as provided in
clause (ii), the term `evasion' does not
include entering covered merchandise into the
customs territory of the United States by means
of--
``(I) a document or electronically
transmitted data or information,
written or oral statement, or act that
is false as a result of a clerical
error; or
``(II) an omission that results from
a clerical error.
``(ii) Patterns of negligent conduct.--If the
Commissioner determines that a person has
entered covered merchandise into the customs
territory of the United States by means of a
clerical error referred to in subclause (I) or
(II) of clause (i) and that the clerical error
is part of a pattern of negligent conduct on
the part of that person, the Commissioner may
determine, notwithstanding clause (i), that the
person has entered such covered merchandise
into the customs territory of the United States
through evasion.
``(iii) Electronic repetition of errors.--For
purposes of clause (ii), the mere
nonintentional repetition by an electronic
system of an initial clerical error does not
constitute a pattern of negligent conduct.
``(iv) Rule of construction.--A determination
by the Commissioner that a person has entered
covered merchandise into the customs territory
of the United States by means of a clerical
error referred to in subclause (I) or (II) of
clause (i) rather than through evasion shall
not be construed to excuse that person from the
payment of any duties applicable to the
merchandise.
``(b) Prevention by Administering Authority.--
``(1) Procedures for initiating investigations.--
``(A) Initiation by administering authority.--An
investigation under this subsection shall be initiated
with respect to merchandise imported into the United
States whenever the administering authority determines,
from information available to the administering
authority, that an investigation is warranted with
respect to whether the merchandise is covered
merchandise.
``(B) Initiation by petition or referral.--
``(i) In general.--The administering
authority shall determine whether to initiate
an investigation under this subparagraph not
later than 30 days after the date on which the
administering authority receives a petition
described in clause (ii) or a referral
described in clause (iii).
``(ii) Petition described.--A petition
described in this clause is a petition that--
``(I) is filed with the administering
authority by an interested party
specified in subparagraph (A), (C),
(D), (E), (F), or (G) of section
771(9);
``(II) alleges that merchandise
imported into the United States is
covered merchandise; and
``(III) is accompanied by information
reasonably available to the petitioner
supporting those allegations.
``(iii) Referral described.--A referral
described in this clause is a referral made by
the Commissioner pursuant to subsection (c)(1).
``(2) Time limits for determinations.--
``(A) Preliminary determination.--
``(i) In general.--Not later than 90 days
after the administering authority initiates an
investigation under paragraph (1) with respect
to merchandise, the administering authority
shall issue a preliminary determination, based
on information available to the administering
authority at the time of the determination,
with respect to whether there is a reasonable
basis to believe or suspect that the
merchandise is covered merchandise.
``(ii) Expedited procedures.--If the
administering authority determines that
expedited action is warranted with respect to
an investigation initiated under paragraph (1),
the administering authority may publish the
notice of initiation of the investigation and
the notice of the preliminary determination in
the Federal Register at the same time.
``(B) Final determination by the administering
authority.--The administering authority shall issue a
final determination with respect to whether merchandise
is covered merchandise not later than 300 days after
the date on which the administering authority initiates
an investigation under paragraph (1) with respect to
the merchandise.
``(3) Access to information.--
``(A) Entry documents, records, and other
information.--Upon receiving a request from the
administering authority, and not later than 10 days
after receiving the administering authority's request,
the Commissioner shall transmit to the administering
authority copies of the documentation and information
required by section 484(a)(1) with respect to the entry
of the merchandise, as well as any other documentation
or information requested by the administering
authority.
``(B) Access of interested parties.--Not later than
10 business days after the date on which the
administering authority initiates an investigation
under paragraph (1) with respect to merchandise, the
administering authority shall provide to the authorized
representative of each interested party that filed a
petition under paragraph (1) or otherwise participates
in a proceeding, pursuant to a protective order, the
copies of the entry documentation and any other
information received by the administering authority
under subparagraph (A).
``(C) Business proprietary information from prior
segments.--Where an authorized representative to an
interested party participating in an investigation
under paragraph (1) has access to business proprietary
information released pursuant to administrative
protective order in a proceeding under 19 U.S.C.
Sec. Sec. 1671 et seq., 1673 et seq., or 1675 et seq.
that is relevant to the investigation conducted under
paragraph (1), that authorized representative may
submit such information to the administering authority
for its consideration in the context of the
investigation conducted under paragraph (1).
``(4) Authority to collect and verify additional
information.--In making a determination under paragraph (2)
with respect to covered merchandise, the administering
authority may collect such additional information as is
necessary to make the determination through such methods as the
administering authority considers appropriate, including by--
``(A) issuing a questionnaire with respect to such
covered merchandise to--
``(i) a person that filed an allegation under
paragraph (1)(B)(ii) that resulted in the
initiation of an investigation under paragraph
(1)(A) with respect to such covered
merchandise;
``(ii) a person alleged to have entered such
covered merchandise into the customs territory
of the United States through evasion;
``(iii) a person that is a foreign producer
or exporter of such covered merchandise; or
``(iv) the government of a country from which
such covered merchandise was exported;
``(B) conducting verifications, including on-site
verifications, of any relevant information; and
``(C) requesting--
``(i) that the Commissioner provide any
information and data available to U.S. Customs
and Border Protection, and
``(ii) that the Commissioner gather
additional necessary information from the
importer of covered merchandise and other
relevant parties.
``(5) Adverse inference.--If the administering authority
finds that a person described in clause (i), (ii), or (iii) of
paragraph (4)(A) has failed to cooperate by not acting to the
best of the person's ability to comply with a request for
information, the administering authority may, in making a
determination under paragraph (2), use an inference that is
adverse to the interests of that person in selecting from among
the facts otherwise available to make the determination.
``(6) Effect of affirmative preliminary determination.--If
the administering authority makes a preliminary determination
under paragraph (2)(A) that merchandise is covered merchandise,
the administering authority shall instruct U.S. Customs and
Border Protection--
``(A) to suspend liquidation of each entry of the
merchandise that--
``(i) enters on or after the date of the
preliminary determination; or
``(ii) enters before that date, if the
liquidation of the entry is not final on that
date; and
``(B) to require the posting of a cash deposit for
each entry of the merchandise in an amount determined
pursuant to the order or finding described in
subsection (a)(2)(A)(i), or administrative review
conducted under section 751, that applies to the
merchandise.
``(7) Effect of affirmative final determination.--
``(A) In general.--If the administering authority
makes a final determination under paragraph (2)(B) that
merchandise is covered merchandise, the administering
authority shall instruct U.S. Customs and Border
Protection--
``(i) to assess duties on the merchandise in
an amount determined pursuant to the order or
finding described in subsection (a)(2)(A)(i),
or administrative review conducted under
section 751, that applies to the merchandise;
``(ii) notwithstanding section 501, to
reliquidate, in accordance with such order,
finding, or administrative review, each entry
of the merchandise that was liquidated and is
determined to include covered merchandise; and
``(iii) to review and reassess the amount of
bond or other security the importer is required
to post for such merchandise entered on or
after the date of the final determination to
ensure the protection of revenue and compliance
with the law.
``(B) Additional authority.--If the administering
authority makes a final determination under paragraph
(2)(B) that merchandise is covered merchandise, the
administering authority may instruct U.S. Customs and
Border Protection to require the importer of the
merchandise to post a cash deposit or bond on such
merchandise entered on or after the date of the final
determination in an amount the administering authority
determines in the final determination to be owed with
respect to the merchandise.
``(8) Effect of negative final determination.--If the
administering authority makes a final determination under
paragraph (2)(B) that merchandise is not covered merchandise,
the administering authority shall terminate the suspension of
liquidation and refund any cash deposit imposed pursuant to
paragraph (6) with respect to the merchandise.
``(9) Notification.--Not later than 5 business days after
making a determination under paragraph (2) with respect to
covered merchandise, the administering authority may provide to
importers, in such manner as the administering authority
determines appropriate, information discovered in the
investigation that the administering authority determines will
help educate importers with respect to importing merchandise
into the customs territory of the United States in accordance
with all applicable laws and regulations.
``(10) Special rule for cases in which the producer or
exporter is unknown.--If the administering authority is unable
to determine the actual producer or exporter of the merchandise
with respect to which the administering authority initiated an
investigation under paragraph (1), the administering authority
shall, in requiring the posting of a cash deposit under
paragraph (6) or assessing duties pursuant to paragraph (7)(A),
impose the cash deposit or duties (as the case may be) in the
highest amount applicable to any producer or exporter of the
merchandise pursuant to any order or finding described in
subsection (a)(2)(A)(i), or any administrative review conducted
under section 751.
``(11) Publication of determinations.--The administering
authority shall publish each notice of initiation of
investigation made under paragraph (1)(A), each preliminary
determination made under paragraph (2)(A) and each final
determination made under paragraph (2)(B) in the Federal
Register.
``(12) Referrals to other agencies.--
``(A) After preliminary determination.--
Notwithstanding section 777 and subject to subparagraph
(C), when the administering authority makes an
affirmative preliminary determination under paragraph
(2)(A), the administering authority shall--
``(i) transmit the administrative record to
the Commissioner for such additional action as
the Commissioner determines appropriate,
including proceedings under section 592; and
``(ii) at the request of the head of another
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
administering authority makes an affirmative final
determination under paragraph (2)(B), the administering
authority shall--
``(i) transmit the complete administrative
record to the Commissioner; and
``(ii) at the request of the head of another
agency, transmit the complete administrative
record to the head of that agency.
``(c) Prevention by U.S. Customs and Border Protection.--In the event
the Commissioner receives information that a person is entered covered
merchandise into the customs territory of the United States through
evasion, but is not able to determine whether the merchandise is in
fact covered merchandise, the Commissioner shall--
``(A) refer the matter to the administering authority
for additional proceedings under subsection (b); and
``(B) transmit to the administering authority--
``(i) copies of the entry documents and
information required by section 484(a)(1)
relating to the merchandise; and
``(ii) any additional records or information
that the Commissioner considers appropriate.
``(d) Cooperation Between U.S. Customs and Border Protection and the
Department of Commerce.--
``(1) Notification of investigations.--Upon receiving a
petition and upon initiating an investigation under subsection
(b), the administering authority shall notify the Commissioner.
``(2) Procedures for cooperation.--Not later than 180 days
after the date of the enactment of this Act , the Commissioner
and the administering authority shall establish procedures to
ensure maximum cooperation and communication between U.S.
Customs and Border Protection and the administering authority
in order to quickly, efficiently, and accurately investigate
allegations of evasion of antidumping and countervailing duty
orders.
``(e) Annual Report on Preventing Evasion of Antidumping and
Countervailing Duty Orders.--
``(1) In general.--Not later than February 28 of each year
beginning in 2016, the Under Secretary for International Trade
of the Department of Commerce shall submit to the Committee on
Finance and the Committee on Appropriations of the Senate and
the Committee on Ways and Means and the Committee on
Appropriations of the House of Representatives a report on the
efforts being taken under subsection (b) to prevent evasion of
antidumping and countervailing duty orders.
``(2) Contents.--Each report required by paragraph (1) shall
include, for the year preceding the submission of the report--
``(A)(i) the number of investigations initiated
pursuant to subsection (b); and
``(ii) a description of such investigations,
including--
``(I) the results of such investigations; and
``(II) the amount of antidumping and
countervailing duties collected as a result of
such investigations; and
``(B) the number of referrals made by the
Commissioner pursuant to subsection (c).''.
(b) Technical Amendment.--The table of contents for title VII of the
Tariff Act of 1930 is amended by inserting after the item relating to
section 781 the following:
``Sec. 781A. Procedures for prevention of evasion of antidumping and
countervailing duty orders.''.
(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)(i)(I), by striking ``or (viii)'' and
inserting ``(viii), or (ix)''; and
(2) in subparagraph (B), by inserting at the end the
following:
``(ix) A determination by the administering
authority under section 781A.''.
(d) Regulations.--Not later than 180 days after the date of the
enactment of this Act--
(1) the Secretary of Commerce shall prescribe such
regulations as may be necessary to carry out subsection (b) of
section 781A of the Tariff Act of 1930 (as added by subsection
(a) of this section); and
(2) the Commissioner responsible for U.S. Customs and Border
Protection shall prescribe such regulations as may be necessary
to carry out subsection (c) of such section 781A.
(e) Effective Date.--The amendments made by this section shall--
(1) take effect on the date that is 180 days after the date
of the enactment of this Act; and
(2) apply with respect to merchandise entered on or after
such date of enactment.
SEC. 422. GOVERNMENT ACCOUNTABILITY OFFICE REPORT.
Not later than 2 years after the date of the enactment of this Act,
the Comptroller General of the United States shall submit to the
Committee on Finance and the Committee on Appropriations of the Senate
and the Committee on Ways and Means and the Committee on Appropriations
of the House of Representatives a report assessing the effectiveness
of--
(1) the provisions of, and amendments made by, this Act; and
(2) the actions taken and procedures developed by the
Secretary of Commerce and the Commissioner pursuant to such
provisions and amendments to prevent evasion of antidumping and
countervailing duty orders under title VII of the Tariff Act of
1930 (19 U.S.C. 1671 et seq.).
Subtitle C--Other Matters
SEC. 431. 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
identification of entries of covered merchandise into the
customs territory of the United States through evasion.
SEC. 432. 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 2014, the Commissioner, in consultation with the Secretary of
Commerce and the Director 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 identify evasion;
(B) the number of allegations of evasion received and
the number of allegations of evasion resulting in any
administrative, civil, or criminal actions by U.S.
Customs and Border Protection or any other agency;
(C) a summary of the completed administrative
inquiries of evasion, including the number and nature
of the inquiries initiated, conducted, or completed, as
well as their resolution;
(D) with respect to inquiries that lead to lead to
issuance of a penalty notice, the penalty amounts;
(E) the amounts of antidumping and countervailing
duties collected as a result of any 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, identify and investigate 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,
identification and investigation of evasion; and
(2) a description of U.S. Customs and Border Protection
processes and procedures to prevent and identify 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 identify 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
identify 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 identify evasion.
SEC. 433. 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) Determinations based on bonafide
sales.--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.''.
TITLE V--ADDITIONAL ENFORCEMENT PROVISIONS
SEC. 501. TRADE ENFORCEMENT PRIORITIES.
(a) In General.--Section 310 of the Trade Act of 1974 (19 U.S.C.
2420) is amended to read as follows:
``SEC. 310. TRADE ENFORCEMENT PRIORITIES.
``(a) Trade Enforcement Priorities, Consultations, and Report.--
``(1) Trade enforcement priorities consultations.--Not later
than May 31 of each calendar year that begins after the date of
the enactment of the Trade Facilitation and Trade Enforcement
Act of 2015, the United States Trade Representative (in this
section referred to as the `Trade Representative') shall
consult with the Committee on Finance of the Senate and the
Committee on Ways and Means of the House of Representatives
with respect to the prioritization of acts, policies, or
practices of foreign governments that raise concerns with
respect to obligations under the WTO Agreements or any other
trade agreement to which the United States is a party, or
otherwise create or maintain barriers to United States goods,
services, or investment.
``(2) Identification of trade enforcement priorities.--In
identifying acts, policies, or practices of foreign governments
as trade enforcement priorities under this subsection, the
United States Trade Representative shall focus on those acts,
policies, and practices the elimination of which is likely to
have the most significant potential to increase United States
economic growth, and take into account all relevant factors,
including--
``(A) the economic significance of any potential
inconsistency between an obligation assumed by a
foreign government pursuant to a trade agreement to
which both the foreign government and the United States
are parties and the acts, policies, or practices of
that government;
``(B) the impact of the acts, policies, or practices
of a foreign government on maintaining and creating
United States jobs and productive capacity;
``(C) the major barriers and trade distorting
practices described in the most recent National Trade
Estimate required under section 181(b);
``(D) the major barriers and trade distorting
practices described in other relevant reports
addressing international trade and investment barriers
prepared by a Federal agency or congressional
commission during the 12 months preceding the date of
the most recent report under paragraph (3);
``(E) a foreign government's compliance with its
obligations under any trade agreements to which both
the foreign government and the United States are
parties;
``(F) the implications of a foreign government's
procurement plans and policies; and
``(G) the international competitive position and
export potential of United States products and
services.
``(3) Report on trade enforcement priorities and actions
taken to address.--
``(A) In general.--Not later than July 31 of each
calendar year that begins after the date of the
enactment of the Trade Facilitation and Trade
Enforcement Act of 2015, the Trade Representative shall
report to the Committee on Finance of the Senate and
the Committee on Ways and Means of the House of
Representatives on acts, policies, or practices of
foreign governments identified as trade enforcement
priorities based on the consultations under paragraph
(1) and the criteria set forth in paragraph (2).
``(B) Report in subsequent years.--The Trade
Representative shall include, when reporting under
subparagraph (A) in any calendar year after the
calendar year that begins after the date of the
enactment of the Trade Facilitation and Trade
Enforcement Act of 2015, a description of actions taken
to address any acts, policies, or practices of foreign
governments identified as trade enforcement priorities
under this subsection in the calendar year preceding
that report and, as relevant, any year before that
calendar year.
``(b) Semi-annual Enforcement Consultations.--
``(1) In general.--At the same time as the reporting under
subsection (a)(3), and not later than January 31 of each
following year, the Trade Representative shall consult with the
Committee on Finance of the Senate and the Committee on Ways
and Means of the House of Representatives with respect to the
identification, prioritization, investigation, and resolution
of acts, policies, or practices of foreign governments of
concern with respect to obligations under the WTO Agreements or
any other trade agreement to which the United States is a
party, or that otherwise create or maintain trade barriers.
``(2) Acts, policies, or practices of concern.--The semi-
annual enforcement consultations required by paragraph (1)
shall address acts, policies, or practices of foreign
governments that raise concerns with respect to obligations
under the WTO Agreements or any other trade agreement to which
the United States is a party, or otherwise create or maintain
trade barriers, including--
``(A) engagement with relevant trading partners;
``(B) strategies for addressing such concerns;
``(C) availability and deployment of resources to be
used in the investigation or resolution of such
concerns;
``(D) the merits of any potential dispute resolution
proceeding under the WTO Agreements or any other trade
agreement to which the United States is a party
relating to such concerns; and
``(E) any other aspects of such concerns.
``(3) Active investigations.--The semi-annual enforcement
consultations required by paragraph (1) shall address acts,
policies, or practices that the Trade Representative is
actively investigating with respect to obligations under the
WTO Agreements or any other trade agreement to which the United
States is a party, including--
``(A) strategies for addressing concerns raised by
such acts, policies, or practices;
``(B) any relevant timeline with respect to
investigation of such acts, policies, or practices;
``(C) the merits of any potential dispute resolution
proceeding under the WTO Agreements or any other trade
agreement to which the United States is a party with
respect to such acts, policies, or practices;
``(D) barriers to the advancement of the
investigation of such acts, policies, or practices; and
``(E) any other matters relating to the investigation
of such acts, policies, or practices.
``(4) Ongoing enforcement actions.--The semi-annual
enforcement consultations required by paragraph (1) shall
address all ongoing enforcement actions taken by or against the
United States with respect to obligations under the WTO
Agreements or any other trade agreement to which the United
States is a party, including--
``(A) any relevant timeline with respect to such
actions;
``(B) the merits of such actions;
``(C) any prospective implementation actions;
``(D) potential implications for any law or
regulation of the United States;
``(E) potential implications for United States
stakeholders, domestic competitors, and exporters; and
``(F) other issues relating to such actions.
``(5) Enforcement resources.--The semi-annual enforcement
consultations required by paragraph (1) shall address the
availability and deployment of enforcement resources, resource
constraints on monitoring and enforcement activities, and
strategies to address those constraints, including the use of
available resources of other Federal agencies to enhance
monitoring and enforcement capabilities.
``(c) Investigation and Resolution.--In the case of any acts,
policies, or practices of a foreign government identified as a trade
enforcement priority under subsection (a), the Trade Representative
shall, not later than the date of the first semi-annual enforcement
consultations held under subsection (b) after the identification of the
priority, take appropriate action to address that priority, including--
``(1) engagement with the foreign government to resolve
concerns raised by such acts, policies, or practices;
``(2) initiation of an investigation under section 302(b)(1)
with respect to such acts, policies, or practices;
``(3) initiation of negotiations for a bilateral agreement
that provides for resolution of concerns raised by such acts,
policies, or practices; or
``(4) initiation of dispute settlement proceedings under the
WTO Agreements or any other trade agreement to which the United
States is a party with respect to such acts, policies, or
practices.
``(d) Enforcement Notifications and Consultation.--
``(1) Initiation of enforcement action.--The Trade
Representative shall notify and consult with the Committee on
Finance of the Senate and the Committee on Ways and Means of
the House of Representatives in advance of initiation of any
formal trade dispute by or against the United States taken in
regard to an obligation under the WTO Agreements or any other
trade agreement to which the United States is a party. With
respect to a formal trade dispute against the United States, if
advance notification and consultation are not possible, the
Trade Representative shall notify and consult at the earliest
practicable opportunity after initiation of the dispute.
``(2) Circulation of reports.--The Trade Representative shall
notify and consult with the Committee on Finance of the Senate
and the Committee on Ways and Means of the House of
Representatives in advance of the announced or anticipated
circulation of any report of a dispute settlement panel or the
Appellate Body of the World Trade Organization or of a dispute
settlement panel under any other trade agreement to which the
United States is a party with respect to a formal trade dispute
by or against the United States.
``(e) Definitions.--In this section:
``(1) WTO.--The term `WTO' means the World Trade
Organization.
``(2) WTO agreement.--The term `WTO Agreement' has the
meaning given that term in section 2(9) of the Uruguay Round
Agreements Act (19 U.S.C. 3501(9)).
``(3) WTO agreements.--The term `WTO Agreements' means the
WTO Agreement and agreements annexed to that Agreement.''.
(b) Clerical Amendment.--The table of contents for the Trade Act of
1974 is amended by striking the item relating to section 310 and
inserting the following:''.
``Sec. 310. Trade enforcement priorities.''.
SEC. 502. EXERCISE OF WTO AUTHORIZATION TO SUSPEND CONCESSIONS OR OTHER
OBLIGATIONS UNDER TRADE AGREEMENTS.
(a) In General.--Section 306 of the Trade Act of 1974 (19 U.S.C.
2416) is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following:
``(c) Exercise of WTO Authorization to Suspend Concessions or Other
Obligations.--If--
``(1) action has terminated pursuant to section 307(c),
``(2) the petitioner or any representative of the domestic
industry that would benefit from reinstatement of action has
submitted to the Trade Representative a written request for
reinstatement of action, and
``(3) the Trade Representatives has completed the
requirements of subsection (d) and section 307(c)(3),
the Trade Representative may at any time determine to take action under
section 301(c) to exercise an authorization to suspend concessions or
other obligations under Article 22 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (referred to in section
101(d)(16) of the Uruguay Round Agreements Act (19 U.S.C.
3511(d)(16))).''.
(b) Conforming Amendments.--Chapter 1 of title III of the Trade Act
of 1974 (19 U.S.C. 2411 et seq.) is amended--
(1) in section 301(c)(1) (19 U.S.C. 2411(c)(1)), in the
matter preceding subparagraph (A), by inserting ``or section
306(c)'' after ``subsection (a) or (b)'';
(2) in section 306(b) (19 U.S.C. 2416(b)), in the subsection
heading, by striking ``Further Action'' and inserting ``Action
on the Basis of Monitoring'';
(3) in section 306(d) (19 U.S.C. 2416(d)), as redesignated by
subsection (a)(1), by inserting ``or (c)'' after ``subsection
(b)''; and
(4) in section 307(c)(3) (19 U.S.C. 2417(c)(3)), by inserting
``or if a request is submitted to the Trade Representative
under section 306(c)(2) to reinstate action,'' after ``under
section 301,''.
SEC. 503. TRADE MONITORING.
(a) In General.--Chapter 1 of title II of the Trade Act of 1974 (19
U.S.C. 2251 et seq.) is amended by adding at the end the following:
``SEC. 205. TRADE MONITORING.
``(a) Monitoring Tool for Imports.--
``(1) In general.--Not later than 180 days after the date of
the enactment of this section, the United States International
Trade Commission shall make available on a website of the
Commission an import monitoring tool to allow the public access
to data on the volume and value of goods imported to the United
States for the purpose of assessing whether such data has
changed with respect to such goods over a period of time.
``(2) Data described.--For purposes of the monitoring tool
under paragraph (1), the Commission shall use data compiled by
the Department of Commerce and such other government data as
the Commission considers appropriate.
``(3) Periods of time.--The Commission shall ensure that data
accessed through the monitoring tool under paragraph (1)
includes data for the most recent quarter for which such data
are available and previous quarters as the Commission considers
practicable.
``(b) Monitoring Reports.--
``(1) In general.--Not later than 270 days after the date of
the enactment of this section, and not less frequently than
quarterly thereafter, the Secretary of Commerce shall publish
on a website of the Department of Commerce, and notify the
Committee on Finance of the Senate and the Committee on Ways
and Means of the House of Representatives of the availability
of, a monitoring report on changes in the volume and value of
trade with respect to imports and exports of goods categorized
based on the 6-digit subheading number of the goods under the
Harmonized Tariff Schedule of the United States during the most
recent quarter for which such data are available and previous
quarters as the Secretary considers practicable.
``(2) Requests for comment.--Not later than one year after
the date of the enactment of this section, the Secretary of
Commerce shall solicit through the Federal Register public
comment on the monitoring reports described in paragraph (1).
``(c) Sunset.--The requirements under this section terminate on the
date that is seven years after the date of the enactment of this
section.''.
(b) Clerical Amendment.--The table of contents for the Trade Act of
1974 (19 U.S.C. 2101 et seq.) is amended by inserting after the item
relating to section 204 the following:
``Sec. 205. Trade monitoring.''.
TITLE VI--MISCELLANEOUS PROVISIONS
SEC. 601. DE MINIMIS VALUE.
(a) De Minimis Value.--Section 321(a)(2)(C) of the Tariff Act of 1930
(19 U.S.C. 1321(a)(2)(C)) is amended by striking ``$200'' and inserting
``$800''.
(b) Effective Date.--The amendment made by subsection (a) shall apply
with respect to articles entered, or withdrawn from warehouse for
consumption, on or after the 15th day after the date of the enactment
of this Act.
SEC. 602. CONSULTATION ON TRADE AND CUSTOMS REVENUE FUNCTIONS.
Section 401(c) of the Safety and Accountability for Every Port Act (6
U.S.C. 115(c)) is amended--
(1) in paragraph (1), by striking ``on Department policies
and actions that have'' and inserting ``not later than 30 days
after proposing, and not later than 30 days before finalizing,
any Department policies, initiatives, or actions that will
have''; and
(2) in paragraph (2)(A), by striking ``not later than 30 days
prior to the finalization of'' and inserting ``not later than
60 days before proposing, and not later than 60 days before
finalizing,''.
SEC. 603. PENALTIES FOR CUSTOMS BROKERS.
(a) In General.--Section 641(d)(1) of the Tariff Act of 1930 (19
U.S.C. 1641(d)(1)) is amended--
(1) in subparagraph (E), by striking ``; or'' and inserting a
semicolon;
(2) in subparagraph (F), by striking the period and inserting
``; or''; and
(3) by adding at the end the following:
``(G) has been convicted of committing or conspiring
to commit an act of terrorism described in section
2332b of title 18, United States Code.''.
(b) Technical Amendments.--Section 641 of the Tariff Act of 1930 (19
U.S.C. 1641) is amended--
(1) by striking ``the Customs Service'' each place it appears
and inserting ``U.S. Customs and Border Protection'';
(2) in subsection (d)(2)(B), by striking ``The Customs
Service'' and inserting ``U.S. Customs and Border Protection'';
and
(3) in subsection (g)(2)(B), by striking ``Secretary's
notice'' and inserting ``notice under subparagraph (A)''.
SEC. 604. AMENDMENTS TO CHAPTER 98 OF THE HARMONIZED TARIFF SCHEDULE OF
THE UNITED STATES.
(a) Articles Exported and Returned, Advanced or Improved Abroad.--
(1) In general.--U.S. Note 3 to subchapter II of chapter 98
of the Harmonized Tariff Schedule of the United States is
amended by adding at the end the following:
``(f)(1) For purposes of subheadings 9802.00.40 and 9802.00.50,
fungible articles exported from the United States for the purposes
described in such subheadings--
``(A) may be commingled; and
``(B) the origin, value, and classification of such articles
may be accounted for using an inventory management method.
``(2) If a person chooses to use an inventory management method under
this paragraph with respect to fungible articles, the person shall use
the same inventory management method for any other articles with
respect to which the person claims fungibility under this paragraph.
``(3) For the purposes of this paragraph--
``(A) the term `fungible articles' means merchandise or
articles that, for commercial purposes, are identical or
interchangeable in all situations; and
``(B) the term `inventory management method' means any method
for managing inventory that is based on generally accepted
accounting principles.''.
(2) Effective date.--The amendment made by this subsection
applies to articles classifiable under subheading 9802.00.40 or
9802.00.50 of the Harmonized Tariff Schedule of the United
States that are entered, or withdrawn from warehouse for
consumption, on or after the date that is 60 days after the
date of the enactment of this Act.
(b) Modification of Provisions Relating to Returned Property.--
(1) In general.--The article description for heading
9801.00.10 of the Harmonized Tariff Schedule of the United
States is amended by inserting after ``exported'' the
following: ``, or any other products when returned within 3
years after having been exported''.
(2) Effective date.--The amendment made by paragraph (1)
applies to articles entered, or withdrawn from warehouse for
consumption, on or after the date that is 60 days after the
date of the enactment of this Act.
(c) Duty-free Treatment for Certain United States Government Property
Returned to the United States.--
(1) In general.--Subchapter I of chapter 98 of the Harmonized
Tariff Schedule of the United States is amended by inserting in
numerical sequence the following new heading:
`` 9801.00.11 United States Free ............ ............ ............ ''.
Government
property,
returned to the
United States
without having
been advanced
in value or
improved in
condition by
any means while
abroad, entered
by the United
States
Government or a
contractor to
the United
States
Government, and
certified by
the importer as
United States
Government
property.......
(2) Effective date.--The amendment made by paragraph (1)
applies to goods entered, or withdrawn from warehouse for
consumption, on or after the date that is 60 days after the
date of the enactment of this Act.
SEC. 605. EXEMPTION FROM DUTY OF RESIDUE OF BULK CARGO CONTAINED IN
INSTRUMENTS OF INTERNATIONAL TRAFFIC PREVIOUSLY
EXPORTED FROM THE UNITED STATES.
(a) In General.--General Note 3(e) of the Harmonized Tariff Schedule
of the United States is amended--
(1) in subparagraph (v), by striking ``and'' at the end;
(2) in subparagraph (vi), by adding ``and'' at the end;
(3) by inserting after subparagraph (vi) (as so amended) the
following new subparagraph:
``(vii) residue of bulk cargo contained in
instruments of international traffic previously
exported from the United States,''; and
(4) by adding at the end of the flush text following
subparagraph (vii) (as so added) the following: ``For purposes
of subparagraph (vii) of this paragraph: The term `residue'
means material of bulk cargo that remains in an instrument of
international traffic after the bulk cargo is removed, with a
quantity, by weight or volume, not exceeding 7 percent of the
bulk cargo, and with no or de minimis value. The term `bulk
cargo' means cargo that is unpackaged and is in either solid,
liquid, or gaseous form. The term `instruments of international
traffic' means containers or holders, capable of and suitable
for repeated use, such as lift vans, cargo vans, shipping
tanks, skids, pallets, caul boards, and cores for textile
fabrics, arriving (whether loaded or empty) in use or to be
used in the shipment of merchandise in international traffic,
and any additional articles or classes of articles that the
Commissioner responsible for U.S. Customs and Border Protection
designates as instruments of international traffic.''.
(b) Effective Date.--The amendments made by subsection (a) take
effect on the date of the enactment of this Act and apply with respect
to residue of bulk cargo contained in instruments of international
traffic that are imported into the customs territory of the United
States on or after such date of enactment and that previously have been
exported from the United States.
SEC. 606. DRAWBACK AND REFUNDS.
(a) Articles Made From Imported Merchandise.--Section 313(a) of the
Tariff Act of 1930 (19 U.S.C. 1313(a)) is amended by striking ``the
full amount of the duties paid upon the merchandise so used shall be
refunded as drawback, less 1 per centum of such duties, except that
such'' and inserting ``an amount calculated pursuant to regulations
prescribed by the Secretary of the Treasury under subsection (l) shall
be refunded as drawback, except that''.
(b) Substitution for Drawback Purposes.--Section 313(b) of the Tariff
Act of 1930 (19 U.S.C. 1313(b)) is amended--
(1) by striking ``If imported'' and inserting the following:
``(1) In general.--If imported'';
(2) by striking ``and any other merchandise (whether imported
or domestic) of the same kind and quality are'' and inserting
``or merchandise classifiable under the same 8-digit HTS
subheading number as such imported merchandise is'';
(3) by striking ``three years'' and inserting ``5 years'';
(4) by striking ``the receipt of such imported merchandise by
the manufacturer or producer of such articles'' and inserting
``the date of importation of such imported merchandise'';
(5) by inserting ``or articles classifiable under the same 8-
digit HTS subheading number as such articles,'' after ``any
such articles,'';
(6) by striking ``an amount of drawback equal to'' and all
that follows through the end period and inserting ``an amount
calculated pursuant to regulations prescribed by the Secretary
of the Treasury under subsection (l), but only if those
articles have not been used prior to such exportation or
destruction.''; and
(7) by adding at the end the following:
``(2) Requirements relating to transfer of merchandise.--
``(A) Manufacturers and producers.--Drawback shall be
allowed under paragraph (1) with respect to an article
manufactured or produced using imported merchandise or
other merchandise classifiable under the same 8-digit
HTS subheading number as such imported merchandise only
if the manufacturer or producer of the article received
such imported merchandise or such other merchandise,
directly or indirectly, from the importer.
``(B) Exporters and destroyers.--Drawback shall be
allowed under paragraph (1) with respect to a
manufactured or produced article that is exported or
destroyed only if the exporter or destroyer received
that article or an article classifiable under the same
8-digit HTS subheading number as that article, directly
or indirectly, from the manufacturer or producer.
``(C) Evidence of transfer.--Transfers of merchandise
under subparagraph (A) and transfers of articles under
subparagraph (B) may be evidenced by business records
kept in the normal course of business and no additional
certificates of transfer or manufacture shall be
required.
``(3) Submission of bill of materials or formula.--
``(A) In general.--Drawback shall be allowed under
paragraph (1) with respect to an article manufactured
or produced using imported merchandise or other
merchandise classifiable under the same 8-digit HTS
subheading number as such imported merchandise only if
the person making the drawback claim submits with the
claim a bill of materials or formula identifying the
merchandise and article by the 8-digit HTS subheading
number and the quantity of the merchandise.
``(B) Bill of materials and formula defined.--In this
paragraph, the terms `bill of materials' and `formula'
mean records kept in the normal course of business that
identify each component incorporated into a
manufactured or produced article or that identify the
quantity of each element, material, chemical, mixture,
or other substance incorporated into a manufactured
article.
``(4) Special rule for sought chemical elements.--
``(A) In general.--For purposes of paragraph (1), a
sought chemical element may be--
``(i) considered imported merchandise, or
merchandise classifiable under the same 8-digit
HTS subheading number as such imported
merchandise, used in the manufacture or
production of an article as described in
paragraph (1); and
``(ii) substituted for source material
containing that sought chemical element,
without regard to whether the sought chemical
element and the source material are
classifiable under the same 8-digit HTS
subheading number, and apportioned
quantitatively, as appropriate.
``(B) Sought chemical element defined.--In this
paragraph, the term `sought chemical element' means an
element listed in the Periodic Table of Elements that
is imported into the United States or a chemical
compound consisting of those elements, either
separately in elemental form or contained in source
material.''.
(c) Merchandise Not Conforming to Sample or Specifications.--Section
313(c) of the Tariff Act of 1930 (19 U.S.C. 1313(c)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (C)(ii), by striking ``under a
certificate of delivery'' each place it appears;
(B) in subparagraph (D)--
(i) by striking ``3'' and inserting ``5'';
and
(ii) by striking ``the Customs Service'' and
inserting ``U.S. Customs and Border
Protection''; and
(C) in the flush text at the end, by striking ``the
full amount of the duties paid upon such merchandise,
less 1 percent,'' and inserting ``an amount calculated
pursuant to regulations prescribed by the Secretary of
the Treasury under subsection (l)'';
(2) in paragraph (2), by striking ``the Customs Service'' and
inserting ``U.S. Customs and Border Protection''; and
(3) by amending paragraph (3) to read as follows:
``(3) Evidence of transfers.--Transfers of merchandise under
paragraph (1) may be evidenced by business records kept in the
normal course of business and no additional certificates of
transfer shall be required.''.
(d) Proof of Exportation.--Section 313(i) of the Tariff Act of 1930
(19 U.S.C. 1313(i)) is amended to read as follows:
``(i) Proof of Exportation.--A person claiming drawback under this
section based on the exportation of an article shall provide proof of
the exportation of the article. Such proof of exportation--
``(1) shall establish fully the date and fact of exportation
and the identity of the exporter; and
``(2) may be established through the use of records kept in
the normal course of business or through an electronic export
system of the United States Government, as determined by the
Commissioner responsible for U.S. Customs and Border
Protection.''.
(e) Unused Merchandise Drawback.--Section 313(j) of the Tariff Act of
1930 (19 U.S.C. 1313(j)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (A), in the matter preceding
clause (i)--
(i) by striking ``3-year'' and inserting ``5-
year''; and
(ii) by inserting ``and before the drawback
claim is filed'' after ``the date of
importation''; and
(B) in the flush text at the end, by striking ``99
percent of the amount of each duty, tax, or fee so
paid'' and inserting ``an amount calculated pursuant to
regulations prescribed by the Secretary of the Treasury
under subsection (l)'';
(2) in paragraph (2)--
(A) in the matter preceding subparagraph (A), by
striking ``paragraph (4)'' and inserting ``paragraphs
(4), (5), and (6)'';
(B) in subparagraph (A), by striking ``commercially
interchangeable with'' and inserting ``classifiable
under the same 8-digit HTS subheading number as'';
(C) in subparagraph (B)--
(i) by striking ``3-year'' and inserting ``5-
year''; and
(ii) by inserting ``and before the drawback
claim is filed'' after ``the imported
merchandise''; and
(D) in subparagraph (C)(ii), by striking subclause
(II) and inserting the following:
``(II) received the imported
merchandise, other merchandise
classifiable under the same 8-digit HTS
subheading number as such imported
merchandise, or any combination of such
imported merchandise and such other
merchandise, directly or indirectly
from the person who imported and paid
any duties, taxes, and fees imposed
under Federal law upon importation or
entry and due on the imported
merchandise (and any such transferred
merchandise, regardless of its origin,
will be treated as the imported
merchandise and any retained
merchandise will be treated as domestic
merchandise);'';
(E) in the flush text at the end--
(i) by striking ``the amount of each such
duty, tax, and fee'' and all that follows
through ``99 percent of that duty, tax, or
fee'' and inserting ``an amount calculated
pursuant to regulations prescribed by the
Secretary of the Treasury under subsection (l)
shall be refunded as drawback''; and
(ii) by striking the last sentence and
inserting the following: ``Notwithstanding
subparagraph (A), drawback shall be allowed
under this paragraph with respect to wine if
the imported wine and the exported wine are of
the same color and the price variation between
the imported wine and the exported wine does
not exceed 50 percent. Transfers of merchandise
may be evidenced by business records kept in
the normal course of business and no additional
certificates of transfer shall be required.'';
and
(3) in paragraph (3)(B), by striking ``the commercially
interchangeable merchandise'' and inserting ``merchandise
classifiable under the same 8-digit HTS subheading number as
such imported merchandise''; and
(4) by adding at the end the following:
``(5)(A) For purposes of paragraph (2) and except as provided
in subparagraph (B), merchandise may not be substituted for
imported merchandise for drawback purposes based on the 8-digit
HTS subheading number if the article description for the 8-
digit HTS subheading number under which the imported
merchandise is classified begins with the term `other'.
``(B) In cases described in subparagraph (A), merchandise may
be substituted for imported merchandise for drawback purposes
if--
``(i) the other merchandise and such imported
merchandise are classifiable under the same 10-digit
HTS statistical reporting number; and
``(ii) the article description for that 10-digit HTS
statistical reporting number does not begin with the
term `other'.
``(6)(A) For purposes of paragraph (2), a drawback claimant
may use the first 8 digits of the 10-digit Schedule B number
for merchandise or an article to determine if the merchandise
or article is classifiable under the same 8-digit HTS
subheading number as the imported merchandise, without regard
to whether the Schedule B number corresponds to more than one
8-digit HTS subheading number.
``(B) In this paragraph, the term `Schedule B' means the
Department of Commerce Schedule B, Statistical Classification
of Domestic and Foreign Commodities Exported from the United
States.''.
(f) Liability for Drawback Claims.--Section 313(k) of the Tariff Act
of 1930 (19 U.S.C. 1313(k)) is amended to read as follows:
``(k) Liability for Drawback Claims.--
``(1) In general.--Any person making a claim for drawback
under this section shall be liable for the full amount of the
drawback claimed.
``(2) Liability of importers.--An importer shall be liable
for any drawback claim made by another person with respect to
merchandise imported by the importer in an amount equal to the
lesser of--
``(A) the amount of duties, taxes, and fees that the
person claimed with respect to the imported
merchandise; or
``(B) the amount of duties, taxes, and fees that the
importer authorized the other person to claim with
respect to the imported merchandise.
``(3) Joint and several liability.--Persons described in
paragraphs (1) and (2) shall be jointly and severally liable
for the amount described in paragraph (2).''.
(g) Regulations.--Section 313(l) of the Tariff Act of 1930 (19 U.S.C.
1313(l)) is amended to read as follows:
``(l) Regulations.--
``(1) In general.--Allowance of the privileges provided for
in this section shall be subject to compliance with such rules
and regulations as the Secretary of the Treasury shall
prescribe.
``(2) Calculation of drawback.--
``(A) In general.--Not later than the date that is 2
years after the date of the enactment of the Trade
Facilitation and Trade Enforcement Act of 2015 (or, if
later, the effective date provided for in section
406(q)(2)(B) of that Act), the Secretary shall
prescribe regulations for determining the calculation
of amounts refunded as drawback under this section.
``(B) Requirements.--The regulations required by
subparagraph (A) for determining the calculation of
amounts refunded as drawback under this section shall
provide for a refund of equal to 99 percent of the
duties, taxes, and fees paid with respect to the
imported merchandise, except that where there is
substitution of the merchandise or article, then--
``(i) in the case of an article that is
exported, the amount of the refund shall be
equal to 99 percent of the lesser of--
``(I) the amount of duties, taxes,
and fees paid with respect to the
imported merchandise; or
``(II) the amount of duties, taxes,
and fees that would apply to the
exported article if the exported
article were imported; and
``(ii) in the case of an article that is
destroyed, the amount of the refund shall be an
amount that is--
``(I) equal to 99 percent of the
lesser of--
``(aa) the amount of duties,
taxes, and fees paid with
respect to the imported
merchandise; and
``(bb) the amount of duties,
taxes, and fees that would
apply to the destroyed article
if the destroyed article were
imported; and
``(II) reduced by the value of
materials recovered during destruction
as provided in subsection (x).
``(3) Status reports on regulations.--Not later than the date
that is one year after the date of the enactment of the Trade
Facilitation and Trade Enforcement Act of 2015, and annually
thereafter until the regulations required by paragraph (2) are
final, the Secretary shall submit to Congress a report on the
status of those regulations.''.
(h) Substitution of Finished Petroleum Derivatives.--Section 313(p)
of the Tariff Act of 1930 (19 U.S.C. 1313(p)) is amended--
(1) by striking ``Harmonized Tariff Schedule of the United
States'' each place it appears and inserting ``HTS''; and
(2) in paragraph (3)(A)--
(A) in clause (ii)(III), by striking ``, as so
certified in a certificate of delivery or certificate
of manufacture and delivery''; and
(B) in the flush text at the end--
(i) by striking ``, so designated on the
certificate of delivery or certificate of
manufacture and delivery''; and
(ii) by striking the last sentence and
inserting the following: ``The party
transferring the merchandise shall maintain
records kept in the normal course of business
to demonstrate the transfer.''.
(i) Packaging Material.--Section 313(q) of the Tariff Act of 1930 (19
U.S.C. 1313(q)) is amended--
(1) in paragraph (1), by striking ``of 99 percent of any
duty, tax, or fee imposed under Federal law on such imported
material'' and inserting ``in an amount calculated pursuant to
regulations prescribed by the Secretary of the Treasury under
subsection (l)'';
(2) in paragraph (2), by striking ``of 99 percent of any
duty, tax, or fee imposed under Federal law on the imported or
substituted merchandise used to manufacture or produce such
material'' and inserting ``in an amount calculated pursuant to
regulations prescribed by the Secretary of the Treasury under
subsection (l)''; and
(3) in paragraph (3), by striking ``they contain'' and
inserting ``it contains''.
(j) Filing of Drawback Claims.--Section 313(r) of the Tariff Act of
1930 (19 U.S.C. 1313(r)) is amended--
(1) in paragraph (1)--
(A) by striking the first sentence and inserting the
following: ``A drawback entry shall be filed or applied
for, as applicable, not later than 5 years after the
date on which merchandise on which drawback is claimed
was imported.'';
(B) in the second sentence, by striking ``3-year''
and inserting ``5-year''; and
(C) in the third sentence, by striking ``the Customs
Service'' and inserting ``U.S. Customs and Border
Protection'';
(2) in paragraph (3)--
(A) in subparagraph (A)--
(i) in the matter preceding clause (i), by
striking ``The Customs Service'' and inserting
``U.S. Customs and Border Protection'';
(ii) in clauses (i) and (ii), by striking
``the Customs Service'' each place it appears
and inserting ``U.S. Customs and Border
Protection''; and
(iii) in clause (ii)(I), by striking ``3-
year'' and inserting ``5-year''; and
(B) in subparagraph (B), by striking ``the periods of
time for retaining records set forth in subsection (t)
of this section and'' and inserting ``the period of
time for retaining records set forth in''; and
(3) by adding at the end the following:
``(4) All drawback claims filed on and after the date that is
2 years after the date of the enactment of the Trade
Facilitation and Trade Enforcement Act of 2015 (or, if later,
the effective date provided for in section 406(q)(2)(B) of that
Act) shall be filed electronically.''.
(k) Designation of Merchandise by Successor.--Section 313(s) of the
Tariff Act of 1930 (19 U.S.C. 1313(s)) is amended--
(1) in paragraph (2), by striking subparagraph (B) and
inserting the following:
``(B) subject to paragraphs (5) and (6) of subsection
(j), imported merchandise, other merchandise
classifiable under the same 8-digit HTS subheading
number as such imported merchandise, or any combination
of such imported merchandise and such other
merchandise, that the predecessor received, before the
date of succession, from the person who imported and
paid any duties, taxes, and fees due on the imported
merchandise;''; and
(2) in paragraph (4), by striking ``certifies that'' and all
that follows and inserting ``certifies that the transferred
merchandise was not and will not be claimed by the
predecessor.''.
(l) Drawback Certificates.--Section 313 of the Tariff Act of 1930 (19
U.S.C. 1313) is amended by striking subsection (t).
(m) Drawback for Recovered Materials.--Section 313(x) of the Tariff
Act of 1930 (19 U.S.C. 1313(x)) is amended by striking ``and (c)'' and
inserting ``(c), and (j)''.
(n) Definitions.--Section 313 of the Tariff Act of 1930 (19 U.S.C.
1313) is amended by adding at the end the following:
``(z) Definitions.--In this section:
``(1) Directly.--The term `directly' means a transfer of
merchandise or an article from one person to another person
without any intermediate transfer.
``(2) HTS.--The term `HTS' means the Harmonized Tariff
Schedule of the United States.
``(3) Indirectly.--The term `indirectly' means a transfer of
merchandise or an article from one person to another person
with one or more intermediate transfers.''.
(o) Recordkeeping.--Section 508(c)(3) of the Tariff Act of 1930 (19
U.S.C. 1508(c)(3)) is amended--
(1) by striking ``3rd'' and inserting ``5th''; and
(2) by striking ``payment'' and inserting ``liquidation''.
(p) Government Accountability Office Report.--
(1) In general.--Not later than one year after the issuance
of the regulations required by subsection (l)(2) of section 313
of the Tariff Act of 1930, as added by subsection (g), the
Comptroller General of the United States shall submit to the
Committee on Finance of the Senate and the Committee on Ways
and Means of the House of Representatives a report on the
modernization of drawback and refunds under section 313 of the
Tariff Act of 1930, as amended by this section.
(2) Contents.--The report required by paragraph (1) include
the following:
(A) An assessment of the modernization of drawback
and refunds under section 313 of the Tariff Act of
1930, as amended by this section.
(B) A description of drawback claims that were
permissible before the effective date provided for in
subsection (q) that are not permissible after that
effective date and an identification of industries most
affected.
(C) A description of drawback claims that were not
permissible before the effective date provided for in
subsection (q) that are permissible after that
effective date and an identification of industries most
affected.
(q) Effective Date.--
(1) In general.--The amendments made by this section shall--
(A) take effect on the date of the enactment of this
Act; and
(B) apply to drawback claims filed on or after the
date that is 2 years after such date of enactment.
(2) Reporting of operability of automated commercial
environment computer system.--Not later than one year after the
date of the enactment of this Act, and not later than 2 years
after such date of enactment, the Secretary of the Treasury
shall submit to Congress a report on--
(A) the date on which the Automated Commercial
Environment will be ready to process drawback claims;
and
(B) the date on which the Automated Export System
will be ready to accept proof of exportation under
subsection (i) of section 313 of the Tariff Act of
1930, as amended by subsection (d).
(3) Transition rule.--During the one-year period beginning on
the date that is 2 years after the date of the enactment of
this Act (or, if later, the effective date provided for in
paragraph (2)(B)), a person may elect to file a claim for
drawback under--
(A) section 313 of the Tariff Act of 1930, as amended
by this section; or
(B) section 313 of the Tariff Act of 1930, as in
effect on the day before the date of the enactment of
this Act.
SEC. 607. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE.
(a) Annual Report on Trade Agreements Program and National Trade
Policy Agenda.--Section 163(a) of the Trade Act of 1974 (19 U.S.C.
2213(a)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (A), by striking ``and'' at the
end;
(B) in subparagraph (B), by striking the period at
the end and inserting ``; and''; and
(C) by adding at the end the following:
``(C) the operation of all United States Trade
Representative-led interagency programs during the
preceding year and for the year in which the report is
submitted.''; and
(2) by adding at the end the following:
``(4) The report shall include, with respect to the matters
referred to in paragraph (1)(C), information regarding--
``(A) the objectives and priorities of all United
States Trade Representative-led interagency programs
for the year, and the reasons therefor;
``(B) the actions proposed, or anticipated, to be
undertaken during the year to achieve such objectives
and priorities, including actions authorized under the
trade laws and negotiations with foreign countries;
``(C) the role of each Federal agency participating
in the interagency program in achieving such objectives
and priorities and activities of each agency with
respect to their participation in the program;
``(D) the United States Trade Representative's
coordination of each participating Federal agency to
more effectively achieve such objectives and
priorities;
``(E) any proposed legislation necessary or
appropriate to achieve any of such objectives or
priorities; and
``(F) the progress that was made during the preceding
year in achieving such objectives and priorities and
coordination activities included in the statement
provided for such year under this paragraph.''.
(b) Resource Management and Staffing Plans.--
(1) Annual plan.--
(A) In general.--The United States Trade
Representative shall on an annual basis develop a
plan--
(i) to match available resources of the
Office of the United States Trade
Representative to projected workload and
provide a detailed analysis of how the funds
allocated from the prior fiscal year to date
have been spent;
(ii) to identify existing staff of the Office
and new staff that will be necessary to support
the trade negotiation and enforcement functions
and powers of the Office (including those of
the Trade Policy Staff Committee) as described
in section 141 of the Trade Act of 1974 (19
U.S.C. 2171) and section 301 of the Trade Act
of 1974 (19 U.S.C. 2411);
(iii) to identify existing staff of the
Office and staff of other Federal agencies who
will be required to be detailed to support
United States Trade Representative-led
interagency programs, including any associated
expenses; and
(iv) to provide a detailed analysis of the
budgetary requirements of United States Trade
Representative-led interagency programs for the
next fiscal year and provide a detailed
analysis of how the funds allocated from the
prior fiscal year to date have been spent.
(B) Report.--The United States Trade Representative
shall submit to the Committee on Ways and Means and the
Committee on Appropriations of the House of
Representatives and the Committee on Finance and the
Committee on Appropriations of the Senate a report that
contains the plan required under subparagraph (A). The
report required under this subparagraph shall be
submitted in conjunction with the annual budget of the
United States Government required to be submitted to
Congress under section 1105 of title 31, United States
Code.
(2) Quadrennial plan.--
(A) In general.--Pursuant to the goals and objectives
of the strategic plan of the Office of the United
States Trade Representative as required under section
306 of title 5, United States Code, the United States
Trade Representative shall every 4 years develop a
plan--
(i) to analyze internal quality controls and
record management of the Office;
(ii) to identify existing staff of the Office
and new staff that will be necessary to support
the trade negotiation and enforcement functions
and powers of the Office (including those of
the Trade Policy Staff Committee) as described
in section 141 of the Trade Act of 1974 (19
U.S.C. 2171) and section 301 of the Trade Act
of 1974 (19 U.S.C. 2411);
(iii) to identify existing staff of the
Office and staff in other Federal agencies who
will be required to be detailed to support
United States Trade Representative-led
interagency programs, including any associated
expenses;
(iv) to provide an outline of budget
justifications, including salaries and expenses
as well as non-personnel administrative
expenses, for the fiscal years required under
the strategic plan; and
(v) to provide an outline of budget
justifications, including salaries and expenses
as well as non-personnel administrative
expenses, for United States Trade
Representative-led interagency programs for the
fiscal years required under the strategic plan.
(B) Report.--
(i) In general.--The United States Trade
Representative shall submit to the Committee on
Ways and Means and the Committee on
Appropriations of the House of Representatives
and the Committee on Finance and the Committee
on Appropriations of the Senate a report that
contains the plan required under subparagraph
(A). Except as provided in clause (ii), the
report required under this clause shall be
submitted in conjunction with the strategic
plan of the Office as required under section
306 of title 5, United States Code.
(ii) Exception.--The United States Trade
Representative shall submit to the
congressional committees specified in clause
(i) an initial report that contains the plan
required under subparagraph (A) not later than
February 1, 2016.
SEC. 608. UNITED STATES-ISRAEL TRADE AND COMMERCIAL ENHANCEMENT.
(a) Findings.--Congress finds the following:
(1) Israel is America's dependable, democratic ally in the
Middle East--an area of paramount strategic importance to the
United States.
(2) The United States-Israel Free Trade Agreement formed the
modern foundation of the bilateral commercial relationship
between the two countries and was the first such agreement
signed by the United States with a foreign country.
(3) The United States-Israel Free Trade Agreement has been
instrumental in expanding commerce and the strategic
relationship between the United States and Israel.
(4) More than $45 billion in goods and services is traded
annually between the two countries in addition to roughly $10
billion in United States foreign direct investment in Israel.
(5) The United States continues to look for and find new
opportunities to enhance cooperation with Israel, including
through the enactment of the United States-Israel Enhanced
Security Cooperation Act of 2012 (Public Law 112-150) and the
United States-Israel Strategic Partnership Act of 2014 (Public
Law 113-296).
(6) It has been the policy of the United States Government to
combat all elements of the Arab League Boycott of Israel by--
(A) public statements of Administration officials;
(B) enactment of relevant sections of the Export
Administration Act of 1979 (as continued in effect
pursuant to the International Emergency Economic Powers
Act), including sections to ensure foreign persons
comply with applicable reporting requirements relating
to the boycott;
(C) enactment of the 1976 Tax Reform Act (Public Law
94-455) that denies certain tax benefits to entities
abiding by the boycott;
(D) ensuring through free trade agreements with
Bahrain and Oman that such countries no longer
participate in the boycott; and
(E) ensuring as a condition of membership in the
World Trade Organization that Saudi Arabia no longer
enforces the secondary or tertiary elements of the
boycott.
(b) Statements of Policy.--Congress--
(1) supports the strengthening of United States-Israel
economic cooperation and recognizes the tremendous strategic,
economic, and technological value of cooperation with Israel;
(2) recognizes the benefit of cooperation with Israel to
United States companies, including by improving American
competitiveness in global markets;
(3) recognizes the importance of trade and commercial
relations to the pursuit and sustainability of peace, and
supports efforts to bring together the United States, Israel,
the Palestinian territories, and others in enhanced commerce;
(4) opposes politically motivated actions that penalize or
otherwise limit commercial relations specifically with Israel
such as boycotts, divestment or sanctions;
(5) notes that the boycott, divestment, and sanctioning of
Israel by governments, governmental bodies, quasi-governmental
bodies, international organizations, and other such entities is
contrary to the General Agreement on Tariffs and Trade (GATT)
principle of non-discrimination;
(6) encourages the inclusion of politically motivated actions
that penalize or otherwise limit commercial relations
specifically with Israel such as boycotts, divestment from, or
sanctions against Israel as a topic of discussion at the U.S.-
Israel Joint Economic Development Group (JEDG) and other areas
to support the strengthening of the United States-Israel
commercial relationship and combat any commercial
discrimination against Israel;
(7) supports efforts to prevent investigations or
prosecutions by governments or international organizations of
United States persons on the sole basis of such persons doing
business with Israel, with Israeli entities, or in Israeli-
controlled territories; and
(8) supports American States examining a company's promotion
or compliance with unsanctioned boycotts, divestment from, or
sanctions against Israel as part of its consideration in
awarding grants and contracts and supports the divestment of
State assets from companies that support or promote actions to
boycott, divest from, or sanction Israel.
(c) Principal Trade Negotiating Objectives of the United States.--
(1) Commercial partnerships.--Among the principal trade
negotiating objectives of the United States for proposed trade
agreements with foreign countries regarding commercial
partnerships are the following:
(A) To discourage actions by potential trading
partners that directly or indirectly prejudice or
otherwise discourage commercial activity solely between
the United States and Israel.
(B) To discourage politically motivated actions to
boycott, divest from, or sanction Israel and to seek
the elimination of politically motivated non-tariff
barriers on Israeli goods, services, or other commerce
imposed on the State of Israel.
(C) To seek the elimination of state-sponsored
unsanctioned foreign boycotts against Israel or
compliance with the Arab League Boycott of Israel by
prospective trading partners.
(2) Effective date.--This subsection takes effect on the date
of the enactment of this Act and applies with respect to
negotiations commenced before, on, or after the date of the
enactment of this Act.
(d) Report on Politically Motivated Acts of Boycott, Divestment From,
and Sanctions Against Israel.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, and annually thereafter, the
President shall submit to Congress a report on politically
motivated acts of boycott, divestment from, and sanctions
against Israel.
(2) Matters to be included.--The report required by paragraph
(1) shall include the following:
(A) A description of the establishment of barriers to
trade, including non-tariff barriers, investment, or
commerce by foreign countries or international
organizations against United States persons operating
or doing business in Israel, with Israeli entities, or
in Israeli-controlled territories.
(B) A description of specific steps being taken by
the United States to encourage foreign countries and
international organizations to cease creating such
barriers and to dismantle measures already in place and
an assessment of the effectiveness of such steps.
(C) A description of specific steps being taken by
the United States to prevent investigations or
prosecutions by governments or international
organizations of United States persons on the sole
basis of such persons doing business with Israel, with
Israeli entities, or in Israeli-controlled territories.
(D) Decisions by foreign persons, including corporate
entities and state-affiliated financial institutions,
that limit or prohibit economic relations with Israel
or persons doing business in Israel or in Israeli
controlled territories.
(e) Israel Trade and Commerce Boycott Reporting.--Section 13 of the
Securities Exchange Act of 1934 (15 U.S.C. 78m) is amended by adding at
the end the following:
``(s) Israel Trade and Commerce Boycott Reporting.--
``(1) In general.--Each foreign issuer required to file an
annual or quarterly report under subsection (a) shall disclose
in that report--
``(A) whether the issuer has discriminated against
doing business with Israel in the last calendar year
and in such cases an issuer shall provide a description
of the discrimination.
``(B) whether the issuer has been advised by a
foreign government or a non-member state of the United
Nations to discriminate against doing business with
Israel, entities owned or controlled by the government
of Israel, or entities operating in Israel or Israeli-
controlled territory; and
``(C) any instances where the issuer has learned that
a person, foreign government, or a non-member state of
the United Nations is boycotting the issuer, divesting
themselves of an ownership interest in the issuer, or
placing sanctions on the issuer because of the issuer's
relationship with Israel, entities owned or controlled
by the government of Israel, or entities operating in
Israel or Israeli-controlled territory.
``(2) Definitions.--For purposes of this subsection:
``(A) Foreign issuer.--The term `foreign issuer'
means an issuer that is not incorporated in the United
States.
``(B) Non-member states of the united nations.--The
term `non-member states of the United Nations' has the
meaning given such term by the United Nations.''.
(f) Foreign Judgments Against United States Persons.--No court in the
United States may recognize or enforce any judgment which is entered by
a foreign court against a United States person carrying out business
operations in Israel or in any territory controlled by Israel and on
which is based a determination by the foreign court that the location
in Israel, or in any territory controlled by Israel, of the facilities
at which the business operations are carried out is sufficient to
constitute a violation of law.
(g) Definitions.--In this section:
(1) Boycott, divestment from, and sanctions against israel.--
The term ``boycott, divestment from, and sanctions against
Israel'' means actions by states, non-member states of the
United Nations, international organizations, or affiliated
agencies of international organizations that are politically
motivated and are intended to penalize or otherwise limit
commercial relations specifically with Israel or persons doing
business in Israel or in Israeli-controlled territories.
(2) Foreign person.--The term ``foreign person'' means--
(A) any natural person who is not lawfully admitted
for permanent residence (as defined in section
101(a)(20) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(20)) or who is not a protected
individual (as defined in section 274B(a)(3) of such
Act (8 U.S.C. 1324b(a)(3)); and
(B) any foreign corporation, business association,
partnership, trust, society or any other entity or
group that is not incorporated or organized to do
business in the United States, as well as any
international organization, foreign government and any
agency or subdivision of foreign government, including
a diplomatic mission.
(3) Person.--
(A) In general.--The term ``person'' means--
(i) a natural person;
(ii) a corporation, business association,
partnership, society, trust, financial
institution, insurer, underwriter, guarantor,
and any other business organization, any other
nongovernmental entity, organization, or group,
and any governmental entity operating as a
business enterprise; and
(iii) any successor to any entity described
in clause (ii).
(B) Application to governmental entities.--The term
``person'' does not include a government or
governmental entity that is not operating as a business
enterprise.
(4) United states person.--The term ``United States person''
means--
(A) a natural person who is a national of the United
States (as defined in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(22))); and
(B) a corporation or other legal entity which is
organized under the laws of the United States, any
State or territory thereof, or the District of
Columbia, if natural persons described in subparagraph
(A) own, directly or indirectly, more than 50 percent
of the outstanding capital stock or other beneficial
interest in such legal entity.
SEC. 609. ELIMINATION OF CONSUMPTIVE DEMAND EXCEPTION TO PROHIBITION ON
IMPORTATION OF GOODS MADE WITH CONVICT LABOR,
FORCED LABOR, OR INDENTURED LABOR; REPORT.
(a) Elimination of Consumptive Demand Exception.--
(1) In general.--Section 307 of the Tariff Act of 1930 (19
U.S.C. 1307) is amended by striking ``The provisions of this
section'' and all that follows through ``of the United
States.''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect on the date that is 15 days after the date of
the enactment of this Act.
(b) Report Required.--Not later than 180 days after the date of the
enactment of this Act, and annually thereafter, the Commissioner shall
submit to the Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives a report on compliance
with section 307 of the Tariff Act of 1930 (19 U.S.C. 1307) that
includes the following:
(1) The number of instances in which merchandise was denied
entry pursuant to that section during the 1-year period
preceding the submission of the report.
(2) A description of the merchandise denied entry pursuant to
that section.
(3) Such other information as the Commissioner considers
appropriate with respect to monitoring and enforcing compliance
with that section.
SEC. 610. CUSTOMS USER FEES.
(a) In General.--Section 13031(j)(3) of the Consolidated Omnibus
Budget Reconciliation Act of 1985 (19 U.S.C. 58c(j)(3)) is amended by
adding at the end the following:
``(C) Fees may be charged under paragraphs (9) and (10) of subsection
(a) during the period beginning on July 8, 2025, and ending on July 28,
2025.''.
(b) Rate for Merchandise Processing Fees.--Section 503 of the United
States-Korea Free Trade Agreement Implementation Act (Public Law 112-
41; 125 Stat. 460) is amended--
(1) by striking ``For the period'' and inserting ``(a) In
General.--For the period''; and
(2) by adding at the end the following:
``(b) Additional Period.--For the period beginning on July 1, 2025,
and ending on July 14, 2025, section 13031(a)(9) of the Consolidated
Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c(a)(9)) shall
be applied and administered--
``(1) in subparagraph (A), by substituting `0.3464' for
`0.21'; and
``(2) in subparagraph (B)(i), by substituting `0.3464' for
`0.21'.''.
SEC. 611. REPORT ON CERTAIN U.S. CUSTOMS AND BORDER PROTECTION
AGREEMENTS.
(a) In General.--Not later than one year after entering into an
agreement under a program specified in subsection (b), and annually
thereafter until the termination of the program, the Commissioner shall
submit to the Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives a report that includes
the following:
(1) A description of the development of the program.
(2) A description of the type of entity with which U.S.
Customs and Border Protection entered into the agreement and
the amount that entity reimbursed U.S. Customs and Border
Protection under the agreement.
(3) An identification of the type of port of entry to which
the agreement relates and an assessment of how the agreement
provides economic benefits at the port of entry.
(4) A description of the services provided by U.S. Customs
and Border Protection under the agreement during the year
preceding the submission of the report.
(5) The amount of fees collected under the agreement during
that year.
(6) A detailed accounting of how the fees collected under the
agreement have been spent during that year.
(7) A summary of any complaints or criticism received by U.S.
Customs and Border Protection during that year regarding the
agreement.
(8) An assessment of the compliance of the entity described
in paragraph (2) with the terms of the agreement.
(9) Recommendations with respect to how activities conducted
pursuant to the agreement could function more effectively or
better produce economic benefits.
(10) A summary of the benefits to and challenges faced by
U.S. Customs and Border Protection and the entity described in
paragraph (2) under the agreement.
(b) Program Specified.--A program specified in this subsection is--
(1) the program for entering into reimbursable fee agreements
for the provision of U.S. Customs and Border Protection
services established by section 560 of the Department of
Homeland Security Appropriations Act, 2013 (division D of
Public Law 113-6; 127 Stat. 378); or
(2) the pilot program authorizing U.S. Customs and Border
Protection to enter into partnerships with private sector and
government entities at ports of entry established by section
559 of the Department of Homeland Security Appropriations Act,
2014 (division F of Public Law 113-76; 6 U.S.C. 211 note).
SEC. 612. CERTAIN INTEREST TO BE INCLUDED IN DISTRIBUTIONS UNDER
CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000.
(a) In General.--Notwithstanding any other provision of law, the
Commissioner shall include in all distributions of collected
antidumping and countervailing duties described in subsection (b) all
interest earned on such duties, including--
(1) interest accrued under section 778 of the Tariff Act of
1930 (19 U.S.C. 1677g),
(2) interest accrued under section 505(d) of the Tariff Act
of 1930 (19 U.S.C. 1505(d)), and
(3) common-law equitable interest, and all interest under
section 963 of the Revised Statutes of the United States (19
U.S.C. 580), awarded by a court against a surety's late payment
of antidumping or countervailing duties and interest described
in paragraph (1) or (2), under its bond,
which is, or was, realized through application of any payment received
on or after October 1, 2014, by U.S. Customs and Border Protection
under, or in connection with, any customs bond pursuant to a court
order or judgment, or any settlement for any such bond.
(b) Distributions Described.--The distributions described in
subsection (a) are all distributions made on or after the date of the
enactment of this Act pursuant to section 754 of the Tariff Act of 1930
(19 U.S.C. 1675c) (as such section was in effect on February 7, 2006)
of collected antidumping and countervailing duties assessed on or after
October 1, 2000, on entries made through September 30, 2007.
I. SUMMARY AND BACKGROUND
A. Purpose and Summary
The Trade Facilitation and Trade Enforcement Act of 2015
focuses on several critical aspects of the mission of U.S.
Customs and Border Protection (CBP) such as trade facilitation,
trade enforcement, security, and modernization, as well as
enhancing transparency and accountability within the agency.
Title I reaffirms CBP's trade facilitation and trade
enforcement missions through the establishment and
reauthorization of programs intended to streamline trade,
improve trade enforcement, and measure progress within CBP in
order to move the ever-increasing volume of legitimate trade
more efficiently and halt trade that does not comply with U.S.
laws.
CBP has existing partnership programs, such as the Customs-
Trade Partnership Against Terrorism (C-TPAT), a customs-trade
partnership program that allows for better risk assessment and
targeting. The partnership establishes supply chain criteria
for members to meet and in return, provides benefits like
expedited trade processing. To advance the security, trade
enforcement, and trade facilitation missions of CBP, this bill
requires CBP to ensure that any existing and future partnership
programs will provide meaningful trade benefits to members.
To increase accountability, the bill has numerous reporting
requirements for CBP on its trade enforcement, trade
facilitation, and revenue functions; establishes performance
measures for key CBP programs; and requires consultations with
Congress and the private sector to improve transparency.
The bill strengthens and establishes reporting requirements
for existing CBP trade facilitation and enforcement programs,
such as the Centers for Excellence and Expertise, the Automated
Commercial Environment (ACE), and the government-wide
International Trade Data System (ITDS).
To improve internal controls over importers and
accountability of brokers, the bill requires CBP to develop
criteria for assigning importer-of-record numbers, imposes
requirements on new importers, and requires brokers to collect
additional information on the identity of importers, with
penalties for failure to comply.
Title II would establish an interagency import safety
working group, led by the Department of Homeland Security, that
is tasked with developing an import safety rapid response plan
that establishes protocols and practices CBP should use when
responding to cargo that poses a threat to the health or safety
of U.S. consumers.
To strengthen CBP's enforcement of intellectual property
rights, Title III would authorize and direct CBP to share
information with right holders to quickly ascertain whether a
suspect good crossing the U.S. border at a port of entry
violates a copyright or trademark. It also authorizes a seizure
if CBP determines suspect merchandise is a circumvention device
and directs CBP to notify an injured right holder of this
seizure under certain circumstances. The bill further
establishes the National Intellectual Property Rights
Coordination Center within U.S. Immigration and Customs
Enforcement (ICE), imposes reporting requirements on CBP
enforcement efforts, and requires coordination with foreign and
domestic law enforcement.
Title IV establishes tools for CBP and holds the agency
accountable to effectively act against evasion of antidumping
and countervailing duties, and grants the U.S. Department of
Commerce authority to use its product, industry, and
investigatory expertise to investigate evasion of antidumping
and countervailing duties.
Title V provides additional enforcement tools for the
Administration. The bill would require the Administration to
identify enforcement priorities and more regularly consult with
Congress on its overall enforcement strategy. It would also
allow the Administration to reinstate a retaliatory action
under the auspices of the World Trade Organization, if such
action has previously terminated, under certain conditions. To
assist in tracking import volumes, the bill would require the
U.S. International Trade Commission to create a web-based
import-monitoring tool to provide data on the volume and value
of imports.
Title VI reduces paperwork burdens for low value shipments,
U.S. goods returned, residue of bulk cargo contained in
instruments of international traffic, and drawback. The bill
requires notification to Congress prior to the finalization of
any U.S. Department of Homeland Security (DHS) polices,
initiatives, or actions that will have a major impact on trade
and customs revenue functions, adds committing or conspiring to
commit an act of terrorism to the list of offenses as grounds
for removal of a broker license, establishes reporting
requirements for interagency programs led by the Office of the
United States Trade Representative (USTR), sets out U.S. policy
identifying the importance of the bilateral U.S.-Israel trade
relationship, eliminates the ``consumptive demand'' exception
to the prohibition on importing merchandise made by convict,
forced or indentured labor, and requires CBP to report annually
to Congress on each reimbursable fee agreement and public-
private partnership agreement entered into by CBP.
B. Background and Need for Legislation
Congress last reauthorized CBP's customs and trade
functions in the Trade Act of 2002. Pursuant to the Homeland
Security Act of 2002, which passed soon thereafter, the U.S.
Customs Service was placed under the new Department of Homeland
Security (DHS) and renamed ``United States Customs and Border
Protection.'' In this new structure, CBP was expanded to
include Border Patrol (formerly part of the Immigration and
Naturalization Service) and certain agricultural inspectors.
The investigative functions for enforcement of the customs laws
were put within the jurisdiction of the new Immigration and
Customs Enforcement (ICE) unit of DHS.
Prior to 2003, the Department of the Treasury chiefly
administered Title 19 of the United States Codes, which governs
customs revenue functions. Then-Secretary of the Treasury John
Snow issued Treasury Order 100-16 on May 15, 2003, which
delegated the majority of Title 19 customs revenue functions to
CBP. Treasury retained supervision of certain ``customs revenue
functions,'' as well as participation in advisory committees
concerning customs revenue functions.
Today CBP is responsible for ensuring cargo and passenger
clearance, compliance of imports and exports with U.S. laws,
collection of revenue, and prevention against the smuggling of
contraband and the illegal entry of persons. Since the attacks
of September 11, 2001, CBP has been managing a growing and
expansive set of security initiatives to screen and, as needed,
examine cargo with the principal objective of preventing the
introduction of weapons of mass destruction into the United
States. CBP has also significantly increased its vetting of
cargo and persons prior to arrival in the United States, based
on an analysis of risk posed, otherwise known as targeting.
Much of the risk-based targeting is done for security purposes,
but a growing volume is done for trade enforcement purposes.
CBP, tasked with securing our borders, also assists in
enforcing the import-related requirements of other Federal
agencies, including the U.S. Department of Agriculture (USDA),
Food and Drug Administration (FDA), Environmental Protection
Agency (EPA), and Consumer Product Safety Commission (CPSC).
With so much focus on security and trade enforcement, CBP
cannot lose sight of its function as an international trade
agency with the responsibility to facilitate trade to help U.S.
companies compete globally. The importance of striking this
critical balance between trade facilitation, trade enforcement,
and security leads to the need for legislation.
C. Legislative History
Background
H.R. 1907, to reauthorize trade facilitation and trade
enforcement functions and activities, and for other purposes,
was introduced on April 21, 2015, by Chairman Pat Tiberi,
Representative Kevin Brady, and Representative Charles Boustany
and was referred to the Committee on Ways and Means, Committee
on Homeland Security, Committee on Foreign Affairs, Committee
on Financial Services, and Committee on the Judiciary.
Committee hearings
On May 17, 2012, the Committee held a hearing on Customs
Trade Modernization, Facilitation and Enforcement. The hearing
focused on efforts to enhance economic growth and job creation
by facilitating legitimate trade, modernizing customs
procedures, and enforcing U.S. customs and trade laws. The
hearing was intended to help the Committee develop customs
reauthorization legislation.
Committee action
The Committee on Ways and Means marked up H.R. 1907, to
reauthorize trade facilitation and trade enforcement functions
and activities, and for other purposes, on April 23, 2015 and
ordered the bill, as amended, favorably reported by voice vote
(with a quorum being present).
II. EXPLANATION OF THE BILL
A. Trade Facilitation and Trade Enforcement Act of 2015
TITLE I--TRADE FACILITATION AND TRADE ENFORCEMENT
SECTION 101. IMPROVING PARTNERSHIP PROGRAMS
Present law
The Customs-Trade Partnership Against Terrorism (C-TPAT),
codified in the Security and Accountability for Every Port Act
(SAFE Port Act) of 2006 (6 U.S.C. 961 et seq.), is a voluntary
trade partnership program in which CBP and members of the trade
community work together to secure and facilitate the movement
of legitimate trade. Companies that are members of C-TPAT are
considered low-risk, which expedites cargo clearance based on
the company's security profile and compliance history.
Explanation of provisions
Section 101 requires the Commissioner of CBP to work with
the private sector and other Federal agencies to ensure that
all Agency partnership programs provide trade benefits to
participants. This would apply to partnership programs
established before enactment of this bill, and any programs
established after enactment. It establishes elements for the
development and operation of any such partnership programs,
which require the Commissioner to: 1) consult with private
sector entities, the public, and other Federal agencies when
appropriate, to ensure that participants receive commercially
significant and measurable trade benefits; 2) ensure an
integrated and transparent system of trade benefits and
compliance requirements for all CBP partnership programs; 3)
consider consolidating partnership programs in situations in
which doing so would support the objectives of such programs,
increase participation, enhance trade benefits, and enhance the
allocation of resources of CBP; 4) coordinate with the Director
of ICE, and other Federal agencies with authority to detain and
release merchandise; and 5) ensure that trade benefits are
provided to participants in partnership programs.
It further requires the Commissioner to submit to the
Committee on Finance of the Senate and the Committee on Ways
and Means of the House of Representatives a report that: 1)
identifies each partnership program; 2) for each program,
identifies the requirements for participation, benefits
provided to participants, the number of participants, and in
the case of a program that provides for participation at
multiple tiers, the number of participants at each such tier;
3) identifies the number of participants enrolled in more than
one program; 4) assesses the effectiveness of each program in
advancing the security, trade enforcement, and trade
facilitation missions of CBP; 5) summarizes CBP's efforts to
work with other Federal agencies to detain and release
merchandise entering the United States to ensure that
partnership programs of those agencies are compatible with CBP
partnership programs; 6) summarizes criteria developed with
those agencies for authorizing the release, on an expedited
basis, for merchandise for which documentation is required from
one or more of those agencies to clear or license the
merchandise for entry into the United States; 7) summarizes CBP
efforts to work with the private sector and the public to
develop partnership programs; 8) describes measures taken by
CBP to make the private sector aware of trade benefits
available to participants in partnership programs; and 9)
summarizes CBP's plans, targets, and goals with respect to
partnership programs for the two years following submission of
the report.
Reasons for change
This section reinforces that any voluntary partnership
programs that require participants to dedicate significant time
and resources to provide CBP with the ability to conduct risk-
based targeting to secure supply chains must provide meaningful
trade benefits to participants, such as expedited clearance of
merchandise.
The Committee believes that close and continuous
consultation with private sector entities, other Federal
agencies when appropriate, and Congress will help to ensure
that participants in partnership programs receive commercially
significant and measurable trade benefits, including pre-
clearance of merchandise for qualified persons that demonstrate
the highest levels of compliance with the customs and trade
laws of the United States, and other requirements deemed
necessary by the Commissioner. Through such incentives,
companies are encouraged to join, saving considerable CBP
resources while improving security because CBP is able to
dedicate those resources to traders who have not been pre-
cleared.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 102. REPORT ON EFFECTIVENESS OF TRADE ENFORCEMENT ACTIVITIES
Present law
No provision.
Explanation of provisions
Section 102(a) requires the Comptroller General of the
United States to submit a report on the effectiveness of trade
enforcement activities of CBP to the Senate Committee on
Finance and the House Committee on Ways and Means, no later
than one year after the date of enactment the bill.
Section 102(b) establishes that the report shall include 1)
a description of the use of resources, results of audits and
verifications, targeting, organization, and training of CBP
personnel; and 2) a description of trade enforcement activities
to address undervaluation, transshipment, legitimacy of
entities making entry, protection of revenue, fraud prevention
and detection, and penalties, including intentional
misclassification, inadequate bonding, and other
misrepresentations.
Reasons for change
The Committee believes that an independent review of the
effectiveness of CBP's trade enforcement activities will allow
the Committee to better understand the resources within CBP
that could be more effectively utilized to enhance the trade
enforcement activities of CBP.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 103. PRIORITIES AND PERFORMANCE STANDARDS FOR CUSTOMS
MODERNIZATION, TRADE FACILITATION, AND TRADE ENFORCEMENT FUNCTIONS AND
PROGRAMS
Present law
No provision.
Explanation of provisions
Section 103(a) directs the Commissioner of Customs to
consult with the Senate Committee on Finance and the House
Committee on Ways and Means to establish priorities and
performance standards to measure the development and levels of
achievement of the customs modernization, trade facilitation,
and trade enforcement functions of the programs described in
section 103(b). The bill requires that the priorities and
performance standards shall, at a minimum, include priorities
and performance standards relating to efficiency, outcome,
output, and other types of applicable measures.
Section 103(b) establishes the functions and programs to
which section 103(a) applies: 1) the Automated Commercial
Environment; 2) each of the priority trade issues described in
section 111(a) of this Act; 3) the Centers of Excellence and
Expertise; 4) drawback; 5) transactions relating to imported
merchandise in bond; 6) the collection of antidumping and
countervailing duties assessed; 7) the expedited clearance of
cargo; 8) the issuance of regulations and rulings; and 9) the
issuance of Regulatory Audit Reports.
Section 103(c) requires that the consultations with the
Senate Committee on Finance and the House Committee on Ways and
Means occur, at a minimum, on an annual basis, and requires the
Commissioner to notify the Committees of any changes to the
priorities referred to in Section 103(a) no later than 30 days
before such changes are to take effect.
Reasons for change
The Committee believes that requiring CBP to regularly
consult with Congress on priority trade programs, issues, and
functions is critical to maintaining a high level of
transparency and achievement in customs modernization, trade
facilitation, and trade enforcement.
Effective date
The amendments made by this section shall take effect the
date of enactment of this Act.
SECTION 104. EDUCATIONAL SEMINARS TO IMPROVE EFFORTS TO CLASSIFY AND
APPRAISE IMPORTED ARTICLES TO IMPROVE TRADE ENFORCEMENT EFFORTS, AND TO
OTHERWISE FACILITATE LEGITIMATE INTERNATIONAL TRADE
Present law
No provision.
Explanation of provisions
Section 104(a) requires the Commissioner of CBP and the
Director of ICE to establish and carry out educational seminars
for CBP port personnel and ICE agents to improve their ability
to classify and appraise imported merchandise, improve trade
enforcement efforts, and otherwise improve the ability and
effectiveness of CBP and ICE to facilitate legitimate trade.
Section 104(b) establishes that these seminars shall
include instruction on conducting physical inspections of
merchandise, including testing of samples; reviewing the
manifest and accompanying documentation to determine country of
origin; customs valuation; industry supply chains; collection
of antidumping and countervailing duties; addressing evasion of
duties on imports of textiles; protection of intellectual
property rights; and the enforcement of child labor laws.
Section 104(c) directs the Commissioner to establish a
process to solicit, evaluate and select interested parties in
the private sector to assist in providing instruction.
Section 104(d) directs the Commissioner to give special
consideration to carrying out educational seminars dedicated to
improving the ability of CBP to enforce antidumping and
countervailing duty orders upon the request of a petitioner.
Section 104(e) requires the Commissioner and the Director
to establish performance standards to measure the development
and level of achievement of educational seminars under this
section.
Section 104(f) requires the Commissioner and the Director
to submit an annual report to the Senate Committee on Finance
and the House Committee on Ways and Means on the effectiveness
of the educational seminars.
Reasons for change
The Committee believes that these particular trade
enforcement and trade facilitation functions within CBP and ICE
require continuous education due to the evolving nature of
trade. CBP officers at the border are on the front lines and
require the most current information and trade developments at
their fingertips. The Committee further believes CBP and ICE
have worked well together to provide education when possible,
but notes that valuable private sector expertise can and should
be utilized to reinforce this education.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 105. JOINT STRATEGIC PLAN
Present law
No provision.
Explanation of provisions
Section 105(a) requires the Commissioner of CBP and the
Director of ICE to create and submit to the Senate Committee on
Finance and the House Committee on Ways and Means a biennial
joint strategic plan on trade facilitation and trade
enforcement.
Section 105(b) requires the joint strategic plan to contain
a comprehensive plan for trade facilitation and trade
enforcement that includes: 1) a summary of the actions taken
during the 2-year period preceding submission of the plan to
improve trade facilitation and trade enforcement; 2) a
statement of objectives and plans for further improving trade
facilitation and trade enforcement; 3) a specific
identification of priority trade issues that can be addressed
to enhance trade enforcement and trade facilitation; 4) a
description of efforts made to improve consultation and
coordination among and within Federal agencies; 5) a
description of training that has occurred within CBP and ICE to
improve trade enforcement and trade facilitation; 6) a
description of efforts to work with the World Customs
Organization and other international organizations with respect
to enhancing trade facilitation and trade enforcement; 7) a
description of CBP organizational benchmarks for optimizing
staffing and wait times at ports of entry; 8) a specific
identification of any domestic or international best practices
that may further improve trade enforcement and trade
facilitation; 9) any legislative recommendations to further
improve trade facilitation and trade enforcements; and 10) a
description of efforts to improve consultation and coordination
with the private sector to enhance trade facilitation and trade
enforcement.
Section 105(c) requires the Commissioner and the Director
to consult with the appropriate Federal agencies and
appropriate officials from relevant law enforcement agencies,
international organizations, and interested parties in the
private sector.
Reasons for change
The Committee believes that a biennial joint strategic plan
co-produced by CBP and ICE on efforts to enhance trade
facilitation and trade enforcement functions will foster
accountability to Congress and the private sector in these
critical areas.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 106. AUTOMATED COMMERCIAL ENVIRONMENT
Present law
Section 411 of the Tariff Act of 1930 requires the
Secretary of Treasury to establish the National Customs
Automation Program, an automated and electronic system for
processing commercial importations.
Section 13031(f)(4)(B) of the Consolidated Omnibus Budget
Reconciliation Act of 1985 provides an authorization for
appropriations from the Customs Commercial and Homeland
Security Automation Account in fiscal years 2003 through 2005
such amounts as are available in that Account for the
development, establishment, and implementation of the Automated
Commercial Environment (ACE) computer system for the processing
of merchandise that is entered or released and for other
purposes related to the functions of the Department of Homeland
Security.
Section 311(b)(3) of the Customs Border Security Act of
2002 requires the Commissioner of Customs to prepare and submit
to the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate a
report demonstrating that the development and establishment of
the Automated Commercial Environment computer system is being
carried out in a cost-effective manner and meets the
modernization requirements of title VI of the North American
Free Trade Agreement Implementation Act.
Explanation of provisions
Section 106(a) amends Section 13031(f)(4)(B) of the
Consolidated Omnibus Budget Reconciliation Act of 1985 to
update fiscal years 2003 through 2005 to fiscal years 2016
through 2018, to update the amount to be allocated to ACE to
``not less than $153,736,000,'' and to make clear that these
funds shall be used to complete the development and
implementation of ACE.
Section 106(b) amends Section 311(b)(3) of the Customs
Border Security Act of 2002 to require two reports from the
Commissioner in regards to ACE. The Commissioner is required to
submit a report no later than December 31, 2016 to the Senate
Appropriations Committee and Finance Committee, and the House
of Representatives Appropriations Committee and Ways and Means
Committee, updates on the implementation of ACE, incorporation
of all core trade processing capabilities, components that have
not been implemented, and additional components needed to
realize the full implementation and operation of the program.
The Commissioner is required to submit a second report no later
than September 30, 2017 providing updates to the relevant
Congressional committees from the prior report, as well as
evaluations on the effectiveness of implementation of ACE and
details of the percentage of trade processed in ACE every month
since September 30, 2016.
Section 106(c) directs the Comptroller General of the
United States to submit a report to the Senate Appropriations
Committee and Finance Committee, and House of Representatives
Appropriations Committee and Ways and Means Committee,
assessing the progress of other Federal agencies in accessing
and utilizing ACE and identifying potential cost savings to the
U.S. government, importers, and exporters upon full
implementation and utilization of ACE.
Reasons for change
ACE has been under development for many years, and the
Committee notes with approval that CBP has greatly improved its
development and implementation efforts, establishing a deadline
for completing the development and implementation of the
program. The Committee believes it is important for CBP to have
the funds necessary to complete the development and that it
should have these funds available through the implementation
stage. Further, despite recent progress in the development of
ACE core processing capabilities, the Committee believes that a
reporting requirement will make CBP accountable to the
Committee, and other relevant committees, to fully implement
ACE with the funds that are authorized, and to provide a
detailed explanation of components, if any, that are incomplete
and the reasons why.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 107. INTERNATIONAL TRADE DATA SYSTEM
Present law
Section 411(d) of the Tariff Act of 1930 requires the
Secretary of the Treasury to oversee the establishment of an
electronic trade data interchange system, known as the
International Trade Data System (ITDS). It further requires
ITDS to be implemented no later than the date that ACE is fully
implemented and mandates the participation of all federal
agencies that require documentation for clearing or licensing
cargo imports or exports.
Explanation of provisions
Section 107 amends section 411(d) of the Tariff Act of 1930
to require the Secretary of Homeland Security to work with the
head of each Federal agency participating in ITDS and the
Interagency Steering Committee to ensure that each agency: 1)
develops and maintains the necessary information technology
infrastructure to support the operation of ITDS and to submit
all data to ITDS electronically; 2) enters into a memorandum of
understanding to provide information sharing between the agency
and CBP for the operation and maintenance of ITDS; 3)
identifies and transmits admissibility criteria and data
elements required by the agency to authorize the release of
cargo by CBP for incorporation into ACE, no later than June 30,
2016; and 4) utilizes ITDS as the primary means of receiving
the standard set of data and other relevant documentation from
users, no later than December 31, 2016.
Reasons for change
The Committee believes that customs is the engine of trade,
and therefore the engine of a prosperous economy. To most
efficiently facilitate legitimate trade and effectively enforce
the trade laws of the United States, relevant agencies across
the government must improve the technologies and policies
governing the movement of goods across our borders. In
particular, the Committee believes that these agencies must
improve efforts to complete the development of ITDS to expedite
the flow of information between agencies and modernize agency
interaction with traders.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 108. CONSULTATIONS WITH RESPECT TO MUTUAL RECOGNITION
ARRANGEMENTS
Present law
No provision.
Explanation of provisions
Section 108(a) requires the Secretary of Homeland Security
to consult with the Senate Committee on Finance and the House
Committee on Ways and Means at least thirty days before the
initiation of mutual recognition arrangement negotiations and
at least thirty days before entering into any mutual
recognition arrangement.
Section 108(b) requires that the United States have as a
negotiating objective in any negotiation for a mutual
recognition arrangement with a foreign country on partnership
programs to seek to ensure the compatibility of the foreign
country's partnership program with the partnership programs of
CBP in order to enhance trade facilitation and trade
enforcement.
Reasons for change
Mutual recognition arrangements of customs partnership
programs have historically been entered into with minimal, if
any, consultations with Congress. The Committee believes it is
important that it be apprised of any plans to enter into
negotiations with foreign countries given the Committee's
oversight responsibilities.
Furthermore, mutual recognition arrangements have primarily
been based on security components, and have not delivered trade
facilitation benefits to participants in the partnership
programs. This section will make it a requirement for mutual
recognition arrangements to enhance security, trade
enforcement, and trade facilitation.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 109. COMMERCIAL CUSTOMS OPERATIONS ADVISORY COMMITTEE
Present law
The Advisory Committee on Commercial Operations (COAC) of
the United States Customs Service was established in the
Omnibus Budget Reconciliation Act of 1987. The Department of
the Treasury Order No. 100-16, effective May 23, 2003,
specified that COAC would be administered jointly by the
Department of the Treasury and Department of Homeland Security.
Explanation of provisions
Section 109(a) requires the Secretary of the Treasury and
the Secretary of Homeland Security to jointly establish a
Commercial Customs Operations Advisory Committee (COAC).
Section 109(b) requires that COAC be comprised of 20
appointed individuals from the private sector, appointed
without regard to political affiliation; the Commissioner of
CBP and the Assistant Secretary of Treasury for Tax Policy, who
shall co-chair meetings; and the Assistant Secretary for Policy
of the Department of Homeland Security and the ICE Director,
who shall serve as deputy co-chairs of meetings. Section 109(b)
further requires that appointed private sector individuals be
representative of individuals and firms affected by the
commercial operations of CBP, and provides that individuals may
be appointed to multiple 3-year terms but cannot serve more
than two terms sequentially. The Secretaries of the Treasury
and Homeland Security are authorized to transfer members to the
COAC who are currently serving on the Advisory Committee on
Commercial Operations of the United States Customs Service.
Section 109(c) establishes the duties of COAC, which shall
be to: 1) advise the Secretaries of the Treasury and Homeland
Security on all matters involving the commercial operations of
CBP and the investigations of ICE; 2) provide recommendations
to the Secretaries on improvements that CBP and ICE should make
to their commercial operations and investigations; 3)
collaborate in developing the agenda for COAC meetings; and 4)
perform other functions relating to the commercial operations
of CBP and the investigations of ICE as prescribed by law or as
directed by the Secretaries.
Section 109(d) establishes that 1) COAC shall meet at the
call of the Secretary of the Treasury, the Secretary of
Homeland Security, or two-thirds of the membership of COAC; 2)
COAC shall meet at least four times each calendar year; and 3)
that COAC meetings shall be open to the public unless the
Secretary of the Treasury or the Secretary of Homeland Security
determines that the meeting will include matters the disclosure
of which would compromise the development of policies,
priorities, or negotiating objectives or positions that could
impact the commercial operations of CBP of the operations or
investigations of ICE.
Section 109(e) requires COAC to submit an annual report to
the Senate Committee on Finance and the House Committee on Ways
and Means that describes the activities of COAC during the
preceding fiscal year and sets forth any recommendations of
COAC regarding the commercial operations of CBP.
Section 109(f) establishes that Section 14(a)(2) of the
Federal Advisory Committee Act, relating to the termination of
advisory committees, shall not apply to COAC.
Reasons for change
This section codifies and expands the role of COAC, which
the Committee believes to be a valuable entity. As expert
advisors to the Secretaries of the Treasury and Homeland
Security on all matters involving the commercial operations of
CBP and the investigations of ICE, COAC provides
recommendations to the Secretaries on improvements that CBP and
ICE should make to their commercial operations and
investigations. COAC is an established mechanism through which
CBP and ICE can receive critical input from the business
community, and the Committee believes that it is important for
the agencies to have a structured system for receiving such
input from their customers.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 110. CENTERS FOR EXCELLENCE AND EXPERTISE
Present law
No provision.
Explanation of provisions
Section 110(a) requires the Commissioner to develop and
implement, in consultation with the Senate Committee on
Finance, the House Committee on Ways and Means, and the COAC
established by section 109(a), Centers of Excellence and
Expertise (CEE) throughout CBP that: 1) enhance the economic
competitiveness of the United States; 2) improve enforcement
efforts; 3) build upon CBP expertise in particular industry
operations, supply chains, and compliance requirements; 4)
promote the uniform implementation at each port of entry of
policies and regulations relating to imports; 5) centralize the
trade enforcement and trade facilitation efforts of CBP; 6)
formalize an account-based approach to the importation of
merchandise into the United States; 7) foster partnerships
through the expansion of trade programs and other trusted
trader programs; 8) develop applicable performance measures to
meet internal efficiency and effectiveness goals; and 9) when
feasible, facilitate a more efficient flow of information
between Federal agencies.
Section 110(b) requires the Commissioner to submit a report
to the Senate Committee on Finance and the House Committee on
Ways and Means no later than December 31, 2016 describing the
scope, functions and structure of the CEEs; the effectiveness
of the CEEs in improving enforcement efforts; the benefits to
the trade community; applicable performance measurements; the
performance of each CEE in facilitating trade; and any planned
changes to the CEEs.
Reasons for change
The Committee believes that security and facilitation are
two sides of the same coin. CBP is able to secure and
facilitate legitimate trade, while taking a risk-based approach
to enforcement, allowing it to focus on security and
enforcement without compromising trade facilitation. The
Committee believes that the CEEs allow CBP to focus on
accounts, rather than transactions, and segment risk
accordingly.
The CEEs also allow CBP to increase industry-specific
knowledge to build upon CBP expertise in particular industry
operations and supply chains. Not only does this facilitate
trade, but it also equips CBP with the knowledge needed to
target illegitimate trade. The Committee believes that the CEEs
will improve CBP's enforcement efforts and centralize CBP
decision-making. All of these improvements are necessary to
support the ever-increasing volume of trade without draining
CBP resources.
Another critical value-added of the CEEs is that they will
help to prevent so-called ``port shopping,'' in which importers
whose shipments are rejected by one port simply ship their
products to another port of entry. The existence of
centralized, industry and account-focused centers throughout
CBP will raise awareness and ability to target such behavior
more effectively.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 111. COMMERCIAL TARGETING DIVISION AND NATIONAL TARGETING AND
ANALYSIS GROUPS
Present law
No provision.
Explanation of provisions
Section 111(a) requires the Secretary of Homeland Security
to establish and maintain a Commercial Targeting Division (CTD)
within CBP's Office of International Trade. The CTD shall be
comprised of headquarters staff led by an Executive Director,
and individual National Targeting and Analysis Groups (NTAGs)
led by Directors reporting to the Executive Director. The CTD
shall develop and conduct commercial targeting with respect to
cargo destined for the United States.
At a minimum, there shall be an NTAG established for the
following priority trade issues (PTI): 1) agricultural
programs; 2) antidumping and countervailing duties; 3) import
safety; 4) intellectual property rights; 5) revenue; 6)
textiles and wearing apparel; and 7) trade agreements and
preference programs. The Commissioner may modify the PTIs in
consultation with the Committee on Finance of the Senate and
the Committee on Ways and Means of the House of
Representatives. The duties of each NTAG shall include
directing trade enforcement and compliance assessments of
activities of CBP and serving as the primary liaison between
CBP and the public for issues that relate to the PTIs.
Section 111(a) also requires the CTD to establish
methodologies for assessing the risk that imports may violate
U.S. customs and trade laws and to issue trade alerts when the
CTD determines cargo may violate such laws; assess the risk of
cargo based on all information available to CBP through the
Automated Targeting System, ACE, the Automated Entry System,
ITDS, and TECS (formerly known as the ``Treasury Enforcement
Communications System'') or any successor systems and publicly
available information; and, use information provided by private
sector entities and coordinate targeting efforts with other
Federal agencies.
Section 111(a) further authorizes the Executive Director of
the CTD and NTAG Directors to issue trade alerts to port
directors when such person determines cargo may violate U.S.
customs and trade laws. The trade alert may direct further
inspection or physical examination or testing of merchandise by
the port personnel if certain risk-assessment thresholds are
met. A port director may determine not to carry out the
direction of the trade alerts if the port director finds
security interests justify such determination, and the port
director notifies the Assistant Commissioners of the Office of
Field Operations and the Office of International Trade of such
determination. The Assistant Commissioner of the Office of
Field Operations must compile an annual report of all
determinations by port directors to override trade alerts and
include an evaluation of the utilization of trade alerts. This
report must be submitted to the Committee on Finance of the
Senate and the Committee on Ways and Means of the House of
Representatives not later than December 31 each year.
Section 111(b) amends section 343(a)(3)(F) of the Trade Act
of 2002 to establish that the information collected pursuant to
regulations shall be used exclusively for ensuring cargo safety
and security, prevent smuggling, and commercial risk assessment
targeting, and shall not be used for any commercial enforcement
purposes, including for determining merchandise entry.
Reasons for change
The Committee believes that effective commercial targeting
is critical to CBP's overall targeting and enforcement efforts.
Targeting undoubtedly has a security angle, but it has a
crucial trade enforcement angle as well. The codification of
the priority trade issues in this section makes this clear, by
establishing agricultural programs, antidumping and
countervailing duties, import safety, intellectual property
rights, revenue, textiles and wearing apparel, and trade
agreements, and preference programs as key areas in which CBP
must focus its trade targeting efforts. Targeting for trade
enforcement purposes allows CBP to develop knowledge of
patterns and issues that arise in the flow of importations into
the United States in order to sufficiently target high-risk
trade that is dangerous, infringing, or otherwise failing to
comply with the customs and trade laws of the United States,
and to protect the revenue of the United States.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 112. REPORT ON OVERSIGHT OF REVENUE PROTECTION AND ENFORCEMENT
MEASURES
Present law
No provision.
Explanation of provisions
Section 112(a) requires the Inspector General of the
Department of the Treasury to submit a report, not later than
March 31, 2016 and biennially thereafter, to the Senate
Committee on Finance and the House Committee on Ways and Means
that assesses the effectives of the measures taken by CBP with
respect to protection of the revenue and to measure
accountability and performance with respect to protection of
the revenue.
Section 112(b) establishes that each report required by
section 112(a) shall cover the period of two fiscal years
ending on September 30 of the calendar year preceding the
submission of the report.
Reasons for change
This report will keep the Committee apprised of measures
taken by CBP to protect the revenue, particularly with regard
to efforts to collect antidumping and countervailing duties
owed. The Committee believes that a regular report of this
nature will serve to improve CBP's collection efforts and
educate the Committee on CBP's efforts.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 113. REPORT ON SECURITY AND REVENUE MEASURES WITH RESPECT TO
MERCHANDISE TRANSPORTED IN BOND
Present law
No provision.
Explanation of provisions
Section 113(a) requires the Secretaries of Homeland
Security and the Treasury to jointly submit a report to the
Senate Committee on Finance and the House Committee on Ways and
Means on efforts undertaken by CBP to ensure the secure
transportation of merchandise in bond through the United States
and the collection of revenue owed upon the entry of such
merchandise into the United States for consumption. The report
must be submitted no later than December 31 of 2016, 2017, and
2018.
Section 113(b) requires that each report required by
section 113(a) shall include information on: 1) the overall
number of entries of merchandise for transportation in bond
through the United States; 2) the ports at which merchandise
arrives in the United States for transportation in bond and at
which records of arrival of such merchandise are generated; 3)
the average time taken to reconcile such records with the
records at the final destination of merchandise in the United
States to demonstrate that the merchandise reaches its final
destination or is re-exported; 4) the average time taken to
transport merchandise in bond from the port at which the
merchandise arrives in the United States to its final
destination in the United States; 5) the total amount of
duties, taxes, and fees owed with respect to shipments of
merchandise transported in bond and the total of such duties,
taxes, and fees paid; 6) the total number of notifications by
carriers of merchandise being transported in bond that the
destination of merchandise has changed; and 7) the number of
entries that remain unreconciled.
Reasons for change
In bond shipments to and within the United States are
shipments that are not to enter into the United States for
consumption. Because they are not to enter into the commerce of
the United States, duties and taxes are not owed upon these
shipments. Given the nature of in bond shipments transported
through the United States, there has historically been little
to no monitoring of these shipments to determine whether they
in fact do enter the commerce of the United States. The lack of
oversight and heightened risk for fraud has been a source of
concern for the Committee. This report will keep the Committee
apprised of measures taken by CBP to collect revenue owed upon
entry of merchandise transported in bond through the United
States and encourage a higher level of CBP oversight over
merchandise transported in bond.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 114. IMPORTER OF RECORD PROGRAM
Present law
No provision.
Explanation of provisions
Section 114(a) requires the Secretary of Homeland Security
to establish an importer of record program to assign and
maintain importer of record numbers.
Section 114(b) requires the Secretary to ensure that CBP
develops criteria that importers must meet in order to obtain
an importer of record number, provides a process by which
importers are assigned importer of record numbers, maintains a
centralized database of importer of record numbers, evaluates
and maintains accuracy of the database if importer information
changes, and takes measures to ensure that duplicate importer
of record numbers are not issued.
Section 114(c) requires the Secretary of Homeland Security
to submit a report to the Senate Committee on Finance and the
House Committee on Ways and Means on the establishment of the
importer of record program no later than one year after
enactment of the Trade Facilitation and Trade Enforcement Act
of 2015.
Reasons for change
The Committee believes that CBP must do a better job of
creating and maintaining records of importers. A new program
dedicated to recording and tracking importers will allow CBP to
improve its enforcement and facilitation efforts by giving it
the knowledge needed to effectively pursue a risk-based
strategy for enforcement.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 115. ESTABLISHMENT OF NEW IMPORTER PROGRAM
Present law
No provision.
Explanation of provisions
Section 115(a) requires the Commissioner to establish a new
importer program that directs CBP to adjust bond amounts for
new importers based on the level of risk assessed by CBP for
revenue protection.
In establishing this program, section 115(b) requires CBP
to 1) develop risk-based criteria to assess new importers; 2)
develop risk assessment guidelines for new importers to
determine if and to what extent to adjust the bond amounts and
increase screening of imports of new importers; 3) develop
procedures to ensure increased oversight of imported products
of new importers relating to the enforcement of priority trade
issues; 4) develop procedures to ensure increased oversight by
Centers of Excellence and Expertise; and 5) establish a
centralized database of new importers to ensure the accuracy of
information provided by new importers pursuant to the
requirements of this section.
Reasons for change
The Committee believes that CBP can do a better job of
knowing its customers in order to more effectively enforce the
customs and trade laws of the United States. A new importer
program will give CBP the tools to increase oversight of new
importers, and to develop risk-based criteria to assess threat
levels of new importers. The Committee believes that these
steps will streamline CBP's trade facilitation and trade
enforcement efforts. By developing guidelines to screen higher
risk new importers, CBP can more effectively facilitate
legitimate trade.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 116. CUSTOMS BROKER IDENTIFICATION OF IMPORTERS
Present law
Section 641 of the Tariff Act of 1930 establishes
requirements and procedures for customs brokers in acquiring a
license or permit, disciplinary proceedings, and judicial
appeals of revocation or suspension of a broker's license.
Explanation of provisions
Section 116(a) amends section 641 of the Tariff Act of 1930
by inserting a new provision that requires the Secretary of
Homeland Security to prescribe regulations setting minimum
standards for customs brokers and importers regarding the
identity of the importer. The regulations shall, at a minimum,
require customs brokers and importers, upon adequate notice, to
comply with procedures for collecting the identity of
importers, including nonresident importers, seeking to import
merchandise into the United States, and maintain records of the
information used to substantiate a person's identity. This
section further provides that a customs broker will be
penalized, at the discretion of the Secretary, in an amount not
exceeding $10,000 for each violation of the regulations
concerning the collection and maintenance of importer's
identity and identifying information, and the broker's license
or permit will be subject to revocation or suspension, pursuant
to procedures established in section 641(d) of the Tariff Act
of 1930.
Section 116(b) requires the Commissioner to submit a report
to Congress no later than 180 days after enactment of this bill
containing recommendations for determining the most timely and
effective way to require foreign nationals to provide customs
brokers with appropriate and accurate information (comparable
to that which is required of United States nationals concerning
the identity, address and other related information), and for
establishing a system for customs brokers to review information
maintained by relevant Federal agencies for purposes of
verifying the identities of importers, including nonresident
importers, seeking to import merchandise into the United
States.
Reasons for change
Much like CBP should know its customers, a customs broker
must know its customer. This provision requires the Department
of Homeland Security to write regulations that would require
customs brokers to collect information on the identity of
importers, with penalties for failure to comply. The Committee
believes that it is incumbent on a broker to know exactly on
whose behalf it is acting, and to be held accountable for
failure to substantiate a customer's identity. While the
Committee is cognizant that this will require due diligence by
the broker and could potentially impact a broker's business,
the Committee believes that the benefit to the broker and the
government is far outweighed by any change in business
practices. Furthermore, the Committee believes that the penalty
for a violation of this section is necessary to hold brokers
accountable to the requirements of this section, and that it is
equitable because the Secretary of Homeland Security has the
discretion to impose such a penalty under circumstances deemed
appropriate.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 117. REQUIREMENTS APPLICABLE TO NON-RESIDENT IMPORTERS
Present law
No provision.
Explanation of provisions
Section 117 amends Part III of title IV of the Tariff Act
of 1930 to insert a new provision (section 484c) on
requirements applicable to non-resident importers. If an
importer of record is not a resident of the United States, CBP
shall require the non-resident importer to designate a resident
agent in the United States that shall be authorized to accept
service of process against the non-resident importer in
connection with the importation of merchandise. CBP shall
require the non-resident importer to establish power of
attorney with the resident agent in connection with the
importation of merchandise. The requirements of this section
shall in no case apply to a non-resident importer who is a
validated Tier 2 or Tier 3 C-TPAT member. This section further
establishes that any person who violates the requirements of
this section shall be liable for a civil penalty of $50,000 for
each such violation, and that any violation of this section
that violates any other customs and trade laws of the United
States shall be subject to any applicable civil and criminal
penalty, including seizure and forfeiture, that may be imposed
under such customs or trade laws or Title 18 of the United
States Code.
Reasons for change
This section requires CBP to collect additional information
and levy financial requirements on ``nonresident importers'' to
increase revenue protection. The Committee believes that the
imposition of strict requirements on non-resident importers is
necessary to combat the problems posed by foreign importers
that disappear when the time comes to pay duties or penalties
owed. The Committee also takes into account that some non-
resident importers are validated members of C-TPAT, and
therefore should not be subject to the requirements of this
section.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act and apply with respect to the
importation of merchandise of an importer of record under
section 484 of the Tariff Act of 1930 who is not resident of
the United States on or after the date that is 180 days after
such date of enactment.
TITLE II--IMPORT HEALTH AND SAFETY
SECTION 201. INTERAGENCY IMPORT SAFETY WORKING GROUP
Present law
No provision.
Explanation of provisions
Section 201(a) establishes an Interagency Import Safety
Working Group.
Section 201(b) sets forth the membership of the Working
Group and designates the Secretary of Homeland Security as the
Chair and the Secretary of Health and Human Services as the
Vice-Chair. The membership of the Working Group also shall
include the Secretaries of the Treasury, Commerce and
Agriculture; the United States Trade Representative; the
Director of the Office of Management and Budget; the
Commissioners of CBP and the Food and Drug Administration; the
Chairman of the Consumer Product Safety Commission; the
Director of ICE; and the head of any other Federal agency
designated by the President to participate.
Section 201(c) requires the Working Group to (1) consult on
the development of a joint import safety rapid response plan
required under section 202 of the bill; (2) evaluate federal
government and agency resources, plans, and practices to ensure
the safety of U.S. imports and the expeditious entry of such
merchandise; (3) review the engagement and cooperation of
foreign governments and foreign manufacturers; (4) identify
best practices, in consultation with the private sector, to
assist U.S. importers in ensuring import health and safety of
imported merchandise; (5) identify best practices to improve
Federal, state, and local coordination in responding to import
health and safety threats; and (6) identify appropriate steps
to improve domestic accountability and foreign government
engagement with respect to imports.
Reasons for change
The Committee believes that addressing import health and
safety concerns requires pooling the resources and expertise of
the numerous Federal agencies designated to participate in the
import safety working group.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 202. JOINT IMPORT SAFETY RAPID RESPONSE PLAN
Present law
No provision.
Explanation of provisions
Section 202(a) requires the Secretary of Homeland Security,
in consultation with the Working Group, to develop and review a
joint import safety rapid response plan (the Plan) that
establishes protocols and practices CBP should use when
responding to cargo that poses a threat to the health or safety
of U.S. consumers.
Section 202(b) sets forth the contents of the Plan, which
must define (1) the responsibilities of CBP and other Federal
agencies in responding to an import health and safety threat;
(2) the protocols and practices used in responding to such
threats; (3) the mitigation measures CBP must take when
responding to such threats after the incident to ensure the
resumption of the entry of merchandise into the United States;
and (4) exercises CBP should take with Federal, State, and
local agencies as well as the private sector to simulate
responses to such threats.
Section 202(c) requires the Secretary of Homeland Security
to review and update the joint import safety rapid response
plan, as appropriate, after conducting exercises under
subsection (d).
Section 202(d) requires the Commissioner, in conjunction
with Federal, state, and local agencies, to conduct exercises
to test the Plan. When conducting exercises, the Commissioner
must make allowances for the specific needs of the port where
the exercise is occurring, base evaluations on current import
risk assessments, and ensure that the exercises are conducted
consistent with other national preparedness plans. The
Secretary of Homeland Security and Commissioner must ensure
that the testing and evaluations use performance measures in
order to identify best practices and recommendations in
responding to import health and safety threats and develop
metrics with respect to the resumption of the entry of
merchandise into the United States. Best practices and
recommendations should then be shared among relevant
stakeholders and incorporated into the Plan.
Reasons for change
The Committee believes that CBP should have an established
plan and protocols in place, prepared with the expertise and
resources of partner Federal agencies, to use when responding
to cargo that poses a threat to the health and safety of U.S.
consumers. The Committee further believes that testing this
plan with Federal, state, and local agencies will ensure that
CBP is prepared to address threats immediately and effectively
as they arise.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 203. TRAINING
Present law
No provision.
Explanation of provisions
Section 203 requires the Commissioner to ensure that CBP
port personnel are trained to effectively enforce U.S. import
health and safety laws.
Reasons for change
The Committee believes that CBP personnel should be
educated and trained to effectively enforce U.S. import health
and safety laws.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
TITLE III--IMPORT-RELATED PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
SECTION 301. DEFINITION OF INTELLECTUAL PROPERTY RIGHTS
Present law
No provision.
Explanation of provisions
Section 301 defines ``intellectual property rights'' as
copyrights, trademarks, and other forms of intellectual
property rights that are enforced by CBP and ICE.
Reasons for change
The Committee believes that the definition of intellectual
property rights should be clear for the purposes of customs
enforcement.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 302. EXCHANGE OF INFORMATION RELATED TO TRADE ENFORCEMENT
Present law
Section 818(g) of the 2012 National Defense Authorization
Act (NDAA) authorizes, but does not require, CBP to share
unredacted images and samples with right holders if CBP
suspects a product of infringing a trademark.
Explanation of provisions
Section 302 amends the Tariff Act of 1930 to create Section
628A, which requires CBP to share certain information about
merchandise suspected of violating intellectual property rights
(IPR) prior to seizure if CBP determines that examination or
testing of the merchandise by the right holder would assist in
determining if there is a violation, except in such cases as
would compromise an ongoing law enforcement investigation or
national security.
Reasons for change
This section supersedes section 818(g) of the 2012 National
Defense Authorization Act (NDAA), Public Law 112-81 (125 Stat.
1496), which authorized, but did not require, CBP to share
unredacted images and samples with right holders for violations
of trademark rights. In addition to violations of trademark
rights, this section also applies to violations of copyright
law, including certain violations of the Digital Millennium
Copyright Act (DMCA) prohibiting unlawful circumvention
devices.
This section is intended to eliminate any doubt about CBP's
ability to lawfully share information with a right holder for
the sole purpose of making a final determination if goods are
being imported illegally and therefore subject to seizure. For
the purpose of making a determination about such goods, the
Commissioner is specifically authorized to provide unredacted
information that appears on the merchandise, packaging, and
labels, as well as unredacted images. Information may be shared
with regard to only those trademarks and copyrights that are
recorded with CBP. Such information may not be shared if doing
so would compromise national security or an ongoing law
enforcement investigation.
This section also identifies the parties who are eligible
for such consultations. For trademark and copyright violations,
consultations may take place with the owner of the trademark
suspected of being infringed, or the owner of the copyright
suspected of being infringed, respectively. For DMCA
violations, consultations may take place with the owner of the
copyright that is subject to infringement due to the
circumvention, including but not limited to copyrights on code
that has been imbedded in hardware devices for the purpose of
protection from circumvention. Publishers of copyrighted
material that is subject to piracy through the circumvention
may also be consulted by CBP.
Effective customs enforcement of IPR is critical to the
United States economy and the health and safety of individuals.
The Committee believes that CBP's implementation of section
818(g) of the 2012 NDAA has resulted in a process that does not
provide effective enforcement for copyright and trademark
holders, and the Committee intends for CBP to implement this
section in a manner that ensures effective customs enforcement
of IPR.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 303. SEIZURE OF CIRCUMVENTION DEVICES
Present law
Section 596(c)(2) of the Tariff Act of 1930 specifies a
number of items that are to be seized by CBP when presented for
importation, including ``merchandise or packaging in which
copyright, trademark, or trade name protection violations are
involved.''
Explanation of provisions
Section 303(a) expands CBP's seizure and forfeiture
authority to explicitly include unlawful circumvention devices,
as defined under subsection (a)(2) or (b)(1) of section 1201 of
title 17, United States Code.
Section 303(b) directs CBP to disclose certain information
to right holders about the seized merchandise within 30 days of
seizure, if the right holder is included on a list maintained
by CBP. The information that must be provided is the same
information provided to copyright owners under CBP regulations
for merchandise seized under copyright laws. CBP must prescribe
regulations establishing procedures that implement this process
within one year of the date of enactment of this bill.
Reasons for change
Section 303 adds a new subsection (G) to the list of items
which are to be seized under section 596(c)(2) of the Tariff
Act of 1930: ``a technology, product, service, device,
component or part thereof'' that is imported in violation of
subsection (a)(2) or (b)(1) of section 1201 of title 17, United
States Code.
The Committee intends that goods violating section 1201 of
title 17 be subject to seizure under this new provision, rather
than other provisions of law, and that the goods seized under
new subsection (G) receive the same priority for inspection and
potential seizure as other items in section 596(c)(2) of the
Tariff Act of 1930.
Section 303 further requires the Commissioner to notify any
person injured by the attempted importation of goods seized
under section 596(c)(2)(G) of the Tariff Act of 1930, as added
by this section, of the seizure within 30 business days.
Information to be provided to such person is to be equivalent
to that provided by CBP, pursuant to regulations, to a
copyright owner when goods are seized under other provisions of
Title 17.
The Committee believes persons injured by importation of
merchandise in violation of section 1201 of title 17 may
include, but are not limited to, the producer of a hardware
device that includes the technological means of protection that
the seized merchandise is designed to circumvent, the publisher
of copyrighted material that is designed for use on the same
device, or both.
To minimize the notification burden on the Commissioner,
Section 303 requires CBP to publish a notice in the Federal
Register asking that potentially injured parties notify the
agency that they wish to receive information about seized
merchandise. Only those entities included on a list shall be
eligible to receive information after a seizure. CBP shall
annually update the list through a Federal Register notice.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 304. ENFORCEMENT BY U.S. CUSTOMS AND BORDER PROTECTION OF WORKS
FOR WHICH A COPYRIGHT REGISTRATION IS PENDING
Present law
No provision.
Explanation of provisions
Section 304 directs the Secretary of Homeland Security to
establish a process for the enforcement of copyrights for which
the owner has submitted an application for registration with
the U.S. Copyright Office to the same extent and in the same
manner as if the copyright were registered with the Copyright
Office.
Reasons for change
Under current practice, a copyright owner must wait until a
copyright is registered with the U.S. Copyright Office before
recording the copyright with CBP, and CBP enforces only those
copyrights that have been recorded with the agency. During the
time for processing an application at the U.S. Copyright
Office, many right holders may suffer significant damage due to
a lack of CBP enforcement. The Committee believes this
provision would eliminate the danger posed by the time gap that
results after submission of application for registration but
before recordation, when copyright infringing products may be
imported without CBP enforcement.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 305. NATIONAL INTELLECTUAL PROPERTY RIGHTS COORDINATION CENTER
Present law
No provision.
Explanation of provisions
Section 305(a) establishes within ICE the National
Intellectual Property Rights Coordination Center (IPR Center),
which shall be headed by an Assistant Director.
Section 305(b) assigns the Assistant Director duties,
including (1) coordinating the investigation of sources of
merchandise that infringes intellectual property rights (IPR);
(2) conducting and coordinating training with other domestic
and international law enforcement agencies to improve IPR
enforcement; (3) coordinating, with CBP, U.S. activities to
prevent the importation or exportation of IPR infringing
merchandise; (4) supporting the international interdiction of
merchandise destined for the U.S. that infringe IPR; (5)
collecting and integrating information regarding infringements;
(6) developing a means to receive and organize information
regarding infringement of IPR; (7) disseminating information
regarding infringement of IPR to other Federal agencies; (8)
developing risk-based alert systems in coordination with CBP;
and (9) coordinating with U.S. Attorneys' offices to
investigate and prosecute IPR crime.
Section 305(c) requires the Assistant Director to
coordinate with federal, state, local and international law
enforcement, intellectual property, and trade agencies, as
appropriate, in carrying out the IPR Center's duties.
Section 305(d) requires the Assistant Director to (1)
conduct outreach to the private sector to determine trends in
and methods of infringing IPR; and (2) coordinate public and
private-sector efforts to combat the infringement of IPR.
Reasons for change
The National Intellectual Property Rights Coordination
Center (NIPRCC) was created in 2000, under the U.S. Customs
Service, as part of the implementation of the 1998
International Crime Control Strategy. The NIPRCC was created as
a direct response to congressional criticism of federal
enforcement efforts in the 1990s of IPR, but was never codified
by Congress.
Today, the NIPRCC is led by ICE. The center leverages
resources from 23 partner agencies to combat intellectual
property theft. NIPRCC's duties include: investigation,
including identifying and prosecuting criminal organizations
involved in the distribution of counterfeit products;
interdiction, by using focused targeting and inspections to
keep infringing products out of U.S. supply chains; and
outreach and training domestically and internationally for law
enforcement officials.
Infringement of intellectual property rights (IPR) causes
significant harm to the U.S. economy, hurts American workers,
and negatively impacts the health and safety of the American
people. U.S. law enforcement agencies must provide effective
enforcement of IPR, especially to stop the flow of infringing
goods crossing U.S. borders. Effective border enforcement
requires investigating the sources of IPR infringement. To do
this effectively, federal law enforcement agencies must
coordinate with each other, with state, local, and
international law enforcement agencies, and with the private
sector to bring together all the resources available to combat
the infringement of intellectual property rights. The Committee
believes that codifying and expanding the duties of the NIPRCC
will achieve these goals.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 306. JOINT STRATEGIC PLAN FOR THE ENFORCEMENT OF INTELLECTUAL
PROPERTY RIGHTS
Present law
No provision.
Explanation of provisions
Section 306 requires the Commissioner and Director to
include in the joint strategic plan on trade facilitation and
enforcement required under section 105 of the bill the
following: (1) a description of DHS's IPR enforcement efforts;
(2) a list of the top 10 ports, by volume and value, where CBP
seized IPR infringing goods in the preceding two years; and (3)
a recommendation of the optimal allocation of personnel to
ensure CBP and ICE are effectively enforcing IPR.
Reasons for change
The Committee believes that effective enforcement of
intellectual property rights requires our border enforcement
agencies to communicate with Congress and the public regarding
efforts to stop the flow of infringing merchandise across U.S.
borders.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 307. PERSONNEL DEDICATED TO THE ENFORCEMENT OF INTELLECTUAL
PROPERTY RIGHTS
Present law
No provision.
Explanation of provisions
Section 307(a) requires the Commissioner to ensure
sufficient personnel are assigned throughout CBP with
responsibility to enforce intellectual property rights with
respect to U.S. imports.
Section 307(b) requires the Commissioner to assign at least
three full-time CBP employees to the IPR Coordination Center
established under Section 305 and to ensure that sufficient
personnel are assigned to U.S. ports of entry to carry out the
directives of the IPR Coordination Center established under
section 305.
Reasons for change
The Committee believes that CBP should dedicate adequate
personnel to the effort to halt the flow of infringing imports
into the United States.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 308. TRAINING WITH RESPECT TO THE ENFORCEMENT OF INTELLECTUAL
PROPERTY RIGHTS
Present law
No provision.
Explanation of provisions
Section 308(a) requires the Commissioner to effectively
train CBP port personnel to detect and identify IPR infringing
imported goods.
Section 308(b) requires the Commissioner to work with the
private sector to identify opportunities for collaboration with
respect to training for officers of the agency to enforce IPR.
Section 308(c) requires the Commissioner to consult with
private sector entities to identify technologies which can
cost-effectively identify infringing merchandise, and to
provide for cost-effective training for CBP officers with
regard to the use of such technologies.
Section 308(d) permits CBP to receive donations of
technology to improve IPR enforcement.
Reasons for change
The Committee believes that CBP should take steps to ensure
that personnel dedicated to enforcement of intellectual
property rights, and border patrol officers generally, are
effectively trained to detect and identify infringing imports.
The Committee further believes that much of the expertise in
this area lies within in the private sector, with companies
that are most knowledgeable about their products and can
provide valuable training to CBP on detection.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 309. INTERNATIONAL COOPERATION AND INFORMATION SHARING
Present law
Section 628 of the Tariff Act of 1930 permits CBP to
exchange information or documents with foreign customs and law
enforcement agencies if the Secretary of the Treasury
reasonably believes the exchange of information is necessary to
comply with CBP laws and regulations, to enforce a trade
agreement to which the United States is a party, to assist in
investigative, judicial and quasi-judicial proceedings in the
United States, or for any similar action undertaken by a
foreign law enforcement agency in a foreign country.
Explanation of provisions
Section 309 requires the Secretary of Homeland Security to
coordinate with competent foreign law enforcement agencies to
enhance IPR enforcement, including by information sharing and
technical assistance, and requires the Commissioner and the
Director of ICE to lead interagency efforts to collaborate with
law enforcement and customs authorities of foreign countries.
Reasons for change
The Committee believes that effective enforcement of IPR
enforcement in the United States requires coordination between
our law enforcement agencies and competent foreign law
enforcement agencies. This section requires the Secretary of
Homeland Security to coordinate with competent foreign law
enforcement agencies to enhance enforcement of IPR, including
by information sharing and technical assistance.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 310. REPORT ON INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT
Present law
No provision.
Explanation of provisions
Requires the Commissioner of CBP and the Director of ICE to
jointly submit to the Committees a report that includes: (1)
information regarding the number, and a description of, certain
efforts to investigate and prosecute IPR infringements; (2) an
estimate of the average time required by the CBP Office of
International Trade to respond to a request from port personnel
for advice with respect to whether merchandise detained by the
Agency infringed IPR, distinguished by types of IPR infringed;
(3) a summary of the outreach efforts of CBP and ICE with
respect to interdiction, investigation and information sharing
between certain agencies related to the infringement of IPR,
collaboration with the private sector, and coordination with
foreign governments; (4) a summary of the efforts of CBP and
ICE to address the challenges with respect to the enforcement
of IPR presented by Internet commerce and the transit of small
packages and an identification of the volume, value, and type
of merchandise seized for infringing IPR as a result of such
efforts; and (5) a summary of training relating to the
enforcement of IPR conducted under Section 308 and expenditures
for such training.
Reasons for change
The Committee believes that this report enhances
accountability for United States border enforcement agencies
regarding the enforcement of IPR. Furthermore, the information
contained in the report will keep Congress apprised of efforts
to enhance enforcement of IPR enforcement and assist in future
determinations of additional measures needed to improve
enforcement efforts.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 311. INFORMATION FOR TRAVELERS REGARDING VIOLATIONS OF
INTELLECTUAL PROPERTY RIGHTS
Present law
No provision.
Explanation of provisions
Section 311(a) requires the Secretary of Homeland Security
to develop and implement an educational campaign for travelers
entering or departing the United States on the legal, economic,
and public health and safety implications of importing IPR
infringing goods into the United States.
Section 311(b) requires the Commissioner to ensure that all
versions, including the electronic versions, of CBP Form 6059B
(customs declaration), or a successor form, include a written
warning to inform travelers arriving in the United States that
importation of merchandise that infringes IPR may subject
travelers to civil or criminal penalties and may pose serious
risks to health and safety.
Reasons for change
Many U.S. citizens are unaware of the dangers presented by
trade in infringing goods, and some may unwittingly facilitate
this trade by acquiring illicit goods abroad. The Committee
believes that an educational campaign devoted to travelers on
the implications of importing IPR infringing goods will help to
address lack of awareness.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
TITLE IV--PREVENTION OF EVASION OF ANTIDUMPING AND COUNTERVAILING DUTY
ORDERS
SECTION 401. SHORT TITLE
Present law
No provision.
Explanation of provisions
Section 401 sets forth the short title as the ``Preventing
Recurring Trade Evasion and Circumvention Act.''
Reason for change
The Committee believes that the short title reflects the
objective of the title to prevent evasion of antidumping and
countervailing duties owed on merchandise subject to
antidumping and countervailing duty orders (``evasion'').
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 402. DEFINITIONS
Present law
No provision.
Explanation of provisions
Establishes the applicable definitions for this title.
Reason for change
The Committee believes that these definitions are required
to ensure the accurate implementation of this title.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 403. APPLICATION TO CANADA AND MEXICO
Present law
Article 1902 of the North American Free Trade Agreement
(NAFTA), at 19 U.S.C. 3438, states that any amendments to Title
VII of the Tariff Act of 1930, or to any other statute which
provides for judicial review of determinations under that title
or the standard of review to be applied, shall apply to goods
from a NAFTA country only to the extent specified in the
amendment.
Explanation of provisions
Section 403 provides that this title applies to goods from
Canada and Mexico, the current members of NAFTA.
Reason for change
Provisions in this title amend or change Title VII of the
Tariff Act of 1930. This section is necessary that these
amendments and changes apply to goods from Canada and Mexico.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SUBTITLE A--ACTIONS RELATING TO ENFORCEMENT OF TRADE REMEDY LAWS
SECTION 411. TRADE REMEDY LAW ENFORCEMENT DIVISION
Present law
No provision.
Explanation of provisions
Section 411(a) establishes within the Office of
International Trade of CBP a Trade Law Remedy Enforcement
Division. The Trade Law Remedy Division's duties are to:
develop and administer policies to prevent and counter evasion;
direct enforcement and compliance assessment activities
concerning evasion; develop and conduct commercial risk
assessment targeting with respect to potentially evading cargo
destined for the United States; issuing Trade Alerts regarding
evading imports; and develop policies for the application of
single entry and continuous bonds to sufficiently protect the
collection of antidumping and countervailing duties.
Section 411(b) establishes the Director of the Trade Law
Remedy Enforcement Division responsible for: directing the
trade enforcement and compliance assessment activities of CBP
regarding evasion; improving cooperation and the exchange of
information between CBP, ICE, and other relevant agencies
regarding evasion; notifying the Department of Commerce and the
International Trade Commission of any findings, determinations,
or criminal actions taken by CBP or other Federal agency
regarding evasion; and serving as the primary liaison between
CBP and the public regarding United States Government
activities concerning evasion. The Director's liaison
responsibilities include: receiving and transmitting to the
appropriate CBP office parties' allegations of evasion; provide
information to a party that submitted an allegation of evasion
on the status of CBP's consideration of the allegation and
decision to pursue or not pursue any administrative inquiries
or other actions; request from the party that submitted an
allegation of evasion any additional information that may be
relevant for CBP determining whether to initiate an
administrative inquiry or take any other action regarding the
allegation; notify on a timely basis the party that submitted
such an allegation of the results of any administrative, civil
or criminal actions taken by CBP or other Federal agency
regarding evasion as a direct or indirect result of the
allegation; provide technical assistance and advice to eligible
small businesses to enable such businesses to prepare and
submit allegations of evasion; develop guidelines on the types
and nature of information that may be provided in allegations
of evasion; and regularly consult with relevant parties and
organizations regarding the development and implementation of
regulations, interpretations, and policies related to
countering evasion.
Section 411(c) establishes within the Trade Remedy Law
Enforcement Division a National Targeting and Analysis Group
(NTAG) dedicated to preventing and countering evasion through
establishing targeted risk assessment methodologies and
standards.
Section 411(d) requires the Director of the Trade Remedy
Law Enforcement Division to issue Trade Alerts to port
directors as required to inspect imported merchandise, require
additional bonds, and take other actions necessary to prevent
evasion.
Reason for change
As the agency responsible for assessing and collecting
duties, CBP must play a significant role in preventing and
taking action against evasion. For too long CBP gave
insufficient priority to addressing evasion and taking action
in response to outside allegations of evasion. CBP's dedication
to acting against evasion and engaging with parties that submit
evasion allegations is improving, and is certainly welcomed by
the Committee. However, the Committee seeks to prevent CBP's
commitment to evasion from diminishing over time. The Committee
also believes that CBP would benefit from having an office
devoted to preventing and combatting evasion, as would also
other U.S. government agencies involved with evasion.
The Trade Remedy Law Enforcement Division within CBP's
Office of International Trade would provide dedicated focus and
resources within CBP on evasion. The division is to develop and
implement comprehensive strategies to proactively identify
evading imports, take needed steps to ensure that collection of
antidumping and countervailing duties owed on at-risk imports,
and take enforcement and compliance actions against evasion.
The Committee believes that it is vital to identify and act
against evading imports before or at the time they reach the
U.S. border, rather than acting after they have entered the
marketplace and already undermined the effectiveness of
antidumping and countervailing duty orders. This is why the
division includes a National Targeting and Analysis Group
dedicated to identifying potential evading imports, with the
authority to issue trade alerts to ports about evasion.
Heading the division is a director responsible and
empowered to be the point of contact on evasion within CBP, for
other U.S. agencies and for parties alleging evasion. Having
these responsibilities vested in one position ensures that the
director has full involvement and knowledge of CBP's activities
against evasion, possesses the ability to facilitate inter-
agency cooperation on evasion, and acts as a one-stop-shop for
not only receiving allegations of evasion, but also providing
first-hand information to parties on the status and outcome of
investigations or other activities resulting from evasion
allegations.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 412. COLLECTION OF INFORMATION ON EVASION OF TRADE REMEDY LAWS
Present law
No provision.
Explanation of provisions
Section 412(a) directs CBP to exercise all existing
information collection authorities to identify evasion and
authorizes CBP to issue questionnaires to collect information
on alleged evasion from persons who have information relevant
to an allegation of evasion.
If a person fails to cooperate to provide requested
information, Section 412(b) authorizes CBP to apply an adverse
inference against the interests of that party in determining if
evasion occurred.
Reason for change
The purpose of this provision is to underscore the
Committee's intent that CBP use all existing information
collection authorities to identify evasion. CBP is also
specifically authorized to issue questionnaires to collect
information on alleged evasion because there has been
uncertainty about whether it currently has such authority. The
Committee expects CBP to fully use this authority. To ensure
that persons provide requested information, CBP is given the
authority to make an adverse inference against a person that
fails to cooperate in providing requested information regarding
evasion.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 413. ACCESS TO INFORMATION
Present law
Section 777(b)(1)(A)(ii) of the Trade Act of 1930, at 19
U.S.C. 1677f(b)(1)(A)(ii), authorizes the Department of
Commerce and the International Trade Commission to transfer to
CBP information that was designated proprietary by the person
submitting the information, for purposes of conducting an
investigation regarding fraud.
Explanation of provisions
Section 413(a) amends Section 777(b)(1)(A)(ii) of the Trade
Act of 1930 by allowing the Department of Commerce and the
International Trade Commission to transfer information
designated proprietary by the person submitting the information
to CBP for investigations of negligence and gross negligence,
rather than just for fraud.
Section 413(b) authorizes the Secretary of the Treasury to
provide to the Department of Commerce or the International
Trade Commission any information that would enable the
Department of Commerce or the International Trade Commission to
assist in identifying imports evading antidumping or
countervailing duties.
Reason for change
Existing limitations on the ability of CBP, the Department
of Commerce, and the International Trade Commission to exchange
certain information hamper efforts to identify and take action
against imports evading antidumping and countervailing duties.
This section authorizes increased data sharing among these
agencies to facilitate taking action against evasion.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 414. COOPERATION WITH FOREIGN COUNTRIES ON PREVENTING EVASION
OF TRADE REMEDY LAWS
Present law
No provision.
Explanation of provisions
Section 414(a) requires the negotiation of bilateral
agreements with other countries' customs authorities to
cooperate on preventing evasion. These agreements should
include provisions allowing the sharing of information to
determine if evasion occurred, verification of such
information, allowing officials from the importing country to
participate in such verifications, and, if a country refuses to
allow officials from an importing country to participate in a
verification, allowing the importing country to take such lack
of cooperation into account in its trade enforcement and
compliance activities.
Section 414(b) allows CBP to take into account whether a
country is a party to a bilateral agreement regarding
cooperation on evasion and the extent to which that country is
cooperating under such an agreement for the purposes of trade
enforcement and compliance assessment of that country's exports
regarding potential evasion.
Section 414(c) requires an annual report to Congress on the
status of ongoing negotiations of bilateral cooperation
agreements regarding evasion, the terms of any such completed
agreements, and any cooperation and other activities conducted
as a result of such agreements.
Reason for change
A significant challenge for CBP in preventing and acting
against evasion is that needed information is located in a
foreign country or otherwise held by that country's government.
The purpose of this provision is to give CBP an additional tool
to address this challenge by requiring the negotiation of
bilateral cooperation agreements with other countries regarding
evasion. These agreements should allow the sharing of
information to identify evasion, provide for the verification
of such information and allow officials of the importing
country to participate in such verifications.
The Committee recognizes that some countries may not wish
to enter into a bilateral cooperation agreement on evasion or,
if such an agreement is in place, may refuse to allow U.S.
government officials to participate in a verification under
that agreement. Both actions are certainly within a country's
sovereign right to take. However, CBP is directed to take this
action into account in assessing the potential evasion risk of
imports from such a country.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 415. TRADE NEGOTIATING OBJECTIVES
Present law
No provision.
Explanation of provisions
Section 415 establishes obtaining the commitments for
cooperation on evasion described in section 414 as a
negotiating objective for current trade agreements under
negotiation and future agreements.
Reason for change
This provision creates a second avenue for obtaining other
counties' agreement to cooperate on evasion by seeking to
include the commitments for cooperation on evasion sought in
CBP bilateral agreements in currently negotiated and future
trade agreements. This parallels commitments in past trade
agreements regarding cooperation on trade in textiles.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SUBTITLE B--INVESTIGATION OF EVASION OF TRADE REMEDY LAWS
SECTION 421. PROCEDURES FOR INVESTIGATION OF EVASION OF ANTIDUMPING AND
COUNTERVAILING DUTY ORDERS
Present law
No provision.
Explanation of provisions
Section 421 grants the Department of Commerce the authority
to administratively investigate evasion and order CBP to
collect or preserve for collection antidumping and
countervailing duties owed on evading imports. In addition to
defining required terms, Section 421(a) excludes from these
investigations evasion that is the result of clerical errors
unless the errors reflect a pattern of negligent conduct.
Section 421(b) establishes the procedures for evasion
investigations. The Department of Commerce may self-initiate an
evasion investigation, or may initiate an investigation as a
result of an adequate petition from an interested party or a
referral from CBP. CBP is required to refer a matter to the
Department of Commerce if CBP has information that evasion
occurred, but cannot determine if the merchandise is in fact
subject to an antidumping or countervailing duty order. The
Department of Commerce has 30 days after receiving a petition
or referral to determine whether to initiate an investigation.
The Department of Commerce is to notify CBP if it initiates an
evasion investigation as a result of a petition from an
interested party.
CBP is required to provide documents and information
requested by the Department of Commerce for an evasion
investigation within 10 days after the request and these
documents and information will be available to authorized
representatives of interested parties under an administrative
protective order. If an authorized representative of an
interested party has access to business proprietary information
from another Department of Commerce proceeding under an
administrative protective order issued in that proceeding and
this information is relevant to an evasion investigation, the
authorized representative may submit this information on the
record of the evasion investigation. The Department of Commerce
is authorized to issue questionnaires to interested parties in
an evasion investigation and to make an adverse inference
against a party that fails to cooperate to the best of its
ability.
The Department of Commerce is to issue a preliminary
determination of whether there is a reasonable basis to believe
or suspect evasion within 90 days after initiation of the
investigation and a final determination of evasion within 300
days after initiation. If the Department of Commerce makes an
affirmative preliminary determination of evasion, CBP is to
suspend liquidation of entries of evading merchandise on or
after the preliminary determination and any unliquidated
entries before that date. A cash deposit is also required for
such entries reflecting the applicable rates previously
determined by the Department of Commerce.
If the Department of Commerce makes an affirmative final
determination of evasion, CBP is to assess the applicable
antidumping and countervailing duties on entries of evading
merchandise, including such entries that were already
liquidated, and to review and reassess the amount of bond or
other security the importer must post for entries of such
merchandise on or after the date of the final determination.
The Department of Commerce may also instruct CBP to require a
cash deposit or bond on entries of such merchandise on or after
the date of the final determination in the amount of
antidumping and countervailing duties potentially owed on the
merchandise. If the Department of Commerce cannot determine the
amount of the applicable antidumping and countervailing duty
rate or cash deposit because the actual producer or exporter of
the merchandise is unknown, then the highest amount for any
producer or exporter will be applied. If the Department of
Commerce makes a negative final determination of evasion, then
any suspension of liquidation is ended and any cash deposits
refunded. The preliminary and final determinations in an
evasion investigation are to be published in the Federal
Register, as well as the notice of initiation of such an
investigation.
If the Department of Commerce makes an affirmative
preliminary or final determination of evasion, it is required
to transmit the administrative record of the investigation to
CBP and any other agency that requests the administrative
record. After making a final determination, the Department of
Commerce may also provide importers information discovered in
an investigation that would help educate importers on complying
with importing merchandise in accordance with U.S. laws and
regulations.
The Department of Commerce and CBP are to establish
procedures to maximize cooperation and communication between
the two agencies to quickly, efficiently, and accurately
investigate allegations of evasion. The Department of Commerce
will issue annual reports to Congress on the conduct of evasion
investigations.
Section 421(b) makes a technical amendment to the table of
contents for Title VII of the Trade Act of 1930 to reflect this
subtitle.
Section 421(c) establishes that the Department of
Commerce's final determination in an evasion investigation is
subject to judicial review by the U.S. Court of International
Trade.
Section 421(d) instructs the Department of Commerce and CBP
to issue regulations to implement this subtitle.
Section 421(e) provides that the amendments in this
subtitle are effective 180 days after enactment and applies to
merchandise entered on or after the date of enactment.
Reason for change
CBP has a critical role in preventing and acting against
evasion. Evasion often involves the violation of laws and
regulations enforced by CBP, and Congress expects CBP to fully
enforce those laws and regulations. However, CBP sometimes
requires time to conduct an inquiry into evasion and collect
the evidence needed to meet the criteria to apply the relevant
laws and regulations. The law-enforcement nature of CBP's
actions makes it inappropriate to subject those actions to
timelines. In a review of the challenges faced by CBP in
investigating evasion, the Government Accountability Office
concluded that ``verifying evasion is an inherently difficult
and time-consuming process.'' (Antidumping and Countervailing
Duties: Management Enhancements Needed to Improve Efforts to
Detect and Deter Duty Evasion, GAO-12-551 (May 2012) at 19).
In the meantime, though, evasion continues, leaving
antidumping and countervailing duties uncollected and U.S.
industries denied an effective remedy from unfair trade. The
Committee has often heard from concerned domestic industries
that timely collection of the antidumping and countervailing
duties owed on evading imports is as important or even more
important than having the parties involved in evasion subject
to penalties or criminal liability.
As a result, this provision grants the Department of
Commerce the authority to administratively investigate evasion
and instruct CBP to collect or preserve for collection
antidumping and countervailing duties owed on evading imports.
The Department of Commerce is the appropriate agency to conduct
these investigations because it already has in-depth expertise
concerning the products subject to antidumping and
countervailing duties, as well as the markets, production
processes, and distribution networks for those products. Such
expertise would certainly be more difficult to transfer to
another agency compared to having other agencies transfer
relevant information for an evasion investigation that they may
hold, such as entry data and documents. The Department of
Commerce also already has the experience and institutional
structure to conduct evasion investigations subject to
timelines and in a transparent manner that allows domestic
industries and other interested parties to meaningfully
participate. The Committee believes that there is no agency
better suited to effectively conduct administrative
investigations of evasion, nor one that can as quickly and
effectively establish the capability to conduct such
investigations.
This provision ensures that the Department of Commerce
conducts these investigations subject to strict deadlines so
that delay in collecting antidumping and countervailing duties
on evading imports is limited. The Department of Commerce's
procedures and tools from its other antidumping and
countervailing duty actions are also incorporated. Authorized
representatives of interested parties can obtain access to
business proprietary information through an administrative
protective order, the Department of Commerce can obtain
information through issuing questionnaires and can verify the
accuracy of that information through onsite verifications. The
Department of Commerce is empowered to make an adverse
inference against a party that does not act to the best of its
ability to comply with a request for information. In addition,
like the Department of Commerce's other determinations, the
results of an evasion investigation are subject to judicial
review.
In sum, this provision creates a robust investigatory
process that effectively responds to the need for relatively
quick identification of evasion and collection of antidumping
and countervailing duties on evading imports. The Committee
expects that these investigations be conducted by Enforcement
and Compliance within the Department of Commerce's
International Trade Administration. This office is best suited
to conduct evasion investigations because it is already
responsible for enforcing the antidumping and countervailing
duty laws. The Committee also expects that resources be made
available within the Department of Commerce to enable
Enforcement and Compliance to effectively conduct evasion
investigations under this provision.
Finally, the creation of this evasion investigation process
for the Department of Commerce in no way diminishes the
responsibility of CBP to act against evasion. CBP is also
required by this provision to provide entry documents, records,
and other information to the Department of Commerce within 10
days after the request so the Department of Commerce is not
delayed in conducting its investigations. In addition, CBP and
the Department of Commerce are required to establish procedures
to improve cooperation, and both agencies are required to
notify the other of findings of potential or confirmed evasion.
Effective date
The provision is effective 180 days after enactment and
applies to merchandise entered on or after the date of
enactment.
SECTION 422. GOVERNMENT ACCOUNTABILITY OFFICE REPORT
Present law
No provision.
Explanation of provisions
Not later than 2 years after the enactment of this act the
General Accountability Office is to issue a report to Congress
on the effectiveness of this subtitle and the actions taken and
procedures developed by the Department of Commerce and CBP
pursuant to this subtitle to prevent evasion.
Reason for change
The General Accountability Office report will enable
Congress to consider the effectiveness of the Department of
Commerce's investigations of evasion, with the aim of
identifying any needed amendments to law or practice, as well
as enabling Congress to provide oversight over the
implementation of this subtitle by the Department of Commerce
and CBP.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SUBTITLE C--OTHER MATTERS
SECTION 431. ALLOCATION AND TRAINING OF PERSONNEL
Present law
No provision.
Explanation of provisions
Section 431 requires CBP, to the maximum extent possible,
to assign sufficient personnel responsible for preventing and
investigating evasion and to provide adequate training for such
personnel.
Reason for change
The ability of CBP to effectively prevent and act against
evasion depends on having a sufficient number of personnel with
adequate training and expertise. Deploying such personnel to
ports based on risk assessments of potential evasion ensures
that such personnel are used in the most effective and
efficient manner possible. The Committee expects CBP to take
advantage of the product and market expertise of the U.S.
industries affected by evasion in training CBP personnel. This
training can include presentations by representatives of these
industries on the products and markets involved in potential
evasion.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 432. ANNUAL REPORT ON PREVENTION OF EVASION OF ANTIDUMPING AND
COUNTERVAILING DUTY ORDERS
Present law
No provision.
Explanation of provisions
Section 432(a) directs CBP, in consultation with the
Department of Commerce and ICE, to provide Congress with an
annual report on efforts to prevent and investigate evasion.
The required contents of the report are described in
Section 432(b). In addition to metrics on CBP's activities,
resource allocation and training regarding evasion, the report
must include a description of CBP's policies and practices
regarding evasion, any changes in such policies and practices,
and any recommended legislative or other changes to improve the
effectiveness of CBP in preventing and identifying evasion.
Reason for change
Annual reports from CBP on efforts to prevent and
investigate evasion will ensure that Congress remains up to
date on what is being done to combat the significant problem of
evasion and can provide effective oversight. The required
metrics on CBP's activities, resource allocation, and training
regarding evasion will give Congress insight on the scope of
evasion, the effectiveness of CBP's actions against evasion,
and CBP's responsiveness to parties' allegations of evasion.
CBP must also report on policies and practices regarding
evasion and any changes in such policies and practices so that
Congress is informed as to how evasion is being addressed and
how those efforts are being improved. The Committee encourages
CBP and all other agencies involved with stopping evasion to
continually seek improvements in their effectiveness.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 433. ADDRESSING CIRCUMVENTION BY NEW SHIPPERS
Present law
Section 751(a)(2)(B) of the Tariff Act of 1930 (19 U.S.C.
1675(a)(2)(B)) allows new exporters and producers to obtain an
individual weighted average dumping margin or individual
countervailing duty rate on an expedited basis. While the
review to determine the individual margin or duty rate is being
conducted, an importer of the new exporter or producer's
merchandise may post a bond or security instead of a cash
deposit for entries of that merchandise.
Explanation of provisions
Section 433 strikes the ability of an importer of a new
exporter or producer's merchandise to post a bond or security
instead of a cash deposit for entries of that merchandise while
the Department of Commerce is determining the exporter or
producer's individual weighted average dumping margin or
individual countervailing duty rate. This section also adds the
requirement that the individual weighted average dumping margin
or individual countervailing duty rate for a new exporter or
producer must be based on bona fide sales in the United States
and sets out criteria to be considered in determining if such
sales were bona fide.
Reason for change
The Committee is concerned that the ability of new
exporters and producers to obtain their own individual weighted
average dumping margins or individual countervailing duty rates
from the Department of Commerce on an expedited basis (known as
``new shipper reviews'') has been abused to avoid antidumping
and countervailing duties. One area of abuse is taking
advantage of the option to post a bond or security, rather than
the normally required cash deposit, while the Department of
Commerce conducts a new shipper review. This allows an importer
to bring in large quantities of dumped or subsidized
merchandise from the exporter or producer under review without
having to provide in cash the full amount of estimated duties
that could be owed on those imports. Having to put up less
capital makes it easier for unscrupulous importers to enter
into schemes to bring in dumped and subsidized merchandise with
the intent of disappearing or otherwise not being available to
pay the antidumping and countervailing duties owed on the
imports. This loophole would be closed by requiring importers
of merchandise from a producer or exporter in a new shipper
review to provide a cash deposit of estimated duties.
Another area of abuse in new shipper reviews is for an
exporter or producer to enter into a scheme to structure a few
sales to show little or no dumping or subsidization when those
sales are reviewed by the Department of Commerce during a new
shipper review, resulting in a low or zero antidumping or
countervailing duty rate for that producer or exporter. An
importer could then bring in that producer or exporter's
merchandise at highly dumped or subsidized prices but with
little or no cash deposit. The problem is further exacerbated
if the importer disappears or otherwise becomes unavailable to
pay the duties owed and CBP has little or no cash deposit
against which to recover the owed duties. This provision would
prevent such arrangements by requiring that the U.S. sales in a
new shipper review be bona fide sales and setting out criteria
for identifying bona fide sales, reflecting the Department of
Commerce's current regulations and practices in this area.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
TITLE V--ADDITIONAL ENFORCEMENT PROVISIONS
SECTION 501. TRADE ENFORCEMENT PRIORITIES
Present law
No provision.
Explanation of provisions
Section 501 requires the Administration to identify, in
close consultation with Congress, enforcement priorities and to
more regularly consult with Congress on the Administration's
enforcement strategy. This section also directs the
Administration to focus its enforcement actions on addressing
practices that, if eliminated, would likely have the most
significant potential to increase economic growth of the United
States.
Reason for change
Section 501 amends the Trade Act of 1974 by adding a new
section 310 that requires the Administration to regularly
identify trade enforcement priorities and consult with the
Committee about those priorities and any action taken to
resolve the enforcement actions. The Committee intends these
provisions to strengthen Congress's role in the identification
of enforcement priorities and to encourage greater consultation
with Congress about the Administration's enforcement agenda.
Section 310(a)(1) now requires the Administration to
consult with Congress on prioritization of government actions
that create or maintain barriers to U.S. goods, services, or
investment.
Section 310(a)(2) directs USTR to identify trade
enforcement priorities that are likely to have the most
significant impact on U.S. economic growth and to take into
account specific Congressional priorities.
New Section 310(b) requires the Administration to engage in
semi-annual enforcement consultations with the Committee. These
consultations shall include acts, policies, or practices of
concerns as well as consultation on active investigations and
ongoing enforcement actions. The consultations will also
address the availability and deployment of enforcement
resources.
New Section 310(c) directs the Administration to take
certain action with regard to trade enforcement priorities
identified under subsection a(2), up to initiating dispute
resolution proceedings.
New Section 310(d) requires the Administration to notify
and consult with the Committee prior to the initiation of
enforcement actions and before the announcement of any report
of a dispute settlement panel or the Appellate Body of the WTO
or under any other trade agreement of the United States. The
Committee expects that consultations prior to the initiation of
enforcement actions will be detailed and with adequate prior
notice.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 502. EXERCISE OF WTO AUTHORIZATION TO SUSPEND CONCESSIONS OR
OTHER OBLIGATIONS UNDER TRADE AGREEMENTS
Present law
Under section 307(c) of the Trade Act of 1974, a particular
action taken under section 301 automatically terminates after 4
years if neither the petitioner nor any representative of the
domestic industry that benefits from such action has requested
its continuation during the last 60-days of the 4-year period.
Explanation of provisions
Section 502 allows the Administration, under certain
conditions, to reinstate a retaliatory action if such action
has terminated previously. To reinstate such action, the
Administration must receive a request from an affected domestic
industry and engage in a detailed analysis and robust
consultations with Congress and the public.
Reason for change
Section 502 amends the Trade Act of 1974 to address the
situation in which the imposition of retaliatory tariffs have
expired under Section 307(c), but the offending country has not
yet come into compliance with its obligations and the
Administration believes that it is once again necessary to
reinstate retaliatory tariffs. In such a situation, any
representative of the domestic industry that benefits from such
action may submit a written request to reinstate the action. It
is the Committee's intent that the Administration, upon
receiving such a request, will complete the consultation and
review requirements set forth in Sections 306(d) and 307(c)
before taking any action. However, the Committee does not
intend that the Administration reinitiate the entire Section
301 process, but instead that such action will be taken
pursuant to this provision only to continue an already
initiated action that has not been resolved.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 503. TRADE MONITORING
Present law
No provision.
Explanation of provisions
Section 503(a) requires the International Trade Commission
to make a web-based import monitoring tool available that
provides public access to data on the volume and value of goods
imports for the purposes of determining if such data has
changed over time. The data used will be from the Department of
Commerce and any other appropriate government data, and will
include data from the most recent quarter for which such data
are available, plus previous quarters as practicable.
This provision further requires the Department of Commerce
to publish on a website monitoring reports on changes in the
volume and value of imports and exports of goods categorized
based on the 6-digit subheadings of the Harmonized Tariff
Schedule of the United States. The Department of Commerce must
also notify Congress when the reports are available. These
reports are to be published at least quarterly and have data
for the most recent quarter for which such data are available,
as well as previous quarters as practicable. The Department of
Commerce is required to solicit public comment on the
monitoring reports through the Federal Register.
This provision is to terminate seven years after the date
of enactment.
Section 503(b) makes the clerical amendment of adding the
title of this section to the table of contents for the Trade
Act of 1974 (19 USC 2101 et. seq.).
Reason for change
Although the U.S. government collects and makes available
U.S. import and export data, it is often not in an easily
assessable form that allows the public to determine changes in
trade, particularly small and medium-sized businesses that want
to identify import and export trends for their particular
product sector. Implementation by the International Trade
Commission of an import monitoring tool and regular publication
of trade monitoring reports by the Department of Commerce will
enable the public, especially those engaged in or affected by
international trade, to more easily be aware of changes in
trade trends.
Effective date
The requirement for enactment of the International Trade
Commission monitoring tool is not later than 180 days after
enactment. The requirement for enactment of the Department of
Commerce monitoring reports tool is not later than 270 days
after enactment.
TITLE VI--MISCELLANEOUS PROVISIONS
SECTION 601. DE MINIMIS VALUE
Present law
Section 321(a)(2)(C) of the Tariff Act of 1930 provides
that individuals may import up to $200 in merchandise free of
duties into the United States.
Explanation of provisions
Section 601 raises the duty-free or de minimis threshold
from $200 to $800.
Reasons for change
The Committee believes that this section will simplify the
customs entry process and offer significant benefits to CBP and
the trade community. Increasing the de minimis level will
significantly reduce paperwork burdens for low value shipments.
Today, U.S. citizens returning from overseas are permitted to
bring in up to $800 of purchases without having to file formal
customs documentation or pay any duties. If the same U.S.
citizen were to purchase the same goods overseas and ship them
to the United States, anything over $200 would be subject to
customs documentation requirements and duties. The Committee
believes that this inconsistent treatment is not practical,
especially considering the government resources that would be
freed up to focus on high-risk shipments if these amounts were
made to be consistent.
This legislation will not have a negative impact on
security, as manifest information is required for all
shipments, regardless of value. Manifest information for each
shipment is analyzed for security threats and subject to CBP
risk assessment and targeting prior to arrival in the United
States. And because this change applies only to smaller and
low-value shipments, there is no risk of a spike in commercial
violations as a result of the change. Simplifying and
streamlining the entry process for these low-value shipments
will help to stimulate the economy, facilitate legitimate
trade, and free CBP resources to focus enforcement efforts on
high-risk trade.
Effective date
The amendments made by this section shall apply to articles
entered, or withdrawn from warehouse for consumption, on or
after the 15th day after the date of enactment of this Act.
SECTION 602. CONSULTATION ON TRADE AND CUSTOMS REVENUE FUNCTIONS
Present law
Section 401(c) of the Safety and Accountability for Every
Port (SAFE Port) Act requires the Secretary of Homeland
Security to consult with the business community involved in
international trade, including the COAC, on Department policies
that have a significant impact on international trade and
customs revenue functions. Furthermore, section 401(c) requires
that the Secretary notify the appropriate congressional
committees at least 30 days before finalizing policies or
actions that will have a major impact on international trade
and customs revenue functions, except if it is determined that
it is in the interest of national security to finalize policies
or actions prior to consultations with the business community
and appropriate congressional committees.
Explanation of provisions
Section 602 amends section 401(c) of the SAFE Port Act by
requiring the Secretary of Homeland Security to consult with
the business community involved in international trade at least
30 days before proposing and at least 30 days before finalizing
any Department policies or actions that will have an impact on
international trade and customs revenue functions. The bill
also extends the notice for appropriate congressional
committees by requiring the Secretary of Homeland Security to
provide at least 60 days notification before proposing and at
least 60 days before finalizing Department policies or actions
that have an impact on international trade.
Reasons for change
The Committee believes that it is necessary for the
Department of Homeland Security to consult with Congress and
those in the business community impacted by any changes in the
Department's trade and customs revenue functions. The Committee
understands that businesses are often required to make changes
to standard practices to comply with significant changes, which
can require significant preparation, time, and resources. It
would be more efficient for the agency to consult with impacted
parties prior to heading down a path that may not be the most
effective or efficient. The Committee understands that the
Department of Homeland Security may sometimes wish to move
ahead with policy decisions without consultations in light of
national security concerns, but the Committee still believes
that consultations should occur as soon as feasible without
compromising any national security concerns.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 603. PENALTIES FOR CUSTOMS BROKERS
Present law
Section 641(d)(1) of the Tariff Act of 1930 authorizes the
Secretary of the Treasury to impose a monetary penalty or
revoke or suspend a license or permit of any customs broker if
the broker has acted contrary to law or regulations.
Explanation of provisions
Section 603 amends section 641(d)(1) of the Tariff Act of
1930 by adding to the list of offenses as grounds for a
monetary penalty or removal of a broker license committing or
conspiring to commit an act of terrorism.
Reasons for change
The Committee believes that it would be contrary to public
policy to permit an individual or organization to provide
customs brokerage service if the individual or organization has
committed, or conspired to commit, an act of terrorism.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 604. AMENDMENTS TO CHAPTER 98 OF THE HARMONIZED TARIFF SCHEDULE
OF THE UNITED STATES
Present law
U.S. Note 3 to subchapter II of Chapter 98 of the
Harmonized Tariff Schedule of the United States (HTS) allows a
partial or complete duty exemption for articles returned to the
United States, after having been exported to be advanced in
value or improved in condition by means of repairs or
alterations. It also allows goods to be entered duty free if
the goods are a product of the United States when returned
after having been exported, without having been advanced in
value or improved in condition by any process of manufacture or
other means while abroad.
The article description for heading 9801.00.10 of the HTS
establishes that products of the United States, when returned
after having been exported without having been advanced in
value or improved in condition by any process of manufacture or
other means abroad, will be duty-free.
Explanation of provisions
Section 604(a) amends U.S. Note 3 to subchapter II of
Chapter 98 of the HTS by modernizing existing inventory
management rules by subtracting the value of U.S. components
assembled into the final product that will be entered into the
commerce of the United States for articles exported and
returned after being improved abroad.
Section 604(b) amends the article description for heading
9801.00.10 of the HTS by reducing record-keeping burdens on
goods returned to the United States without improvement abroad
so that duties are not assessed twice.
Section 604(c) amends subchapter I of chapter 98 of the HTS
by inserting new heading 9801.00.11, which provides duty-free
treatment for certain U.S. government property returned to the
United States.
Reasons for change
The Committee believes that these changes will reduce
paperwork burdens and costs for businesses, which will increase
U.S. competitiveness in the global marketplace.
Effective date
The amendments made by this section shall take effect 60
days after the enactment of this Act.
SECTION 605. EXEMPTION FROM DUTY OF RESIDUE OF BULK CARGO CONTAINED IN
INSTRUMENTS OF INTERNATIONAL TRAFFIC PREVIOUSLY EXPORTED FROM THE
UNITED STATES
Present law
No provision.
Explanation of provisions
Section 605 amends General Note 3(e) of the Harmonized
Tariff Schedule of the United States (HTS) to remove from
formal entry requirements residue of bulk cargo contained in
instruments of international traffic (IIT) previously exported
from the United States.
Reason for change
When cargo containers return to the United States from
Mexico or Canada, they often hold trace amounts of residue from
the original product transported in the container. Typically,
these containers are reloaded with the same product or
completely cleaned in the United States upon return.
Historically, CBP allowed companies to enter containers with
residue as IITs, exempting them from formal entry requirements
and therefore the imposition of duties. In 2009, CBP reversed
this longstanding practice, requiring IITs with residue to be
manifested and formally entered through a formal customs
ruling. Due to significant concerns voiced by businesses
affected by this ruling, CBP has delayed the implementation
date of this decision.
The Committee has consulted with CBP on this matter and
understands that any exemption from formal entry requirements
would in no way impact CBP's requirement for imports to be
manifested. It is critical for CBP to receive manifest
information from importers to conduct security targeting on all
imports into the United States. The Committee believes that
this section firmly leaves any manifesting requirements in
place, but clearly exempts from formal entry requirements, and
therefore the payment of customs duties, residue of bulk cargo
contained in IITs previously exported from the United States.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 606. DRAWBACK AND REFUNDS
Present law
Section 313 of the Tariff Act of 1930 authorizes a refund,
known as drawback, of certain duties, internal revenue taxes,
and certain fees collected upon the importation of goods. Such
refunds are allowed only upon the exportation or destruction of
goods under CBP supervision.
Explanation of provisions
Section 606(a) amends section 313(a) of the Tariff Act of
1930 by establishing that the amount of drawback claimed must
be calculated pursuant to section 313(l) of the Tariff Act of
1930, as amended by this bill.
Section 606(b) amends section 313(b) of the Tariff Act of
1930 by allowing substitution drawback for imported merchandise
or merchandise classifiable under the same 8-digit HTS used in
the manufacture or production of articles; establishes that the
amount of drawback claimed must be calculated pursuant to
section 313(l) of the Tariff Act of 1930, as amended by this
bill, and such claim must be filed within 5 years of the
importation of the merchandise. This subsection further allows
records kept in the normal course of business to be used to
demonstrate the transfer of merchandise, requires a drawback
claimant to submit a bill of materials to demonstrate the
merchandise was incorporated into an exported article, and
provides a special exemption for sought chemical elements.
Section 606(c) amends section 313(c) of the Tariff Act of
1930 by extending the filing deadline for drawback claims for
merchandise not conforming to sample or specifications to 5
years from the date of importation. This subsection further
establishes that the amount of drawback claimed must be
calculated pursuant to section 313(l) of the Tariff Act of
1930, as amended by this bill, and allows records kept in the
normal course of business to be used to demonstrate the
transfer of merchandise.
Section 606(d) amends section 313(i) of the Tariff Act of
1930 to require that a person claiming drawback shall provide
proof of the exportation of the article, that such proof shall
fully establish the date and fact of exportation and identity
of the exporter, and may be established either by records kept
in the normal course of business or through an electronic
export system of the United States Government.
Section 606(e) amends section 313(j) of the Tariff Act of
1930 by allowing unused drawback claims for merchandise
classifiable under the same 8-digit HTS subheading number as
such imported merchandise. Merchandise may not be substituted
for imported merchandise for drawback purposes based on the 8-
digit HTS if the article description for the 8-digit HTS begins
with the term ``other.'' In these instances, merchandise may be
substituted for imported merchandise if such imported
merchandise is classifiable under the same 10-digit HTS. If the
10-digit HTS begins with the term ``other,'' then substitution
drawback is not permissible and the drawback claimant must use
direct identification under section 313(a) of the Tariff Act of
1930, as amended by this Act. For unused merchandise that is
either exported or destroyed, the Department of Commerce
Schedule B number may be used to demonstrate that an article
and merchandise are classifiable under the same 8-digit HTS
without regard to whether or not the Schedule B number
corresponds to more than one 8-digit HTS number. Furthermore,
this subsection amends the filing deadline for drawback claims
to be 5 years from the date of importation and establishes that
the amount of drawback claimed must be calculated pursuant to
section 313(l) of the Tariff Act of 1930, as amended by this
bill.
Section 606(f) amends section 313(k) of the Tariff Act of
1930 by providing that any person making a drawback claim is
liable for the full amount of the drawback claimed. Any person
claiming drawback shall be jointly and severally liable with
the importer for the lesser of the amount of drawback claimed
or the amount the importer authorized the other person to
claim.
Section 606(g) amends section 313(l) of the Tariff Act of
1930 to require the Secretary of the Treasury to prescribe
regulations for the calculation of drawback that cannot exceed
99 percent of the lesser of the amount of duties, taxes, and
fees paid with respect to the imported merchandise or the
amount of duties, taxes, and fees that would apply to the
exported article if the exported article were imported. This
section requires the promulgation of the necessary regulations
within 2 years. Additionally, one year after the enactment of
this Act, and annually thereafter until the regulations
required under this subsection are promulgated, the Secretary
shall submit to Congress a report on the status of the
regulations.
Section 606(h) amends section 313(p) of the Tariff Act of
1930 to require evidence of transfer to be demonstrated with
records kept in the normal course of business.
Section 606(i) amends section 313(q) of the Tariff Act of
1930 to require the amount of drawback shall be calculated
pursuant to section 313(l) of the Tariff Act of 1930, as
amended by this bill.
Section 606(j) amends section 313(r) of the Tariff Act of
1930 to establish that a drawback entry shall be filed or
applied for, as applicable, no later than 5 years after the
date on which merchandise on which drawback is claimed was
filed. This section also requires drawback claims to be filed
electronically no later than 2 years after the date of the
enactment of this Act.
Section 606(k) amends section 313(s) of the Tariff Act of
1930 by allowing a drawback successor to designate unused
imported merchandise, other merchandise classifiable under the
same 8-digit HTS subheading number as such imported
merchandise, or any combination of such imported merchandise
and such other merchandise, that the predecessor received,
before the date of succession, from the person who imported and
paid any duties, taxes, and fees due on the imported
merchandise as the basis for drawback on merchandise possessed
by the drawback successor after the date of succession.
Section 606(l) strikes section 313(t) of the Tariff Act of
1930.
Section 606(m) amends section 313(x) of the Tariff Act of
1930 by requiring the amount of drawback claimed pursuant to
section 313(l) of the Tariff Act of 1930, as amended by this
bill, to be reduced by the value of any materials reclaimed
during the destruction of unused merchandise.
Section 606(n) defines key terms.
Section 606(o) amends section 508(c)(3) of the Tariff Act
of 1930 by requiring records for drawback claims to be
maintained for 5 years after the date of liquidation.
Section 606(p) requires the Government Accountability
Office (GAO) to provide the Senate Committee on Finance and the
House Committee on Ways and Means with a report that shall
include: 1) an assessment of the modernization of drawback and
refunds; 2) a description of drawback claims that were
permissible before the enactment of the bill that are not
permissible after, and an identification of industries most
affected; and 3) a description of drawback claims that were not
permissible before the enactment of this bill that are after,
and an identification of industries most affected.
Section 606(q) provides that the amendments made by this
section shall take effect upon enactment of this bill and apply
to drawback claims filed on or after the date that is 2 years
after such enactment. This section also requires the Secretary
of the Treasury to submit a report to Congress, no later than
two years after enactment of this bill, on the date on which
the Automated Commercial Environment (ACE) will be ready to
process claims and the date on which the Automated Export
System (AES) will be ready to accept proof of exportation.
Lastly, this section provides for a one-year transition for
filing drawback claims under section 313 as amended by this
section, or under section 313 in effect before the enactment of
this bill.
Reason for change
Drawback was initially authorized by the Second Act of
Congress in 1789, and has been a critical export program even
since. The rationale for duty drawback has always been to
increase U.S. competitiveness in the global marketplace,
encourage U.S. manufacturing by enabling manufacturers to take
advantage of economical raw materials, and promote U.S. exports
and jobs. As business practices have modernized, and continue
to do so, CBP has been unable to modernize its drawback
practices due to constraints posed by current law.
Under current law, CBP is required to issue rulings on
commercial interchangeability, which is paper-heavy, time-
consuming, and resource-intensive. Current law also prescribes
multiple timeframes for drawback eligibility and paper
certifications. In fact, the entire drawback process is very
paper-heavy. In an era when the rest of CBP is being pushed by
the business community and Congress to streamline its
processing and fully automate, the Committee believes it is
senseless to maintain a burdensome paper-heavy process in such
a key area of CBP operations.
This section initiates drawback modernization by allowing
use of eight-digit Harmonized Tariff System (HTS)
classifications for determining eligibility for drawback
claims, makes time-frames for filing drawback claims
consistent, and requires the Secretary of the Treasury to
promulgate regulations on the calculation of drawback
consistent with this section. These changes, very importantly,
require CBP to automate drawback processing through utilization
of the Automated Commercial Environment.
Effective date
The amendments made by this section shall take effect upon
enactment of this Act and apply to drawback claims filed on or
after the date that is 2 years after such date of enactment.
SECTION 607. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
Present law
The Office of the United States Trade Representative (USTR)
is required to submit to Congress an Annual Report on Trade
Agreements Program and National Trade Policy Agenda, pursuant
to 19 U.S.C. 2213; a budget justification, pursuant to 31
U.S.C. 1105; and an agency strategic plan, pursuant to 5 U.S.C.
306.
Explanation of provision
The section requires that, in its Annual Report on Trade
Agreements Program and National Trade Policy Agenda to
Congress, USTR must submit additional information regarding
USTR-led interagency programs, including the Interagency Trade
Enforcement Center. Specifically, the section requires that
USTR report on the objectives and priorities of all USTR-led
interagency programs; the actions proposed, or anticipated, to
be undertaken to achieve such objectives and priorities,
including actions authorized under the trade laws and
negotiations with foreign countries; the role of each Federal
agency participating in the interagency program in achieving
such objectives and priorities and activities of each agency
with respect to their participation in the program; USTR's
coordination of each participating Federal agency to more
effectively achieve such objectives and priorities; any
proposed legislation necessary or appropriate to achieve such
objectives or priorities; and prior progress made in achieving
such objectives and priorities and coordination activities.
The section also requires that USTR submit a report to
Congress, in conjunction with the President's budget, regarding
its annual plan to match available agency resources with
projected workload and provide a detailed analysis of how the
prior year's funds were spent; identify existing and new staff
necessary to support the functions and powers of USTR; identify
USTR and other Federal agency staff who will be required to be
detailed to support USTR-led interagency programs; and provide
detailed analysis of the budgetary requirements of USTR-led
interagency programs.
In addition, the section requires that USTR submit to
Congress a quadrennial plan, in conjunction with agency
strategic plans already required under statute, with some
additional requirements: analyzing internal quality controls
and record management; identifying existing and new staff
necessary to support the functions and powers of USTR;
identifying existing USTR and other Federal agency staff who
will be required to be detailed to support USTR-led interagency
programs; providing an outline of budget justifications,
including salaries, expenses, and non-personnel administrative
costs, required under the strategic plan; providing an outline
of budget justifications for USTR-led interagency programs.
This quadrennial plan is required in conjunction with the
agency strategic plan produced at the beginning of every new
Presidential Administration; this section requires USTR to
submit the initial report separately, on February 1, 2016.
Reasons for change
The Committee is statutorily requiring that USTR provide
more information to Congress in conjunction with existing
required reports because USTR has been insufficiently
responsive to various Congressional requests on the covered
issues over the past few years. With respect to USTR-led
interagency activities, in February 2012, through Executive
Order 13601, the President created the Interagency Trade
Enforcement Center (ITEC), without any prior consultation with
Congress. The Committee notes that USTR was ill-prepared to
handle the budgetary and staffing impacts of creating the ITEC,
which ended up constituting nearly two percent of USTR's FY
2013 budget. Since the ITEC's creation in 2012, USTR has been
unable to provide to the Committee a clear description and
accounting of the ITEC's actual duties and activities. While
the Committee supports strong enforcement efforts by USTR, it
expects that USTR provide information concerning the ITEC to
Congress with the greatest degree of transparency possible.
The Committee notes that USTR's handling of the budgetary
impacts of the ITEC exposed the agency's insufficient long- and
short-term planning with regard to allocation of its resources
and existing and future staffing needs. The Committee believes
that additional reporting requirements in conjunction with
USTR's budgetary filings and agency strategic plans will
require USTR to focus more on resource allocation and allow the
agency to better plan ahead, particularly in the face of
simultaneous negotiation of the Trans-Pacific Partnership, the
Trans-Atlantic Trade and Investment Partnership, the Trade in
Services Agreement, and other trade negotiations, as well as
significant monitoring and enforcement activity.
Effective date
The amendments made by this section shall take effect upon
enactment of this Act.
SECTION 608. UNITED STATES-ISRAEL TRADE AND COMMERCIAL ENHANCEMENT
Present law
No provision.
Explanation of provision
This section sets out U.S. policy identifying the
importance of the bilateral U.S.-Israel trade relationship.
This section states that among the principal U.S. trade
negotiating objectives for trade agreements with foreign
countries is to discourage actions to boycott, divest from, or
sanction Israel. The section requires the President to report
annually to Congress on politically motivated acts of boycott,
divestment from, and sanctions against Israel. This section
also amends the Securities Exchange Act of 1934 to require
reporting by a foreign issuer of such acts. In addition, this
section requires that no U.S. court may recognize or enforce
any judgment by a foreign court against a U.S. person doing
business with Israel, and on which is based a determination by
the foreign court that the location in Israel, or in any
territory controlled by Israel, of the facilities at which the
business operations are carried out is sufficient to constitute
a violation of law.
Reasons for change
The Committee recognizes that the boycott, divestment, and
sanction (BDS) Israel movement globally is of significant
concern. The Committee has therefore included negotiating
objectives for proposed trade agreements that specifically
direct the United States to discourage and eliminate such
actions by U.S. trading partners. However, the Committee also
expects the Administration to explore addressing these actions
in other fora, including other bilateral and multilateral
programs or activities of international engagement including
but not limited to the World Trade Organization (WTO), Group of
20 (G20), the Organization for Economic Cooperation and
Development (OECD), and the Asia-Pacific Economic Cooperation
(APEC). The Committee believes that the report the President is
required to submit to Congress as well as the Securities
Exchange Act reporting requirements for foreign issuers will be
critical to exposing, weakening, and diminishing the BDS
movement. Finally, the requirement that no U.S. court may
recognize or enforce a foreign judgment based on a U.S.
person's business operations in Israel protects U.S. persons
from unwarranted legal actions based on BDS principles in
foreign jurisdictions. The Committee supports continuing to
strengthen United States-Israel economic cooperation and
recognizes the tremendous strategic, economic, and
technological value of cooperation with Israel.
Effective date
The amendments made by this section are effective upon
enactment of this Act.
SECTION 609. ELIMINATION OF CONSUMPTIVE DEMAND EXCEPTION TO PROHIBITION
ON IMPORTATION OF GOODS MADE WITH CONVICT LABOR, FORCED LABOR, OR
INDENTURED LABOR; REPORT
Present law
Section 307 of the Tariff Act of 1930 prohibits the
importation of foreign-made goods that were manufactured or
produced by convict, forced, or indentured labor, except in
such quantities as necessary to meet the consumptive demands of
the United States.
Explanation of provisions
Section 609 eliminates the ``consumptive demand'' exception
to the prohibition on importing goods made by convict, forced,
or indentured labor, and requires the Commissioner to provide a
report to Congress that includes: 1) the number of instances in
which merchandise was denied entry pursuant to this section
during the preceding 1-year period; 2) a description of the
merchandise denied entry pursuant to this section; and 3) such
other information the Commissioner considers appropriate with
respect to monitoring and enforcing compliance with this
section.
Reason for change
This section removes a provision that permitted the
importation of goods that otherwise would have been prohibited,
but for the fact that they were not available in quantities to
meet consumptive demand of the United States. Removing this
provision ensures that goods, wares, articles, and merchandise
made under such conditions may not legally enter the United
States.
The Committee does recognize, however, that the problem of
coerced labor in developing countries is a complex and
intractable one. To this point, the Committee further
recognizes that some industries have implemented extensive
programs to assist foreign governments in their efforts to
develop and implement policies aimed at eliminating coercive
labor practices within their borders. The elimination of the
consumptive demand provision is not intended to discourage such
efforts to address wide-scale social problems that contribute
to the conditions in which convict, forced, or indentured labor
exists in particular countries. Moreover, the Committee does
not intend that the elimination of the consumptive demand
exception permit, without substantiation of facts, the
application of broad import bans that may also indirectly
interfere with such efforts.
It is further the sense of the Committee that, consistent
with current practice, determinations to prohibit a particular
shipment may not be based solely on country of origin, or a
finding that coercive labor practices are known to be used in a
certain industry. Rather, the Secretary may take action under
section 307 only after conducting an investigation of the
allegations and determining that there is evidence that a
particular shipment of covered goods was produced using
coercive labor practices.
Finally, the Committee wishes to express support for the
continuation of collaborative efforts aimed at addressing the
problem of coercive labor practices, and also wishes to
encourage foreign governments to take an active role in
combating these practices within their borders.
Effective date
The amendments made by this section shall take effect 15
days after the date of enactment of this Act.
SECTION 610. CUSTOMS USER FEES
Present law
Under Section 13031(a) of the Consolidated Omnibus Budget
Reconciliation Act of 1985, the Secretary of the Treasury is
authorized to charge and collect fees for the provision of
certain customs services. Pursuant to Section 13031(j)(3), the
Secretary of the Treasury may not charge fees for the provision
of certain customs services after September 30, 2024.
Explanation of provisions
Section 610 amends Section 13031(j)(3)(A) of the
Consolidated Omnibus Budget Reconciliation Act of 1985 to
extend the period that the Secretary of the Treasury may charge
for certain customs services for imported goods from July 8,
2025 to July 28, 2025, and extends the ad valorem rate for the
Merchandise Processing Fee collected by CBP that offsets the
costs incurred in processing and inspecting imports from July
1, 2025 to July 14, 2025.
Reason for change
The Committee believes it is appropriate to extend the
merchandise processing fees for budgetary offset purposes.
Effective date
The amendments made by this section shall take effect upon
enactment of this Act.
SECTION 611. REPORT ON CERTAIN U.S. CUSTOMS AND BORDER PROTECTION
AGREEMENTS
Present law
Section 560 of the Department of Homeland Security
Appropriations Act of 2013 authorizes CBP to enter into certain
reimbursable fee agreements for the provision of CBP services.
Section 559 of the Department of Homeland Security
Appropriations Act of 2014 establishes a pilot program
authorizing CBP to enter into partnerships with private sector
and government entities at ports of entry.
Explanation of provisions
Section 611 requires the Commissioner to submit to Congress
a detailed annual report on each reimbursable agreement and
public-private partnership agreement into which CBP enters.
Each report must include: 1) a description of the development
of the program; 2) a description of the type of entity with
which CBP entered into the agreement and the amount that entity
reimbursed CBP under the agreement; 3) an identification of the
type of port of entry to which the agreement relates and an
assessment of how the agreement provides economic benefits at
the port of entry; 4) a description of the services provided by
CBP under the agreement during the year preceding the
submission of the report; 5) the amount of fees collected under
the agreement during that year; 6) a detailed accounting of how
the fees collected under the agreement have been spent during
that year; 7) a summary of any complaints or criticism received
by CBP during that year regarding the agreement; 8) an
assessment of the compliance with the terms of the agreement of
the entity that entered into an agreement with CBP; 9)
recommendations with respect to how activities conducted
pursuant to the agreement could function more effectively or
better produce economic benefits; and 10) a summary of the
benefits to and challenges faced by CBP and the entity that
entered into an agreement with CBP.
Reason for change
The Committee believes it is important for CBP to
communicate openly with Congress about the details of each
reimbursable agreement and public-private partnership into
which it enters. Though great progress has been made since the
first agreement, CBP's lack of communication with Congress
prior to entering into a partnership with the Abu Dhabi
International Airport in 2013 led to a great deal of concern in
the Committee and in the private sector, particularly from
United States air carriers, about the nature of this agreement
and its impact on our security and competitiveness. Regular
communication after the fact shed light on the significant
value of this partnership, and to this end, the Committee
recognizes the benefit of such partnerships to CBP and to the
public going forward. However, the Committee feels strongly
that CBP must keep Congress apprised of these agreements to
ensure that they are operating as intended, delivering valuable
benefits, serving as a valuable resource to CBP and the public,
and in no way harming United States interests and
competitiveness.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
SECTION 612. CERTAIN INTEREST TO BE INCLUDED IN DISTRIBUTIONS UNDER
CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000
Present law
No provision.
Explanation of provisions
Section 612(a) directs CBP to include in all distributions
of collected antidumping and countervailing duties any and all
interest earned on such duties that is, or was, realized
through any payments received on or after October 1, 2014
under, or in connection with, any customs bond pursuant to a
court order or judgment, or settlement.
Section 612(b) describes the distributions in subsection
(a) as all distributions made on or after enactment pursuant to
section 754 of the Trade Act of 1930 (19 U.S.C. 1675c) (as that
section was in effect on February 7, 2006) of collected
antidumping and countervailing duties assessed on or after
October 1, 2000 on entries made through September 30, 2007.
Reason for change
The section is intended to ensure that CBP complies with
the law by distributing all interest payments to appropriate
domestic producers. Specifically, the amendment requires that
all interest collected by CBP in connection with any customs
bond pursuant to a court order or judgment, or any settlement
for such bond, related to antidumping and countervailing duties
be distributed consistent with the provisions of the Continued
Dumping and Subsidy Offset Act of 2000, as repealed by subtitle
F of title VII of the Deficit Reduction Act of 2005. The
section is prospective and applies only to future
distributions, but does not affect or limit domestic
industries' right to seek redress for past CBP actions.
Effective date
The amendments made by this section shall take effect on
the date of enactment of this Act.
III. VOTES OF THE COMMITTEE
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the following statement is made
concerning the vote of the Committee on Ways and Means in its
consideration of H.R. 1907, to reauthorize trade facilitation
and trade enforcement functions and activities, and for other
purposes, on April 23, 2015.
The bill, H.R. 1907, was ordered favorably reported as
amended by voice vote (with a quorum being present).
The vote on the amendment by Mr. Boustany to H.R. 1907,
which would ensure that post-liquidation interest received from
payments collected under a customs bond is available, where
eligible, for the distribution to domestic producers in
accordance with Continued Dumping and Subsidy Offset Act
(CDSOA) was agreed to by voice vote (with a quorum being
present). This amendment prohibits Customs from transferring to
the General Treasury any payment received under a bond so that
it is available to be distributed to domestic producers, where
applicable.
IV. BUDGET EFFECTS OF THE BILL
A. Committee Estimate of Budgetary Effects
In compliance with clause 3(d) of rule XIII of the Rules of
the House of Representatives, the following statement is made
concerning the effects on the budget of the bill, H.R. 1907, as
reported. The Committee believes the Congressional Budget
Office (CBO) over-estimated the cost of the amendment by Mr.
Boustany, and will continue to review the provision and
estimate with CBO.
B. Statement Regarding New Budget Authority and Tax Expenditures Budget
Authority
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee states that the
bill involves no new or increased budget authority. The
Committee states further that the bill involves no new or
increased tax expenditures.
C. Cost Estimate Prepared by the Congressional Budget Office
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, requiring a cost estimate
prepared by the CBO, the following statement by CBO is
provided.
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 4, 2015.
Hon. Paul Ryan,
Chairman, Committee on Ways and Means,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1907, the Trade
Facilitation and Trade Enforcement Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 1907--Trade Facilitation and Trade Enforcement Act of 2015
Summary: H.R. 1907 would amend various trade statutes with
the goal of strengthening agency enforcement efforts and
improving the efficiency of the regulatory process. The bill
would:
Authorize the appropriation of $154 million
annually over the 2016-2018 period for the Automated
Commercial Environment program in Customs and Border
Protection (CBP);
Require the International Trade Administration
(ITA) to develop a system to investigate allegations of
antidumping and countervailing duty evasion and would
require CBP to improve and expand several trade
regulation programs;
Extend the authority to collect and increase
the rate of certain customs user fees;
Improve the claims process for refunds on
duties paid for certain imported merchandise and
increase the minimum value of goods for which duties
must be paid; and
Increase the amount available for distribution
to eligible parties under the Continued Dumping and
Subsidy Offset Act (CDSOA).
CBO estimates that enacting the bill would reduce revenues
by $203 million over the 2015-2025 period and reduce direct
spending by $4 million over the same period, resulting in a net
increase in deficits over the 11-year period of $199 million.
Pay-as-you-go procedures apply because enacting the legislation
would affect direct spending and revenues. In addition,
assuming appropriation of the necessary amounts, CBO estimates
that implementing H.R. 1907 would cost $944 million over the
2016-2020 period.
H.R. 1907 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA), and would impose no
costs on state, local, or tribal governments.
H.R. 1907 contains private-sector mandates on entities
required to pay merchandise processing fees. CBO estimates the
aggregate cost of the mandates would exceed the annual
threshold established in UMRA for private-sector mandates ($154
million in 2015, adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary effect of H.R. 1907 is shown in the following table.
The costs of this legislation fall within budget functions 370
(advancement of commerce) and 750 (administration of justice).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------------------------------------------------------------------------
2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2015-2020 2015-2025
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CHANGES IN DIRECT SPENDINGa
Customs User Fees:
Estimated Budget Authority.............................. 0 0 0 0 0 0 0 0 0 0 -204 0 -204
Estimated Outlays....................................... 0 20 21 22 23 25 27 21 17 13 11 111 200
Payment of Interest on Certain Distributions Under the
Continued Dumping and Subsidy Offset Act:
Estimated Budget Authority.......................... 0 20 21 22 23 25 27 21 17 13 -193 111 -4
Estimated Outlays................................... 0 20 21 22 23 25 27 21 17 13 -193 111 -4
Total Changes:
Estimated Budget Authority.......................... 0 20 21 22 23 25 27 21 17 13 -193 111 -4
Estimated Outlays................................... 0 20 21 22 23 25 27 21 17 13 -193 111 -4
CHANGES IN REVENUES
Change in De Minimis Value.................................. -3 -14 -15 -15 -16 -17 -17 -18 -19 -20 -22 -80 -176
Drawback Procedures......................................... 0 0 -2 -3 -3 -3 -3 -3 -3 -3 -4 -11 -27
Total Changes........................................... -3 -14 -17 -18 -19 -20 -20 -21 -22 -23 -26 -91 -203
NET INCREASE OR DECREASE (-) IN THE DEFICIT FROM CHANGES IN DIRECT SPENDING AND REVENUES
Impact on Deficit........................................... 3 34 38 40 42 45 47 42 39 36 -167 202 199
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Automated Commercial Environment:
Authorization Level..................................... 0 154 154 154 0 0 0 0 0 0 0 461 461
Estimated Outlays....................................... 0 108 154 154 46 0 0 0 0 0 0 461 461
CBP Trade Programs and Reports:
Estimated Authorization Level........................... 0 48 88 90 93 96 98 101 104 107 110 415 936
Estimated Outlays....................................... 0 43 84 90 93 95 98 101 104 107 110 405 925
Investigation of Evasion of Trade Remedy Laws:
Estimated Authorization Level........................... 0 9 18 19 19 19 20 20 21 21 22 84 188
Estimated Outlays....................................... 0 7 15 18 19 19 20 20 21 21 22 78 180
Total Changes
Estimated Authorization Level....................... 0 210 260 263 112 115 118 121 125 128 132 960 1,585
Estimated Outlays................................... 0 157 253 261 158 114 118 121 124 128 131 944 1,566
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Notes: This estimate assumes H.R. 1907 is enacted by July 1, 2015; * = between zero and $500,000. For direct spending, negative numbers indicate a decrease in outlays; for revenues, negative
numbers indicate a reduction in revenues. Components may not sum to totals because of rounding.
CBP = Customs and Border Protection.
a On April 23, 2015, the House Committee on Ways and Means approved a package of three trade bills: H.R. 1891, H.R. 1907, and H.R. 1892. For the purposes of this estimate, CBO assumes that
H.R. 1891 will be enacted before H.R. 1907. (H.R. 1891 would extend the authority to charge merchandise processing fees from September 30, 2024, through July 7, 2025.)
Basis of estimate: For this estimate, CBO assumes that H.R.
1907 will be enacted by July 1, 2015.
Direct spending
CBO estimates that enacting H.R. 1907 would increase direct
spending by $111 million over the 2015-2020 period and would
decrease spending by $4 million over the 2015-2025 period.
Customs User Fees. Under current law, the authority to
charge merchandise processing fees collected by CBP will expire
after September 30, 2024. H.R. 1907 would permit those fees to
be collected during the period beginning July 8, 2025, and
ending July 28, 2025. The bill also would raise the rate of the
merchandise processing fee from 0.21 percent to 0.3464 percent
of the value of goods entering the U.S. for the period
beginning July 1, 2025, and ending July 14, 2025. CBO estimates
those actions would increase offsetting receipts (certain
collections that are treated as reductions in direct spending)
by $204 million in fiscal year 2025. To project collections of
merchandise processing fees, CBO assumes that the fees
collected in future years will grow at the same rate seen in
recent years--about 5 percent. In 2014 collections from the
merchandise processing fee totaled $2.3 billion. By 2024 CBO
estimates those collections will total about $2.7 billion under
current law. CBO expects that the proposed increase in the fee
rate would have a very minor effect on the value of goods
entering the U.S.
Payment of Interest on Certain Distributions Under the
Continued Dumping and Subsidy Offset Act. H.R. 1907 would
increase the amount available for distribution to eligible
parties under CDSOA. Under current law, CBP distributes
antidumping and countervailing (ADCV) duties that were assessed
on or after October 1, 2000, on goods that entered the United
States before October 1, 2007, to domestic parties that meet
the program's eligibility requirements. Based on information
from CBP, CBO estimates that enacting this provision would
increase direct spending by $200 million over the 2015-2025
period.
H.R. 1907 would direct CBP to include in the amount
distributed to eligible parties interest earned on certain
delinquent accounts. Specifically, in cases where CBP pursues
payment of ADCV duties through litigation with sureties that
provided customs bonds to guarantee payment, court-ordered
interest received above the bond amount would be added to the
distribution. This additional amount would apply only to cases
where distributions are made on or after enactment of H.R.
1907, from court-ordered payments received from sureties after
October 1, 2014.
Under current law, upon receipt of a court-ordered
settlement in CDSOA cases, CBP first deposits into the Treasury
any interest that accrued during the period of delinquency and
litigation; any amounts that remain after that are available
for distribution to eligible parties. Under H.R. 1907, those
interest amounts currently deposited in the Treasury would
instead be spent.
The CBP has 30 cases currently in litigation for delinquent
ADCV duties due from sureties, dating as far back as 2009;
based on the agency's experience with similar litigation, we
expect it will take about six years for all of those cases to
conclude. Further, we expect that CBP will bring an additional
15 cases against sureties for payment of delinquent duties over
the next five years and that CBP will receive payment for those
additional cases by the end of 2025.
Based on the average amount of delinquent ADCV duties and
the average amount of bond coverage associated with those 30
cases, CBO estimates that CBP will collect about $250 million
from sureties over the 2015-2025 period from court-ordered
awards. Further, based on the length of time that typically
elapses between the point when duties become delinquent until
completion of the judicial proceedings, we estimate that about
80 percent of that amount, $200 million, will represent accrued
interest that will be deposited into the Treasury. By making
interest collections payable to entities that are eligible to
receive distributions, CBO estimates that enacting H.R 1907
would increase direct spending by that amount.
Revenues
CBO estimates that enacting H.R. 1907 would decrease
revenues by $91 million over the 2015-2020 period and by $203
million over the 2015-2025 period.
Change in De Minimis Value. Under current law, importers
are not required to pay duties on shipments with a total value
of $200 or less. H.R. 1907 would increase that de minimis value
to $800. According to the U.S. Customs and Border Patrol, in
recent years duties collected on goods where each shipment was
valued between $200 and $800, averaged $17 million a year.
Considering that history and including anticipated growth in
the value of imported goods, CBO estimates that raising the de
minimis level to $800 would result in a revenue loss of $176
million over the 2015-2025 period, net of income and payroll
tax offsets.
Drawback Procedures. When goods imported into the country
are later exported or destroyed, the import duties originally
paid for those goods may be refunded. In addition, the
exporting or destroying of substitute goods--goods that are
comparable to such imports--may also qualify for such refunds.
H.R. 1907 would modify the claims process for such refunds--
which are known as ``drawbacks''--with the goal of simplifying
the process. The most notable changes to the claims process
include the following:
Requiring the use of existing category codes
to identify which goods may qualify as substitutes for
the purposes of drawbacks,
Standardizing and, in some cases, extending
the period during which drawback claims may be filed,
and
Eliminating the requirement for paper
documentation in certain drawback claims.
In 2014, roughly $470 million in duties on imported
merchandise was refunded in cases where substitutable goods
were later exported. Based on information from CBP, and
allowing for an initial period to write new regulations, CBO
estimates that enacting H.R. 1907 would increase refunds, and
therefore decrease revenues, by $27 million over the 2015-2025
period.
Penalties. H.R. 1907 would require customs brokers to
maintain records of the identity of their clients. It would
also require non-resident importers to designate an agent in
the United States with the power of attorney. The bill would
prescribe monetary penalties for violations of those
requirements. Under current law, CBP has broad authority to
regulate the activities of customs brokers and importers, as
well as assess monetary penalties for statutory or regulatory
violations. Based on information from CBP, CBO expects that any
additional monetary penalties resulting from enforcement of the
new requirements would be insignificant. Similarly, CBO
estimates that any change in customs duties that could result
from those requirements would also be insignificant.
Spending subject to appropriation
For this estimate, CBO assumes that the necessary
appropriations will be provided each year and that spending
will follow historical patterns for these programs. Under those
assumptions we estimate that implementing H.R. 1907 would cost
$944 million over the 2015-2020 period.
Automated Commercial Environment. H.R. 1907 would authorize
the appropriation of $154 million annually over the 2016-2018
period for the Automated Commercial Environment (ACE), a trade
management system operated by CBP. For fiscal year 2014, $141
million was appropriated for ACE. CBO estimates that
implementing this provision would cost $461 million over the
2016-2019 period.
CBP Trade Programs and Reports. H.R. 1907 would direct CBP
to improve and expand several trade enforcement and
facilitation programs, including validation of new importers
and protection of copyrights and intellectual property rights.
The bill also would require about a dozen new reports to the
Congress relating to trade issues, mostly from CBP and the
Government Accountability Office. Based on preliminary
information from Customs and the costs of similar activities,
we estimate that the additional programs and reports would cost
$405 million over the 2015-2020 period, mostly to hire new CBP
employees.
Investigation of Evasion of Trade Remedy Laws. Title IV
would require the ITA to develop a system to investigate
allegations of antidumping and countervailing duty evasion.
Those investigations would be opened based on reports that are
supported by reasonable evidence, and must be completed within
300 days of initiation. Based on information from the ITA, CBO
expects that the agency would establish a new unit to carry out
the investigations, which are separate from current efforts to
administer antidumping and countervailing duty laws.
CBO assumes that the agency would ultimately add 82 staff
positions, at an average cost of about $240,000 per year
including salaries, benefits, and overhead, to carry out the
new requirements. CBO estimates that implementing these
provisions of H.R. 1907 would cost $78 million over the 2015-
2020 period.
Pay-as-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in outlays and revenues that are
subject to those pay-as-you-go procedures are shown in the
following table.
CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR H.R. 1907, AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON WAYS AND MEANS ON APRIL 23, 2015
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------------------------------------------------------------------------------------
2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2015-2020 2015-2025
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE OR DECREASE (-) IN THE DEFICIT
Statutory Pay-As-You-Go Impact................................. 3 34 38 40 42 45 47 42 39 36 -167 202 199
Memorandum:
Changes in Outlays......................................... 0 20 21 22 23 25 27 21 17 13 -193 111 -4
Changes in Revenues........................................ -3 -14 -17 -18 -19 -20 -20 -21 -22 -23 -26 -91 -203
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated impact on state, local, and tribal governments:
H.R. 1907 contains no intergovernmental mandates as defined in
UMRA, and would impose no costs on state, local, or tribal
governments.
Estimated impact on the private sector: H.R. 1907 would
impose private-sector mandates, as defined in UMRA, on entities
required to pay merchandise processing fees. The bill would
extend those fees for the period July 8, 2025, through July 28,
2025, and raise the fee rate beginning July 1, 2025, and ending
July 14, 2025. CBO estimates that the incremental cost of the
fees would amount to $204 million in 2025. Thus, the aggregate
cost of the mandates would exceed the annual threshold
established in UMRA for private-sector mandates in that year
($154 million in 2015, adjusted annually for inflation).
Estimate prepared by: Federal costs: Mark Grabowicz and
Susan Willie; Federal revenues: Ann Futrell and Nate Frentz;
Impact on state, local, and tribal governments: Jon Sperl;
Impact on the private sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Assistant Director for
Budget Analysis.
V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE
A. Committee Oversight Findings and Recommendations
With respect to clause 3(c)(1) of rule XIII of the Rules of
the House of Representatives (relating to oversight findings),
the Committee advises that it was as a result of the
Committee's review of the provisions of H.R. 1907 that the
Committee concluded that it is appropriate to report the bill,
as amended, favorably to the House of Representatives with the
recommendation that the bill do pass.
B. Statement of General Performance Goals and Objectives
With respect to clause 3(c)(4) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
bill contains no measure that authorizes funding, so no
statement of general performance goals and objectives for which
any measure authorizes funding is required.
C. Information Relating to Unfunded Mandates
This information is provided in accordance with section 423
of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. No.
104-4).
The Committee states that, according to the Congressional
Budget Office (CBO), the provision related to Customs user fees
would impose a private sector mandate, as defined by UMRA, but
would not impose intergovernmental mandates or costs on state,
local, or tribal governments.
D. Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits
With respect to clause 9 of rule XXI of the Rules of the
House of Representatives, the Committee has carefully reviewed
the provisions of the bill, and states that the provisions of
the bill do not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits within the meaning of the
rule.
E. Duplication of Federal Programs
In compliance with Sec. 3(g)(2) of H. Res. 5 (114th
Congress), the Committee states that no provision of the bill
establishes or reauthorizes: (1) a program of the Federal
Government known to be duplicative of another Federal program;
(2) a program included in any report from the Government
Accountability Office to Congress pursuant to section 21 of
Public Law 111-139; or (3) a program related to a program
identified in the most recent Catalog of Federal Domestic
Assistance, published pursuant to the Federal Program
Information Act (Pub. L. No. 95-220, as amended by Pub. L. No.
98-169).
F. Disclosure of Directed Rule Makings
In compliance with Sec. 3(i) of H. Res. 5 (114th Congress),
the following statement is made concerning directed rule
makings: The Committee estimates that the bill requires no
directed rule makings within the meaning of such section.
VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
A. Text of Existing Law Amended or Repealed by the Bill, as Reported
In compliance with clause 3(e)(1)(A) of rule XIII of the
Rules of the House of Representatives, the text of each section
proposed to be amended or repealed by the bill, as reported, is
shown below:
CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT OF 1985
* * * * * * *
SEC. 13031. FEES FOR CERTAIN CUSTOMS SERVICES.
(a) Schedule of Fees.--In addition to any other fee
authorized by law, the Secretary of the Treasury shall charge
and collect the following fees for the provision of customs
services in connection with the following:
(1) For the arrival of a commercial vessel of 100 net
tons or more, $397.
(2) For the arrival of a commercial truck, $5.
(3) For the arrival of each railroad car carrying
passengers or commercial freight, $7.50.
(4) For all arrivals made during a calendar year by a
private vessel or private aircraft, $25.
(5)(A) Subject to subparagraph (B), for the arrival
of each passenger aboard a commercial vessel or
commercial aircraft from a place outside the United
States (other than a place referred to in subsection
(b)(1)(A)(i) of this section), $5.
(B) For the arrival of each passenger aboard a
commercial vessel from a place referred to in
subsection (b)(1)(A)(i) of this section, $1.75.
(6) For each item of dutiable mail for which a
document is prepared by a customs officer, $5.
(7) For each customs broker permit held by an
individual, partnership, association, or corporate
customs broker, $125 per year.
(8) For the arrival of a barge or other bulk carrier
from Canada or Mexico, $100.
(9)(A) For the processing of merchandise that is
formally entered or released during any fiscal year, a
fee in an amount equal to 0.21 percent ad valorem,
unless adjusted under subparagraph (B).
(B)(i) The Secretary of the Treasury may adjust the
ad valorem rate specified in subparagraph (A) to an ad
valorem rate (but not to a rate of more than 0.21
percent nor less than 0.15 percent) and the amounts
specified in subsection (b)(8)(A)(i) (but not to more
than $485 nor less than $21) to rates and amounts which
would, if charged, offset the salaries and expenses
that will likely be incurred by the Customs Service in
the processing of such entries and releases during the
fiscal year in which such costs are incurred.
(ii) In determining the amount of any adjustment
under clause (i), the Secretary of the Treasury shall
take into account whether there is a surplus or deficit
in the fund established under subsection (f) with
respect to the provision of customs services for the
processing of formal entries and releases of
merchandise.
(iii) An adjustment may not be made under clause (i)
with respect to the fee charged during any fiscal year
unless the Secretary of the Treasury--
(I) not later than 45 days after the date of
the enactment of the Act providing full-year
appropriations for the Customs Service for that
fiscal year, publishes in the Federal Register
a notice of intent to adjust the fee under this
paragraph and the amount of such adjustment;
(II) provides a period of not less than 30
days following publication of the notice
described in subclause (I) for public comment
and consultation with the Committee on Finance
of the Senate and the Committee on Ways and
Means of the House of Representatives regarding
the proposed adjustment and the methodology
used to determine such adjustment;
(III) upon the expiration of the period
provided under subclause (II), notifies such
committees in writing regarding the final
determination to adjust the fee, the amount of
such adjustment, and the methodology used to
determine such adjustment; and
(IV) upon the expiration of the 15-day period
following the written notification described in
subclause (III), submits for publication in the
Federal Register notice of the final
determination regarding the adjustment of the
fee.
(iv) The 15-day period referred to in clause
(iii)(IV) shall be computed by excluding--
(I) the days on which either House is not in
session because of an adjournment of more than
3 days to a day certain or an adjournment of
the Congress sine die; and
(II) any Saturday and Sunday, not excluded
under subclause (I), when either House is not
in session.
(v) An adjustment made under this subparagraph shall
become effective with respect to formal entries and
releases made on or after the 15th calendar day after
the date of publication of the notice described in
clause (iii)(IV) and shall remain in effect until
adjusted under this subparagraph.
(C) Any fee charged under this paragraph, whether or
not adjusted under subparagraph (B), is subject to the
limitations in subsection (b)(8)(A).
(10) For the processing of merchandise that is
informally entered or released, other than at--
(A) a centralized hub facility,
(B) an express consignment carrier facility,
or
(C) a small airport or other facility to
which section 236 of the Trade and Tariff Act
of 1984 applies, if more than 25,000 informal
entries were cleared through such airport or
facility during the fiscal year preceding such
entry or release, a fee of--
(i) $2 if the entry or release is
automated and not prepared by customs
personnel;
(ii) $6 if the entry or release is
manual and not prepared by customs
personnel; or
(iii) $9 if the entry or release,
whether automated or manual, is
prepared by customs personnel.
For provisions relating to the informal entry
or release of merchandise at facilities
referred to in subparagraphs (A), (B), and (C),
see subsection (b)(9).
(b) Limitations on Fees.--(1)(A) Except as provided in
subsection (a)(5)(B) of this section, no fee may be charged
under subsection (a) of this section for customs services
provided in connection with--
(i) the arrival of any passenger whose journey--
(I) originated in a territory or possession
of the United States; or
(II) originated in the United States and was
limited to territories and possessions of the
United States;
(ii) the arrival of any railroad car the journey of
which originates and terminates in the same country,
but only if no passengers board or disembark from the
train and no cargo is loaded or unloaded from such car
while the car is within any country other than the
country in which such car originates and terminates;
(iii) the arrival of a ferry, except for a ferry
whose operations begin on or after August 1, 1999, and
that operates south of 27 degrees latitude and east of
89 degrees longitude; or
(iv) the arrival of any passenger on board a
commercial vessel traveling only between ports which
are within the customs territory of the United States.
(B) The exemption provided for in subparagraph (A) shall not
apply in the case of the arrival of any passenger on board a
commercial vessel whose journey originates and terminates at
the same place in the United States if there are no intervening
stops.
(C) The exemption provided for in subparagraph (A)(i) shall
not apply to fiscal years 1994, 1995, 1996, and 1997.
(2) No fee may be charged under subsection (a)(2) for the
arrival of a commercial truck during any calendar year after a
total of $100 in fees has been paid to the Secretary of the
Treasury for the provision of customs services for all arrivals
of such commercial truck during such calendar year.
(3) No fee may be charged under subsection (a)(3) for the
arrival of a railroad car whether passenger or freight during
any calendar year after a total of $100 in fees has been paid
to the Secretary of the Treasury for the provision of customs
services for all arrivals of such passenger or freight rail car
during such calendar year.
(4)(A) No fee may be charged under subsection (a)(5) with
respect to the arrival of any passenger--
(i) who is in transit to a destination outside the
customs territory of the United States, and
(ii) for whom customs inspectional services are not
provided.
(B) In the case of a commercial vessel making a single voyage
involving 2 or more United States ports with respect to which
the passengers would otherwise be charged a fee pursuant to
subsection (a)(5), such fee shall be charged only 1 time for
each passenger.
(5) No fee may be charged under subsection (a)(1) for the
arrival of--
(A) a vessel during a calendar year after a total of
$5,955 in fees charged under paragraph (1) or (8) of
subsection (a) has been paid to the Secretary of the
Treasury for the provision of customs services for all
arrivals of such vessel during such calendar year,
(B) any vessel which, at the time of the arrival, is
being used solely as a tugboat, or
(C) any barge or other bulk carrier from Canada or
Mexico.
(6) No fee may be charged under subsection (a)(8) for the
arrival of a barge or other bulk carrier during a calendar year
after a total of $1,500 in fees charged under paragraph (1) or
(8) of subsection (a) has been paid to the Secretary of the
Treasury for the provision of customs services for all arrivals
of such barge or other bulk carrier during such calendar year.
(7) No fee may be charged under paragraph (2), (3), or (4) of
subsection (a) for the arrival of any--
(A) commercial truck,
(B) railroad car, or
(C) private vessel,
that is being transported, at the time of the arrival, by any
vessel that is not a ferry.
(8)(A)(i) Subject to clause (ii), the fee charged under
subsection (a)(9) for the formal entry or release of
merchandise may not exceed $485 or be less than $25, unless
adjusted pursuant to subsection (a)(9)(B).
(ii) A surcharge of $3 shall be added to the fee determined
after application of clause (i) for any manual entry or release
of merchandise.
(B) No fee may be charged under subsection (a) (9) or (10)
for the processing of any article that is--
(i) provided for under any item in chapter 98 of the
Harmonized Tariff Schedule of the United States, except
subheading 9802.00.60 or 9802.00.80,
(ii) a product of an insular possession of the United
States, or
(iii) a product of any country listed in subdivision
(c)(ii)(B) or (c)(v) of general note 3 to such
Schedule.
(C) For purposes of applying subsection (a) (9) or (10)--
(i) expenses incurred by the Secretary of the
Treasury in the processing of merchandise do not
include costs incurred in--
(I) air passenger processing,
(II) export control, or
(III) international affairs, and
(ii) any reference to a manual formal or informal
entry or release includes any entry or release filed by
a broker or importer that requires the inputting of
cargo selectivity data into the Automated Commercial
System by customs personnel, except when--
(I) the broker or importer is certified as an
ABI cargo release filer under the Automated
Commercial System at any port within the United
States, or
(II) the entry or release is filed at ports
prior to the full implementation of the cargo
selectivity data system by the Customs Service
at such ports.
(D) The fee charged under subsection (a)(9) or (10) with
respect to the processing of merchandise shall--
(i) be paid by the importer of record of the
merchandise;
(ii) except as otherwise provided in this paragraph,
be based on the value of the merchandise as determined
under section 402 of the Tariff Act of 1930;
(iii) in the case of merchandise classified under
subheading 9802.00.60 of the Harmonized Tariff Schedule
of the United States, be applied to the value of the
foreign repairs or alterations to the merchandise;
(iv) in the case of merchandise classified under
heading 9802.00.80 of such Schedule, be applied to the
full value of the merchandise, less the cost or value
of the component United States products;
(v) in the case of agricultural products of the
United States that are processed and packed in a
foreign trade zone, be applied only to the value of
material used to make the container for such
merchandise, if such merchandise is subject to entry
and the container is of a kind normally used for
packing such merchandise; and
(vi) in the case of merchandise entered from a
foreign trade zone (other than merchandise to which
clause (v) applies), be applied only to the value of
the privileged or nonprivileged foreign status
merchandise under section 3 of the Act of June 18, 1934
(commonly known as the Foreign Trade Zones Act, 19
U.S.C. 81c).
With respect to merchandise that is classified under subheading
9802.00.60 or heading 9802.00.80 of such Schedule and is duty-
free, the Secretary may collect the fee charged on the
processing of the merchandise under subsection (a) (9) or (10)
on the basis of aggregate data derived from financial and
manufacturing reports used by the importer in the normal course
of business, rather than on the basis of entry-by-entry
accounting.
(E) For purposes of subsection (a) (9) and (10), merchandise
is entered or released, as the case may be, if the merchandise
is--
(i) permitted or released under section 448(b) of the
Tariff Act of 1930,
(ii) entered or released from customs custody under
section 484(a)(1)(A) of the Tariff Act of 1930, or
(iii) withdrawn from warehouse for consumption.
(9)(A) With respect to the processing of letters, documents,
records, shipments, merchandise, or any other item that is
valued at an amount that is $2,000 or less (or such higher
amount as the Secretary of the Treasury may set by regulation
pursuant to section 498 of the Tariff Act of 1930), except such
items entered for transportation and exportation or immediate
exportation at a centralized hub facility, an express
consignment carrier facility, or a small airport or other
facility, the following reimbursements and payments are
required:
(i) In the case of a small airport or other
facility--
(I) the reimbursement which such facility is
required to make during the fiscal year under
section 9701 of title 31, United States Code or
section 236 of the Trade and Tariff Act of
1984; and
(II) an annual payment by the facility to the
Secretary of the Treasury, which is in lieu of
the payment of fees under subsection (a)(10)
for such fiscal year, in an amount equal to the
reimbursement under subclause (I).
(ii) Notwithstanding subsection (e)(6) and subject to
the provisions of subparagraph (B), in the case of an
express consignment carrier facility or centralized hub
facility--
(I) $.66 per individual airway bill or bill
of lading; and
(II) if the merchandise is formally entered,
the fee provided for in subsection (a)(9), if
applicable.
(B)(i) Beginning in fiscal year 2004, the Secretary of the
Treasury may adjust (not more than once per fiscal year) the
amount described in subparagraph (A)(ii) to an amount that is
not less than $.35 and not more than $1.00 per individual
airway bill or bill of lading. The Secretary shall provide
notice in the Federal Register of a proposed adjustment under
the preceding sentence and the reasons therefor and shall allow
for public comment on the proposed adjustment.
(ii) Notwithstanding section 451 of the
Tariff Act of 1930, the payment required by
subparagraph (A)(ii) (I) or (II) shall be the
only payment required for reimbursement of the
Customs Service in connection with the
processing of an individual airway bill or bill
of lading in accordance with such subparagraph
and for providing services at express
consignment carrier facilities or centralized
hub facilities, except that the Customs Service
may require such facilities to cover expenses
of the Customs Service for adequate office
space, equipment, furnishings, supplies, and
security.
(iii)(I) The payment required by subparagraph
(A)(ii) and clause (ii) of this subparagraph
shall be paid on a quarterly basis by the
carrier using the facility to the Customs
Service in accordance with regulations
prescribed by the Secretary of the Treasury.
(II) 50 percent of the amount of payments
received under subparagraph (A)(ii) and clause
(ii) of this subparagraph shall, in accordance
with section 524 of the Tariff Act of 1930, be
deposited in the Customs User Fee Account and
shall be used to directly reimburse each
appropriation for the amount paid out of that
appropriation for the costs incurred in
providing services to express consignment
carrier facilities or centralized hub
facilities. Amounts deposited in accordance
with the preceding sentence shall be available
until expended for the provision of customs
services to express consignment carrier
facilities or centralized hub facilities.
(III) Notwithstanding section 524 of the
Tariff Act of 1930, the remaining 50 percent of
the amount of payments received under
subparagraph (A)(ii) and clause (ii) of this
subparagraph shall be paid to the Secretary of
the Treasury, which is in lieu of the payment
of fees under subsection (a)(10) of this
section.
(C) For purposes of this paragraph:
(i) The terms ``centralized hub facility'' and
``express consignment carrier facility'' have the
respective meanings that are applied to such terms in
part 128 of chapter I of title 19, Code of Federal
Regulations. Nothing in this paragraph shall be
construed as prohibiting the Secretary of the Treasury
from processing merchandise that is informally entered
or released at any centralized hub facility or express
consignment carrier facility during the normal
operating hours of the Customs Service, subject to
reimbursement and payment under subparagraph (A).
(ii) The term ``small airport or other facility''
means any airport or facility to which section 236 of
the Trade and Tariff Act of 1984 applies, if more than
25,000 informal entries were cleared through such
airport or facility during the preceding fiscal year.
(10)(A) The fee charged under subsection (a) (9) or (10) with
respect to goods of Canadian origin (as determined under
section 202 of the United States-Canada Free-Trade Agreement
Implementation Act of 1988) when the United States-Canada Free-
Trade Agreement is in force shall be in accordance with article
403 of that Agreement.
(B) For goods qualifying under the rules of origin set out in
section 202 of the North American Free Trade Agreement
Implementation Act, the fee under subsection (a) (9) or (10)--
(i) may not be charged with respect to goods that
qualify to be marked as goods of Canada pursuant to
Annex 311 of the North American Free Trade Agreement,
for such time as Canada is a NAFTA country, as defined
in section 2(4) of such Implementation Act; and
(ii) may not be increased after December 31, 1993,
and may not be charged after June 29, 1999, with
respect to goods that qualify to be marked as goods of
Mexico pursuant to such Annex 311, for such time as
Mexico is a NAFTA country.
Any service for which an exemption from such fee is provided by
reason of this paragraph may not be funded with money contained
in the Customs User Fee Account.
(11) No fee may be charged under subsection (a) (9) or (10)
with respect to products of Israel if an exemption with respect
to the fee is implemented under section 112 of the Customs and
Trade Act of 1990.
(12) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 202 of the United States-Chile Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(13) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 202 of the United States-Singapore Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(14) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 203 of the United States-Australia Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(15) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 203 of the Dominican Republic-Central America-United
States Free Trade Agreement Implementation Act. Any service for
which an exemption from such fee is provided by reason of this
paragraph may not be funded with money contained in the Customs
User Fee Account.
(16) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 202 of the United States-Bahrain Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(17) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 202 of the United States-Oman Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(18) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 203 of the United States-Peru Trade Promotion Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(19) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 202 of the United States-Korea Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(20) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 203 of the United States-Colombia Trade Promotion
Agreement Implementation Act. Any service for which an
exemption from such fee is provided by reason of this paragraph
may not be funded with money contained in the Customs User Fee
Account.
(21) No fee may be charged under subsection (a)(9) or (10)
with respect to goods that qualify as originating goods under
section 203 of the United States-Panama Trade Promotion
Agreement Implementation Act. Any service for which an
exemption from such fee is provided by reason of this paragraph
may not be funded with money contained in the Customs User Fee
Account.
(c) Definitions.--For purposes of this section--
(1) The term ``ferry'' means any vessel which is
being used--
(A) to provide transportation only between
places that are no more than 300 miles apart,
and
(B) to transport only--
(i) passengers, or
(ii) vehicles, or railroad cars,
which are being used, or have been
used, in transporting passengers or
goods.
(2) The term ``arrival'' means arrival at a port of
entry in the customs territory of the United States.
(3) The term ``customs territory of the United
States'' has the meaning given to such term by general
note 2 of the Harmonized Tariff Schedule of the United
States.
(4) The term ``customs broker permit'' means a permit
issued under section 641(c) of the Tariff Act of 1930
(19 U.S.C. 1641(c)).
(5) The term ``barge or other bulk carrier'' means
any vessel which--
(A) is not self-propelled, or
(B) transports fungible goods that are not
packaged in any form.
(d) Collection.--(1) Each person that issues a document or
ticket to an individual for transportation by a commercial
vessel or commercial aircraft into the customs territory of the
United States shall--
(A) collect from that individual the fee charged
under subsection (a)(5) at the time the document or
ticket is issued; and
(B) separately identify on that document or ticket
the fee charged under subsection (a)(5) as a Federal
inspection fee.
(2) If--
(A) a document or ticket for transportation of a
passenger into the customs territory of the United
States is issued in a foreign country; and
(B) the fee charged under subsection (a)(5) is not
collected at the time such document or ticket is
issued;
the person providing transportation to such passenger shall
collect such fee at the time such passenger departs from the
customs territory of the United States and shall provide such
passenger a receipt for the payment of such fee.
(3) The person who collects fees under paragraph (1) or (2)
shall remit those fees to the Secretary of the Treasury at any
time before the date that is 31 days after the close of the
calendar quarter in which the fees are collected.
(4)(A) Notice of the date on which payment of the fee imposed
by subsection (a)(7) is due shall be published by the Secretary
of the Treasury in the Federal Register by no later than the
date that is 60 days before such due date.
(B) A customs broker permit may be revoked or suspended for
nonpayment of the fee imposed by subsection (a)(7) only if
notice of the date on which payment of such fee is due was
published in the Federal Register at least 60 days before such
due date.
(C) The customs broker's license issued under section 641(b)
of the Tariff Act of 1930 (19 U.S.C. 1641(b)) may not be
revoked or suspended merely by reason of nonpayment of the fee
imposed under subsection (a)(7).
(e) Provision of Customs Services.--
(1) Notwithstanding section 451 of the Tariff Act of 1930 (19
U.S.C. 1451) or any other provision of law (other than
paragraph (2)), the customs services required to be provided to
passengers upon arrival in the United States shall be
adequately provided in connection with scheduled airline
flights at customs serviced airports when needed and at no cost
(other than the fees imposed under subsection (a)) to airlines
and airline passengers.
(2)(A) This subsection shall not apply with respect to any
airport to which section 236 of the Trade and Tariff Act of
1984 (19 U.S.C. 58b) applies.
(B) Subparagraph (C) of paragraph (6) shall not apply with
respect to any foreign trade zone or subzone that is located
at, or in the vicinity of, an airport to which section 236 of
the Trade and Tariff Act of 1984 applies.
(3) Notwithstanding section 451 of the Tariff Act of 1930 (19
U.S.C. 1451) or any other provision of law--
(A) the customs services required to be provided to
passengers upon arrival in the United States shall be
adequately provided in connection with scheduled
airline flights when needed at places located outside
the customs territory of the United States at which a
customs officer is stationed for the purpose of
providing such customs services, and
(B) other than the fees imposed under subsection (a),
the airlines and airline passengers shall not be
required to reimburse the Secretary of the Treasury for
the costs of providing overtime customs inspectional
services at such places.
(4) Notwithstanding any other provision of law, all customs
services (including, but not limited to, normal and overtime
clearance and preclearance services) shall be adequately
provided, when requested, for--
(A) the clearance of any commercial vessel, vehicle,
or aircraft or its passengers, crew, stores, material,
or cargo arriving, departing, or transiting the United
States;
(B) the preclearance at any customs facility outside
the United States of any commercial vessel, vehicle or
aircraft or its passengers, crew, stores, material, or
cargo; and
(C) the inspection or release of commercial cargo or
other commercial shipments being entered into, or
withdrawn from, the customs territory of the United
States.
(5) For purposes of this subsection, customs services shall
be treated as being ``adequately provided'' if such of those
services that are necessary to meet the needs of parties
subject to customs inspection are provided in a timely manner
taking into account factors such as--
(A) the unavoidability of weather, mechanical, and
other delays;
(B) the necessity for prompt and efficient passenger
and baggage clearance;
(C) the perishability of cargo;
(D) the desirability or unavoidability of late night
and early morning arrivals from various time zones;
(E) the availability (in accordance with regulations
prescribed under subsection (g)(2)) of customs
personnel and resources; and
(F) the need for specific enforcement checks.
(6) Notwithstanding any other provision of law except
paragraph (2), during any period when fees are authorized under
subsection (a), no charges, other than such fees, may be
collected--
(A) for any--
(i) cargo inspection, clearance, or other
customs activity, expense, or service performed
(regardless whether performed outside of normal
business hours on an overtime basis), or
(ii) customs personnel provided,
in connection with the arrival or departure of any
commercial vessel, vehicle, or aircraft, or its
passengers, crew, stores, material, or cargo, in the
United States;
(B) for any preclearance or other customs activity,
expense, or service performed, and any customs
personnel provided, outside the United States in
connection with the departure of any commercial vessel,
vehicle, or aircraft, or its passengers, crew, stores,
material, or cargo, for the United States; or
(C) in connection with--
(i) the activation or operation (including
Customs Service supervision) of any foreign
trade zone or subzone established under the Act
of June 18, 1934 (commonly known as the Foreign
Trade Zones Act, 19 U.S.C. 81a et seq.), or
(ii) the designation or operation (including
Customs Service supervision) of any bonded
warehouse under section 555 of the Tariff Act
of 1930 (19 U.S.C. 1555).
(f) Disposition of Fees.--(1) There is established in the
general fund of the Treasury a separate account which shall be
known as the ``Customs User Fee Account''. Notwithstanding
section 524 of the Tariff Act of 1930 (19 U.S.C. 1524), there
shall be deposited as offsetting receipts into the Customs User
Fee Account all fees collected under subsection (a) except--
(A) the portion of such fees that is required under
paragraph (3) for the direct reimbursement of
appropriations, and
(B) amounts deposited into the Customs Commercial and
Homeland Security Automation Account under paragraph
(4).
(2) Except as otherwise provided in this subsection, all
funds in the Customs User Fee Account shall be available, to
the extent provided for in appropriations Acts, to pay the
costs (other than costs for which direct reimbursement under
paragraph (3) is required) incurred by the United States
Customs Service in conducting customs revenue functions as
defined in section 415 of the Homeland Security Act of 2002
(other than functions performed by the Office of International
Affairs referred to in section 415(8) of that Act), and for
automation (including the Automation Commercial Environment
computer system), and for no other purpose. To the extent that
funds in the Customs User Fee Account are insufficient to pay
the costs of such customs revenue functions, customs duties in
an amount equal to the amount of such insufficiency shall be
available, to the extent provided for in appropriations Acts,
to pay the costs of such customs revenue functions in the
amount of such insufficiency, and shall be available for no
other purpose. The provisions of the first and second sentences
of this paragraph specifying the purposes for which amounts in
the Customs User Fee Account may be made available shall not be
superseded except by a provision of law which specifically
modifies or supersedes such provisions. So long as there is a
surplus of funds in the Customs User Fee Account, the Secretary
of the Treasury may not reduce personnel staffing levels for
providing commercial clearance and preclearance services.
(3)(A) The Secretary of the Treasury, in accordance with
section 524 of the Tariff Act of 1930 and subject to
subparagraph (B), shall directly reimburse, from the fees
collected under subsection (a) (other than the fees under
subsection (a) (9) and (10) and the excess fees determined by
the Secretary under paragraph (4)), each appropriation for the
amount paid out of that appropriation for the costs incurred by
the Secretary--
(i) in--
(I) paying overtime compensation under
section 5(a) of the Act of February 13, 1911,
(II) paying premium pay under section 5(b) of
the Act of February 13, 1911, but the amount
for which reimbursement may be made under this
subclause may not, for any fiscal year, exceed
the difference between the total cost of all
the premium pay for such year calculated under
section 5(b) and the cost of the night and
holiday premium pay that the Customs Service
would have incurred for the same inspectional
work on the day before the effective date of
section 13813 of the Omnibus Budget
Reconciliation Act of 1993,
(III) paying agency contributions to the
Civil Service Retirement and Disability Fund to
match deductions from the overtime compensation
paid under subclause (I),
(IV) providing all preclearance services for
which the recipients of such services are not
required to reimburse the Secretary of the
Treasury, and
(V) paying foreign language proficiency
awards under section 13812(b) of the Omnibus
Budget Reconciliation Act of 1993,
(ii) to the extent funds remain available after
making reimbursements under clause (i), in providing
salaries for full-time and part-time inspectional
personnel and equipment that enhance customs services
for those persons or entities that are required to pay
fees under paragraphs (1) through (8) of subsection (a)
(distributed on a basis proportionate to the fees
collected under paragraphs (1) through (8) of
subsection (a), and
(iii) to the extent funds remain available after
making reimbursements under clause (ii), in providing
salaries for up to 50 full-time equivalent inspectional
positions to provide preclearance services.
The transfer of funds required under subparagraph (C)(iii) has
priority over reimbursements under this subparagraph to carry
out subclauses (II), (III), (IV), and (V) of clause (i). Funds
described in clause (ii) shall only be available to reimburse
costs in excess of the highest amount appropriated for such
costs during the period beginning with fiscal year 1990 and
ending with the current fiscal year.
(B) Reimbursement of appropriations under this paragraph--
(i) shall be subject to apportionment or similar
administrative practices;
(ii) shall be made at least quarterly; and
(iii) to the extent necessary, may be made on the
basis of estimates made by the Secretary of the
Treasury and adjustments shall be made in subsequent
reimbursements to the extent that the estimates were in
excess of, or less than, the amounts required to be
reimbursed.
(C)(i) For fiscal year 1991 and subsequent fiscal years, the
amount required to reimburse costs described in subparagraph
(A)(i) shall be projected from actual requirements, and only
the excess of collections over such projected costs for such
fiscal year shall be used as provided in subparagraph (A)(ii).
(ii) The excess of collections over inspectional overtime and
preclearance costs (under subparagraph (A)(i)) reimbursed for
fiscal years 1989 and 1990 shall be available in fiscal year
1991 and subsequent fiscal years for the purposes described in
subparagraph (A)(ii), except that $30,000,000 of such excess
shall remain without fiscal year limitation in a contingency
fund and, in any fiscal year in which receipts are insufficient
to cover the costs described in subparagraph (A) (i) and (ii),
shall be used for--
(I) the costs of providing the services described in
subparagraph (A)(i), and
(II) after the costs described in subclause (I) are
paid, the costs of providing the personnel and
equipment described in subparagraph (A)(ii) at the
preceding fiscal year level.
(iii) For each fiscal year, the Secretary of the Treasury
shall calculate the difference between--
(I) the estimated cost for overtime compensation that
would have been incurred during that fiscal year for
inspectional services if section 5 of the Act of
February 13, 1911 (19 U.S.C. 261 and 267), as in effect
before the enactment of section 13811 of the Omnibus
Budget Reconciliation Act of 1993, had governed such
costs, and
(II) the actual cost for overtime compensation,
premium pay, and agency retirement contributions that
is incurred during that fiscal year in regard to
inspectional services under section 5 of the Act of
February 13, 1911, as amended by section 13811 of the
Omnibus Budget Reconciliation Act of 1993, and under
section 8331(3) of title 5, United States Code, as
amended by section 13812(a)(1) of such Act of 1993,
plus the actual cost that is incurred during that
fiscal year for foreign language proficiency awards
under section 13812(b) of such Act of 1993,
and shall transfer from the Customs User Fee Account to the
General Fund of the Treasury an amount equal to the difference
calculated under this clause, or $18,000,000, whichever amount
is less. Transfers shall be made under this clause at least
quarterly and on the basis of estimates to the same extent as
are reimbursements under subparagraph (B)(iii).
(D) Nothing in this paragraph shall be construed to preclude
the use of appropriated funds, from sources other than the fees
collected under subsection (a), to pay the costs set forth in
clauses (i), (ii), and (iii) of subparagraph (A).
(4)(A) There is created within the general fund of the
Treasury a separate account that shall be known as the
``Customs Commercial and Homeland Security Automation
Account''. In each of fiscal years 2003, 2004, and 2005 there
shall be deposited into the Account from fees collected under
subsection (a)(9)(A), $350,000,000.
(B) There is authorized to be appropriated from the Account
in fiscal years 2003 through 2005 such amounts as are available
in that Account for the development, establishment, and
implementation of the Automated Commercial Environment computer
system for the processing of merchandise that is entered or
released and for other purposes related to the functions of the
Department of Homeland Security. Amounts appropriated pursuant
to this subparagraph are authorized to remain available until
expended.
(C) In adjusting the fee imposed by subsection (a)(9)(A) for
fiscal year 2006, the Secretary of the Treasury shall reduce
the amount estimated to be collected in fiscal year 2006 by the
amount by which total fees deposited to the Account during
fiscal years 2003, 2004, and 2005 exceed total appropriations
from that Account.
(5) Of the amounts collected in fiscal year 1999 under
paragraphs (9) and (10) of subsection (a), $50,000,000 shall be
available to the Customs Service, subject to appropriations
Acts, for automated commercial systems. Amounts made available
under this paragraph shall remain available until expended.
(g) Regulations and Enforcement.--(1) The Secretary of the
Treasury may prescribe such rules and regulations as may be
necessary to carry out the provisions of this section.
Regulations issued by the Secretary of the Treasury under this
subsection with respect to the collection of the fees charged
under subsection (a)(5) and the remittance of such fees to the
Treasury of the United States shall be consistent with the
regulations issued by the Secretary of the Treasury for the
collection and remittance of the taxes imposed by subchapter C
of chapter 33 of the Internal Revenue Code of 1954, but only to
the extent the regulations issued with respect to such taxes do
not conflict with the provisions of this section.
(2) Except to the extent otherwise provided in regulations,
all administrative and enforcement provisions of customs laws
and regulations, other than those laws and regulations relating
to drawback, shall apply with respect to any fee prescribed
under subsection (a) of this section, and with respect to
persons liable therefor, as if such fee is a customs duty. For
purposes of the preceding sentence, any penalty expressed in
terms of a relationship to the amount of the duty shall be
treated as not less than the amount which bears a similar
relationship to the amount of the fee assessed. For purposes of
determining the jurisdiction of any court of the United States
or any agency of the United States, any fee prescribed under
subsection (a) of this section shall be treated as if such fee
is a customs duty.
(h) Conforming Amendments.--(1) Subsection (i) of section 305
of the Rail Passenger Service Act (45 U.S.C. 545(i)) is amended
by striking out the last sentence thereof.
(2) Subsection (e) of section 53 of the Airport and Airway
Development Act of 1970 (49 U.S.C. 1741(e)) is repealed.
(i) Effect on Other Authority.--Except with respect to
customs services for which fees are imposed under subsection
(a), nothing in this section shall be construed as affecting
the authority of the Secretary of the Treasury to charge fees
under section 214(b) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 58a).
(j) Effective Dates.--(1) Except as otherwise provided in
this subsection, the provisions of this section, and the
amendments and repeals made by this section, shall apply with
respect to customs services rendered after the date that is 90
days after the date of enactment of this Act.
(2) Fees may be charged under subsection (a)(5) only with
respect to customs services rendered in regard to arriving
passengers using transportation for which documents or tickets
were issued after the date that is 90 days after such date of
enactment.
(3)(A) Fees may not be charged under paragraphs (9) and (10)
of subsection (a) after September 30, 2024.
(B)(i) Subject to clause (ii), Fees may not be charged under
paragraphs (1) through (8) of subsection (a) after September
30, 2024.
(ii) In fiscal year 2006 and in each succeeding fiscal year
for which fees under paragraphs (1) through (8) of subsection
(a) are authorized--
(I) the Secretary of the Treasury shall charge fees
under each such paragraph in amounts that are
reasonably related to the costs of providing customs
services in connection with the activity or item for
which the fee is charged under such paragraph, except
that in no case may the fee charged under any such
paragraph exceed by more than 10 percent the amount
otherwise prescribed by such paragraph;
(II) the amount of fees collected under such
paragraphs may not exceed, in the aggregate, the
amounts paid in that fiscal year for the costs
described in subsection (f)(3)(A) incurred in providing
customs services in connection with the activity or
item for which the fees are charged under such
paragraphs;
(III) a fee may not be collected under any such
paragraph except to the extent such fee will be
expended to pay the costs described in subsection
(f)(3)(A) incurred in providing customs services in
connection with the activity or item for which the fee
is charged under such paragraph; and
(IV) any fee collected under any such paragraph shall
be available for expenditure only to pay the costs
described in subsection (f)(3)(A) incurred in providing
customs services in connection with the activity or
item for which the fee is charged under such paragraph.
(k) Advisory Committee.--The Commissioner of Customs shall
establish an advisory committee whose membership shall consist
of representatives from the airline, cruise ship, and other
transportation industries who may be subject to fees under
subsection (a). The advisory committee shall not be subject to
termination under section 14 of the Federal Advisory Committee
Act. The advisory committee shall meet on a periodic basis and
shall advise the Commissioner on issues related to the
performance of the inspectional services of the United States
Customs Service. Such advice shall include, but not be limited
to, such issues as the time periods during which such services
should be performed, the proper number and deployment of
inspection officers, the level of fees, and the appropriateness
of any proposed fee. The Commissioner shall give consideration
to the views of the advisory committee in the exercise of his
or her duties.
* * * * * * *
----------
SECTION 311 OF THE CUSTOMS BORDER SECURITY ACT OF 2002
SEC. 311. AUTHORIZATION OF APPROPRIATIONS FOR NONCOMMERCIAL OPERATIONS,
COMMERCIAL OPERATIONS, AND AIR AND MARINE
INTERDICTION
(a) Noncommercial Operations. --Section 301(b)(1) of the
Customs Procedural Reform and Simplification Act of 1978 (19
U.S.C. 2075(b)(1)) is amended--
(1) by striking subparagraph (A), and inserting the
following:
``(A) $1,365,456,000 for fiscal year 2003.'';
and
(2) by striking subparagraph (B), and inserting the
following:
``(B) $1,399,592,400 for fiscal year 2004.''.
(b) Commercial Operations.--
(1) In general. --Section 301(b)(2)(A) of the Customs
Procedural Reform and Simplification Act of 1978 (19
U.S.C. 2075(b)(2)(A)) is amended--
(A) by striking clause (i), and inserting the
following:
``(i) $1,642,602,000 for fiscal year 2003.'';
and
(B) by striking clause (ii), and inserting
the following:
``(ii) $1,683,667,050 for fiscal year
2004.''.
(3) Reports.--Not later than 90 days after the date
of the enactment of this Act, and not later than the
end of each subsequent 90-day period, the Commissioner
of Customs shall prepare and submit to the Committee on
Ways and Means of the House of Representatives and the
Committee on Finance of the Senate a report
demonstrating that the development and establishment of
the Automated Commercial Environment computer system is
being carried out in a cost-effective manner and meets
the modernization requirements of title VI of the North
American Free Trade Agreement Implementation Act.
(c) Air and Marine Interdiction. Section 301(b)(3) of the
Customs Procedural Reform and Simplification Act of 1978 (19
U.S.C. 2075(b)(3)) is amended--
(1) by striking subparagraph (A), and inserting the
following:
``(A) $170,829,000 for fiscal year 2003.'';
and
(2) by striking subparagraph (B), and inserting the
following:
``(B) $175,099,725 for fiscal year 2004.''.
(d) Submission of Out-Year Budget Projections. Section 301(a)
of the Customs Procedural Reform and Simplification Act of 1978
(19 U.S.C. 2075(a)) is amended by adding at the end the
following:
``(3) By not later than the date on which the President
submits to Congress the budget of the United States Government
for a fiscal year, the Commissioner of Customs shall submit to
the Committee on Ways and Means of the House of Representatives
and the Committee on Finance of the Senate the projected amount
of funds for the succeeding fiscal year that will be necessary
for the operations of the Customs Service as provided for in
subsection (b).''.
----------
TARIFF ACT OF 1930
* * * * * * *
TITLE III--SPECIAL PROVISIONS
* * * * * * *
Part II--United States Tariff Commission
* * * * * * *
SEC. 307. CONVICT MADE GOODS--IMPORTATION PROHIBITED.
All goods, wares, articles, and merchandise mined, produced
or manufactured wholly or in part in any foreign country by
convict labor or/and forced labor or/and indentured labor under
penal sanctions shall not be entitled to entry at any of the
ports of the United States, and the importation thereof is
hereby prohibited, and the Secretary of the Treasury is
authorized and directed to prescribe such regulations as may be
necessary for the enforcement of this provision. The provisions
of this section relating to goods, wares, articles, and
merchandise mined, produced, or manufactured by forced labor
or/and indentured labor, shall take effect on January 1, 1932;
but in no case shall such provisions be applicable to goods,
wares, articles, or merchandise so mined, produced, or
manufactured which are not mined, produced, or manufactured in
such quantities in the United States as to meet the consumptive
demands of the United States.
``Forced labor,'' as herein used, shall mean all work or
service which is exacted from any person under the menace of
any penalty for its nonperformance and for which the worker
does not offer himself voluntarily. For purposes of this
section, the term ``forced labor or/and indentured labor''
includes forced or indentured child labor.
* * * * * * *
SEC. 313. DRAWBACK AND REFUNDS.
(a) Articles Made From Imported Merchandise.--Upon the
exportation or destruction under customs supervision of
articles manufactured or produced in the United States with the
use of imported merchandise, provided that those articles have
not been used prior to such exportation or destruction, the
full amount of the duties paid upon the merchandise so used
shall be refunded as drawback, less 1 per centum of such
duties, except that such duties shall not be so refunded upon
the exportation or destruction of flour or by-products produced
from imported wheat. Where two or more products result from the
manipulation of imported merchandise, the drawback shall be
distributed to the several products in accordance with their
relative values at the time of separation.
(b) Substitution For Drawback Purposes.--If imported duty-
paid merchandise and any other merchandise (whether imported or
domestic) of the same kind and quality are used in the
manufacture or production of articles within a period not to
exceed three years from the receipt of such imported
merchandise by the manufacturer or producer of such articles,
there shall be allowed upon the exportation, or destruction
under customs supervision, of any such articles,
notwithstanding the fact that none of the imported merchandise
may actually have been used in the manufacture or production of
the exported or destroyed articles, an amount of drawback equal
to that which would have been allowable had the merchandise
used therein been imported, but only if those articles have not
been used prior to such exportation or destruction; but the
total amount of drawback allowed upon the exportation or
destruction under customs supervision of such articles,
together with the total amount of drawback allowed in respect
of such imported merchandise under any other provision of law,
shall not exceed 99 per centum of the duty paid on such
imported merchandise.
(c) Merchandise Not Conforming to Sample or Specifications.--
(1) Conditions for drawback.--Upon the exportation or
destruction under the supervision of the Customs
Service of articles or merchandise--
(A) upon which the duties have been paid,
(B) which has been entered or withdrawn for
consumption,
(C) which is--
(i) not conforming to sample or
specifications, shipped without the
consent of the consignee, or determined
to be defective as of the time of
importation, or
(ii) ultimately sold at retail by the
importer, or the person who received
the merchandise from the importer under
a certificate of delivery, and for any
reason returned to and accepted by the
importer, or the person who received
the merchandise from the importer under
a certificate of delivery, and
(D) which, within 3 years after the date of
importation or withdrawal, as applicable, has
been exported or destroyed under the
supervision of the Customs Service,
the full amount of the duties paid upon such
merchandise, less 1 percent, shall be refunded as
drawback.
(2) Designation of import entries.--For purposes of
paragraph (1)(C)(ii), drawback may be claimed by
designating an entry of merchandise that was imported
within 1 year before the date of exportation or
destruction of the merchandise described in paragraph
(1) (A) and (B) under the supervision of the Customs
Service. The merchandise designated for drawback must
be identified in the import documentation with the same
eight-digit classification number and specific product
identifier (such as part number, SKU, or product code)
as the returned merchandise.
(3) When drawback certificates not required.--For
purposes of this subsection, drawback certificates are
not required if the drawback claimant and the importer
are the same party, or if the drawback claimant is a
drawback successor to the importer as defined in
subsection (s)(3).
(d) Flavoring Extracts and Medicinal, or Toilet
Preparations.--Upon the exportation of flavoring extracts,
medicinal or toilet preparations (including perfumery)
manufactured or produced in the United States in part from
domestic alcohol on which an internal-revenue tax has been
paid, there shall be allowed a drawback equal in amount to the
tax found to have been paid on the alcohol so used.
Upon the exportation of bottled distilled spirits and wines
manufactured or produced in the United States on which an
internal-revenue tax has been paid or determined, there shall
be allowed, under regulations to be prescribed by the
Commissioner of Internal Revenue, with the approval of the
Secretary of the Treasury, a drawback equal in amount to the
tax found to have been paid or determined on such bottled
distilled spirits and wines. In the case of distilled spirits,
the preceding sentence shall not apply unless the claim for
drawback is filed by the bottler or packager of the spirits and
unless such spirits have been stamped or restamped, and marked,
especially for export, under regulations prescribed by the
Commissioner of Internal Revenue, with the approval of the
Secretary of the Treasury.
(e) Imported Salt for Curing Fish.--Imported salt in bond may
be used in curing fish taken by vessels licensed to engage in
the fisheries, and in curing fish on the shores of the
navigable waters of the United States, whether such fish are
taken by licensed or unlicensed vessels, and upon proof that
the salt has been used for either of such purposes, the duties
on the same shall be remitted.
(f) Exportation of Meats Cured with Imported Salt.--Upon the
exportation of meats, whether packed or smoked, which have been
cured in the United States with imported salt, there shall be
refunded, upon satisfactory proof that such meats have been
cured with imported salt, the duties paid on the salt so used
in curing such exported meats, in amounts not less than $100.
(g) Materials for Construction and Equipment or Vessels Built
for Foreigners.--The provisions of this section shall apply to
materials imported and used in the construction and equipment
of vessels built for foreign account and ownership, or for the
government of any foreign country, notwithstanding that such
vessels may not within the strict meaning of the term be
articles exported.
(h) Upon the exportation of jet aircraft engines manufactured
or produced abroad that have been overhauled, repaired,
rebuilt, or reconditioned in the United States with the use of
imported merchandise, including parts, there shall be refunded,
upon satisfactory proof that such imported merchandise has been
so used, the duties which have been paid thereon, in amounts
not less than $100.
(i) Time Limitation on Exportation.--Unless otherwise
provided for in this section, no drawback shall be allowed
under the provisions of this section unless the completed
article is exported, or destroyed under the supervision of the
Customs Service, within five years after importation of the
imported merchandise.
(j) Unused Merchandise Drawback.--
(1) If imported merchandise, on which was paid any
duty, tax, or fee imposed under Federal law upon entry
or importation--
(A) is, before the close of the 3-year period
beginning on the date of importation--
(i) exported, or
(ii) destroyed under customs
supervision; and
(B) is not used within the United States
before such exportation or destruction;
then upon such exportation or destruction 99 percent of
the amount of each duty, tax, or fee so paid shall be
refunded as drawback. The exporter (or destroyer) has
the right to claim drawback under this paragraph, but
may endorse such right to the importer or any
intermediate party.
(2) Subject to paragraph (4), if there is, with
respect to imported merchandise on which was paid any
duty, tax, or fee imposed under Federal law upon entry
or importation, any other merchandise (whether imported
or domestic), that--
(A) is commercially interchangeable with such
imported merchandise;
(B) is, before the close of the 3-year period
beginning on the date of importation of the
imported merchandise, either exported or
destroyed under customs supervision; and
(C) before such exportation or destruction--
(i) is not used within the United
States, and
(ii) is in the possession of,
including ownership while in bailment,
in leased facilities, in transit to, or
in any other manner under the
operational control of, the party
claiming drawback under this paragraph,
if that party--
(I) is the importer of the
imported merchandise, or
(II) received from the person
who imported and paid any duty
due on the imported merchandise
a certificate of delivery
transferring to the party the
imported merchandise,
commercially interchangeable
merchandise, or any combination
of imported and commercially
interchangeable merchandise
(and any such transferred
merchandise, regardless of its
origin, will be treated as the
imported merchandise and any
retained merchandise will be
treated as domestic
merchandise);
then, notwithstanding any other provision of law, upon
the exportation or destruction of such other
merchandise the amount of each such duty, tax, and fee
paid regarding the imported merchandise shall be
refunded as drawback under this subsection, but in no
case may the total drawback on the imported
merchandise, whether available under this paragraph or
any other provision of law or any combination thereof,
exceed 99 percent of that duty, tax, or fee. For
purposes of subparagraph (A) of this paragraph, wine of
the same color having a price variation not to exceed
50 percent between the imported wine and the exported
wine shall be deemed to be commercially
interchangeable.
(3) The performing of any operation or combination of
operations (including, but not limited to, testing,
cleaning, repacking, inspecting, sorting, refurbishing,
freezing, blending, repairing, reworking, cutting,
slitting, adjusting, replacing components, relabeling,
disassembling, and unpacking), not amounting to
manufacture or production for drawback purposes under
the preceding provisions of this section on--
(A) the imported merchandise itself in cases
to which paragraph (1) applies, or
(B) the commercially interchangeable
merchandise in cases to which paragraph (2)
applies,
shall not be treated as a use of that merchandise for
purposes of applying paragraph (1)(B) or (2)(C).
(4)(A) Effective upon the entry into force of the
North American Free Trade Agreement, the exportation to
a NAFTA country, as defined in section 2(4) of the
North American Free Trade Agreement Implementation Act,
of merchandise that is fungible with and substituted
for imported merchandise, other than merchandise
described in paragraphs (1) through (8) of section
203(a) of that Act, shall not constitute an exportation
for purposes of paragraph (2).
(B) Beginning on January 1, 2015, the exportation to
Chile of merchandise that is fungible with and
substituted for imported merchandise, other than
merchandise described in paragraphs (1) through (5) of
section 203(a) of the United States-Chile Free Trade
Agreement Implementation Act, shall not constitute an
exportation for purposes of paragraph (2). The
preceding sentence shall not be construed to permit the
substitution of unused drawback under paragraph (2) of
this subsection with respect to merchandise described
in paragraph (2) of section 203(a) of the United
States-Chile Free Trade Agreement Implementation Act.
(k)(1) For purposes of subsections (a) and (b), the use of
any domestic merchandise acquired in exchange for imported
merchandise of the same kind and quality shall be treated as
the use of such imported merchandise if no certificate of
delivery is issued with respect to such imported merchandise.
(2) For purposes of subsections (a) and (b), the use of any
domestic merchandise acquired in exchange for a drawback
product of the same kind and quality shall be treated as the
use of such drawback product if no certificate of delivery or
certificate of manufacture and delivery pertaining to such
drawback product is issued, other than that which documents the
product's manufacture and delivery. As used in this paragraph,
the term ``drawback product'' means any domestically produced
product, manufactured with imported merchandise or any other
merchandise (whether imported or domestic) of the same kind and
quality, that is subject to drawback.
(l) Regulations.--Allowance of the privileges provided for in
this section shall be subject to compliance with such rules and
regulations as the Secretary of the Treasury shall prescribe,
which may include, but need not be limited to, the authority
for the electronic submission of drawback entries and the
designation of the person to whom any refund or payment of
drawback shall be made.
(m) Source of Payment.--Any drawback of duties that may be
authorized under the provisions of this Act shall be paid from
the customs receipts of Puerto Rico, if the duties were
originally paid into the Treasury of Puerto Rico.
(n) Refunds, Waivers, or Reductions Under Certain Free Trade
Agreements.--(1) For purposes of this subsection and subsection
(o)--
(A) the term ``NAFTA Act'' means the North American
Free Trade Agreement Implementation Act;
(B) the terms ``NAFTA country'' and ``good subject to
NAFTA drawback'' have the same respective meanings that
are given such terms in sections 2(4) and 203(a) of the
NAFTA Act;
(C) a refund, waiver, or reduction of duty under
paragraph (2) of this subsection or paragraph (1) of
subsection (o) is subject to section 508(b)(2)(B); and
(D) the term ``good subject to Chile FTA drawback''
has the meaning given that term in section 203(a) of
the United States-Chile Free Trade Agreement
Implementation Act.
(2) For purposes of subsections (a), (b), (f), (h), (p), and
(q), if an article that is exported to a NAFTA country is a
good subject to NAFTA drawback, no customs duties on the good
may be refunded, waived, or reduced in an amount that exceeds
the lesser of--
(A) the total amount of customs duties paid or owed
on the good on importation into the United States, or
(B) the total amount of customs duties paid on the
good to the NAFTA country.
(3) If Canada ceases to be a NAFTA country and the suspension
of the operation of the United States-Canada Free-Trade
Agreement thereafter terminates, then for purposes of
subsections (a), (b), (f), (h), (j)(2), and (q), the shipment
to Canada during the period such Agreement is in operation of
an article made from or substituted for, as appropriate, a
drawback eligible good under section 204(a) of the United
States-Canada Free-Trade Implementation Act of 1988 does not
constitute an exportation.
(4)(A) For purposes of subsections (a), (b), (f), (h),
(j)(2), (p), and (q), if an article that is exported to Chile
is a good subject to Chile FTA drawback, no customs duties on
the good may be refunded, waived, or reduced, except as
provided in subparagraph (B).
(B) The customs duties referred to in subparagraph (A) may be
refunded, waived, or reduced by--
(i) 100 percent during the 8-year period beginning on
January 1, 2004;
(ii) 75 percent during the 1-year period beginning on
January 1, 2012;
(iii) 50 percent during the 1-year period beginning
on January 1, 2013; and
(iv) 25 percent during the 1-year period beginning on
January 1, 2014.
(o) Special Rules for Certain Vessels and Imported
Materials.--(1) For purposes of subsection (g), if--
(A) a vessel is built for the account and ownership
of a resident of a NAFTA country or the government of a
NAFTA country, and
(B) imported materials that are used in the
construction and equipment of the vessel are goods
subject to NAFTA drawback,
the amount of customs duties refunded, waived, or reduced on
such materials may not exceed the lesser of the total amount of
customs duties paid or owed on the materials on importation
into the United States or the total amount of customs duties
paid on the vessel to the NAFTA country.
(2) If Canada ceases to be a NAFTA country and the suspension
of the operation of the United States-Canada Free-Trade
Agreement thereafter terminates, then for purposes of
subsection (g), vessels built for Canadian account and
ownership, or for the Government of Canada, may not be
considered to be built for any foreign account and ownership,
or for the government of any foreign country, except to the
extent that the materials in such vessels are drawback eligible
goods under section 204(a) of the United States-Canada Free-
Trade Implementation Act of 1988.
(3) For purposes of subsection (g), if--
(A) a vessel is built for the account and ownership
of a resident of Chile or the Government of Chile, and
(B) imported materials that are used in the
construction and equipment of the vessel are goods
subject to Chile FTA drawback, as defined in section
203(a) of the United States-Chile Free Trade Agreement
Implementation Act,
no customs duties on such materials may be refunded, waived, or
reduced, except as provided in paragraph (4).
(4) The customs duties referred to in paragraph (3) may be
refunded, waived or reduced by--
(A) 100 percent during the 8-year period beginning on
January 1, 2004;
(B) 75 percent during the 1-year period beginning on
January 1, 2012;
(C) 50 percent during the 1-year period beginning on
January 1, 2013; and
(D) 25 percent during the 1-year period beginning on
January 1, 2014.
(p) Substitution of Finished Petroleum Derivatives.--
(1) In general.--Notwithstanding any other provision
of this section, if--
(A) an article (hereafter referred to in this
subsection as the ``exported article'') of the
same kind and quality as a qualified article is
exported;
(B) the requirements set forth in paragraph
(2) are met; and
(C) a drawback claim is filed regarding the
exported article;
drawback shall be allowed as described in paragraph
(4).
(2) Requirements.--The requirements referred to in
paragraph (1) are as follows:
(A) The exporter of the exported article--
(i) manufactured or produced a
qualified article in a quantity equal
to or greater than the quantity of the
exported article,
(ii) purchased or exchanged, directly
or indirectly, a qualified article from
a manufacturer or producer described in
subsection (a) or (b) in a quantity
equal to or greater than the quantity
of the exported article,
(iii) imported a qualified article in
a quantity equal to or greater than the
quantity of the exported article, or
(iv) purchased or exchanged, directly
or indirectly, a qualified article from
an importer in a quantity equal to or
greater than the quantity of the
exported article.
(B) In the case of the requirement described
in subparagraph (A)(ii), the manufacturer or
producer produced the qualified article in a
quantity equal to or greater than the quantity
of the exported article.
(C) In the case of the requirement of
subparagraph (A)(i) or (A)(ii), the exported
article is exported during the period that the
qualified article described in subparagraph
(A)(i) or (A)(ii) (whichever is applicable) is
manufactured or produced, or within 180 days
after the close of such period.
(D) In the case of the requirement of
subparagraph (A)(i) or (A)(ii), the specific
petroleum refinery or production facility which
made the qualified article concerned is
identified.
(E) In the case of the requirement of
subparagraph (A)(iii) or (A)(iv), the exported
article is exported within 180 days after the
date of entry of an imported qualified article
described in subparagraph (A)(iii) or (A)(iv)
(whichever is applicable).
(F) Except as otherwise specifically provided
in this subsection, the drawback claimant
complies with all requirements of this section,
including providing certificates which
establish the drawback eligibility of articles
for which drawback is claimed.
(G) The manufacturer, producer, importer,
transferor, exporter, and drawback claimant of
the qualified article and the exported article
maintain all records required by regulation.
(3) Definition of qualified article, etc.--For
purposes of this subsection--
(A) The term ``qualified article'' means an
article--
(i) described in--
(I) headings 2707, 2708,
2709.00, 2710, 2711, 2712,
2713, 2714, 2715, 2901, and
2902, and subheadings
2903.21.00, 2909.19.14,
2917.36, 2917.39.04,
2917.39.15, 2926.10.00,
3811.21.00, and 3811.90.00 of
the Harmonized Tariff Schedule
of the United States, or
(II) headings 3901 through
3914 of such Schedule (as such
headings apply to the primary
forms provided under Note 6 to
chapter 39 of the Harmonized
Tariff Schedule of the United
States), and
(ii) which is--
(I) manufactured or produced
as described in subsection (a)
or (b) from crude petroleum or
a petroleum derivative,
(II) imported duty-paid, or
(III) an article of the same
kind and quality as described
in subparagraph (B), or any
combination thereof, that is
transferred, as so certified in
a certificate of delivery or
certificate of manufacture and
delivery in a quantity not
greater than the quantity of
articles purchased or
exchanged.
The transferred merchandise described
in subclause (III), regardless of its
origin, so designated on the
certificate of delivery or certificate
of manufacture and delivery shall be
the qualified article for purposes of
this section. A party who issues a
certificate of delivery, or certificate
of manufacture and delivery, shall also
certify to the Commissioner of Customs
that it has not, and will not, issue
such certificates for a quantity
greater than the amount eligible for
drawback and that appropriate records
will be maintained to demonstrate that
fact.
(B) An article, including an imported,
manufactured, substituted, or exported article,
is of the same kind and quality as the
qualified article for which it is substituted
under this subsection if it is a product that
is commercially interchangeable with or
referred to under the same eight-digit
classification of the Harmonized Tariff
Schedule of the United States as the qualified
article. If an article is referred to under the
same eight-digit classification of the
Harmonized Tariff Schedule of the United States
as the qualified article on January 1, 2000,
then whether or not the article has been
reclassified under another eight-digit
classification after January 1, 2000, the
article shall be deemed to be an article that
is referred to under the same eight-digit
classification of such Schedule as the
qualified article for purposes of the preceding
sentence.
(C) The term ``drawback claimant'' means the
exporter of the exported article or the
refiner, producer, or importer of either the
qualified article or the exported article. Any
person eligible to file a drawback claim under
this subparagraph may designate another person
to file such claim.
(4) Limitation on drawback.--The amount of drawback
payable under this subsection shall not exceed the
amount of drawback that would be attributable to the
article--
(A) manufactured or produced under subsection
(a) or (b) by the manufacturer or producer
described in clause (i) or (ii) of paragraph
(2)(A), or
(B) imported under clause (iii) or (iv) of
paragraph (2)(A) had the claim qualified for
drawback under subsection (j).
(5) Special rules for ethyl alcohol.--For purposes of
this subsection, any duty paid under subheading
9901.00.50 of the Harmonized Tariff Schedule of the
United States on imports of ethyl alcohol or a mixture
of ethyl alcohol may not be refunded if the exported
article upon which a drawback claim is based does not
contain ethyl alcohol or a mixture of ethyl alcohol.
(q) Packaging Material.--
(1) Packaging material under subsections (c) and
(j).--Packaging material, whether imported and duty
paid, and claimed for drawback under either subsection
(c) or (j)(1), or imported and duty paid, or
substituted, and claimed for drawback under subsection
(j)(2), shall be eligible for drawback, upon
exportation, of 99 percent of any duty, tax, or fee
imposed under Federal law on such imported material.
(2) Packaging material under subsections (a) and
(b).--Packaging material that is manufactured or
produced under subsection (a) or (b) shall be eligible
for drawback, upon exportation, of 99 percent of any
duty, tax, or fee imposed under Federal law on the
imported or substituted merchandise used to manufacture
or produce such material.
(3) Contents.--Packaging material described in
paragraphs (1) and (2) shall be eligible for drawback
whether or not they contain articles or merchandise,
and whether or not any articles or merchandise they
contain are eligible for drawback.
(4) Employing packaging material for its intended
purpose prior to exportation.--The use of any packaging
material for its intended purpose prior to exportation
shall not be treated as a use of such material prior to
exportation for purposes of applying subsection (a),
(b), or (c), or paragraph (1)(B) or (2)(C)(i) of
subsection (j).
(r) Filing Drawback Claims.--
(1) A drawback entry and all documents necessary to
complete a drawback claim, including those issued by
the Customs Service, shall be filed or applied for, as
applicable, within 3 years after the date of
exportation or destruction of the articles on which
drawback is claimed, except that any landing
certificate required by regulation shall be filed
within the time limit prescribed in such regulation.
Claims not completed within the 3-year period shall be
considered abandoned. No extension will be granted
unless it is established that the Customs Service was
responsible for the untimely filing.
(2) A drawback entry for refund filed pursuant to any
subsection of this section shall be deemed filed
pursuant to any other subsection of this section should
it be determined that drawback is not allowable under
the entry as originally filed but is allowable under
such other subsection.
(3)(A) The Customs Service may, notwithstanding the
limitation set forth in paragraph (1), extend the time
for filing a drawback claim for a period not to exceed
18 months, if--
(i) the claimant establishes to the
satisfaction of the Customs Service that the
claimant was unable to file the drawback claim
because of an event declared by the
President to be a major disaster on or after
January 1, 1994; and
(ii) the claimant files a request for such
extension with the Customs Service--
(I) within 1 year from the last day
of the 3-year period referred to in
paragraph (1), or
(II) within 1 year after the date of
the enactment of this paragraph,
whichever is later.
(B) If an extension is granted with respect to a
request filed under this paragraph, the periods of time
for retaining records set forth in subsection (t) of
this section and section 508(c)(3) shall be extended
for an additional 18 months or, in a case to which
subparagraph (A)(ii) applies, for a period not to
exceed 1 year from the date the claim is filed.
(C) For purposes of this paragraph, the term ``major
disaster'' has the meaning given that term in section
102(2) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5122(2)).
(s) Designation of Merchandise by Successor.--
(1) For purposes of subsection (b), a drawback
successor may designate imported merchandise used by
the predecessor before the date of succession as the
basis for drawback on articles manufactured by the
drawback successor after the date of succession.
(2) For purposes of subsection (j)(2), a drawback
successor may designate--
(A) imported merchandise which the
predecessor, before the date of succession,
imported; or
(B) imported merchandise, commercially
interchangeable merchandise, or any combination
of imported and commercially interchangeable
merchandise for which the predecessor received,
before the date of succession, from the person
who imported and paid any duty due on the
imported merchandise a certificate of delivery
transferring to the predecessor such
merchandise;
as the basis for drawback on merchandise possessed by
the drawback predecessor after the date of succession.
(3) For purposes of this subsection, the term
``drawback successor'' means an entity to which another
entity (in this subsection referred to as the
``predecessor'') has transferred by written agreement,
merger, or corporate resolution--
(A) all or substantially all of the rights,
privileges, immunities, powers, duties, and
liabilities of the predecessor; or
(B) the assets and other business interests
of a division, plant, or other business unit of
such predecessor, but only if in such transfer
the value of the transferred realty,
personalty, and intangibles (other than
drawback rights, inchoate or otherwise) exceeds
the value of all transferred drawback rights,
inchoate or otherwise.
(4) No drawback shall be paid under this subsection
until either the predecessor or the drawback successor
(who shall also certify that it has the predecessor's
records) certifies that--
(A) the transferred merchandise was not and
will not be claimed by the predecessor, and
(B) the predecessor did not and will not
issue any certificate to any other person that
would enable that person to claim drawback.
(t) Drawback Certificates.--Any person who issues a
certificate which would enable another person to claim drawback
shall be subject to the recordkeeping provisions of this Act,
with the retention period beginning on the date that such
certificate is issued.
(u) Eligibility of Entered or Withdrawn Merchandise.--
Imported merchandise that has not been regularly entered or
withdrawn for consumption shall not satisfy any requirement for
use, exportation, or destruction under this section.
(v) Multiple Drawback Claims.--Merchandise that is exported
or destroyed to satisfy any claim for drawback shall not be the
basis of any other claim for drawback; except that appropriate
credit and deductions for claims covering components or
ingredients of such merchandise shall be made in computing
drawback payments.
(w) Limited Applicability for Certain Agricultural
Products.--
(1) In general.--No drawback shall be available with
respect to an agricultural product subject to the over-
quota rate of duty established under a tariff-rate
quota, except pursuant to subsection (j)(1).
(2) Application to tobacco.--Notwithstanding
paragraph (1), drawback shall also be available
pursuant to subsection (a) with respect to any tobacco
subject to the over-quota rate of duty established
under a tariff-rate quota.
(x) Drawbacks for Recovered Materials.--For purposes of
subsections (a), (b), and (c), the term ``destruction''
includes a process by which materials are recovered from
imported merchandise or from an article manufactured from
imported merchandise. In determining the amount of duties to be
refunded as drawback to a claimant under this subsection, the
value of recovered materials (including the value of any tax
benefit or royalty payment) that accrues to the drawback
claimant shall be deducted from the value of the imported
merchandise that is destroyed, or from the value of the
merchandise used, or designated as used, in the manufacture of
the article.
(y) Articles Shipped to the United States Insular
Possessions.--Articles described in subsection (j)(1) shall be
eligible for drawback under this section if duty was paid on
the merchandise upon importation into the United States and the
person claiming the drawback demonstrates that the merchandise
has entered the customs territory of the United States Virgin
Islands, American Samoa, Wake Island, Midway Islands, Kingman
Reef, Guam, Canton Island, Enderbury Island, Johnston Island,
or Palmyra Island.
(4)(A) For purposes of subsections (a), (b), (f), (h),
(j)(2), (p), and (q), if an article that is exported to Chile
is a good subject to Chile FTA drawback, no customs duties on
the good may be refunded, waived, or reduced, except as
provided in subparagraph (B).
(B) The customs duties referred to in subparagraph (A) may be
refunded, waived, or reduced by--
(i) 100 percent during the 8-year period beginning on
January 1, 2004;
(ii) 75 percent during the 1-year period beginning on
January 1, 2012;
(iii) 50 percent during the 1-year period beginning
on January 1, 2013; and
(iv) 25 percent during the 1-year period beginning on
January 1, 2014.
* * * * * * *
SEC. 321. ADMINISTRATIVE EXEMPTIONS.
(a) The Secretary of the Treasury, in order to avoid expense
and inconvenience to the Government disproportionate to the
amount of revenue that would otherwise be collected, is hereby
authorized, under such regulations as he shall prescribe, to--
(1) disregard a difference of an amount specified by
the Secretary by regulation, but not less than $20,
between the total estimated duties, fees, and taxes
deposited, or the total duties fees, and taxes
tentatively assessed, with respect to any entry of
merchandise and the total amount of duties, fees,
taxes, and interest actually accruing thereon;
(2) admit articles free of duty and of any tax
imposed on or by reason of importation, but the
aggregate fair retail value in the country of shipment
of articles imported by one person on one day and
exempted from the payment of duty shall not exceed an
amount specified by the Secretary by regulation, but
not less than--
(A) $100 in the case of articles sent as bona
fide gifts from persons in foreign countries to
persons in the United States $200, in the case
of articles sent as bona fide gifts from
persons in the Virgin Islands, Guam, and
America Samoa), or
(B) $200 in the case of articles
accompanying, and for the personal or household
use of, persons arriving in the United States
who are not entitled to any exemption from duty
under subheading 9804.00.30, 9804.00.65, or
9804.00.70 of this Act, or
(C) $200 in any other case.
The privilege of this subdivision (2) shall not be
granted in any case in which merchandise covered by a
single order or contract is forwarded in separate lots
to secure the benefit of this subdivision (2); and
(3) waive the collection of duties, fees, taxes, and
interest due on entered merchandise when such duties,
fees, taxes, or interest are less than $20 or such
greater amount as may be specified by the Secretary by
regulation.
(b) The Secretary of the Treasury is authorized by
regulations to prescribe exceptions to any exemption provided
for in subsection (a) whenever he finds that such action is
consistent with the purpose of subsection (a) or is necessary
for any reason to protect the revenue or to prevent unlawful
importations.
* * * * * * *
TITLE IV--ADMINISTRATIVE PROVISIONS
PART I--DEFINITIONS AND NATIONAL CUSTOMS AUTOMATION PROGRAM
* * * * * * *
Subpart B--National Customs Automation Program
SEC. 411. NATIONAL CUSTOMS AUTOMATION PROGRAM.
(a) Establishment.--The Secretary shall establish the
National Customs Automation Program (hereinafter in this
subpart referred to as the ``Program'') which shall be an
automated and electronic system for processing commercial
importations and shall include the following existing and
planned components:
(1) Existing components:
(A) The electronic entry of merchandise.
(B) The electronic entry summary of required
information.
(C) The electronic transmission of invoice
information.
(D) The electronic transmission of manifest
information.
(E) Electronic payments of duties, fees, and
taxes.
(F) The electronic status of liquidation and
reliquidation.
(G) The electronic selection of high risk
entries for examination (cargo selectivity and
entry summary selectivity).
(2) Planned components:
(A) The electronic filing and status of
protests.
(B) The electronic filing (including remote
filing under section 414) of entry information
with the Customs Service at any location.
(C) The electronic filing of import activity
summary statements and reconciliation.
(D) The electronic filing of bonds.
(E) The electronic penalty process.
(F) The electronic filing of drawback claims,
records, or entries.
(G) Any other component initiated by the
Customs Service to carry out the goals of this
subpart.
(b) Participation in Program.--The Secretary shall by
regulation prescribe the eligibility criteria for participation
in the Program. The Secretary may, by regulation, require the
electronic submission of information described in subsection
(a) or any other information required to be submitted to the
Customs Service separately pursuant to this subpart.
(c) Foreign-Trade Zones.--Not later than January 1, 2000, the
Secretary shall provide for the inclusion of commercial
importation data from foreign-trade zones under the Program.
(d) International Trade Data System.--
(1) Establishment.--
(A) In general.--The Secretary of the
Treasury (in this subsection, referred to as
the ``Secretary'') shall oversee the
establishment of an electronic trade data
interchange system to be known as the
``International Trade Data System'' (ITDS). The
ITDS shall be implemented not later than the
date that the Automated Commercial Environment
(commonly referred to as ``ACE'') is fully
implemented.
(B) Purpose.--The purpose of the ITDS is to
eliminate redundant information requirements,
to efficiently regulate the flow of commerce,
and to effectively enforce laws and regulations
relating to international trade, by
establishing a single portal system, operated
by the United States Customs and Border
Protection, for the collection and distribution
of standard electronic import and export data
required by all participating Federal agencies.
(C) Participation.--
(i) In general.--All Federal agencies
that require documentation for clearing
or licensing the importation and
exportation of cargo shall participate
in the ITDS.
(ii) Waiver.--The Director of the
Office of Management and Budget may
waive, in whole or in part, the
requirement for participation for any
Federal agency based on the vital
national interest of the United States.
(D) Consultation.--The Secretary shall
consult with and assist the United States
Customs and Border Protection and other
agencies in the transition from paper to
electronic format for the submission, issuance,
and storage of documents relating to data
required to enter cargo into the United States.
In so doing, the Secretary shall also consult
with private sector stakeholders, including the
Commercial Operations Advisory Committee, in
developing uniform data submission
requirements, procedures, and schedules, for
the ITDS.
(E) Coordination.--The Secretary shall be
responsible for coordinating the operation of
the ITDS among the participating agencies and
the office within the United States Customs and
Border Protection that is responsible for
maintaining the ITDS.
(2) Data elements.--
(A) In general.--The Interagency Steering
Committee (established under paragraph (3))
shall, in consultation with the agencies
participating in the ITDS, define the standard
set of data elements to be collected, stored,
and shared in the ITDS, consistent with laws
applicable to the collection and protection of
import and export information. The Interagency
Steering Committee shall periodically review
the data elements in order to update the
standard set of data elements, as necessary.
(B) Commitments and obligations.--The
Interagency Steering Committee shall ensure
that the ITDS data requirements are compatible
with the commitments and obligations of the
United States as a member of the World Customs
Organization (WCO) and the World Trade
Organization (WTO) for the entry and movement
of cargo.
(3) Interagency steering committee.--There is
established an Interagency Steering Committee (in this
section, referred to as the ``Committee''). The members
of the Committee shall include the Secretary (who shall
serve as the chairperson of the Committee), the
Director of the Office of Management and Budget, and
the head of each agency participating in the ITDS. The
Committee shall assist the Secretary in overseeing the
implementation of, and participation in, the ITDS.
(4) Report.--The President shall submit a report
before the end of each fiscal year to the Committee on
Finance of the Senate and the Committee on Ways and
Means of the House of Representatives. Each report
shall include information on--
(A) the status of the ITDS implementation;
(B) the extent of participation in the ITDS
by Federal agencies;
(C) the remaining barriers to any agency's
participation;
(D) the consistency of the ITDS with
applicable standards established by the World
Customs Organization and the World Trade
Organization;
(E) recommendations for technological and
other improvements to the ITDS; and
(F) the status of the development,
implementation, and management of the Automated
Commercial Environment within the United States
Customs and Border Protection.
(5) Sense of congress.--It is the sense of Congress
that agency participation in the ITDS is an important
priority of the Federal Government and that the
Secretary shall coordinate the operation of the ITDS
closely among the participating agencies and the office
within the United States Customs and Border Protection
that is responsible for maintaining the ITDS.
(6) Construction.--Nothing in this section shall be
construed as amending or modifying subsection (g) of
section 301 of title 13, United States Code.
(7) Definition.--The term ``Commercial Operations
Advisory Committee'' means the Advisory Committee
established pursuant to section 9503(c) of the Omnibus
Budget Reconciliation Act of 1987 (19 U.S.C. 2071 note)
or any successor committee.
* * * * * * *
Part III--Ascertainment, Collection, and Recovery of Duties
* * * * * * *
SEC. 508. RECORDKEEPING.
(a) Requirements.--Any--
(1) owner, importer, consignee, importer of record,
entry filer, or other party who--
(A) imports merchandise into the customs
territory of the United States, files a
drawback claim, or transports or stores
merchandise carried or held under bond, or
(B) knowingly causes the importation or
transportation or storage of merchandise
carried or held under bond into or from the
customs territory of the United States;
(2) agent of any party described in paragraph (1); or
(3) person whose activities require the filing of a
declaration or entry, or both;
shall make, keep, and render for examination and inspection
records (which for purposes of this section include, but are
not limited to, statements, declarations, documents and
electronically generated or machine readable data) which--
(A) pertain to any such activity, or to the
information contained in the records required by this
Act in connection with any such activity; and
(B) are normally kept in the ordinary course of
business.
(b) Exportations to NAFTA Countries.--
(1) Definitions.--As used in this subsection--
(A) The term ``associated records'' means, in
regard to an exported good under paragraph (2),
records associated with--
(i) the purchase of, cost of, value
of, and payment for, the good;
(ii) the purchase of, cost of, value
of, and payment for, all material,
including indirect materials, used in
the production of the good; and
(iii) the production of the good.
For purposes of this subparagraph, the terms
``indirect
material,''``material,''``preferential tariff
treatment,''``used,'' and ``value'' have the
respective meanings given them in articles 415
and 514 of the North American Free Trade
Agreement.
(B) The term ``NAFTA Certificate of Origin''
means the certification, established under
article 501 of the North American Free Trade
Agreement, that a good qualifies as an
originating good under such Agreement.
(2) Exports to nafta countries.--
(A) In general.--Any person who completes and
signs a NAFTA Certificate of Origin for a good
for which preferential treatment under the
North American Free Trade Agreement is claimed
shall make, keep, and render for examination
and inspection all records relating to the
origin of the good (including the Certificate
or copies thereof) and the associated records.
(B) Claims for certain waivers, reductions,
or refunds of duties or for credit against
bonds.--
(i) In general.--Any person that
claims with respect to an article--
(I) a waiver or reduction of
duty under the eleventh
paragraph of section 311,
section 312(b)(1) or (4),
section 562(2), or the proviso
preceding the last proviso to
section 3(a) of the Foreign
Trade Zones Act;
(II) a credit against a bond
under section 312(d); or
(III) a refund, waiver, or
reduction of duty under section
313(n)(2) or (o)(1);
must disclose to the Customs Service
the information described in clause
(ii).
(ii) Information required.--Within 30
days after making a claim described in
clause (i) with respect to an article,
the person making the claim must
disclose to the Customs Service whether
that person has prepared, or has
knowledge that another person has
prepared, a NAFTA Certificate of Origin
for the article. If after such 30-day
period the person making the claim
either--
(I) prepares a NAFTA
Certificate of Origin for the
article; or
(II) learns of the existence
of such a Certificate for the
article;
that person, within 30 days after the
occurrence described in subclause (I)
or (II), must disclose the occurrence
to the Customs Service.
(iii) Action on claim.--If the
Customs Service determines that a NAFTA
Certificate of Origin has been prepared
with respect to an article for which a
claim described in clause (i) is made,
the Customs Service may make such
adjustments regarding the previous
customs treatment of the article as may
be warranted under the claim.
(3) Exports under the canadian agreement.--Any person
who exports, or who knowingly causes to be exported,
any merchandise to Canada during such time as the
United States-Canada Free-Trade Agreement is in force
with respect to, and the United States applies that
Agreement to, Canada shall make, keep, and render for
examination and inspection such records (including
certifications of origin or copies thereof) which
pertain to the exportations.
(c) Period of Time.--The records required by subsections (a)
and (b) shall be kept for such periods of time as the Secretary
shall prescribe; except that--
(1) no period of time for the retention of the
records required under subsection (a) or (b)(3) may
exceed 5 years from the date of entry, filing of a
reconciliation, or exportation, as appropriate;
(2) the period of time for the retention of the
records required under subsection (b)(2) shall be at
least 5 years from the date of signature of the NAFTA
Certificate of Origin; and
(3) records for any drawback claim shall be kept
until the 3rd anniversary of the date of payment of the
claim.
(d) Limitation.--For the purposes of this section and section
509, a person ordering merchandise from an importer in a
domestic transaction does not knowingly cause merchandise to be
imported unless--
(1) the terms and conditions of the importation are
controlled by the person placing the order; or
(2) technical data, molds, equipment, other
production assistance, material, components, or parts
are furnished by the person placing the order with
knowledge that they will be used in the manufacture or
production of the imported merchandise.
(e) Subsection (b) Penalties.--
(1) Relating to nafta exports.--Any person who fails
to retain records required by paragraph (2) of
subsection (b) or the regulations issued to implement
that paragraph shall be liable for--
(A) a civil penalty not to exceed $10,000; or
(B) the general recordkeeping penalty that
applies under the customs laws;
whichever penalty is higher.
(2) Relating to canadian agreement exports.--Any
person who fails to retain the records required by
paragraph (3) of subsection (b) or the regulations
issued to implement that paragraph shall be liable for
a civil penalty not to exceed $10,000.
(f) Certificates of Origin for Goods Exported Under the
United States-Chile Free Trade Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) if applicable, the purchase,
cost, and value of, and payment for,
all materials, including recovered
goods, used in the production of the
good; and
(iii) if applicable, the production
of the good in the form in which it was
exported.
(B) Chile fta certificate of origin.--The
term ``Chile FTA Certificate of Origin'' means
the certification, established under article
4.13 of the United States-Chile Free Trade
Agreement, that a good qualifies as an
originating good under such Agreement.
(2) Exports to chile.--Any person who completes and
issues a Chile FTA Certificate of Origin for a good
exported from the United States shall make, keep, and,
pursuant to rules and regulations promulgated by the
Secretary of the Treasury, render for examination and
inspection all records and supporting documents related
to the origin of the good (including the Certificate or
copies thereof).
(3) Retention period.--Records and supporting
documents shall be kept by the person who issued a
Chile FTA Certificate of Origin for at least 5 years
after the date on which the certificate was issued.
(g) Certifications of Origin for Goods Exported Under the
Dominican Republic-Central America-United States Free Trade
Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) the purchase, cost, and value
of, and payment for, all materials,
including indirect materials, used in
the production of the good; and
(iii) the production of the good in
the form in which it was exported.
(B) CAFTA-DR certification of origin.--The
term ``CAFTA-DR certification of origin'' means
the certification established under article
4.16 of the Dominican Republic-Central America-
United States Free Trade Agreement that a good
qualifies as an originating good under such
Agreement.
(2) Exports to cafta-dr countries.--Any person who
completes and issues a CAFTA-DR certification of origin
for a good exported from the United States shall make,
keep, and, pursuant to rules and regulations
promulgated by the Secretary of the Treasury, render
for examination and inspection all records and
supporting documents related to the origin of the good
(including the certification or copies thereof).
(3) Retention period.--Records and supporting
documents shall be kept by the person who issued a
CAFTA-DR certification of origin for at least 5 years
after the date on which the certification was issued.
(h) Certifications of Origin for Goods Exported Under the
United States-Peru Trade Promotion Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) the purchase, cost, and value
of, and payment for, all materials,
including indirect materials, used in
the production of the good; and
(iii) the production of the good in
the form in which it was exported.
(B) PTPA certification of origin.--The term
``PTPA certification of origin'' means the
certification established under article 4.15 of
the United States-Peru Trade Promotion
Agreement that a good qualifies as an
originating good under such Agreement.
(2) Exports to peru.--Any person who completes and
issues a PTPA certification of origin for a good
exported from the United States shall make, keep, and,
pursuant to rules and regulations promulgated by the
Secretary of the Treasury, render for examination and
inspection all records and supporting documents related
to the origin of the good (including the certification
or copies thereof).
(3) Retention period.--The person who issues a PTPA
certification of origin shall keep the records and
supporting documents relating to that certification of
origin for a period of at least 5 years after the date
on which the certification is issued.
(i) Certifications of Origin for Goods Exported Under the
United States-Korea Free Trade Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) the purchase, cost, and value
of, and payment for, all materials,
including indirect materials, used in
the production of the good; and
(iii) the production of the good in
the form in which it was exported.
(B) KFTA certification of origin.--The term
``KFTA certification of origin'' means the
certification established under article 6.15 of
the United States-Korea Free Trade Agreement
that a good qualifies as an originating good
under such Agreement.
(2) Exports to korea.--Any person who completes and
issues a KFTA certification of origin for a good
exported from the United States shall make, keep, and,
pursuant to rules and regulations promulgated by the
Secretary of the Treasury, render for examination and
inspection all records and supporting documents related
to the origin of the good (including the certification
or copies thereof).
(3) Retention period.--The person who issues a KFTA
certification of origin shall keep the records and
supporting documents relating to that certification of
origin for a period of at least 5 years after the date
on which the certification is issued.
(j) Certifications of Origin for Goods Exported Under the
United States-Colombia Trade Promotion Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) the purchase, cost, and value
of, and payment for, all materials,
including indirect materials, used in
the production of the good; and
(iii) the production of the good in
the form in which it was exported.
(B) CTPA certification of origin.--The term
``CTPA certification of origin'' means the
certification established under article 4.15 of
the United States-Colombia Trade Promotion
Agreement that a good qualifies as an
originating good under such Agreement.
(2) Exports to colombia.--Any person who completes
and issues a CTPA certification of origin for a good
exported from the United States shall make, keep, and,
pursuant to rules and regulations promulgated by the
Secretary of the Treasury, render for examination and
inspection all records and supporting documents related
to the origin of the good (including the certification
or copies thereof).
(3) Retention period.--The person who issues a CTPA
certification of origin shall keep the records and
supporting documents relating to that certification of
origin for a period of at least 5 years after the date
on which the certification is issued.
(k) Certifications of Origin for Goods Exported Under the
United States-panama Trade Promotion Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) the purchase, cost, and value
of, and payment for, all materials,
including indirect materials, used in
the production of the good; and
(iii) the production of the good in
the form in which it was exported.
(B) Panama tpa certification of origin.--The
term ``Panama TPA certification of origin''
means the certification established under
article 4.15 of the United States-Panama Trade
Promotion Agreement that a good qualifies as an
originating good under such Agreement.
(2) Exports to panama.--Any person who completes and
issues a Panama TPA certification of origin for a good
exported from the United States shall make, keep, and,
pursuant to rules and regulations promulgated by the
Secretary of the Treasury, render for examination and
inspection all records and supporting documents related
to the origin of the good (including the certification
or copies thereof).
(3) Retention period.--The person who issues a Panama
TPA certification of origin shall keep the records and
supporting documents relating to that certification of
origin for a period of at least 5 years after the date
on which the certification is issued.
(l) Penalties.--Any person who fails to retain records and
supporting documents required by subsection (f), (g), (h), (i),
(j), or (k) or the regulations issued to implement any such
subsection shall be liable for the greater of--
(1) a civil penalty not to exceed $10,000; or
(2) the general record keeping penalty that applies
under the customs laws of the United States.
* * * * * * *
SEC. 516A. JUDICIAL REVIEW IN COUNTERVAILING DUTY AND ANTI-DUMPING DUTY
PROCEEDINGS.
(a) Review of Determination.--
(1) Review of certain determinations.--Within 30 days
after the date of publication in the Federal Register
of--
(A) a determination by the administering
authority, under 702(c) or 732(c) of this Act,
not to initiate an investigation,
(B) a determination by the Commission, under
section 751(b) of this Act, not to review a
determination based upon changed circumstances,
(C) a negative determination by the
Commission, under section 703(a) or 733(a) of
this Act, as to whether there is reasonable
indication or material injury, threat of
material injury, or material retardation, or
(D) a final determination by the
administering authority or the Commission under
section 751(c)(3),
an interested party who is a party to the proceeding in
connection with which the matter arises may commence an
action in the United States Court of International
Trade by filing concurrently a summons and complaint,
each with the content and in the form, manner, and
style prescribed by the rules of that court, contesting
any factual findings or legal conclusions upon which
the determination is based.
(2) Review of determinations on record.--
(A) In general.--Within thirty days after--
(i) the date of publication in the
Federal Register of--
(I) notice of any
determination described in
clause (ii), (iii), (iv), (v),
or (viii) of subparagraph (B),
(II) an antidumping or
countervailing duty order based
upon any determination
described in clause (i) of
subparagraph (B), or
(III) notice of the
implementation of any
determination described in
clause (vii) of subparagraph
(B), or
(ii) the date of mailing of a
determination described in clause (vi)
of subparagraph (B),
an interested party who is a party to the
proceeding in connection with which the matter
arises may commence an action in the United
States Court of International Trade by filing a
summons, and within thirty days thereafter a
complaint, each with the content and in the
form, manner, and style prescribed by the rules
of that court, contesting any factual findings
or legal conclusions upon which the
determination is based.
(B) Reviewable determinations.--The
determinations which may be contested under
subparagraph (A) are as follows:
(i) Final affirmative determinations
by the administering authority and by
the Commission under section 705 or 735
of this Act, including any negative
part of such a determination (other
than a part referred to in clause
(ii)).
(ii) A final negative determination
by the administering authority or the
Commission under section 705 or 735 of
this Act, including, at the option of
the appellant, any part of a final
affirmative determination which
specifically excludes any company or
product.
(iii) A final determination, other
than a determination reviewable under
paragraph (1), by the administering
authority or the Commission under
section 751 of this Act.
(iv) A determination by the
administering authority, under section
704 or 734 of this Act, to suspend an
antidumping duty or a countervailing
duty investigation, including any final
determination resulting from a
continued investigation which changes
the size of the dumping margin or net
countervailable subsidy calculated, or
the reasoning underlying such
calculations, at the time the
suspension agreement was concluded.
(v) An injurious effect determination
by the Commission under section 704(h)
or 734(h) of this Act.
(vi) A determination by the
administering authority as to whether a
particular type of merchandise is
within the class or kind of merchandise
described in an existing finding of
dumping or antidumping or
countervailing duty order.
(vii) A determination by the
administering authority or the
Commission under section 129 of the
Uruguay Round Agreements Act concerning
a determination under title VII of the
Tariff Act of 1930.
(viii) A determination by the
Commission under section 753(a)(1).
(3) Exception.--Notwithstanding the limitation
imposed by paragraph (2)(A)(i)(II) of this subsection,
a final affirmative determination by the administering
authority under section 705 or 735 of this Act may be
contested by commencing an action, in accordance with
the provisions of paragraph (2)(A), within thirty days
after the date of publication in the Federal Register
of a final negative determination by the Commission
under section 705 or 735 of this Act.
(4) Procedures and fees.--The procedures and fees set
forth in chapter 169 of title 28, United States Code,
apply to an action under this section.
(5) Time limits in cases involving merchandise from
free trade area countries.--Notwithstanding any other
provision of this subsection, in the case of a
determination to which the provisions of subsection (g)
apply, an action under this subsection may not be
commenced, and the time limits for commencing an action
under this subsection shall not begin to run, until the
day specified in whichever of the following
subparagraphs applies:
(A) For a determination described in
paragraph (1)(B) or clause (i), (ii) or (iii)
of paragraph (2)(B), the 31st day after the
date on which notice of the determination is
published in the Federal Register.
(B) For a determination described in clause
(vi) of paragraph (2)(B), the 31st day after
the date on which the government of the
relevant FTA country receives notice of the
determination.
(C) For a determination with respect to which
binational panel review has commenced in
accordance with subsection (g)(8), the day
after the date as of which--
(i) the binational panel has
dismissed binational panel review of
the determination for lack of
jurisdiction, and
(ii) any interested party seeking
review of the determination under
paragraph (1), (2), or (3) of this
subsection has provided timely notice
under subsection (g)(3)(B).
If such an interested party files a summons and
complaint under this subsection after dismissal
by the binational panel, and if a request for
an extraordinary challenge committee is made
with respect to the decision by the binational
panel to dismiss--
(I) judicial review under this
subsection shall be stayed during
consideration by the committee of the
request, and
(II) the United States Court of
International Trade shall dismiss the
action if the committee vacates or
remands the binational panel decision
to dismiss.
(D) For a determination for which review by
the United States Court of International Trade
is provided for--
(i) under subsection (g)(12)(B), the
day after the date of publication in
the Federal Register of notice that
article 1904 of the NAFTA has been
suspended, or
(ii) under subsection (g)(12)(D), the
day after the date that notice of
settlement is published in the Federal
Register.
(E) For a determination described in clause
(vii) of paragraph (2)(B), the 31st day after
the date on which notice of the implementation
of the determination is published in the
Federal Register.
(b) Standards of Review.--
(1) Remedy.--The court shall hold unlawful any
determination, finding, or conclusion found--
(A) in an action brought under subparagraph
(A), (B), or (C) of subsection (a)(1), to be
arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law, or
(B)(i) in an action brought under paragraph
(2) of subsection (a), to be unsupported by
substantial evidence on the record, or
otherwise not in accordance with law, or
(ii) in an action brought under
paragraph (1)(D) of subsection (a), to
be arbitrary, capricious, an abuse of
discretion, or otherwise not in
accordance with law.
(2) Record for review.--
(A) In general.--For the purposes of this
subsection, the record, unless otherwise
stipulated by the parties, shall consist of--
(i) a copy of all information
presented to or obtained by the
Secretary, the administering authority,
or the Commission during the course of
the administrative proceeding,
including all governmental memoranda
pertaining to the case and the record
of ex parte meetings required to be
kept by section 777(a)(3); and
(ii) a copy of the determination, all
transcripts or records of conferences
or hearings, and all notices published
in the Federal Register.
(B) Confidential or privileged material.--The
confidential or privileged status accorded to
any documents, comments, or information shall
be preserved in any action under this section.
Notwithstanding the preceding sentence, the
court may examine, in camera, the confidential
or privileged material, and may disclose such
material under such terms and conditions as it
may order.
(3) Effect of decisions by nafta or united states-
canada binational panels.--In making a decision in any
action brought under subsection (a), a court of the
United States is not bound by, but may take into
consideration, a final decision of a binational panel
or extraordinary challenge committee convened pursuant
to article 1904 of the NAFTA or of the Agreement.
(c) Liquidation of Entries.--
(1) Liquidation in accordance with determination.--
Unless such liquidation is enjoined by the court under
paragraph (2) of this subsection, entries of
merchandise of the character covered by a determination
of the Secretary, the administering authority, or the
Commission contested under subsection (a) shall be
liquidated in accordance with the determination of the
Secretary, the administering authority, or the
Commission, if they are entered, or withdrawn from
warehouse, for consumption on or before the date of
publication in the Federal Register by the Secretary or
the administering authority of a notice of a decision
of the United States Court of International Trade, or
of the United States Court of Appeals for the Federal
Circuit, not in harmony with that determination. Such
notice of a decision shall be published within ten days
from the date of the issuance of the court decision.
(2) Injunctive relief.--In the case of a
determination described in paragraph (2) of subsection
(a) by the Secretary, the administering authority, or
the Commission, the United States Court of
International Trade may enjoin the liquidation of some
or all entries of merchandise covered by a
determination of the Secretary, the administering
authority, or the Commission, upon a request by an
interested party for such relief and a proper showing
that the requested relief should be granted under the
circumstances.
(3) Remand for final disposition.--If the final
disposition of an action brought under this section is
not in harmony with the published determination of the
Secretary, the administering authority, or the
Commission, the matter shall be remanded to the
Secretary, the administering authority, or the
Commission, an appropriate, for disposition consistent
with the final disposition of the court.
(d) Standing.--Any interested party who was a party to the
proceeding under section 303 of this Act or title VII of this
Act shall have the right to appear and be heard as a party in
interest before the United States Court of International Trade.
The party filing the action shall notify all such interested
parties of the filing of an action under this section, in the
form, manner, style, and within the time prescribed by rules of
the court.
(e) Liquidation in Accordance With Final Decision.--If the
cause of action is sustained in whole or in part by a decision
of the United States Court of International Trade or of the
United States Court of Appeals for the Federal Circuit--
(1) entries of merchandise of the character covered
by the published determination of the Secretary, the
administering authority, or the Commission, which is
entered, or withdrawn from warehouse, for consumption
after the date of publication in the Federal Register
by the Secretary or the administering authority of a
notice of the court decision, and
(2) entries, the liquidation of which was enjoined
under subsection (c)(2),
shall be liquidated in accordance with the final court decision
in the action. Such notice of the court decision shall be
published within ten days from the date of the issuance of the
court decision.
(f) Definitions.--For purposes of this section--
(1) Administering authority.--The term
``administering authority'' means the administering
authority described in section 771(1) of this Act.
(2) Commission.--The term ``Commission'' means the
United States International Trade Commission.
(3) Interested party.--The term ``interested party''
means any person described in section 771(9) of this
Act.
(4) Secretary.--The term ``Secretary'' means the
Secretary of the Treasury.
(5) Agreement.--The term ``Agreement'' means the
United States-Canada Free-Trade Agreement.
(6) United states secretary.--The term ``United
States Secretary'' means--
(A) the secretary for the United States
Section referred to in article 1908 of the
NAFTA, and
(B) the secretary of the United States
Section provided for in article 1909 of the
Agreement.
(7) Relevant fta secretary.--The term ``relevant FTA
Secretary'' means the Secretary--
(A) referred to in article 1908 of the NAFTA,
or
(B) provided for in paragraph 5 of article
1909 of the Agreement,
of the relevant FTA country.
(8) NAFTA.--The term ``NAFTA'' means the North
American Free Trade Agreement.
(9) Relevant fta country.--The term ``relevant FTA
country'' means the free trade area country to which an
antidumping or countervailing duty proceeding pertains.
(10) Free trade area country.--The term ``free trade
area country'' means the following:
(A) Canada for such time as the NAFTA is in
force with respect to, and the United States
applies the NAFTA to, Canada.
(B) Mexico for such time as the NAFTA is in
force with respect to, and the United States
applies the NAFTA to, Mexico.
(C) Canada for such time as--
(i) it is not a free trade area
country under subparagraph (A); and
(ii) the Agreement is in force with
respect to, and the United States
applies the Agreement to, Canada.
(g) Review of Countervailing Duty and Antidumping Duty
Determinations Involving Free Trade Area Country Merchandise.--
(1) Definition of determination.--For purposes of
this subsection, the term ``determination'' means a
determination described in--
(A) paragraph (1)(B) of subsection (a), or
(B) clause (i), (ii), (iii), (vi), or (vii)
or paragraph (2)(B) of subsection (a),
if made in connection with a proceeding regarding a
class or kind of free trade area country merchandise,
as determined by the administering authority.
(2) Exclusive review of determination by binational
panels.--If binational panel review of a determination
is requested pursuant to article 1904 of the NAFTA or
of the Agreement, then, except as provided in
paragraphs (3) and (4)--
(A) the determination is not reviewable under
subsection (a), and
(B) no court of the United States has power
or jurisdiction to review the determination on
any question of law or fact by an action in the
nature of mandamus or otherwise.
(3) Exception to exclusive binational panel review.--
(A) In general.--A determination is
reviewable under subsection (a) if the
determination sought to be reviewed is--
(i) a determination as to which
neither the United States nor the
relevant FTA country requested review
by a binational panel pursuant to
article 1904 of the NAFTA or of the
Agreement.
(ii) a revised determination issued
as a direct result of judicial review,
commenced pursuant to subsection (a),
if neither the United States nor the
relevant FTA country requested review
of the original determination,
(iii) a determination issued as a
direct result of judicial review that
was commenced pursuant to subsection
(a) prior to the entry into force of
the NAFTA or of the Agreement,
(iv) a determination which a
binational panel has determined is not
reviewable by the binational panel,
(v) a determination as to which
binational panel review has terminated
pursuant to paragraph 12 of article
1905 of the NAFTA, or
(vi) a determination as to which
extraordinary challenge committee
review has terminated pursuant to
paragraph 12 of article 1905 of the
NAFTA.
(B) Special rule.--A determination described
in subparagraph (A)(i) or (iv) is reviewable
under subsection (a) of this section only if
the party seeking to commence review has
provided timely notice of its intent to
commence such review to--
(i) the United States Secretary and
the relevant FTA Secretary;
(ii) all interested parties who were
parties to the proceeding in connection
with which the matter arises; and
(iii) the administering authority or
the Commission, as appropriate.
Such notice is timely provided if the notice is
delivered no later than the date that is 20
days after the date described in subparagraph
(A) or (B) of subsection (a)(5) that is
applicable to such determination, except that,
if the time for requesting binational panel
review is suspended under paragraph (8)(A)(ii)
of this subsection, any unexpired time for
providing notice of intent to commence judicial
review shall, during the pendency of any such
suspension, also be suspended. Such notice
shall contain such information, and be in such
form, manner, and style, as the administering
authority, in consultation with the Commission,
shall prescribe by regulations.
(4) Exception to exclusive binational panel review
for constitutional issues.--
(A) Constitutionality of binational panel
review system.--An action for declaratory
judgment or injunctive relief, or both,
regarding a determination on the grounds that
any provision of, or amendment made by, the
North American Free Trade Agreement
Implementation Act implementing the binational
dispute settlement system under chapter 19 of
the NAFTA, or the United States-Canada Free-
Trade Agreement Implementation Act of 1988
implementing the binational panel dispute
settlement system under chapter 19 of the
Agreement, violates the Constitution may be
brought only in the United States Court of
Appeals for the District of Columbia Circuit,
which shall have jurisdiction of such action.
(B) Other constitutional review.--Review is
available under subsection (a) with respect to
a determination solely concerning a
constitutional issue (other than an issue to
which subparagraph (A) applies) arising under
any law of the United States as enacted or
applied. An action for review under this
subparagraph shall be assigned to a 3-judge
panel of the United States Court of
International Trade.
(C) Commencement of review.--Notwithstanding
the time limits in subsection (a), within 30
days after the date of publication in the
Federal Register of notice that binational
panel review has been completed, an interested
party who is a party to the proceeding in
connection with which the matter arises may
commence an action under subparagraph (A) or
(B) by filing an action in accordance with the
rules of the court.
(D) Transfer of actions to appropriate
court.--Whenever an action is filed in a court
under subparagraph (A) or (B) and that court
finds that the action should have been filed in
the other court, the court in which the action
was filed shall transfer the action to the
other court and the action shall proceed as if
it had been filed in the court to which it is
transferred on the date upon which it was
actually filed in the court from which it is
transferred.
(E) Frivolous claims.--Frivolous claims
brought under subparagraph (A) or (B) are
subject to dismissal and sanctions as provided
under section 1927 of title 28, United States
Code, and the Federal Rules of Civil Procedure.
(F) Security.--
(i) Subparagraph (a) actions.--The
security requirements of rule 65(c) of
the Federal Rules of Civil Procedure
apply with respect to actions commenced
under subparagraph (A).
(ii) Subparagraph (b) actions.--No
claim shall be heard, and no temporary
restraining order or temporary or
permanent injunction shall be issued,
under an action commenced under
subparagraph (B), unless the party
seeking review first files an
undertaking with adequate security in
an amount to be fixed by the court
sufficient to recompense parties
affected for any loss, expense, or
damage caused by the improvident or
erroneous issuance of such order or
injunction. If a court upholds the
constitutionality of the determination
in question in such action, the court
shall award to a prevailing party fees
and expenses, in addition to any costs
incurred by that party, unless the
court finds that the position of the
other party was substantially justified
or that special circumstances make an
award unjust.
(G) Panel record.--The record of proceedings
before the binational panel shall not be
considered part of the record for review
pursuant to subparagraph (A) or (B).
(H) Appeal to supreme court of court orders
issued in subparagraph (a) actions.--
Notwithstanding any other provision of law, any
final judgment of the United States Court of
Appeals for the District of Columbia Circuit
which is issued pursuant to an action brought
under subparagraph (A) shall be reviewable by
appeal directly to the Supreme Court of the
United States. Any such appeal shall be taken
by a notice of appeal filed within 10 days
after such order is entered; and the
jurisdictional statement shall be filed within
30 days after such order is entered. No stay of
an order issued pursuant to an action brought
under subparagraph (A) may be issued by a
single Justice of the Supreme Court.
(5) Liquidation of entries.--
(A) Application.--In the case of a
determination for which binational panel review
is requested pursuant to article 1904 of the
NAFTA or of the Agreement, the rules provided
in this paragraph shall apply, notwithstanding
the provisions of subsection (c).
(B) General rule.--In the case of a
determination for which binational panel review
is requested pursuant to article 1904 of the
NAFTA or of the Agreement, entries of
merchandise covered by such determination shall
be liquidated in accordance with the
determination of the administering authority or
the Commission, if they are entered, or
withdrawn from warehouse, for consumption on or
before the date of publication in the Federal
Register by the administering authority of
notice of a final decision of a binational
panel, or of an extraordinary challenge
committee, not in harmony with that
determination. Such notice of a decision shall
be published within 10 days of the date of the
issuance of the panel or committee decision.
(C) Suspension of liquidation.--
(i) In general.--Notwithstanding the
provisions of subparagraph (B), in the
case of a determination described in
clause (iii) or (vi) of subsection
(a)(2)(B) for which binational panel
review is requested pursuant to article
1904 of the NAFTA or of the Agreement,
the administering authority, upon
request of an interested party who was
a party to the proceeding in connection
with which the matter arises and who is
a participant in the binational panel
review, shall order the continued
suspension of liquidation of those
entries of merchandise covered by the
determination that are involved in the
review pending the final disposition of
the review.
(ii) Notice.--At the same time as the
interested party makes its request to
the administering authority under
clause (i), that party shall serve a
copy of its request on the United
States Secretary, the relevant FTA
Secretary, and all interested parties
who were parties to the proceeding in
connection with which the matter
arises.
(iii) Application of suspension.--If
the interested party requesting
continued suspension of liquidation
under clause (i) is a foreign
manufacturer, producer, or exporter, or
a United States importer, the continued
suspension of liquidation shall apply
only to entries of merchandise
manufactured, produced, exported, or
imported by that particular
manufacturer, producer, exporter, or
importer. If the interested party
requesting the continued suspension of
liquidation under clause (i) is an
interested party described in
subparagraph (C), (D), (E) or (F) of
section 771(9), the continued
suspension of liquidation shall apply
only to entries which could be affected
by a decision of the binational panel
convened under chapter 19 of the NAFTA
or of the Agreement.
(iv) Judicial review.--Any action
taken by the administering authority or
the United States Customs Service under
this subparagraph shall not be subject
to judicial review, and no court of the
United States shall have power or
jurisdiction to review such action on
any question of law or fact by an
action in the nature of mandamus or
otherwise.
(6) Injunctive relief.--Except for cases under
paragraph (4)(B), in the case of a determination for
which binational panel review is requested pursuant to
article 1904 of the NAFTA or of the Agreement, the
provisions of subsection (c)(2) shall not apply.
(7) Implementation of international obligations under
article 1904 of the nafta or the agreement.--
(A) Action upon remand.--If a determination
is referred to a binational panel or
extraordinary challenge committee under the
NAFTA or the Agreement and the panel or
committee makes a decision remanding the
determination to the administering authority or
the Commission, the administering authority or
the Commission shall, within the period
specified by the panel or committee, take
action not inconsistent with the decision of
the panel or committee. Any action taken by the
administering authority or the Commission under
this paragraph shall not be subject to judicial
review, and no court of the United States shall
have power or jurisdiction to review such
action on any question of law or fact by an
action in the nature of mandamus or otherwise.
(B) Application if subparagraph (a) held
unconstitutional.--In the event that the
provisions of subparagraph (A) are held
unconstitutional under the provisions of
subparagraphs (A) and (H) of paragraph (4), the
provisions of this subparagraph shall take
effect. In such event, the President is
authorized on behalf of the United States to
accept, as a whole, the decision of a
binational panel or extraordinary challenge
committee remanding the determination to the
administering authority or the Commission
within the period specified by the panel or
committee. Upon acceptance by the President of
such a decision, the administering authority or
the Commission shall, within the period
specified by the panel or committee, take
action not inconsistent with such decision. Any
action taken by the President, the
administering authority, or the Commission
under this subparagraph shall not be subject to
judicial review, and no court of the United
States shall have power or jurisdiction to
review such action on any question of law or
fact by an action in the nature of mandamus or
otherwise.
(8) Requests for binational panel review.--
(A) Interested party requests for binational
panel review.--
(i) General rule.--An interested
party who was a party to the proceeding
in which a determination is made may
request binational panel review of such
determination by filing a request with
the United States Secretary by no later
than the date that is 30 days after the
date described in subparagraph (A),
(B), or (E) of subsection (a)(5) that
is applicable to such determination.
Receipt of such request by the United
States Secretary shall be deemed to be
a request for binational panel review
within the meaning of article 1904(4)
of the NAFTA or of the Agreement. Such
request shall contain such information
and be in such form, manner, and style
as the administering authority, in
consultation with the Commission, shall
prescribe by regulations.
(ii) Suspension of time to request
binational panel review under the
nafta.--Notwithstanding clause (i), the
time for requesting binational panel
review shall be suspended during the
pendency of any stay of binational
panel review that is issued pursuant to
paragraph 11(a) of article 1905 of the
NAFTA.
(B) Service of request for binational panel
review.--
(i) Service by interested party.--If
a request for binational panel review
of a determination is filed under
subparagraph (A), the party making the
request shall serve a copy, by mail or
personal service, on any other
interested party who was a party to the
proceeding in connection with which the
matter arises, and on the administering
authority or the Commission, as
appropriate.
(ii) Service by united states
secretary.--If an interested party to
the proceeding requests binational
panel review of a determination by
filing a request with the relevant FTA
Secretary, the United States Secretary
shall serve a copy of the request by
mail on any other interested party who
was a party to the proceeding in
connection with which the matter
arises, and on the administering
authority or the Commission, as
appropriate.
(C) Limitation on request for binational
panel review.--Absent a request by an
interested party under subparagraph (A), the
United States may not request binational panel
review of a determination under article 1904 of
the NAFTA or the Agreement.
(9) Representation in panel proceedings.--In the case
of binational panel proceedings convened under chapter
19 of the NAFTA or of the Agreement, the administering
authority and the Commission shall be represented by
attorneys who are employees of the administering
authority or the Commission, respectively. Interested
parties who were parties to the proceeding in
connection with which the matter arises shall have the
right to appear and be represented by counsel before
the binational panel.
(10) Notification of class or kind rulings.--In the
case of a determination which is described in paragraph
(2)(B)(vi) of subsection (a) and which is subject to
the provisions of paragraph (2), the administering
authority, upon request, shall inform any interested
person of the date on which the Government of the
relevant FTA country received notice of the
determination under paragraph 4 of article 1904 of the
NAFTA or the Agreement.
(11) Suspension and termination of suspension of
article 1904 of the nafta.--
(A) Suspension of article 1904.--If a special
committee established under article 1905 of the
NAFTA issues an affirmative finding, the Trade
Representative may, in accordance with
paragraph 8(a) or 9, as appropriate, of article
1905 of the NAFTA, suspend the operation of
article 1904 of the NAFTA.
(B) Termination of suspension of article
1904.--If a special committee is reconvened and
makes an affirmative determination described in
paragraph 10(b) of article 1905 of the NAFTA,
any suspension of the operation of article 1904
of the NAFTA shall terminate.
(12) Judicial review upon termination of binational
panel or committee review under the nafta.--
(A) Notice of suspension or termination of
suspension of article 1904.--
(i) Upon notification by the Trade
Representative or the Government of a
country described in subsection
(f)(10)(A) or (B) that the operation of
article 1904 of the NAFTA has been
suspended in accordance with paragraph
8(a) or 9 of article 1905 of the NAFTA,
the United States Secretary shall
publish in the Federal Register a
notice of suspension of article 1904 of
the NAFTA.
(ii) Upon notification by the Trade
Representative or the Government of a
country described in subsection
(f)(10)(A) or (B) that the suspension
of the operation of article 1904 of the
NAFTA is terminated in accordance with
paragraph 10 of article 1905 of the
NAFTA, the United States Secretary
shall publish in the Federal Register a
notice of termination of suspension of
article 1904 of the NAFTA.
(B) Transfer of final determinations for
judicial review upon suspension of article
1904.--If the operation of article 1904 of the
NAFTA is suspended in accordance with paragraph
8(a) or 9 of article 1905 of the NAFTA--
(i) upon the request of an authorized
person described in subparagraph (C),
any final determination that is the
subject of a binational panel review or
an extraordinary challenge committee
review shall be transferred to the
United States Court of International
Trade (in accordance with rules issued
by the Court) for review under
subsection (a); or
(ii) in a case in which--
(I) a binational panel review
was completed fewer than 30
days before the suspension, and
(II) extraordinary challenge
committee review has not been
requested,
upon the request of an authorized
person described in subparagraph (C)
which is made within 60 days after the
completion of the binational panel
review, the final determination that
was the subject of the binational panel
review shall be transferred to the
United States Court of International
Trade (in accordance with rules issued
by the Court) for review under
subsection (a).
(C) Persons authorized to request transfer of
final determinations for judicial review.--A
request that a final determination be
transferred to the Court of International Trade
under subparagraph (B) may be made by--
(i) if the United States made an
allegation under paragraph 1 of article
1905 of the NAFTA and the operation of
article 1904 of the NAFTA was suspended
pursuant to paragraph 8(a) of article
1905 of the NAFTA--
(I) the government of the
relevant country described in
subsection (f)(10)(A) or (B),
(II) an interested party that
was a party to the panel or
committee review, or
(III) an interested party
that was a party to the
proceeding in connection with
which panel review was
requested, but only if the time
period for filing notices of
appearance in the panel review
has not expired, or
(ii) if a country described in
subsection (f)(10)(A) or (B) made an
allegation under paragraph 1 of article
1905 of the NAFTA and the operation of
article 1904 of the NAFTA was suspended
pursuant to paragraph 9 of article 1905
of the NAFTA--
(I) the government of that
country,
(II) an interested party that
is a person of that country and
that was a party to the panel
or committee review, or
(III) an interested party
that is a person of that
country and that was a party to
the proceeding in connection
with which panel review was
requested, but only if the time
period for filing notices of
appearance in the panel review
has not expired.
(D) Transfer for judicial review upon
settlement.--(i) If the Trade Representative
achieves a settlement with the government of a
country described in subsection (f)(10)(A) or
(B) pursuant to paragraph 7 of article 1905 of
the NAFTA, and referral for judicial review is
among the terms of such settlement, any final
determination that is the subject of a
binational panel review or an extraordinary
challenge committee review shall, upon a
request described in clause (ii), be
transferred to the United States Court of
International Trade (in accordance with rules
issued by the Court) for review under
subsection (a).
(ii) A request referred to in clause (i) is a
request made by--
(I) the country referred to in clause
(i),
(II) an interested party that was a
party to the panel or committee review,
or
(III) an interested party that was a
party to the proceeding in connection
with which panel review was requested,
but only if the time for filing notices
of appearance in the panel review has
not expired.
* * * * * * *
Part V--Enforcement Provisions
* * * * * * *
SEC. 596. AIDING UNLAWFUL IMPORTATION.
(a) Except as specified in subsection (b) or (c) of section
594 of this Act, every vessel, vehicle, animal, aircraft, or
other thing used in, to aid in, or to facilitate, by obtaining
information or in any other way, the importation, bringing in,
unlading, landing, removal, concealing, harboring, or
subsequent transportation of any article which is being or has
been introduced, or attempted to be introduced, into the United
States contrary to law, whether upon such vessel, vehicle,
animal, aircraft, or other thing or otherwise, may be seized
and forfeited together with its tackle, apparel, furniture,
harness, or equipment.
(b) Every person who directs, assists financially or
otherwise, or is in any way concerned in any unlawful activity
mentioned in the preceding subsection shall be liable to a
penalty equal to the value of the article or articles
introduced or attempted to be introduced.
(c) Merchandise which is introduced or attempted to be
introduced into the United States contrary to law shall be
treated as follows:
(1) The merchandise shall be seized and forfeited if
it--
(A) is stolen, smuggled, or clandestinely
imported or introduced;
(B) is a controlled substance, as defined in
the Controlled Substances Act (21 U.S.C. 801 et
seq.), and is not imported in accordance with
applicable law;
(C) is a contraband article, as defined in
section 1 of the Act of August 9, 1939 (49
U.S.C. App. 781); or
(D) is a plastic explosive, as defined in
section 841(q) of title 18, United States Code,
which does not contain a detection agent, as
defined in section 841(p) of such title.
(2) The merchandise may be seized and forfeited if--
(A) its importation or entry is subject to
any restriction or prohibition which is imposed
by law relating to health, safety, or
conservation and the merchandise is not in
compliance with the applicable rule,
regulation, or statute;
(B) its importation or entry requires a
license, permit or other authorization of an
agency of the United States Government and the
merchandise is not accompanied by such license,
permit, or authorization;
(C) it is merchandise or packaging in which
copyright, trademark, or trade name protection
violations are involved (including, but not
limited to, violations of section 42, 43, or 45
of the Act of July 5, 1946 (15 U.S.C. 1124,
1125, or 1127), section 506 or 509 of title 17,
United States Code, or section 2318 or 2320 of
title 18, United States Code);
(D) it is trade dress merchandise involved in
the violation of a court order citing section
43 of such Act of July 5, 1946 (15 U.S.C.
1125);
(E) it is merchandise which is marked
intentionally in violation of section 304; or
(F) it is merchandise for which the importer
has received written notices that previous
importations of identical merchandise from the
same supplier were found to have been marked in
violation of section 304.
(3) If the importation or entry of the merchandise is
subject to quantitative restrictions requiring a visa,
permit, license, or other similar document, or stamp
from the United States Government or from a foreign
government or issuing authority pursuant to a bilateral
or multilateral agreement, the merchandise shall be
subject to detention in accordance with section 499
unless the appropriate visa, license, permit, or
similar document or stamp is presented to the Customs
Service; but if the visa, permit, license, or similar
document or stamp which is presented in connection with
the importation or entry of the merchandise is
counterfeit, the merchandise may be seized and
forfeited.
(4) If the merchandise is imported or introduced
contrary to a provision of law which governs the
classification of value of merchandise and there are no
issues as to the admissibility of the merchandise into
the United States, it shall not be seized except in
accordance with section 592.
(5) In any case where the seizure and forfeiture of
merchandise are required or authorized by this section,
the Secretary may--
(A) remit the forfeiture under section 618,
or
(B) permit the exportation of the
merchandise, unless its release would adversely
affect health, safety, or conservation or be in
contravention of a bilateral or multilateral
agreement or treaty.
(d) Merchandise exported or sent from the United States or
attempted to be exported or sent from the United States
contrary to law, or the proceeds or value thereof, and property
used to facilitate the exporting or sending of such
merchandise, the attempted exporting or sending of such
merchandise, or the receipt, purchase, transportation,
concealment, or sale of such merchandise prior to exportation
shall be seized and forfeited to the United States.
* * * * * * *
Part VI--Miscellaneous Provisions
SEC. 641. CUSTOMS BROKERS.
(a) Definitions.--As used in this section:
(1) The term ``customs broker'' means any person
granted a customs broker's license by the Secretary
under subsection (b).
(2) The term ``customs business'' means those
activities involving transaction with the Customs
Service concerning the entry and admissibility of
merchandise, its classification and valuation, the
payment of duties, taxes, or other charges assessed or
collected by the Customs Service upon merchandise by
reason of its importation, or the refund, rebate, or
drawback thereof. It also includes the preparation of
documents or forms in any format and the electronic
transmission of documents, invoices, bills, or parts
thereof, intended to be filed with the Customs Service
in furtherance of such activities, whether or not
signed or filed by the preparer, or activities relating
to such preparation, but does not include the mere
electronic transmission of data received for
transmission to Customs.
(3) The term ``Secretary'' means the Secretary of the
Treasury.
(b) Custom Broker's Licenses.--
(1) In general.--No person may conduct customs
business (other than solely on behalf of that person)
unless that person holds a valid customs broker's
license issued by the Secretary under paragraph (2) or
(3).
(2) Licenses for individuals.--The Secretary may
grant an individual a customs broker's license only if
that individual is a citizen of the United States.
Before granting the license, the Secretary may require
an applicant to show any facts deemed necessary to
establish that the applicant is of good moral character
and qualified to render valuable service to others in
the conduct of customs business. In assessing the
qualifications of an applicant, the Secretary may
conduct an examination to determine the applicant's
knowledge of customs and related laws, regulations and
procedures, bookkeeping, accounting, and all other
appropriate matters.
(3) Licenses for corporations, etc.--The Secretary
may grant a customs broker's license to any
corporation, association, or partnership that is
organized or existing under the laws of any of the
several States of the United States if at least one
officer of the corporation or association, or one
member of the partnership, holds a valid customs
broker's license granted under paragraph (2).
(4) Duties.--A customs broker shall exercise
responsible supervision and control over the customs
business that it conducts.
(5) Lapse of license.--The failure of a customs
broker that is licensed as a corporation, association,
or partnership under paragraph (3) to have, for any
continuous period of 120 days, at least one officer of
the corporation or association, or at least one member
of the partnership, validly licensed under paragraph
(2) shall, in addition to causing the broker to be
subject to any other sanction under this section
(including paragraph (6)), result in the revocation by
operation of law of its license.
(6) Prohibited acts.--Any person who intentionally
transacts customs business, other than solely on the
behalf of that person, without holding a valid customs
broker's license granted to that person under this
subsection shall be liable to the United States for a
monetary penalty not to exceed $10,000 for each such
transaction as well as for each violation of any other
provision of this section. This penalty shall be
assessed in the same manner and under the same
procedures as the monetary penalties provided for in
subsection (d)(2)(A).
(c) Customs Broker's Permits.--
(1) In general.--Each person granted a customs
broker's license under subsection (b) shall be issued,
in accordance with such regulations as the Secretary
shall prescribe, either or both of the following:
(A) A national permit for the conduct of such
customs business as the Secretary prescribes by
regulation.
(B) A permit for each customs district in
which that person conducts customs business
and, except as provided in paragraph (2),
regularly employs at least 1 individual who is
licensed under subsection (b)(2) to exercise
responsible supervision and control over the
customs business conducted by that person in
that district.
(2) Exception.--If a person granted a customs
broker's license under subsection (b) can demonstrate
to the satisfaction of the Secretary that--
(A) he regularly employs in the region in
which that district is located at least one
individual who is licensed under subsection
(b)(2), and
(B) that sufficient procedures exist within
the company for the person employed in that
region to exercise responsible supervision and
control over the customs business conducted by
that person in that district,
the Secretary may waive the requirement in paragraph
(1)(B).
(3) Lapse of permit.--The failure of a customs broker
granted a permit under paragraph (1) to employ, for any
continuous period of 180 days, at least one individual
who is licensed under subsection (b)(2) within the
district or region (if paragraph (2) applies) for which
a permit was issued shall, in addition to causing the
broker to be subject to any other sanction under this
section (including any in subsection (d)), result in
the revocation by operation of law of the permit.
(4) Appointment of subagents.--Notwithstanding
subsection (c)(1), upon the implementation by the
Secretary under section 413(b)(2) of the component of
the National Customs Automation Program referred to in
section 411(a)(2)(B), a licensed broker may appoint
another licensed broker holding a permit in a customs
district to act on its behalf as its subagent in that
district if such activity relates to the filing of
information that is permitted by law or regulation to
be filed electronically. A licensed broker appointing a
subagent pursuant to this paragraph shall remain liable
for any and all obligations arising under bond and any
and all duties, taxes, and fees, as well as any other
liabilities imposed by law, and shall be precluded from
delegating to a subagent such liability.
(d) Disciplinary Proceedings.--
(1) General rule.--The Secretary may impose a
monetary penalty in all cases with the exception of the
infractions described in clause (iii) of subparagraph
(B) of this subsection, or revoke or suspend a license
or permit of any customs broker, if it is shown that
the broker--
(A) has made or caused to be made in any
application for any license or permit under
this section, or report filed with the Customs
Service, any statement which was, at the time
and in light of the circumstances under which
it was made, false or misleading with respect
to any material fact, or has omitted to state
in any such application or report any material
fact which was required to be stated therein;
(B) has been convicted at any time after the
filing of an application for license under
subsection (b) of any felony or misdemeanor
which the Secretary finds--
(i) involved the importation or
exportation of merchandise;
(ii) arose out of the conduct of its
customs business; or
(iii) involved larceny, theft,
robbery, extortion, forgery,
counterfeiting, fraudulent concealment,
embezzlement, fraudulent conversion, or
misappropriation of funds;
(C) has violated any provision of any law
enforced by the Customs Service or the rules or
regulations issued under any such provision;
(D) has counseled, commanded, induced,
procured, or knowingly aided or abetted the
violations by any other person of any provision
of any law enforced by the Customs Service, or
the rules or regulations issued under any such
provision;
(E) has knowingly employed, or continues to
employ, any person who has been convicted of a
felony, without written approval of such
employment from the Secretary; or
(F) has, in the course of its customs
business, with intent to defraud, in any manner
willfully and knowingly deceived, misled or
threatened any client or prospective client.
(2) Procedures.--
(A) Monetary penalty.--Unless action has been
taken under subparagraph (B), the appropriate
customs officer shall serve notice in writing
upon any customs broker to show cause why the
broker should not be subject to a monetary
penalty not to exceed $30,000 in total for a
violation or violations of this section. The
notice shall advise the customs broker of the
allegations or complaints against him and shall
explain that the broker has a right to respond
to the allegations or complaints in writing
within 30 days of the date of the notice.
Before imposing a monetary penalty, the customs
officer shall consider the allegations or
complaints and any timely response made by the
customs broker and issue a written decision. A
customs broker against whom a monetary penalty
has been issued under this section shall have a
reasonable opportunity under section 618 to
make representations seeking remission or
mitigation of the monetary penalty. Following
the conclusion of any proceeding under section
618, the appropriate customs officer shall
provide to the customs broker a written
statement which sets forth the final
determination and the findings of fact and
conclusions of law on which such determination
is based.
(B) Revocation or suspension.--The Customs
Service may, for good and sufficient reason,
serve notice in writing upon any customs broker
to show cause why a license or permit issued
under this section should not be revoked or
suspended. The notice shall be in the form of a
statement specifically setting forth the
grounds of the complaint, and shall allow the
customs broker 30 days to respond. If no
response is filed, or the Customs Service
determines that the revocation or suspension is
still warranted, it shall notify the customs
broker in writing of a hearing to be held
within 30 days, or at a later date if the
broker requests an extension and shows good
cause therefor, before an administrative law
judge appointed pursuant to section 3105 of
title 5, United States Code, who shall serve as
the hearing officer. If the customs broker
waives the hearing, or the broker or his
designated representative fails to appear at
the appointed time and place, the hearing
officer shall make findings and recommendations
based on the record submitted by the parties.
At the hearing, the customs broker may be
represented by counsel, and all proceedings,
including the proof of the charges and the
response thereto shall be presented with
testimony taken under oath and the right of
cross-examination accorded to both parties. A
transcript of the hearing shall be made and a
copy will be provided to the Customs Service
and the customs broker; which shall thereafter
be provided reasonable opportunity to file a
post-hearing brief. Following the conclusion of
the hearing, the hearing officer shall transmit
promptly the record of the hearing along with
the findings of fact and recommendations to the
Secretary for decision. The Secretary will
issue a written decision, based solely on the
record, setting forth the findings of fact and
the reasons for the decision. Such decision may
provide for the sanction contained in the
notice to show cause or any lesser sanction
authorized by this subsection, including a
monetary penalty not to exceed $30,000, then
was contained in the notice to show cause.
(3) Settlement and compromise.--The Secretary may
settle and compromise any disciplinary proceeding which
has been instituted under this subsection according to
the terms and conditions agreed to by the parties,
including but not limited to the reduction of any
proposed suspension or revocation to a monetary
penalty.
(4) Limitation of actions.--Notwithstanding section
621, no proceeding under this subsection or subsection
(b)(6) shall be commenced unless such proceeding is
instituted by the appropriate service of written notice
within 5 years from the date the alleged violation was
committed; except that if the alleged violation
consists of fraud, the 5-year period of limitation
shall commence running from the time such alleged
violation was discovered.
(e) Judicial Appeal.--
(1) In general.--A customs broker, applicant, or
other person directly affected may appeal any decision
of the Secretary denying or revoking a license or
permit under subsection (b) or (c), or revoking or
suspending a license or permit or imposing a monetary
penalty in lieu thereof under subsection (d)(2)(B), by
filing in the Court of International Trade, within 60
days after the issuance of the decision or order, a
written petition requesting that the decision or order
be modified or set aside in whole or in part. A copy of
the petition shall be transmitted promptly by the clerk
of the court to the Secretary or his designee. In cases
involving revocation or suspension of a license or
permit or imposition of a monetary penalty in lieu
thereof under subsection (d)(2)(B), after receipt of
the petition, the Secretary shall file in court the
record upon which the decision or order complained of
was entered, a provided in section 2635(d) of title 28,
United States Code.
(2) Consideration of objections.--The court shall not
consider any objection to the decision or order of the
Secretary, or to the introduction of evidence or
testimony, unless that objection was raised before the
hearing officer in suspension or revocation proceedings
unless there were reasonable grounds for failure to do
so.
(3) Conclusiveness of findings.--The findings of the
Secretary as to the facts, if supported by substantial
evidence, shall be conclusive.
(4) Additional evidence.--If any party applies to the
court for leave to present additional evidence and the
court is satisfied that the additional evidence is
material and that reasonable grounds existed for the
failure to present the evidence in the proceedings
before the hearing officer, the court may order the
additional evidence to be taken before the hearing
officer and to be presented in a manner and upon the
terms and conditions prescribed in a manner and upon
the terms and conditions prescribed by the court. The
Secretary may modify the findings of facts on the basis
of the additional evidence presented. The Secretary
shall then file with the court any new or modified
findings of fact which shall be conclusive if supported
by substantial evidence, together with a
recommendation, if any, for the modification or setting
aside of the original decision or order.
(5) Effect of proceedings.--The commencement of
proceedings under this subsection shall, unless
specifically ordered by the court, operate as a stay of
the decision of the Secretary except in the case of a
denial of a license or permit.
(6) Failure to appeal.--If an appeal is not filed
within the time limits specified in this section, the
decision by the Secretary shall be final and
conclusive. In the case of a monetary penalty imposed
under subsection (d)(2)(B) of this section, if the
amount is not tendered within 60 days after the
decision becomes final, the license shall automatically
be suspended until payment is made to the Customs
Service.
(f) Regulations by the Secretary.--The Secretary may
prescribe such rules and regulations relating to the customs
business of customs brokers as the Secretary considers
necessary to protect importers and the revenue of the United
States, and to carry out the provisions of this section,
including rules and regulations governing the licensing of or
issuance of permits to customs brokers, the keeping of books,
accounts, and records by customs brokers, and documents and
correspondence, and the furnishing by customs brokers of any
other information relating to their customs business to any
duly accredited officer or employee of the Customs Service. The
Secretary may not prohibit customs brokers from limiting their
liability to other persons in the conduct of customs business.
For purposes of this subsection or any other provision of this
Act pertaining to recordkeeping, all data required to be
retained by a customs broker may be kept on microfilm, optical
disc, magnetic tapes, disks or drums, video files or any other
electrically generated medium. Pursuant to such regulations as
the Secretary shall prescribe, the conversion of data to such
storage medium may be accomplished at any time subsequent to
the relevant customs transaction and the data may be retained
in a centralized basis according to such broker's business
system.
(g) Triennial Reports by Customs Brokers.--
(1) In general.--On February 1, 1985, and on February
1 of each third year thereafter, each person who is
licensed under subsection (b) shall file with the
Secretary of the Treasury a report as to--
(A) whether such person is actively engaged
in business as a customs broker; and
(B) the name under, and the address at, which
such business is being transacted.
(2) Suspension and revocation.--If a person licensed
under subsection (b) fails to file the required report
by March 1 of the reporting year, the license is
suspended, and may be thereafter revoked subject to the
following procedures:
(A) The Secretary shall transmit written
notice of suspension to the licensee no later
than March 31 of the reporting year.
(B) If the licensee files the required report
within 60 days of receipt of the Secretary's
notice, the license shall be reinstated.
(C) In the event the required report is not
filed within the 60-day period, the license
shall be revoked without prejudice to the
filing of an application for a new license.
(h) Fees and Charges.--The Secretary may prescribe reasonable
fees and charges to defray the costs of the Customs Service in
carrying out the provisions of this section, including, but not
limited to, a fee for licenses issued under subsection (b) and
fees for any test administered by him or under his direction;
except that no separate fees shall be imposed to defray the
costs of an individual audit or of individual disciplinary
proceedings of any nature.
* * * * * * *
TITLE VII--COUNTERVAILING AND ANTIDUMPING DUTIES
* * * * * * *
Subtitle C--Reviews; Other Actions Regarding Agreements
CHAPTER 1--REVIEW OF AMOUNT OF DUTY AND AGREEMENTS OTHER THAN
QUANTITATIVE RESTRICTION AGREEMENTS
SEC. 751. ADMINISTRATIVE REVIEW OF DETERMINATIONS.
(a) Periodic Review of Amount of Duty.--
(1) In general.--At least once during each 12-month
period beginning on the anniversary of the date of
publication of a countervailing duty order under this
title or under section 303 of this Act, an antidumping
duty order under this title or a finding under the
Antidumping Act, 1921, or a notice of the suspension of
an investigation, the administering authority, if a
request for such a review has been received and after
publication of notice of such review in the Federal
Register, shall--
(A) review and determine the amount of any
net countervailable subsidy,
(B) review, and determine (in accordance with
paragraph (2)), the amount of any antidumping
duty, and
(C) review the current status of, and
compliance with, any agreement by reason of
which an investigation was suspended, and
review the amount of any net countervailable
subsidy or dumping margin involved in the
agreement,
and shall publish in the Federal Register the results
of such review, together with notice of any duty to be
assessed, estimated duty to be deposited, or
investigation to be resumed.
(2) Determination of antidumping duties.--
(A) In general.--For the purpose of paragraph
(1)(B), the administering authority shall
determine--
(i) the normal value and export price
(or constructed export price) of each
entry of the subject merchandise, and
(ii) the dumping margin for each such
entry.
(B) Determination of antidumping or
countervailing duties for new exporters and
producers.--
(i) In general.--If the administering
authority receives a request from an
exporter or producer of the subject
merchandise establishing that--
(I) such exporter or producer
did not export the merchandise
that was the subject of an
antidumping duty or
countervailing duty order to
the United States (or, in the
case of a regional industry,
did not export the subject
merchandise for sale in the
region concerned) during the
period of investigation, and
(II) such exporter or
producer is not affiliated
(within the meaning of section
771(33)) with any exporter or
producer who exported the
subject merchandise to the
United States (or in the case
of a regional industry, who
exported the subject
merchandise for sale in the
region concerned) during that
period,
the administering authority shall
conduct a review under this subsection
to establish an individual weighted
average dumping margin or an individual
countervailing duty rate (as the case
may be) for such exporter or producer.
(ii) Time for review under clause
(i).--The administering authority shall
commence a review under clause (i) in
the calendar month beginning after--
(I) the end of the 6-month
period beginning on the date of
the countervailing duty or
antidumping duty order under
review, or
(II) the end of any 6-month
period occurring thereafter,
if the request for the review is made
during that 6-month period.
(iii) Posting bond or security.--The
administering authority shall, at the
time a review under this subparagraph
is initiated, direct the Customs
Service to allow, at the option of the
importer, the posting, until the
completion of the review, of a bond or
security in lieu of a cash deposit for
each entry of the subject merchandise.
(iv) Time limits.--The administering
authority shall make a preliminary
determination in a review conducted
under this subparagraph within 180 days
after the date on which the review is
initiated, and a final determination
within 90 days after the date the
preliminary determination is issued,
except that if the administering
authority concludes that the case is
extraordinarily complicated, it may
extend the 180-day period to 300 days
and may extend the 90-day period to 150
days.
(C) Results of determinations.--The
determination under this paragraph shall be the
basis for the assessment of countervailing or
antidumping duties on entries of merchandise
covered by the determination and for deposits
of estimated duties.
(3) Time limits.--
(A) Preliminary and final determinations.--
The administering authority shall make a
preliminary determination under subparagraph
(A), (B), or (C) of paragraph (1) within 245
days after the last day of the month in which
occurs the anniversary of the date of
publication of the order, finding, or
suspension agreement for which the review under
paragraph (1) is requested, and a final
determination under paragraph (1) within 120
days after the date on which the preliminary
determination is published. If it is not
practicable to complete the review within the
foregoing time, the administering authority may
extend that 245-day period to 365 days and may
extend that 120-day period to 180 days. The
administering authority may extend the time for
making a final determination without extending
the time for making a preliminary
determination, if such final determination is
made not later than 300 days after the date on
which the preliminary determination is
published.
(B) Liquidation of entries.--If the
administering authority orders any liquidation
of entries pursuant to a review under paragraph
(1), such liquidation shall be made promptly
and, to the greatest extent practicable, within
90 days after the instructions to Customs are
issued. In any case in which liquidation has
not occurred within that 90-day period, the
Secretary of the Treasury shall, upon the
request of the affected party, provide an
explanation thereof.
(C) Effect of pending review under section
516a.--In a case in which a final determination
under paragraph (1) is under review under
section 516A and a liquidation of entries
covered by the determination is enjoined under
section 516A(c)(2) or suspended under section
516A(g)(5)(C), the administering authority
shall, within 10 days after the final
disposition of the review under section 516A,
transmit to the Federal Register for
publication the final disposition and issue
instructions to the Customs Service with
respect to the liquidation of entries pursuant
to the review. In such a case, the 90-day
period referred to in subparagraph (B) shall
begin on the day on which the administering
authority issues such instructions.
(4) Absorption of antidumping duties.--During any
review under this subsection initiated 2 years or 4
years after the publication of an antidumping duty
order under section 736(a), the administering
authority, if requested, shall determine whether
antidumping duties have been absorbed by a foreign
producer or exporter subject to the order if the
subject merchandise is sold in the United States
through an importer who is affiliated with such foreign
producer or exporter. The administering authority shall
notify the Commission of its findings regarding such
duty absorption for the Commission to consider in
conducting a review under subsection (c).
(b) Reviews Based on Changed Circumstances.--
(1) In general.--Whenever the administering authority
or the Commission receives information concerning, or a
request from an interested party for a review of--
(A) a final affirmative determination that
resulted in an antidumping duty order under
this title or a finding under the Antidumping
Act, 1921, or in a countervailing duty order
under this title or section 303,
(B) a suspension agreement accepted under
section 704 or 734, or
(C) a final affirmative determination
resulting from an investigation continued
pursuant to section 704(g) or 734(g),
which shows changed circumstances sufficient to warrant
a review of such determination or agreement, the
administering authority or the Commission (as the case
may be) shall conduct a review of the determination or
agreement after publishing notice of the review in the
Federal Register.
(2) Commission review.--In conducting a review under
this subsection, the Commission shall--
(A) in the case of a countervailing duty
order or antidumping duty order or finding,
determine whether revocation of the order or
finding is likely to lead to continuation or
recurrence of material injury,
(B) in the case of a determination made
pursuant to section 704(h)(2) or 734(h)(2),
determine whether the suspension agreement
continues to eliminate completely the injurious
effects of imports of the subject merchandise,
and
(C) in the case of an affirmative
determination resulting from an investigation
continued under section 704(g) or 734(g),
determine whether termination of the suspended
investigation is likely to lead to continuation
or recurrence of material injury.
(3) Burden of persuasion.--During a review conducted
by the Commission under this subsection--
(A) the party seeking revocation of an order
or finding described in paragraph (1)(A) shall
have the burden of persuasion with respect to
whether there are changed circumstances
sufficient to warrant such revocation, and
(B) the party seeking termination of a
suspended investigation or a suspension
agreement shall have the burden of persuasion
with respect to whether there are changed
circumstances sufficient to warrant such
termination.
(4) Limitation on period for review.--In the absence
of good cause shown--
(A) the Commission may not review a
determination made under section 705(b) or
735(b), or an investigation suspended under
section 704 or 734, and
(B) the administering authority may not
review a determination made under section
705(a) or 735(a), or an investigation suspended
under section 704 or 734,
less than 24 months after the date of publication of
notice of that determination or suspension.
(c) Five-Year Review.--
(1) In general.--Notwithstanding subsection (b) and
except in the case of a transition order defined in
paragraph (6), 5 years after the date of publication
of--
(A) a countervailing duty order (other than a
countervailing duty order to which subparagraph
(B) applies or which was issued without an
affirmative determination of injury by the
Commission under section 303), an antidumping
duty order, or a notice of suspension of an
investigation, described in subsection (a)(1),
(B) a notice of injury determination under
section 753 with respect to a countervailing
duty order, or
(C) a determination under this section to
continue an order or suspension agreement,
the administering authority and the Commission shall
conduct a review to determine, in accordance with
section 752, whether revocation of the countervailing
or antidumping duty order or termination of the
investigation suspended under section 704 or 734 would
be likely to lead to continuation or recurrence of
dumping or a countervailable subsidy (as the case may
be) and of material injury.
(2) Notice of initiation of review.--Not later than
30 days before the fifth anniversary of the date
described in paragraph (1), the administering authority
shall publish in the Federal Register a notice of
initiation of a review under this subsection and
request that interested parties submit--
(A) a statement expressing their willingness
to participate in the review by providing
information requested by the administering
authority and the Commission,
(B) a statement regarding the likely effects
of revocation of the order or termination of
the suspended investigation, and
(C) such other information or industry data
as the administering authority or the
Commission may specify.
(3) Responses to notice of initiation.--
(A) No response.--If no interested party
responds to the notice of initiation under this
subsection, the administering authority shall
issue a final determination, within 90 days
after the initiation of a review, revoking the
order or terminating the suspended
investigation to which such notice relates. For
purposes of this paragraph, an interested party
means a party described in section 771(9) (C),
(D), (E), (F), or (G).
(B) Inadequate response.--If interested
parties provide inadequate responses to a
notice of initiation, the administering
authority, within 120 days after the initiation
of the review, or the Commission, within 150
days after such initiation, may issue, without
further investigation, a final determination
based on the facts available, in accordance
with section 776.
(4) Waiver of participation by certain interested
parties.--
(A) In general.--An interested party
described in section 771(9) (A) or (B) may
elect not to participate in a review conducted
by the administering authority under this
subsection and to participate only in the
review conducted by the Commission under this
subsection.
(B) Effect of waiver.--In a review in which
an interested party waives its participation
pursuant to this paragraph, the administering
authority shall conclude that revocation of the
order or termination of the investigation would
be likely to lead to continuation or recurrence
of dumping or a countervailable subsidy (as the
case may be) with respect to that interested
party.
(5) Conduct of review.--
(A) Time limits for completion of review.--
Unless the review has been completed pursuant
to paragraph (3) or paragraph (4) applies, the
administering authority shall make its final
determination pursuant to section 752 (b) or
(c) within 240 days after the date on which a
review is initiated under this subsection. If
the administering authority makes a final
affirmative determination, the Commission shall
make its final determination pursuant to
section 752(a) within 360 days after the date
on which a review is initiated under this
subsection.
(B) Extension of time limit.--The
administering authority or the Commission (as
the case may be) may extend the period of time
for making their respective determinations
under this subsection by not more than 90 days,
if the administering authority or the
Commission (as the case may be) determines that
the review is extraordinarily complicated. In a
review in which the administering authority
extends the time for making a final
determination, but the Commission does not
extend the time for making a determination, the
Commission's determination shall be made not
later than 120 days after the date on which the
final determination of the administering
authority is published.
(C) Extraordinarily complicated.--For
purposes of this subsection, the administering
authority or the Commission (as the case may
be) may treat a review as extraordinarily
complicated if--
(i) there is a large number of
issues,
(ii) the issues to be considered are
complex,
(iii) there is a large number of
firms involved,
(iv) the orders or suspended
investigations have been grouped as
described in subparagraph (D), or
(v) it is a review of a transition
order.
(D) Grouped reviews.--The Commission, in
consultation with the administering authority,
may group orders or suspended investigations
for review if it considers that such grouping
is appropriate and will promote administrative
efficiency. Where orders or suspended
investigations have been grouped, the
Commission shall, subject to subparagraph (B),
make its final determination under this
subsection not later than 120 days after the
date that the administering authority publishes
notice of its final determination with respect
to the last order or agreement in the group.
(6) Special transition rules.--
(A) Schedule for reviews of transition
orders.--
(i) Initiation.--The administering
authority shall begin its review of
transition orders in the 42d calendar
month after the date such orders are
issued. A review of all transition
orders shall be initiated not later
than the 5th anniversary after the date
such orders are issued.
(ii) Completion.--A review of a
transition order shall be completed not
later than 18 months after the date
such review is initiated. Reviews of
all transition orders shall be
completed not later than 18 months
after the 5th anniversary of the date
such orders are issued.
(iii) Subsequent reviews.--The time
limits set forth in clauses (i) and
(ii) shall be applied to all subsequent
5-year reviews of transition orders by
substituting ``date of the
determination to continue such orders''
for ``date such orders are issued''.
(iv) Revocation and termination.--No
transition order may be revoked under
this subsection before the date that is
5 years after the date the WTO
Agreement enters into force with
respect to the United States.
(B) Sequence of transition reviews.--The
administering authority, in consultation with
the Commission, shall determine such sequence
of review of transition orders as it deems
appropriate to promote administrative
efficiency. To the extent practicable, older
orders shall be reviewed first.
(C) Definition of transition order.--For
purposes of this section, the term ``transition
order'' means--
(i) a countervailing duty order under
this title or under section 303,
(ii) an antidumping duty order under
this title or a finding under the
Antidumping Act, 1921, or
(iii) a suspension of an
investigation under section 704 or 734,
which is in effect on the date the WTO
Agreement enters into force with respect to the
United States.
(D) Issue date for transition orders.--For
purposes of this subsection, a transition order
shall be treated as issued on the date the WTO
Agreement enters into force with respect to the
United States, if such order is based on an
investigation conducted by both the
administering authority and the Commission.
(7) Exclusions from computations.--
(A) In general.--Subject to subparagraph (B),
there shall be excluded from the computation of
the 5-year period described in paragraph (1)
and the periods described in paragraph (6) any
period during which the importation of the
subject merchandise is prohibited on account of
the imposition, under the International
Emergency Economic Powers Act or other
provision of law, of sanctions by the United
States against the country in which the subject
merchandise originates.
(B) Application of exclusion.--Subparagraph
(A) shall apply only with respect to subject
merchandise which originates in a country that
is not a WTO member.
(d) Revocation of Order or Finding; Termination of Suspended
Investigation.--
(1) In general.--The administering authority may
revoke, in whole or in part, a countervailing duty
order or an antidumping duty order or finding, or
terminate a suspended investigation, after review under
subsection (a) or (b). The administering authority
shall not revoke, in whole or in part, a countervailing
duty order or terminate a suspended investigation on
the basis of any export taxes, duties, or other charges
levied on the export of the subject merchandise to the
United States which are specifically intended to offset
the countervailable subsidy received.
(2) Five-year reviews.--In the case of a review
conducted under subsection (c), the administering
authority shall revoke a countervailing duty order or
an antidumping duty order or finding, or terminate a
suspended investigation, unless--
(A) the administering authority makes a
determination that dumping or a countervailable
subsidy, as the case may be, would be likely to
continue or recur, and
(B) the Commission makes a determination that
material injury would be likely to continue or
recur as described in section 752(a).
(3) Application of revocation or termination.--A
determination under this section to revoke an order or
finding or terminate a suspended investigation shall
apply with respect to unliquidated entries of the
subject merchandise which are entered, or withdrawn
from warehouse, for consumption on or after the date
determined by the administering authority.
(e) Hearings.--Whenever the administering authority or the
Commission conducts a review under this section, it shall, upon
the request of an interested party, hold a hearing in
accordance with section 774(b) in connection with that review.
(f) Determination That Basis for Suspension No Longer
Exists.--If the determination of the Commission under
subsection (b)(2)(B) is negative, the suspension agreement
shall be treated as not accepted, beginning on the date of
publication of the Commission's determination, and the
administering authority and the Commission shall proceed, under
section 704(i) or 734(i), as if the suspension agreement had
been violated on that date, except that no duty under any order
subsequently issued shall be assessed on merchandise entered,
or withdrawn from warehouse, for consumption before that date.
(g) Reviews To Implement Results of Subsidies Enforcement
Proceeding.--
(1) Violations of article 8 of the subsidies
agreement.--If--
(A) the administering authority receives
notice from the Trade Representative of a
violation of Article 8 of the Subsidies
Agreement,
(B) the administering authority has reason to
believe that merchandise subject to an existing
countervailing duty order or suspended
investigation is benefiting from the subsidy or
subsidy program found to have been in violation
of Article 8 of the Subsidies Agreement, and
(C) no review pursuant to subsection (a)(1)
is in progress,
the administering authority shall conduct a review of
the order or suspended investigation to determine
whether the subject merchandise benefits from the
subsidy or subsidy program found to have been in
violation of Article 8 of the Subsidies Agreement. If
the administering authority determines that the subject
merchandise is benefiting from the subsidy or subsidy
program, it shall make appropriate adjustments in the
estimated duty to be deposited or appropriate revisions
to the terms of the suspension agreement.
(2) Withdrawal of subsidy or imposition of
countermeasures.--If the Trade Representative notifies
the administering authority that, pursuant to Article 4
or Article 7 of the Subsidies Agreement--
(A)(i) the United States has imposed
countermeasures, and
(ii) such countermeasures are based on the
effects in the United States of imports of
merchandise that is the subject of a
countervailing duty order, or
(B) a WTO member country has withdrawn a
countervailable subsidy provided with respect
to merchandise subject to a countervailing duty
order,
the administering authority shall conduct a review to
determine if the amount of the estimated duty to be
deposited should be adjusted or the order should be
revoked.
(3) Expedited review.--The administering authority
shall conduct reviews under this subsection on an
expedited basis, and shall publish the results of such
reviews in the Federal Register.
(h) Correction of Ministerial Errors.--The administering
authority shall establish procedures for the correction of
ministerial errors in final determinations within a reasonable
time after the determinations are issued under this section.
Such procedures shall ensure opportunity for interested parties
to present their views regarding any such errors. As used in
this subsection, the term ``ministerial error'' includes errors
in addition, subtraction, or other arithmetic function,
clerical errors resulting from inaccurate copying, duplication,
or the like, and any other type of unintentional error which
the administering authority considers ministerial.
* * * * * * *
Subtitle D--General Provisions
* * * * * * *
SEC. 777. ACCESS TO INFORMATION.
(a) Information Generally Made Available.--
(1) Public information function.--There shall be
established a library of information relating to
foreign subsidy practices and countervailing measures.
Copies of material in the library shall be made
available to the public upon payment of the costs of
preparing such copies.
(2) Progress of investigation reports.--The
administering authority and the Commission shall, from
time to time upon request, inform the parties to an
investigation of the progress of that investigation.
(3) Ex parte meetings.--The administering authority
and the Commission shall maintain a record of any ex
parte meeting between--
(A) interested parties or other persons
providing factual information in connection
with a proceeding, and
(B) the person charged with making the
determination, or any person charged with
making a final recommendation to that person,
in connection with that proceeding,
if information relating to that proceeding was
presented or discussed at such meeting. The record of
such an ex parte meeting shall include the identity of
the persons present at the meeting, the date, time, and
place of the meeting, and a summary of the matters
discussed or submitted. The record of the ex parte
meeting shall be included in the record of the
proceeding.
(4) Summaries; non-proprietary submissions.--The
administering authority and the Commission shall
disclose--
(A) any proprietary information received in
the course of a proceeding if it is disclosed
in a form which cannot be associated with, or
otherwise be used to identify, operations of a
particular person, and
(B) any information submitted in connection
with a proceeding which is not designated as
proprietary by the person submitting it.
(b) Proprietary Information.--
(1) Proprietary status maintained.--
(A) In general.--Except as provided in
subsection (a)(4)(A) and subsection (c),
information submitted to the administering
authority or the Commission which is designated
as proprietary by the person submitting the
information shall not be disclosed to any
person without the consent of the person
submitting the information, other than--
(i) to an officer or employee of the
administering authority or the
Commission who is directly concerned
with carrying out the investigation in
connection with which the information
is submitted or any review under this
title covering the same subject
merchandise, or
(ii) to an officer or employee of the
United States Customs Service who is
directly involved in conducting an
investigation regarding fraud under
this title.
(B) Additional requirements.--The
administering authority and the Commission
shall require that information for which
proprietary treatment is requested be
accompanied by--
(i) either--
(I) a non-proprietary summary
in sufficient detail to permit
a reasonable understanding of
the substance of the
information submitted in
confidence, or
(II) a statement that the
information is not susceptible
to summary accompanied by a
statement of the reasons in
support of the contention, and
(ii) either--
(I) a statement which permits
the administering authority or
the Commission to release under
administrative protective
order, in accordance with
subsection (c), the information
submitted in confidence, or
(II) a statement to the
administering authority or the
Commission that the business
proprietary information is of a
type that should not be
released under administrative
protective order.
(2) Unwarranted designation.--If the administering
authority or the Commission determines, on the basis of
the nature and extent of the information or its
availability from public sources, that designation of
any information as proprietary is unwarranted, then it
shall notify the person who submitted it and ask for an
explanation of the reasons for the designation. Unless
that person persuades the administering authority or
the Commission that the designation is warranted, or
withdraws the designation, the administering authority
or the Commission, as the case may be, shall return it
to the party submitting it. In a case in which the
administering authority or the Commission returns the
information to the person submitting it, the person may
thereafter submit other material concerning the subject
matter of the returned information if the submission is
made within the time otherwise provided for submitting
such material.
(3) Section 751 reviews.--Notwithstanding the
provisions of paragraph (1), information submitted to
the administering authority or the Commission in
connection with a review under section 751(b) or 751(c)
which is designated as proprietary by the person
submitting the information may, if the review results
in the revocation of an order or finding (or
termination of a suspended investigation) under section
751(d), be used by the agency to which the information
was originally submitted in any investigation initiated
within 2 years after the date of the revocation or
termination pursuant to a petition covering the same
subject merchandise.
(c) Limited Disclosure of Certain Proprietary Information
Under Protective Order.--
(1) Disclosure by administering authority or
commission.--
(A) In general.--Upon receipt of an
application (before or after receipt of the
information requested) which describes in
general terms the information requested and
sets forth the reasons for the request, the
administering authority or the Commission shall
make all business proprietary information
presented to, or obtained by it, during a
proceeding (except privileged information,
classified information, and specific
information of a type for which there is a
clear and compelling need to withhold from
disclosure) available to interested parties who
are parties to the proceeding under a
protective order described in subparagraph (B),
regardless of when the information is submitted
during a proceeding. Customer names obtained
during any investigation which requires a
determination under section 705(b) or 735(b)
may not be disclosed by the administering
authority under protective order until either
an order is published under section 706(a) or
736(a) as a result of the investigation or the
investigation is suspended or terminated. The
Commission may delay disclosure of customer
names under protective order during any such
investigation until a reasonable time prior to
any hearing provided under section 774.
(B) Protective order.--The protective order
under which information is made available shall
contain such requirements as the administering
authority or the Commission may determine by
regulation to be appropriate. The administering
authority and the Commission shall provide by
regulation for such sanctions as the
administering authority and the Commission
determine to be appropriate, including
disbarment from practice before the agency.
(C) Time limitation on determinations.--The
administering authority or the Commission, as
the case may be, shall determine whether to
make information available under this
paragraph--
(i) not later than 14 days (7 days if
the submission pertains to a proceeding
under section 703(a) or 733(a)) after
the date on which the information is
submitted, or
(ii) if--
(I) the person that submitted
the information raises
objection to its release, or
(II) the information is
unusually voluminous or
complex,
not later than 30 days (10 days if the
submission pertains to a proceeding
under section 703(a) or 733(a)) after
the date on which the information is
submitted.
(D) Availability after determination.--If the
determination under subparagraph (C) is
affirmative, then--
(i) the business proprietary
information submitted to the
administering authority or the
Commission on or before the date of the
determination shall be made available,
subject to the terms and conditions of
the protective order, on such date; and
(ii) the business proprietary
information submitted to the
administering authority or the
Commission after the date of the
determination shall be served as
required by subsection (d).
(E) Failure to disclose.--If a person
submitting information to the administering
authority refuses to disclose business
proprietary information which the administering
authority determines should be released under a
protective order described in subparagraph (B),
the administering authority shall return the
information, and any nonconfidential summary
thereof, to the person submitting the
information and summary and shall not consider
either.
(2) Disclosure under court order.--If the
administering authority denies a request for
information under paragraph (1), then application may
be made to the United States Customs Court for an order
directing the administering authority or the Commission
to make the information available. After notification
of all parties to the investigation and after an
opportunity for a hearing on the record, the court may
issue an order, under such conditions as the court
deems appropriate, which shall not have the effect of
stopping or suspending the investigation, directing the
administering authority or the Commission to make all
or a portion of the requested information described in
the preceding sentence available under a protective
order and setting forth sanctions for violation of such
order if the court finds that, under the standards
applicable in proceedings of the court, such an order
is warranted, and that--
(A) the administering authority or the
Commission has denied access to the information
under subsection (b)(1),
(B) the person on whose behalf the
information is requested is an interested party
who is a party to the investigation in
connection with which the information was
obtained or developed, and
(C) the party which submitted the information
to which the request relates has been notified,
in advance of the hearing, of the request made
under this section and of its right to appear
and be heard.
(d) Service.--Any party submitting written information,
including business proprietary information, to the
administering authority or the Commission during a proceeding
shall, at the same time, serve the information upon all
interested parties who are parties to the proceeding, if the
information is covered by a protective order. The administering
authority or the Commission shall not accept any such
information that is not accompanied by a certificate of service
and a copy of the protective order version of the document
containing the information. Business proprietary information
shall only be served upon interested parties who are parties to
the proceeding that are subject to protective order; however, a
nonconfidential summary thereof shall be served upon all other
interested parties who are parties to the proceeding.
(f) Disclosure of Proprietary Information Under Protective
Orders Issued Pursuant to the North American Free Trade
Agreement or the United States-Canada Agreement.--
(1) Issuance of protective orders.--
(A) In general.--If binational panel review
of a determination under this title is
requested pursuant to article 1904 of the NAFTA
or the United States-Canada Agreement, or an
extraordinary challenge committee is convened
under Annex 1904.13 of the NAFTA or the United
States-Canada Agreement, the administering
authority or the Commission, as appropriate,
may make available to authorized persons, under
a protective order described in paragraph (2),
a copy of all proprietary material in the
administrative record made during the
proceeding in question. If the administrating
authority or the Commission claims a privilege
as to a document or portion of a document in
the administrative record of the proceeding in
question and a binational panel or
extraordinary challenge committee finds that in
camera inspection or limited disclosure of that
document or portion thereof is required by
United States law, the administering authority
or the Commission, as appropriate, may restrict
access to such document or portion thereof to
the authorized persons identified by the panel
or committee as requiring access and may
require such persons to obtain access under a
protective order described in paragraph (2).
(B) Authorized persons.--For purposes of this
subsection, the term ``authorized persons''
means--
(i) the members of, and the
appropriate staff of, the binational
panel or the extraordinary challenge
committee, as the case may be, and the
Secretariat,
(ii) counsel for parties to such
panel or committee proceeding, and
employees, and persons under the
direction and control, of such counsel,
(iii) any officer or employee of the
United States Government designated by
the administering authority or the
Commission, as appropriate, to whom
disclosure is necessary in order to
make recommendations to the Trade
Representative regarding the convening
of extraordinary challenge committees
under chapter 19 of the NAFTA or the
Agreement, and
(iv) any officer or employee of the
Government of a free trade area country
(as defined in section 516A(f)(10))
designated by an authorized agency of
such country to whom disclosure is
necessary in order to make decisions
regarding the convening of
extraordinary challenge committees
under chapter 19 of the NAFTA or the
Agreement.
(C) Review.--A decision concerning the
disclosure or nondisclosure of material under
protective order by the administering authority
or the Commission shall not be subject to
judicial review, and no court of the United
States shall have power or jurisdiction to
review such decision on any question of law or
fact by an action in the nature of mandamus or
otherwise.
(2) Contents of protective order.--Each protective
order issued under this subsection shall be in such
form and contain such requirements as the administering
authority or the Commission may determine by regulation
to be appropriate. The administering authority and the
Commission shall ensure that regulations issued
pursuant to this paragraph shall be designed to provide
an opportunity for participation in the binational
panel proceeding, including any extraordinary
challenge, equivalent to that available for judicial
review of determinations by the administering authority
or the Commission that are not subject to review by a
binational panel.
(3) Prohibited acts.--It is unlawful for any person
to violate, to induce the violation of, or knowingly to
receive information the receipt of which constitutes a
violation of, any provision of a protective order
issued under this subsection or to violate, to induce
the violation of, or knowingly to receive information
the receipt of which constitutes a violation of, any
provision of an undertaking entered into with an
authorized agency of a free trade area country (as
defined in section 516A(f)(10)) to protect proprietary
material during binational panel or extraordinary
challenge committee review pursuant to article 1904 of
the NAFTA or the United States-Canada Agreement.
(4) Sanctions for violation of protective orders.--
Any person, except a judge appointed to a binational
panel or an extraordinary challenge committee under
section 402(b) of the North American Free Trade
Agreement Implementation Act, who is found by the
administering authority or the Commission, as
appropriate, after notice and an opportunity for a
hearing in accordance with section 554 of title 5,
United States Code, to have committed an act prohibited
by paragraph (3) shall be liable to the United States
for a civil penalty and shall be subject to such other
administrative sanctions, including, but not limited
to, debarment from practice before the administering
authority or the Commission, as the administering
authority or the Commission determines to be
appropriate. The amount of the civil penalty shall not
exceed $100,000 for each violation. Each day of a
continuing violation shall constitute a separate
violation. The amount of such civil penalty and other
sanctions shall be assessed by the administering
authority or the Commission by written notice, except
that assessment shall be made by the administering
authority for violation, or inducement of a violation
or receipt of information with reason to know that such
information was disclosed in violation, of an
undertaking entered into by any person with an
authorized agency of a free trade area country (as
defined in section 516A(f)(10)).
(5) Review of sanctions.--Any person against whom
sanctions are imposed under paragraph (4) may obtain
review of such sanctions by filing a notice of appeal
in the United States Court of International Trade
within 30 days from the date of the order imposing the
sanction and by simultaneously sending a copy of such
notice by certified mail to the administering authority
or the Commission, as appropriate. The administering
authority or the Commission shall promptly file in such
court a certified copy of the record upon which such
violation was found or such sanction imposed, as
provided in section 2112 of title 28, United States
Code. The findings and order of the administering
authority or the Commission shall be set aside by the
court only if the court finds that such findings and
order are not supported by substantial evidence, as
provided in section 706(2) of title 5, United States
Code.
(6) Enforcement of sanctions.--If any person fails to
pay an assessment of a civil penalty or to comply with
other administrative sanctions after the order imposing
such sanctions becomes a final and unappealable order,
or after the United States Court of International Trade
has entered final judgment in favor of the
administering authority or the Commission, an action
may be filed in such court to enforce the sanctions. In
such action, the validity and appropriateness of the
final order imposing the sanctions shall not be subject
to review.
(7) Testimony and production of papers.--
(A) Authority to obtain information.--For the
purpose of conducting any hearing and carrying
out other functions and duties under this
subsection, the administering authority and the
Commission, or their duly authorized agents--
(i) shall have access to and the
right to copy any pertinent document,
paper, or record in the possession of
any individual, partnership,
corporation, association, organization,
or other entity,
(ii) may summon witnesses, take
testimony, and administer oaths,
(iii) and may require any individual
or entity to produce pertinent
documents, books, or records.
Any member of the Commission, and any person so
designated by the administering authority, may
sign subpoenas, and members and agents of the
administering authority and the Commission,
when authorized by the administering authority
or the Commission, as appropriate, may
administer oaths and affirmations, examine
witnesses, take testimony, and receive
evidence.
(B) Witnesses and evidence.--The attendance
of witnesses who are authorized to be summoned,
and the production of documentary evidence
authorized to be ordered, under subparagraph
(A) may be required from any place in the
United States at any designated place of
hearing. In the case of disobedience to a
subpoena issued under subparagraph (A), an
action may be filed in any district or
territorial court of the United States to
require the attendance and testimony of
witnesses and the production of documentary
evidence. Such court, within the jurisdiction
of which such inquiry is carried on, may, in
case of contumacy or refusal to obey a subpoena
issued to any individual, partnership,
corporation, association, organization or other
entity, issue any order requiring such
individual or entity to appear before the
administering authority or the Commission, or
to produce documentary evidence if so ordered
or to give evidence concerning the matter in
question. Any failure to obey such order of the
court may be punished by the court as a
contempt thereof.
(C) Mandamus.--Any court referred to in
subparagraph (B) shall have jurisdiction to
issue writs of mandamus commanding compliance
with the provisions of this subsection or any
order of the administering authority or the
Commission made in pursuance thereof.
(D) Depositions.--For purposes of carrying
out any functions or duties under this
subsection, the administering authority or the
Commission may order testimony to be taken by
deposition. Such deposition may be taken before
any person designated by the administering
authority or Commission and having power to
administer oaths. Such testimony shall be
reduced to writing by the person taking the
deposition, or under the direction of such
person, and shall then be subscribed by the
deponent. Any individual, partnership,
corporation, association, organization or other
entity may be compelled to appear and depose
and to produce documentary evidence in the same
manner as witnesses may be compelled to appear
and testify and produce documentary evidence
before the administering authority or
Commission, as provided in this paragraph.
(E) Fees and mileage of witnesses.--Witnesses
summoned before the administering authority or
the Commission shall be paid the same fees and
mileage that are paid witnesses in the courts
of the United States.
(g) Information Relating to Violations of Protective Orders
and Sanctions.--The administering authority and the Commission
may withhold from disclosure any correspondence, private
letters of reprimand, settlement agreements, and documents and
files compiled in relation to investigations and actions
involving a violation or possible violation of a protective
order issued under subsection (c) or (d), and such information
shall be treated as information described in section 552(b)(3)
of title 5, United States Code.
(h) Opportunity for Comment by Consumers and Industrial
Users.--The administering authority and the Commission shall
provide an opportunity for industrial users of the subject
merchandise and, if the merchandise is sold at the retail
level, for representative consumer organizations, to submit
relevant information to the administering authority concerning
dumping or a countervailable subsidy, and to the Commission
concerning material injury by reason of dumped or subsidized
imports.
(i) Publication of Determinations; Requirements for Final
Determinations.--
(1) In general.--Whenever the administering authority
makes a determination under section 702 or 732 whether
to initiate an investigation, or the administering
authority or the Commission makes a preliminary
determination under section 703 or 733, a final
determination under section 705 or section 735, a
preliminary or final determination in a review under
section 751, a determination to suspend an
investigation under this title, or a determination
under section 753, the administering authority or the
Commission, as the case may be, shall publish the facts
and conclusions supporting that determination, and
shall publish notice of that determination in the
Federal Register.
(2) Contents of notice or determination.--The notice
or determination published under paragraph (1) shall
include, to the extent applicable--
(A) in the case of a determination of the
administering authority--
(i) the names of the exporters or
producers of the subject merchandise
or, when providing such names is
impracticable, the countries exporting
the subject merchandise to the United
States,
(ii) a description of the subject
merchandise that is sufficient to
identify the subject merchandise for
customs purposes,
(iii)(I) with respect to a
determination in an investigation under
subtitle A or section 753 or in a
review of a countervailing duty order,
the amount of the countervailable
subsidy established and a full
explanation of the methodology used in
establishing the amount, and
(II) with respect to a determination
in an investigation under subtitle B or
in a review of an antidumping duty
order, the weighted average dumping
margins established and a full
explanation of the methodology used in
establishing such margins, and
(iv) the primary reasons for the
determination; and
(B) in the case of a determination of the
Commission--
(i) considerations relevant to the
determination of injury, and
(ii) the primary reasons for the
determination.
(3) Additional requirements for final
determinations.--In addition to the requirements set
forth in paragraph (2)--
(A) the administering authority shall include
in a final determination described in paragraph
(1) an explanation of the basis for its
determination that addresses relevant
arguments, made by interested parties who are
parties to the investigation or review (as the
case may be), concerning the establishment of
dumping or a countervailable subsidy, or the
suspension of the investigation, with respect
to which the determination is made; and
(B) the Commission shall include in a final
determination of injury an explanation of the
basis for its determination that addresses
relevant arguments that are made by interested
parties who are parties to the investigation or
review (as the case may be) concerning volume,
price effects, and impact on the industry of
imports of the subject merchandise.
* * * * * * *
----------
SECTION 9503 OF THE OMNIBUS BUDGET RECONCILIATION ACT OF 1987
SEC. 9503. UNITED STATES CUSTOMS SERVICE AUTHORIZATIONS.
(a) [Omitted amendatory text]
(b) [Omitted amendatory text]
(c) Advisory Committee on Commercial Operations of United
States Customs Service.--
(1) The Secretary of the Treasury shall establish an
advisory committee which shall be known as the
``Advisory Committee on Commercial Operations of the
United States Customs Service''(hereafter in this
subsection referred to as the ``Advisory Committee'').
(2)(A) The Advisory Committee shall consist of 20
members appointed by the Secretary of the Treasury.
(B) In making appointments under subparagraph (A),
the Secretary of the Treasury shall ensure that--
(i) the membership of the Advisory Committee
is representative of the individuals and firms
affected by the commercial operations of the
United States Customs Service; and
(ii) a majority of the members of the
Advisory Committee do not belong to the same
political party.
(3) The Advisory Committee shall--
(A) provide advice to the Secretary of the
Treasury on all matters involving the
commercial operations of the United States
Customs Service; and
(B) submit an annual report to the Committee
on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives
that shall--
(i) describe the operations of the
Advisory Committee during the preceding
year, and
(ii) set forth any recommendations of
the Advisory Committee regarding the
commercial operations of the United
States Customs Service.
(4) The Assistant Secretary of the Treasury for
Enforcement shall preside over meetings of the Advisory
Committee.
(d) [Omitted amendatory text]
----------
SECTION 2 OF THE ACT OF MARCH 3, 1927
(Public Law 69-348)
AN ACT To create a Bureau of Customs and a Bureau of Prohibition in the
Department of the Treasury.
Section 2. (a) The Secretary of the Treasury is authorized to
appoint, in each of the bureaus established by section 1, one
assistant commissioner, two deputy commissioners, one chief
clerk, and such attorneys customs and other officers and
employees as he may deem necessary. One of the deputy
commissioners of the Bureau of Customs shall have charge of
investigations. Appointments under this subdivision shall be
subject to the provisions of the civil service laws, and the
salaries shall be fixed in accordance with the Classification
Act of 1923.
(b) The Secretary of the Treasury is authorized to designate
an officer of the Bureau of Customs to act as Commissioner of
Customs, during the absence or disability of the Commissioner
of Customs, or in the event that there is no Commissioner of
Customs; and to designate an officer of the Bureau of
Prohibition to act as Commissioner of Prohibition during the
absence or disability of the Commissioner of Prohibition, or in
the event that there is no Commissioner of Prohibition.
(c) The personnel of the Bureau of Customs shall perform such
duties as the Secretary of the Treasury may prescribe.
(d) Office of International Trade.--
(1) Establishment.--There is established within the
United States Customs and Border Protection an Office
of International Trade that shall be headed by an
Assistant Commissioner.
(2) Transfer of assets, functions, and personnel;
elimination of offices.--
(A) Office of strategic trade.--
(i) In general.--Not later than 90
days after the date of the enactment of
the SAFE Port Act, the Commissioner
shall transfer the assets, functions,
and personnel of the Office of
Strategic Trade to the Office of
International Trade established
pursuant to paragraph (1) and the
Office of Strategic Trade shall be
abolished.
(ii) Limitation on funds.--No funds
appropriated to the United States
Customs and Border Protection may be
used to transfer the assets, functions,
or personnel of the Office of Strategic
Trade, to an office other than the
office established pursuant to
paragraph (1) of this subsection.
(B) Office of regulations and rulings.--
(i) In general.--Not later than 90
days after the date of the enactment of
the SAFE Port Act, the Commissioner
shall transfer the assets, functions,
and personnel of the Office of
Regulations and Rulings to the Office
of International Trade established
pursuant to paragraph (1) and the
Office of Regulations and Rulings shall
be abolished.
(ii) Limitation on funds.--No funds
appropriated to the United States
Customs and Border Protection may be
used to transfer the assets, functions,
or personnel of the Office of
Regulations and Rulings, to an office
other than the office established
pursuant to paragraph (1) of this
subsection.
(C) Other transfers.--The Commissioner is
authorized to transfer any other assets,
functions, or personnel within the United
States Customs and Border Protection to the
Office of International Trade established
pursuant to paragraph (1). Not less than 45
days prior to each such transfer, the
Commissioner shall notify the Committee on
Appropriations, the Committee on Finance, and
the Committee on Homeland Security and
Governmental Affairs of the Senate and the
Committee on Appropriations, the Committee on
Homeland Security, and the Committee on Ways
and Means of the House of Representatives of
the specific assets, functions, or personnel to
be transferred, and the reason for such
transfer. Such notification shall also
include--
(i) an explanation of how trade
enforcement functions will be impacted
by the reorganization;
(ii) an explanation of how the
reorganization meets the requirements
of section 412(b) of the Homeland
Security Act of 2002 that the
Department of Homeland Security not
diminish the customs revenue and trade
facilitation functions formerly
performed by the United States Customs
Service; and
(iii) any comments or recommendations
provided by the Commercial Operations
Advisory Committee regarding such
reorganization.
(D) Report.-- Not later than 1 year after any
reorganization pursuant to subparagraph (C)
takes place, the Commissioner, in consultation
with the Commercial Operations Advisory
Committee, shall report to the Committee on
Finance of the Senate and the Committee on Ways
and Means of the House of Representatives. Such
report shall include an assessment of the
impact of, and any suggested modifications to,
such reorganization.
(E) Limitation on authority.--Notwithstanding
any other provision of law, the Commissioner
shall not transfer any assets, functions, or
personnel from United States ports of entry,
associated with the enforcement of laws
relating to trade in textiles and apparel, to
the Office of International Trade established
pursuant to paragraph (1), until the following
conditions are met:
(i) The Commissioner submits the
initial Resource Allocation Model
required by section 301(h) of the
Customs and Procedural Reform and
Simplification Act of 1978 and includes
in such Resource Allocation Model a
section addressing the allocation of
assets, functions, and personnel
associated with the enforcement of laws
relating to trade in textiles and
apparel.
(ii) The Commissioner consults with
the Committee on Finance of the Senate
and the Committee on Ways and Means of
the House of Representatives regarding
any subsequent transfer of assets,
functions, or personnel associated with
the enforcement of laws relating to
trade in textiles and apparel, not less
than 45 days prior to such transfer.
(F) Limitation on appropriations.--No funds
appropriated to the United States Customs and
Border Protection may be used to transfer the
assets, functions, or personnel associated with
the enforcement of laws relating to trade in
textiles and apparel, before the Commissioner
consults with the congressional committees
pursuant to subparagraph (E)(ii).
(e) International Trade Committee.--
(1) Establishment.-- The Commissioner shall establish
an International Trade Committee, to be chaired by the
Commissioner, and to include the Deputy Commissioner,
the Assistant Commissioner in the Office of Field
Operations, the Assistant Commissioner in the Office of
Finance, the Assistant Commissioner in the Office of
International Affairs, the Assistant Commissioner in
the Office of International Trade, the Director of the
Office of Trade Relations, and any other official
determined by the Commissioner to be important to the
work of the Committee.
(2) Responsibilities.--The International Trade
Committee shall--
(A) be responsible for advising the
Commissioner with respect to the commercial
customs and trade facilitation functions of the
United States Customs and Border Protection;
(B) assist the Commissioner in coordinating
with the Secretary regarding commercial customs
and trade facilitation functions; and
(C) oversee the operation of all programs and
systems that are involved in the assessment and
collection of duties, bonds, and other charges
or penalties associated with the entry of cargo
into the United States, or the export of cargo
from the United States, including the
administration of duty drawback and the
collection of antidumping and countervailing
duties.
(3) Annual report.--Not later than 30 days after the
end of each fiscal year, the International Trade
Committee shall submit a report to the Committee on
Finance of the Senate and the Committee on Ways and
Means of the House of Representatives. The report
shall--
(A) detail the activities of the
International Trade Committee during the
preceding fiscal year; and
(B) identify the priorities of the
International Trade Committee for the fiscal
year in which the report is filed.
(f) Definition.--In this section:
(1) Commissioner.--The term `Commissioner' means the
Commissioner responsible for the United States Customs
and Border Protection in the Department of Homeland
Security.
(2) Commercial operations advisory committee.--The
term `Commercial Operations Advisory Committee' means
the Advisory Committee established pursuant to section
9503(c) of the Omnibus Budget Reconciliation Act of
1987 or any successor committee.
----------
SECTION 343 OF THE TRADE ACT OF 2002
SEC. 343. MANDATORY ADVANCED ELECTRONIC INFORMATION FOR CARGO AND OTHER
IMPROVED CUSTOMS REPORTING PROCEDURES
(a) Cargo Information.
(1) In general.--(A) Subject to paragraphs (2) and
(3), the Secretary is authorized to promulgate
regulations providing for the transmission to the
Customs Service, through an electronic data interchange
system, of information pertaining to cargo to be
brought into the United States or to be sent from the
United States, prior to the arrival or departure of the
cargo.
(B) The Secretary shall endeavor to promulgate an
initial set of regulations under subparagraph (A) not
later than October 1, 2003.
(2) Information required.--The cargo information
required by the regulations promulgated pursuant to
paragraph (1) under the parameters set forth in
paragraph (3) shall be such information on cargo as the
Secretary determines to be reasonably necessary to
ensure cargo safety and security pursuant to those laws
enforced and administered by the Customs Service. The
Secretary shall provide to appropriate Federal
departments and agencies cargo information obtained
pursuant to paragraph (1).
(3) Parameters.--In developing regulations pursuant
to paragraph (1), the Secretary shall adhere to the
following parameters:
(A) The Secretary shall solicit comments from
and consult with a broad range of parties
likely to be affected by the regulations,
including importers, exporters, carriers,
customs brokers, and freight forwarders, among
other interested parties.
(B) In general, the requirement to provide
particular information shall be imposed on the
party most likely to have direct knowledge of
that information. Where requiring information
from the party with direct knowledge of that
information is not practicable, the regulations
shall take into account how, under ordinary
commercial practices, information is acquired
by the party on which the requirement is
imposed, and whether and how such party is able
to verify the information. Where information is
not reasonably verifiable by the party on which
a requirement is imposed, the regulations shall
permit that party to transmit information on
the basis of what it reasonably believes to be
true.
(C) The Secretary shall take into account the
existence of competitive relationships among
the parties on which requirements to provide
particular information are imposed.
(D) Where the regulations impose requirements
on carriers of cargo, they shall take into
account differences among different modes of
transportation, including differences in
commercial practices, operational
characteristics, and technological capacity to
collect and transmit information
electronically.
(E) The regulations shall take into account
the extent to which the technology necessary
for parties to transmit and the Customs Service
to receive and analyze data in a timely fashion
is available. To the extent that the Secretary
determines that the necessary technology will
not be widely available to particular modes of
transportation or other affected parties until
after promulgation of the regulations, the
regulations shall provide interim requirements
appropriate for the technology that is
available at the time of promulgation.
(F) The information collected pursuant to the
regulations shall be used exclusively for
ensuring cargo safety and security and
preventing smuggling, and shall not be used for
determining merchandise entry or for any other
commercial enforcement purposes.
Notwithstanding the preceding sentence, nothing
in this section shall be treated as amending,
repealing, or otherwise modifying title IV of
the Tariff Act of 1930 or regulations
promulgated thereunder.
(G) The regulations shall protect the privacy
of business proprietary and any other
confidential cargo information provided to the
Customs Service pursuant to such regulations,
except for the manifest information collected
pursuant to section 431 of the Tariff Act of
1930 and required to be available for public
disclosure pursuant to section 431(c) of such
Act.
(H) In determining the timing for transmittal
of any information, the Secretary shall balance
likely impact on flow of commerce with impact
on cargo safety and security. With respect to
requirements that may be imposed on carriers of
cargo, the timing for transmittal of
information shall take into account differences
among different modes of transportation, as
described in subparagraph (D).
(I) Where practicable, the regulations shall
avoid imposing requirements that are redundant
with one another or that are redundant with
requirements in other provisions of law.
(J) The Secretary shall determine whether it
is appropriate to provide transition periods
between promulgation of the regulations and the
effective date of the regulations and shall
prescribe such transition periods in the
regulations, as appropriate. The Secretary may
determine that different transition periods are
appropriate for different classes of affected
parties.
(K) With respect to requirements imposed on
carriers, the Secretary, in consultation with
the Postmaster General, shall determine whether
it is appropriate to impose the same or similar
requirements on shipments by the United States
Postal Service. If the Secretary determines
that such requirements are appropriate, then
they shall be set forth in the regulations.
(L) Not later than 15 days prior to
publication of a final rule pursuant to this
section, the Secretary shall transmit to the
Committees on Finance and Commerce, Science,
and Transportation of the Senate and the
Committees on Ways and Means and Transportation
and Infrastructure of the House of
Representatives a report setting forth--
(i) the proposed regulations;
(ii) an explanation of how particular
requirements in the proposed
regulations meet the needs of cargo
safety and security;
(iii) an explanation of how the
Secretary expects the proposed
regulations to affect the commercial
practices of affected parties;
(iv) an explanation of how the
proposed regulations address particular
comments received from interested
parties; and
(v) if the Secretary determines to
amend the proposed regulations after
they have been transmitted to the
Committees pursuant to this
subparagraph, the Secretary shall
transmit the amended regulations to
such Committees no later than 5 days
prior to the publication of the final
rule.
(4) Transmission of data.--Pursuant to paragraph (2),
not later than 1 year after the date of enactment of
this paragraph, the Secretary of Homeland Security,
after consultation with the Secretary of the Treasury,
shall establish an electronic data interchange system
through which the United States Customs and Border
Protection shall transmit to the Internal Revenue
Service information pertaining to cargoes of any
taxable fuel (as defined in section 4083 of the
Internal Revenue Code of 1986) that the United States
Customs and Border Protection has obtained
electronically under its regulations adopted in
accordance with paragraph (1). For this purpose, not
later than 1 year after the date of enactment of this
paragraph, all filers of required cargo information for
such taxable fuels (as so defined) must provide such
information to the United States Customs and Border
Protection through such electronic data interchange
system.
(b) Documentation of Waterborne Cargo.--Part II of title IV
of the Tariff Act of 1930 is amended by inserting after section
431 the following new section:
``SEC. 431A. DOCUMENTATION OF WATERBORNE CARGO.
``(a) Applicability.--This section shall apply to all cargo
to be exported that is moved by a vessel carrier from a port in
the United States.
``(b) Documentation Required.--(1) No shipper of cargo
subject to this section (including an ocean transportation
intermediary that is a non-vessel-operating common carrier (as
defined in section 3(17)(B) of the Shipping Act of 1984 (46
U.S.C. App. 1702(17)(B)) may tender or cause to be tendered to
a vessel carrier cargo subject to this section for loading on a
vessel in a United States port, unless such cargo is properly
documented pursuant to this subsection.
``(2) For the purposes of this subsection, cargo shall be
considered properly documented if the shipper submits to the
vessel carrier or its agent a complete set of shipping
documents no later than 24 hours after the cargo is delivered
to the marine terminal operator, but under no circumstances
later than 24 hours prior to departure of the vessel.
``(3) A complete set of shipping documents shall include--
``(A) for shipments for which a shipper's export
declaration is required, a copy of the export
declaration or, if the shipper files such declarations
electronically in the Automated Export System, the
complete bill of lading, and the master or equivalent
shipping instructions, including the Internal
Transaction Number (ITN); or
``(B) for shipments for which a shipper's export
declaration is not required, a shipper's export
declaration exemption statement and such other
documents or information as the Secretary may by
regulation prescribe.
``(4) The Secretary shall by regulation prescribe the time,
manner, and form by which shippers shall transmit documents or
information required under this subsection to the Customs
Service.
``(c) Loading Undocumented Cargo Prohibited.--
``(1) No marine terminal operator (as defined in
section 3(14) of the Shipping Act of 1984 (46 U.S.C.
App. 1702(14))) may load, or cause to be loaded, any
cargo subject to this section on a vessel unless
instructed by the vessel carrier operating the vessel
that such cargo has been properly documented in
accordance with this section.
``(2) When cargo is booked by 1 vessel carrier to be
transported on the vessel of another vessel carrier,
the booking carrier shall notify the operator of the
vessel that the cargo has been properly documented in
accordance with this section. The operator of the
vessel may rely on such notification in releasing the
cargo for loading aboard the vessel.
``(d) Reporting of Undocumented Cargo.--A vessel carrier
shall notify the Customs Service of any cargo tendered to such
carrier that is not properly documented pursuant to this
section and that has remained in the marine terminal for more
than 48 hours after being delivered to the marine terminal, and
the location of the cargo in the marine terminal. For vessel
carriers that are members of vessel sharing agreements (or any
other arrangement whereby a carrier moves cargo on another
carrier's vessel), the vessel carrier accepting the booking
shall be responsible for reporting undocumented cargo, without
regard to whether it operates the vessel on which the
transportation is to be made.
``(e) Assessment of Penalties.--Whoever is found to have
violated subsection (b) of this section shall be liable to the
United States for civil penalties in a monetary amount up to
the value of the cargo, or the actual cost of the
transportation, whichever is greater.
``(f) Seizure of Undocumented Cargo.--
``(1) Any cargo that is not properly documented
pursuant to this section and has remained in the marine
terminal for more than 48 hours after being delivered
to the marine terminal operator shall be subject to
search, seizure, and forfeiture.
``(2) The shipper of any such cargo is liable to the
marine terminal operator and to the ocean carrier for
demurrage and other applicable charges for any
undocumented cargo which has been notified to or
searched or seized by the Customs Service for the
entire period the cargo remains under the order and
direction of the Customs Service. Unless the cargo is
seized by the Customs Service and forfeited, the marine
terminal operator and the ocean carrier shall have a
lien on the cargo for the amount of the demurrage and
other charges.
``(g) Effect on Other Provisions. --Nothing in this section
shall be construed, interpreted, or applied to relieve or
excuse any party from compliance with any obligation or
requirement arising under any other law, regulation, or order
with regard to the documentation or carriage of cargo.''.
(c) Secretary.--For purposes of this section, the term
``Secretary'' means the Secretary of the Treasury. If, at the
time the regulations required by subsection (a)(1) are
promulgated, the Customs Service is no longer located in the
Department of the Treasury, then the Secretary of the Treasury
shall exercise the authority under subsection (a) jointly with
the Secretary of the Department in which the Customs Service is
located.
----------
TRADE ACT OF 1974
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act, with the following table of contents, may be cited as the
``Trade Act of 1974''.
* * * * * * *
TITLE II--RELIEF FROM INJURY CAUSED BY IMPORT COMPETITION
Chapter 1--Positive Adjustment by Industries Injured by Imports
* * * * * * *
TITLE III--RELIEF FROM UNFAIR TRADE PRACTICES
Chapter 1--Enforcement of United States Rights Under Trade Agreements
and Response to Foreign Trade Practices
* * * * * * *
Sec. 310. Identification of trade liberalization priorities.
* * * * * * *
TITLE I--NEGOTIATING AND OTHER AUTHORITY
* * * * * * *
CHAPTER 6--CONGRESSIONAL LIAISON AND REPORTS
* * * * * * *
SEC. 163. REPORTS.
(a) Annual Report on Trade Agreements Program and National
Trade Policy Agenda.--
(1) The President shall submit to the Congress during
each calendar year (but not later than March 1 of that
year) a report on--
(A) the operation of the trade agreements
program, and the provision of import relief and
adjustment assistance to workers and firms,
under this Act during the preceding calendar
year; and
(B) the national trade policy agenda for the
year in which the report is submitted.
(2) The report shall include, with respect to the
matters referred to in paragraph (1)(A), information
regarding--
(A) new trade negotiations;
(B) changes made in duties and nontariff
barriers and other distortions of trade of the
United States;
(C) reciprocal concessions obtained;
(D) changes in trade agreements (including
the incorporation therein of actions taken for
import relief and compensation provided
therefor);
(E) the extension or withdrawal of
nondiscriminatory treatment by the United
States with respect to the products of foreign
countries;
(F) the extension, modification, withdrawal,
suspension, or limitation of preferential
treatment to exports of developing countries;
(G) the results of actions to obtain the
removal of foreign trade restrictions
(including discriminatory restrictions) against
United States exports and the removal of
foreign practices which discriminate against
United States service industries (including
transportation and tourism) and investment;
(H) the measures being taken to seek the
removal of other significant foreign import
restrictions;
(I) each of the referrals made under section
141(d)(1)(B) and any action taken with respect
to such referral;
(J) other information relating to the trade
agreements program and to the agreements
entered into thereunder; and
(K) the number of applications filed for
adjustment assistance for workers and firms,
the number of such applications which were
approved, and the extent to which adjustment
assistance has been provided under such
approved applications.
(3)(A) The national trade policy agenda required
under paragraph (1)(B) for the year in which a report
is submitted shall be in the form of a statement of--
(i) the trade policy objectives and
priorities of the United States for the year,
and the reasons therefor;
(ii) the actions proposed, or anticipated, to
be undertaken during the year to achieve such
objectives and priorities, including, but not
limited to, actions authorized under the trade
laws and negotiations with foreign countries;
(iii) any proposed legislation necessary or
appropriate to achieve any of such objectives
or priorities; and
(iv) the progress that was made during the
preceding year in achieving the trade policy
objectives and priorities included in the
statement provided for that year under this
paragraph.
(B) The President may separately submit any
information referred to in subparagraph (A) to the
Congress in confidence if the President considers
confidentiality appropriate.
(C) Before submitting the national trade policy
agenda for any year, the President shall seek advice
from the appropriate advisory committees established
under section 135 and shall consult with the
appropriate committees of the Congress.
(D) The United States Trade Representative (hereafter
referred to in this section as the ``Trade
Representative``'') and other appropriate officials of
the United States Government shall consult periodically
with the appropriate committees of the Congress
regarding the annual objectives and priorities set
forth in each national trade policy agenda with respect
to--
(i) the status and results of the actions
that have been undertaken to achieve the
objectives and priorities; and
(ii) any development which may require, or
result in, changes to any of such objectives or
priorities.
(b) Annual Trade Projection Report.--
(1) In order for the Congress to be informed of the
impact of foreign trade barriers and macroeconomic
factors on the balance of trade of the United States,
the Trade Representative and the Secretary of the
Treasury shall jointly prepare and submit to the
Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives
(hereafter referred to in this subsection as the
``Committees'') on or before March 1 of each year a
report which consists of--
(A) a review and analysis of--
(i) the merchandise balance of trade,
(ii) the goods and services balance
of trade,
(iii) the balance on the current
account,
(iv) the external debt position,
(v) the exchange rates,
(vi) the economic growth rates,
(vii) the deficit or surplus in the
fiscal budget, and
(viii) the impact on United States
trade of market barriers and other
unfair practices,
of countries that are major trading partners of
the United States, including, as appropriate,
groupings of such countries;
(B) projections for each of the economic
factors described in subparagraph (A) (except
those described in clauses (v) and (viii)) for
each of the countries and groups of countries
referred to in subparagraph (A) for the year in
which the report is submitted and for the
succeeding year; and
(C) conclusions and recommendations, based
upon the projections referred to in
subparagraph (B), for policy changes, including
trade policy, exchange rate policy, fiscal
policy, and other policies that should be
implemented to improve the outlook.
(2) To the extent that subjects referred to in
paragraph (1) (A), (B), or (C) are covered in the
national trade policy agenda required under subsection
(a)(1)(B) or in other reports required by this Act or
other law, the Trade Representative and the Secretary
of the Treasury may, as appropriate, draw on the
information, analysis, and conclusions, if any, in
those reports for the purposes of preparing the report
required by this subsection.
(3) The Trade Representative and the Secretary of the
Treasury shall consult with the Chairman of the Board
of Governors of the Federal Reserve System in the
preparation of each report required under this
subsection.
(4) The Trade Representative and the Secretary of the
Treasury may separately submit any information,
analysis, or conclusion referred to in paragraph (1) to
the Committees in confidence if the Trade
Representative and the Secretary consider
confidentiality appropriate.
(5) After submission of each report required under
paragraph (1), the Trade Representative and the
Secretary of the Treasury shall consult with each of
the Committees with respect to the report.
(c) ITC Reports.--The United States International Trade
Commission shall submit to the Congress, at least once a year,
a factual report on the operation of the trade agreements
program.
* * * * * * *
TITLE III--RELIEF FROM UNFAIR TRADE PRACTICES
CHAPTER 1--ENFORCEMENT OF UNITED STATES RIGHTS UNDER TRADE AGREEMENTS
AND RESPONSE TO CERTAIN FOREIGN TRADE PRACTICES
SEC. 301. ACTIONS BY UNITED STATES TRADE REPRESENTATIVE.
(a) Mandatory Action.--
(1) If the United States Trade Representative
determines under section 304(a)(1) that--
(A) the rights of the United States under any
trade agreement are being denied; or
(B) an act, policy, or practice of a foreign
country--
(i) violates, or is inconsistent
with, the provisions of, or otherwise
denies benefits to the United States
under, any trade agreement, or
(ii) is unjustifiable and burdens or
restricts United States commerce;
the Trade Representative shall take action authorized
in subsection (c), subject to the specific direction,
if any, of the President regarding any such action, and
shall take all other appropriate and feasible action
within the power of the President that the President
may direct the Trade Representative to take under this
subsection, to enforce such rights or to obtain the
elimination of such act, policy, or practice.
Actions may be taken that are within the power of the President
with respect to trade in any goods or services, or with respect
to any other area of pertinent relations with the foreign
country.
(2) The Trade Representative is not required to take
action under paragraph (1) in any case in which--
(A) the Dispute Settlement Body (as defined
in section 121(5) of the Uruguay Round
Agreements Act) has adopted a report, or a
ruling issued under the formal dispute
settlement proceeding provided under any other
trade agreement finds, that--
(i) the rights of the United States
under a trade agreement are not being
denied, or
(ii) the act, policy, or practice--
(I) is not a violation of, or
inconsistent with, the rights
of the United States, or
(II) does not deny, nullify,
or impair benefits to the
United States under any trade
agreement; or
(B) the Trade Representative finds that--
(i) the foreign country is taking
satisfactory measures to grant the
rights of the United States under a
trade agreement,
(ii) the foreign country has--
(I) agreed to eliminate or
phase out the act, policy, or
practice, or
(II) agreed to an imminent
solution to the burden or
restriction on United States
commerce that is satisfactory
to the Trade Representative,
(iii) it is impossible for the
foreign country to achieve the results
described in clause (i) or (ii), as
appropriate, but the foreign country
agrees to provide to the United States
compensatory trade benefits that are
satisfactory to the Trade
Representative,
(iv) in extraordinary cases, where
the taking of action under this
subsection would have an adverse impact
on the United States economy
substantially out of proportion to the
benefits of such action, taking into
account the impact of not taking such
action on the credibility of the
provisions of this chapter, or
(v) the taking of action under this
subsection would cause serious harm to
the national security of the United
States.
(3) Any action taken under paragraph (1) to eliminate
an act, policy, or practice shall be devised so as to
affect goods or services of the foreign country in an
amount that is equivalent in value to the burden or
restriction being imposed by that country on United
States commerce.
(b) Discretionary Action.--If the Trade Representative
determines under section 304(a)(1) that--
(1) an act, policy, or practice of a foreign country
is unreasonable or discriminatory and burdens or
restricts United States commerce, and
(2) action by the United States is appropriate, the
Trade Representative shall take all appropriate and
feasible action authorized under subsection (c),
subject to the specific direction, if any, of the
President regarding any such action, and all other
appropriate and feasible action within the power of the
President that the President may direct the Trade
Representative to take under this subsection, to obtain
the elimination of that act, policy, or practice.
Actions may be taken that are within the power of the President
with respect to trade in any goods or services, or with respect
to any other area of pertinent relations with the foreign
country.
(c) Scope of Authority.--
(1) For purposes of carrying out the provisions of
subsection (a) or (b), the Trade Representative is
authorized to--
(A) suspend, withdraw, or prevent the
application of, benefits of trade agreement
concessions to carry out a trade agreement with
the foreign country referred to in such
subsection;
(B) impose duties or other import
restrictions on the goods of, and,
notwithstanding any other provision of law,
fees or restrictions on the services of, such
foreign country for such time as the Trade
Representative determines appropriate;
(C) in a case in which the act, policy, or
practice also fails to meet the eligibility
criteria for receiving duty-free treatment
under subsections (b) and (c) of section 502 of
this Act, subsections (b) and (c) of section
212 of the Caribbean Basin Economic Recovery
Act (19 U.S.C. 2702(b) and (c)), or subsections
(c) and (d) of section 203 of the Andean Trade
Preference Act (19 U.S.C. 3202(c) and (d)),
withdraw, limit, or suspend such treatment
under such provisions, notwithstanding the
provisions of subsection (a)(3) of this
section; or
(D) enter into binding agreements with such
foreign country that commit such foreign
country to--
(i) eliminate, or phase out, the act,
policy, or practice that is the subject
of the action to be taken under
subsection (a) or (b),
(ii) eliminate any burden or
restriction on United States commerce
resulting from such act, policy, or
practice, or
(iii) provide the United States with
compensatory trade benefits that--
(I) are satisfactory to the
Trade Representative, and
(II) meet the requirements of
paragraph (4).
(2)(A) Notwithstanding any other provision of law
governing any service sector access authorization, and
in addition to the authority conferred in paragraph
(1), the Trade Representative may, for purposes of
carrying out the provisions of subsection (a) or (b)--
(i) restrict, in the manner and to the extent
the Trade Representative determines
appropriate, the terms and conditions of any
such authorization, or
(ii) deny the issuance of any such
authorization.
(B) Actions described in subparagraph (A) may only be
taken under this section with respect to service sector
access authorizations granted, or applications therefor
pending, on or after the date on which--
(i) a petition is filed under section 302(a),
or
(ii) a determination to initiate an
investigation is made by the Trade
Representative under section 302(b).
(C) Before the Trade Representative takes any action
under this section involving the imposition of fees or
other restrictions on the services of a foreign
country, the Trade Representative shall, if the
services involved are subject to regulation by any
agency of the Federal Government or of any State,
consult, as appropriate, with the head of the agency
concerned.
(3) The actions the Trade Representative is
authorized to take under subsection (a) or (b) may be
taken against any goods or economic sector--
(A) on a nondiscriminatory basis or solely
against the foreign country described in such
subsection, and
(B) without regard to whether or not such
goods or economic sector were involved in the
act, policy, or practice that is the subject of
such action.
(4) Any trade agreement described in paragraph
(1)(D)(iii) shall provide compensatory trade benefits
that benefit the economic sector which includes the
domestic industry that would benefit from the
elimination of the act, policy, or practice that is the
subject of the action to be taken under subsection (a)
or (b), or benefit the economic sector as closely
related as possible to such economic sector, unless--
(A) the provision of such trade benefits is
not feasible, or
(B) trade benefits that benefit any other
economic sector would be more satisfactory than
such trade benefits.
(5) If the Trade Representative determines that
actions to be taken under subsection (a) or (b) are to
be in the form of import restrictions, the Trade
Representative shall--
(A) give preference to the imposition of
duties over the imposition of other import
restrictions, and
(B) if an import restriction other than a
duty is imposed, consider substituting, on an
incremental basis, an equivalent duty for such
other import restriction.
(6) Any action taken by the Trade Representative
under this section with respect to export targeting
shall, to the extent possible, reflect the full benefit
level of the export targeting to the beneficiary over
the period during which the action taken has an effect.
(d) Definitions and Special Rules.--For purposes of this
chapter--
(1) The term ``commerce'' includes, but is not
limited to--
(A) services (including transfers of
information) associated with international
trade, whether or not such services are related
to specific goods, and
(B) foreign direct investment by United
States persons with implications for trade in
goods or services.
(2) An act, policy, or practice of a foreign country
that burdens or restricts United States commerce may
include the provision, directly or indirectly, by that
foreign country of subsidies for the construction of
vessels used in the commercial transportation by water
of goods between foreign countries and the United
States.
(3)(A) An act, policy, or practice is unreasonable if
the act, policy, or practice, while not necessarily in
violation of, or inconsistent with, the international
legal rights of the United States, is otherwise unfair
and inequitable.
(B) Acts, policies, and practices that are
unreasonable include, but are not limited to, any act,
policy, or practice, or any combination of acts,
policies, or practices, which--
(i) denies fair and equitable--
(I) opportunities for the
establishment of an enterprise,
(II) provision of adequate and
effective protection of intellectual
property rights notwithstanding the
fact that the foreign country may be in
compliance with the specific
obligations of the Agreement on Trade-
Related Aspects of Intellectual
Property Rights referred to in section
101(d)(15) of the Uruguay Round
Agreements Act,
(III) nondiscriminatory market access
opportunities for United States persons
that rely upon intellectual property
protection, or
(IV) market opportunities, including
the toleration by a foreign government
of systematic anticompetitive
activities by enterprises or among
enterprises in the foreign country that
have the effect of restricting, on a
basis that is inconsistent with
commercial considerations, access of
United States goods or services to a
foreign market,
(ii) constitutes export targeting, or
(iii) constitutes a persistent pattern of
conduct that--
(I) denies workers the right of
association,
(II) denies workers the right to
organize and bargain collectively,
(III) permits any form of forced or
compulsory labor,
(IV) fails to provide a minimum age
for the employment of children, or
(V) fails to provide standards for
minimum wages, hours of work, and
occupational safety and health of
workers.
(C)(i) Acts, policies, and practices of a foreign
country described in subparagraph (B)(iii) shall not be
treated as being unreasonable if the Trade
Representative determines that--
(I) the foreign country has taken, or is
taking, actions that demonstrate a significant
and tangible overall advancement in providing
throughout the foreign country (including any
designated zone within the foreign country) the
rights and other standards described in the
subclauses of subparagraph (B)(iii), or
(II) such acts, policies, and practices are
not inconsistent with the level of economic
development of the foreign country.
(ii) The Trade Representative shall publish in the
Federal Register any determination made under clause
(i), together with a description of the facts on which
such determination is based.
(D) For purposes of determining whether any act,
policy, or practice is unreasonable, reciprocal
opportunities in the United States for foreign
nationals and firms shall be taken into account, to the
extent appropriate.
(E) The term ``export targeting'' means any
government plan or scheme consisting of a combination
of coordinated actions (whether carried out severally
or jointly) that are bestowed on a specific enterprise,
industry, or group thereof, the effect of which is to
assist the enterprise, industry, or group to become
more competitive in the export of a class or kind of
merchandise.
(F)(i) For the purposes of subparagraph (B)(i)(II),
adequate and effective protection of intellectual
property rights includes adequate and effective means
under the laws of the foreign country for persons who
are not citizens or nationals of such country to
secure, exercise, and enforce rights and enjoy
commercial benefits relating to patents, trademarks,
copyrights and related rights, mask works, trade
secrets, and plant breeder's rights.
(ii) For purposes of subparagraph (B)(i)(IV), the
denial of fair and equitable nondiscriminatory market
access opportunities includes restrictions on market
access related to the use, exploitation, or enjoyment
of commercial benefits derived from exercising
intellectual property rights in protected works or
fixations or products embodying protected works.
(4)(A) An act, policy, or practice is unjustifiable
if the act, policy, or practice is in violation of, or
inconsistent with, the international legal rights of
the United States.
(B) Acts, policies, and practices that are
unjustifiable include, but are not limited to, any act,
policy, or practice described in subparagraph (A) which
denies national or most-favored-nation treatment or the
right of establishment or protection of intellectual
property rights.
(5) Acts, policies, and practices that are
discriminatory include, when appropriate, any act,
policy, and practice which denies national or most-
favored-nation treatment to United States goods,
services, or investment.
(6) The term ``service sector access authorization''
means any license, permit, order, or other
authorization, issued under the authority of Federal
law, that permits a foreign supplier of services access
to the United States market in a service sector
concerned.
(7) The term ``foreign country'' includes any foreign
instrumentality. Any possession or territory of a
foreign country that is administered separately for
customs purposes shall be treated as a separate foreign
country.
(8) The term ``Trade Representative'' means the
United States Trade Representative.
(9) The term ``interested persons'', only for
purposes of sections 302(a)(4)(B), 304(b)(1)(A),
306(c)(2), and 307(a)(2), includes, but is not limited
to, domestic firms and workers, representatives of
consumer interests, United States product exporters,
and any industrial user of any goods or services that
may be affected by actions taken under subsection (a)
or (b).
* * * * * * *
SEC. 306. MONITORING OF FOREIGN COMPLIANCE.
(a) In General.--The Trade Representative shall monitor the
implementation of each measure undertaken, or agreement that is
entered into, by a foreign country to provide a satisfactory
resolution of a matter subject to investigation under this
chapter or subject to dispute settlement proceedings to enforce
the rights of the United States under a trade agreement
providing for such proceedings.
(b) Further Action.--
(1) In general.--If, on the basis of the monitoring
carried out under subsection (a), the Trade
Representative considers that a foreign country is not
satisfactorily implementing a measure or agreement
referred to in subsection (a), the Trade Representative
shall determine what further action the Trade
Representative shall take under section 301(a). For
purposes of section 301, any such determination shall
be treated as a determination made under section
304(a)(1).
(2) WTO dispute settlement recommendations.--
(A) Failure to implement recommendation.--If
the measure or agreement referred to in
subsection (a) concerns the implementation of a
recommendation made pursuant to dispute
settlement proceedings under the World Trade
Organization, and the Trade Representative
considers that the foreign country has failed
to implement it, the Trade Representative shall
make the determination in paragraph (1) no
later than 30 days after the expiration of the
reasonable period of time provided for such
implementation under paragraph 21 of the
Understanding on Rules and Procedures Governing
the Settlement of Disputes that is referred to
in section 101(d)(16) of the Uruguay Round
Agreements Act.
(B) Revision of retaliation list and
action.--
(i) In general.--Except as provided
in clause (ii), in the event that the
United States initiates a retaliation
list or takes any other action
described in section 301(c)(1)(A) or
(B) against the goods of a foreign
country or countries because of the
failure of such country or countries to
implement the recommendation made
pursuant to a dispute settlement
proceeding under the World Trade
Organization, the Trade Representative
shall periodically revise the list or
action to affect other goods of the
country or countries that have failed
to implement the recommendation.
(ii) Exception.--The Trade
Representative is not required to
revise the retaliation list or the
action described in clause (i) with
respect to a country, if--
(I) the Trade Representative
determines that implementation
of a recommendation made
pursuant to a dispute
settlement proceeding described
in clause (i) by the country is
imminent; or
(II) the Trade Representative
together with the petitioner
involved in the initial
investigation under this
chapter (or if no petition was
filed, the affected United
States industry) agree that it
is unnecessary to revise the
retaliation list.
(C) Schedule for revising list or action.--
The Trade Representative shall, 120 days after
the date the retaliation list or other section
301(a) action is first taken, and every 180
days thereafter, review the list or action
taken and revise, in whole or in part, the list
or action to affect other goods of the subject
country or countries.
(D) Standards for revising list or action.--
In revising any list or action against a
country or countries under this subsection, the
Trade Representative shall act in a manner that
is most likely to result in the country or
countries implementing the recommendations
adopted in the dispute settlement proceeding or
in achieving a mutually satisfactory solution
to the issue that gave rise to the dispute
settlement proceeding. The Trade Representative
shall consult with the petitioner, if any,
involved in the initial investigation under
this chapter.
(E) Retaliation list.--The term ``retaliation
list'' means the list of products of a foreign
country or countries that have failed to comply
with the report of the panel or Appellate Body
of the WTO and with respect to which the Trade
Representative is imposing duties above the
level that would otherwise be imposed under the
Harmonized Tariff Schedule of the United
States.
(F) Requirement to include reciprocal goods
on retaliation list.--The Trade Representative
shall include on the retaliation list, and on
any revised lists, reciprocal goods of the
industries affected by the failure of the
foreign country or countries to implement the
recommendation made pursuant to a dispute
settlement proceeding under the World Trade
Organization, except in cases where existing
retaliation and its corresponding preliminary
retaliation list do not already meet this
requirement.
(c) Consultations.--Before making any determination under
subsection (b), the Trade Representative shall--
(1) consult with the petitioner, if any, involved in
the initial investigation under this chapter and with
representatives of the domestic industry concerned; and
(2) provide an opportunity for the presentation of
views by interested persons.
SEC. 307. MODIFICATION AND TERMINATION OF ACTIONS.
(a) In General.--
(1) The Trade Representative may modify or terminate
any action, subject to the specific direction, if any,
of the President with respect to such action, that is
being taken under section 301 if--
(A) any of the conditions described in
section 301(a)(2) exist,
(B) the burden or restriction on United
States commerce of the denial rights, or of the
acts, policies, and practices, that are the
subject of such action has increased or
decreased, or
(C) such action is being taken under section
301(b) and is no longer appropriate.
(2) Before taking any action under paragraph (1) to
modify or terminate any action taken under section 301,
the Trade Representative shall consult with the
petitioner, if any, and with representatives of the
domestic industry concerned, and shall provide
opportunity for the presentation of views by other
interested persons affected by the proposed
modification or termination concerning the effects of
the modification or termination and whether any
modification or termination of the action is
appropriate.
(b) Notice; Report to Congress.--The Trade Representative
shall promptly publish in the Federal Register notice of, and
report in writing to the Congress with respect to, any
modification or termination of any action taken under section
301 and the reasons therefor.
(c) Review of Necessity.--
(1) If--
(A) a particular action has been taken under
section 301 during any 4-year period, and
(B) neither the petitioner nor any
representative of the domestic industry which
benefits from such action has submitted to the
Trade Representative during the last 60 days of
such 4-year period a written request for the
continuation of such action,
such action shall terminate at the close of such 4-year
period.
(2) The Trade Representative shall notify by mail the
petitioner and representatives of the domestic industry
described in paragraph (1)(B) of any termination of
action by reason of paragraph (1) at least 60 days
before the date of such termination.
(3) If a request is submitted to the Trade
Representative under paragraph (1)(B) to continue
taking a particular action under section 301, the Trade
Representative shall conduct a review of--
(A) the effectiveness in achieving the
objectives of section 301 of--
(i) such action, and
(ii) other actions that could be
taken (including actions against other
products or services), and
(B) the effects of such actions on the United
States economy, including consumers.
* * * * * * *
SEC. 310. IDENTIFICATION OF TRADE EXPANSION PRIORITIES.
(a) Identification.--
(1) Within 180 days after the submission in calendar
year 1995 of the report required by section 181(b), the
Trade Representative shall--
(A) review United States trade expansion
priorities,
(B) identify priority foreign country
practices, the elimination of which is likely
to have the most significant potential to
increase United States exports, either directly
or through the establishment of a beneficial
precedent, and
(C) submit to the Committee on Finance of the
Senate and the Committee on Ways and Means of
the House of Representatives and publish in the
Federal Register a report on the priority
foreign country practices identified.
(2) In identifying priority foreign country practices
under paragraph (1) of this section, the Trade
Representative shall take into account all relevant
factors, including--
(A) the major barriers and trade distorting
practices described in the National Trade
Estimate Report required under section 181(b);
(B) the trade agreements to which a foreign
country is a party and its compliance with
those agreements;
(C) the medium- and long-term implications of
foreign government procurement plans; and
(D) the international competitive position
and export potential of United States products
and services.
(3) The Trade Representative may include in the
report, if appropriate--
(A) a description of foreign country
practices that may in the future warrant
identification as priority foreign country
practices; and
(B) a statement about other foreign country
practices that were not identified because they
are already being addressed by provisions of
United States trade law, by existing bilateral
trade agreements, or as part of trade
negotiations with other countries and progress
is being made toward the elimination of such
practices.
(b) Initiation of Investigations.--By no later than the date
which is 21 days after the date on which a report is submitted
to the appropriate congressional committees under subsection
(a)(1), the Trade Representative shall initiate under section
302(b)(1) investigations under this chapter with respect to all
of the priority foreign country practices identified.
(c) Agreements for the Elimination of Barriers.--In the
consultations with a foreign country that the Trade
Representative is required to request under section 303(a) with
respect to an investigation initiated by reason of subsection
(b), the Trade Representative shall seek to negotiate an
agreement that provides for the elimination of the practices
that are the subject of the investigation as quickly as
possible or, if elimination of the practices is not feasible,
an agreement that provides for compensatory trade benefits.
(d) Reports.--The Trade Representative shall include in the
semiannual report required by section 309 a report on the
status of any investigations initiated pursuant to subsection
(b) and, where appropriate, the extent to which such
investigations have led to increased opportunities for the
export of products and services of the United States.
* * * * * * *
----------
SECTION 401 OF THE SAFETY AND ACCOUNTABILITY FOR EVERY PORT ACT
SEC. 401. TRADE AND CUSTOMS REVENUE FUNCTIONS OF THE DEPARTMENT.
(a) Trade and Customs Revenue Functions.--
(1) Designation of appropriate official.--The
Secretary shall designate an appropriate senior
official in the office of the Secretary who shall--
(A) ensure that the trade and customs revenue
functions of the Department are coordinated
within the Department and with other Federal
departments and agencies, and that the impact
on legitimate trade is taken into account in
any action impacting the functions; and
(B) monitor and report to Congress on the
Department's mandate to ensure that the trade
and customs revenue functions of the Department
are not diminished, including how spending,
operations, and personnel related to these
functions have kept pace with the level of
trade entering the United States.
(2) Director of trade policy.--There shall be a
Director of Trade Policy (in this subsection referred
to as the ``Director''), who shall be subject to the
direction and control of the official designated
pursuant to paragraph (1). The Director shall--
(A) advise the official designated pursuant
to paragraph (1) regarding all aspects of
Department policies relating to the trade and
customs revenue functions of the Department;
(B) coordinate the development of Department-
wide policies regarding trade and customs
revenue functions and trade facilitation; and
(C) coordinate the trade and customs revenue-
related policies of the Department with the
policies of other Federal departments and
agencies.
(b) Study; Report.--
(1) In general.--The Comptroller General of the
United States shall conduct a study evaluating the
extent to which the Department of Homeland Security is
meeting its obligations under section 412(b) of the
Homeland Security Act of 2002 (6 U.S.C. 212(b)) with
respect to the maintenance of customs revenue
functions.
(2) Analysis.--The study shall include an analysis
of--
(A) the extent to which the customs revenue
functions carried out by the former United
States Customs Service have been consolidated
with other functions of the Department
(including the assignment of noncustoms revenue
functions to personnel responsible for customs
revenue collection), discontinued, or
diminished following the transfer of the United
States Customs Service to the Department;
(B) the extent to which staffing levels or
resources attributable to customs revenue
functions have decreased since the transfer of
the United States Customs Service to the
Department; and
(C) the extent to which the management
structure created by the Department ensures
effective trade facilitation and customs
revenue collection.
(3) Report.--Not later than 180 days after the date
of the enactment of this Act, the Comptroller General
shall submit to the appropriate congressional
committees a report on the results of the study
conducted under subsection (a).
(4) Maintenance of functions.--Not later than
September 30, 2007, the Secretary shall ensure that the
requirements of section 412(b) of the Homeland Security
Act of 2002 (6 U.S.C. 212(b)) are fully satisfied and
shall report to the Committee on Finance of the Senate
and the Committee on Ways and Means of the House of
Representatives regarding implementation of this
paragraph.
(5) Definition.--In this section, the term ``customs
revenue functions'' means the functions described in
section 412(b)(2) of the Homeland Security Act of 2002
(6 U.S.C. 212(b)(2)).
(c) Consultation on Trade and Customs Revenue Functions.--
(1) Business community consultations.--The Secretary
shall consult with representatives of the business
community involved in international trade, including
seeking the advice and recommendations of the
Commercial Operations Advisory Committee, on Department
policies and actions that have a significant impact on
international trade and customs revenue functions.
(2) Congressional consultation and notification.--
(A) In general.--Subject to subparagraph (B),
the Secretary shall notify the appropriate
congressional committees not later than 30 days
prior to the finalization of any Department
policies, initiatives, or actions that will
have a major impact on trade and customs
revenue functions. Such notifications shall
include a description of the proposed policies,
initiatives, or actions and any comments or
recommendations provided by the Commercial
Operations Advisory Committee and other
relevant groups regarding the proposed
policies, initiatives, or actions.
(B) Exception.--If the Secretary determines
that it is important to the national security
interest of the United States to finalize any
Department policies, initiatives, or actions
prior to the consultation described in
subparagraph (A), the Secretary shall--
(i) notify and provide any
recommendations of the Commercial
Operations Advisory Committee received
to the appropriate congressional
committees not later than 45 days after
the date on which the policies,
initiatives, or actions are finalized;
and
(ii) to the extent appropriate,
modify the policies, initiatives, or
actions based upon the consultations
with the appropriate congressional
committees.
(d) Notification of Reorganization of Customs Revenue
Functions.--
(1) In general.--Not less than 45 days prior to any
change in the organization of any of the customs
revenue functions of the Department, the Secretary
shall notify the Committee on Appropriations, the
Committee on Finance, and the Committee on Homeland
Security and Governmental Affairs of the Senate, and
the Committee on Appropriations, the Committee on
Homeland Security, and the Committee on Ways and Means
of the House of Representatives of the specific assets,
functions, or personnel to be transferred as part of
such reorganization, and the reason for such transfer.
The notification shall also include--
(A) an explanation of how trade enforcement
functions will be impacted by the
reorganization;
(B) an explanation of how the reorganization
meets the requirements of section 412(b) of the
Homeland Security Act of 2002 (6 U.S.C. 212(b))
that the Department not diminish the customs
revenue and trade facilitation functions
formerly performed by the United States Customs
Service; and
(C) any comments or recommendations provided
by the Commercial Operations Advisory Committee
regarding such reorganization.
(2) Analysis.--Any congressional committee referred
to in paragraph (1) may request that the Commercial
Operations Advisory Committee provide a report to the
committee analyzing the impact of the reorganization
and providing any recommendations for modifying the
reorganization.
(3) Report.--Not later than 1 year after any
reorganization referred to in paragraph (1) takes
place, the Secretary, in consultation with the
Commercial Operations Advisory Committee, shall submit
a report to the Committee on Finance of the Senate and
the Committee on Ways and Means of the House of
Representatives. Such report shall include an
assessment of the impact of, and any suggested
modifications to, such reorganization.
----------
SECURITIES EXCHANGE ACT OF 1934
TITLE I--REGULATION OF SECURITIES EXCHANGES
* * * * * * *
periodical and other reports
Sec. 13. (a) Every issuer of a security registered pursuant
to section 12 of this title shall file with the Commission, in
accordance with such rules and regulations as the Commission
may prescribe as necessary or appropriate for the proper
protection of investors and to insure fair dealing in the
security--
(1) such information and documents (and such copies
thereof) as the Commission shall require to keep
reasonably current the information and documents
required to be included in or filed with an application
or registration statement filed pursuant to section 12,
except that the Commission may not require the filing
of any material contract wholly executed before July 1,
1962.
(2) such annual reports (and such copies thereof),
certified if required by the rules and regulations of
the Commission by independent public accountants, and
such quarterly reports (and such copies thereof), as
the Commission may prescribe.
Every issuer of a security registered on a national securities
exchange shall also file a duplicate original of such
information, documents, and reports with the exchange. In any
registration statement, periodic report, or other reports to be
filed with the Commission, an emerging growth company need not
present selected financial data in accordance with section
229.301 of title 17, Code of Federal Regulations, for any
period prior to the earliest audited period presented in
connection with its first registration statement that became
effective under this Act or the Securities Act of 1933 and,
with respect to any such statement or reports, an emerging
growth company may not be required to comply with any new or
revised financial accounting standard until such date that a
company that is not an issuer (as defined under section 2(a) of
the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201(a))) is required
to comply with such new or revised accounting standard, if such
standard applies to companies that are not issuers.
(b)(1) The Commission may prescribe, in regard to reports
made pursuant to this title, the form or forms in which the
required information shall be set forth, the items or details
to be shown in the balance sheet and the earnings statement,
and the methods to be followed in the preparation of reports,
in the appraisal or valuation of assets and liabilities, in the
determination of depreciation and depletion, in the
differentiation of recurring and nonrecurring income, in the
differentiation of investment and operating income, and in the
preparation, where the Commission deems it necessary or
desirable, of separate and/or consolidated balance sheets or
income accounts of any person directly or indirectly
controlling or controlled by the issuer, or any person under
direct or indirect common control with the issuer; but in the
case of the reports of any person whose methods of accounting
are prescribed under the provisions of any law of the United
States, or any rule or regulation thereunder, the rules and
regulations of the Commission with respect to reports shall not
be inconsistent with the requirements imposed by such law or
rule or regulation in respect of the same subject matter
(except that such rules and regulations of the Commission may
be inconsistent with such requirements to the extent that the
Commission determines that the public interest or the
protection of investors so requires).
(2) Every issuer which has a class of securities registered
pursuant to section 12 of this title and every issuer which is
required to file reports pursuant to section 15(d) of this
title shall--
(A) make and keep books, records, and accounts,
which, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets
of the issuer;
(B) devise and maintain a system of internal
accounting controls sufficient to provide reasonable
assurances that--
(i) transactions are executed in accordance
with management's general or specific
authorization;
(ii) transactions are recorded as necessary
(I) to permit preparation of financial
statements in conformity with generally
accepted accounting principles or any other
criteria applicable to such statements, and
(II) to maintain accountability for assets;
(iii) access to assets is permitted only in
accordance with management's general or
specific authorization; and
(iv) the recorded accountability for assets
is compared with the existing assets at
reasonable intervals and appropriate action is
taken with respect to any differences; and
(C) notwithstanding any other provision of law, pay
the allocable share of such issuer of a reasonable
annual accounting support fee or fees, determined in
accordance with section 109 of the Sarbanes-Oxley Act
of 2002.
(3)(A) With respect to matters concerning the national
security of the United States, no duty or liability under
paragraph (2) of this subsection shall be imposed upon any
person acting in cooperation with the head of any Federal
department or agency responsible for such matters if such act
in cooperation with such head of a department or agency was
done upon the specific, written directive of the head of such
department or agency pursuant to Presidential authority to
issue such directives. Each directive issued under this
paragraph shall set forth the specific facts and circumstances
with respect to which the provisions of this paragraph are to
be invoked. Each such directive shall, unless renewed in
writing, expire one year after the date of issuance.
(B) Each head of a Federal department or agency of the United
States who issues a directive pursuant to this paragraph shall
maintain a complete file of all such directives and shall, on
October 1 of each year, transmit a summary of matters covered
by such directives in force at any time during the previous
year to the Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on
Intelligence of the Senate.
(4) No criminal liability shall be imposed for failing to
comply with the requirements of paragraph (2) of this
subsection except as provided in paragraph (5) of this
subsection.
(5) No person shall knowingly circumvent or knowingly fail to
implement a system of internal accounting controls or knowingly
falsify any book, record, or account described in paragraph
(2).
(6) Where an issuer which has a class of securities
registered pursuant to section 12 of this title or an issuer
which is required to file reports pursuant to section 15(d) of
this title holds 50 per centum or less of the voting power with
respect to a domestic or foreign firm, the provisions of
paragraph (2) require only that the issuer proceed in good
faith to use its influence, to the extent reasonable under the
issuer's circumstances, to cause such domestic or foreign firm
to devise and maintain a system of internal accounting controls
consistent with paragraph (2). Such circumstances include the
relative degree of the issuer's ownership of the domestic or
foreign firm and the laws and practices governing the business
operations of the country in which such firm is located. An
issuer which demonstrates good faith efforts to use such
influence shall be conclusively presumed to have complied with
the requirements of paragraph (2).
(7) For the purpose of paragraph (2) of this subsection, the
terms ``reasonable assurances'' and ``reasonable detail'' mean
such level of detail and degree of assurance as would satisfy
prudent officials in the conduct of their own affairs.
(c) If in the judgment of the Commission any report required
under subsection (a) is inapplicable to any specified class or
classes of issuers, the Commission shall require in lieu
thereof the submission of such reports of comparable character
as it may deem applicable to such class or classes of issuers.
(d)(1) Any person who, after acquiring directly or indirectly
the beneficial ownership of any equity security of a class
which is registered pursuant to section 12 of this title, or
any equity security of an insurance company which would have
been required to be so registered except for the exemption
contained in section 12(g)(2)(G) of this title, or any equity
security issued by a closed-end investment company registered
under the Investment Company Act of 1940 or any equity security
issued by a Native Corporation pursuant to section 37(d)(6) of
the Alaska Native Claims Settlement Act, or otherwise becomes
or is deemed to become a beneficial owner of any of the
foregoing upon the purchase or sale of a security-based swap
that the Commission may define by rule, and is directly or
indirectly the beneficial owner of more than 5 per centum of
such class shall, within ten days after such acquisition or
within such shorter time as the Commission may establish by
rule, file with the Commission, a statement containing such of
the following information, and such additional information, as
the Commission may by rules and regulations, prescribe as
necessary or appropriate in the public interest or for the
protection of investors--
(A) the background, and identity, residence, and
citizenship of, and the nature of such beneficial
ownership by, such person and all other persons by whom
or on whose behalf the purchases have been or are to be
effected;
(B) the source and amount of the funds or other
consideration used or to be used in making the
purchases, and if any part of the purchase price is
represented or is to be represented by funds or other
consideration borrowed or otherwise obtained for the
purpose of acquiring, holding, or trading such
security, a description of the transaction and the
names of the parties thereto, except that where a
source of funds is a loan made in the ordinary course
of business by a bank, as defined in section 3(a)(6) of
this title, if the person filing such statement so
requests, the name of the bank shall not be made
available to the public;
(C) if the purpose of the purchases or prospective
purchases is to acquire control of the business of the
issuer of the securities any plans or proposals which
such persons may have to liquidate such issuer, to sell
its assets to or merge it with any other persons, or to
make any other major change in its business or
corporate structure;
(D) the number of shares of such security which are
beneficially owned, and the number of shares concerning
which there is a right to acquire, directly or
indirectly, by (i) such person, and (ii) by each
associate of such person, giving the background,
identity, residence, and citizenship of each such
associate; and
(E) information as to any contracts, arrangements, or
understandings with any person with respect to any
securities of the issuer, including but not limited to
transfer of any of the securities, joint ventures, loan
or option arrangements, puts or calls, guaranties of
loans, guaranties against loss or guaranties of
profits, division of losses or profits, or the giving
or withholding of proxies, naming the persons with whom
such contracts, arrangements, or understandings have
been entered into, and giving the details thereof.
(2) If any material change occurs in the facts set forth in
the statement filed with the Commission, an amendment shall be
filed with the Commission, in accordance with such rules and
regulations as the Commission may prescribe as necessary or
appropriate in the public interest or for the protection of
investors.
(3) When two or more persons act as a partnership, limited
partnership, syndicate, or other group for the purpose of
acquiring, holding, or disposing of securities of an issuer,
such syndicate or group shall be deemed a ``person'' for the
purposes of this subsection.
(4) In determining, for purposes of this subsection, any
percentage of a class of any security, such class shall be
deemed to consist of the amount of the outstanding securities
of such class, exclusive of any securities of such class held
by or for the account of the issuer or a subsidiary of the
issuer.
(5) The Commission, by rule or regulation or by order, may
permit any person to file in lieu of the statement required by
paragraph (1) of this subsection or the rules and regulations
thereunder, a notice stating the name of such person, the
number of shares of any equity securities subject to paragraph
(1) which are owned by him, the date of their acquisition and
such other information as the Commission may specify, if it
appears to the Commission that such securities were acquired by
such person in the ordinary course of his business and were not
acquired for the purpose of and do not have the effect of
changing or influencing the control of the issuer nor in
connection with or as a participant in any transaction having
such purpose or effect.
(6) The provisions of this subsection shall not apply to--
(A) any acquisition or offer to acquire securities
made or proposed to be made by means of a registration
statement under the Securities Act of 1933;
(B) any acquisition of the beneficial ownership of a
security which, together with all other acquisitions by
the same person of securities of the same class during
the preceding twelve months, does not exceed 2 per
centum of that class;
(C) any acquisition of an equity security by the
issuer of such security;
(D) any acquisition or proposed acquisition of a
security which the Commission, by rules or regulations
or by order, shall exempt from the provisions of this
subsection as not entered into for the purpose of, and
not having the effect of, changing or influencing the
control of the issuer or otherwise as not comprehended
within the purposes of this subsection.
(e)(1) It shall be unlawful for an issuer which has a class
of equity securities registered pursuant to section 12 of this
title, or which is a closed-end investment company registered
under the Investment Company Act of 1940, to purchase any
equity security issued by it if such purchase is in
contravention of such rules and regulations as the Commission,
in the public interest or for the protection of investors, may
adopt (A) to define acts and practices which are fraudulent,
deceptive, or manipulative, and (B) to prescribe means
reasonably designed to prevent such acts and practices. Such
rules and regulations may require such issuer to provide
holders of equity securities of such class with such
information relating to the reasons for such purchase, the
source of funds, the number of shares to be purchased, the
price to be paid for such securities, the method of purchase,
and such additional information, as the Commission deems
necessary or appropriate in the public interest or for the
protection of investors, or which the Commission deems to be
material to a determination whether such security should be
sold.
(2) For the purpose of this subsection, a purchase by or for
the issuer or any person controlling, controlled by, or under
common control with the issuer, or a purchase subject to
control of the issuer or any such person, shall be deemed to be
a purchase by the issuer. The Commission shall have power to
make rules and regulations implementing this paragraph in the
public interest and for the protection of investors, including
exemptive rules and regulations covering situations in which
the Commission deems it unnecessary or inappropriate that a
purchase of the type described in this paragraph shall be
deemed to be a purchase by the issuer for purposes of some or
all of the provisions of paragraph (1) of this subsection.
(3) At the time of filing such statement as the Commission
may require by rule pursuant to paragraph (1) of this
subsection, the person making the filing shall pay to the
Commission a fee at a rate that, subject to paragraph (4), is
equal to $92 per $1,000,000 of the value of securities proposed
to be purchased. The fee shall be reduced with respect to
securities in an amount equal to any fee paid with respect to
any securities issued in connection with the proposed
transaction under section 6(b) of the Securities Act of 1933,
or the fee paid under that section shall be reduced in an
amount equal to the fee paid to the Commission in connection
with such transaction under this paragraph.
(4) Annual adjustment.--For each fiscal year, the
Commission shall by order adjust the rate required by
paragraph (3) for such fiscal year to a rate that is
equal to the rate (expressed in dollars per million)
that is applicable under section 6(b) of the Securities
Act of 1933 for such fiscal year.
(5) Fee collections.--Fees collected pursuant to this
subsection for fiscal year 2012 and each fiscal year
thereafter shall be deposited and credited as general
revenue of the Treasury and shall not be available for
obligation.
(6) Effective date; publication.--In exercising its
authority under this subsection, the Commission shall
not be required to comply with the provisions of
section 553 of title 5, United States Code. An adjusted
rate prescribed under paragraph (4) shall be published
and take effect in accordance with section 6(b) of the
Securities Act of 1933 (15 U.S.C. 77f(b)).
(7) Pro rata application.--The rates per $1,000,000
required by this subsection shall be applied pro rata
to amounts and balances of less than $1,000,000.
(f)(1) Every institutional investment manager which uses the
mails, or any means or instrumentality of interstate commerce
in the course of its business as an institutional investment
manager and which exercises investment discretion with respect
to accounts holding equity securities of a class described in
section 13(d)(1) of this title having an aggregate fair market
value on the last trading day in any of the preceding twelve
months of at least $100,000,000 or such lesser amount (but in
no case less than $10,000,000) as the Commission, by rule, may
determine, shall file reports with the Commission in such form,
for such periods, and at such times after the end of such
periods as the Commission, by rule, may prescribe, but in no
event shall such reports be filed for periods longer than one
year or shorter than one quarter. Such reports shall include
for each such equity security held on the last day of the
reporting period by accounts (in aggregate or by type as the
Commission, by rule, may prescribe) with respect to which the
institutional investment manager exercises investment
discretion (other than securities held in amounts which the
Commission, by rule, determines to be insignificant for
purposes of this subsection), the name of the issuer and the
title, class, CUSIP number, number of shares or principal
amount, and aggregate fair market value of each such security.
Such reports may also include for accounts (in aggregate or by
type) with respect to which the institutional investment
manager exercises investment discretion such of the following
information as the Commission, by rule, prescribes--
(A) the name of the issuer and the title, class,
CUSIP number, number of shares or principal amount, and
aggregate fair market value or cost or amortized cost
of each other security (other than an exempted
security) held on the last day of the reporting period
by such accounts;
(B) the aggregate fair market value or cost or
amortized cost of exempted securities (in aggregate or
by class) held on the last day of the reporting period
by such accounts;
(C) the number of shares of each equity security of a
class described in section 13(d)(1) of this title held
on the last day of the reporting period by such
accounts with respect to which the institutional
investment manager possesses sole or shared authority
to exercise the voting rights evidenced by such
securities;
(D) the aggregate purchases and aggregate sales
during the reporting period of each security (other
than an exempted security) effected by or for such
accounts; and
(E) with respect to any transaction or series of
transactions having a market value of at least $500,000
or such other amount as the Commission, by rule, may
determine, effected during the reporting period by or
for such accounts in any equity security of a class
described in section 13(d)(1) of this title--
(i) the name of the issuer and the title,
class, and CUSIP number of the security;
(ii) the number of shares or principal amount
of the security involved in the transaction;
(iii) whether the transaction was a purchase
or sale;
(iv) the per share price or prices at which
the transaction was effected;
(v) the date or dates of the transaction;
(vi) the date or dates of the settlement of
the transaction;
(vii) the broker or dealer through whom the
transaction was effected;
(viii) the market or markets in which the
transaction was effected; and
(ix) such other related information as the
Commission, by rule, may prescribe.
(2) The Commission shall prescribe rules providing
for the public disclosure of the name of the issuer and
the title, class, CUSIP number, aggregate amount of the
number of short sales of each security, and any
additional information determined by the Commission
following the end of the reporting period. At a
minimum, such public disclosure shall occur every
month.
(3) The Commission, by rule or order, may exempt,
conditionally or unconditionally, any institutional investment
manager or security or any class of institutional investment
managers or securities from any or all of the provisions of
this subsection or the rules thereunder.
(4) The Commission shall make available to the public for a
reasonable fee a list of all equity securities of a class
described in section 13(d)(1) of this title, updated no less
frequently than reports are required to be filed pursuant to
paragraph (1) of this subsection. The Commission shall tabulate
the information contained in any report filed pursuant to this
subsection in a manner which will, in the view of the
Commission, maximize the usefulness of the information to other
Federal and State authorities and the public. Promptly after
the filing of any such report, the Commission shall make the
information contained therein conveniently available to the
public for a reasonable fee in such form as the Commission, by
rule, may prescribe, except that the Commission, as it
determines to be necessary or appropriate in the public
interest or for the protection of investors, may delay or
prevent public disclosure of any such information in accordance
with section 552 of title 5, United States Code.
Notwithstanding the preceding sentence, any such information
identifying the securities held by the account of a natural
person or an estate or trust (other than a business trust or
investment company) shall not be disclosed to the public.
(5) In exercising its authority under this subsection, the
Commission shall determine (and so state) that its action is
necessary or appropriate in the public interest and for the
protection of investors or to maintain fair and orderly markets
or, in granting an exemption, that its action is consistent
with the protection of investors and the purposes of this
subsection. In exercising such authority the Commission shall
take such steps as are within its power, including consulting
with the Comptroller General of the United States, the Director
of the Office of Management and Budget, the appropriate
regulatory agencies, Federal and State authorities which,
directly or indirectly, require reports from institutional
investment managers of information substantially similar to
that called for by this subsection, national securities
exchanges, and registered securities associations, (A) to
achieve uniform, centralized reporting of information
concerning the securities holdings of and transactions by or
for accounts with respect to which institutional investment
managers exercise investment discretion, and (B) consistently
with the objective set forth in the preceding subparagraph, to
avoid unnecessarily duplicative reporting by, and minimize the
compliance burden on, institutional investment managers.
Federal authorities which, directly or indirectly, require
reports from institutional investment managers of information
substantially similar to that called for by this subsection
shall cooperate with the Commission in the performance of its
responsibilities under the preceding sentence. An institutional
investment manager which is a bank, the deposits of which are
insured in accordance with the Federal Deposit Insurance Act,
shall file with the appropriate regulatory agency a copy of
every report filed with the Commission pursuant to this
subsection.
(6)(A) For purposes of this subsection the term
``institutional investment manager'' includes any person, other
than a natural person, investing in or buying and selling
securities for its own account, and any person exercising
investment discretion with respect to the account of any other
person.
(B) The Commission shall adopt such rules as it deems
necessary or appropriate to prevent duplicative reporting
pursuant to this subsection by two or more institutional
investment managers exercising investment discretion with
respect to the same amount.
(g)(1) Any person who is directly or indirectly the
beneficial owner of more than 5 per centum of any security of a
class described in subsection (d)(1) of this section or
otherwise becomes or is deemed to become a beneficial owner of
any security of a class described in subsection (d)(1) upon the
purchase or sale of a security-based swap that the Commission
may define by ruleshall file with the Commission a statement
setting forth, in such form and at such time as the Commission
may, by rule, prescribe--
(A) such person's identity, residence, and
citizenship; and
(B) the number and description of the shares in which
such person has an interest and the nature of such
interest.
(2) If any material change occurs in the facts set forth in
the statement filed with the Commission, an amendment shall be
filed with the Commission, in accordance with such rules and
regulations as the Commission may prescribe as necessary or
appropriate in the public interest or for the protection of
investors.
(3) When two or more persons act as a partnership, limited
partnership, syndicate, or other group for the purpose of
acquiring, holding, or disposing of securities of an issuer,
such syndicate or group shall be deemed a ``person'' for the
purposes of this subsection.
(4) In determining, for purposes of this subsection, any
percentage of a class of any security, such class shall be
deemed to consist of the amount of the outstanding securities
of such class, exclusive of any securities of such class held
by or for the account of the issuer or a subsidiary of the
issuer.
(5) In exercising its authority under this subsection, the
Commission shall take such steps as it deems necessary or
appropriate in the public interest or for the protection of
investors (A) to achieve centralized reporting of information
regarding ownership, (B) to avoid unnecessarily duplicative
reporting by and minimize the compliance burden on persons
required to report, and (C) to tabulate and promptly make
available the information contained in any report filed
pursuant to this subsection in a manner which will, in the view
of the Commission, maximize the usefulness of the information
to other Federal and State agencies and the public.
(6) The Commission may, by rule or order, exempt, in whole or
in part, any person or class of persons from any or all of the
reporting requirements of this subsection as it deems necessary
or appropriate in the public interest or for the protection of
investors.
(h) Large Trader Reporting.--
(1) Identification requirements for large traders.--
For the purpose of monitoring the impact on the
securities markets of securities transactions involving
a substantial volume or a large fair market value or
exercise value and for the purpose of otherwise
assisting the Commission in the enforcement of this
title, each large trader shall--
(A) provide such information to the
Commission as the Commission may by rule or
regulation prescribe as necessary or
appropriate, identifying such large trader and
all accounts in or through which such large
trader effects such transactions; and
(B) identify, in accordance with such rules
or regulations as the Commission may prescribe
as necessary or appropriate, to any registered
broker or dealer by or through whom such large
trader directly or indirectly effects
securities transactions, such large trader and
all accounts directly or indirectly maintained
with such broker or dealer by such large trader
in or through which such transactions are
effected.
(2) Recordkeeping and reporting requirements for
brokers and dealers.--Every registered broker or dealer
shall make and keep for prescribed periods such records
as the Commission by rule or regulation prescribes as
necessary or appropriate in the public interest, for
the protection of investors, or otherwise in
furtherance of the purposes of this title, with respect
to securities transactions that equal or exceed the
reporting activity level effected directly or
indirectly by or through such registered broker or
dealer of or for any person that such broker or dealer
knows is a large trader, or any person that such broker
or dealer has reason to know is a large trader on the
basis of transactions in securities effected by or
through such broker or dealer. Such records shall be
available for reporting to the Commission, or any self-
regulatory organization that the Commission shall
designate to receive such reports, on the morning of
the day following the day the transactions were
effected, and shall be reported to the Commission or a
self-regulatory organization designated by the
Commission immediately upon request by the Commission
or such a self-regulatory organization. Such records
and reports shall be in a format and transmitted in a
manner prescribed by the Commission (including, but not
limited to, machine readable form).
(3) Aggregation rules.--The Commission may prescribe
rules or regulations governing the manner in which
transactions and accounts shall be aggregated for the
purpose of this subsection, including aggregation on
the basis of common ownership or control.
(4) Examination of broker and dealer records.--All
records required to be made and kept by registered
brokers and dealers pursuant to this subsection with
respect to transactions effected by large traders are
subject at any time, or from time to time, to such
reasonable periodic, special, or other examinations by
representatives of the Commission as the Commission
deems necessary or appropriate in the public interest,
for the protection of investors, or otherwise in
furtherance of the purposes of this title.
(5) Factors to be considered in commission actions.--
In exercising its authority under this subsection, the
Commission shall take into account--
(A) existing reporting systems;
(B) the costs associated with maintaining
information with respect to transactions
effected by large traders and reporting such
information to the Commission or self-
regulatory organizations; and
(C) the relationship between the United
States and international securities markets.
(6) Exemptions.--The Commission, by rule, regulation,
or order, consistent with the purposes of this title,
may exempt any person or class of persons or any
transaction or class of transactions, either
conditionally or upon specified terms and conditions or
for stated periods, from the operation of this
subsection, and the rules and regulations thereunder.
(7) Authority of commission to limit disclosure of
information.--Notwithstanding any other provision of
law, the Commission shall not be compelled to disclose
any information required to be kept or reported under
this subsection. Nothing in this subsection shall
authorize the Commission to withhold information from
Congress, or prevent the Commission from complying with
a request for information from any other Federal
department or agency requesting information for
purposes within the scope of its jurisdiction, or
complying with an order of a court of the United States
in an action brought by the United States or the
Commission. For purposes of section 552 of title 5,
United States Code, this subsection shall be considered
a statute described in subsection (b)(3)(B) of such
section 552.
(8) Definitions.--For purposes of this subsection--
(A) the term ``large trader'' means every
person who, for his own account or an account
for which he exercises investment discretion,
effects transactions for the purchase or sale
of any publicly traded security or securities
by use of any means or instrumentality of
interstate commerce or of the mails, or of any
facility of a national securities exchange,
directly or indirectly by or through a
registered broker or dealer in an aggregate
amount equal to or in excess of the identifying
activity level;
(B) the term ``publicly traded security''
means any equity security (including an option
on individual equity securities, and an option
on a group or index of such securities) listed,
or admitted to unlisted trading privileges, on
a national securities exchange, or quoted in an
automated interdealer quotation system;
(C) the term ``identifying activity level''
means transactions in publicly traded
securities at or above a level of volume, fair
market value, or exercise value as shall be
fixed from time to time by the Commission by
rule or regulation, specifying the time
interval during which such transactions shall
be aggregated;
(D) the term ``reporting activity level''
means transactions in publicly traded
securities at or above a level of volume, fair
market value, or exercise value as shall be
fixed from time to time by the Commission by
rule, regulation, or order, specifying the time
interval during which such transactions shall
be aggregated; and
(E) the term ``person'' has the meaning given
in section 3(a)(9) of this title and also
includes two or more persons acting as a
partnership, limited partnership, syndicate, or
other group, but does not include a foreign
central bank.
(i) Accuracy of Financial Reports.--Each financial report
that contains financial statements, and that is required to be
prepared in accordance with (or reconciled to) generally
accepted accounting principles under this title and filed with
the Commission shall reflect all material correcting
adjustments that have been identified by a registered public
accounting firm in accordance with generally accepted
accounting principles and the rules and regulations of the
Commission.
(j) Off-Balance Sheet Transactions.--Not later than 180 days
after the date of enactment of the Sarbanes-Oxley Act of 2002,
the Commission shall issue final rules providing that each
annual and quarterly financial report required to be filed with
the Commission shall disclose all material off-balance sheet
transactions, arrangements, obligations (including contingent
obligations), and other relationships of the issuer with
unconsolidated entities or other persons, that may have a
material current or future effect on financial condition,
changes in financial condition, results of operations,
liquidity, capital expenditures, capital resources, or
significant components of revenues or expenses.
(k) Prohibition on Personal Loans to Executives.--
(1) In general.--It shall be unlawful for any issuer
(as defined in section 2 of the Sarbanes-Oxley Act of
2002), directly or indirectly, including through any
subsidiary, to extend or maintain credit, to arrange
for the extension of credit, or to renew an extension
of credit, in the form of a personal loan to or for any
director or executive officer (or equivalent thereof)
of that issuer. An extension of credit maintained by
the issuer on the date of enactment of this subsection
shall not be subject to the provisions of this
subsection, provided that there is no material
modification to any term of any such extension of
credit or any renewal of any such extension of credit
on or after that date of enactment.
(2) Limitation.--Paragraph (1) does not preclude any
home improvement and manufactured home loans (as that
term is defined in section 5 of the Home Owners' Loan
Act (12 U.S.C. 1464)), consumer credit (as defined in
section 103 of the Truth in Lending Act (15 U.S.C.
1602)), or any extension of credit under an open end
credit plan (as defined in section 103 of the Truth in
Lending Act (15 U.S.C. 1602)), or a charge card (as
defined in section 127(c)(4)(e) of the Truth in Lending
Act (15 U.S.C. 1637(c)(4)(e)), or any extension of
credit by a broker or dealer registered under section
15 of this title to an employee of that broker or
dealer to buy, trade, or carry securities, that is
permitted under rules or regulations of the Board of
Governors of the Federal Reserve System pursuant to
section 7 of this title (other than an extension of
credit that would be used to purchase the stock of that
issuer), that is--
(A) made or provided in the ordinary course
of the consumer credit business of such issuer;
(B) of a type that is generally made
available by such issuer to the public; and
(C) made by such issuer on market terms, or
terms that are no more favorable than those
offered by the issuer to the general public for
such extensions of credit.
(3) Rule of construction for certain loans.--
Paragraph (1) does not apply to any loan made or
maintained by an insured depository institution (as
defined in section 3 of the Federal Deposit Insurance
Act (12 U.S.C. 1813)), if the loan is subject to the
insider lending restrictions of section 22(h) of the
Federal Reserve Act (12 U.S.C. 375b).
(l) Real Time Issuer Disclosures.--Each issuer reporting
under section 13(a) or 15(d) shall disclose to the public on a
rapid and current basis such additional information concerning
material changes in the financial condition or operations of
the issuer, in plain English, which may include trend and
qualitative information and graphic presentations, as the
Commission determines, by rule, is necessary or useful for the
protection of investors and in the public interest.
(m) Public Availability of Security-based Swap Transaction
Data.--
(1) In general.--
(A) Definition of real-time public
reporting.--In this paragraph, the term ``real-
time public reporting'' means to report data
relating to a security-based swap transaction,
including price and volume, as soon as
technologically practicable after the time at
which the security-based swap transaction has
been executed.
(B) Purpose.--The purpose of this subsection
is to authorize the Commission to make
security-based swap transaction and pricing
data available to the public in such form and
at such times as the Commission determines
appropriate to enhance price discovery.
(C) General rule.--The Commission is
authorized to provide by rule for the public
availability of security-based swap
transaction, volume, and pricing data as
follows:
(i) With respect to those security-
based swaps that are subject to the
mandatory clearing requirement
described in section 3C(a)(1)
(including those security-based swaps
that are excepted from the requirement
pursuant to section 3C(g)), the
Commission shall require real-time
public reporting for such transactions.
(ii) With respect to those security-
based swaps that are not subject to the
mandatory clearing requirement
described in section 3C(a)(1), but are
cleared at a registered clearing
agency, the Commission shall require
real-time public reporting for such
transactions.
(iii) With respect to security-based
swaps that are not cleared at a
registered clearing agency and which
are reported to a security-based swap
data repository or the Commission under
section 3C(a)(6), the Commission shall
require real-time public reporting for
such transactions, in a manner that
does not disclose the business
transactions and market positions of
any person.
(iv) With respect to security-based
swaps that are determined to be
required to be cleared under section
3C(b) but are not cleared, the
Commission shall require real-time
public reporting for such transactions.
(D) Registered entities and public
reporting.--The Commission may require
registered entities to publicly disseminate the
security-based swap transaction and pricing
data required to be reported under this
paragraph.
(E) Rulemaking required.--With respect to the
rule providing for the public availability of
transaction and pricing data for security-based
swaps described in clauses (i) and (ii) of
subparagraph (C), the rule promulgated by the
Commission shall contain provisions--
(i) to ensure such information does
not identify the participants;
(ii) to specify the criteria for
determining what constitutes a large
notional security-based swap
transaction (block trade) for
particular markets and contracts;
(iii) to specify the appropriate time
delay for reporting large notional
security-based swap transactions (block
trades) to the public; and
(iv) that take into account whether
the public disclosure will materially
reduce market liquidity.
(F) Timeliness of reporting.--Parties to a
security-based swap (including agents of the
parties to a security-based swap) shall be
responsible for reporting security-based swap
transaction information to the appropriate
registered entity in a timely manner as may be
prescribed by the Commission.
(G) Reporting of swaps to registered
security-based swap data repositories.--Each
security-based swap (whether cleared or
uncleared) shall be reported to a registered
security-based swap data repository.
(H) Registration of clearing agencies.--A
clearing agency may register as a security-
based swap data repository.
(2) Semiannual and annual public reporting of
aggregate security-based swap data.--
(A) In general.--In accordance with
subparagraph (B), the Commission shall issue a
written report on a semiannual and annual basis
to make available to the public information
relating to--
(i) the trading and clearing in the
major security-based swap categories;
and
(ii) the market participants and
developments in new products.
(B) Use; consultation.--In preparing a report
under subparagraph (A), the Commission shall--
(i) use information from security-
based swap data repositories and
clearing agencies; and
(ii) consult with the Office of the
Comptroller of the Currency, the Bank
for International Settlements, and such
other regulatory bodies as may be
necessary.
(C) Authority of commission.--The Commission
may, by rule, regulation, or order, delegate
the public reporting responsibilities of the
Commission under this paragraph in accordance
with such terms and conditions as the
Commission determines to be appropriate and in
the public interest.
(n) Security-based Swap Data Repositories.--
(1) Registration requirement.--It shall be unlawful
for any person, unless registered with the Commission,
directly or indirectly, to make use of the mails or any
means or instrumentality of interstate commerce to
perform the functions of a security-based swap data
repository.
(2) Inspection and examination.--Each registered
security-based swap data repository shall be subject to
inspection and examination by any representative of the
Commission.
(3) Compliance with core principles.--
(A) In general.--To be registered, and
maintain registration, as a security-based swap
data repository, the security-based swap data
repository shall comply with--
(i) the requirements and core
principles described in this
subsection; and
(ii) any requirement that the
Commission may impose by rule or
regulation.
(B) Reasonable discretion of security-based
swap data repository.--Unless otherwise
determined by the Commission, by rule or
regulation, a security-based swap data
repository described in subparagraph (A) shall
have reasonable discretion in establishing the
manner in which the security-based swap data
repository complies with the core principles
described in this subsection.
(4) Standard setting.--
(A) Data identification.--
(i) In general.--In accordance with
clause (ii), the Commission shall
prescribe standards that specify the
data elements for each security-based
swap that shall be collected and
maintained by each registered security-
based swap data repository.
(ii) Requirement.--In carrying out
clause (i), the Commission shall
prescribe consistent data element
standards applicable to registered
entities and reporting counterparties.
(B) Data collection and maintenance.--The
Commission shall prescribe data collection and
data maintenance standards for security-based
swap data repositories.
(C) Comparability.--The standards prescribed
by the Commission under this subsection shall
be comparable to the data standards imposed by
the Commission on clearing agencies in
connection with their clearing of security-
based swaps.
(5) Duties.--A security-based swap data repository
shall--
(A) accept data prescribed by the Commission
for each security-based swap under subsection
(b);
(B) confirm with both counterparties to the
security-based swap the accuracy of the data
that was submitted;
(C) maintain the data described in
subparagraph (A) in such form, in such manner,
and for such period as may be required by the
Commission;
(D)(i) provide direct electronic access to
the Commission (or any designee of the
Commission, including another registered
entity); and
(ii) provide the information described in
subparagraph (A) in such form and at such
frequency as the Commission may require to
comply with the public reporting requirements
set forth in subsection (m);
(E) at the direction of the Commission,
establish automated systems for monitoring,
screening, and analyzing security-based swap
data;
(F) maintain the privacy of any and all
security-based swap transaction information
that the security-based swap data repository
receives from a security-based swap dealer,
counterparty, or any other registered entity;
and
(G) on a confidential basis pursuant to
section 24, upon request, and after notifying
the Commission of the request, make available
all data obtained by the security-based swap
data repository, including individual
counterparty trade and position data, to--
(i) each appropriate prudential
regulator;
(ii) the Financial Stability
Oversight Council;
(iii) the Commodity Futures Trading
Commission;
(iv) the Department of Justice; and
(v) any other person that the
Commission determines to be
appropriate, including--
(I) foreign financial
supervisors (including foreign
futures authorities);
(II) foreign central banks;
and
(III) foreign ministries.
(H) Confidentiality and indemnification
agreement.--Before the security-based swap data
repository may share information with any
entity described in subparagraph (G)--
(i) the security-based swap data
repository shall receive a written
agreement from each entity stating that
the entity shall abide by the
confidentiality requirements described
in section 24 relating to the
information on security-based swap
transactions that is provided; and
(ii) each entity shall agree to
indemnify the security-based swap data
repository and the Commission for any
expenses arising from litigation
relating to the information provided
under section 24.
(6) Designation of chief compliance officer.--
(A) In general.--Each security-based swap
data repository shall designate an individual
to serve as a chief compliance officer.
(B) Duties.--The chief compliance officer
shall--
(i) report directly to the board or
to the senior officer of the security-
based swap data repository;
(ii) review the compliance of the
security-based swap data repository
with respect to the requirements and
core principles described in this
subsection;
(iii) in consultation with the board
of the security-based swap data
repository, a body performing a
function similar to the board of the
security-based swap data repository, or
the senior officer of the security-
based swap data repository, resolve any
conflicts of interest that may arise;
(iv) be responsible for administering
each policy and procedure that is
required to be established pursuant to
this section;
(v) ensure compliance with this title
(including regulations) relating to
agreements, contracts, or transactions,
including each rule prescribed by the
Commission under this section;
(vi) establish procedures for the
remediation of noncompliance issues
identified by the chief compliance
officer through any--
(I) compliance office review;
(II) look-back;
(III) internal or external
audit finding;
(IV) self-reported error; or
(V) validated complaint; and
(vii) establish and follow
appropriate procedures for the
handling, management response,
remediation, retesting, and closing of
noncompliance issues.
(C) Annual reports.--
(i) In general.--In accordance with
rules prescribed by the Commission, the
chief compliance officer shall annually
prepare and sign a report that contains
a description of--
(I) the compliance of the
security-based swap data
repository of the chief
compliance officer with respect
to this title (including
regulations); and
(II) each policy and
procedure of the security-based
swap data repository of the
chief compliance officer
(including the code of ethics
and conflict of interest
policies of the security-based
swap data repository).
(ii) Requirements.--A compliance
report under clause (i) shall--
(I) accompany each
appropriate financial report of
the security-based swap data
repository that is required to
be furnished to the Commission
pursuant to this section; and
(II) include a certification
that, under penalty of law, the
compliance report is accurate
and complete.
(7) Core principles applicable to security-based swap
data repositories.--
(A) Antitrust considerations.--Unless
necessary or appropriate to achieve the
purposes of this title, the swap data
repository shall not--
(i) adopt any rule or take any action
that results in any unreasonable
restraint of trade; or
(ii) impose any material
anticompetitive burden on the trading,
clearing, or reporting of transactions.
(B) Governance arrangements.--Each security-
based swap data repository shall establish
governance arrangements that are transparent--
(i) to fulfill public interest
requirements; and
(ii) to support the objectives of the
Federal Government, owners, and
participants.
(C) Conflicts of interest.--Each security-
based swap data repository shall--
(i) establish and enforce rules to
minimize conflicts of interest in the
decision-making process of the
security-based swap data repository;
and
(ii) establish a process for
resolving any conflicts of interest
described in clause (i).
(D) Additional duties developed by
commission.--
(i) In general.--The Commission may
develop 1 or more additional duties
applicable to security-based swap data
repositories.
(ii) Consideration of evolving
standards.--In developing additional
duties under subparagraph (A), the
Commission may take into consideration
any evolving standard of the United
States or the international community.
(iii) Additional duties for
commission designees.--The Commission
shall establish additional duties for
any registrant described in section
13(m)(2)(C) in order to minimize
conflicts of interest, protect data,
ensure compliance, and guarantee the
safety and security of the security-
based swap data repository.
(8) Required registration for security-based swap
data repositories.--Any person that is required to be
registered as a security-based swap data repository
under this subsection shall register with the
Commission, regardless of whether that person is also
licensed under the Commodity Exchange Act as a swap
data repository.
(9) Rules.--The Commission shall adopt rules
governing persons that are registered under this
subsection.
(o) Beneficial ownership.--For purposes ofthis section and
section 16, a person shall be deemed to acquire beneficial
ownership of an equity security based on the purchase or sale
of a security-based swap, only to the extent that the
Commission, by rule, determines after consultation with the
prudential regulators and the Secretary of the Treasury, that
the purchase or sale of the security-based swap, or class of
security-based swap, provides incidents of ownership comparable
to direct ownership of the equity security, and that it is
necessary to achieve the purposes of this section that the
purchase or sale of the security-based swaps, or class of
security-based swap, be deemed the acquisition of beneficial
ownership of the equity security.
(p) Disclosures Relating to Conflict Minerals Originating in
the Democratic Republic of the Congo.--
(1) Regulations.--
(A) In general.--Not later than 270 days
after the date of the enactment of this
subsection, the Commission shall promulgate
regulations requiring any person described in
paragraph (2) to disclose annually, beginning
with the person's first full fiscal year that
begins after the date of promulgation of such
regulations, whether conflict minerals that are
necessary as described in paragraph (2)(B), in
the year for which such reporting is required,
did originate in the Democratic Republic of the
Congo or an adjoining country and, in cases in
which such conflict minerals did originate in
any such country, submit to the Commission a
report that includes, with respect to the
period covered by the report--
(i) a description of the measures
taken by the person to exercise due
diligence on the source and chain of
custody of such minerals, which
measures shall include an independent
private sector audit of such report
submitted through the Commission that
is conducted in accordance with
standards established by the
Comptroller General of the United
States, in accordance with rules
promulgated by the Commission, in
consultation with the Secretary of
State; and
(ii) a description of the products
manufactured or contracted to be
manufactured that are not DRC conflict
free (``DRC conflict free'' is defined
to mean the products that do not
contain minerals that directly or
indirectly finance or benefit armed
groups in the Democratic Republic of
the Congo or an adjoining country), the
entity that conducted the independent
private sector audit in accordance with
clause (i), the facilities used to
process the conflict minerals, the
country of origin of the conflict
minerals, and the efforts to determine
the mine or location of origin with the
greatest possible specificity.
(B) Certification.--The person submitting a
report under subparagraph (A) shall certify the
audit described in clause (i) of such
subparagraph that is included in such report.
Such a certified audit shall constitute a
critical component of due diligence in
establishing the source and chain of custody of
such minerals.
(C) Unreliable determination.--If a report
required to be submitted by a person under
subparagraph (A) relies on a determination of
an independent private sector audit, as
described under subparagraph (A)(i), or other
due diligence processes previously determined
by the Commission to be unreliable, the report
shall not satisfy the requirements of the
regulations promulgated under subparagraph
(A)(i).
(D) DRC conflict free.--For purposes of this
paragraph, a product may be labeled as ``DRC
conflict free'' if the product does not contain
conflict minerals that directly or indirectly
finance or benefit armed groups in the
Democratic Republic of the Congo or an
adjoining country.
(E) Information available to the public.--
Each person described under paragraph (2) shall
make available to the public on the Internet
website of such person the information
disclosed by such person under subparagraph
(A).
(2) Person described.--A person is described in this
paragraph if--
(A) the person is required to file reports
with the Commission pursuant to paragraph
(1)(A); and
(B) conflict minerals are necessary to the
functionality or production of a product
manufactured by such person.
(3) Revisions and waivers.--The Commission shall
revise or temporarily waive the requirements described
in paragraph (1) if the President transmits to the
Commission a determination that--
(A) such revision or waiver is in the
national security interest of the United States
and the President includes the reasons
therefor; and
(B) establishes a date, not later than 2
years after the initial publication of such
exemption, on which such exemption shall
expire.
(4) Termination of disclosure requirements.--The
requirements of paragraph (1) shall terminate on the
date on which the President determines and certifies to
the appropriate congressional committees, but in no
case earlier than the date that is one day after the
end of the 5-year period beginning on the date of the
enactment of this subsection, that no armed groups
continue to be directly involved and benefitting from
commercial activity involving conflict minerals.
(5) Definitions.--For purposes of this subsection,
the terms ``adjoining country'', ``appropriate
congressional committees'', ``armed group'', and
``conflict mineral'' have the meaning given those terms
under section 1502 of the Dodd-Frank Wall Street Reform
and Consumer Protection Act.
(q) Disclosure of Payments by Resource Extraction Issuers.--
(1) Definitions.--In this subsection--
(A) the term ``commercial development of oil,
natural gas, or minerals'' includes
exploration, extraction, processing, export,
and other significant actions relating to oil,
natural gas, or minerals, or the acquisition of
a license for any such activity, as determined
by the Commission;
(B) the term ``foreign government'' means a
foreign government, a department, agency, or
instrumentality of a foreign government, or a
company owned by a foreign government, as
determined by the Commission;
(C) the term ``payment''--
(i) means a payment that is--
(I) made to further the
commercial development of oil,
natural gas, or minerals; and
(II) not de minimis; and
(ii) includes taxes, royalties, fees
(including license fees), production
entitlements, bonuses, and other
material benefits, that the Commission,
consistent with the guidelines of the
Extractive Industries Transparency
Initiative (to the extent practicable),
determines are part of the commonly
recognized revenue stream for the
commercial development of oil, natural
gas, or minerals;
(D) the term ``resource extraction issuer''
means an issuer that--
(i) is required to file an annual
report with the Commission; and
(ii) engages in the commercial
development of oil, natural gas, or
minerals;
(E) the term ``interactive data format''
means an electronic data format in which pieces
of information are identified using an
interactive data standard; and
(F) the term ``interactive data standard''
means standardized list of electronic tags that
mark information included in the annual report
of a resource extraction issuer.
(2) Disclosure.--
(A) Information required.--Not later than 270
days after the date of enactment of the Dodd-
Frank Wall Street Reform and Consumer
Protection Act, the Commission shall issue
final rules that require each resource
extraction issuer to include in an annual
report of the resource extraction issuer
information relating to any payment made by the
resource extraction issuer, a subsidiary of the
resource extraction issuer, or an entity under
the control of the resource extraction issuer
to a foreign government or the Federal
Government for the purpose of the commercial
development of oil, natural gas, or minerals,
including--
(i) the type and total amount of such
payments made for each project of the
resource extraction issuer relating to
the commercial development of oil,
natural gas, or minerals; and
(ii) the type and total amount of
such payments made to each government.
(B) Consultation in rulemaking.--In issuing
rules under subparagraph (A), the Commission
may consult with any agency or entity that the
Commission determines is relevant.
(C) Interactive data format.--The rules
issued under subparagraph (A) shall require
that the information included in the annual
report of a resource extraction issuer be
submitted in an interactive data format.
(D) Interactive data standard.--
(i) In general.--The rules issued
under subparagraph (A) shall establish
an interactive data standard for the
information included in the annual
report of a resource extraction issuer.
(ii) Electronic tags.--The
interactive data standard shall include
electronic tags that identify, for any
payments made by a resource extraction
issuer to a foreign government or the
Federal Government--
(I) the total amounts of the
payments, by category;
(II) the currency used to
make the payments;
(III) the financial period in
which the payments were made;
(IV) the business segment of
the resource extraction issuer
that made the payments;
(V) the government that
received the payments, and the
country in which the government
is located;
(VI) the project of the
resource extraction issuer to
which the payments relate; and
(VII) such other information
as the Commission may determine
is necessary or appropriate in
the public interest or for the
protection of investors.
(E) International transparency efforts.--To
the extent practicable, the rules issued under
subparagraph (A) shall support the commitment
of the Federal Government to international
transparency promotion efforts relating to the
commercial development of oil, natural gas, or
minerals.
(F) Effective date.--With respect to each
resource extraction issuer, the final rules
issued under subparagraph (A) shall take effect
on the date on which the resource extraction
issuer is required to submit an annual report
relating to the fiscal year of the resource
extraction issuer that ends not earlier than 1
year after the date on which the Commission
issues final rules under subparagraph (A).
(3) Public availability of information.--
(A) In general.--To the extent practicable,
the Commission shall make available online, to
the public, a compilation of the information
required to be submitted under the rules issued
under paragraph (2)(A).
(B) Other information.--Nothing in this
paragraph shall require the Commission to make
available online information other than the
information required to be submitted under the
rules issued under paragraph (2)(A).
(4) Authorization of appropriations.--There are
authorized to be appropriated to the Commission such
sums as may be necessary to carry out this subsection.
(r) Disclosure of Certain Activities Relating to Iran.--
(1) In general.--Each issuer required to file an
annual or quarterly report under subsection (a) shall
disclose in that report the information required by
paragraph (2) if, during the period covered by the
report, the issuer or any affiliate of the issuer--
(A) knowingly engaged in an activity
described in subsection (a) or (b) of section 5
of the Iran Sanctions Act of 1996 (Public Law
104-172; 50 U.S.C. 1701 note);
(B) knowingly engaged in an activity
described in subsection (c)(2) of section 104
of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 (22
U.S.C. 8513) or a transaction described in
subsection (d)(1) of that section;
(C) knowingly engaged in an activity
described in section 105A(b)(2) of that Act; or
(D) knowingly conducted any transaction or
dealing with--
(i) any person the property and
interests in property of which are
blocked pursuant to Executive Order No.
13224 (66 Fed. Reg. 49079; relating to
blocking property and prohibiting
transactions with persons who commit,
threaten to commit, or support
terrorism);
(ii) any person the property and
interests in property of which are
blocked pursuant to Executive Order No.
13382 (70 Fed. Reg. 38567; relating to
blocking of property of weapons of mass
destruction proliferators and their
supporters); or
(iii) any person or entity identified
under section 560.304 of title 31, Code
of Federal Regulations (relating to the
definition of the Government of Iran)
without the specific authorization of a
Federal department or agency.
(2) Information required.--If an issuer or an
affiliate of the issuer has engaged in any activity
described in paragraph (1), the issuer shall disclose a
detailed description of each such activity, including--
(A) the nature and extent of the activity;
(B) the gross revenues and net profits, if
any, attributable to the activity; and
(C) whether the issuer or the affiliate of
the issuer (as the case may be) intends to
continue the activity.
(3) Notice of disclosures.--If an issuer reports
under paragraph (1) that the issuer or an affiliate of
the issuer has knowingly engaged in any activity
described in that paragraph, the issuer shall
separately file with the Commission, concurrently with
the annual or quarterly report under subsection (a), a
notice that the disclosure of that activity has been
included in that annual or quarterly report that
identifies the issuer and contains the information
required by paragraph (2).
(4) Public disclosure of information.--Upon receiving
a notice under paragraph (3) that an annual or
quarterly report includes a disclosure of an activity
described in paragraph (1), the Commission shall
promptly--
(A) transmit the report to--
(i) the President;
(ii) the Committee on Foreign Affairs
and the Committee on Financial Services
of the House of Representatives; and
(iii) the Committee on Foreign
Relations and the Committee on Banking,
Housing, and Urban Affairs of the
Senate; and
(B) make the information provided in the
disclosure and the notice available to the
public by posting the information on the
Internet website of the Commission.
(5) Investigations.--Upon receiving a report under
paragraph (4) that includes a disclosure of an activity
described in paragraph (1) (other than an activity
described in subparagraph (D)(iii) of that paragraph),
the President shall--
(A) initiate an investigation into the
possible imposition of sanctions under the Iran
Sanctions Act of 1996 (Public Law 104-172; 50
U.S.C. 1701 note), section 104 or 105A of the
Comprehensive Iran Sanctions, Accountability,
and Divestment Act of 2010, an Executive order
specified in clause (i) or (ii) of paragraph
(1)(D), or any other provision of law relating
to the imposition of sanctions with respect to
Iran, as applicable; and
(B) not later than 180 days after initiating
such an investigation, make a determination
with respect to whether sanctions should be
imposed with respect to the issuer or the
affiliate of the issuer (as the case may be).
(6) Sunset.--The provisions of this subsection shall
terminate on the date that is 30 days after the date on
which the President makes the certification described
in section 401(a) of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 (22 U.S.C.
8551(a)).
* * * * * * *
----------
SECTION 503 OF THE UNITED STATES-KOREA FREE TRADE AGREEMENT
IMPLEMENTATION ACT
SEC. 503. RATE FOR MERCHANDISE PROCESSING FEES.
For the period beginning on December 1, 2015, and ending on
June 30, 2021, section 13031(a)(9) of the Consolidated Omnibus
Budget Reconciliation Act of 1985 (19 U.S.C. 58c(a)(9)) shall
be applied and administered--
(1) in subparagraph (A), by substituting ``0.3464''
for ``0.21''; and
(2) in subparagraph (B)(i), by substituting
``0.3464'' for ``0.21''.
B. Changes in Existing Law Proposed by the Bill, as Reported
In compliance with clause 3(e)(1)(B) of rule XIII of the
Rules of the House of Representatives, changes in existing law
proposed by the bill, as reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT OF 1985
* * * * * * *
SEC. 13031. FEES FOR CERTAIN CUSTOMS SERVICES.
(a) Schedule of Fees.--In addition to any other fee
authorized by law, the Secretary of the Treasury shall charge
and collect the following fees for the provision of customs
services in connection with the following:
(1) For the arrival of a commercial vessel of 100 net
tons or more, $397.
(2) For the arrival of a commercial truck, $5.
(3) For the arrival of each railroad car carrying
passengers or commercial freight, $7.50.
(4) For all arrivals made during a calendar year by a
private vessel or private aircraft, $25.
(5)(A) Subject to subparagraph (B), for the arrival
of each passenger aboard a commercial vessel or
commercial aircraft from a place outside the United
States (other than a place referred to in subsection
(b)(1)(A)(i) of this section), $5.
(B) For the arrival of each passenger aboard a
commercial vessel from a place referred to in
subsection (b)(1)(A)(i) of this section, $1.75.
(6) For each item of dutiable mail for which a
document is prepared by a customs officer, $5.
(7) For each customs broker permit held by an
individual, partnership, association, or corporate
customs broker, $125 per year.
(8) For the arrival of a barge or other bulk carrier
from Canada or Mexico, $100.
(9)(A) For the processing of merchandise that is
formally entered or released during any fiscal year, a
fee in an amount equal to 0.21 percent ad valorem,
unless adjusted under subparagraph (B).
(B)(i) The Secretary of the Treasury may adjust the
ad valorem rate specified in subparagraph (A) to an ad
valorem rate (but not to a rate of more than 0.21
percent nor less than 0.15 percent) and the amounts
specified in subsection (b)(8)(A)(i) (but not to more
than $485 nor less than $21) to rates and amounts which
would, if charged, offset the salaries and expenses
that will likely be incurred by the Customs Service in
the processing of such entries and releases during the
fiscal year in which such costs are incurred.
(ii) In determining the amount of any adjustment
under clause (i), the Secretary of the Treasury shall
take into account whether there is a surplus or deficit
in the fund established under subsection (f) with
respect to the provision of customs services for the
processing of formal entries and releases of
merchandise.
(iii) An adjustment may not be made under clause (i)
with respect to the fee charged during any fiscal year
unless the Secretary of the Treasury--
(I) not later than 45 days after the date of
the enactment of the Act providing full-year
appropriations for the Customs Service for that
fiscal year, publishes in the Federal Register
a notice of intent to adjust the fee under this
paragraph and the amount of such adjustment;
(II) provides a period of not less than 30
days following publication of the notice
described in subclause (I) for public comment
and consultation with the Committee on Finance
of the Senate and the Committee on Ways and
Means of the House of Representatives regarding
the proposed adjustment and the methodology
used to determine such adjustment;
(III) upon the expiration of the period
provided under subclause (II), notifies such
committees in writing regarding the final
determination to adjust the fee, the amount of
such adjustment, and the methodology used to
determine such adjustment; and
(IV) upon the expiration of the 15-day period
following the written notification described in
subclause (III), submits for publication in the
Federal Register notice of the final
determination regarding the adjustment of the
fee.
(iv) The 15-day period referred to in clause
(iii)(IV) shall be computed by excluding--
(I) the days on which either House is not in
session because of an adjournment of more than
3 days to a day certain or an adjournment of
the Congress sine die; and
(II) any Saturday and Sunday, not excluded
under subclause (I), when either House is not
in session.
(v) An adjustment made under this subparagraph shall
become effective with respect to formal entries and
releases made on or after the 15th calendar day after
the date of publication of the notice described in
clause (iii)(IV) and shall remain in effect until
adjusted under this subparagraph.
(C) Any fee charged under this paragraph, whether or
not adjusted under subparagraph (B), is subject to the
limitations in subsection (b)(8)(A).
(10) For the processing of merchandise that is
informally entered or released, other than at--
(A) a centralized hub facility,
(B) an express consignment carrier facility,
or
(C) a small airport or other facility to
which section 236 of the Trade and Tariff Act
of 1984 applies, if more than 25,000 informal
entries were cleared through such airport or
facility during the fiscal year preceding such
entry or release, a fee of--
(i) $2 if the entry or release is
automated and not prepared by customs
personnel;
(ii) $6 if the entry or release is
manual and not prepared by customs
personnel; or
(iii) $9 if the entry or release,
whether automated or manual, is
prepared by customs personnel.
For provisions relating to the informal entry
or release of merchandise at facilities
referred to in subparagraphs (A), (B), and (C),
see subsection (b)(9).
(b) Limitations on Fees.--(1)(A) Except as provided in
subsection (a)(5)(B) of this section, no fee may be charged
under subsection (a) of this section for customs services
provided in connection with--
(i) the arrival of any passenger whose journey--
(I) originated in a territory or possession
of the United States; or
(II) originated in the United States and was
limited to territories and possessions of the
United States;
(ii) the arrival of any railroad car the journey of
which originates and terminates in the same country,
but only if no passengers board or disembark from the
train and no cargo is loaded or unloaded from such car
while the car is within any country other than the
country in which such car originates and terminates;
(iii) the arrival of a ferry, except for a ferry
whose operations begin on or after August 1, 1999, and
that operates south of 27 degrees latitude and east of
89 degrees longitude; or
(iv) the arrival of any passenger on board a
commercial vessel traveling only between ports which
are within the customs territory of the United States.
(B) The exemption provided for in subparagraph (A) shall not
apply in the case of the arrival of any passenger on board a
commercial vessel whose journey originates and terminates at
the same place in the United States if there are no intervening
stops.
(C) The exemption provided for in subparagraph (A)(i) shall
not apply to fiscal years 1994, 1995, 1996, and 1997.
(2) No fee may be charged under subsection (a)(2) for the
arrival of a commercial truck during any calendar year after a
total of $100 in fees has been paid to the Secretary of the
Treasury for the provision of customs services for all arrivals
of such commercial truck during such calendar year.
(3) No fee may be charged under subsection (a)(3) for the
arrival of a railroad car whether passenger or freight during
any calendar year after a total of $100 in fees has been paid
to the Secretary of the Treasury for the provision of customs
services for all arrivals of such passenger or freight rail car
during such calendar year.
(4)(A) No fee may be charged under subsection (a)(5) with
respect to the arrival of any passenger--
(i) who is in transit to a destination outside the
customs territory of the United States, and
(ii) for whom customs inspectional services are not
provided.
(B) In the case of a commercial vessel making a single voyage
involving 2 or more United States ports with respect to which
the passengers would otherwise be charged a fee pursuant to
subsection (a)(5), such fee shall be charged only 1 time for
each passenger.
(5) No fee may be charged under subsection (a)(1) for the
arrival of--
(A) a vessel during a calendar year after a total of
$5,955 in fees charged under paragraph (1) or (8) of
subsection (a) has been paid to the Secretary of the
Treasury for the provision of customs services for all
arrivals of such vessel during such calendar year,
(B) any vessel which, at the time of the arrival, is
being used solely as a tugboat, or
(C) any barge or other bulk carrier from Canada or
Mexico.
(6) No fee may be charged under subsection (a)(8) for the
arrival of a barge or other bulk carrier during a calendar year
after a total of $1,500 in fees charged under paragraph (1) or
(8) of subsection (a) has been paid to the Secretary of the
Treasury for the provision of customs services for all arrivals
of such barge or other bulk carrier during such calendar year.
(7) No fee may be charged under paragraph (2), (3), or (4) of
subsection (a) for the arrival of any--
(A) commercial truck,
(B) railroad car, or
(C) private vessel,
that is being transported, at the time of the arrival, by any
vessel that is not a ferry.
(8)(A)(i) Subject to clause (ii), the fee charged under
subsection (a)(9) for the formal entry or release of
merchandise may not exceed $485 or be less than $25, unless
adjusted pursuant to subsection (a)(9)(B).
(ii) A surcharge of $3 shall be added to the fee determined
after application of clause (i) for any manual entry or release
of merchandise.
(B) No fee may be charged under subsection (a) (9) or (10)
for the processing of any article that is--
(i) provided for under any item in chapter 98 of the
Harmonized Tariff Schedule of the United States, except
subheading 9802.00.60 or 9802.00.80,
(ii) a product of an insular possession of the United
States, or
(iii) a product of any country listed in subdivision
(c)(ii)(B) or (c)(v) of general note 3 to such
Schedule.
(C) For purposes of applying subsection (a) (9) or (10)--
(i) expenses incurred by the Secretary of the
Treasury in the processing of merchandise do not
include costs incurred in--
(I) air passenger processing,
(II) export control, or
(III) international affairs, and
(ii) any reference to a manual formal or informal
entry or release includes any entry or release filed by
a broker or importer that requires the inputting of
cargo selectivity data into the Automated Commercial
System by customs personnel, except when--
(I) the broker or importer is certified as an
ABI cargo release filer under the Automated
Commercial System at any port within the United
States, or
(II) the entry or release is filed at ports
prior to the full implementation of the cargo
selectivity data system by the Customs Service
at such ports.
(D) The fee charged under subsection (a)(9) or (10) with
respect to the processing of merchandise shall--
(i) be paid by the importer of record of the
merchandise;
(ii) except as otherwise provided in this paragraph,
be based on the value of the merchandise as determined
under section 402 of the Tariff Act of 1930;
(iii) in the case of merchandise classified under
subheading 9802.00.60 of the Harmonized Tariff Schedule
of the United States, be applied to the value of the
foreign repairs or alterations to the merchandise;
(iv) in the case of merchandise classified under
heading 9802.00.80 of such Schedule, be applied to the
full value of the merchandise, less the cost or value
of the component United States products;
(v) in the case of agricultural products of the
United States that are processed and packed in a
foreign trade zone, be applied only to the value of
material used to make the container for such
merchandise, if such merchandise is subject to entry
and the container is of a kind normally used for
packing such merchandise; and
(vi) in the case of merchandise entered from a
foreign trade zone (other than merchandise to which
clause (v) applies), be applied only to the value of
the privileged or nonprivileged foreign status
merchandise under section 3 of the Act of June 18, 1934
(commonly known as the Foreign Trade Zones Act, 19
U.S.C. 81c).
With respect to merchandise that is classified under subheading
9802.00.60 or heading 9802.00.80 of such Schedule and is duty-
free, the Secretary may collect the fee charged on the
processing of the merchandise under subsection (a) (9) or (10)
on the basis of aggregate data derived from financial and
manufacturing reports used by the importer in the normal course
of business, rather than on the basis of entry-by-entry
accounting.
(E) For purposes of subsection (a) (9) and (10), merchandise
is entered or released, as the case may be, if the merchandise
is--
(i) permitted or released under section 448(b) of the
Tariff Act of 1930,
(ii) entered or released from customs custody under
section 484(a)(1)(A) of the Tariff Act of 1930, or
(iii) withdrawn from warehouse for consumption.
(9)(A) With respect to the processing of letters, documents,
records, shipments, merchandise, or any other item that is
valued at an amount that is $2,000 or less (or such higher
amount as the Secretary of the Treasury may set by regulation
pursuant to section 498 of the Tariff Act of 1930), except such
items entered for transportation and exportation or immediate
exportation at a centralized hub facility, an express
consignment carrier facility, or a small airport or other
facility, the following reimbursements and payments are
required:
(i) In the case of a small airport or other
facility--
(I) the reimbursement which such facility is
required to make during the fiscal year under
section 9701 of title 31, United States Code or
section 236 of the Trade and Tariff Act of
1984; and
(II) an annual payment by the facility to the
Secretary of the Treasury, which is in lieu of
the payment of fees under subsection (a)(10)
for such fiscal year, in an amount equal to the
reimbursement under subclause (I).
(ii) Notwithstanding subsection (e)(6) and subject to
the provisions of subparagraph (B), in the case of an
express consignment carrier facility or centralized hub
facility--
(I) $.66 per individual airway bill or bill
of lading; and
(II) if the merchandise is formally entered,
the fee provided for in subsection (a)(9), if
applicable.
(B)(i) Beginning in fiscal year 2004, the Secretary of the
Treasury may adjust (not more than once per fiscal year) the
amount described in subparagraph (A)(ii) to an amount that is
not less than $.35 and not more than $1.00 per individual
airway bill or bill of lading. The Secretary shall provide
notice in the Federal Register of a proposed adjustment under
the preceding sentence and the reasons therefor and shall allow
for public comment on the proposed adjustment.
(ii) Notwithstanding section 451 of the
Tariff Act of 1930, the payment required by
subparagraph (A)(ii) (I) or (II) shall be the
only payment required for reimbursement of the
Customs Service in connection with the
processing of an individual airway bill or bill
of lading in accordance with such subparagraph
and for providing services at express
consignment carrier facilities or centralized
hub facilities, except that the Customs Service
may require such facilities to cover expenses
of the Customs Service for adequate office
space, equipment, furnishings, supplies, and
security.
(iii)(I) The payment required by subparagraph
(A)(ii) and clause (ii) of this subparagraph
shall be paid on a quarterly basis by the
carrier using the facility to the Customs
Service in accordance with regulations
prescribed by the Secretary of the Treasury.
(II) 50 percent of the amount of payments
received under subparagraph (A)(ii) and clause
(ii) of this subparagraph shall, in accordance
with section 524 of the Tariff Act of 1930, be
deposited in the Customs User Fee Account and
shall be used to directly reimburse each
appropriation for the amount paid out of that
appropriation for the costs incurred in
providing services to express consignment
carrier facilities or centralized hub
facilities. Amounts deposited in accordance
with the preceding sentence shall be available
until expended for the provision of customs
services to express consignment carrier
facilities or centralized hub facilities.
(III) Notwithstanding section 524 of the
Tariff Act of 1930, the remaining 50 percent of
the amount of payments received under
subparagraph (A)(ii) and clause (ii) of this
subparagraph shall be paid to the Secretary of
the Treasury, which is in lieu of the payment
of fees under subsection (a)(10) of this
section.
(C) For purposes of this paragraph:
(i) The terms ``centralized hub facility'' and
``express consignment carrier facility'' have the
respective meanings that are applied to such terms in
part 128 of chapter I of title 19, Code of Federal
Regulations. Nothing in this paragraph shall be
construed as prohibiting the Secretary of the Treasury
from processing merchandise that is informally entered
or released at any centralized hub facility or express
consignment carrier facility during the normal
operating hours of the Customs Service, subject to
reimbursement and payment under subparagraph (A).
(ii) The term ``small airport or other facility''
means any airport or facility to which section 236 of
the Trade and Tariff Act of 1984 applies, if more than
25,000 informal entries were cleared through such
airport or facility during the preceding fiscal year.
(10)(A) The fee charged under subsection (a) (9) or (10) with
respect to goods of Canadian origin (as determined under
section 202 of the United States-Canada Free-Trade Agreement
Implementation Act of 1988) when the United States-Canada Free-
Trade Agreement is in force shall be in accordance with article
403 of that Agreement.
(B) For goods qualifying under the rules of origin set out in
section 202 of the North American Free Trade Agreement
Implementation Act, the fee under subsection (a) (9) or (10)--
(i) may not be charged with respect to goods that
qualify to be marked as goods of Canada pursuant to
Annex 311 of the North American Free Trade Agreement,
for such time as Canada is a NAFTA country, as defined
in section 2(4) of such Implementation Act; and
(ii) may not be increased after December 31, 1993,
and may not be charged after June 29, 1999, with
respect to goods that qualify to be marked as goods of
Mexico pursuant to such Annex 311, for such time as
Mexico is a NAFTA country.
Any service for which an exemption from such fee is provided by
reason of this paragraph may not be funded with money contained
in the Customs User Fee Account.
(11) No fee may be charged under subsection (a) (9) or (10)
with respect to products of Israel if an exemption with respect
to the fee is implemented under section 112 of the Customs and
Trade Act of 1990.
(12) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 202 of the United States-Chile Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(13) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 202 of the United States-Singapore Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(14) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 203 of the United States-Australia Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(15) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 203 of the Dominican Republic-Central America-United
States Free Trade Agreement Implementation Act. Any service for
which an exemption from such fee is provided by reason of this
paragraph may not be funded with money contained in the Customs
User Fee Account.
(16) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 202 of the United States-Bahrain Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(17) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 202 of the United States-Oman Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(18) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 203 of the United States-Peru Trade Promotion Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(19) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 202 of the United States-Korea Free Trade Agreement
Implementation Act. Any service for which an exemption from
such fee is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee Account.
(20) No fee may be charged under subsection (a) (9) or (10)
with respect to goods that qualify as originating goods under
section 203 of the United States-Colombia Trade Promotion
Agreement Implementation Act. Any service for which an
exemption from such fee is provided by reason of this paragraph
may not be funded with money contained in the Customs User Fee
Account.
(21) No fee may be charged under subsection (a)(9) or (10)
with respect to goods that qualify as originating goods under
section 203 of the United States-Panama Trade Promotion
Agreement Implementation Act. Any service for which an
exemption from such fee is provided by reason of this paragraph
may not be funded with money contained in the Customs User Fee
Account.
(c) Definitions.--For purposes of this section--
(1) The term ``ferry'' means any vessel which is
being used--
(A) to provide transportation only between
places that are no more than 300 miles apart,
and
(B) to transport only--
(i) passengers, or
(ii) vehicles, or railroad cars,
which are being used, or have been
used, in transporting passengers or
goods.
(2) The term ``arrival'' means arrival at a port of
entry in the customs territory of the United States.
(3) The term ``customs territory of the United
States'' has the meaning given to such term by general
note 2 of the Harmonized Tariff Schedule of the United
States.
(4) The term ``customs broker permit'' means a permit
issued under section 641(c) of the Tariff Act of 1930
(19 U.S.C. 1641(c)).
(5) The term ``barge or other bulk carrier'' means
any vessel which--
(A) is not self-propelled, or
(B) transports fungible goods that are not
packaged in any form.
(d) Collection.--(1) Each person that issues a document or
ticket to an individual for transportation by a commercial
vessel or commercial aircraft into the customs territory of the
United States shall--
(A) collect from that individual the fee charged
under subsection (a)(5) at the time the document or
ticket is issued; and
(B) separately identify on that document or ticket
the fee charged under subsection (a)(5) as a Federal
inspection fee.
(2) If--
(A) a document or ticket for transportation of a
passenger into the customs territory of the United
States is issued in a foreign country; and
(B) the fee charged under subsection (a)(5) is not
collected at the time such document or ticket is
issued;
the person providing transportation to such passenger shall
collect such fee at the time such passenger departs from the
customs territory of the United States and shall provide such
passenger a receipt for the payment of such fee.
(3) The person who collects fees under paragraph (1) or (2)
shall remit those fees to the Secretary of the Treasury at any
time before the date that is 31 days after the close of the
calendar quarter in which the fees are collected.
(4)(A) Notice of the date on which payment of the fee imposed
by subsection (a)(7) is due shall be published by the Secretary
of the Treasury in the Federal Register by no later than the
date that is 60 days before such due date.
(B) A customs broker permit may be revoked or suspended for
nonpayment of the fee imposed by subsection (a)(7) only if
notice of the date on which payment of such fee is due was
published in the Federal Register at least 60 days before such
due date.
(C) The customs broker's license issued under section 641(b)
of the Tariff Act of 1930 (19 U.S.C. 1641(b)) may not be
revoked or suspended merely by reason of nonpayment of the fee
imposed under subsection (a)(7).
(e) Provision of Customs Services.--
(1) Notwithstanding section 451 of the Tariff Act of 1930 (19
U.S.C. 1451) or any other provision of law (other than
paragraph (2)), the customs services required to be provided to
passengers upon arrival in the United States shall be
adequately provided in connection with scheduled airline
flights at customs serviced airports when needed and at no cost
(other than the fees imposed under subsection (a)) to airlines
and airline passengers.
(2)(A) This subsection shall not apply with respect to any
airport to which section 236 of the Trade and Tariff Act of
1984 (19 U.S.C. 58b) applies.
(B) Subparagraph (C) of paragraph (6) shall not apply with
respect to any foreign trade zone or subzone that is located
at, or in the vicinity of, an airport to which section 236 of
the Trade and Tariff Act of 1984 applies.
(3) Notwithstanding section 451 of the Tariff Act of 1930 (19
U.S.C. 1451) or any other provision of law--
(A) the customs services required to be provided to
passengers upon arrival in the United States shall be
adequately provided in connection with scheduled
airline flights when needed at places located outside
the customs territory of the United States at which a
customs officer is stationed for the purpose of
providing such customs services, and
(B) other than the fees imposed under subsection (a),
the airlines and airline passengers shall not be
required to reimburse the Secretary of the Treasury for
the costs of providing overtime customs inspectional
services at such places.
(4) Notwithstanding any other provision of law, all customs
services (including, but not limited to, normal and overtime
clearance and preclearance services) shall be adequately
provided, when requested, for--
(A) the clearance of any commercial vessel, vehicle,
or aircraft or its passengers, crew, stores, material,
or cargo arriving, departing, or transiting the United
States;
(B) the preclearance at any customs facility outside
the United States of any commercial vessel, vehicle or
aircraft or its passengers, crew, stores, material, or
cargo; and
(C) the inspection or release of commercial cargo or
other commercial shipments being entered into, or
withdrawn from, the customs territory of the United
States.
(5) For purposes of this subsection, customs services shall
be treated as being ``adequately provided'' if such of those
services that are necessary to meet the needs of parties
subject to customs inspection are provided in a timely manner
taking into account factors such as--
(A) the unavoidability of weather, mechanical, and
other delays;
(B) the necessity for prompt and efficient passenger
and baggage clearance;
(C) the perishability of cargo;
(D) the desirability or unavoidability of late night
and early morning arrivals from various time zones;
(E) the availability (in accordance with regulations
prescribed under subsection (g)(2)) of customs
personnel and resources; and
(F) the need for specific enforcement checks.
(6) Notwithstanding any other provision of law except
paragraph (2), during any period when fees are authorized under
subsection (a), no charges, other than such fees, may be
collected--
(A) for any--
(i) cargo inspection, clearance, or other
customs activity, expense, or service performed
(regardless whether performed outside of normal
business hours on an overtime basis), or
(ii) customs personnel provided,
in connection with the arrival or departure of any
commercial vessel, vehicle, or aircraft, or its
passengers, crew, stores, material, or cargo, in the
United States;
(B) for any preclearance or other customs activity,
expense, or service performed, and any customs
personnel provided, outside the United States in
connection with the departure of any commercial vessel,
vehicle, or aircraft, or its passengers, crew, stores,
material, or cargo, for the United States; or
(C) in connection with--
(i) the activation or operation (including
Customs Service supervision) of any foreign
trade zone or subzone established under the Act
of June 18, 1934 (commonly known as the Foreign
Trade Zones Act, 19 U.S.C. 81a et seq.), or
(ii) the designation or operation (including
Customs Service supervision) of any bonded
warehouse under section 555 of the Tariff Act
of 1930 (19 U.S.C. 1555).
(f) Disposition of Fees.--(1) There is established in the
general fund of the Treasury a separate account which shall be
known as the ``Customs User Fee Account''. Notwithstanding
section 524 of the Tariff Act of 1930 (19 U.S.C. 1524), there
shall be deposited as offsetting receipts into the Customs User
Fee Account all fees collected under subsection (a) except--
(A) the portion of such fees that is required under
paragraph (3) for the direct reimbursement of
appropriations, and
(B) amounts deposited into the Customs Commercial and
Homeland Security Automation Account under paragraph
(4).
(2) Except as otherwise provided in this subsection, all
funds in the Customs User Fee Account shall be available, to
the extent provided for in appropriations Acts, to pay the
costs (other than costs for which direct reimbursement under
paragraph (3) is required) incurred by the United States
Customs Service in conducting customs revenue functions as
defined in section 415 of the Homeland Security Act of 2002
(other than functions performed by the Office of International
Affairs referred to in section 415(8) of that Act), and for
automation (including the Automation Commercial Environment
computer system), and for no other purpose. To the extent that
funds in the Customs User Fee Account are insufficient to pay
the costs of such customs revenue functions, customs duties in
an amount equal to the amount of such insufficiency shall be
available, to the extent provided for in appropriations Acts,
to pay the costs of such customs revenue functions in the
amount of such insufficiency, and shall be available for no
other purpose. The provisions of the first and second sentences
of this paragraph specifying the purposes for which amounts in
the Customs User Fee Account may be made available shall not be
superseded except by a provision of law which specifically
modifies or supersedes such provisions. So long as there is a
surplus of funds in the Customs User Fee Account, the Secretary
of the Treasury may not reduce personnel staffing levels for
providing commercial clearance and preclearance services.
(3)(A) The Secretary of the Treasury, in accordance with
section 524 of the Tariff Act of 1930 and subject to
subparagraph (B), shall directly reimburse, from the fees
collected under subsection (a) (other than the fees under
subsection (a) (9) and (10) and the excess fees determined by
the Secretary under paragraph (4)), each appropriation for the
amount paid out of that appropriation for the costs incurred by
the Secretary--
(i) in--
(I) paying overtime compensation under
section 5(a) of the Act of February 13, 1911,
(II) paying premium pay under section 5(b) of
the Act of February 13, 1911, but the amount
for which reimbursement may be made under this
subclause may not, for any fiscal year, exceed
the difference between the total cost of all
the premium pay for such year calculated under
section 5(b) and the cost of the night and
holiday premium pay that the Customs Service
would have incurred for the same inspectional
work on the day before the effective date of
section 13813 of the Omnibus Budget
Reconciliation Act of 1993,
(III) paying agency contributions to the
Civil Service Retirement and Disability Fund to
match deductions from the overtime compensation
paid under subclause (I),
(IV) providing all preclearance services for
which the recipients of such services are not
required to reimburse the Secretary of the
Treasury, and
(V) paying foreign language proficiency
awards under section 13812(b) of the Omnibus
Budget Reconciliation Act of 1993,
(ii) to the extent funds remain available after
making reimbursements under clause (i), in providing
salaries for full-time and part-time inspectional
personnel and equipment that enhance customs services
for those persons or entities that are required to pay
fees under paragraphs (1) through (8) of subsection (a)
(distributed on a basis proportionate to the fees
collected under paragraphs (1) through (8) of
subsection (a), and
(iii) to the extent funds remain available after
making reimbursements under clause (ii), in providing
salaries for up to 50 full-time equivalent inspectional
positions to provide preclearance services.
The transfer of funds required under subparagraph (C)(iii) has
priority over reimbursements under this subparagraph to carry
out subclauses (II), (III), (IV), and (V) of clause (i). Funds
described in clause (ii) shall only be available to reimburse
costs in excess of the highest amount appropriated for such
costs during the period beginning with fiscal year 1990 and
ending with the current fiscal year.
(B) Reimbursement of appropriations under this paragraph--
(i) shall be subject to apportionment or similar
administrative practices;
(ii) shall be made at least quarterly; and
(iii) to the extent necessary, may be made on the
basis of estimates made by the Secretary of the
Treasury and adjustments shall be made in subsequent
reimbursements to the extent that the estimates were in
excess of, or less than, the amounts required to be
reimbursed.
(C)(i) For fiscal year 1991 and subsequent fiscal years, the
amount required to reimburse costs described in subparagraph
(A)(i) shall be projected from actual requirements, and only
the excess of collections over such projected costs for such
fiscal year shall be used as provided in subparagraph (A)(ii).
(ii) The excess of collections over inspectional overtime and
preclearance costs (under subparagraph (A)(i)) reimbursed for
fiscal years 1989 and 1990 shall be available in fiscal year
1991 and subsequent fiscal years for the purposes described in
subparagraph (A)(ii), except that $30,000,000 of such excess
shall remain without fiscal year limitation in a contingency
fund and, in any fiscal year in which receipts are insufficient
to cover the costs described in subparagraph (A) (i) and (ii),
shall be used for--
(I) the costs of providing the services described in
subparagraph (A)(i), and
(II) after the costs described in subclause (I) are
paid, the costs of providing the personnel and
equipment described in subparagraph (A)(ii) at the
preceding fiscal year level.
(iii) For each fiscal year, the Secretary of the Treasury
shall calculate the difference between--
(I) the estimated cost for overtime compensation that
would have been incurred during that fiscal year for
inspectional services if section 5 of the Act of
February 13, 1911 (19 U.S.C. 261 and 267), as in effect
before the enactment of section 13811 of the Omnibus
Budget Reconciliation Act of 1993, had governed such
costs, and
(II) the actual cost for overtime compensation,
premium pay, and agency retirement contributions that
is incurred during that fiscal year in regard to
inspectional services under section 5 of the Act of
February 13, 1911, as amended by section 13811 of the
Omnibus Budget Reconciliation Act of 1993, and under
section 8331(3) of title 5, United States Code, as
amended by section 13812(a)(1) of such Act of 1993,
plus the actual cost that is incurred during that
fiscal year for foreign language proficiency awards
under section 13812(b) of such Act of 1993,
and shall transfer from the Customs User Fee Account to the
General Fund of the Treasury an amount equal to the difference
calculated under this clause, or $18,000,000, whichever amount
is less. Transfers shall be made under this clause at least
quarterly and on the basis of estimates to the same extent as
are reimbursements under subparagraph (B)(iii).
(D) Nothing in this paragraph shall be construed to preclude
the use of appropriated funds, from sources other than the fees
collected under subsection (a), to pay the costs set forth in
clauses (i), (ii), and (iii) of subparagraph (A).
(4)(A) There is created within the general fund of the
Treasury a separate account that shall be known as the
``Customs Commercial and Homeland Security Automation
Account''. In each of fiscal years 2003, 2004, and 2005 there
shall be deposited into the Account from fees collected under
subsection (a)(9)(A), $350,000,000.
(B) There is authorized to be appropriated from the Account
in fiscal years [2003 through 2005 such amounts as are
available in that Account for the development] 2016 through
2018 not less than $153,736,000 to complete the development and
implementation, establishment, and implementation of the
Automated Commercial Environment computer system for the
processing of merchandise that is entered or released and for
other purposes related to the functions of the Department of
Homeland Security. Amounts appropriated pursuant to this
subparagraph are authorized to remain available until expended.
(C) In adjusting the fee imposed by subsection (a)(9)(A) for
fiscal year 2006, the Secretary of the Treasury shall reduce
the amount estimated to be collected in fiscal year 2006 by the
amount by which total fees deposited to the Account during
fiscal years 2003, 2004, and 2005 exceed total appropriations
from that Account.
(5) Of the amounts collected in fiscal year 1999 under
paragraphs (9) and (10) of subsection (a), $50,000,000 shall be
available to the Customs Service, subject to appropriations
Acts, for automated commercial systems. Amounts made available
under this paragraph shall remain available until expended.
(g) Regulations and Enforcement.--(1) The Secretary of the
Treasury may prescribe such rules and regulations as may be
necessary to carry out the provisions of this section.
Regulations issued by the Secretary of the Treasury under this
subsection with respect to the collection of the fees charged
under subsection (a)(5) and the remittance of such fees to the
Treasury of the United States shall be consistent with the
regulations issued by the Secretary of the Treasury for the
collection and remittance of the taxes imposed by subchapter C
of chapter 33 of the Internal Revenue Code of 1954, but only to
the extent the regulations issued with respect to such taxes do
not conflict with the provisions of this section.
(2) Except to the extent otherwise provided in regulations,
all administrative and enforcement provisions of customs laws
and regulations, other than those laws and regulations relating
to drawback, shall apply with respect to any fee prescribed
under subsection (a) of this section, and with respect to
persons liable therefor, as if such fee is a customs duty. For
purposes of the preceding sentence, any penalty expressed in
terms of a relationship to the amount of the duty shall be
treated as not less than the amount which bears a similar
relationship to the amount of the fee assessed. For purposes of
determining the jurisdiction of any court of the United States
or any agency of the United States, any fee prescribed under
subsection (a) of this section shall be treated as if such fee
is a customs duty.
(h) Conforming Amendments.--(1) Subsection (i) of section 305
of the Rail Passenger Service Act (45 U.S.C. 545(i)) is amended
by striking out the last sentence thereof.
(2) Subsection (e) of section 53 of the Airport and Airway
Development Act of 1970 (49 U.S.C. 1741(e)) is repealed.
(i) Effect on Other Authority.--Except with respect to
customs services for which fees are imposed under subsection
(a), nothing in this section shall be construed as affecting
the authority of the Secretary of the Treasury to charge fees
under section 214(b) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 58a).
(j) Effective Dates.--(1) Except as otherwise provided in
this subsection, the provisions of this section, and the
amendments and repeals made by this section, shall apply with
respect to customs services rendered after the date that is 90
days after the date of enactment of this Act.
(2) Fees may be charged under subsection (a)(5) only with
respect to customs services rendered in regard to arriving
passengers using transportation for which documents or tickets
were issued after the date that is 90 days after such date of
enactment.
(3)(A) Fees may not be charged under paragraphs (9) and (10)
of subsection (a) after September 30, 2024.
(B)(i) Subject to clause (ii), Fees may not be charged under
paragraphs (1) through (8) of subsection (a) after September
30, 2024.
(ii) In fiscal year 2006 and in each succeeding fiscal year
for which fees under paragraphs (1) through (8) of subsection
(a) are authorized--
(I) the Secretary of the Treasury shall charge fees
under each such paragraph in amounts that are
reasonably related to the costs of providing customs
services in connection with the activity or item for
which the fee is charged under such paragraph, except
that in no case may the fee charged under any such
paragraph exceed by more than 10 percent the amount
otherwise prescribed by such paragraph;
(II) the amount of fees collected under such
paragraphs may not exceed, in the aggregate, the
amounts paid in that fiscal year for the costs
described in subsection (f)(3)(A) incurred in providing
customs services in connection with the activity or
item for which the fees are charged under such
paragraphs;
(III) a fee may not be collected under any such
paragraph except to the extent such fee will be
expended to pay the costs described in subsection
(f)(3)(A) incurred in providing customs services in
connection with the activity or item for which the fee
is charged under such paragraph; and
(IV) any fee collected under any such paragraph shall
be available for expenditure only to pay the costs
described in subsection (f)(3)(A) incurred in providing
customs services in connection with the activity or
item for which the fee is charged under such paragraph.
(C) Fees may be charged under paragraphs (9) and (10) of
subsection (a) during the period beginning on July 8, 2025, and
ending on July 28, 2025.
(k) Advisory Committee.--The Commissioner of Customs shall
establish an advisory committee whose membership shall consist
of representatives from the airline, cruise ship, and other
transportation industries who may be subject to fees under
subsection (a). The advisory committee shall not be subject to
termination under section 14 of the Federal Advisory Committee
Act. The advisory committee shall meet on a periodic basis and
shall advise the Commissioner on issues related to the
performance of the inspectional services of the United States
Customs Service. Such advice shall include, but not be limited
to, such issues as the time periods during which such services
should be performed, the proper number and deployment of
inspection officers, the level of fees, and the appropriateness
of any proposed fee. The Commissioner shall give consideration
to the views of the advisory committee in the exercise of his
or her duties.
* * * * * * *
----------
SECTION 311 OF THE CUSTOMS BORDER SECURITY ACT OF 2002
SEC. 311. AUTHORIZATION OF APPROPRIATIONS FOR NONCOMMERCIAL OPERATIONS,
COMMERCIAL OPERATIONS, AND AIR AND MARINE
INTERDICTION
(a) Noncommercial Operations. --Section 301(b)(1) of the
Customs Procedural Reform and Simplification Act of 1978 (19
U.S.C. 2075(b)(1)) is amended--
(1) by striking subparagraph (A), and inserting the
following:
``(A) $1,365,456,000 for fiscal year 2003.'';
and
(2) by striking subparagraph (B), and inserting the
following:
``(B) $1,399,592,400 for fiscal year 2004.''.
(b) Commercial Operations.--
(1) In general. --Section 301(b)(2)(A) of the Customs
Procedural Reform and Simplification Act of 1978 (19
U.S.C. 2075(b)(2)(A)) is amended--
(A) by striking clause (i), and inserting the
following:
``(i) $1,642,602,000 for fiscal year 2003.'';
and
(B) by striking clause (ii), and inserting
the following:
``(ii) $1,683,667,050 for fiscal year
2004.''.
[(3) Reports.--Not later than 90 days after the date
of the enactment of this Act, and not later than the
end of each subsequent 90-day period, the Commissioner
of Customs shall prepare and submit to the Committee on
Ways and Means of the House of Representatives and the
Committee on Finance of the Senate a report
demonstrating that the development and establishment of
the Automated Commercial Environment computer system is
being carried out in a cost-effective manner and meets
the modernization requirements of title VI of the North
American Free Trade Agreement Implementation Act.]
(3) Report.--
(A) In general.--Not later than December 31,
2016, the Commissioner responsible for U.S.
Customs and Border Protection shall submit to
the Committee on Appropriations and the
Committee on Finance of the Senate and the
Committee on Appropriations and the Committee
on Ways and Means of the House of
Representatives a report detailing--
(i) U.S. Customs and Border
Protection's incorporation of all core
trade processing capabilities,
including cargo release, entry summary,
cargo manifest, cargo financial data,
and export data elements into the
Automated Commercial Environment
computer system authorized under
section 13031(f)(4) of the Consolidated
Omnibus Budget and Reconciliation Act
of 1985 (19 U.S.C. 58c(f)(4)) not later
than September 30, 2016, to conform
with the admissibility criteria of
agencies participating in the
International Trade Data System
identified pursuant to section
411(d)(4)(A)(iii) of the Tariff Act of
1930;
(ii) U.S. Customs and Border
Protection's remaining priorities for
processing entry summary data elements,
cargo manifest data elements, cargo
financial data elements, and export
elements in the Automated Commercial
Environment computer system, and the
objectives and plans for implementing
these remaining priorities;
(iii) the components of the National
Customs Automation Program specified in
subsection (a)(2) of section 411 of the
Tariff Act of 1930 that have not been
implemented; and
(iv) any additional components of the
National Customs Automation Program
initiated by the Commissioner to
complete the development,
establishment, and implementation of
the Automated Commercial Environment
computer system.
(B) Update of reports.--Not later than
September 30, 2017, the Commissioner shall
submit to the Committee on Appropriations and
the Committee on Finance of the Senate and the
Committee on Appropriations and the Committee
on Ways and Means of the House of
Representatives an updated report addressing
each of the matters referred to in subparagraph
(A), and--
(i) evaluating the effectiveness of
the implementation of the Automated
Commercial Environment computer system;
and
(ii) detailing the percentage of
trade processed in the Automated
Commercial Environment every month
since September 30, 2016.
(c) Air and Marine Interdiction. Section 301(b)(3) of the
Customs Procedural Reform and Simplification Act of 1978 (19
U.S.C. 2075(b)(3)) is amended--
(1) by striking subparagraph (A), and inserting the
following:
``(A) $170,829,000 for fiscal year 2003.'';
and
(2) by striking subparagraph (B), and inserting the
following:
``(B) $175,099,725 for fiscal year 2004.''.
(d) Submission of Out-Year Budget Projections. Section 301(a)
of the Customs Procedural Reform and Simplification Act of 1978
(19 U.S.C. 2075(a)) is amended by adding at the end the
following:
``(3) By not later than the date on which the President
submits to Congress the budget of the United States Government
for a fiscal year, the Commissioner of Customs shall submit to
the Committee on Ways and Means of the House of Representatives
and the Committee on Finance of the Senate the projected amount
of funds for the succeeding fiscal year that will be necessary
for the operations of the Customs Service as provided for in
subsection (b).''.
----------
TARIFF ACT OF 1930
* * * * * * *
TITLE III--SPECIAL PROVISIONS
* * * * * * *
Part II--United States Tariff Commission
* * * * * * *
SEC. 307. CONVICT MADE GOODS--IMPORTATION PROHIBITED.
All goods, wares, articles, and merchandise mined, produced
or manufactured wholly or in part in any foreign country by
convict labor or/and forced labor or/and indentured labor under
penal sanctions shall not be entitled to entry at any of the
ports of the United States, and the importation thereof is
hereby prohibited, and the Secretary of the Treasury is
authorized and directed to prescribe such regulations as may be
necessary for the enforcement of this provision. [The
provisions of this section relating to goods, wares, articles,
and merchandise mined, produced, or manufactured by forced
labor or/and indentured labor, shall take effect on January 1,
1932; but in no case shall such provisions be applicable to
goods, wares, articles, or merchandise so mined, produced, or
manufactured which are not mined, produced, or manufactured in
such quantities in the United States as to meet the consumptive
demands of the United States.]
``Forced labor,'' as herein used, shall mean all work or
service which is exacted from any person under the menace of
any penalty for its nonperformance and for which the worker
does not offer himself voluntarily. For purposes of this
section, the term ``forced labor or/and indentured labor''
includes forced or indentured child labor.
* * * * * * *
SEC. 313. DRAWBACK AND REFUNDS.
(a) Articles Made From Imported Merchandise.--Upon the
exportation or destruction under customs supervision of
articles manufactured or produced in the United States with the
use of imported merchandise, provided that those articles have
not been used prior to such exportation or destruction, [the
full amount of the duties paid upon the merchandise so used
shall be refunded as drawback, less 1 per centum of such
duties, except that such] an amount calculated pursuant to
regulations prescribed by the Secretary of the Treasury under
subsection (l) shall be refunded as drawback, except that
duties shall not be so refunded upon the exportation or
destruction of flour or by-products produced from imported
wheat. Where two or more products result from the manipulation
of imported merchandise, the drawback shall be distributed to
the several products in accordance with their relative values
at the time of separation.
(b) Substitution For Drawback Purposes.--
(1) In general._ If imported duty-paid merchandise
[and any other merchandise (whether imported or
domestic) of the same kind and quality are] or
merchandise classifiable under the same 8-digit HTS
subheading number as such imported merchandise is used
in the manufacture or production of articles within a
period not to exceed [three years] 5 years from [the
receipt of such imported merchandise by the
manufacturer or producer of such articles] the date of
importation of such imported merchandise, there shall
be allowed upon the exportation, or destruction under
customs supervision, of any such articles, or articles
classifiable under the same 8-digit HTS subheading
number as such articles, notwithstanding the fact that
none of the imported merchandise may actually have been
used in the manufacture or production of the exported
or destroyed articles, [an amount of drawback equal to
that which would have been allowable had the
merchandise used therein been imported, but only if
those articles have not been used prior to such
exportation or destruction; but the total amount of
drawback allowed upon the exportation or destruction
under customs supervision of such articles, together
with the total amount of drawback allowed in respect of
such imported merchandise under any other provision of
law, shall not exceed 99 per centum of the duty paid on
such imported merchandise.] an amount calculated
pursuant to regulations prescribed by the Secretary of
the Treasury under subsection (l), but only if those
articles have not been used prior to such exportation
or destruction.
(2) Requirements relating to transfer of
merchandise.--
(A) Manufacturers and producers.--Drawback
shall be allowed under paragraph (1) with
respect to an article manufactured or produced
using imported merchandise or other merchandise
classifiable under the same 8-digit HTS
subheading number as such imported merchandise
only if the manufacturer or producer of the
article received such imported merchandise or
such other merchandise, directly or indirectly,
from the importer.
(B) Exporters and destroyers.--Drawback shall
be allowed under paragraph (1) with respect to
a manufactured or produced article that is
exported or destroyed only if the exporter or
destroyer received that article or an article
classifiable under the same 8-digit HTS
subheading number as that article, directly or
indirectly, from the manufacturer or producer.
(C) Evidence of transfer.--Transfers of
merchandise under subparagraph (A) and
transfers of articles under subparagraph (B)
may be evidenced by business records kept in
the normal course of business and no additional
certificates of transfer or manufacture shall
be required.
(3) Submission of bill of materials or formula.--
(A) In general.--Drawback shall be allowed
under paragraph (1) with respect to an article
manufactured or produced using imported
merchandise or other merchandise classifiable
under the same 8-digit HTS subheading number as
such imported merchandise only if the person
making the drawback claim submits with the
claim a bill of materials or formula
identifying the merchandise and article by the
8-digit HTS subheading number and the quantity
of the merchandise.
(B) Bill of materials and formula defined.--
In this paragraph, the terms ``bill of
materials'' and ``formula'' mean records kept
in the normal course of business that identify
each component incorporated into a manufactured
or produced article or that identify the
quantity of each element, material, chemical,
mixture, or other substance incorporated into a
manufactured article.
(4) Special rule for sought chemical elements.--
(A) In general.--For purposes of paragraph
(1), a sought chemical element may be--
(i) considered imported merchandise,
or merchandise classifiable under the
same 8-digit HTS subheading number as
such imported merchandise, used in the
manufacture or production of an article
as described in paragraph (1); and
(ii) substituted for source material
containing that sought chemical
element, without regard to whether the
sought chemical element and the source
material are classifiable under the
same 8-digit HTS subheading number, and
apportioned quantitatively, as
appropriate.
(B) Sought chemical element defined.--In this
paragraph, the term ``sought chemical element''
means an element listed in the Periodic Table
of Elements that is imported into the United
States or a chemical compound consisting of
those elements, either separately in elemental
form or contained in source material.
(c) Merchandise Not Conforming to Sample or Specifications.--
(1) Conditions for drawback.--Upon the exportation or
destruction under the supervision of the Customs
Service of articles or merchandise--
(A) upon which the duties have been paid,
(B) which has been entered or withdrawn for
consumption,
(C) which is--
(i) not conforming to sample or
specifications, shipped without the
consent of the consignee, or determined
to be defective as of the time of
importation, or
(ii) ultimately sold at retail by the
importer, or the person who received
the merchandise from the importer
[under a certificate of delivery], and
for any reason returned to and accepted
by the importer, or the person who
received the merchandise from the
importer [under a certificate of
delivery], and
(D) which, within [3] 5 years after the date
of importation or withdrawal, as applicable,
has been exported or destroyed under the
supervision of [the Customs Service] U.S.
Customs and Border Protection,
[the full amount of the duties paid upon such
merchandise, less 1 percent,] an amount calculated
pursuant to regulations prescribed by the Secretary of
the Treasury under subsection (l) shall be refunded as
drawback.
(2) Designation of import entries.--For purposes of
paragraph (1)(C)(ii), drawback may be claimed by
designating an entry of merchandise that was imported
within 1 year before the date of exportation or
destruction of the merchandise described in paragraph
(1) (A) and (B) under the supervision of [the Customs
Service] U.S. Customs and Border Protection. The
merchandise designated for drawback must be identified
in the import documentation with the same eight-digit
classification number and specific product identifier
(such as part number, SKU, or product code) as the
returned merchandise.
[(3) When drawback certificates not required.--For
purposes of this subsection, drawback certificates are
not required if the drawback claimant and the importer
are the same party, or if the drawback claimant is a
drawback successor to the importer as defined in
subsection (s)(3).]
(3) Evidence of transfers.--Transfers of merchandise
under paragraph (1) may be evidenced by business
records kept in the normal course of business and no
additional certificates of transfer shall be required.
(d) Flavoring Extracts and Medicinal, or Toilet
Preparations.--Upon the exportation of flavoring extracts,
medicinal or toilet preparations (including perfumery)
manufactured or produced in the United States in part from
domestic alcohol on which an internal-revenue tax has been
paid, there shall be allowed a drawback equal in amount to the
tax found to have been paid on the alcohol so used.
Upon the exportation of bottled distilled spirits and wines
manufactured or produced in the United States on which an
internal-revenue tax has been paid or determined, there shall
be allowed, under regulations to be prescribed by the
Commissioner of Internal Revenue, with the approval of the
Secretary of the Treasury, a drawback equal in amount to the
tax found to have been paid or determined on such bottled
distilled spirits and wines. In the case of distilled spirits,
the preceding sentence shall not apply unless the claim for
drawback is filed by the bottler or packager of the spirits and
unless such spirits have been stamped or restamped, and marked,
especially for export, under regulations prescribed by the
Commissioner of Internal Revenue, with the approval of the
Secretary of the Treasury.
(e) Imported Salt for Curing Fish.--Imported salt in bond may
be used in curing fish taken by vessels licensed to engage in
the fisheries, and in curing fish on the shores of the
navigable waters of the United States, whether such fish are
taken by licensed or unlicensed vessels, and upon proof that
the salt has been used for either of such purposes, the duties
on the same shall be remitted.
(f) Exportation of Meats Cured with Imported Salt.--Upon the
exportation of meats, whether packed or smoked, which have been
cured in the United States with imported salt, there shall be
refunded, upon satisfactory proof that such meats have been
cured with imported salt, the duties paid on the salt so used
in curing such exported meats, in amounts not less than $100.
(g) Materials for Construction and Equipment or Vessels Built
for Foreigners.--The provisions of this section shall apply to
materials imported and used in the construction and equipment
of vessels built for foreign account and ownership, or for the
government of any foreign country, notwithstanding that such
vessels may not within the strict meaning of the term be
articles exported.
(h) Upon the exportation of jet aircraft engines manufactured
or produced abroad that have been overhauled, repaired,
rebuilt, or reconditioned in the United States with the use of
imported merchandise, including parts, there shall be refunded,
upon satisfactory proof that such imported merchandise has been
so used, the duties which have been paid thereon, in amounts
not less than $100.
[(i) Time Limitation on Exportation.--Unless otherwise
provided for in this section, no drawback shall be allowed
under the provisions of this section unless the completed
article is exported, or destroyed under the supervision of the
Customs Service, within five years after importation of the
imported merchandise.]
(i) Proof of Exportation.--A person claiming drawback under
this section based on the exportation of an article shall
provide proof of the exportation of the article. Such proof of
exportation--
(1) shall establish fully the date and fact of
exportation and the identity of the exporter; and
(2) may be established through the use of records
kept in the normal course of business or through an
electronic export system of the United States
Government, as determined by the Commissioner
responsible for U.S. Customs and Border Protection.
(j) Unused Merchandise Drawback.--
(1) If imported merchandise, on which was paid any
duty, tax, or fee imposed under Federal law upon entry
or importation--
(A) is, before the close of the [3-year] 5-
year period beginning on the date of
importation and before the drawback claim is
filed--
(i) exported, or
(ii) destroyed under customs
supervision; and
(B) is not used within the United States
before such exportation or destruction;
then upon such exportation or destruction [99 percent
of the amount of each duty, tax, or fee so paid] an
amount calculated pursuant to regulations prescribed by
the Secretary of the Treasury under subsection (l)
shall be refunded as drawback. The exporter (or
destroyer) has the right to claim drawback under this
paragraph, but may endorse such right to the importer
or any intermediate party.
(2) Subject to [paragraph (4)] paragraphs (4), (5),
and (6), if there is, with respect to imported
merchandise on which was paid any duty, tax, or fee
imposed under Federal law upon entry or importation,
any other merchandise (whether imported or domestic),
that--
(A) is [commercially interchangeable with]
classifiable under the same 8-digit HTS
subheading number as such imported merchandise;
(B) is, before the close of the [3-year] 5-
year period beginning on the date of
importation of the imported merchandise and
before the drawback claim is filed, either
exported or destroyed under customs
supervision; and
(C) before such exportation or destruction--
(i) is not used within the United
States, and
(ii) is in the possession of,
including ownership while in bailment,
in leased facilities, in transit to, or
in any other manner under the
operational control of, the party
claiming drawback under this paragraph,
if that party--
(I) is the importer of the
imported merchandise, or
[(II) received from the
person who imported and paid
any duty due on the imported
merchandise a certificate of
delivery transferring to the
party the imported merchandise,
commercially interchangeable
merchandise, or any combination
of imported and commercially
interchangeable merchandise
(and any such transferred
merchandise, regardless of its
origin, will be treated as the
imported merchandise and any
retained merchandise will be
treated as domestic
merchandise);]
(II) received the imported
merchandise, other merchandise
classifiable under the same 8-
digit HTS subheading number as
such imported merchandise, or
any combination of such
imported merchandise and such
other merchandise, directly or
indirectly from the person who
imported and paid any duties,
taxes, and fees imposed under
Federal law upon importation or
entry and due on the imported
merchandise (and any such
transferred merchandise,
regardless of its origin, will
be treated as the imported
merchandise and any retained
merchandise will be treated as
domestic merchandise);
then, notwithstanding any other provision of law, upon
the exportation or destruction of such other
merchandise [the amount of each such duty, tax, and fee
paid regarding the imported merchandise shall be
refunded as drawback under this subsection, but in no
case may the total drawback on the imported
merchandise, whether available under this paragraph or
any other provision of law or any combination thereof,
exceed 99 percent of that duty, tax, or fee] an amount
calculated pursuant to regulations prescribed by the
Secretary of the Treasury under subsection (l) shall be
refunded as drawback. [For purposes of subparagraph (A)
of this paragraph, wine of the same color having a
price variation not to exceed 50 percent between the
imported wine and the exported wine shall be deemed to
be commercially interchangeable.] Notwithstanding
subparagraph (A), drawback shall be allowed under this
paragraph with respect to wine if the imported wine and
the exported wine are of the same color and the price
variation between the imported wine and the exported
wine does not exceed 50 percent. Transfers of
merchandise may be evidenced by business records kept
in the normal course of business and no additional
certificates of transfer shall be required.
(3) The performing of any operation or combination of
operations (including, but not limited to, testing,
cleaning, repacking, inspecting, sorting, refurbishing,
freezing, blending, repairing, reworking, cutting,
slitting, adjusting, replacing components, relabeling,
disassembling, and unpacking), not amounting to
manufacture or production for drawback purposes under
the preceding provisions of this section on--
(A) the imported merchandise itself in cases
to which paragraph (1) applies, or
(B) [the commercially interchangeable
merchandise] merchandise classifiable under the
same 8-digit HTS subheading number as such
imported merchandise in cases to which
paragraph (2) applies,
shall not be treated as a use of that merchandise for
purposes of applying paragraph (1)(B) or (2)(C).
(4)(A) Effective upon the entry into force of the
North American Free Trade Agreement, the exportation to
a NAFTA country, as defined in section 2(4) of the
North American Free Trade Agreement Implementation Act,
of merchandise that is fungible with and substituted
for imported merchandise, other than merchandise
described in paragraphs (1) through (8) of section
203(a) of that Act, shall not constitute an exportation
for purposes of paragraph (2).
(B) Beginning on January 1, 2015, the exportation to
Chile of merchandise that is fungible with and
substituted for imported merchandise, other than
merchandise described in paragraphs (1) through (5) of
section 203(a) of the United States-Chile Free Trade
Agreement Implementation Act, shall not constitute an
exportation for purposes of paragraph (2). The
preceding sentence shall not be construed to permit the
substitution of unused drawback under paragraph (2) of
this subsection with respect to merchandise described
in paragraph (2) of section 203(a) of the United
States-Chile Free Trade Agreement Implementation Act.
(5)(A) For purposes of paragraph (2) and except as
provided in subparagraph (B), merchandise may not be
substituted for imported merchandise for drawback
purposes based on the 8-digit HTS subheading number if
the article description for the 8-digit HTS subheading
number under which the imported merchandise is
classified begins with the term ``other''.
(B) In cases described in subparagraph (A),
merchandise may be substituted for imported merchandise
for drawback purposes if--
(i) the other merchandise and such imported
merchandise are classifiable under the same 10-
digit HTS statistical reporting number; and
(ii) the article description for that 10-
digit HTS statistical reporting number does not
begin with the term ``other''.
(6)(A) For purposes of paragraph (2), a drawback
claimant may use the first 8 digits of the 10-digit
Schedule B number for merchandise or an article to
determine if the merchandise or article is classifiable
under the same 8-digit HTS subheading number as the
imported merchandise, without regard to whether the
Schedule B number corresponds to more than one 8-digit
HTS subheading number.
(B) In this paragraph, the term ``Schedule B'' means
the Department of Commerce Schedule B, Statistical
Classification of Domestic and Foreign Commodities
Exported from the United States.
[(k)(1) For purposes of subsections (a) and (b), the use of
any domestic merchandise acquired in exchange for imported
merchandise of the same kind and quality shall be treated as
the use of such imported merchandise if no certificate of
delivery is issued with respect to such imported merchandise.
[(2) For purposes of subsections (a) and (b), the use of any
domestic merchandise acquired in exchange for a drawback
product of the same kind and quality shall be treated as the
use of such drawback product if no certificate of delivery or
certificate of manufacture and delivery pertaining to such
drawback product is issued, other than that which documents the
product's manufacture and delivery. As used in this paragraph,
the term ``drawback product'' means any domestically produced
product, manufactured with imported merchandise or any other
merchandise (whether imported or domestic) of the same kind and
quality, that is subject to drawback.
[(l) Regulations.--Allowance of the privileges provided for
in this section shall be subject to compliance with such rules
and regulations as the Secretary of the Treasury shall
prescribe, which may include, but need not be limited to, the
authority for the electronic submission of drawback entries and
the designation of the person to whom any refund or payment of
drawback shall be made.]
(k) Liability for Drawback Claims.--
(1) In general.--Any person making a claim for
drawback under this section shall be liable for the
full amount of the drawback claimed.
(2) Liability of importers.--An importer shall be
liable for any drawback claim made by another person
with respect to merchandise imported by the importer in
an amount equal to the lesser of--
(A) the amount of duties, taxes, and fees
that the person claimed with respect to the
imported merchandise; or
(B) the amount of duties, taxes, and fees
that the importer authorized the other person
to claim with respect to the imported
merchandise.
(3) Joint and several liability.--Persons described
in paragraphs (1) and (2) shall be jointly and
severally liable for the amount described in paragraph
(2).
(l) Regulations.--
(1) In general.--Allowance of the privileges provided
for in this section shall be subject to compliance with
such rules and regulations as the Secretary of the
Treasury shall prescribe.
(2) Calculation of drawback.--
(A) In general.--Not later than the date that
is 2 years after the date of the enactment of
the Trade Facilitation and Trade Enforcement
Act of 2015 (or, if later, the effective date
provided for in section 406(q)(2)(B) of that
Act), the Secretary shall prescribe regulations
for determining the calculation of amounts
refunded as drawback under this section.
(B) Requirements.--The regulations required
by subparagraph (A) for determining the
calculation of amounts refunded as drawback
under this section shall provide for a refund
of equal to 99 percent of the duties, taxes,
and fees paid with respect to the imported
merchandise, except that where there is
substitution of the merchandise or article,
then--
(i) in the case of an article that is
exported, the amount of the refund
shall be equal to 99 percent of the
lesser of--
(I) the amount of duties,
taxes, and fees paid with
respect to the imported
merchandise; or
(II) the amount of duties,
taxes, and fees that would
apply to the exported article
if the exported article were
imported; and
(ii) in the case of an article that
is destroyed, the amount of the refund
shall be an amount that is--
(I) equal to 99 percent of
the lesser of--
(aa) the amount of
duties, taxes, and fees
paid with respect to
the imported
merchandise; and
(bb) the amount of
duties, taxes, and fees
that would apply to the
destroyed article if
the destroyed article
were imported; and
(II) reduced by the value of
materials recovered during
destruction as provided in
subsection (x).
(3) Status reports on regulations.--Not later than
the date that is one year after the date of the
enactment of the Trade Facilitation and Trade
Enforcement Act of 2015, and annually thereafter until
the regulations required by paragraph (2) are final,
the Secretary shall submit to Congress a report on the
status of those regulations.
(m) Source of Payment.--Any drawback of duties that may be
authorized under the provisions of this Act shall be paid from
the customs receipts of Puerto Rico, if the duties were
originally paid into the Treasury of Puerto Rico.
(n) Refunds, Waivers, or Reductions Under Certain Free Trade
Agreements.--(1) For purposes of this subsection and subsection
(o)--
(A) the term ``NAFTA Act'' means the North American
Free Trade Agreement Implementation Act;
(B) the terms ``NAFTA country'' and ``good subject to
NAFTA drawback'' have the same respective meanings that
are given such terms in sections 2(4) and 203(a) of the
NAFTA Act;
(C) a refund, waiver, or reduction of duty under
paragraph (2) of this subsection or paragraph (1) of
subsection (o) is subject to section 508(b)(2)(B); and
(D) the term ``good subject to Chile FTA drawback''
has the meaning given that term in section 203(a) of
the United States-Chile Free Trade Agreement
Implementation Act.
(2) For purposes of subsections (a), (b), (f), (h), (p), and
(q), if an article that is exported to a NAFTA country is a
good subject to NAFTA drawback, no customs duties on the good
may be refunded, waived, or reduced in an amount that exceeds
the lesser of--
(A) the total amount of customs duties paid or owed
on the good on importation into the United States, or
(B) the total amount of customs duties paid on the
good to the NAFTA country.
(3) If Canada ceases to be a NAFTA country and the suspension
of the operation of the United States-Canada Free-Trade
Agreement thereafter terminates, then for purposes of
subsections (a), (b), (f), (h), (j)(2), and (q), the shipment
to Canada during the period such Agreement is in operation of
an article made from or substituted for, as appropriate, a
drawback eligible good under section 204(a) of the United
States-Canada Free-Trade Implementation Act of 1988 does not
constitute an exportation.
(4)(A) For purposes of subsections (a), (b), (f), (h),
(j)(2), (p), and (q), if an article that is exported to Chile
is a good subject to Chile FTA drawback, no customs duties on
the good may be refunded, waived, or reduced, except as
provided in subparagraph (B).
(B) The customs duties referred to in subparagraph (A) may be
refunded, waived, or reduced by--
(i) 100 percent during the 8-year period beginning on
January 1, 2004;
(ii) 75 percent during the 1-year period beginning on
January 1, 2012;
(iii) 50 percent during the 1-year period beginning
on January 1, 2013; and
(iv) 25 percent during the 1-year period beginning on
January 1, 2014.
(o) Special Rules for Certain Vessels and Imported
Materials.--(1) For purposes of subsection (g), if--
(A) a vessel is built for the account and ownership
of a resident of a NAFTA country or the government of a
NAFTA country, and
(B) imported materials that are used in the
construction and equipment of the vessel are goods
subject to NAFTA drawback,
the amount of customs duties refunded, waived, or reduced on
such materials may not exceed the lesser of the total amount of
customs duties paid or owed on the materials on importation
into the United States or the total amount of customs duties
paid on the vessel to the NAFTA country.
(2) If Canada ceases to be a NAFTA country and the suspension
of the operation of the United States-Canada Free-Trade
Agreement thereafter terminates, then for purposes of
subsection (g), vessels built for Canadian account and
ownership, or for the Government of Canada, may not be
considered to be built for any foreign account and ownership,
or for the government of any foreign country, except to the
extent that the materials in such vessels are drawback eligible
goods under section 204(a) of the United States-Canada Free-
Trade Implementation Act of 1988.
(3) For purposes of subsection (g), if--
(A) a vessel is built for the account and ownership
of a resident of Chile or the Government of Chile, and
(B) imported materials that are used in the
construction and equipment of the vessel are goods
subject to Chile FTA drawback, as defined in section
203(a) of the United States-Chile Free Trade Agreement
Implementation Act,
no customs duties on such materials may be refunded, waived, or
reduced, except as provided in paragraph (4).
(4) The customs duties referred to in paragraph (3) may be
refunded, waived or reduced by--
(A) 100 percent during the 8-year period beginning on
January 1, 2004;
(B) 75 percent during the 1-year period beginning on
January 1, 2012;
(C) 50 percent during the 1-year period beginning on
January 1, 2013; and
(D) 25 percent during the 1-year period beginning on
January 1, 2014.
(p) Substitution of Finished Petroleum Derivatives.--
(1) In general.--Notwithstanding any other provision
of this section, if--
(A) an article (hereafter referred to in this
subsection as the ``exported article'') of the
same kind and quality as a qualified article is
exported;
(B) the requirements set forth in paragraph
(2) are met; and
(C) a drawback claim is filed regarding the
exported article;
drawback shall be allowed as described in paragraph
(4).
(2) Requirements.--The requirements referred to in
paragraph (1) are as follows:
(A) The exporter of the exported article--
(i) manufactured or produced a
qualified article in a quantity equal
to or greater than the quantity of the
exported article,
(ii) purchased or exchanged, directly
or indirectly, a qualified article from
a manufacturer or producer described in
subsection (a) or (b) in a quantity
equal to or greater than the quantity
of the exported article,
(iii) imported a qualified article in
a quantity equal to or greater than the
quantity of the exported article, or
(iv) purchased or exchanged, directly
or indirectly, a qualified article from
an importer in a quantity equal to or
greater than the quantity of the
exported article.
(B) In the case of the requirement described
in subparagraph (A)(ii), the manufacturer or
producer produced the qualified article in a
quantity equal to or greater than the quantity
of the exported article.
(C) In the case of the requirement of
subparagraph (A)(i) or (A)(ii), the exported
article is exported during the period that the
qualified article described in subparagraph
(A)(i) or (A)(ii) (whichever is applicable) is
manufactured or produced, or within 180 days
after the close of such period.
(D) In the case of the requirement of
subparagraph (A)(i) or (A)(ii), the specific
petroleum refinery or production facility which
made the qualified article concerned is
identified.
(E) In the case of the requirement of
subparagraph (A)(iii) or (A)(iv), the exported
article is exported within 180 days after the
date of entry of an imported qualified article
described in subparagraph (A)(iii) or (A)(iv)
(whichever is applicable).
(F) Except as otherwise specifically provided
in this subsection, the drawback claimant
complies with all requirements of this section,
including providing certificates which
establish the drawback eligibility of articles
for which drawback is claimed.
(G) The manufacturer, producer, importer,
transferor, exporter, and drawback claimant of
the qualified article and the exported article
maintain all records required by regulation.
(3) Definition of qualified article, etc.--For
purposes of this subsection--
(A) The term ``qualified article'' means an
article--
(i) described in--
(I) headings 2707, 2708,
2709.00, 2710, 2711, 2712,
2713, 2714, 2715, 2901, and
2902, and subheadings
2903.21.00, 2909.19.14,
2917.36, 2917.39.04,
2917.39.15, 2926.10.00,
3811.21.00, and 3811.90.00 of
the [Harmonized Tariff Schedule
of the United States] HTS, or
(II) headings 3901 through
3914 of such Schedule (as such
headings apply to the primary
forms provided under Note 6 to
chapter 39 of the [Harmonized
Tariff Schedule of the United
States] HTS), and
(ii) which is--
(I) manufactured or produced
as described in subsection (a)
or (b) from crude petroleum or
a petroleum derivative,
(II) imported duty-paid, or
(III) an article of the same
kind and quality as described
in subparagraph (B), or any
combination thereof, that is
transferred[, as so certified
in a certificate of delivery or
certificate of manufacture and
delivery] in a quantity not
greater than the quantity of
articles purchased or
exchanged.
The transferred merchandise described
in subclause (III), regardless of its
origin[, so designated on the
certificate of delivery or certificate
of manufacture and delivery] shall be
the qualified article for purposes of
this section. [A party who issues a
certificate of delivery, or certificate
of manufacture and delivery, shall also
certify to the Commissioner of Customs
that it has not, and will not, issue
such certificates for a quantity
greater than the amount eligible for
drawback and that appropriate records
will be maintained to demonstrate that
fact.] The party transferring the
merchandise shall maintain records kept
in the normal course of business to
demonstrate the transfer.
(B) An article, including an imported,
manufactured, substituted, or exported article,
is of the same kind and quality as the
qualified article for which it is substituted
under this subsection if it is a product that
is commercially interchangeable with or
referred to under the same eight-digit
classification of the [Harmonized Tariff
Schedule of the United States] HTS as the
qualified article. If an article is referred to
under the same eight-digit classification of
the [Harmonized Tariff Schedule of the United
States] HTS as the qualified article on January
1, 2000, then whether or not the article has
been reclassified under another eight-digit
classification after January 1, 2000, the
article shall be deemed to be an article that
is referred to under the same eight-digit
classification of such Schedule as the
qualified article for purposes of the preceding
sentence.
(C) The term ``drawback claimant'' means the
exporter of the exported article or the
refiner, producer, or importer of either the
qualified article or the exported article. Any
person eligible to file a drawback claim under
this subparagraph may designate another person
to file such claim.
(4) Limitation on drawback.--The amount of drawback
payable under this subsection shall not exceed the
amount of drawback that would be attributable to the
article--
(A) manufactured or produced under subsection
(a) or (b) by the manufacturer or producer
described in clause (i) or (ii) of paragraph
(2)(A), or
(B) imported under clause (iii) or (iv) of
paragraph (2)(A) had the claim qualified for
drawback under subsection (j).
(5) Special rules for ethyl alcohol.--For purposes of
this subsection, any duty paid under subheading
9901.00.50 of the [Harmonized Tariff Schedule of the
United States] HTS on imports of ethyl alcohol or a
mixture of ethyl alcohol may not be refunded if the
exported article upon which a drawback claim is based
does not contain ethyl alcohol or a mixture of ethyl
alcohol.
(q) Packaging Material.--
(1) Packaging material under subsections (c) and
(j).--Packaging material, whether imported and duty
paid, and claimed for drawback under either subsection
(c) or (j)(1), or imported and duty paid, or
substituted, and claimed for drawback under subsection
(j)(2), shall be eligible for drawback, upon
exportation, [of 99 percent of any duty, tax, or fee
imposed under Federal law on such imported material] in
an amount calculated pursuant to regulations prescribed
by the Secretary of the Treasury under subsection (l).
(2) Packaging material under subsections (a) and
(b).--Packaging material that is manufactured or
produced under subsection (a) or (b) shall be eligible
for drawback, upon exportation, [of 99 percent of any
duty, tax, or fee imposed under Federal law on the
imported or substituted merchandise used to manufacture
or produce such material] in an amount calculated
pursuant to regulations prescribed by the Secretary of
the Treasury under subsection (l).
(3) Contents.--Packaging material described in
paragraphs (1) and (2) shall be eligible for drawback
whether or not [they contain] it contains articles or
merchandise, and whether or not any articles or
merchandise they contain are eligible for drawback.
(4) Employing packaging material for its intended
purpose prior to exportation.--The use of any packaging
material for its intended purpose prior to exportation
shall not be treated as a use of such material prior to
exportation for purposes of applying subsection (a),
(b), or (c), or paragraph (1)(B) or (2)(C)(i) of
subsection (j).
(r) Filing Drawback Claims.--
(1) [A drawback entry and all documents necessary to
complete a drawback claim, including those issued by
the Customs Service, shall be filed or applied for, as
applicable, within 3 years after the date of
exportation or destruction of the articles on which
drawback is claimed, except that any landing
certificate required by regulation shall be filed
within the time limit prescribed in such regulation.] A
drawback entry shall be filed or applied for, as
applicable, not later than 5 years after the date on
which merchandise on which drawback is claimed was
imported. Claims not completed within the [3-year] 5-
year period shall be considered abandoned. No extension
will be granted unless it is established that [the
Customs Service] U.S. Customs and Border Protection was
responsible for the untimely filing.
(2) A drawback entry for refund filed pursuant to any
subsection of this section shall be deemed filed
pursuant to any other subsection of this section should
it be determined that drawback is not allowable under
the entry as originally filed but is allowable under
such other subsection.
(3)(A) [The Customs Service] U.S. Customs and Border
Protection may, notwithstanding the limitation set
forth in paragraph (1), extend the time for filing a
drawback claim for a period not to exceed 18 months,
if--
(i) the claimant establishes to the
satisfaction of [the Customs Service] U.S.
Customs and Border Protection that the claimant
was unable to file the drawback claim because
of an event declared by the
President to be a major disaster on or after
January 1, 1994; and
(ii) the claimant files a request for such
extension with [the Customs Service] U.S.
Customs and Border Protection--
(I) within 1 year from the last day
of the [3-year] 5-year period referred
to in paragraph (1), or
(II) within 1 year after the date of
the enactment of this paragraph,
whichever is later.
(B) If an extension is granted with respect to a
request filed under this paragraph, [the periods of
time for retaining records set forth in subsection (t)
of this section and] the period of time for retaining
records set forth in section 508(c)(3) shall be
extended for an additional 18 months or, in a case to
which subparagraph (A)(ii) applies, for a period not to
exceed 1 year from the date the claim is filed.
(C) For purposes of this paragraph, the term ``major
disaster'' has the meaning given that term in section
102(2) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5122(2)).
(4) All drawback claims filed on and after the date
that is 2 years after the date of the enactment of the
Trade Facilitation and Trade Enforcement Act of 2015
(or, if later, the effective date provided for in
section 406(q)(2)(B) of that Act) shall be filed
electronically.
(s) Designation of Merchandise by Successor.--
(1) For purposes of subsection (b), a drawback
successor may designate imported merchandise used by
the predecessor before the date of succession as the
basis for drawback on articles manufactured by the
drawback successor after the date of succession.
(2) For purposes of subsection (j)(2), a drawback
successor may designate--
(A) imported merchandise which the
predecessor, before the date of succession,
imported; or
[(B) imported merchandise, commercially
interchangeable merchandise, or any combination
of imported and commercially interchangeable
merchandise for which the predecessor received,
before the date of succession, from the person
who imported and paid any duty due on the
imported merchandise a certificate of delivery
transferring to the predecessor such
merchandise;]
(B) subject to paragraphs (5) and (6) of
subsection (j), imported merchandise, other
merchandise classifiable under the same 8-digit
HTS subheading number as such imported
merchandise, or any combination of such
imported merchandise and such other
merchandise, that the predecessor received,
before the date of succession, from the person
who imported and paid any duties, taxes, and
fees due on the imported merchandise;
as the basis for drawback on merchandise possessed by
the drawback predecessor after the date of succession.
(3) For purposes of this subsection, the term
``drawback successor'' means an entity to which another
entity (in this subsection referred to as the
``predecessor'') has transferred by written agreement,
merger, or corporate resolution--
(A) all or substantially all of the rights,
privileges, immunities, powers, duties, and
liabilities of the predecessor; or
(B) the assets and other business interests
of a division, plant, or other business unit of
such predecessor, but only if in such transfer
the value of the transferred realty,
personalty, and intangibles (other than
drawback rights, inchoate or otherwise) exceeds
the value of all transferred drawback rights,
inchoate or otherwise.
(4) No drawback shall be paid under this subsection
until either the predecessor or the drawback successor
(who shall also certify that it has the predecessor's
records) [certifies that--]
[(A) the transferred merchandise was not and
will not be claimed by the predecessor, and
[(B) the predecessor did not and will not
issue any certificate to any other person that
would enable that person to claim drawback.]
certifies that the transferred merchandise was
not and will not be claimed by the predecessor.
[(t) Drawback Certificates.--Any person who issues a
certificate which would enable another person to claim drawback
shall be subject to the recordkeeping provisions of this Act,
with the retention period beginning on the date that such
certificate is issued.]
(u) Eligibility of Entered or Withdrawn Merchandise.--
Imported merchandise that has not been regularly entered or
withdrawn for consumption shall not satisfy any requirement for
use, exportation, or destruction under this section.
(v) Multiple Drawback Claims.--Merchandise that is exported
or destroyed to satisfy any claim for drawback shall not be the
basis of any other claim for drawback; except that appropriate
credit and deductions for claims covering components or
ingredients of such merchandise shall be made in computing
drawback payments.
(w) Limited Applicability for Certain Agricultural
Products.--
(1) In general.--No drawback shall be available with
respect to an agricultural product subject to the over-
quota rate of duty established under a tariff-rate
quota, except pursuant to subsection (j)(1).
(2) Application to tobacco.--Notwithstanding
paragraph (1), drawback shall also be available
pursuant to subsection (a) with respect to any tobacco
subject to the over-quota rate of duty established
under a tariff-rate quota.
(x) Drawbacks for Recovered Materials.--For purposes of
subsections (a), (b), [and (c)] (c), and (j), the term
``destruction'' includes a process by which materials are
recovered from imported merchandise or from an article
manufactured from imported merchandise. In determining the
amount of duties to be refunded as drawback to a claimant under
this subsection, the value of recovered materials (including
the value of any tax benefit or royalty payment) that accrues
to the drawback claimant shall be deducted from the value of
the imported merchandise that is destroyed, or from the value
of the merchandise used, or designated as used, in the
manufacture of the article.
(y) Articles Shipped to the United States Insular
Possessions.--Articles described in subsection (j)(1) shall be
eligible for drawback under this section if duty was paid on
the merchandise upon importation into the United States and the
person claiming the drawback demonstrates that the merchandise
has entered the customs territory of the United States Virgin
Islands, American Samoa, Wake Island, Midway Islands, Kingman
Reef, Guam, Canton Island, Enderbury Island, Johnston Island,
or Palmyra Island.
(4)(A) For purposes of subsections (a), (b), (f), (h),
(j)(2), (p), and (q), if an article that is exported to Chile
is a good subject to Chile FTA drawback, no customs duties on
the good may be refunded, waived, or reduced, except as
provided in subparagraph (B).
(B) The customs duties referred to in subparagraph (A) may be
refunded, waived, or reduced by--
(i) 100 percent during the 8-year period beginning on
January 1, 2004;
(ii) 75 percent during the 1-year period beginning on
January 1, 2012;
(iii) 50 percent during the 1-year period beginning
on January 1, 2013; and
(iv) 25 percent during the 1-year period beginning on
January 1, 2014.
(z) Definitions.--In this section:
(1) Directly.--The term ``directly'' means a transfer
of merchandise or an article from one person to another
person without any intermediate transfer.
(2) HTS.--The term ``HTS'' means the Harmonized
Tariff Schedule of the United States.
(3) Indirectly.--The term ``indirectly'' means a
transfer of merchandise or an article from one person
to another person with one or more intermediate
transfers.
* * * * * * *
SEC. 321. ADMINISTRATIVE EXEMPTIONS.
(a) The Secretary of the Treasury, in order to avoid expense
and inconvenience to the Government disproportionate to the
amount of revenue that would otherwise be collected, is hereby
authorized, under such regulations as he shall prescribe, to--
(1) disregard a difference of an amount specified by
the Secretary by regulation, but not less than $20,
between the total estimated duties, fees, and taxes
deposited, or the total duties fees, and taxes
tentatively assessed, with respect to any entry of
merchandise and the total amount of duties, fees,
taxes, and interest actually accruing thereon;
(2) admit articles free of duty and of any tax
imposed on or by reason of importation, but the
aggregate fair retail value in the country of shipment
of articles imported by one person on one day and
exempted from the payment of duty shall not exceed an
amount specified by the Secretary by regulation, but
not less than--
(A) $100 in the case of articles sent as bona
fide gifts from persons in foreign countries to
persons in the United States $200, in the case
of articles sent as bona fide gifts from
persons in the Virgin Islands, Guam, and
America Samoa), or
(B) $200 in the case of articles
accompanying, and for the personal or household
use of, persons arriving in the United States
who are not entitled to any exemption from duty
under subheading 9804.00.30, 9804.00.65, or
9804.00.70 of this Act, or
(C) [$200] $800 in any other case.
The privilege of this subdivision (2) shall not be
granted in any case in which merchandise covered by a
single order or contract is forwarded in separate lots
to secure the benefit of this subdivision (2); and
(3) waive the collection of duties, fees, taxes, and
interest due on entered merchandise when such duties,
fees, taxes, or interest are less than $20 or such
greater amount as may be specified by the Secretary by
regulation.
(b) The Secretary of the Treasury is authorized by
regulations to prescribe exceptions to any exemption provided
for in subsection (a) whenever he finds that such action is
consistent with the purpose of subsection (a) or is necessary
for any reason to protect the revenue or to prevent unlawful
importations.
* * * * * * *
TITLE IV--ADMINISTRATIVE PROVISIONS
PART I--DEFINITIONS AND NATIONAL CUSTOMS AUTOMATION PROGRAM
* * * * * * *
Subpart B--National Customs Automation Program
SEC. 411. NATIONAL CUSTOMS AUTOMATION PROGRAM.
(a) Establishment.--The Secretary shall establish the
National Customs Automation Program (hereinafter in this
subpart referred to as the ``Program'') which shall be an
automated and electronic system for processing commercial
importations and shall include the following existing and
planned components:
(1) Existing components:
(A) The electronic entry of merchandise.
(B) The electronic entry summary of required
information.
(C) The electronic transmission of invoice
information.
(D) The electronic transmission of manifest
information.
(E) Electronic payments of duties, fees, and
taxes.
(F) The electronic status of liquidation and
reliquidation.
(G) The electronic selection of high risk
entries for examination (cargo selectivity and
entry summary selectivity).
(2) Planned components:
(A) The electronic filing and status of
protests.
(B) The electronic filing (including remote
filing under section 414) of entry information
with the Customs Service at any location.
(C) The electronic filing of import activity
summary statements and reconciliation.
(D) The electronic filing of bonds.
(E) The electronic penalty process.
(F) The electronic filing of drawback claims,
records, or entries.
(G) Any other component initiated by the
Customs Service to carry out the goals of this
subpart.
(b) Participation in Program.--The Secretary shall by
regulation prescribe the eligibility criteria for participation
in the Program. The Secretary may, by regulation, require the
electronic submission of information described in subsection
(a) or any other information required to be submitted to the
Customs Service separately pursuant to this subpart.
(c) Foreign-Trade Zones.--Not later than January 1, 2000, the
Secretary shall provide for the inclusion of commercial
importation data from foreign-trade zones under the Program.
(d) International Trade Data System.--
(1) Establishment.--
(A) In general.--The Secretary of the
Treasury (in this subsection, referred to as
the ``Secretary'') shall oversee the
establishment of an electronic trade data
interchange system to be known as the
``International Trade Data System'' (ITDS). The
ITDS shall be implemented not later than the
date that the Automated Commercial Environment
(commonly referred to as ``ACE'') is fully
implemented.
(B) Purpose.--The purpose of the ITDS is to
eliminate redundant information requirements,
to efficiently regulate the flow of commerce,
and to effectively enforce laws and regulations
relating to international trade, by
establishing a single portal system, operated
by the United States Customs and Border
Protection, for the collection and distribution
of standard electronic import and export data
required by all participating Federal agencies.
(C) Participation.--
(i) In general.--All Federal agencies
that require documentation for clearing
or licensing the importation and
exportation of cargo shall participate
in the ITDS.
(ii) Waiver.--The Director of the
Office of Management and Budget may
waive, in whole or in part, the
requirement for participation for any
Federal agency based on the vital
national interest of the United States.
(D) Consultation.--The Secretary shall
consult with and assist the United States
Customs and Border Protection and other
agencies in the transition from paper to
electronic format for the submission, issuance,
and storage of documents relating to data
required to enter cargo into the United States.
In so doing, the Secretary shall also consult
with private sector stakeholders, including the
Commercial Operations Advisory Committee, in
developing uniform data submission
requirements, procedures, and schedules, for
the ITDS.
(E) Coordination.--The Secretary shall be
responsible for coordinating the operation of
the ITDS among the participating agencies and
the office within the United States Customs and
Border Protection that is responsible for
maintaining the ITDS.
(2) Data elements.--
(A) In general.--The Interagency Steering
Committee (established under paragraph (3))
shall, in consultation with the agencies
participating in the ITDS, define the standard
set of data elements to be collected, stored,
and shared in the ITDS, consistent with laws
applicable to the collection and protection of
import and export information. The Interagency
Steering Committee shall periodically review
the data elements in order to update the
standard set of data elements, as necessary.
(B) Commitments and obligations.--The
Interagency Steering Committee shall ensure
that the ITDS data requirements are compatible
with the commitments and obligations of the
United States as a member of the World Customs
Organization (WCO) and the World Trade
Organization (WTO) for the entry and movement
of cargo.
(3) Interagency steering committee.--There is
established an Interagency Steering Committee (in this
section, referred to as the ``Committee''). The members
of the Committee shall include the Secretary (who shall
serve as the chairperson of the Committee), the
Director of the Office of Management and Budget, and
the head of each agency participating in the ITDS. The
Committee shall assist the Secretary in overseeing the
implementation of, and participation in, the ITDS.
(4) Information technology infrastructure.--
(A) In general.--The Secretary shall work
with the head of each agency participating in
the ITDS and the Interagency Steering Committee
to ensure that each agency--
(i) develops and maintains the
necessary information technology
infrastructure to support the operation
of the ITDS and to submit all data to
the ITDS electronically;
(ii) enters into a memorandum of
understanding, or takes such other
action as is necessary, to provide for
the information sharing between the
agency and U.S. Customs and Border
Protection necessary for the operation
and maintenance of the ITDS;
(iii) not later than June 30, 2016,
identifies and transmits to the
Commissioner responsible for U.S.
Customs and Border Protection the
admissibility criteria and data
elements required by the agency to
authorize the release of cargo by U.S.
Customs and Border Protection for
incorporation into the operational
functionality of the Automated
Commercial Environment computer system
authorized under section 13031(f)(4) of
the Consolidated Omnibus Budget and
Reconciliation Act of 1985 (19 U.S.C.
58c(f)(4)); and
(iv) not later than December 31,
2016, utilizes the ITDS as the primary
means of receiving from users the
standard set of data and other relevant
documentation, exclusive of
applications for permits, licenses, or
certifications required for the release
of imported cargo and clearance of
cargo for export.
(B) Rule of construction.--Nothing in this
paragraph shall be construed to require any
action to be taken that would compromise an
ongoing law enforcement investigation or
national security.
[(4)] (5) Report.--The President shall submit a
report before the end of each fiscal year to the
Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives. Each
report shall include information on--
(A) the status of the ITDS implementation;
(B) the extent of participation in the ITDS
by Federal agencies;
(C) the remaining barriers to any agency's
participation;
(D) the consistency of the ITDS with
applicable standards established by the World
Customs Organization and the World Trade
Organization;
(E) recommendations for technological and
other improvements to the ITDS; and
(F) the status of the development,
implementation, and management of the Automated
Commercial Environment within the United States
Customs and Border Protection.
[(5)] (6) Sense of congress.--It is the sense of
Congress that agency participation in the ITDS is an
important priority of the Federal Government and that
the Secretary shall coordinate the operation of the
ITDS closely among the participating agencies and the
office within the United States Customs and Border
Protection that is responsible for maintaining the
ITDS.
[(6)] (7) Construction.--Nothing in this section
shall be construed as amending or modifying subsection
(g) of section 301 of title 13, United States Code.
[(7)] (8) Definition.--The term ``Commercial
Operations Advisory Committee'' means the Advisory
Committee established pursuant to [section 9503(c) of
the Omnibus Budget Reconciliation Act of 1987 (19
U.S.C. 2071 note)] section 109 of the Trade
Facilitation and Trade Enforcement Act of 2015 or any
successor committee.
* * * * * * *
Part III--Ascertainment, Collection, and Recovery of Duties
* * * * * * *
SEC. 484C. REQUIREMENTS APPLICABLE TO NON-RESIDENT IMPORTERS.
(a) In General.--Except as provided in subsection (c), if an
importer of record under section 484 of this Act is not a
resident of the United States, the Commissioner of U.S. Customs
and Border Protection shall require the non-resident importer
to designate a resident agent in the United States subject to
the requirements described in subsection (b).
(b) Requirements.--The requirements described in this
subsection are the following:
(1) The resident agent shall be authorized to accept
service of process against the non-resident importer in
connection with the importation of merchandise.
(2) The Commissioner of U.S. Customs and Border
Protection shall require the non-resident importer to
establish a power of attorney with the resident agent
in connection with the importation of merchandise.
(c) Non-applicability.--The requirements of this section
shall not apply with respect to a non-resident importer who is
a validated Tier 2 or Tier 3 participant in the Customs-Trade
Partnership Against Terrorism program established under
subtitle B of title II of the SAFE Port Act (6 U.S.C. 961 et
seq.).
(d) Penalties.--
(1) In general.--It shall be unlawful for any person
to import into the United States any merchandise in
violation of this section.
(2) Civil penalties.--Any person who violates
paragraph (1) shall be liable for a civil penalty of
$50,000 for each such violation.
(3) Other penalties.--In addition to the penalties
specified in paragraph (2), any violation of this
section that violates any other customs and trade laws
of the United States shall be subject to any applicable
civil and criminal penalty, including seizure and
forfeiture, that may be imposed under such customs or
trade law or title 18, United States Code, with respect
to the importation of merchandise.
(4) Definition.--In this subsection, the term
``customs and trade laws of the United States'' has the
meaning given such term in section 2 of the Customs
Trade Facilitation and Enforcement Act of 2015.
* * * * * * *
SEC. 508. RECORDKEEPING.
(a) Requirements.--Any--
(1) owner, importer, consignee, importer of record,
entry filer, or other party who--
(A) imports merchandise into the customs
territory of the United States, files a
drawback claim, or transports or stores
merchandise carried or held under bond, or
(B) knowingly causes the importation or
transportation or storage of merchandise
carried or held under bond into or from the
customs territory of the United States;
(2) agent of any party described in paragraph (1); or
(3) person whose activities require the filing of a
declaration or entry, or both;
shall make, keep, and render for examination and inspection
records (which for purposes of this section include, but are
not limited to, statements, declarations, documents and
electronically generated or machine readable data) which--
(A) pertain to any such activity, or to the
information contained in the records required by this
Act in connection with any such activity; and
(B) are normally kept in the ordinary course of
business.
(b) Exportations to NAFTA Countries.--
(1) Definitions.--As used in this subsection--
(A) The term ``associated records'' means, in
regard to an exported good under paragraph (2),
records associated with--
(i) the purchase of, cost of, value
of, and payment for, the good;
(ii) the purchase of, cost of, value
of, and payment for, all material,
including indirect materials, used in
the production of the good; and
(iii) the production of the good.
For purposes of this subparagraph, the terms
``indirect
material,''``material,''``preferential tariff
treatment,''``used,'' and ``value'' have the
respective meanings given them in articles 415
and 514 of the North American Free Trade
Agreement.
(B) The term ``NAFTA Certificate of Origin''
means the certification, established under
article 501 of the North American Free Trade
Agreement, that a good qualifies as an
originating good under such Agreement.
(2) Exports to nafta countries.--
(A) In general.--Any person who completes and
signs a NAFTA Certificate of Origin for a good
for which preferential treatment under the
North American Free Trade Agreement is claimed
shall make, keep, and render for examination
and inspection all records relating to the
origin of the good (including the Certificate
or copies thereof) and the associated records.
(B) Claims for certain waivers, reductions,
or refunds of duties or for credit against
bonds.--
(i) In general.--Any person that
claims with respect to an article--
(I) a waiver or reduction of
duty under the eleventh
paragraph of section 311,
section 312(b)(1) or (4),
section 562(2), or the proviso
preceding the last proviso to
section 3(a) of the Foreign
Trade Zones Act;
(II) a credit against a bond
under section 312(d); or
(III) a refund, waiver, or
reduction of duty under section
313(n)(2) or (o)(1);
must disclose to the Customs Service
the information described in clause
(ii).
(ii) Information required.--Within 30
days after making a claim described in
clause (i) with respect to an article,
the person making the claim must
disclose to the Customs Service whether
that person has prepared, or has
knowledge that another person has
prepared, a NAFTA Certificate of Origin
for the article. If after such 30-day
period the person making the claim
either--
(I) prepares a NAFTA
Certificate of Origin for the
article; or
(II) learns of the existence
of such a Certificate for the
article;
that person, within 30 days after the
occurrence described in subclause (I)
or (II), must disclose the occurrence
to the Customs Service.
(iii) Action on claim.--If the
Customs Service determines that a NAFTA
Certificate of Origin has been prepared
with respect to an article for which a
claim described in clause (i) is made,
the Customs Service may make such
adjustments regarding the previous
customs treatment of the article as may
be warranted under the claim.
(3) Exports under the canadian agreement.--Any person
who exports, or who knowingly causes to be exported,
any merchandise to Canada during such time as the
United States-Canada Free-Trade Agreement is in force
with respect to, and the United States applies that
Agreement to, Canada shall make, keep, and render for
examination and inspection such records (including
certifications of origin or copies thereof) which
pertain to the exportations.
(c) Period of Time.--The records required by subsections (a)
and (b) shall be kept for such periods of time as the Secretary
shall prescribe; except that--
(1) no period of time for the retention of the
records required under subsection (a) or (b)(3) may
exceed 5 years from the date of entry, filing of a
reconciliation, or exportation, as appropriate;
(2) the period of time for the retention of the
records required under subsection (b)(2) shall be at
least 5 years from the date of signature of the NAFTA
Certificate of Origin; and
(3) records for any drawback claim shall be kept
until the [3rd] 5th anniversary of the date of
[payment] liquidation of the claim.
(d) Limitation.--For the purposes of this section and section
509, a person ordering merchandise from an importer in a
domestic transaction does not knowingly cause merchandise to be
imported unless--
(1) the terms and conditions of the importation are
controlled by the person placing the order; or
(2) technical data, molds, equipment, other
production assistance, material, components, or parts
are furnished by the person placing the order with
knowledge that they will be used in the manufacture or
production of the imported merchandise.
(e) Subsection (b) Penalties.--
(1) Relating to nafta exports.--Any person who fails
to retain records required by paragraph (2) of
subsection (b) or the regulations issued to implement
that paragraph shall be liable for--
(A) a civil penalty not to exceed $10,000; or
(B) the general recordkeeping penalty that
applies under the customs laws;
whichever penalty is higher.
(2) Relating to canadian agreement exports.--Any
person who fails to retain the records required by
paragraph (3) of subsection (b) or the regulations
issued to implement that paragraph shall be liable for
a civil penalty not to exceed $10,000.
(f) Certificates of Origin for Goods Exported Under the
United States-Chile Free Trade Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) if applicable, the purchase,
cost, and value of, and payment for,
all materials, including recovered
goods, used in the production of the
good; and
(iii) if applicable, the production
of the good in the form in which it was
exported.
(B) Chile fta certificate of origin.--The
term ``Chile FTA Certificate of Origin'' means
the certification, established under article
4.13 of the United States-Chile Free Trade
Agreement, that a good qualifies as an
originating good under such Agreement.
(2) Exports to chile.--Any person who completes and
issues a Chile FTA Certificate of Origin for a good
exported from the United States shall make, keep, and,
pursuant to rules and regulations promulgated by the
Secretary of the Treasury, render for examination and
inspection all records and supporting documents related
to the origin of the good (including the Certificate or
copies thereof).
(3) Retention period.--Records and supporting
documents shall be kept by the person who issued a
Chile FTA Certificate of Origin for at least 5 years
after the date on which the certificate was issued.
(g) Certifications of Origin for Goods Exported Under the
Dominican Republic-Central America-United States Free Trade
Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) the purchase, cost, and value
of, and payment for, all materials,
including indirect materials, used in
the production of the good; and
(iii) the production of the good in
the form in which it was exported.
(B) CAFTA-DR certification of origin.--The
term ``CAFTA-DR certification of origin'' means
the certification established under article
4.16 of the Dominican Republic-Central America-
United States Free Trade Agreement that a good
qualifies as an originating good under such
Agreement.
(2) Exports to cafta-dr countries.--Any person who
completes and issues a CAFTA-DR certification of origin
for a good exported from the United States shall make,
keep, and, pursuant to rules and regulations
promulgated by the Secretary of the Treasury, render
for examination and inspection all records and
supporting documents related to the origin of the good
(including the certification or copies thereof).
(3) Retention period.--Records and supporting
documents shall be kept by the person who issued a
CAFTA-DR certification of origin for at least 5 years
after the date on which the certification was issued.
(h) Certifications of Origin for Goods Exported Under the
United States-Peru Trade Promotion Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) the purchase, cost, and value
of, and payment for, all materials,
including indirect materials, used in
the production of the good; and
(iii) the production of the good in
the form in which it was exported.
(B) PTPA certification of origin.--The term
``PTPA certification of origin'' means the
certification established under article 4.15 of
the United States-Peru Trade Promotion
Agreement that a good qualifies as an
originating good under such Agreement.
(2) Exports to peru.--Any person who completes and
issues a PTPA certification of origin for a good
exported from the United States shall make, keep, and,
pursuant to rules and regulations promulgated by the
Secretary of the Treasury, render for examination and
inspection all records and supporting documents related
to the origin of the good (including the certification
or copies thereof).
(3) Retention period.--The person who issues a PTPA
certification of origin shall keep the records and
supporting documents relating to that certification of
origin for a period of at least 5 years after the date
on which the certification is issued.
(i) Certifications of Origin for Goods Exported Under the
United States-Korea Free Trade Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) the purchase, cost, and value
of, and payment for, all materials,
including indirect materials, used in
the production of the good; and
(iii) the production of the good in
the form in which it was exported.
(B) KFTA certification of origin.--The term
``KFTA certification of origin'' means the
certification established under article 6.15 of
the United States-Korea Free Trade Agreement
that a good qualifies as an originating good
under such Agreement.
(2) Exports to korea.--Any person who completes and
issues a KFTA certification of origin for a good
exported from the United States shall make, keep, and,
pursuant to rules and regulations promulgated by the
Secretary of the Treasury, render for examination and
inspection all records and supporting documents related
to the origin of the good (including the certification
or copies thereof).
(3) Retention period.--The person who issues a KFTA
certification of origin shall keep the records and
supporting documents relating to that certification of
origin for a period of at least 5 years after the date
on which the certification is issued.
(j) Certifications of Origin for Goods Exported Under the
United States-Colombia Trade Promotion Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) the purchase, cost, and value
of, and payment for, all materials,
including indirect materials, used in
the production of the good; and
(iii) the production of the good in
the form in which it was exported.
(B) CTPA certification of origin.--The term
``CTPA certification of origin'' means the
certification established under article 4.15 of
the United States-Colombia Trade Promotion
Agreement that a good qualifies as an
originating good under such Agreement.
(2) Exports to colombia.--Any person who completes
and issues a CTPA certification of origin for a good
exported from the United States shall make, keep, and,
pursuant to rules and regulations promulgated by the
Secretary of the Treasury, render for examination and
inspection all records and supporting documents related
to the origin of the good (including the certification
or copies thereof).
(3) Retention period.--The person who issues a CTPA
certification of origin shall keep the records and
supporting documents relating to that certification of
origin for a period of at least 5 years after the date
on which the certification is issued.
(k) Certifications of Origin for Goods Exported Under the
United States-panama Trade Promotion Agreement.--
(1) Definitions.--In this subsection:
(A) Records and supporting documents.--The
term ``records and supporting documents''
means, with respect to an exported good under
paragraph (2), records and documents related to
the origin of the good, including--
(i) the purchase, cost, and value of,
and payment for, the good;
(ii) the purchase, cost, and value
of, and payment for, all materials,
including indirect materials, used in
the production of the good; and
(iii) the production of the good in
the form in which it was exported.
(B) Panama tpa certification of origin.--The
term ``Panama TPA certification of origin''
means the certification established under
article 4.15 of the United States-Panama Trade
Promotion Agreement that a good qualifies as an
originating good under such Agreement.
(2) Exports to panama.--Any person who completes and
issues a Panama TPA certification of origin for a good
exported from the United States shall make, keep, and,
pursuant to rules and regulations promulgated by the
Secretary of the Treasury, render for examination and
inspection all records and supporting documents related
to the origin of the good (including the certification
or copies thereof).
(3) Retention period.--The person who issues a Panama
TPA certification of origin shall keep the records and
supporting documents relating to that certification of
origin for a period of at least 5 years after the date
on which the certification is issued.
(l) Penalties.--Any person who fails to retain records and
supporting documents required by subsection (f), (g), (h), (i),
(j), or (k) or the regulations issued to implement any such
subsection shall be liable for the greater of--
(1) a civil penalty not to exceed $10,000; or
(2) the general record keeping penalty that applies
under the customs laws of the United States.
* * * * * * *
SEC. 516A. JUDICIAL REVIEW IN COUNTERVAILING DUTY AND ANTI-DUMPING DUTY
PROCEEDINGS.
(a) Review of Determination.--
(1) Review of certain determinations.--Within 30 days
after the date of publication in the Federal Register
of--
(A) a determination by the administering
authority, under 702(c) or 732(c) of this Act,
not to initiate an investigation,
(B) a determination by the Commission, under
section 751(b) of this Act, not to review a
determination based upon changed circumstances,
(C) a negative determination by the
Commission, under section 703(a) or 733(a) of
this Act, as to whether there is reasonable
indication or material injury, threat of
material injury, or material retardation, or
(D) a final determination by the
administering authority or the Commission under
section 751(c)(3),
an interested party who is a party to the proceeding in
connection with which the matter arises may commence an
action in the United States Court of International
Trade by filing concurrently a summons and complaint,
each with the content and in the form, manner, and
style prescribed by the rules of that court, contesting
any factual findings or legal conclusions upon which
the determination is based.
(2) Review of determinations on record.--
(A) In general.--Within thirty days after--
(i) the date of publication in the
Federal Register of--
(I) notice of any
determination described in
clause (ii), (iii), (iv), (v),
[or (viii)] (viii), or (ix) of
subparagraph (B),
(II) an antidumping or
countervailing duty order based
upon any determination
described in clause (i) of
subparagraph (B), or
(III) notice of the
implementation of any
determination described in
clause (vii) of subparagraph
(B), or
(ii) the date of mailing of a
determination described in clause (vi)
of subparagraph (B),
an interested party who is a party to the
proceeding in connection with which the matter
arises may commence an action in the United
States Court of International Trade by filing a
summons, and within thirty days thereafter a
complaint, each with the content and in the
form, manner, and style prescribed by the rules
of that court, contesting any factual findings
or legal conclusions upon which the
determination is based.
(B) Reviewable determinations.--The
determinations which may be contested under
subparagraph (A) are as follows:
(i) Final affirmative determinations
by the administering authority and by
the Commission under section 705 or 735
of this Act, including any negative
part of such a determination (other
than a part referred to in clause
(ii)).
(ii) A final negative determination
by the administering authority or the
Commission under section 705 or 735 of
this Act, including, at the option of
the appellant, any part of a final
affirmative determination which
specifically excludes any company or
product.
(iii) A final determination, other
than a determination reviewable under
paragraph (1), by the administering
authority or the Commission under
section 751 of this Act.
(iv) A determination by the
administering authority, under section
704 or 734 of this Act, to suspend an
antidumping duty or a countervailing
duty investigation, including any final
determination resulting from a
continued investigation which changes
the size of the dumping margin or net
countervailable subsidy calculated, or
the reasoning underlying such
calculations, at the time the
suspension agreement was concluded.
(v) An injurious effect determination
by the Commission under section 704(h)
or 734(h) of this Act.
(vi) A determination by the
administering authority as to whether a
particular type of merchandise is
within the class or kind of merchandise
described in an existing finding of
dumping or antidumping or
countervailing duty order.
(vii) A determination by the
administering authority or the
Commission under section 129 of the
Uruguay Round Agreements Act concerning
a determination under title VII of the
Tariff Act of 1930.
(viii) A determination by the
Commission under section 753(a)(1).
(ix) A determination by the
administering authority under section
781A.
(3) Exception.--Notwithstanding the limitation
imposed by paragraph (2)(A)(i)(II) of this subsection,
a final affirmative determination by the administering
authority under section 705 or 735 of this Act may be
contested by commencing an action, in accordance with
the provisions of paragraph (2)(A), within thirty days
after the date of publication in the Federal Register
of a final negative determination by the Commission
under section 705 or 735 of this Act.
(4) Procedures and fees.--The procedures and fees set
forth in chapter 169 of title 28, United States Code,
apply to an action under this section.
(5) Time limits in cases involving merchandise from
free trade area countries.--Notwithstanding any other
provision of this subsection, in the case of a
determination to which the provisions of subsection (g)
apply, an action under this subsection may not be
commenced, and the time limits for commencing an action
under this subsection shall not begin to run, until the
day specified in whichever of the following
subparagraphs applies:
(A) For a determination described in
paragraph (1)(B) or clause (i), (ii) or (iii)
of paragraph (2)(B), the 31st day after the
date on which notice of the determination is
published in the Federal Register.
(B) For a determination described in clause
(vi) of paragraph (2)(B), the 31st day after
the date on which the government of the
relevant FTA country receives notice of the
determination.
(C) For a determination with respect to which
binational panel review has commenced in
accordance with subsection (g)(8), the day
after the date as of which--
(i) the binational panel has
dismissed binational panel review of
the determination for lack of
jurisdiction, and
(ii) any interested party seeking
review of the determination under
paragraph (1), (2), or (3) of this
subsection has provided timely notice
under subsection (g)(3)(B).
If such an interested party files a summons and
complaint under this subsection after dismissal
by the binational panel, and if a request for
an extraordinary challenge committee is made
with respect to the decision by the binational
panel to dismiss--
(I) judicial review under this
subsection shall be stayed during
consideration by the committee of the
request, and
(II) the United States Court of
International Trade shall dismiss the
action if the committee vacates or
remands the binational panel decision
to dismiss.
(D) For a determination for which review by
the United States Court of International Trade
is provided for--
(i) under subsection (g)(12)(B), the
day after the date of publication in
the Federal Register of notice that
article 1904 of the NAFTA has been
suspended, or
(ii) under subsection (g)(12)(D), the
day after the date that notice of
settlement is published in the Federal
Register.
(E) For a determination described in clause
(vii) of paragraph (2)(B), the 31st day after
the date on which notice of the implementation
of the determination is published in the
Federal Register.
(b) Standards of Review.--
(1) Remedy.--The court shall hold unlawful any
determination, finding, or conclusion found--
(A) in an action brought under subparagraph
(A), (B), or (C) of subsection (a)(1), to be
arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law, or
(B)(i) in an action brought under paragraph
(2) of subsection (a), to be unsupported by
substantial evidence on the record, or
otherwise not in accordance with law, or
(ii) in an action brought under
paragraph (1)(D) of subsection (a), to
be arbitrary, capricious, an abuse of
discretion, or otherwise not in
accordance with law.
(2) Record for review.--
(A) In general.--For the purposes of this
subsection, the record, unless otherwise
stipulated by the parties, shall consist of--
(i) a copy of all information
presented to or obtained by the
Secretary, the administering authority,
or the Commission during the course of
the administrative proceeding,
including all governmental memoranda
pertaining to the case and the record
of ex parte meetings required to be
kept by section 777(a)(3); and
(ii) a copy of the determination, all
transcripts or records of conferences
or hearings, and all notices published
in the Federal Register.
(B) Confidential or privileged material.--The
confidential or privileged status accorded to
any documents, comments, or information shall
be preserved in any action under this section.
Notwithstanding the preceding sentence, the
court may examine, in camera, the confidential
or privileged material, and may disclose such
material under such terms and conditions as it
may order.
(3) Effect of decisions by nafta or united states-
canada binational panels.--In making a decision in any
action brought under subsection (a), a court of the
United States is not bound by, but may take into
consideration, a final decision of a binational panel
or extraordinary challenge committee convened pursuant
to article 1904 of the NAFTA or of the Agreement.
(c) Liquidation of Entries.--
(1) Liquidation in accordance with determination.--
Unless such liquidation is enjoined by the court under
paragraph (2) of this subsection, entries of
merchandise of the character covered by a determination
of the Secretary, the administering authority, or the
Commission contested under subsection (a) shall be
liquidated in accordance with the determination of the
Secretary, the administering authority, or the
Commission, if they are entered, or withdrawn from
warehouse, for consumption on or before the date of
publication in the Federal Register by the Secretary or
the administering authority of a notice of a decision
of the United States Court of International Trade, or
of the United States Court of Appeals for the Federal
Circuit, not in harmony with that determination. Such
notice of a decision shall be published within ten days
from the date of the issuance of the court decision.
(2) Injunctive relief.--In the case of a
determination described in paragraph (2) of subsection
(a) by the Secretary, the administering authority, or
the Commission, the United States Court of
International Trade may enjoin the liquidation of some
or all entries of merchandise covered by a
determination of the Secretary, the administering
authority, or the Commission, upon a request by an
interested party for such relief and a proper showing
that the requested relief should be granted under the
circumstances.
(3) Remand for final disposition.--If the final
disposition of an action brought under this section is
not in harmony with the published determination of the
Secretary, the administering authority, or the
Commission, the matter shall be remanded to the
Secretary, the administering authority, or the
Commission, an appropriate, for disposition consistent
with the final disposition of the court.
(d) Standing.--Any interested party who was a party to the
proceeding under section 303 of this Act or title VII of this
Act shall have the right to appear and be heard as a party in
interest before the United States Court of International Trade.
The party filing the action shall notify all such interested
parties of the filing of an action under this section, in the
form, manner, style, and within the time prescribed by rules of
the court.
(e) Liquidation in Accordance With Final Decision.--If the
cause of action is sustained in whole or in part by a decision
of the United States Court of International Trade or of the
United States Court of Appeals for the Federal Circuit--
(1) entries of merchandise of the character covered
by the published determination of the Secretary, the
administering authority, or the Commission, which is
entered, or withdrawn from warehouse, for consumption
after the date of publication in the Federal Register
by the Secretary or the administering authority of a
notice of the court decision, and
(2) entries, the liquidation of which was enjoined
under subsection (c)(2),
shall be liquidated in accordance with the final court decision
in the action. Such notice of the court decision shall be
published within ten days from the date of the issuance of the
court decision.
(f) Definitions.--For purposes of this section--
(1) Administering authority.--The term
``administering authority'' means the administering
authority described in section 771(1) of this Act.
(2) Commission.--The term ``Commission'' means the
United States International Trade Commission.
(3) Interested party.--The term ``interested party''
means any person described in section 771(9) of this
Act.
(4) Secretary.--The term ``Secretary'' means the
Secretary of the Treasury.
(5) Agreement.--The term ``Agreement'' means the
United States-Canada Free-Trade Agreement.
(6) United states secretary.--The term ``United
States Secretary'' means--
(A) the secretary for the United States
Section referred to in article 1908 of the
NAFTA, and
(B) the secretary of the United States
Section provided for in article 1909 of the
Agreement.
(7) Relevant fta secretary.--The term ``relevant FTA
Secretary'' means the Secretary--
(A) referred to in article 1908 of the NAFTA,
or
(B) provided for in paragraph 5 of article
1909 of the Agreement,
of the relevant FTA country.
(8) NAFTA.--The term ``NAFTA'' means the North
American Free Trade Agreement.
(9) Relevant fta country.--The term ``relevant FTA
country'' means the free trade area country to which an
antidumping or countervailing duty proceeding pertains.
(10) Free trade area country.--The term ``free trade
area country'' means the following:
(A) Canada for such time as the NAFTA is in
force with respect to, and the United States
applies the NAFTA to, Canada.
(B) Mexico for such time as the NAFTA is in
force with respect to, and the United States
applies the NAFTA to, Mexico.
(C) Canada for such time as--
(i) it is not a free trade area
country under subparagraph (A); and
(ii) the Agreement is in force with
respect to, and the United States
applies the Agreement to, Canada.
(g) Review of Countervailing Duty and Antidumping Duty
Determinations Involving Free Trade Area Country Merchandise.--
(1) Definition of determination.--For purposes of
this subsection, the term ``determination'' means a
determination described in--
(A) paragraph (1)(B) of subsection (a), or
(B) clause (i), (ii), (iii), (vi), or (vii)
or paragraph (2)(B) of subsection (a),
if made in connection with a proceeding regarding a
class or kind of free trade area country merchandise,
as determined by the administering authority.
(2) Exclusive review of determination by binational
panels.--If binational panel review of a determination
is requested pursuant to article 1904 of the NAFTA or
of the Agreement, then, except as provided in
paragraphs (3) and (4)--
(A) the determination is not reviewable under
subsection (a), and
(B) no court of the United States has power
or jurisdiction to review the determination on
any question of law or fact by an action in the
nature of mandamus or otherwise.
(3) Exception to exclusive binational panel review.--
(A) In general.--A determination is
reviewable under subsection (a) if the
determination sought to be reviewed is--
(i) a determination as to which
neither the United States nor the
relevant FTA country requested review
by a binational panel pursuant to
article 1904 of the NAFTA or of the
Agreement.
(ii) a revised determination issued
as a direct result of judicial review,
commenced pursuant to subsection (a),
if neither the United States nor the
relevant FTA country requested review
of the original determination,
(iii) a determination issued as a
direct result of judicial review that
was commenced pursuant to subsection
(a) prior to the entry into force of
the NAFTA or of the Agreement,
(iv) a determination which a
binational panel has determined is not
reviewable by the binational panel,
(v) a determination as to which
binational panel review has terminated
pursuant to paragraph 12 of article
1905 of the NAFTA, or
(vi) a determination as to which
extraordinary challenge committee
review has terminated pursuant to
paragraph 12 of article 1905 of the
NAFTA.
(B) Special rule.--A determination described
in subparagraph (A)(i) or (iv) is reviewable
under subsection (a) of this section only if
the party seeking to commence review has
provided timely notice of its intent to
commence such review to--
(i) the United States Secretary and
the relevant FTA Secretary;
(ii) all interested parties who were
parties to the proceeding in connection
with which the matter arises; and
(iii) the administering authority or
the Commission, as appropriate.
Such notice is timely provided if the notice is
delivered no later than the date that is 20
days after the date described in subparagraph
(A) or (B) of subsection (a)(5) that is
applicable to such determination, except that,
if the time for requesting binational panel
review is suspended under paragraph (8)(A)(ii)
of this subsection, any unexpired time for
providing notice of intent to commence judicial
review shall, during the pendency of any such
suspension, also be suspended. Such notice
shall contain such information, and be in such
form, manner, and style, as the administering
authority, in consultation with the Commission,
shall prescribe by regulations.
(4) Exception to exclusive binational panel review
for constitutional issues.--
(A) Constitutionality of binational panel
review system.--An action for declaratory
judgment or injunctive relief, or both,
regarding a determination on the grounds that
any provision of, or amendment made by, the
North American Free Trade Agreement
Implementation Act implementing the binational
dispute settlement system under chapter 19 of
the NAFTA, or the United States-Canada Free-
Trade Agreement Implementation Act of 1988
implementing the binational panel dispute
settlement system under chapter 19 of the
Agreement, violates the Constitution may be
brought only in the United States Court of
Appeals for the District of Columbia Circuit,
which shall have jurisdiction of such action.
(B) Other constitutional review.--Review is
available under subsection (a) with respect to
a determination solely concerning a
constitutional issue (other than an issue to
which subparagraph (A) applies) arising under
any law of the United States as enacted or
applied. An action for review under this
subparagraph shall be assigned to a 3-judge
panel of the United States Court of
International Trade.
(C) Commencement of review.--Notwithstanding
the time limits in subsection (a), within 30
days after the date of publication in the
Federal Register of notice that binational
panel review has been completed, an interested
party who is a party to the proceeding in
connection with which the matter arises may
commence an action under subparagraph (A) or
(B) by filing an action in accordance with the
rules of the court.
(D) Transfer of actions to appropriate
court.--Whenever an action is filed in a court
under subparagraph (A) or (B) and that court
finds that the action should have been filed in
the other court, the court in which the action
was filed shall transfer the action to the
other court and the action shall proceed as if
it had been filed in the court to which it is
transferred on the date upon which it was
actually filed in the court from which it is
transferred.
(E) Frivolous claims.--Frivolous claims
brought under subparagraph (A) or (B) are
subject to dismissal and sanctions as provided
under section 1927 of title 28, United States
Code, and the Federal Rules of Civil Procedure.
(F) Security.--
(i) Subparagraph (a) actions.--The
security requirements of rule 65(c) of
the Federal Rules of Civil Procedure
apply with respect to actions commenced
under subparagraph (A).
(ii) Subparagraph (b) actions.--No
claim shall be heard, and no temporary
restraining order or temporary or
permanent injunction shall be issued,
under an action commenced under
subparagraph (B), unless the party
seeking review first files an
undertaking with adequate security in
an amount to be fixed by the court
sufficient to recompense parties
affected for any loss, expense, or
damage caused by the improvident or
erroneous issuance of such order or
injunction. If a court upholds the
constitutionality of the determination
in question in such action, the court
shall award to a prevailing party fees
and expenses, in addition to any costs
incurred by that party, unless the
court finds that the position of the
other party was substantially justified
or that special circumstances make an
award unjust.
(G) Panel record.--The record of proceedings
before the binational panel shall not be
considered part of the record for review
pursuant to subparagraph (A) or (B).
(H) Appeal to supreme court of court orders
issued in subparagraph (a) actions.--
Notwithstanding any other provision of law, any
final judgment of the United States Court of
Appeals for the District of Columbia Circuit
which is issued pursuant to an action brought
under subparagraph (A) shall be reviewable by
appeal directly to the Supreme Court of the
United States. Any such appeal shall be taken
by a notice of appeal filed within 10 days
after such order is entered; and the
jurisdictional statement shall be filed within
30 days after such order is entered. No stay of
an order issued pursuant to an action brought
under subparagraph (A) may be issued by a
single Justice of the Supreme Court.
(5) Liquidation of entries.--
(A) Application.--In the case of a
determination for which binational panel review
is requested pursuant to article 1904 of the
NAFTA or of the Agreement, the rules provided
in this paragraph shall apply, notwithstanding
the provisions of subsection (c).
(B) General rule.--In the case of a
determination for which binational panel review
is requested pursuant to article 1904 of the
NAFTA or of the Agreement, entries of
merchandise covered by such determination shall
be liquidated in accordance with the
determination of the administering authority or
the Commission, if they are entered, or
withdrawn from warehouse, for consumption on or
before the date of publication in the Federal
Register by the administering authority of
notice of a final decision of a binational
panel, or of an extraordinary challenge
committee, not in harmony with that
determination. Such notice of a decision shall
be published within 10 days of the date of the
issuance of the panel or committee decision.
(C) Suspension of liquidation.--
(i) In general.--Notwithstanding the
provisions of subparagraph (B), in the
case of a determination described in
clause (iii) or (vi) of subsection
(a)(2)(B) for which binational panel
review is requested pursuant to article
1904 of the NAFTA or of the Agreement,
the administering authority, upon
request of an interested party who was
a party to the proceeding in connection
with which the matter arises and who is
a participant in the binational panel
review, shall order the continued
suspension of liquidation of those
entries of merchandise covered by the
determination that are involved in the
review pending the final disposition of
the review.
(ii) Notice.--At the same time as the
interested party makes its request to
the administering authority under
clause (i), that party shall serve a
copy of its request on the United
States Secretary, the relevant FTA
Secretary, and all interested parties
who were parties to the proceeding in
connection with which the matter
arises.
(iii) Application of suspension.--If
the interested party requesting
continued suspension of liquidation
under clause (i) is a foreign
manufacturer, producer, or exporter, or
a United States importer, the continued
suspension of liquidation shall apply
only to entries of merchandise
manufactured, produced, exported, or
imported by that particular
manufacturer, producer, exporter, or
importer. If the interested party
requesting the continued suspension of
liquidation under clause (i) is an
interested party described in
subparagraph (C), (D), (E) or (F) of
section 771(9), the continued
suspension of liquidation shall apply
only to entries which could be affected
by a decision of the binational panel
convened under chapter 19 of the NAFTA
or of the Agreement.
(iv) Judicial review.--Any action
taken by the administering authority or
the United States Customs Service under
this subparagraph shall not be subject
to judicial review, and no court of the
United States shall have power or
jurisdiction to review such action on
any question of law or fact by an
action in the nature of mandamus or
otherwise.
(6) Injunctive relief.--Except for cases under
paragraph (4)(B), in the case of a determination for
which binational panel review is requested pursuant to
article 1904 of the NAFTA or of the Agreement, the
provisions of subsection (c)(2) shall not apply.
(7) Implementation of international obligations under
article 1904 of the nafta or the agreement.--
(A) Action upon remand.--If a determination
is referred to a binational panel or
extraordinary challenge committee under the
NAFTA or the Agreement and the panel or
committee makes a decision remanding the
determination to the administering authority or
the Commission, the administering authority or
the Commission shall, within the period
specified by the panel or committee, take
action not inconsistent with the decision of
the panel or committee. Any action taken by the
administering authority or the Commission under
this paragraph shall not be subject to judicial
review, and no court of the United States shall
have power or jurisdiction to review such
action on any question of law or fact by an
action in the nature of mandamus or otherwise.
(B) Application if subparagraph (a) held
unconstitutional.--In the event that the
provisions of subparagraph (A) are held
unconstitutional under the provisions of
subparagraphs (A) and (H) of paragraph (4), the
provisions of this subparagraph shall take
effect. In such event, the President is
authorized on behalf of the United States to
accept, as a whole, the decision of a
binational panel or extraordinary challenge
committee remanding the determination to the
administering authority or the Commission
within the period specified by the panel or
committee. Upon acceptance by the President of
such a decision, the administering authority or
the Commission shall, within the period
specified by the panel or committee, take
action not inconsistent with such decision. Any
action taken by the President, the
administering authority, or the Commission
under this subparagraph shall not be subject to
judicial review, and no court of the United
States shall have power or jurisdiction to
review such action on any question of law or
fact by an action in the nature of mandamus or
otherwise.
(8) Requests for binational panel review.--
(A) Interested party requests for binational
panel review.--
(i) General rule.--An interested
party who was a party to the proceeding
in which a determination is made may
request binational panel review of such
determination by filing a request with
the United States Secretary by no later
than the date that is 30 days after the
date described in subparagraph (A),
(B), or (E) of subsection (a)(5) that
is applicable to such determination.
Receipt of such request by the United
States Secretary shall be deemed to be
a request for binational panel review
within the meaning of article 1904(4)
of the NAFTA or of the Agreement. Such
request shall contain such information
and be in such form, manner, and style
as the administering authority, in
consultation with the Commission, shall
prescribe by regulations.
(ii) Suspension of time to request
binational panel review under the
nafta.--Notwithstanding clause (i), the
time for requesting binational panel
review shall be suspended during the
pendency of any stay of binational
panel review that is issued pursuant to
paragraph 11(a) of article 1905 of the
NAFTA.
(B) Service of request for binational panel
review.--
(i) Service by interested party.--If
a request for binational panel review
of a determination is filed under
subparagraph (A), the party making the
request shall serve a copy, by mail or
personal service, on any other
interested party who was a party to the
proceeding in connection with which the
matter arises, and on the administering
authority or the Commission, as
appropriate.
(ii) Service by united states
secretary.--If an interested party to
the proceeding requests binational
panel review of a determination by
filing a request with the relevant FTA
Secretary, the United States Secretary
shall serve a copy of the request by
mail on any other interested party who
was a party to the proceeding in
connection with which the matter
arises, and on the administering
authority or the Commission, as
appropriate.
(C) Limitation on request for binational
panel review.--Absent a request by an
interested party under subparagraph (A), the
United States may not request binational panel
review of a determination under article 1904 of
the NAFTA or the Agreement.
(9) Representation in panel proceedings.--In the case
of binational panel proceedings convened under chapter
19 of the NAFTA or of the Agreement, the administering
authority and the Commission shall be represented by
attorneys who are employees of the administering
authority or the Commission, respectively. Interested
parties who were parties to the proceeding in
connection with which the matter arises shall have the
right to appear and be represented by counsel before
the binational panel.
(10) Notification of class or kind rulings.--In the
case of a determination which is described in paragraph
(2)(B)(vi) of subsection (a) and which is subject to
the provisions of paragraph (2), the administering
authority, upon request, shall inform any interested
person of the date on which the Government of the
relevant FTA country received notice of the
determination under paragraph 4 of article 1904 of the
NAFTA or the Agreement.
(11) Suspension and termination of suspension of
article 1904 of the nafta.--
(A) Suspension of article 1904.--If a special
committee established under article 1905 of the
NAFTA issues an affirmative finding, the Trade
Representative may, in accordance with
paragraph 8(a) or 9, as appropriate, of article
1905 of the NAFTA, suspend the operation of
article 1904 of the NAFTA.
(B) Termination of suspension of article
1904.--If a special committee is reconvened and
makes an affirmative determination described in
paragraph 10(b) of article 1905 of the NAFTA,
any suspension of the operation of article 1904
of the NAFTA shall terminate.
(12) Judicial review upon termination of binational
panel or committee review under the nafta.--
(A) Notice of suspension or termination of
suspension of article 1904.--
(i) Upon notification by the Trade
Representative or the Government of a
country described in subsection
(f)(10)(A) or (B) that the operation of
article 1904 of the NAFTA has been
suspended in accordance with paragraph
8(a) or 9 of article 1905 of the NAFTA,
the United States Secretary shall
publish in the Federal Register a
notice of suspension of article 1904 of
the NAFTA.
(ii) Upon notification by the Trade
Representative or the Government of a
country described in subsection
(f)(10)(A) or (B) that the suspension
of the operation of article 1904 of the
NAFTA is terminated in accordance with
paragraph 10 of article 1905 of the
NAFTA, the United States Secretary
shall publish in the Federal Register a
notice of termination of suspension of
article 1904 of the NAFTA.
(B) Transfer of final determinations for
judicial review upon suspension of article
1904.--If the operation of article 1904 of the
NAFTA is suspended in accordance with paragraph
8(a) or 9 of article 1905 of the NAFTA--
(i) upon the request of an authorized
person described in subparagraph (C),
any final determination that is the
subject of a binational panel review or
an extraordinary challenge committee
review shall be transferred to the
United States Court of International
Trade (in accordance with rules issued
by the Court) for review under
subsection (a); or
(ii) in a case in which--
(I) a binational panel review
was completed fewer than 30
days before the suspension, and
(II) extraordinary challenge
committee review has not been
requested,
upon the request of an authorized
person described in subparagraph (C)
which is made within 60 days after the
completion of the binational panel
review, the final determination that
was the subject of the binational panel
review shall be transferred to the
United States Court of International
Trade (in accordance with rules issued
by the Court) for review under
subsection (a).
(C) Persons authorized to request transfer of
final determinations for judicial review.--A
request that a final determination be
transferred to the Court of International Trade
under subparagraph (B) may be made by--
(i) if the United States made an
allegation under paragraph 1 of article
1905 of the NAFTA and the operation of
article 1904 of the NAFTA was suspended
pursuant to paragraph 8(a) of article
1905 of the NAFTA--
(I) the government of the
relevant country described in
subsection (f)(10)(A) or (B),
(II) an interested party that
was a party to the panel or
committee review, or
(III) an interested party
that was a party to the
proceeding in connection with
which panel review was
requested, but only if the time
period for filing notices of
appearance in the panel review
has not expired, or
(ii) if a country described in
subsection (f)(10)(A) or (B) made an
allegation under paragraph 1 of article
1905 of the NAFTA and the operation of
article 1904 of the NAFTA was suspended
pursuant to paragraph 9 of article 1905
of the NAFTA--
(I) the government of that
country,
(II) an interested party that
is a person of that country and
that was a party to the panel
or committee review, or
(III) an interested party
that is a person of that
country and that was a party to
the proceeding in connection
with which panel review was
requested, but only if the time
period for filing notices of
appearance in the panel review
has not expired.
(D) Transfer for judicial review upon
settlement.--(i) If the Trade Representative
achieves a settlement with the government of a
country described in subsection (f)(10)(A) or
(B) pursuant to paragraph 7 of article 1905 of
the NAFTA, and referral for judicial review is
among the terms of such settlement, any final
determination that is the subject of a
binational panel review or an extraordinary
challenge committee review shall, upon a
request described in clause (ii), be
transferred to the United States Court of
International Trade (in accordance with rules
issued by the Court) for review under
subsection (a).
(ii) A request referred to in clause (i) is a
request made by--
(I) the country referred to in clause
(i),
(II) an interested party that was a
party to the panel or committee review,
or
(III) an interested party that was a
party to the proceeding in connection
with which panel review was requested,
but only if the time for filing notices
of appearance in the panel review has
not expired.
* * * * * * *
Part V--Enforcement Provisions
* * * * * * *
SEC. 596. AIDING UNLAWFUL IMPORTATION.
(a) Except as specified in subsection (b) or (c) of section
594 of this Act, every vessel, vehicle, animal, aircraft, or
other thing used in, to aid in, or to facilitate, by obtaining
information or in any other way, the importation, bringing in,
unlading, landing, removal, concealing, harboring, or
subsequent transportation of any article which is being or has
been introduced, or attempted to be introduced, into the United
States contrary to law, whether upon such vessel, vehicle,
animal, aircraft, or other thing or otherwise, may be seized
and forfeited together with its tackle, apparel, furniture,
harness, or equipment.
(b) Every person who directs, assists financially or
otherwise, or is in any way concerned in any unlawful activity
mentioned in the preceding subsection shall be liable to a
penalty equal to the value of the article or articles
introduced or attempted to be introduced.
(c) Merchandise which is introduced or attempted to be
introduced into the United States contrary to law shall be
treated as follows:
(1) The merchandise shall be seized and forfeited if
it--
(A) is stolen, smuggled, or clandestinely
imported or introduced;
(B) is a controlled substance, as defined in
the Controlled Substances Act (21 U.S.C. 801 et
seq.), and is not imported in accordance with
applicable law;
(C) is a contraband article, as defined in
section 1 of the Act of August 9, 1939 (49
U.S.C. App. 781); or
(D) is a plastic explosive, as defined in
section 841(q) of title 18, United States Code,
which does not contain a detection agent, as
defined in section 841(p) of such title.
(2) The merchandise may be seized and forfeited if--
(A) its importation or entry is subject to
any restriction or prohibition which is imposed
by law relating to health, safety, or
conservation and the merchandise is not in
compliance with the applicable rule,
regulation, or statute;
(B) its importation or entry requires a
license, permit or other authorization of an
agency of the United States Government and the
merchandise is not accompanied by such license,
permit, or authorization;
(C) it is merchandise or packaging in which
copyright, trademark, or trade name protection
violations are involved (including, but not
limited to, violations of section 42, 43, or 45
of the Act of July 5, 1946 (15 U.S.C. 1124,
1125, or 1127), section 506 or 509 of title 17,
United States Code, or section 2318 or 2320 of
title 18, United States Code);
(D) it is trade dress merchandise involved in
the violation of a court order citing section
43 of such Act of July 5, 1946 (15 U.S.C.
1125);
(E) it is merchandise which is marked
intentionally in violation of section 304; [or]
(F) it is merchandise for which the importer
has received written notices that previous
importations of identical merchandise from the
same supplier were found to have been marked in
violation of section 304[.]; or
(G) U.S. Customs and Border Protection
determines it is a technology, product,
service, device, component, or part thereof the
importation of which is prohibited under
subsection (a)(2) or (b)(1) of section 1201 of
title 17, United States Code.
(3) If the importation or entry of the merchandise is
subject to quantitative restrictions requiring a visa,
permit, license, or other similar document, or stamp
from the United States Government or from a foreign
government or issuing authority pursuant to a bilateral
or multilateral agreement, the merchandise shall be
subject to detention in accordance with section 499
unless the appropriate visa, license, permit, or
similar document or stamp is presented to the Customs
Service; but if the visa, permit, license, or similar
document or stamp which is presented in connection with
the importation or entry of the merchandise is
counterfeit, the merchandise may be seized and
forfeited.
(4) If the merchandise is imported or introduced
contrary to a provision of law which governs the
classification of value of merchandise and there are no
issues as to the admissibility of the merchandise into
the United States, it shall not be seized except in
accordance with section 592.
(5) In any case where the seizure and forfeiture of
merchandise are required or authorized by this section,
the Secretary may--
(A) remit the forfeiture under section 618,
or
(B) permit the exportation of the
merchandise, unless its release would adversely
affect health, safety, or conservation or be in
contravention of a bilateral or multilateral
agreement or treaty.
(d) Merchandise exported or sent from the United States or
attempted to be exported or sent from the United States
contrary to law, or the proceeds or value thereof, and property
used to facilitate the exporting or sending of such
merchandise, the attempted exporting or sending of such
merchandise, or the receipt, purchase, transportation,
concealment, or sale of such merchandise prior to exportation
shall be seized and forfeited to the United States.
* * * * * * *
SEC. 628A. EXCHANGE OF INFORMATION RELATED TO TRADE ENFORCEMENT.
(a) In General.--Subject to subsections (c) and (d), if the
Commissioner responsible for U.S. Customs and Border Protection
suspects that merchandise is being imported into the United
States in violation of section 526 of this Act or section 602,
1201(a)(2), or 1201(b)(1) of title 17, United States Code, and
determines that the examination or testing of the merchandise
by a person described in subsection (b) would assist the
Commissioner in determining if the merchandise is being
imported in violation of that section, the Commissioner, to
permit the person to conduct the examination and testing--
(1) shall provide to the person information that
appears on the merchandise and its packaging and
labels, including unredacted images of the merchandise
and its packaging and labels; and
(2) may, subject to any applicable bonding
requirements, provide to the person unredacted samples
of the merchandise.
(b) Person Described.--A person described in this subsection
is--
(1) in the case of merchandise suspected of being
imported in violation of section 526, the owner of the
trademark suspected of being copied or simulated by the
merchandise;
(2) in the case of merchandise suspected of being
imported in violation of section 602 of title 17,
United States Code, the owner of the copyright
suspected of being infringed by the merchandise;
(3) in the case of merchandise suspected of being
primarily designed or produced for the purpose of
circumventing a technological measure that effectively
controls access to a work protected under that title,
and being imported in violation of section 1201(a)(2)
of that title, the owner of a copyright in the work;
and
(4) in the case of merchandise suspected of being
primarily designed or produced for the purpose of
circumventing protection afforded by a technological
measure that effectively protects a right of an owner
of a copyright in a work or a portion of a work, and
being imported in violation of section 1201(b)(1) of
that title, the owner of the copyright.
(c) Limitation.--Subsection (a) applies only with respect to
merchandise suspected of infringing a trademark or copyright
that is recorded with U.S. Customs and Border Protection.
(d) Exception.--The Commissioner may not provide under
subsection (a) information, photographs, or samples to a person
described in subsection (b) if providing such information,
photographs, or samples would compromise an ongoing law
enforcement investigation or national security.
* * * * * * *
Part VI--Miscellaneous Provisions
SEC. 641. CUSTOMS BROKERS.
(a) Definitions.--As used in this section:
(1) The term ``customs broker'' means any person
granted a customs broker's license by the Secretary
under subsection (b).
(2) The term ``customs business'' means those
activities involving transaction with [the Customs
Service] U.S. Customs and Border Protection concerning
the entry and admissibility of merchandise, its
classification and valuation, the payment of duties,
taxes, or other charges assessed or collected by [the
Customs Service] U.S. Customs and Border Protection
upon merchandise by reason of its importation, or the
refund, rebate, or drawback thereof. It also includes
the preparation of documents or forms in any format and
the electronic transmission of documents, invoices,
bills, or parts thereof, intended to be filed with [the
Customs Service] U.S. Customs and Border Protection in
furtherance of such activities, whether or not signed
or filed by the preparer, or activities relating to
such preparation, but does not include the mere
electronic transmission of data received for
transmission to Customs.
(3) The term ``Secretary'' means the Secretary of the
Treasury.
(b) Custom Broker's Licenses.--
(1) In general.--No person may conduct customs
business (other than solely on behalf of that person)
unless that person holds a valid customs broker's
license issued by the Secretary under paragraph (2) or
(3).
(2) Licenses for individuals.--The Secretary may
grant an individual a customs broker's license only if
that individual is a citizen of the United States.
Before granting the license, the Secretary may require
an applicant to show any facts deemed necessary to
establish that the applicant is of good moral character
and qualified to render valuable service to others in
the conduct of customs business. In assessing the
qualifications of an applicant, the Secretary may
conduct an examination to determine the applicant's
knowledge of customs and related laws, regulations and
procedures, bookkeeping, accounting, and all other
appropriate matters.
(3) Licenses for corporations, etc.--The Secretary
may grant a customs broker's license to any
corporation, association, or partnership that is
organized or existing under the laws of any of the
several States of the United States if at least one
officer of the corporation or association, or one
member of the partnership, holds a valid customs
broker's license granted under paragraph (2).
(4) Duties.--A customs broker shall exercise
responsible supervision and control over the customs
business that it conducts.
(5) Lapse of license.--The failure of a customs
broker that is licensed as a corporation, association,
or partnership under paragraph (3) to have, for any
continuous period of 120 days, at least one officer of
the corporation or association, or at least one member
of the partnership, validly licensed under paragraph
(2) shall, in addition to causing the broker to be
subject to any other sanction under this section
(including paragraph (6)), result in the revocation by
operation of law of its license.
(6) Prohibited acts.--Any person who intentionally
transacts customs business, other than solely on the
behalf of that person, without holding a valid customs
broker's license granted to that person under this
subsection shall be liable to the United States for a
monetary penalty not to exceed $10,000 for each such
transaction as well as for each violation of any other
provision of this section. This penalty shall be
assessed in the same manner and under the same
procedures as the monetary penalties provided for in
subsection (d)(2)(A).
(c) Customs Broker's Permits.--
(1) In general.--Each person granted a customs
broker's license under subsection (b) shall be issued,
in accordance with such regulations as the Secretary
shall prescribe, either or both of the following:
(A) A national permit for the conduct of such
customs business as the Secretary prescribes by
regulation.
(B) A permit for each customs district in
which that person conducts customs business
and, except as provided in paragraph (2),
regularly employs at least 1 individual who is
licensed under subsection (b)(2) to exercise
responsible supervision and control over the
customs business conducted by that person in
that district.
(2) Exception.--If a person granted a customs
broker's license under subsection (b) can demonstrate
to the satisfaction of the Secretary that--
(A) he regularly employs in the region in
which that district is located at least one
individual who is licensed under subsection
(b)(2), and
(B) that sufficient procedures exist within
the company for the person employed in that
region to exercise responsible supervision and
control over the customs business conducted by
that person in that district,
the Secretary may waive the requirement in paragraph
(1)(B).
(3) Lapse of permit.--The failure of a customs broker
granted a permit under paragraph (1) to employ, for any
continuous period of 180 days, at least one individual
who is licensed under subsection (b)(2) within the
district or region (if paragraph (2) applies) for which
a permit was issued shall, in addition to causing the
broker to be subject to any other sanction under this
section (including any in subsection (d)), result in
the revocation by operation of law of the permit.
(4) Appointment of subagents.--Notwithstanding
subsection (c)(1), upon the implementation by the
Secretary under section 413(b)(2) of the component of
the National Customs Automation Program referred to in
section 411(a)(2)(B), a licensed broker may appoint
another licensed broker holding a permit in a customs
district to act on its behalf as its subagent in that
district if such activity relates to the filing of
information that is permitted by law or regulation to
be filed electronically. A licensed broker appointing a
subagent pursuant to this paragraph shall remain liable
for any and all obligations arising under bond and any
and all duties, taxes, and fees, as well as any other
liabilities imposed by law, and shall be precluded from
delegating to a subagent such liability.
(d) Disciplinary Proceedings.--
(1) General rule.--The Secretary may impose a
monetary penalty in all cases with the exception of the
infractions described in clause (iii) of subparagraph
(B) of this subsection, or revoke or suspend a license
or permit of any customs broker, if it is shown that
the broker--
(A) has made or caused to be made in any
application for any license or permit under
this section, or report filed with [the Customs
Service] U.S. Customs and Border Protection,
any statement which was, at the time and in
light of the circumstances under which it was
made, false or misleading with respect to any
material fact, or has omitted to state in any
such application or report any material fact
which was required to be stated therein;
(B) has been convicted at any time after the
filing of an application for license under
subsection (b) of any felony or misdemeanor
which the Secretary finds--
(i) involved the importation or
exportation of merchandise;
(ii) arose out of the conduct of its
customs business; or
(iii) involved larceny, theft,
robbery, extortion, forgery,
counterfeiting, fraudulent concealment,
embezzlement, fraudulent conversion, or
misappropriation of funds;
(C) has violated any provision of any law
enforced by [the Customs Service] U.S. Customs
and Border Protection or the rules or
regulations issued under any such provision;
(D) has counseled, commanded, induced,
procured, or knowingly aided or abetted the
violations by any other person of any provision
of any law enforced by [the Customs Service]
U.S. Customs and Border Protection, or the
rules or regulations issued under any such
provision;
(E) has knowingly employed, or continues to
employ, any person who has been convicted of a
felony, without written approval of such
employment from the Secretary[; or];
(F) has, in the course of its customs
business, with intent to defraud, in any manner
willfully and knowingly deceived, misled or
threatened any client or prospective client[.];
or
(G) has been convicted of committing or
conspiring to commit an act of terrorism
described in section 2332b of title 18, United
States Code.
(2) Procedures.--
(A) Monetary penalty.--Unless action has been
taken under subparagraph (B), the appropriate
customs officer shall serve notice in writing
upon any customs broker to show cause why the
broker should not be subject to a monetary
penalty not to exceed $30,000 in total for a
violation or violations of this section. The
notice shall advise the customs broker of the
allegations or complaints against him and shall
explain that the broker has a right to respond
to the allegations or complaints in writing
within 30 days of the date of the notice.
Before imposing a monetary penalty, the customs
officer shall consider the allegations or
complaints and any timely response made by the
customs broker and issue a written decision. A
customs broker against whom a monetary penalty
has been issued under this section shall have a
reasonable opportunity under section 618 to
make representations seeking remission or
mitigation of the monetary penalty. Following
the conclusion of any proceeding under section
618, the appropriate customs officer shall
provide to the customs broker a written
statement which sets forth the final
determination and the findings of fact and
conclusions of law on which such determination
is based.
(B) Revocation or suspension.--[The Customs
Service] U.S. Customs and Border Protection
may, for good and sufficient reason, serve
notice in writing upon any customs broker to
show cause why a license or permit issued under
this section should not be revoked or
suspended. The notice shall be in the form of a
statement specifically setting forth the
grounds of the complaint, and shall allow the
customs broker 30 days to respond. If no
response is filed, or [the Customs Service]
U.S. Customs and Border Protection determines
that the revocation or suspension is still
warranted, it shall notify the customs broker
in writing of a hearing to be held within 30
days, or at a later date if the broker requests
an extension and shows good cause therefor,
before an administrative law judge appointed
pursuant to section 3105 of title 5, United
States Code, who shall serve as the hearing
officer. If the customs broker waives the
hearing, or the broker or his designated
representative fails to appear at the appointed
time and place, the hearing officer shall make
findings and recommendations based on the
record submitted by the parties. At the
hearing, the customs broker may be represented
by counsel, and all proceedings, including the
proof of the charges and the response thereto
shall be presented with testimony taken under
oath and the right of cross-examination
accorded to both parties. A transcript of the
hearing shall be made and a copy will be
provided to [the Customs Service] U.S. Customs
and Border Protection and the customs broker;
which shall thereafter be provided reasonable
opportunity to file a post-hearing brief.
Following the conclusion of the hearing, the
hearing officer shall transmit promptly the
record of the hearing along with the findings
of fact and recommendations to the Secretary
for decision. The Secretary will issue a
written decision, based solely on the record,
setting forth the findings of fact and the
reasons for the decision. Such decision may
provide for the sanction contained in the
notice to show cause or any lesser sanction
authorized by this subsection, including a
monetary penalty not to exceed $30,000, then
was contained in the notice to show cause.
(3) Settlement and compromise.--The Secretary may
settle and compromise any disciplinary proceeding which
has been instituted under this subsection according to
the terms and conditions agreed to by the parties,
including but not limited to the reduction of any
proposed suspension or revocation to a monetary
penalty.
(4) Limitation of actions.--Notwithstanding section
621, no proceeding under this subsection or subsection
(b)(6) shall be commenced unless such proceeding is
instituted by the appropriate service of written notice
within 5 years from the date the alleged violation was
committed; except that if the alleged violation
consists of fraud, the 5-year period of limitation
shall commence running from the time such alleged
violation was discovered.
(e) Judicial Appeal.--
(1) In general.--A customs broker, applicant, or
other person directly affected may appeal any decision
of the Secretary denying or revoking a license or
permit under subsection (b) or (c), or revoking or
suspending a license or permit or imposing a monetary
penalty in lieu thereof under subsection (d)(2)(B), by
filing in the Court of International Trade, within 60
days after the issuance of the decision or order, a
written petition requesting that the decision or order
be modified or set aside in whole or in part. A copy of
the petition shall be transmitted promptly by the clerk
of the court to the Secretary or his designee. In cases
involving revocation or suspension of a license or
permit or imposition of a monetary penalty in lieu
thereof under subsection (d)(2)(B), after receipt of
the petition, the Secretary shall file in court the
record upon which the decision or order complained of
was entered, a provided in section 2635(d) of title 28,
United States Code.
(2) Consideration of objections.--The court shall not
consider any objection to the decision or order of the
Secretary, or to the introduction of evidence or
testimony, unless that objection was raised before the
hearing officer in suspension or revocation proceedings
unless there were reasonable grounds for failure to do
so.
(3) Conclusiveness of findings.--The findings of the
Secretary as to the facts, if supported by substantial
evidence, shall be conclusive.
(4) Additional evidence.--If any party applies to the
court for leave to present additional evidence and the
court is satisfied that the additional evidence is
material and that reasonable grounds existed for the
failure to present the evidence in the proceedings
before the hearing officer, the court may order the
additional evidence to be taken before the hearing
officer and to be presented in a manner and upon the
terms and conditions prescribed in a manner and upon
the terms and conditions prescribed by the court. The
Secretary may modify the findings of facts on the basis
of the additional evidence presented. The Secretary
shall then file with the court any new or modified
findings of fact which shall be conclusive if supported
by substantial evidence, together with a
recommendation, if any, for the modification or setting
aside of the original decision or order.
(5) Effect of proceedings.--The commencement of
proceedings under this subsection shall, unless
specifically ordered by the court, operate as a stay of
the decision of the Secretary except in the case of a
denial of a license or permit.
(6) Failure to appeal.--If an appeal is not filed
within the time limits specified in this section, the
decision by the Secretary shall be final and
conclusive. In the case of a monetary penalty imposed
under subsection (d)(2)(B) of this section, if the
amount is not tendered within 60 days after the
decision becomes final, the license shall automatically
be suspended until payment is made to [the Customs
Service] U.S. Customs and Border Protection.
(f) Regulations by the Secretary.--The Secretary may
prescribe such rules and regulations relating to the customs
business of customs brokers as the Secretary considers
necessary to protect importers and the revenue of the United
States, and to carry out the provisions of this section,
including rules and regulations governing the licensing of or
issuance of permits to customs brokers, the keeping of books,
accounts, and records by customs brokers, and documents and
correspondence, and the furnishing by customs brokers of any
other information relating to their customs business to any
duly accredited officer or employee of [the Customs Service]
U.S. Customs and Border Protection. The Secretary may not
prohibit customs brokers from limiting their liability to other
persons in the conduct of customs business. For purposes of
this subsection or any other provision of this Act pertaining
to recordkeeping, all data required to be retained by a customs
broker may be kept on microfilm, optical disc, magnetic tapes,
disks or drums, video files or any other electrically generated
medium. Pursuant to such regulations as the Secretary shall
prescribe, the conversion of data to such storage medium may be
accomplished at any time subsequent to the relevant customs
transaction and the data may be retained in a centralized basis
according to such broker's business system.
(g) Triennial Reports by Customs Brokers.--
(1) In general.--On February 1, 1985, and on February
1 of each third year thereafter, each person who is
licensed under subsection (b) shall file with the
Secretary of the Treasury a report as to--
(A) whether such person is actively engaged
in business as a customs broker; and
(B) the name under, and the address at, which
such business is being transacted.
(2) Suspension and revocation.--If a person licensed
under subsection (b) fails to file the required report
by March 1 of the reporting year, the license is
suspended, and may be thereafter revoked subject to the
following procedures:
(A) The Secretary shall transmit written
notice of suspension to the licensee no later
than March 31 of the reporting year.
(B) If the licensee files the required report
within 60 days of receipt of the [Secretary's
notice] notice under subparagraph (A), the
license shall be reinstated.
(C) In the event the required report is not
filed within the 60-day period, the license
shall be revoked without prejudice to the
filing of an application for a new license.
(h) Fees and Charges.--The Secretary may prescribe reasonable
fees and charges to defray the costs of [the Customs Service]
U.S. Customs and Border Protection in carrying out the
provisions of this section, including, but not limited to, a
fee for licenses issued under subsection (b) and fees for any
test administered by him or under his direction; except that no
separate fees shall be imposed to defray the costs of an
individual audit or of individual disciplinary proceedings of
any nature.
(i) Identification of Importers.--
(1) In general.--The Secretary shall prescribe
regulations setting forth the minimum standards for
customs brokers and importers, including nonresident
importers, regarding the identity of the importer that
shall apply in connection with the importation of
merchandise into the United States.
(2) Minimum requirements.--The regulations shall, at
a minimum, require customs brokers to implement, and
importers (after being given adequate notice) to comply
with, reasonable procedures for--
(A) collecting the identity of importers,
including nonresident importers, seeking to
import merchandise into the United States to
the extent reasonable and practicable; and
(B) maintaining records of the information
used to substantiate a person's identity,
including name, address, and other identifying
information.
(3) Penalties.--Any customs broker who fails to
collect information required under the regulations
prescribed under this subsection shall be liable to the
United States, at the discretion of the Secretary, for
a monetary penalty not to exceed $10,000 for each
violation of those regulations and subject to
revocation or suspension of a license or permit of the
customs broker pursuant to the procedures set forth in
subsection (d).
(4) Definitions.--In this subsection--
(A) the term ``importer'' means one of the
parties qualifying as an importer of record
under section 484(a)(2)(B); and
(B) the term ``nonresident importer'' means
an importer who is--
(i) an individual who is not a
citizen of the United States or an
alien lawfully admitted for permanent
residence in the United States; or
(ii) a partnership, corporation, or
other commercial entity that is not
organized under the laws of a
jurisdiction within the customs
territory of the United States (as such
term is defined in General Note 2 of
the Harmonized Tariff Schedule of the
United States) or in the Virgin Islands
of the United States.
* * * * * * *
TITLE VII--COUNTERVAILING AND ANTIDUMPING DUTIES
* * * * * * *
Subtitle D--General Provisions
* * * * * * *
Sec. 781A. Procedures for prevention of evasion of antidumping and
countervailing duty orders.
* * * * * * *
Subtitle C--Reviews; Other Actions Regarding Agreements
CHAPTER 1--REVIEW OF AMOUNT OF DUTY AND AGREEMENTS OTHER THAN
QUANTITATIVE RESTRICTION AGREEMENTS
SEC. 751. ADMINISTRATIVE REVIEW OF DETERMINATIONS.
(a) Periodic Review of Amount of Duty.--
(1) In general.--At least once during each 12-month
period beginning on the anniversary of the date of
publication of a countervailing duty order under this
title or under section 303 of this Act, an antidumping
duty order under this title or a finding under the
Antidumping Act, 1921, or a notice of the suspension of
an investigation, the administering authority, if a
request for such a review has been received and after
publication of notice of such review in the Federal
Register, shall--
(A) review and determine the amount of any
net countervailable subsidy,
(B) review, and determine (in accordance with
paragraph (2)), the amount of any antidumping
duty, and
(C) review the current status of, and
compliance with, any agreement by reason of
which an investigation was suspended, and
review the amount of any net countervailable
subsidy or dumping margin involved in the
agreement,
and shall publish in the Federal Register the results
of such review, together with notice of any duty to be
assessed, estimated duty to be deposited, or
investigation to be resumed.
(2) Determination of antidumping duties.--
(A) In general.--For the purpose of paragraph
(1)(B), the administering authority shall
determine--
(i) the normal value and export price
(or constructed export price) of each
entry of the subject merchandise, and
(ii) the dumping margin for each such
entry.
(B) Determination of antidumping or
countervailing duties for new exporters and
producers.--
(i) In general.--If the administering
authority receives a request from an
exporter or producer of the subject
merchandise establishing that--
(I) such exporter or producer
did not export the merchandise
that was the subject of an
antidumping duty or
countervailing duty order to
the United States (or, in the
case of a regional industry,
did not export the subject
merchandise for sale in the
region concerned) during the
period of investigation, and
(II) such exporter or
producer is not affiliated
(within the meaning of section
771(33)) with any exporter or
producer who exported the
subject merchandise to the
United States (or in the case
of a regional industry, who
exported the subject
merchandise for sale in the
region concerned) during that
period,
the administering authority shall
conduct a review under this subsection
to establish an individual weighted
average dumping margin or an individual
countervailing duty rate (as the case
may be) for such exporter or producer.
(ii) Time for review under clause
(i).--The administering authority shall
commence a review under clause (i) in
the calendar month beginning after--
(I) the end of the 6-month
period beginning on the date of
the countervailing duty or
antidumping duty order under
review, or
(II) the end of any 6-month
period occurring thereafter,
if the request for the review is made
during that 6-month period.
[(iii) Posting bond or security.--The
administering authority shall, at the
time a review under this subparagraph
is initiated, direct the Customs
Service to allow, at the option of the
importer, the posting, until the
completion of the review, of a bond or
security in lieu of a cash deposit for
each entry of the subject merchandise.]
[(iv)] (iii) Time limits.--The
administering authority shall make a
preliminary determination in a review
conducted under this subparagraph
within 180 days after the date on which
the review is initiated, and a final
determination within 90 days after the
date the preliminary determination is
issued, except that if the
administering authority concludes that
the case is extraordinarily
complicated, it may extend the 180-day
period to 300 days and may extend the
90-day period to 150 days.
(iv) Determinations based on bonafide
slaes.--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.
(C) Results of determinations.--The
determination under this paragraph shall be the
basis for the assessment of countervailing or
antidumping duties on entries of merchandise
covered by the determination and for deposits
of estimated duties.
(3) Time limits.--
(A) Preliminary and final determinations.--
The administering authority shall make a
preliminary determination under subparagraph
(A), (B), or (C) of paragraph (1) within 245
days after the last day of the month in which
occurs the anniversary of the date of
publication of the order, finding, or
suspension agreement for which the review under
paragraph (1) is requested, and a final
determination under paragraph (1) within 120
days after the date on which the preliminary
determination is published. If it is not
practicable to complete the review within the
foregoing time, the administering authority may
extend that 245-day period to 365 days and may
extend that 120-day period to 180 days. The
administering authority may extend the time for
making a final determination without extending
the time for making a preliminary
determination, if such final determination is
made not later than 300 days after the date on
which the preliminary determination is
published.
(B) Liquidation of entries.--If the
administering authority orders any liquidation
of entries pursuant to a review under paragraph
(1), such liquidation shall be made promptly
and, to the greatest extent practicable, within
90 days after the instructions to Customs are
issued. In any case in which liquidation has
not occurred within that 90-day period, the
Secretary of the Treasury shall, upon the
request of the affected party, provide an
explanation thereof.
(C) Effect of pending review under section
516a.--In a case in which a final determination
under paragraph (1) is under review under
section 516A and a liquidation of entries
covered by the determination is enjoined under
section 516A(c)(2) or suspended under section
516A(g)(5)(C), the administering authority
shall, within 10 days after the final
disposition of the review under section 516A,
transmit to the Federal Register for
publication the final disposition and issue
instructions to the Customs Service with
respect to the liquidation of entries pursuant
to the review. In such a case, the 90-day
period referred to in subparagraph (B) shall
begin on the day on which the administering
authority issues such instructions.
(4) Absorption of antidumping duties.--During any
review under this subsection initiated 2 years or 4
years after the publication of an antidumping duty
order under section 736(a), the administering
authority, if requested, shall determine whether
antidumping duties have been absorbed by a foreign
producer or exporter subject to the order if the
subject merchandise is sold in the United States
through an importer who is affiliated with such foreign
producer or exporter. The administering authority shall
notify the Commission of its findings regarding such
duty absorption for the Commission to consider in
conducting a review under subsection (c).
(b) Reviews Based on Changed Circumstances.--
(1) In general.--Whenever the administering authority
or the Commission receives information concerning, or a
request from an interested party for a review of--
(A) a final affirmative determination that
resulted in an antidumping duty order under
this title or a finding under the Antidumping
Act, 1921, or in a countervailing duty order
under this title or section 303,
(B) a suspension agreement accepted under
section 704 or 734, or
(C) a final affirmative determination
resulting from an investigation continued
pursuant to section 704(g) or 734(g),
which shows changed circumstances sufficient to warrant
a review of such determination or agreement, the
administering authority or the Commission (as the case
may be) shall conduct a review of the determination or
agreement after publishing notice of the review in the
Federal Register.
(2) Commission review.--In conducting a review under
this subsection, the Commission shall--
(A) in the case of a countervailing duty
order or antidumping duty order or finding,
determine whether revocation of the order or
finding is likely to lead to continuation or
recurrence of material injury,
(B) in the case of a determination made
pursuant to section 704(h)(2) or 734(h)(2),
determine whether the suspension agreement
continues to eliminate completely the injurious
effects of imports of the subject merchandise,
and
(C) in the case of an affirmative
determination resulting from an investigation
continued under section 704(g) or 734(g),
determine whether termination of the suspended
investigation is likely to lead to continuation
or recurrence of material injury.
(3) Burden of persuasion.--During a review conducted
by the Commission under this subsection--
(A) the party seeking revocation of an order
or finding described in paragraph (1)(A) shall
have the burden of persuasion with respect to
whether there are changed circumstances
sufficient to warrant such revocation, and
(B) the party seeking termination of a
suspended investigation or a suspension
agreement shall have the burden of persuasion
with respect to whether there are changed
circumstances sufficient to warrant such
termination.
(4) Limitation on period for review.--In the absence
of good cause shown--
(A) the Commission may not review a
determination made under section 705(b) or
735(b), or an investigation suspended under
section 704 or 734, and
(B) the administering authority may not
review a determination made under section
705(a) or 735(a), or an investigation suspended
under section 704 or 734,
less than 24 months after the date of publication of
notice of that determination or suspension.
(c) Five-Year Review.--
(1) In general.--Notwithstanding subsection (b) and
except in the case of a transition order defined in
paragraph (6), 5 years after the date of publication
of--
(A) a countervailing duty order (other than a
countervailing duty order to which subparagraph
(B) applies or which was issued without an
affirmative determination of injury by the
Commission under section 303), an antidumping
duty order, or a notice of suspension of an
investigation, described in subsection (a)(1),
(B) a notice of injury determination under
section 753 with respect to a countervailing
duty order, or
(C) a determination under this section to
continue an order or suspension agreement,
the administering authority and the Commission shall
conduct a review to determine, in accordance with
section 752, whether revocation of the countervailing
or antidumping duty order or termination of the
investigation suspended under section 704 or 734 would
be likely to lead to continuation or recurrence of
dumping or a countervailable subsidy (as the case may
be) and of material injury.
(2) Notice of initiation of review.--Not later than
30 days before the fifth anniversary of the date
described in paragraph (1), the administering authority
shall publish in the Federal Register a notice of
initiation of a review under this subsection and
request that interested parties submit--
(A) a statement expressing their willingness
to participate in the review by providing
information requested by the administering
authority and the Commission,
(B) a statement regarding the likely effects
of revocation of the order or termination of
the suspended investigation, and
(C) such other information or industry data
as the administering authority or the
Commission may specify.
(3) Responses to notice of initiation.--
(A) No response.--If no interested party
responds to the notice of initiation under this
subsection, the administering authority shall
issue a final determination, within 90 days
after the initiation of a review, revoking the
order or terminating the suspended
investigation to which such notice relates. For
purposes of this paragraph, an interested party
means a party described in section 771(9) (C),
(D), (E), (F), or (G).
(B) Inadequate response.--If interested
parties provide inadequate responses to a
notice of initiation, the administering
authority, within 120 days after the initiation
of the review, or the Commission, within 150
days after such initiation, may issue, without
further investigation, a final determination
based on the facts available, in accordance
with section 776.
(4) Waiver of participation by certain interested
parties.--
(A) In general.--An interested party
described in section 771(9) (A) or (B) may
elect not to participate in a review conducted
by the administering authority under this
subsection and to participate only in the
review conducted by the Commission under this
subsection.
(B) Effect of waiver.--In a review in which
an interested party waives its participation
pursuant to this paragraph, the administering
authority shall conclude that revocation of the
order or termination of the investigation would
be likely to lead to continuation or recurrence
of dumping or a countervailable subsidy (as the
case may be) with respect to that interested
party.
(5) Conduct of review.--
(A) Time limits for completion of review.--
Unless the review has been completed pursuant
to paragraph (3) or paragraph (4) applies, the
administering authority shall make its final
determination pursuant to section 752 (b) or
(c) within 240 days after the date on which a
review is initiated under this subsection. If
the administering authority makes a final
affirmative determination, the Commission shall
make its final determination pursuant to
section 752(a) within 360 days after the date
on which a review is initiated under this
subsection.
(B) Extension of time limit.--The
administering authority or the Commission (as
the case may be) may extend the period of time
for making their respective determinations
under this subsection by not more than 90 days,
if the administering authority or the
Commission (as the case may be) determines that
the review is extraordinarily complicated. In a
review in which the administering authority
extends the time for making a final
determination, but the Commission does not
extend the time for making a determination, the
Commission's determination shall be made not
later than 120 days after the date on which the
final determination of the administering
authority is published.
(C) Extraordinarily complicated.--For
purposes of this subsection, the administering
authority or the Commission (as the case may
be) may treat a review as extraordinarily
complicated if--
(i) there is a large number of
issues,
(ii) the issues to be considered are
complex,
(iii) there is a large number of
firms involved,
(iv) the orders or suspended
investigations have been grouped as
described in subparagraph (D), or
(v) it is a review of a transition
order.
(D) Grouped reviews.--The Commission, in
consultation with the administering authority,
may group orders or suspended investigations
for review if it considers that such grouping
is appropriate and will promote administrative
efficiency. Where orders or suspended
investigations have been grouped, the
Commission shall, subject to subparagraph (B),
make its final determination under this
subsection not later than 120 days after the
date that the administering authority publishes
notice of its final determination with respect
to the last order or agreement in the group.
(6) Special transition rules.--
(A) Schedule for reviews of transition
orders.--
(i) Initiation.--The administering
authority shall begin its review of
transition orders in the 42d calendar
month after the date such orders are
issued. A review of all transition
orders shall be initiated not later
than the 5th anniversary after the date
such orders are issued.
(ii) Completion.--A review of a
transition order shall be completed not
later than 18 months after the date
such review is initiated. Reviews of
all transition orders shall be
completed not later than 18 months
after the 5th anniversary of the date
such orders are issued.
(iii) Subsequent reviews.--The time
limits set forth in clauses (i) and
(ii) shall be applied to all subsequent
5-year reviews of transition orders by
substituting ``date of the
determination to continue such orders''
for ``date such orders are issued''.
(iv) Revocation and termination.--No
transition order may be revoked under
this subsection before the date that is
5 years after the date the WTO
Agreement enters into force with
respect to the United States.
(B) Sequence of transition reviews.--The
administering authority, in consultation with
the Commission, shall determine such sequence
of review of transition orders as it deems
appropriate to promote administrative
efficiency. To the extent practicable, older
orders shall be reviewed first.
(C) Definition of transition order.--For
purposes of this section, the term ``transition
order'' means--
(i) a countervailing duty order under
this title or under section 303,
(ii) an antidumping duty order under
this title or a finding under the
Antidumping Act, 1921, or
(iii) a suspension of an
investigation under section 704 or 734,
which is in effect on the date the WTO
Agreement enters into force with respect to the
United States.
(D) Issue date for transition orders.--For
purposes of this subsection, a transition order
shall be treated as issued on the date the WTO
Agreement enters into force with respect to the
United States, if such order is based on an
investigation conducted by both the
administering authority and the Commission.
(7) Exclusions from computations.--
(A) In general.--Subject to subparagraph (B),
there shall be excluded from the computation of
the 5-year period described in paragraph (1)
and the periods described in paragraph (6) any
period during which the importation of the
subject merchandise is prohibited on account of
the imposition, under the International
Emergency Economic Powers Act or other
provision of law, of sanctions by the United
States against the country in which the subject
merchandise originates.
(B) Application of exclusion.--Subparagraph
(A) shall apply only with respect to subject
merchandise which originates in a country that
is not a WTO member.
(d) Revocation of Order or Finding; Termination of Suspended
Investigation.--
(1) In general.--The administering authority may
revoke, in whole or in part, a countervailing duty
order or an antidumping duty order or finding, or
terminate a suspended investigation, after review under
subsection (a) or (b). The administering authority
shall not revoke, in whole or in part, a countervailing
duty order or terminate a suspended investigation on
the basis of any export taxes, duties, or other charges
levied on the export of the subject merchandise to the
United States which are specifically intended to offset
the countervailable subsidy received.
(2) Five-year reviews.--In the case of a review
conducted under subsection (c), the administering
authority shall revoke a countervailing duty order or
an antidumping duty order or finding, or terminate a
suspended investigation, unless--
(A) the administering authority makes a
determination that dumping or a countervailable
subsidy, as the case may be, would be likely to
continue or recur, and
(B) the Commission makes a determination that
material injury would be likely to continue or
recur as described in section 752(a).
(3) Application of revocation or termination.--A
determination under this section to revoke an order or
finding or terminate a suspended investigation shall
apply with respect to unliquidated entries of the
subject merchandise which are entered, or withdrawn
from warehouse, for consumption on or after the date
determined by the administering authority.
(e) Hearings.--Whenever the administering authority or the
Commission conducts a review under this section, it shall, upon
the request of an interested party, hold a hearing in
accordance with section 774(b) in connection with that review.
(f) Determination That Basis for Suspension No Longer
Exists.--If the determination of the Commission under
subsection (b)(2)(B) is negative, the suspension agreement
shall be treated as not accepted, beginning on the date of
publication of the Commission's determination, and the
administering authority and the Commission shall proceed, under
section 704(i) or 734(i), as if the suspension agreement had
been violated on that date, except that no duty under any order
subsequently issued shall be assessed on merchandise entered,
or withdrawn from warehouse, for consumption before that date.
(g) Reviews To Implement Results of Subsidies Enforcement
Proceeding.--
(1) Violations of article 8 of the subsidies
agreement.--If--
(A) the administering authority receives
notice from the Trade Representative of a
violation of Article 8 of the Subsidies
Agreement,
(B) the administering authority has reason to
believe that merchandise subject to an existing
countervailing duty order or suspended
investigation is benefiting from the subsidy or
subsidy program found to have been in violation
of Article 8 of the Subsidies Agreement, and
(C) no review pursuant to subsection (a)(1)
is in progress,
the administering authority shall conduct a review of
the order or suspended investigation to determine
whether the subject merchandise benefits from the
subsidy or subsidy program found to have been in
violation of Article 8 of the Subsidies Agreement. If
the administering authority determines that the subject
merchandise is benefiting from the subsidy or subsidy
program, it shall make appropriate adjustments in the
estimated duty to be deposited or appropriate revisions
to the terms of the suspension agreement.
(2) Withdrawal of subsidy or imposition of
countermeasures.--If the Trade Representative notifies
the administering authority that, pursuant to Article 4
or Article 7 of the Subsidies Agreement--
(A)(i) the United States has imposed
countermeasures, and
(ii) such countermeasures are based on the
effects in the United States of imports of
merchandise that is the subject of a
countervailing duty order, or
(B) a WTO member country has withdrawn a
countervailable subsidy provided with respect
to merchandise subject to a countervailing duty
order,
the administering authority shall conduct a review to
determine if the amount of the estimated duty to be
deposited should be adjusted or the order should be
revoked.
(3) Expedited review.--The administering authority
shall conduct reviews under this subsection on an
expedited basis, and shall publish the results of such
reviews in the Federal Register.
(h) Correction of Ministerial Errors.--The administering
authority shall establish procedures for the correction of
ministerial errors in final determinations within a reasonable
time after the determinations are issued under this section.
Such procedures shall ensure opportunity for interested parties
to present their views regarding any such errors. As used in
this subsection, the term ``ministerial error'' includes errors
in addition, subtraction, or other arithmetic function,
clerical errors resulting from inaccurate copying, duplication,
or the like, and any other type of unintentional error which
the administering authority considers ministerial.
* * * * * * *
Subtitle D--General Provisions
* * * * * * *
SEC. 777. ACCESS TO INFORMATION.
(a) Information Generally Made Available.--
(1) Public information function.--There shall be
established a library of information relating to
foreign subsidy practices and countervailing measures.
Copies of material in the library shall be made
available to the public upon payment of the costs of
preparing such copies.
(2) Progress of investigation reports.--The
administering authority and the Commission shall, from
time to time upon request, inform the parties to an
investigation of the progress of that investigation.
(3) Ex parte meetings.--The administering authority
and the Commission shall maintain a record of any ex
parte meeting between--
(A) interested parties or other persons
providing factual information in connection
with a proceeding, and
(B) the person charged with making the
determination, or any person charged with
making a final recommendation to that person,
in connection with that proceeding,
if information relating to that proceeding was
presented or discussed at such meeting. The record of
such an ex parte meeting shall include the identity of
the persons present at the meeting, the date, time, and
place of the meeting, and a summary of the matters
discussed or submitted. The record of the ex parte
meeting shall be included in the record of the
proceeding.
(4) Summaries; non-proprietary submissions.--The
administering authority and the Commission shall
disclose--
(A) any proprietary information received in
the course of a proceeding if it is disclosed
in a form which cannot be associated with, or
otherwise be used to identify, operations of a
particular person, and
(B) any information submitted in connection
with a proceeding which is not designated as
proprietary by the person submitting it.
(b) Proprietary Information.--
(1) Proprietary status maintained.--
(A) In general.--Except as provided in
subsection (a)(4)(A) and subsection (c),
information submitted to the administering
authority or the Commission which is designated
as proprietary by the person submitting the
information shall not be disclosed to any
person without the consent of the person
submitting the information, other than--
(i) to an officer or employee of the
administering authority or the
Commission who is directly concerned
with carrying out the investigation in
connection with which the information
is submitted or any review under this
title covering the same subject
merchandise, or
(ii) to an officer or employee of the
United States Customs Service who is
directly involved in conducting an
investigation regarding negligence,
gross negligence, or fraud under this
title.
(B) Additional requirements.--The
administering authority and the Commission
shall require that information for which
proprietary treatment is requested be
accompanied by--
(i) either--
(I) a non-proprietary summary
in sufficient detail to permit
a reasonable understanding of
the substance of the
information submitted in
confidence, or
(II) a statement that the
information is not susceptible
to summary accompanied by a
statement of the reasons in
support of the contention, and
(ii) either--
(I) a statement which permits
the administering authority or
the Commission to release under
administrative protective
order, in accordance with
subsection (c), the information
submitted in confidence, or
(II) a statement to the
administering authority or the
Commission that the business
proprietary information is of a
type that should not be
released under administrative
protective order.
(2) Unwarranted designation.--If the administering
authority or the Commission determines, on the basis of
the nature and extent of the information or its
availability from public sources, that designation of
any information as proprietary is unwarranted, then it
shall notify the person who submitted it and ask for an
explanation of the reasons for the designation. Unless
that person persuades the administering authority or
the Commission that the designation is warranted, or
withdraws the designation, the administering authority
or the Commission, as the case may be, shall return it
to the party submitting it. In a case in which the
administering authority or the Commission returns the
information to the person submitting it, the person may
thereafter submit other material concerning the subject
matter of the returned information if the submission is
made within the time otherwise provided for submitting
such material.
(3) Section 751 reviews.--Notwithstanding the
provisions of paragraph (1), information submitted to
the administering authority or the Commission in
connection with a review under section 751(b) or 751(c)
which is designated as proprietary by the person
submitting the information may, if the review results
in the revocation of an order or finding (or
termination of a suspended investigation) under section
751(d), be used by the agency to which the information
was originally submitted in any investigation initiated
within 2 years after the date of the revocation or
termination pursuant to a petition covering the same
subject merchandise.
(c) Limited Disclosure of Certain Proprietary Information
Under Protective Order.--
(1) Disclosure by administering authority or
commission.--
(A) In general.--Upon receipt of an
application (before or after receipt of the
information requested) which describes in
general terms the information requested and
sets forth the reasons for the request, the
administering authority or the Commission shall
make all business proprietary information
presented to, or obtained by it, during a
proceeding (except privileged information,
classified information, and specific
information of a type for which there is a
clear and compelling need to withhold from
disclosure) available to interested parties who
are parties to the proceeding under a
protective order described in subparagraph (B),
regardless of when the information is submitted
during a proceeding. Customer names obtained
during any investigation which requires a
determination under section 705(b) or 735(b)
may not be disclosed by the administering
authority under protective order until either
an order is published under section 706(a) or
736(a) as a result of the investigation or the
investigation is suspended or terminated. The
Commission may delay disclosure of customer
names under protective order during any such
investigation until a reasonable time prior to
any hearing provided under section 774.
(B) Protective order.--The protective order
under which information is made available shall
contain such requirements as the administering
authority or the Commission may determine by
regulation to be appropriate. The administering
authority and the Commission shall provide by
regulation for such sanctions as the
administering authority and the Commission
determine to be appropriate, including
disbarment from practice before the agency.
(C) Time limitation on determinations.--The
administering authority or the Commission, as
the case may be, shall determine whether to
make information available under this
paragraph--
(i) not later than 14 days (7 days if
the submission pertains to a proceeding
under section 703(a) or 733(a)) after
the date on which the information is
submitted, or
(ii) if--
(I) the person that submitted
the information raises
objection to its release, or
(II) the information is
unusually voluminous or
complex,
not later than 30 days (10 days if the
submission pertains to a proceeding
under section 703(a) or 733(a)) after
the date on which the information is
submitted.
(D) Availability after determination.--If the
determination under subparagraph (C) is
affirmative, then--
(i) the business proprietary
information submitted to the
administering authority or the
Commission on or before the date of the
determination shall be made available,
subject to the terms and conditions of
the protective order, on such date; and
(ii) the business proprietary
information submitted to the
administering authority or the
Commission after the date of the
determination shall be served as
required by subsection (d).
(E) Failure to disclose.--If a person
submitting information to the administering
authority refuses to disclose business
proprietary information which the administering
authority determines should be released under a
protective order described in subparagraph (B),
the administering authority shall return the
information, and any nonconfidential summary
thereof, to the person submitting the
information and summary and shall not consider
either.
(2) Disclosure under court order.--If the
administering authority denies a request for
information under paragraph (1), then application may
be made to the United States Customs Court for an order
directing the administering authority or the Commission
to make the information available. After notification
of all parties to the investigation and after an
opportunity for a hearing on the record, the court may
issue an order, under such conditions as the court
deems appropriate, which shall not have the effect of
stopping or suspending the investigation, directing the
administering authority or the Commission to make all
or a portion of the requested information described in
the preceding sentence available under a protective
order and setting forth sanctions for violation of such
order if the court finds that, under the standards
applicable in proceedings of the court, such an order
is warranted, and that--
(A) the administering authority or the
Commission has denied access to the information
under subsection (b)(1),
(B) the person on whose behalf the
information is requested is an interested party
who is a party to the investigation in
connection with which the information was
obtained or developed, and
(C) the party which submitted the information
to which the request relates has been notified,
in advance of the hearing, of the request made
under this section and of its right to appear
and be heard.
(d) Service.--Any party submitting written information,
including business proprietary information, to the
administering authority or the Commission during a proceeding
shall, at the same time, serve the information upon all
interested parties who are parties to the proceeding, if the
information is covered by a protective order. The administering
authority or the Commission shall not accept any such
information that is not accompanied by a certificate of service
and a copy of the protective order version of the document
containing the information. Business proprietary information
shall only be served upon interested parties who are parties to
the proceeding that are subject to protective order; however, a
nonconfidential summary thereof shall be served upon all other
interested parties who are parties to the proceeding.
(f) Disclosure of Proprietary Information Under Protective
Orders Issued Pursuant to the North American Free Trade
Agreement or the United States-Canada Agreement.--
(1) Issuance of protective orders.--
(A) In general.--If binational panel review
of a determination under this title is
requested pursuant to article 1904 of the NAFTA
or the United States-Canada Agreement, or an
extraordinary challenge committee is convened
under Annex 1904.13 of the NAFTA or the United
States-Canada Agreement, the administering
authority or the Commission, as appropriate,
may make available to authorized persons, under
a protective order described in paragraph (2),
a copy of all proprietary material in the
administrative record made during the
proceeding in question. If the administrating
authority or the Commission claims a privilege
as to a document or portion of a document in
the administrative record of the proceeding in
question and a binational panel or
extraordinary challenge committee finds that in
camera inspection or limited disclosure of that
document or portion thereof is required by
United States law, the administering authority
or the Commission, as appropriate, may restrict
access to such document or portion thereof to
the authorized persons identified by the panel
or committee as requiring access and may
require such persons to obtain access under a
protective order described in paragraph (2).
(B) Authorized persons.--For purposes of this
subsection, the term ``authorized persons''
means--
(i) the members of, and the
appropriate staff of, the binational
panel or the extraordinary challenge
committee, as the case may be, and the
Secretariat,
(ii) counsel for parties to such
panel or committee proceeding, and
employees, and persons under the
direction and control, of such counsel,
(iii) any officer or employee of the
United States Government designated by
the administering authority or the
Commission, as appropriate, to whom
disclosure is necessary in order to
make recommendations to the Trade
Representative regarding the convening
of extraordinary challenge committees
under chapter 19 of the NAFTA or the
Agreement, and
(iv) any officer or employee of the
Government of a free trade area country
(as defined in section 516A(f)(10))
designated by an authorized agency of
such country to whom disclosure is
necessary in order to make decisions
regarding the convening of
extraordinary challenge committees
under chapter 19 of the NAFTA or the
Agreement.
(C) Review.--A decision concerning the
disclosure or nondisclosure of material under
protective order by the administering authority
or the Commission shall not be subject to
judicial review, and no court of the United
States shall have power or jurisdiction to
review such decision on any question of law or
fact by an action in the nature of mandamus or
otherwise.
(2) Contents of protective order.--Each protective
order issued under this subsection shall be in such
form and contain such requirements as the administering
authority or the Commission may determine by regulation
to be appropriate. The administering authority and the
Commission shall ensure that regulations issued
pursuant to this paragraph shall be designed to provide
an opportunity for participation in the binational
panel proceeding, including any extraordinary
challenge, equivalent to that available for judicial
review of determinations by the administering authority
or the Commission that are not subject to review by a
binational panel.
(3) Prohibited acts.--It is unlawful for any person
to violate, to induce the violation of, or knowingly to
receive information the receipt of which constitutes a
violation of, any provision of a protective order
issued under this subsection or to violate, to induce
the violation of, or knowingly to receive information
the receipt of which constitutes a violation of, any
provision of an undertaking entered into with an
authorized agency of a free trade area country (as
defined in section 516A(f)(10)) to protect proprietary
material during binational panel or extraordinary
challenge committee review pursuant to article 1904 of
the NAFTA or the United States-Canada Agreement.
(4) Sanctions for violation of protective orders.--
Any person, except a judge appointed to a binational
panel or an extraordinary challenge committee under
section 402(b) of the North American Free Trade
Agreement Implementation Act, who is found by the
administering authority or the Commission, as
appropriate, after notice and an opportunity for a
hearing in accordance with section 554 of title 5,
United States Code, to have committed an act prohibited
by paragraph (3) shall be liable to the United States
for a civil penalty and shall be subject to such other
administrative sanctions, including, but not limited
to, debarment from practice before the administering
authority or the Commission, as the administering
authority or the Commission determines to be
appropriate. The amount of the civil penalty shall not
exceed $100,000 for each violation. Each day of a
continuing violation shall constitute a separate
violation. The amount of such civil penalty and other
sanctions shall be assessed by the administering
authority or the Commission by written notice, except
that assessment shall be made by the administering
authority for violation, or inducement of a violation
or receipt of information with reason to know that such
information was disclosed in violation, of an
undertaking entered into by any person with an
authorized agency of a free trade area country (as
defined in section 516A(f)(10)).
(5) Review of sanctions.--Any person against whom
sanctions are imposed under paragraph (4) may obtain
review of such sanctions by filing a notice of appeal
in the United States Court of International Trade
within 30 days from the date of the order imposing the
sanction and by simultaneously sending a copy of such
notice by certified mail to the administering authority
or the Commission, as appropriate. The administering
authority or the Commission shall promptly file in such
court a certified copy of the record upon which such
violation was found or such sanction imposed, as
provided in section 2112 of title 28, United States
Code. The findings and order of the administering
authority or the Commission shall be set aside by the
court only if the court finds that such findings and
order are not supported by substantial evidence, as
provided in section 706(2) of title 5, United States
Code.
(6) Enforcement of sanctions.--If any person fails to
pay an assessment of a civil penalty or to comply with
other administrative sanctions after the order imposing
such sanctions becomes a final and unappealable order,
or after the United States Court of International Trade
has entered final judgment in favor of the
administering authority or the Commission, an action
may be filed in such court to enforce the sanctions. In
such action, the validity and appropriateness of the
final order imposing the sanctions shall not be subject
to review.
(7) Testimony and production of papers.--
(A) Authority to obtain information.--For the
purpose of conducting any hearing and carrying
out other functions and duties under this
subsection, the administering authority and the
Commission, or their duly authorized agents--
(i) shall have access to and the
right to copy any pertinent document,
paper, or record in the possession of
any individual, partnership,
corporation, association, organization,
or other entity,
(ii) may summon witnesses, take
testimony, and administer oaths,
(iii) and may require any individual
or entity to produce pertinent
documents, books, or records.
Any member of the Commission, and any person so
designated by the administering authority, may
sign subpoenas, and members and agents of the
administering authority and the Commission,
when authorized by the administering authority
or the Commission, as appropriate, may
administer oaths and affirmations, examine
witnesses, take testimony, and receive
evidence.
(B) Witnesses and evidence.--The attendance
of witnesses who are authorized to be summoned,
and the production of documentary evidence
authorized to be ordered, under subparagraph
(A) may be required from any place in the
United States at any designated place of
hearing. In the case of disobedience to a
subpoena issued under subparagraph (A), an
action may be filed in any district or
territorial court of the United States to
require the attendance and testimony of
witnesses and the production of documentary
evidence. Such court, within the jurisdiction
of which such inquiry is carried on, may, in
case of contumacy or refusal to obey a subpoena
issued to any individual, partnership,
corporation, association, organization or other
entity, issue any order requiring such
individual or entity to appear before the
administering authority or the Commission, or
to produce documentary evidence if so ordered
or to give evidence concerning the matter in
question. Any failure to obey such order of the
court may be punished by the court as a
contempt thereof.
(C) Mandamus.--Any court referred to in
subparagraph (B) shall have jurisdiction to
issue writs of mandamus commanding compliance
with the provisions of this subsection or any
order of the administering authority or the
Commission made in pursuance thereof.
(D) Depositions.--For purposes of carrying
out any functions or duties under this
subsection, the administering authority or the
Commission may order testimony to be taken by
deposition. Such deposition may be taken before
any person designated by the administering
authority or Commission and having power to
administer oaths. Such testimony shall be
reduced to writing by the person taking the
deposition, or under the direction of such
person, and shall then be subscribed by the
deponent. Any individual, partnership,
corporation, association, organization or other
entity may be compelled to appear and depose
and to produce documentary evidence in the same
manner as witnesses may be compelled to appear
and testify and produce documentary evidence
before the administering authority or
Commission, as provided in this paragraph.
(E) Fees and mileage of witnesses.--Witnesses
summoned before the administering authority or
the Commission shall be paid the same fees and
mileage that are paid witnesses in the courts
of the United States.
(g) Information Relating to Violations of Protective Orders
and Sanctions.--The administering authority and the Commission
may withhold from disclosure any correspondence, private
letters of reprimand, settlement agreements, and documents and
files compiled in relation to investigations and actions
involving a violation or possible violation of a protective
order issued under subsection (c) or (d), and such information
shall be treated as information described in section 552(b)(3)
of title 5, United States Code.
(h) Opportunity for Comment by Consumers and Industrial
Users.--The administering authority and the Commission shall
provide an opportunity for industrial users of the subject
merchandise and, if the merchandise is sold at the retail
level, for representative consumer organizations, to submit
relevant information to the administering authority concerning
dumping or a countervailable subsidy, and to the Commission
concerning material injury by reason of dumped or subsidized
imports.
(i) Publication of Determinations; Requirements for Final
Determinations.--
(1) In general.--Whenever the administering authority
makes a determination under section 702 or 732 whether
to initiate an investigation, or the administering
authority or the Commission makes a preliminary
determination under section 703 or 733, a final
determination under section 705 or section 735, a
preliminary or final determination in a review under
section 751, a determination to suspend an
investigation under this title, or a determination
under section 753, the administering authority or the
Commission, as the case may be, shall publish the facts
and conclusions supporting that determination, and
shall publish notice of that determination in the
Federal Register.
(2) Contents of notice or determination.--The notice
or determination published under paragraph (1) shall
include, to the extent applicable--
(A) in the case of a determination of the
administering authority--
(i) the names of the exporters or
producers of the subject merchandise
or, when providing such names is
impracticable, the countries exporting
the subject merchandise to the United
States,
(ii) a description of the subject
merchandise that is sufficient to
identify the subject merchandise for
customs purposes,
(iii)(I) with respect to a
determination in an investigation under
subtitle A or section 753 or in a
review of a countervailing duty order,
the amount of the countervailable
subsidy established and a full
explanation of the methodology used in
establishing the amount, and
(II) with respect to a determination
in an investigation under subtitle B or
in a review of an antidumping duty
order, the weighted average dumping
margins established and a full
explanation of the methodology used in
establishing such margins, and
(iv) the primary reasons for the
determination; and
(B) in the case of a determination of the
Commission--
(i) considerations relevant to the
determination of injury, and
(ii) the primary reasons for the
determination.
(3) Additional requirements for final
determinations.--In addition to the requirements set
forth in paragraph (2)--
(A) the administering authority shall include
in a final determination described in paragraph
(1) an explanation of the basis for its
determination that addresses relevant
arguments, made by interested parties who are
parties to the investigation or review (as the
case may be), concerning the establishment of
dumping or a countervailable subsidy, or the
suspension of the investigation, with respect
to which the determination is made; and
(B) the Commission shall include in a final
determination of injury an explanation of the
basis for its determination that addresses
relevant arguments that are made by interested
parties who are parties to the investigation or
review (as the case may be) concerning volume,
price effects, and impact on the industry of
imports of the subject merchandise.
* * * * * * *
SEC. 781A. PROCEDURES FOR PREVENTION 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.
(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; or
(B) an antidumping duty order issued under
section 736.
(4) Evasion.--
(A) In general.--Except as provided in
subparagraph (B), the term ``evasion'' refers
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.
(B) Exception for clerical error.--
(i) In general.--Except as provided
in clause (ii), the term ``evasion''
does not include entering covered
merchandise into the customs territory
of the United States by means of--
(I) a document or
electronically transmitted data
or information, written or oral
statement, or act that is false
as a result of a clerical
error; or
(II) an omission that results
from a clerical error.
(ii) Patterns of negligent conduct.--
If the Commissioner determines that a
person has entered covered merchandise
into the customs territory of the
United States by means of a clerical
error referred to in subclause (I) or
(II) of clause (i) and that the
clerical error is part of a pattern of
negligent conduct on the part of that
person, the Commissioner may determine,
notwithstanding clause (i), that the
person has entered such covered
merchandise into the customs territory
of the United States through evasion.
(iii) Electronic repetition of
errors.--For purposes of clause (ii),
the mere nonintentional repetition by
an electronic system of an initial
clerical error does not constitute a
pattern of negligent conduct.
(iv) Rule of construction.--A
determination by the Commissioner that
a person has entered covered
merchandise into the customs territory
of the United States by means of a
clerical error referred to in subclause
(I) or (II) of clause (i) rather than
through evasion shall not be construed
to excuse that person from the payment
of any duties applicable to the
merchandise.
(b) Prevention by Administering Authority.--
(1) Procedures for initiating investigations.--
(A) Initiation by administering authority.--
An investigation under this subsection shall be
initiated with respect to merchandise imported
into the United States whenever the
administering authority determines, from
information available to the administering
authority, that an investigation is warranted
with respect to whether the merchandise is
covered merchandise.
(B) Initiation by petition or referral.--
(i) In general.--The administering
authority shall determine whether to
initiate an investigation under this
subparagraph not later than 30 days
after the date on which the
administering authority receives a
petition described in clause (ii) or a
referral described in clause (iii).
(ii) Petition described.--A petition
described in this clause is a petition
that--
(I) is filed with the
administering authority by an
interested party specified in
subparagraph (A), (C), (D),
(E), (F), or (G) of section
771(9);
(II) alleges that merchandise
imported into the United States
is covered merchandise; and
(III) is accompanied by
information reasonably
available to the petitioner
supporting those allegations.
(iii) Referral described.--A referral
described in this clause is a referral
made by the Commissioner pursuant to
subsection (c)(1).
(2) Time limits for determinations.--
(A) Preliminary determination.--
(i) In general.--Not later than 90
days after the administering authority
initiates an investigation under
paragraph (1) with respect to
merchandise, the administering
authority shall issue a preliminary
determination, based on information
available to the administering
authority at the time of the
determination, with respect to whether
there is a reasonable basis to believe
or suspect that the merchandise is
covered merchandise.
(ii) Expedited procedures.--If the
administering authority determines that
expedited action is warranted with
respect to an investigation initiated
under paragraph (1), the administering
authority may publish the notice of
initiation of the investigation and the
notice of the preliminary determination
in the Federal Register at the same
time.
(B) Final determination by the administering
authority.--The administering authority shall
issue a final determination with respect to
whether merchandise is covered merchandise not
later than 300 days after the date on which the
administering authority initiates an
investigation under paragraph (1) with respect
to the merchandise.
(3) Access to information.--
(A) Entry documents, records, and other
information.--Upon receiving a request from the
administering authority, and not later than 10
days after receiving the administering
authority's request, the Commissioner shall
transmit to the administering authority copies
of the documentation and information required
by section 484(a)(1) with respect to the entry
of the merchandise, as well as any other
documentation or information requested by the
administering authority.
(B) Access of interested parties.--Not later
than 10 business days after the date on which
the administering authority initiates an
investigation under paragraph (1) with respect
to merchandise, the administering authority
shall provide to the authorized representative
of each interested party that filed a petition
under paragraph (1) or otherwise participates
in a proceeding, pursuant to a protective
order, the copies of the entry documentation
and any other information received by the
administering authority under subparagraph (A).
(C) Business proprietary information from
prior segments.--Where an authorized
representative to an interested party
participating in an investigation under
paragraph (1) has access to business
proprietary information released pursuant to
administrative protective order in a proceeding
under 19 U.S.C. Sec. Sec. 1671 et seq., 1673
et seq., or 1675 et seq. that is relevant to
the investigation conducted under paragraph
(1), that authorized representative may submit
such information to the administering authority
for its consideration in the context of the
investigation conducted under paragraph (1).
(4) Authority to collect and verify additional
information.--In making a determination under paragraph
(2) with respect to covered merchandise, the
administering authority may collect such additional
information as is necessary to make the determination
through such methods as the administering authority
considers appropriate, including by--
(A) issuing a questionnaire with respect to
such covered merchandise to--
(i) a person that filed an allegation
under paragraph (1)(B)(ii) that
resulted in the initiation of an
investigation under paragraph (1)(A)
with respect to such covered
merchandise;
(ii) a person alleged to have entered
such covered merchandise into the
customs territory of the United States
through evasion;
(iii) a person that is a foreign
producer or exporter of such covered
merchandise; or
(iv) the government of a country from
which such covered merchandise was
exported;
(B) conducting verifications, including on-
site verifications, of any relevant
information; and
(C) requesting--
(i) that the Commissioner provide any
information and data available to U.S.
Customs and Border Protection, and
(ii) that the Commissioner gather
additional necessary information from
the importer of covered merchandise and
other relevant parties.
(5) Adverse inference.--If the administering
authority finds that a person described in clause (i),
(ii), or (iii) of paragraph (4)(A) has failed to
cooperate by not acting to the best of the person's
ability to comply with a request for information, the
administering authority may, in making a determination
under paragraph (2), use an inference that is adverse
to the interests of that person in selecting from among
the facts otherwise available to make the
determination.
(6) Effect of affirmative preliminary
determination.--If the administering authority makes a
preliminary determination under paragraph (2)(A) that
merchandise is covered merchandise, the administering
authority shall instruct U.S. Customs and Border
Protection--
(A) to suspend liquidation of each entry of
the merchandise that--
(i) enters on or after the date of
the preliminary determination; or
(ii) enters before that date, if the
liquidation of the entry is not final
on that date; and
(B) to require the posting of a cash deposit
for each entry of the merchandise in an amount
determined pursuant to the order or finding
described in subsection (a)(2)(A)(i), or
administrative review conducted under section
751, that applies to the merchandise.
(7) Effect of affirmative final determination.--
(A) In general.--If the administering
authority makes a final determination under
paragraph (2)(B) that merchandise is covered
merchandise, the administering authority shall
instruct U.S. Customs and Border Protection--
(i) to assess duties on the
merchandise in an amount determined
pursuant to the order or finding
described in subsection (a)(2)(A)(i),
or administrative review conducted
under section 751, that applies to the
merchandise;
(ii) notwithstanding section 501, to
reliquidate, in accordance with such
order, finding, or administrative
review, each entry of the merchandise
that was liquidated and is determined
to include covered merchandise; and
(iii) to review and reassess the
amount of bond or other security the
importer is required to post for such
merchandise entered on or after the
date of the final determination to
ensure the protection of revenue and
compliance with the law.
(B) Additional authority.--If the
administering authority makes a final
determination under paragraph (2)(B) that
merchandise is covered merchandise, the
administering authority may instruct U.S.
Customs and Border Protection to require the
importer of the merchandise to post a cash
deposit or bond on such merchandise entered on
or after the date of the final determination in
an amount the administering authority
determines in the final determination to be
owed with respect to the merchandise.
(8) Effect of negative final determination.--If the
administering authority makes a final determination
under paragraph (2)(B) that merchandise is not covered
merchandise, the administering authority shall
terminate the suspension of liquidation and refund any
cash deposit imposed pursuant to paragraph (6) with
respect to the merchandise.
(9) Notification.--Not later than 5 business days
after making a determination under paragraph (2) with
respect to covered merchandise, the administering
authority may provide to importers, in such manner as
the administering authority determines appropriate,
information discovered in the investigation that the
administering authority determines will help educate
importers with respect to importing merchandise into
the customs territory of the United States in
accordance with all applicable laws and regulations.
(10) Special rule for cases in which the producer or
exporter is unknown.--If the administering authority is
unable to determine the actual producer or exporter of
the merchandise with respect to which the administering
authority initiated an investigation under paragraph
(1), the administering authority shall, in requiring
the posting of a cash deposit under paragraph (6) or
assessing duties pursuant to paragraph (7)(A), impose
the cash deposit or duties (as the case may be) in the
highest amount applicable to any producer or exporter
of the merchandise pursuant to any order or finding
described in subsection (a)(2)(A)(i), or any
administrative review conducted under section 751.
(11) Publication of determinations.--The
administering authority shall publish each notice of
initiation of investigation made under paragraph
(1)(A), each preliminary determination made under
paragraph (2)(A) and each final determination made
under paragraph (2)(B) in the Federal Register.
(12) Referrals to other agencies.--
(A) After preliminary determination.--
Notwithstanding section 777 and subject to
subparagraph (C), when the administering
authority makes an affirmative preliminary
determination under paragraph (2)(A), the
administering authority shall--
(i) transmit the administrative
record to the Commissioner for such
additional action as the Commissioner
determines appropriate, including
proceedings under section 592; and
(ii) at the request of the head of
another 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 administering
authority makes an affirmative final
determination under paragraph (2)(B), the
administering authority shall--
(i) transmit the complete
administrative record to the
Commissioner; and
(ii) at the request of the head of
another agency, transmit the complete
administrative record to the head of
that agency.
(c) Prevention by U.S. Customs and Border Protection.-- In
the event the Commissioner receives information that a person
is entered covered merchandise into the customs territory of
the United States through evasion, but is not able to determine
whether the merchandise is in fact covered merchandise, the
Commissioner shall--
(A) refer the matter to the administering
authority for additional proceedings under
subsection (b); and
(B) transmit to the administering authority--
(i) copies of the entry documents and
information required by section
484(a)(1) relating to the merchandise;
and
(ii) any additional records or
information that the Commissioner
considers appropriate.
(d) Cooperation Between U.S. Customs and Border Protection
and the Department of Commerce.--
(1) Notification of investigations.--Upon receiving a
petition and upon initiating an investigation under
subsection (b), the administering authority shall
notify the Commissioner.
(2) Procedures for cooperation.--Not later than 180
days after the date of the enactment of this Act, the
Commissioner and the administering authority shall
establish procedures to ensure maximum cooperation and
communication between U.S. Customs and Border
Protection and the administering authority in order to
quickly, efficiently, and accurately investigate
allegations of evasion of antidumping and
countervailing duty orders.
(e) Annual Report on Preventing Evasion of Antidumping and
Countervailing Duty Orders.--
(1) In general.--Not later than February 28 of each
year beginning in 2016, the Under Secretary for
International Trade of the Department of Commerce shall
submit to the Committee on Finance and the Committee on
Appropriations of the Senate and the Committee on Ways
and Means and the Committee on Appropriations of the
House of Representatives a report on the efforts being
taken under subsection (b) to prevent evasion of
antidumping and countervailing duty orders.
(2) Contents.--Each report required by paragraph (1)
shall include, for the year preceding the submission of
the report--
(A)(i) the number of investigations initiated
pursuant to subsection (b); and
(ii) a description of such investigations,
including--
(I) the results of such
investigations; and
(II) the amount of antidumping and
countervailing duties collected as a
result of such investigations; and
(B) the number of referrals made by the
Commissioner pursuant to subsection (c).
* * * * * * *
----------
SECTION 9503 OF THE OMNIBUS BUDGET RECONCILIATION ACT OF 1987
SEC. 9503. UNITED STATES CUSTOMS SERVICE AUTHORIZATIONS.
(a) [Omitted amendatory text]
(b) [Omitted amendatory text]
[(c) Advisory Committee on Commercial Operations of United
States Customs Service.--
[(1) The Secretary of the Treasury shall establish an
advisory committee which shall be known as the
``Advisory Committee on Commercial Operations of the
United States Customs Service''(hereafter in this
subsection referred to as the ``Advisory Committee'').
[(2)(A) The Advisory Committee shall consist of 20
members appointed by the Secretary of the Treasury.
[(B) In making appointments under subparagraph (A),
the Secretary of the Treasury shall ensure that--
[(i) the membership of the Advisory Committee
is representative of the individuals and firms
affected by the commercial operations of the
United States Customs Service; and
[(ii) a majority of the members of the
Advisory Committee do not belong to the same
political party.
[(3) The Advisory Committee shall--
[(A) provide advice to the Secretary of the
Treasury on all matters involving the
commercial operations of the United States
Customs Service; and
[(B) submit an annual report to the Committee
on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives
that shall--
[(i) describe the operations of the
Advisory Committee during the preceding
year, and
[(ii) set forth any recommendations
of the Advisory Committee regarding the
commercial operations of the United
States Customs Service.
[(4) The Assistant Secretary of the Treasury for
Enforcement shall preside over meetings of the Advisory
Committee.]
(d) [Omitted amendatory text]
----------
SECTION 2 OF THE ACT OF MARCH 3, 1927
(Public Law 69-348)
AN ACT To create a Bureau of Customs and a Bureau of Prohibition in the
Department of the Treasury.
Section 2. (a) The Secretary of the Treasury is authorized to
appoint, in each of the bureaus established by section 1, one
assistant commissioner, two deputy commissioners, one chief
clerk, and such attorneys customs and other officers and
employees as he may deem necessary. One of the deputy
commissioners of the Bureau of Customs shall have charge of
investigations. Appointments under this subdivision shall be
subject to the provisions of the civil service laws, and the
salaries shall be fixed in accordance with the Classification
Act of 1923.
(b) The Secretary of the Treasury is authorized to designate
an officer of the Bureau of Customs to act as Commissioner of
Customs, during the absence or disability of the Commissioner
of Customs, or in the event that there is no Commissioner of
Customs; and to designate an officer of the Bureau of
Prohibition to act as Commissioner of Prohibition during the
absence or disability of the Commissioner of Prohibition, or in
the event that there is no Commissioner of Prohibition.
(c) The personnel of the Bureau of Customs shall perform such
duties as the Secretary of the Treasury may prescribe.
(d) Office of International Trade.--
(1) Establishment.--There is established within the
United States Customs and Border Protection an Office
of International Trade that shall be headed by an
Assistant Commissioner.
(2) Transfer of assets, functions, and personnel;
elimination of offices.--
(A) Office of strategic trade.--
(i) In general.--Not later than 90
days after the date of the enactment of
the SAFE Port Act, the Commissioner
shall transfer the assets, functions,
and personnel of the Office of
Strategic Trade to the Office of
International Trade established
pursuant to paragraph (1) and the
Office of Strategic Trade shall be
abolished.
(ii) Limitation on funds.--No funds
appropriated to the United States
Customs and Border Protection may be
used to transfer the assets, functions,
or personnel of the Office of Strategic
Trade, to an office other than the
office established pursuant to
paragraph (1) of this subsection.
(B) Office of regulations and rulings.--
(i) In general.--Not later than 90
days after the date of the enactment of
the SAFE Port Act, the Commissioner
shall transfer the assets, functions,
and personnel of the Office of
Regulations and Rulings to the Office
of International Trade established
pursuant to paragraph (1) and the
Office of Regulations and Rulings shall
be abolished.
(ii) Limitation on funds.--No funds
appropriated to the United States
Customs and Border Protection may be
used to transfer the assets, functions,
or personnel of the Office of
Regulations and Rulings, to an office
other than the office established
pursuant to paragraph (1) of this
subsection.
(C) Other transfers.--The Commissioner is
authorized to transfer any other assets,
functions, or personnel within the United
States Customs and Border Protection to the
Office of International Trade established
pursuant to paragraph (1). Not less than 45
days prior to each such transfer, the
Commissioner shall notify the Committee on
Appropriations, the Committee on Finance, and
the Committee on Homeland Security and
Governmental Affairs of the Senate and the
Committee on Appropriations, the Committee on
Homeland Security, and the Committee on Ways
and Means of the House of Representatives of
the specific assets, functions, or personnel to
be transferred, and the reason for such
transfer. Such notification shall also
include--
(i) an explanation of how trade
enforcement functions will be impacted
by the reorganization;
(ii) an explanation of how the
reorganization meets the requirements
of section 412(b) of the Homeland
Security Act of 2002 that the
Department of Homeland Security not
diminish the customs revenue and trade
facilitation functions formerly
performed by the United States Customs
Service; and
(iii) any comments or recommendations
provided by the Commercial Operations
Advisory Committee regarding such
reorganization.
(D) Report.-- Not later than 1 year after any
reorganization pursuant to subparagraph (C)
takes place, the Commissioner, in consultation
with the Commercial Operations Advisory
Committee, shall report to the Committee on
Finance of the Senate and the Committee on Ways
and Means of the House of Representatives. Such
report shall include an assessment of the
impact of, and any suggested modifications to,
such reorganization.
(E) Limitation on authority.--Notwithstanding
any other provision of law, the Commissioner
shall not transfer any assets, functions, or
personnel from United States ports of entry,
associated with the enforcement of laws
relating to trade in textiles and apparel, to
the Office of International Trade established
pursuant to paragraph (1), until the following
conditions are met:
(i) The Commissioner submits the
initial Resource Allocation Model
required by section 301(h) of the
Customs and Procedural Reform and
Simplification Act of 1978 and includes
in such Resource Allocation Model a
section addressing the allocation of
assets, functions, and personnel
associated with the enforcement of laws
relating to trade in textiles and
apparel.
(ii) The Commissioner consults with
the Committee on Finance of the Senate
and the Committee on Ways and Means of
the House of Representatives regarding
any subsequent transfer of assets,
functions, or personnel associated with
the enforcement of laws relating to
trade in textiles and apparel, not less
than 45 days prior to such transfer.
(F) Limitation on appropriations.--No funds
appropriated to the United States Customs and
Border Protection may be used to transfer the
assets, functions, or personnel associated with
the enforcement of laws relating to trade in
textiles and apparel, before the Commissioner
consults with the congressional committees
pursuant to subparagraph (E)(ii).
(3) Commercial targeting division and national
targeting and analysis groups.--
(A) Establishment of commercial targeting
division.--
(i) In general.--The Secretary of
Homeland Security shall establish and
maintain within the Office of
International Trade a Commercial
Targeting Division.
(ii) Composition.--The Commercial
Targeting Division shall be composed
of--
(I) headquarters personnel
led by an Executive Director,
who shall report to the
Assistant Commissioner for
Trade; and
(II) individual National
Targeting and Analysis Groups,
each led by a Director who
shall report to the Executive
Director of the Commercial
Targeting Division.
(iii) Duties.--The Commercial
Targeting Division shall be dedicated--
(I) to the development and
conduct of commercial risk
assessment targeting with
respect to cargo destined for
the United States in accordance
with subparagraph (C); and
(II) to issuing Trade Alerts
described in subparagraph (D).
(B) National targeting and analysis groups.--
(i) In general.--A National Targeting
and Analysis Group referred to in
subparagraph (A)(ii)(II) shall, at a
minimum, be established for each
priority trade issue described in
clause (ii).
(ii) Priority trade issues.--
(I) In general.--The priority
trade issues described in this
clause are the following:
(aa) Agriculture
programs.
(bb) Antidumping and
countervailing duties.
(cc) Import safety.
(dd) Intellectual
property rights.
(ee) Revenue.
(ff) Textiles and
wearing apparel.
(gg) Trade agreements
and preference
programs.
(II) Modification.--The
Commissioner is authorized to
establish new priority trade
issues and eliminate,
consolidate, or otherwise
modify the priority trade
issues described in this
paragraph if the Commissioner--
(aa) determines it
necessary and
appropriate to do so;
(bb) submits to the
Committee on Finance of
the Senate and the
Committee on Ways and
Means of the House of
Representatives a
summary of proposals to
consolidate, eliminate,
or otherwise modify
existing priority trade
issues not later than
60 days before such
changes are to take
effect; and
(cc) submits to the
Committee on Finance of
the Senate and the
Committee on Ways and
Means of the House of
Representatives a
summary of proposals to
establish new priority
trade issues not later
than 30 days after such
changes are to take
effect.
(iii) Duties.--The duties of each
National Targeting and Analysis Group
shall include--
(I) directing the trade
enforcement and compliance
assessment activities of U.S.
Customs and Border Protection
that relate to the Group's
priority trade issue;
(II) 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 Federal
departments and agencies
regarding the Group's priority
trade issue; and
(III) serving as the primary
liaison between U.S. Customs
and Border Protection and the
public regarding United States
Government activities regarding
the Group's priority trade
issue, including--
(aa) providing for
receipt and
transmission to the
appropriate U.S.
Customs and Border
Protection office of
allegations from
interested parties in
the private sector of
violations of customs
and trade laws of the
United States of
merchandise relating to
the priority trade
issue;
(bb) obtaining
information from the
appropriate U.S.
Customs and Border
Protection office on
the status of any
activities resulting
from the submission of
any such allegation,
including any decision
not to pursue the
allegation, and
providing any such
information to each
interested party in the
private sector that
submitted the
allegation every 90
days after the
allegation was received
by U.S. Customs and
Border Protection
unless providing such
information would
compromise an ongoing
law enforcement
investigation; and
(cc) notifying on a
timely basis each
interested party in the
private sector that
submitted such
allegation of any civil
or criminal actions
taken by U.S. Customs
and Border Protection
or other Federal
department or agency
resulting from the
allegation.
(C) Commercial risk assessment targeting.--In
carrying out its duties with respect to
commercial risk assessment targeting, the
Commercial Targeting Division shall--
(i) establish targeted risk
assessment methodologies and
standards--
(I) for evaluating the risk
that cargo destined for the
United States may violate the
customs and trade laws of the
United States, particularly
those laws applicable to
merchandise subject to the
priority trade issues described
in subparagraph (B)(ii); and
(II) for issuing, as
appropriate, Trade Alerts
described in subparagraph (D);
and
(ii) to the extent practicable and
otherwise authorized by law, use, to
administer the methodologies and
standards established under clause (i)
--
(I) publicly available
information;
(II) information available
from the Automated Commercial
System, the Automated
Commercial Environment computer
system, the Automated Targeting
System, the Automated Export
System, the International Trade
Data System, the TECS (formerly
known as the ``Treasury
Enforcement Communications
System''), the case management
system of U.S. Immigration and
Customs Enforcement, and any
successor systems; and
(III) information made
available to the Commercial
Targeting Division, including
information provided by private
sector entities.
(D) Trade alerts.--
(i) Issuance.--Based upon the
application of the targeted risk
assessment methodologies and standards
established under subparagraph (C), the
Executive Director of the Commercial
Targeting Division and the Directors of
the National Targeting and Analysis
Groups may issue Trade Alerts to
directors of United States ports of
entry directing further inspection, or
physical examination or testing, of
specific merchandise to ensure
compliance with all applicable customs
and trade laws and regulations
administered by U.S. Customs and Border
Protection.
(ii) Determinations not to implement
trade alerts.--The director of a United
States port of entry may determine not
to conduct further inspections, or
physical examination or testing,
pursuant to a Trade Alert issued under
clause (i) if--
(I) the director finds that
such a determination is
justified by security
interests; and
(II) notifies the Assistant
Commissioner of the Office of
Field Operations and the
Assistant Commissioner of
International Trade of U.S.
Customs and Border Protection
of the determination and the
reasons for the determination
not later than 48 hours after
making the determination.
(iii) Summary of determinations not
to implement.--The Assistant
Commissioner of the Office of Field
Operations of U.S. Customs and Border
Protection shall--
(I) compile an annual public
summary of all determinations
by directors of United States
ports of entry under clause
(ii) and the reasons for those
determinations;
(II) conduct an evaluation of
the utilization of Trade Alerts
issued under clause (i); and
(III) submit the summary to
the Committee on Finance of the
Senate and the Committee on
Ways and Means of the House of
Representatives not later than
December 31 of each year.
(iv) Inspection defined.--In this
subparagraph, the term ``inspection''
means the comprehensive evaluation
process used by U.S. Customs and Border
Protection, other than physical
examination or testing, to permit the
entry of merchandise into the United
States, or the clearance of merchandise
for transportation in bond through the
United States, for purposes of--
(I) assessing duties;
(II) identifying restricted
or prohibited items; and
(III) ensuring compliance
with all applicable customs and
trade laws and regulations
administered by U.S. Customs
and Border Protection.
(e) International Trade Committee.--
(1) Establishment.-- The Commissioner shall establish
an International Trade Committee, to be chaired by the
Commissioner, and to include the Deputy Commissioner,
the Assistant Commissioner in the Office of Field
Operations, the Assistant Commissioner in the Office of
Finance, the Assistant Commissioner in the Office of
International Affairs, the Assistant Commissioner in
the Office of International Trade, the Director of the
Office of Trade Relations, and any other official
determined by the Commissioner to be important to the
work of the Committee.
(2) Responsibilities.--The International Trade
Committee shall--
(A) be responsible for advising the
Commissioner with respect to the commercial
customs and trade facilitation functions of the
United States Customs and Border Protection;
(B) assist the Commissioner in coordinating
with the Secretary regarding commercial customs
and trade facilitation functions; and
(C) oversee the operation of all programs and
systems that are involved in the assessment and
collection of duties, bonds, and other charges
or penalties associated with the entry of cargo
into the United States, or the export of cargo
from the United States, including the
administration of duty drawback and the
collection of antidumping and countervailing
duties.
(3) Annual report.--Not later than 30 days after the
end of each fiscal year, the International Trade
Committee shall submit a report to the Committee on
Finance of the Senate and the Committee on Ways and
Means of the House of Representatives. The report
shall--
(A) detail the activities of the
International Trade Committee during the
preceding fiscal year; and
(B) identify the priorities of the
International Trade Committee for the fiscal
year in which the report is filed.
(f) Definition.--In this section:
(1) Commissioner.--The term `Commissioner' means the
Commissioner responsible for the United States Customs
and Border Protection in the Department of Homeland
Security.
(2) Commercial operations advisory committee.--The
term `Commercial Operations Advisory Committee' means
the Advisory Committee established pursuant to section
9503(c) of the Omnibus Budget Reconciliation Act of
1987 or any successor committee.
----------
SECTION 343 OF THE TRADE ACT OF 2002
SEC. 343. MANDATORY ADVANCED ELECTRONIC INFORMATION FOR CARGO AND OTHER
IMPROVED CUSTOMS REPORTING PROCEDURES
(a) Cargo Information.
(1) In general.--(A) Subject to paragraphs (2) and
(3), the Secretary is authorized to promulgate
regulations providing for the transmission to the
Customs Service, through an electronic data interchange
system, of information pertaining to cargo to be
brought into the United States or to be sent from the
United States, prior to the arrival or departure of the
cargo.
(B) The Secretary shall endeavor to promulgate an
initial set of regulations under subparagraph (A) not
later than October 1, 2003.
(2) Information required.--The cargo information
required by the regulations promulgated pursuant to
paragraph (1) under the parameters set forth in
paragraph (3) shall be such information on cargo as the
Secretary determines to be reasonably necessary to
ensure cargo safety and security pursuant to those laws
enforced and administered by the Customs Service. The
Secretary shall provide to appropriate Federal
departments and agencies cargo information obtained
pursuant to paragraph (1).
(3) Parameters.--In developing regulations pursuant
to paragraph (1), the Secretary shall adhere to the
following parameters:
(A) The Secretary shall solicit comments from
and consult with a broad range of parties
likely to be affected by the regulations,
including importers, exporters, carriers,
customs brokers, and freight forwarders, among
other interested parties.
(B) In general, the requirement to provide
particular information shall be imposed on the
party most likely to have direct knowledge of
that information. Where requiring information
from the party with direct knowledge of that
information is not practicable, the regulations
shall take into account how, under ordinary
commercial practices, information is acquired
by the party on which the requirement is
imposed, and whether and how such party is able
to verify the information. Where information is
not reasonably verifiable by the party on which
a requirement is imposed, the regulations shall
permit that party to transmit information on
the basis of what it reasonably believes to be
true.
(C) The Secretary shall take into account the
existence of competitive relationships among
the parties on which requirements to provide
particular information are imposed.
(D) Where the regulations impose requirements
on carriers of cargo, they shall take into
account differences among different modes of
transportation, including differences in
commercial practices, operational
characteristics, and technological capacity to
collect and transmit information
electronically.
(E) The regulations shall take into account
the extent to which the technology necessary
for parties to transmit and the Customs Service
to receive and analyze data in a timely fashion
is available. To the extent that the Secretary
determines that the necessary technology will
not be widely available to particular modes of
transportation or other affected parties until
after promulgation of the regulations, the
regulations shall provide interim requirements
appropriate for the technology that is
available at the time of promulgation.
[(F) The information collected pursuant to
the regulations shall be used exclusively for
ensuring cargo safety and security and
preventing smuggling, and shall not be used for
determining merchandise entry or for any other
commercial enforcement purposes.
Notwithstanding the preceding sentence, nothing
in this section shall be treated as amending,
repealing, or otherwise modifying title IV of
the Tariff Act of 1930 or regulations
promulgated thereunder.]
(F) The information collected pursuant to the
regulations shall be used exclusively for
ensuring cargo safety and security, preventing
smuggling, and commercial risk assessment
targeting, and shall not be used for any
commercial enforcement purposes, including for
determining merchandise entry. Notwithstanding
the preceding sentence, nothing in this section
shall be treated as amending, repealing, or
otherwise modifying title IV of the Tariff Act
of 1930 or regulations prescribed thereunder.
(G) The regulations shall protect the privacy
of business proprietary and any other
confidential cargo information provided to the
Customs Service pursuant to such regulations,
except for the manifest information collected
pursuant to section 431 of the Tariff Act of
1930 and required to be available for public
disclosure pursuant to section 431(c) of such
Act..
(H) In determining the timing for transmittal
of any information, the Secretary shall balance
likely impact on flow of commerce with impact
on cargo safety and security. With respect to
requirements that may be imposed on carriers of
cargo, the timing for transmittal of
information shall take into account differences
among different modes of transportation, as
described in subparagraph (D).
(I) Where practicable, the regulations shall
avoid imposing requirements that are redundant
with one another or that are redundant with
requirements in other provisions of law.
(J) The Secretary shall determine whether it
is appropriate to provide transition periods
between promulgation of the regulations and the
effective date of the regulations and shall
prescribe such transition periods in the
regulations, as appropriate. The Secretary may
determine that different transition periods are
appropriate for different classes of affected
parties.
(K) With respect to requirements imposed on
carriers, the Secretary, in consultation with
the Postmaster General, shall determine whether
it is appropriate to impose the same or similar
requirements on shipments by the United States
Postal Service. If the Secretary determines
that such requirements are appropriate, then
they shall be set forth in the regulations.
(L) Not later than 15 days prior to
publication of a final rule pursuant to this
section, the Secretary shall transmit to the
Committees on Finance and Commerce, Science,
and Transportation of the Senate and the
Committees on Ways and Means and Transportation
and Infrastructure of the House of
Representatives a report setting forth--
(i) the proposed regulations;
(ii) an explanation of how particular
requirements in the proposed
regulations meet the needs of cargo
safety and security;
(iii) an explanation of how the
Secretary expects the proposed
regulations to affect the commercial
practices of affected parties;
(iv) an explanation of how the
proposed regulations address particular
comments received from interested
parties; and
(v) if the Secretary determines to
amend the proposed regulations after
they have been transmitted to the
Committees pursuant to this
subparagraph, the Secretary shall
transmit the amended regulations to
such Committees no later than 5 days
prior to the publication of the final
rule.
(4) Transmission of data.--Pursuant to paragraph (2),
not later than 1 year after the date of enactment of
this paragraph, the Secretary of Homeland Security,
after consultation with the Secretary of the Treasury,
shall establish an electronic data interchange system
through which the United States Customs and Border
Protection shall transmit to the Internal Revenue
Service information pertaining to cargoes of any
taxable fuel (as defined in section 4083 of the
Internal Revenue Code of 1986) that the United States
Customs and Border Protection has obtained
electronically under its regulations adopted in
accordance with paragraph (1). For this purpose, not
later than 1 year after the date of enactment of this
paragraph, all filers of required cargo information for
such taxable fuels (as so defined) must provide such
information to the United States Customs and Border
Protection through such electronic data interchange
system.
(b) Documentation of Waterborne Cargo.--Part II of title IV
of the Tariff Act of 1930 is amended by inserting after section
431 the following new section:
``SEC. 431A. DOCUMENTATION OF WATERBORNE CARGO.
``(a) Applicability.--This section shall apply to all cargo
to be exported that is moved by a vessel carrier from a port in
the United States.
``(b) Documentation Required.--(1) No shipper of cargo
subject to this section (including an ocean transportation
intermediary that is a non-vessel-operating common carrier (as
defined in section 3(17)(B) of the Shipping Act of 1984 (46
U.S.C. App. 1702(17)(B)) may tender or cause to be tendered to
a vessel carrier cargo subject to this section for loading on a
vessel in a United States port, unless such cargo is properly
documented pursuant to this subsection.
``(2) For the purposes of this subsection, cargo shall be
considered properly documented if the shipper submits to the
vessel carrier or its agent a complete set of shipping
documents no later than 24 hours after the cargo is delivered
to the marine terminal operator, but under no circumstances
later than 24 hours prior to departure of the vessel.
``(3) A complete set of shipping documents shall include--
``(A) for shipments for which a shipper's export
declaration is required, a copy of the export
declaration or, if the shipper files such declarations
electronically in the Automated Export System, the
complete bill of lading, and the master or equivalent
shipping instructions, including the Internal
Transaction Number (ITN); or
``(B) for shipments for which a shipper's export
declaration is not required, a shipper's export
declaration exemption statement and such other
documents or information as the Secretary may by
regulation prescribe.
``(4) The Secretary shall by regulation prescribe the time,
manner, and form by which shippers shall transmit documents or
information required under this subsection to the Customs
Service.
``(c) Loading Undocumented Cargo Prohibited.--
``(1) No marine terminal operator (as defined in
section 3(14) of the Shipping Act of 1984 (46 U.S.C.
App. 1702(14))) may load, or cause to be loaded, any
cargo subject to this section on a vessel unless
instructed by the vessel carrier operating the vessel
that such cargo has been properly documented in
accordance with this section.
``(2) When cargo is booked by 1 vessel carrier to be
transported on the vessel of another vessel carrier,
the booking carrier shall notify the operator of the
vessel that the cargo has been properly documented in
accordance with this section. The operator of the
vessel may rely on such notification in releasing the
cargo for loading aboard the vessel.
``(d) Reporting of Undocumented Cargo.--A vessel carrier
shall notify the Customs Service of any cargo tendered to such
carrier that is not properly documented pursuant to this
section and that has remained in the marine terminal for more
than 48 hours after being delivered to the marine terminal, and
the location of the cargo in the marine terminal. For vessel
carriers that are members of vessel sharing agreements (or any
other arrangement whereby a carrier moves cargo on another
carrier's vessel), the vessel carrier accepting the booking
shall be responsible for reporting undocumented cargo, without
regard to whether it operates the vessel on which the
transportation is to be made.
``(e) Assessment of Penalties.--Whoever is found to have
violated subsection (b) of this section shall be liable to the
United States for civil penalties in a monetary amount up to
the value of the cargo, or the actual cost of the
transportation, whichever is greater.
``(f) Seizure of Undocumented Cargo.--
``(1) Any cargo that is not properly documented
pursuant to this section and has remained in the marine
terminal for more than 48 hours after being delivered
to the marine terminal operator shall be subject to
search, seizure, and forfeiture.
``(2) The shipper of any such cargo is liable to the
marine terminal operator and to the ocean carrier for
demurrage and other applicable charges for any
undocumented cargo which has been notified to or
searched or seized by the Customs Service for the
entire period the cargo remains under the order and
direction of the Customs Service. Unless the cargo is
seized by the Customs Service and forfeited, the marine
terminal operator and the ocean carrier shall have a
lien on the cargo for the amount of the demurrage and
other charges.
``(g) Effect on Other Provisions. --Nothing in this section
shall be construed, interpreted, or applied to relieve or
excuse any party from compliance with any obligation or
requirement arising under any other law, regulation, or order
with regard to the documentation or carriage of cargo.''.
(c) Secretary.--For purposes of this section, the term
``Secretary'' means the Secretary of the Treasury. If, at the
time the regulations required by subsection (a)(1) are
promulgated, the Customs Service is no longer located in the
Department of the Treasury, then the Secretary of the Treasury
shall exercise the authority under subsection (a) jointly with
the Secretary of the Department in which the Customs Service is
located.
----------
TRADE ACT OF 1974
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act, with the following table of contents, may be cited as the
``Trade Act of 1974''.
* * * * * * *
TITLE II--RELIEF FROM INJURY CAUSED BY IMPORT COMPETITION
Chapter 1--Positive Adjustment by Industries Injured by Imports
* * * * * * *
Sec. 205. Trade monitoring.
* * * * * * *
TITLE III--RELIEF FROM UNFAIR TRADE PRACTICES
Chapter 1--Enforcement of United States Rights Under Trade Agreements
and Response to Foreign Trade Practices
* * * * * * *
[Sec. 310. Identification of trade liberalization priorities.]
Sec. 310. Trade enforcement priorities.
* * * * * * *
TITLE I--NEGOTIATING AND OTHER AUTHORITY
* * * * * * *
CHAPTER 6--CONGRESSIONAL LIAISON AND REPORTS
* * * * * * *
SEC. 163. REPORTS.
(a) Annual Report on Trade Agreements Program and National
Trade Policy Agenda.--
(1) The President shall submit to the Congress during
each calendar year (but not later than March 1 of that
year) a report on--
(A) the operation of the trade agreements
program, and the provision of import relief and
adjustment assistance to workers and firms,
under this Act during the preceding calendar
year; [and]
(B) the national trade policy agenda for the
year in which the report is submitted[.]; and
(C) the operation of all United States Trade
Representative-led interagency programs during
the preceding year and for the year in which
the report is submitted.
(2) The report shall include, with respect to the
matters referred to in paragraph (1)(A), information
regarding--
(A) new trade negotiations;
(B) changes made in duties and nontariff
barriers and other distortions of trade of the
United States;
(C) reciprocal concessions obtained;
(D) changes in trade agreements (including
the incorporation therein of actions taken for
import relief and compensation provided
therefor);
(E) the extension or withdrawal of
nondiscriminatory treatment by the United
States with respect to the products of foreign
countries;
(F) the extension, modification, withdrawal,
suspension, or limitation of preferential
treatment to exports of developing countries;
(G) the results of actions to obtain the
removal of foreign trade restrictions
(including discriminatory restrictions) against
United States exports and the removal of
foreign practices which discriminate against
United States service industries (including
transportation and tourism) and investment;
(H) the measures being taken to seek the
removal of other significant foreign import
restrictions;
(I) each of the referrals made under section
141(d)(1)(B) and any action taken with respect
to such referral;
(J) other information relating to the trade
agreements program and to the agreements
entered into thereunder; and
(K) the number of applications filed for
adjustment assistance for workers and firms,
the number of such applications which were
approved, and the extent to which adjustment
assistance has been provided under such
approved applications.
(3)(A) The national trade policy agenda required
under paragraph (1)(B) for the year in which a report
is submitted shall be in the form of a statement of--
(i) the trade policy objectives and
priorities of the United States for the year,
and the reasons therefor;
(ii) the actions proposed, or anticipated, to
be undertaken during the year to achieve such
objectives and priorities, including, but not
limited to, actions authorized under the trade
laws and negotiations with foreign countries;
(iii) any proposed legislation necessary or
appropriate to achieve any of such objectives
or priorities; and
(iv) the progress that was made during the
preceding year in achieving the trade policy
objectives and priorities included in the
statement provided for that year under this
paragraph.
(B) The President may separately submit any
information referred to in subparagraph (A) to the
Congress in confidence if the President considers
confidentiality appropriate.
(C) Before submitting the national trade policy
agenda for any year, the President shall seek advice
from the appropriate advisory committees established
under section 135 and shall consult with the
appropriate committees of the Congress.
(D) The United States Trade Representative (hereafter
referred to in this section as the ``Trade
Representative``'') and other appropriate officials of
the United States Government shall consult periodically
with the appropriate committees of the Congress
regarding the annual objectives and priorities set
forth in each national trade policy agenda with respect
to--
(i) the status and results of the actions
that have been undertaken to achieve the
objectives and priorities; and
(ii) any development which may require, or
result in, changes to any of such objectives or
priorities.
(4) The report shall include, with respect to the
matters referred to in paragraph (1)(C), information
regarding--
(A) the objectives and priorities of all
United States Trade Representative-led
interagency programs for the year, and the
reasons therefor;
(B) the actions proposed, or anticipated, to
be undertaken during the year to achieve such
objectives and priorities, including actions
authorized under the trade laws and
negotiations with foreign countries;
(C) the role of each Federal agency
participating in the interagency program in
achieving such objectives and priorities and
activities of each agency with respect to their
participation in the program;
(D) the United States Trade Representative's
coordination of each participating Federal
agency to more effectively achieve such
objectives and priorities;
(E) any proposed legislation necessary or
appropriate to achieve any of such objectives
or priorities; and
(F) the progress that was made during the
preceding year in achieving such objectives and
priorities and coordination activities included
in the statement provided for such year under
this paragraph.
(b) Annual Trade Projection Report.--
(1) In order for the Congress to be informed of the
impact of foreign trade barriers and macroeconomic
factors on the balance of trade of the United States,
the Trade Representative and the Secretary of the
Treasury shall jointly prepare and submit to the
Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives
(hereafter referred to in this subsection as the
``Committees'') on or before March 1 of each year a
report which consists of--
(A) a review and analysis of--
(i) the merchandise balance of trade,
(ii) the goods and services balance
of trade,
(iii) the balance on the current
account,
(iv) the external debt position,
(v) the exchange rates,
(vi) the economic growth rates,
(vii) the deficit or surplus in the
fiscal budget, and
(viii) the impact on United States
trade of market barriers and other
unfair practices,
of countries that are major trading partners of
the United States, including, as appropriate,
groupings of such countries;
(B) projections for each of the economic
factors described in subparagraph (A) (except
those described in clauses (v) and (viii)) for
each of the countries and groups of countries
referred to in subparagraph (A) for the year in
which the report is submitted and for the
succeeding year; and
(C) conclusions and recommendations, based
upon the projections referred to in
subparagraph (B), for policy changes, including
trade policy, exchange rate policy, fiscal
policy, and other policies that should be
implemented to improve the outlook.
(2) To the extent that subjects referred to in
paragraph (1) (A), (B), or (C) are covered in the
national trade policy agenda required under subsection
(a)(1)(B) or in other reports required by this Act or
other law, the Trade Representative and the Secretary
of the Treasury may, as appropriate, draw on the
information, analysis, and conclusions, if any, in
those reports for the purposes of preparing the report
required by this subsection.
(3) The Trade Representative and the Secretary of the
Treasury shall consult with the Chairman of the Board
of Governors of the Federal Reserve System in the
preparation of each report required under this
subsection.
(4) The Trade Representative and the Secretary of the
Treasury may separately submit any information,
analysis, or conclusion referred to in paragraph (1) to
the Committees in confidence if the Trade
Representative and the Secretary consider
confidentiality appropriate.
(5) After submission of each report required under
paragraph (1), the Trade Representative and the
Secretary of the Treasury shall consult with each of
the Committees with respect to the report.
(c) ITC Reports.--The United States International Trade
Commission shall submit to the Congress, at least once a year,
a factual report on the operation of the trade agreements
program.
* * * * * * *
TITLE II--RELIEF FROM INJURY CAUSED BY IMPORT COMPETITION
CHAPTER 1--POSITIVE ADJUSTMENT BY INDUSTRIES INJURED BY IMPORTS
* * * * * * *
SEC. 205. TRADE MONITORING.
(a) Monitoring Tool for Imports.--
(1) In general.--Not later than 180 days after the
date of the enactment of this section, the United
States International Trade Commission shall make
available on a website of the Commission an import
monitoring tool to allow the public access to data on
the volume and value of goods imported to the United
States for the purpose of assessing whether such data
has changed with respect to such goods over a period of
time.
(2) Data described.--For purposes of the monitoring
tool under paragraph (1), the Commission shall use data
compiled by the Department of Commerce and such other
government data as the Commission considers
appropriate.
(3) Periods of time.--The Commission shall ensure
that data accessed through the monitoring tool under
paragraph (1) includes data for the most recent quarter
for which such data are available and previous quarters
as the Commission considers practicable.
(b) Monitoring Reports.--
(1) In general.--Not later than 270 days after the
date of the enactment of this section, and not less
frequently than quarterly thereafter, the Secretary of
Commerce shall publish on a website of the Department
of Commerce, and notify the Committee on Finance of the
Senate and the Committee on Ways and Means of the House
of Representatives of the availability of, a monitoring
report on changes in the volume and value of trade with
respect to imports and exports of goods categorized
based on the 6-digit subheading number of the goods
under the Harmonized Tariff Schedule of the United
States during the most recent quarter for which such
data are available and previous quarters as the
Secretary considers practicable.
(2) Requests for comment.--Not later than one year
after the date of the enactment of this section, the
Secretary of Commerce shall solicit through the Federal
Register public comment on the monitoring reports
described in paragraph (1).
(c) Sunset.--The requirements under this section terminate on
the date that is seven years after the date of the enactment of
this section.
* * * * * * *
TITLE III--RELIEF FROM UNFAIR TRADE PRACTICES
CHAPTER 1--ENFORCEMENT OF UNITED STATES RIGHTS UNDER TRADE AGREEMENTS
AND RESPONSE TO CERTAIN FOREIGN TRADE PRACTICES
SEC. 301. ACTIONS BY UNITED STATES TRADE REPRESENTATIVE.
(a) Mandatory Action.--
(1) If the United States Trade Representative
determines under section 304(a)(1) that--
(A) the rights of the United States under any
trade agreement are being denied; or
(B) an act, policy, or practice of a foreign
country--
(i) violates, or is inconsistent
with, the provisions of, or otherwise
denies benefits to the United States
under, any trade agreement, or
(ii) is unjustifiable and burdens or
restricts United States commerce;
the Trade Representative shall take action authorized
in subsection (c), subject to the specific direction,
if any, of the President regarding any such action, and
shall take all other appropriate and feasible action
within the power of the President that the President
may direct the Trade Representative to take under this
subsection, to enforce such rights or to obtain the
elimination of such act, policy, or practice.
Actions may be taken that are within the power of the President
with respect to trade in any goods or services, or with respect
to any other area of pertinent relations with the foreign
country.
(2) The Trade Representative is not required to take
action under paragraph (1) in any case in which--
(A) the Dispute Settlement Body (as defined
in section 121(5) of the Uruguay Round
Agreements Act) has adopted a report, or a
ruling issued under the formal dispute
settlement proceeding provided under any other
trade agreement finds, that--
(i) the rights of the United States
under a trade agreement are not being
denied, or
(ii) the act, policy, or practice--
(I) is not a violation of, or
inconsistent with, the rights
of the United States, or
(II) does not deny, nullify,
or impair benefits to the
United States under any trade
agreement; or
(B) the Trade Representative finds that--
(i) the foreign country is taking
satisfactory measures to grant the
rights of the United States under a
trade agreement,
(ii) the foreign country has--
(I) agreed to eliminate or
phase out the act, policy, or
practice, or
(II) agreed to an imminent
solution to the burden or
restriction on United States
commerce that is satisfactory
to the Trade Representative,
(iii) it is impossible for the
foreign country to achieve the results
described in clause (i) or (ii), as
appropriate, but the foreign country
agrees to provide to the United States
compensatory trade benefits that are
satisfactory to the Trade
Representative,
(iv) in extraordinary cases, where
the taking of action under this
subsection would have an adverse impact
on the United States economy
substantially out of proportion to the
benefits of such action, taking into
account the impact of not taking such
action on the credibility of the
provisions of this chapter, or
(v) the taking of action under this
subsection would cause serious harm to
the national security of the United
States.
(3) Any action taken under paragraph (1) to eliminate
an act, policy, or practice shall be devised so as to
affect goods or services of the foreign country in an
amount that is equivalent in value to the burden or
restriction being imposed by that country on United
States commerce.
(b) Discretionary Action.--If the Trade Representative
determines under section 304(a)(1) that--
(1) an act, policy, or practice of a foreign country
is unreasonable or discriminatory and burdens or
restricts United States commerce, and
(2) action by the United States is appropriate, the
Trade Representative shall take all appropriate and
feasible action authorized under subsection (c),
subject to the specific direction, if any, of the
President regarding any such action, and all other
appropriate and feasible action within the power of the
President that the President may direct the Trade
Representative to take under this subsection, to obtain
the elimination of that act, policy, or practice.
Actions may be taken that are within the power of the President
with respect to trade in any goods or services, or with respect
to any other area of pertinent relations with the foreign
country.
(c) Scope of Authority.--
(1) For purposes of carrying out the provisions of
subsection (a) or (b) or section 306(c), the Trade
Representative is authorized to--
(A) suspend, withdraw, or prevent the
application of, benefits of trade agreement
concessions to carry out a trade agreement with
the foreign country referred to in such
subsection;
(B) impose duties or other import
restrictions on the goods of, and,
notwithstanding any other provision of law,
fees or restrictions on the services of, such
foreign country for such time as the Trade
Representative determines appropriate;
(C) in a case in which the act, policy, or
practice also fails to meet the eligibility
criteria for receiving duty-free treatment
under subsections (b) and (c) of section 502 of
this Act, subsections (b) and (c) of section
212 of the Caribbean Basin Economic Recovery
Act (19 U.S.C. 2702(b) and (c)), or subsections
(c) and (d) of section 203 of the Andean Trade
Preference Act (19 U.S.C. 3202(c) and (d)),
withdraw, limit, or suspend such treatment
under such provisions, notwithstanding the
provisions of subsection (a)(3) of this
section; or
(D) enter into binding agreements with such
foreign country that commit such foreign
country to--
(i) eliminate, or phase out, the act,
policy, or practice that is the subject
of the action to be taken under
subsection (a) or (b),
(ii) eliminate any burden or
restriction on United States commerce
resulting from such act, policy, or
practice, or
(iii) provide the United States with
compensatory trade benefits that--
(I) are satisfactory to the
Trade Representative, and
(II) meet the requirements of
paragraph (4).
(2)(A) Notwithstanding any other provision of law
governing any service sector access authorization, and
in addition to the authority conferred in paragraph
(1), the Trade Representative may, for purposes of
carrying out the provisions of subsection (a) or (b)--
(i) restrict, in the manner and to the extent
the Trade Representative determines
appropriate, the terms and conditions of any
such authorization, or
(ii) deny the issuance of any such
authorization.
(B) Actions described in subparagraph (A) may only be
taken under this section with respect to service sector
access authorizations granted, or applications therefor
pending, on or after the date on which--
(i) a petition is filed under section 302(a),
or
(ii) a determination to initiate an
investigation is made by the Trade
Representative under section 302(b).
(C) Before the Trade Representative takes any action
under this section involving the imposition of fees or
other restrictions on the services of a foreign
country, the Trade Representative shall, if the
services involved are subject to regulation by any
agency of the Federal Government or of any State,
consult, as appropriate, with the head of the agency
concerned.
(3) The actions the Trade Representative is
authorized to take under subsection (a) or (b) may be
taken against any goods or economic sector--
(A) on a nondiscriminatory basis or solely
against the foreign country described in such
subsection, and
(B) without regard to whether or not such
goods or economic sector were involved in the
act, policy, or practice that is the subject of
such action.
(4) Any trade agreement described in paragraph
(1)(D)(iii) shall provide compensatory trade benefits
that benefit the economic sector which includes the
domestic industry that would benefit from the
elimination of the act, policy, or practice that is the
subject of the action to be taken under subsection (a)
or (b), or benefit the economic sector as closely
related as possible to such economic sector, unless--
(A) the provision of such trade benefits is
not feasible, or
(B) trade benefits that benefit any other
economic sector would be more satisfactory than
such trade benefits.
(5) If the Trade Representative determines that
actions to be taken under subsection (a) or (b) are to
be in the form of import restrictions, the Trade
Representative shall--
(A) give preference to the imposition of
duties over the imposition of other import
restrictions, and
(B) if an import restriction other than a
duty is imposed, consider substituting, on an
incremental basis, an equivalent duty for such
other import restriction.
(6) Any action taken by the Trade Representative
under this section with respect to export targeting
shall, to the extent possible, reflect the full benefit
level of the export targeting to the beneficiary over
the period during which the action taken has an effect.
(d) Definitions and Special Rules.--For purposes of this
chapter--
(1) The term ``commerce'' includes, but is not
limited to--
(A) services (including transfers of
information) associated with international
trade, whether or not such services are related
to specific goods, and
(B) foreign direct investment by United
States persons with implications for trade in
goods or services.
(2) An act, policy, or practice of a foreign country
that burdens or restricts United States commerce may
include the provision, directly or indirectly, by that
foreign country of subsidies for the construction of
vessels used in the commercial transportation by water
of goods between foreign countries and the United
States.
(3)(A) An act, policy, or practice is unreasonable if
the act, policy, or practice, while not necessarily in
violation of, or inconsistent with, the international
legal rights of the United States, is otherwise unfair
and inequitable.
(B) Acts, policies, and practices that are
unreasonable include, but are not limited to, any act,
policy, or practice, or any combination of acts,
policies, or practices, which--
(i) denies fair and equitable--
(I) opportunities for the
establishment of an enterprise,
(II) provision of adequate and
effective protection of intellectual
property rights notwithstanding the
fact that the foreign country may be in
compliance with the specific
obligations of the Agreement on Trade-
Related Aspects of Intellectual
Property Rights referred to in section
101(d)(15) of the Uruguay Round
Agreements Act,
(III) nondiscriminatory market access
opportunities for United States persons
that rely upon intellectual property
protection, or
(IV) market opportunities, including
the toleration by a foreign government
of systematic anticompetitive
activities by enterprises or among
enterprises in the foreign country that
have the effect of restricting, on a
basis that is inconsistent with
commercial considerations, access of
United States goods or services to a
foreign market,
(ii) constitutes export targeting, or
(iii) constitutes a persistent pattern of
conduct that--
(I) denies workers the right of
association,
(II) denies workers the right to
organize and bargain collectively,
(III) permits any form of forced or
compulsory labor,
(IV) fails to provide a minimum age
for the employment of children, or
(V) fails to provide standards for
minimum wages, hours of work, and
occupational safety and health of
workers.
(C)(i) Acts, policies, and practices of a foreign
country described in subparagraph (B)(iii) shall not be
treated as being unreasonable if the Trade
Representative determines that--
(I) the foreign country has taken, or is
taking, actions that demonstrate a significant
and tangible overall advancement in providing
throughout the foreign country (including any
designated zone within the foreign country) the
rights and other standards described in the
subclauses of subparagraph (B)(iii), or
(II) such acts, policies, and practices are
not inconsistent with the level of economic
development of the foreign country.
(ii) The Trade Representative shall publish in the
Federal Register any determination made under clause
(i), together with a description of the facts on which
such determination is based.
(D) For purposes of determining whether any act,
policy, or practice is unreasonable, reciprocal
opportunities in the United States for foreign
nationals and firms shall be taken into account, to the
extent appropriate.
(E) The term ``export targeting'' means any
government plan or scheme consisting of a combination
of coordinated actions (whether carried out severally
or jointly) that are bestowed on a specific enterprise,
industry, or group thereof, the effect of which is to
assist the enterprise, industry, or group to become
more competitive in the export of a class or kind of
merchandise.
(F)(i) For the purposes of subparagraph (B)(i)(II),
adequate and effective protection of intellectual
property rights includes adequate and effective means
under the laws of the foreign country for persons who
are not citizens or nationals of such country to
secure, exercise, and enforce rights and enjoy
commercial benefits relating to patents, trademarks,
copyrights and related rights, mask works, trade
secrets, and plant breeder's rights.
(ii) For purposes of subparagraph (B)(i)(IV), the
denial of fair and equitable nondiscriminatory market
access opportunities includes restrictions on market
access related to the use, exploitation, or enjoyment
of commercial benefits derived from exercising
intellectual property rights in protected works or
fixations or products embodying protected works.
(4)(A) An act, policy, or practice is unjustifiable
if the act, policy, or practice is in violation of, or
inconsistent with, the international legal rights of
the United States.
(B) Acts, policies, and practices that are
unjustifiable include, but are not limited to, any act,
policy, or practice described in subparagraph (A) which
denies national or most-favored-nation treatment or the
right of establishment or protection of intellectual
property rights.
(5) Acts, policies, and practices that are
discriminatory include, when appropriate, any act,
policy, and practice which denies national or most-
favored-nation treatment to United States goods,
services, or investment.
(6) The term ``service sector access authorization''
means any license, permit, order, or other
authorization, issued under the authority of Federal
law, that permits a foreign supplier of services access
to the United States market in a service sector
concerned.
(7) The term ``foreign country'' includes any foreign
instrumentality. Any possession or territory of a
foreign country that is administered separately for
customs purposes shall be treated as a separate foreign
country.
(8) The term ``Trade Representative'' means the
United States Trade Representative.
(9) The term ``interested persons'', only for
purposes of sections 302(a)(4)(B), 304(b)(1)(A),
306(c)(2), and 307(a)(2), includes, but is not limited
to, domestic firms and workers, representatives of
consumer interests, United States product exporters,
and any industrial user of any goods or services that
may be affected by actions taken under subsection (a)
or (b).
* * * * * * *
SEC. 306. MONITORING OF FOREIGN COMPLIANCE.
(a) In General.--The Trade Representative shall monitor the
implementation of each measure undertaken, or agreement that is
entered into, by a foreign country to provide a satisfactory
resolution of a matter subject to investigation under this
chapter or subject to dispute settlement proceedings to enforce
the rights of the United States under a trade agreement
providing for such proceedings.
(b) [Further Action] Action on the Basis of Monitoring.--
(1) In general.--If, on the basis of the monitoring
carried out under subsection (a), the Trade
Representative considers that a foreign country is not
satisfactorily implementing a measure or agreement
referred to in subsection (a), the Trade Representative
shall determine what further action the Trade
Representative shall take under section 301(a). For
purposes of section 301, any such determination shall
be treated as a determination made under section
304(a)(1).
(2) WTO dispute settlement recommendations.--
(A) Failure to implement recommendation.--If
the measure or agreement referred to in
subsection (a) concerns the implementation of a
recommendation made pursuant to dispute
settlement proceedings under the World Trade
Organization, and the Trade Representative
considers that the foreign country has failed
to implement it, the Trade Representative shall
make the determination in paragraph (1) no
later than 30 days after the expiration of the
reasonable period of time provided for such
implementation under paragraph 21 of the
Understanding on Rules and Procedures Governing
the Settlement of Disputes that is referred to
in section 101(d)(16) of the Uruguay Round
Agreements Act.
(B) Revision of retaliation list and
action.--
(i) In general.--Except as provided
in clause (ii), in the event that the
United States initiates a retaliation
list or takes any other action
described in section 301(c)(1)(A) or
(B) against the goods of a foreign
country or countries because of the
failure of such country or countries to
implement the recommendation made
pursuant to a dispute settlement
proceeding under the World Trade
Organization, the Trade Representative
shall periodically revise the list or
action to affect other goods of the
country or countries that have failed
to implement the recommendation.
(ii) Exception.--The Trade
Representative is not required to
revise the retaliation list or the
action described in clause (i) with
respect to a country, if--
(I) the Trade Representative
determines that implementation
of a recommendation made
pursuant to a dispute
settlement proceeding described
in clause (i) by the country is
imminent; or
(II) the Trade Representative
together with the petitioner
involved in the initial
investigation under this
chapter (or if no petition was
filed, the affected United
States industry) agree that it
is unnecessary to revise the
retaliation list.
(C) Schedule for revising list or action.--
The Trade Representative shall, 120 days after
the date the retaliation list or other section
301(a) action is first taken, and every 180
days thereafter, review the list or action
taken and revise, in whole or in part, the list
or action to affect other goods of the subject
country or countries.
(D) Standards for revising list or action.--
In revising any list or action against a
country or countries under this subsection, the
Trade Representative shall act in a manner that
is most likely to result in the country or
countries implementing the recommendations
adopted in the dispute settlement proceeding or
in achieving a mutually satisfactory solution
to the issue that gave rise to the dispute
settlement proceeding. The Trade Representative
shall consult with the petitioner, if any,
involved in the initial investigation under
this chapter.
(E) Retaliation list.--The term ``retaliation
list'' means the list of products of a foreign
country or countries that have failed to comply
with the report of the panel or Appellate Body
of the WTO and with respect to which the Trade
Representative is imposing duties above the
level that would otherwise be imposed under the
Harmonized Tariff Schedule of the United
States.
(F) Requirement to include reciprocal goods
on retaliation list.--The Trade Representative
shall include on the retaliation list, and on
any revised lists, reciprocal goods of the
industries affected by the failure of the
foreign country or countries to implement the
recommendation made pursuant to a dispute
settlement proceeding under the World Trade
Organization, except in cases where existing
retaliation and its corresponding preliminary
retaliation list do not already meet this
requirement.
(c) Exercise of WTO Authorization to Suspend Concessions or
Other Obligations.--If--
(1) action has terminated pursuant to section 307(c),
(2) the petitioner or any representative of the
domestic industry that would benefit from reinstatement
of action has submitted to the Trade Representative a
written request for reinstatement of action, and
(3) the Trade Representatives has completed the
requirements of subsection (d) and section 307(c)(3),
the Trade Representative may at any time determine to take
action under section 301(c) to exercise an authorization to
suspend concessions or other obligations under Article 22 of
the Understanding on Rules and Procedures Governing the
Settlement of Disputes (referred to in section 101(d)(16) of
the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(16))).
[(c)] (d) Consultations.--Before making any determination
under subsection (b) or (c), the Trade Representative shall--
(1) consult with the petitioner, if any, involved in
the initial investigation under this chapter and with
representatives of the domestic industry concerned; and
(2) provide an opportunity for the presentation of
views by interested persons.
SEC. 307. MODIFICATION AND TERMINATION OF ACTIONS.
(a) In General.--
(1) The Trade Representative may modify or terminate
any action, subject to the specific direction, if any,
of the President with respect to such action, that is
being taken under section 301 if--
(A) any of the conditions described in
section 301(a)(2) exist,
(B) the burden or restriction on United
States commerce of the denial rights, or of the
acts, policies, and practices, that are the
subject of such action has increased or
decreased, or
(C) such action is being taken under section
301(b) and is no longer appropriate.
(2) Before taking any action under paragraph (1) to
modify or terminate any action taken under section 301,
the Trade Representative shall consult with the
petitioner, if any, and with representatives of the
domestic industry concerned, and shall provide
opportunity for the presentation of views by other
interested persons affected by the proposed
modification or termination concerning the effects of
the modification or termination and whether any
modification or termination of the action is
appropriate.
(b) Notice; Report to Congress.--The Trade Representative
shall promptly publish in the Federal Register notice of, and
report in writing to the Congress with respect to, any
modification or termination of any action taken under section
301 and the reasons therefor.
(c) Review of Necessity.--
(1) If--
(A) a particular action has been taken under
section 301 during any 4-year period, and
(B) neither the petitioner nor any
representative of the domestic industry which
benefits from such action has submitted to the
Trade Representative during the last 60 days of
such 4-year period a written request for the
continuation of such action,
such action shall terminate at the close of such 4-year
period.
(2) The Trade Representative shall notify by mail the
petitioner and representatives of the domestic industry
described in paragraph (1)(B) of any termination of
action by reason of paragraph (1) at least 60 days
before the date of such termination.
(3) If a request is submitted to the Trade
Representative under paragraph (1)(B) to continue
taking a particular action under section 301, or if a
request is submitted to the Trade Representative under
section 306(c)(2) to reinstate action, the Trade
Representative shall conduct a review of--
(A) the effectiveness in achieving the
objectives of section 301 of--
(i) such action, and
(ii) other actions that could be
taken (including actions against other
products or services), and
(B) the effects of such actions on the United
States economy, including consumers.
* * * * * * *
[SEC. 310. IDENTIFICATION OF TRADE EXPANSION PRIORITIES.
[(a) Identification.--
[(1) Within 180 days after the submission in calendar
year 1995 of the report required by section 181(b), the
Trade Representative shall--
[(A) review United States trade expansion
priorities,
[(B) identify priority foreign country
practices, the elimination of which is likely
to have the most significant potential to
increase United States exports, either directly
or through the establishment of a beneficial
precedent, and
[(C) submit to the Committee on Finance of
the Senate and the Committee on Ways and Means
of the House of Representatives and publish in
the Federal Register a report on the priority
foreign country practices identified.
[(2) In identifying priority foreign country
practices under paragraph (1) of this section, the
Trade Representative shall take into account all
relevant factors, including--
[(A) the major barriers and trade distorting
practices described in the National Trade
Estimate Report required under section 181(b);
[(B) the trade agreements to which a foreign
country is a party and its compliance with
those agreements;
[(C) the medium- and long-term implications
of foreign government procurement plans; and
[(D) the international competitive position
and export potential of United States products
and services.
[(3) The Trade Representative may include in the
report, if appropriate--
[(A) a description of foreign country
practices that may in the future warrant
identification as priority foreign country
practices; and
[(B) a statement about other foreign country
practices that were not identified because they
are already being addressed by provisions of
United States trade law, by existing bilateral
trade agreements, or as part of trade
negotiations with other countries and progress
is being made toward the elimination of such
practices.
[(b) Initiation of Investigations.--By no later than the date
which is 21 days after the date on which a report is submitted
to the appropriate congressional committees under subsection
(a)(1), the Trade Representative shall initiate under section
302(b)(1) investigations under this chapter with respect to all
of the priority foreign country practices identified.
[(c) Agreements for the Elimination of Barriers.--In the
consultations with a foreign country that the Trade
Representative is required to request under section 303(a) with
respect to an investigation initiated by reason of subsection
(b), the Trade Representative shall seek to negotiate an
agreement that provides for the elimination of the practices
that are the subject of the investigation as quickly as
possible or, if elimination of the practices is not feasible,
an agreement that provides for compensatory trade benefits.
[(d) Reports.--The Trade Representative shall include in the
semiannual report required by section 309 a report on the
status of any investigations initiated pursuant to subsection
(b) and, where appropriate, the extent to which such
investigations have led to increased opportunities for the
export of products and services of the United States.]
SEC. 310. TRADE ENFORCEMENT PRIORITIES.
(a) Trade Enforcement Priorities, Consultations, and
Report.--
(1) Trade enforcement priorities consultations.--Not
later than May 31 of each calendar year that begins
after the date of the enactment of the Trade
Facilitation and Trade Enforcement Act of 2015, the
United States Trade Representative (in this section
referred to as the ``Trade Representative'') shall
consult with the Committee on Finance of the Senate and
the Committee on Ways and Means of the House of
Representatives with respect to the prioritization of
acts, policies, or practices of foreign governments
that raise concerns with respect to obligations under
the WTO Agreements or any other trade agreement to
which the United States is a party, or otherwise create
or maintain barriers to United States goods, services,
or investment.
(2) Identification of trade enforcement priorities.--
In identifying acts, policies, or practices of foreign
governments as trade enforcement priorities under this
subsection, the United States Trade Representative
shall focus on those acts, policies, and practices the
elimination of which is likely to have the most
significant potential to increase United States
economic growth, and take into account all relevant
factors, including--
(A) the economic significance of any
potential inconsistency between an obligation
assumed by a foreign government pursuant to a
trade agreement to which both the foreign
government and the United States are parties
and the acts, policies, or practices of that
government;
(B) the impact of the acts, policies, or
practices of a foreign government on
maintaining and creating United States jobs and
productive capacity;
(C) the major barriers and trade distorting
practices described in the most recent National
Trade Estimate required under section 181(b);
(D) the major barriers and trade distorting
practices described in other relevant reports
addressing international trade and investment
barriers prepared by a Federal agency or
congressional commission during the 12 months
preceding the date of the most recent report
under paragraph (3);
(E) a foreign government's compliance with
its obligations under any trade agreements to
which both the foreign government and the
United States are parties;
(F) the implications of a foreign
government's procurement plans and policies;
and
(G) the international competitive position
and export potential of United States products
and services.
(3) Report on trade enforcement priorities and
actions taken to address.--
(A) In general.--Not later than July 31 of
each calendar year that begins after the date
of the enactment of the Trade Facilitation and
Trade Enforcement Act of 2015, the Trade
Representative shall report to the Committee on
Finance of the Senate and the Committee on Ways
and Means of the House of Representatives on
acts, policies, or practices of foreign
governments identified as trade enforcement
priorities based on the consultations under
paragraph (1) and the criteria set forth in
paragraph (2).
(B) Report in subsequent years.--The Trade
Representative shall include, when reporting
under subparagraph (A) in any calendar year
after the calendar year that begins after the
date of the enactment of the Trade Facilitation
and Trade Enforcement Act of 2015, a
description of actions taken to address any
acts, policies, or practices of foreign
governments identified as trade enforcement
priorities under this subsection in the
calendar year preceding that report and, as
relevant, any year before that calendar year.
(b) Semi-annual Enforcement Consultations.--
(1) In general.--At the same time as the reporting
under subsection (a)(3), and not later than January 31
of each following year, the Trade Representative shall
consult with the Committee on Finance of the Senate and
the Committee on Ways and Means of the House of
Representatives with respect to the identification,
prioritization, investigation, and resolution of acts,
policies, or practices of foreign governments of
concern with respect to obligations under the WTO
Agreements or any other trade agreement to which the
United States is a party, or that otherwise create or
maintain trade barriers.
(2) Acts, policies, or practices of concern.--The
semi-annual enforcement consultations required by
paragraph (1) shall address acts, policies, or
practices of foreign governments that raise concerns
with respect to obligations under the WTO Agreements or
any other trade agreement to which the United States is
a party, or otherwise create or maintain trade
barriers, including--
(A) engagement with relevant trading
partners;
(B) strategies for addressing such concerns;
(C) availability and deployment of resources
to be used in the investigation or resolution
of such concerns;
(D) the merits of any potential dispute
resolution proceeding under the WTO Agreements
or any other trade agreement to which the
United States is a party relating to such
concerns; and
(E) any other aspects of such concerns.
(3) Active investigations.--The semi-annual
enforcement consultations required by paragraph (1)
shall address acts, policies, or practices that the
Trade Representative is actively investigating with
respect to obligations under the WTO Agreements or any
other trade agreement to which the United States is a
party, including--
(A) strategies for addressing concerns raised
by such acts, policies, or practices;
(B) any relevant timeline with respect to
investigation of such acts, policies, or
practices;
(C) the merits of any potential dispute
resolution proceeding under the WTO Agreements
or any other trade agreement to which the
United States is a party with respect to such
acts, policies, or practices;
(D) barriers to the advancement of the
investigation of such acts, policies, or
practices; and
(E) any other matters relating to the
investigation of such acts, policies, or
practices.
(4) Ongoing enforcement actions.--The semi-annual
enforcement consultations required by paragraph (1)
shall address all ongoing enforcement actions taken by
or against the United States with respect to
obligations under the WTO Agreements or any other trade
agreement to which the United States is a party,
including--
(A) any relevant timeline with respect to
such actions;
(B) the merits of such actions;
(C) any prospective implementation actions;
(D) potential implications for any law or
regulation of the United States;
(E) potential implications for United States
stakeholders, domestic competitors, and
exporters; and
(F) other issues relating to such actions.
(5) Enforcement resources.--The semi-annual
enforcement consultations required by paragraph (1)
shall address the availability and deployment of
enforcement resources, resource constraints on
monitoring and enforcement activities, and strategies
to address those constraints, including the use of
available resources of other Federal agencies to
enhance monitoring and enforcement capabilities.
(c) Investigation and Resolution.--In the case of any acts,
policies, or practices of a foreign government identified as a
trade enforcement priority under subsection (a), the Trade
Representative shall, not later than the date of the first
semi-annual enforcement consultations held under subsection (b)
after the identification of the priority, take appropriate
action to address that priority, including--
(1) engagement with the foreign government to resolve
concerns raised by such acts, policies, or practices;
(2) initiation of an investigation under section
302(b)(1) with respect to such acts, policies, or
practices;
(3) initiation of negotiations for a bilateral
agreement that provides for resolution of concerns
raised by such acts, policies, or practices; or
(4) initiation of dispute settlement proceedings
under the WTO Agreements or any other trade agreement
to which the United States is a party with respect to
such acts, policies, or practices.
(d) Enforcement Notifications and Consultation.--
(1) Initiation of enforcement action.--The Trade
Representative shall notify and consult with the
Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives in
advance of initiation of any formal trade dispute by or
against the United States taken in regard to an
obligation under the WTO Agreements or any other trade
agreement to which the United States is a party. With
respect to a formal trade dispute against the United
States, if advance notification and consultation are
not possible, the Trade Representative shall notify and
consult at the earliest practicable opportunity after
initiation of the dispute.
(2) Circulation of reports.--The Trade Representative
shall notify and consult with the Committee on Finance
of the Senate and the Committee on Ways and Means of
the House of Representatives in advance of the
announced or anticipated circulation of any report of a
dispute settlement panel or the Appellate Body of the
World Trade Organization or of a dispute settlement
panel under any other trade agreement to which the
United States is a party with respect to a formal trade
dispute by or against the United States.
(e) Definitions.--In this section:
(1) WTO.--The term ``WTO'' means the World Trade
Organization.
(2) WTO agreement.--The term ``WTO Agreement'' has
the meaning given that term in section 2(9) of the
Uruguay Round Agreements Act (19 U.S.C. 3501(9)).
(3) WTO agreements.--The term ``WTO Agreements''
means the WTO Agreement and agreements annexed to that
Agreement.
* * * * * * *
----------
SECTION 401 OF THE SAFETY AND ACCOUNTABILITY FOR EVERY PORT ACT
SEC. 401. TRADE AND CUSTOMS REVENUE FUNCTIONS OF THE DEPARTMENT.
(a) Trade and Customs Revenue Functions.--
(1) Designation of appropriate official.--The
Secretary shall designate an appropriate senior
official in the office of the Secretary who shall--
(A) ensure that the trade and customs revenue
functions of the Department are coordinated
within the Department and with other Federal
departments and agencies, and that the impact
on legitimate trade is taken into account in
any action impacting the functions; and
(B) monitor and report to Congress on the
Department's mandate to ensure that the trade
and customs revenue functions of the Department
are not diminished, including how spending,
operations, and personnel related to these
functions have kept pace with the level of
trade entering the United States.
(2) Director of trade policy.--There shall be a
Director of Trade Policy (in this subsection referred
to as the ``Director''), who shall be subject to the
direction and control of the official designated
pursuant to paragraph (1). The Director shall--
(A) advise the official designated pursuant
to paragraph (1) regarding all aspects of
Department policies relating to the trade and
customs revenue functions of the Department;
(B) coordinate the development of Department-
wide policies regarding trade and customs
revenue functions and trade facilitation; and
(C) coordinate the trade and customs revenue-
related policies of the Department with the
policies of other Federal departments and
agencies.
(b) Study; Report.--
(1) In general.--The Comptroller General of the
United States shall conduct a study evaluating the
extent to which the Department of Homeland Security is
meeting its obligations under section 412(b) of the
Homeland Security Act of 2002 (6 U.S.C. 212(b)) with
respect to the maintenance of customs revenue
functions.
(2) Analysis.--The study shall include an analysis
of--
(A) the extent to which the customs revenue
functions carried out by the former United
States Customs Service have been consolidated
with other functions of the Department
(including the assignment of noncustoms revenue
functions to personnel responsible for customs
revenue collection), discontinued, or
diminished following the transfer of the United
States Customs Service to the Department;
(B) the extent to which staffing levels or
resources attributable to customs revenue
functions have decreased since the transfer of
the United States Customs Service to the
Department; and
(C) the extent to which the management
structure created by the Department ensures
effective trade facilitation and customs
revenue collection.
(3) Report.--Not later than 180 days after the date
of the enactment of this Act, the Comptroller General
shall submit to the appropriate congressional
committees a report on the results of the study
conducted under subsection (a).
(4) Maintenance of functions.--Not later than
September 30, 2007, the Secretary shall ensure that the
requirements of section 412(b) of the Homeland Security
Act of 2002 (6 U.S.C. 212(b)) are fully satisfied and
shall report to the Committee on Finance of the Senate
and the Committee on Ways and Means of the House of
Representatives regarding implementation of this
paragraph.
(5) Definition.--In this section, the term ``customs
revenue functions'' means the functions described in
section 412(b)(2) of the Homeland Security Act of 2002
(6 U.S.C. 212(b)(2)).
(c) Consultation on Trade and Customs Revenue Functions.--
(1) Business community consultations.--The Secretary
shall consult with representatives of the business
community involved in international trade, including
seeking the advice and recommendations of the
Commercial Operations Advisory Committee, [on
Department policies and actions that have] not later
than 30 days after proposing, and not later than 30
days before finalizing, any Department policies,
initiatives, or actions that will have a significant
impact on international trade and customs revenue
functions.
(2) Congressional consultation and notification.--
(A) In general.--Subject to subparagraph (B),
the Secretary shall notify the appropriate
congressional committees [not later than 30
days prior to the finalization of] not later
than 60 days before proposing, and not later
than 60 days before finalizing, any Department
policies, initiatives, or actions that will
have a major impact on trade and customs
revenue functions. Such notifications shall
include a description of the proposed policies,
initiatives, or actions and any comments or
recommendations provided by the Commercial
Operations Advisory Committee and other
relevant groups regarding the proposed
policies, initiatives, or actions.
(B) Exception.--If the Secretary determines
that it is important to the national security
interest of the United States to finalize any
Department policies, initiatives, or actions
prior to the consultation described in
subparagraph (A), the Secretary shall--
(i) notify and provide any
recommendations of the Commercial
Operations Advisory Committee received
to the appropriate congressional
committees not later than 45 days after
the date on which the policies,
initiatives, or actions are finalized;
and
(ii) to the extent appropriate,
modify the policies, initiatives, or
actions based upon the consultations
with the appropriate congressional
committees.
(d) Notification of Reorganization of Customs Revenue
Functions.--
(1) In general.--Not less than 45 days prior to any
change in the organization of any of the customs
revenue functions of the Department, the Secretary
shall notify the Committee on Appropriations, the
Committee on Finance, and the Committee on Homeland
Security and Governmental Affairs of the Senate, and
the Committee on Appropriations, the Committee on
Homeland Security, and the Committee on Ways and Means
of the House of Representatives of the specific assets,
functions, or personnel to be transferred as part of
such reorganization, and the reason for such transfer.
The notification shall also include--
(A) an explanation of how trade enforcement
functions will be impacted by the
reorganization;
(B) an explanation of how the reorganization
meets the requirements of section 412(b) of the
Homeland Security Act of 2002 (6 U.S.C. 212(b))
that the Department not diminish the customs
revenue and trade facilitation functions
formerly performed by the United States Customs
Service; and
(C) any comments or recommendations provided
by the Commercial Operations Advisory Committee
regarding such reorganization.
(2) Analysis.--Any congressional committee referred
to in paragraph (1) may request that the Commercial
Operations Advisory Committee provide a report to the
committee analyzing the impact of the reorganization
and providing any recommendations for modifying the
reorganization.
(3) Report.--Not later than 1 year after any
reorganization referred to in paragraph (1) takes
place, the Secretary, in consultation with the
Commercial Operations Advisory Committee, shall submit
a report to the Committee on Finance of the Senate and
the Committee on Ways and Means of the House of
Representatives. Such report shall include an
assessment of the impact of, and any suggested
modifications to, such reorganization.
----------
SECURITIES EXCHANGE ACT OF 1934
TITLE I--REGULATION OF SECURITIES EXCHANGES
* * * * * * *
periodical and other reports
Sec. 13. (a) Every issuer of a security registered pursuant
to section 12 of this title shall file with the Commission, in
accordance with such rules and regulations as the Commission
may prescribe as necessary or appropriate for the proper
protection of investors and to insure fair dealing in the
security--
(1) such information and documents (and such copies
thereof) as the Commission shall require to keep
reasonably current the information and documents
required to be included in or filed with an application
or registration statement filed pursuant to section 12,
except that the Commission may not require the filing
of any material contract wholly executed before July 1,
1962.
(2) such annual reports (and such copies thereof),
certified if required by the rules and regulations of
the Commission by independent public accountants, and
such quarterly reports (and such copies thereof), as
the Commission may prescribe.
Every issuer of a security registered on a national securities
exchange shall also file a duplicate original of such
information, documents, and reports with the exchange. In any
registration statement, periodic report, or other reports to be
filed with the Commission, an emerging growth company need not
present selected financial data in accordance with section
229.301 of title 17, Code of Federal Regulations, for any
period prior to the earliest audited period presented in
connection with its first registration statement that became
effective under this Act or the Securities Act of 1933 and,
with respect to any such statement or reports, an emerging
growth company may not be required to comply with any new or
revised financial accounting standard until such date that a
company that is not an issuer (as defined under section 2(a) of
the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201(a))) is required
to comply with such new or revised accounting standard, if such
standard applies to companies that are not issuers.
(b)(1) The Commission may prescribe, in regard to reports
made pursuant to this title, the form or forms in which the
required information shall be set forth, the items or details
to be shown in the balance sheet and the earnings statement,
and the methods to be followed in the preparation of reports,
in the appraisal or valuation of assets and liabilities, in the
determination of depreciation and depletion, in the
differentiation of recurring and nonrecurring income, in the
differentiation of investment and operating income, and in the
preparation, where the Commission deems it necessary or
desirable, of separate and/or consolidated balance sheets or
income accounts of any person directly or indirectly
controlling or controlled by the issuer, or any person under
direct or indirect common control with the issuer; but in the
case of the reports of any person whose methods of accounting
are prescribed under the provisions of any law of the United
States, or any rule or regulation thereunder, the rules and
regulations of the Commission with respect to reports shall not
be inconsistent with the requirements imposed by such law or
rule or regulation in respect of the same subject matter
(except that such rules and regulations of the Commission may
be inconsistent with such requirements to the extent that the
Commission determines that the public interest or the
protection of investors so requires).
(2) Every issuer which has a class of securities registered
pursuant to section 12 of this title and every issuer which is
required to file reports pursuant to section 15(d) of this
title shall--
(A) make and keep books, records, and accounts,
which, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets
of the issuer;
(B) devise and maintain a system of internal
accounting controls sufficient to provide reasonable
assurances that--
(i) transactions are executed in accordance
with management's general or specific
authorization;
(ii) transactions are recorded as necessary
(I) to permit preparation of financial
statements in conformity with generally
accepted accounting principles or any other
criteria applicable to such statements, and
(II) to maintain accountability for assets;
(iii) access to assets is permitted only in
accordance with management's general or
specific authorization; and
(iv) the recorded accountability for assets
is compared with the existing assets at
reasonable intervals and appropriate action is
taken with respect to any differences; and
(C) notwithstanding any other provision of law, pay
the allocable share of such issuer of a reasonable
annual accounting support fee or fees, determined in
accordance with section 109 of the Sarbanes-Oxley Act
of 2002.
(3)(A) With respect to matters concerning the national
security of the United States, no duty or liability under
paragraph (2) of this subsection shall be imposed upon any
person acting in cooperation with the head of any Federal
department or agency responsible for such matters if such act
in cooperation with such head of a department or agency was
done upon the specific, written directive of the head of such
department or agency pursuant to Presidential authority to
issue such directives. Each directive issued under this
paragraph shall set forth the specific facts and circumstances
with respect to which the provisions of this paragraph are to
be invoked. Each such directive shall, unless renewed in
writing, expire one year after the date of issuance.
(B) Each head of a Federal department or agency of the United
States who issues a directive pursuant to this paragraph shall
maintain a complete file of all such directives and shall, on
October 1 of each year, transmit a summary of matters covered
by such directives in force at any time during the previous
year to the Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on
Intelligence of the Senate.
(4) No criminal liability shall be imposed for failing to
comply with the requirements of paragraph (2) of this
subsection except as provided in paragraph (5) of this
subsection.
(5) No person shall knowingly circumvent or knowingly fail to
implement a system of internal accounting controls or knowingly
falsify any book, record, or account described in paragraph
(2).
(6) Where an issuer which has a class of securities
registered pursuant to section 12 of this title or an issuer
which is required to file reports pursuant to section 15(d) of
this title holds 50 per centum or less of the voting power with
respect to a domestic or foreign firm, the provisions of
paragraph (2) require only that the issuer proceed in good
faith to use its influence, to the extent reasonable under the
issuer's circumstances, to cause such domestic or foreign firm
to devise and maintain a system of internal accounting controls
consistent with paragraph (2). Such circumstances include the
relative degree of the issuer's ownership of the domestic or
foreign firm and the laws and practices governing the business
operations of the country in which such firm is located. An
issuer which demonstrates good faith efforts to use such
influence shall be conclusively presumed to have complied with
the requirements of paragraph (2).
(7) For the purpose of paragraph (2) of this subsection, the
terms ``reasonable assurances'' and ``reasonable detail'' mean
such level of detail and degree of assurance as would satisfy
prudent officials in the conduct of their own affairs.
(c) If in the judgment of the Commission any report required
under subsection (a) is inapplicable to any specified class or
classes of issuers, the Commission shall require in lieu
thereof the submission of such reports of comparable character
as it may deem applicable to such class or classes of issuers.
(d)(1) Any person who, after acquiring directly or indirectly
the beneficial ownership of any equity security of a class
which is registered pursuant to section 12 of this title, or
any equity security of an insurance company which would have
been required to be so registered except for the exemption
contained in section 12(g)(2)(G) of this title, or any equity
security issued by a closed-end investment company registered
under the Investment Company Act of 1940 or any equity security
issued by a Native Corporation pursuant to section 37(d)(6) of
the Alaska Native Claims Settlement Act, or otherwise becomes
or is deemed to become a beneficial owner of any of the
foregoing upon the purchase or sale of a security-based swap
that the Commission may define by rule, and is directly or
indirectly the beneficial owner of more than 5 per centum of
such class shall, within ten days after such acquisition or
within such shorter time as the Commission may establish by
rule, file with the Commission, a statement containing such of
the following information, and such additional information, as
the Commission may by rules and regulations, prescribe as
necessary or appropriate in the public interest or for the
protection of investors--
(A) the background, and identity, residence, and
citizenship of, and the nature of such beneficial
ownership by, such person and all other persons by whom
or on whose behalf the purchases have been or are to be
effected;
(B) the source and amount of the funds or other
consideration used or to be used in making the
purchases, and if any part of the purchase price is
represented or is to be represented by funds or other
consideration borrowed or otherwise obtained for the
purpose of acquiring, holding, or trading such
security, a description of the transaction and the
names of the parties thereto, except that where a
source of funds is a loan made in the ordinary course
of business by a bank, as defined in section 3(a)(6) of
this title, if the person filing such statement so
requests, the name of the bank shall not be made
available to the public;
(C) if the purpose of the purchases or prospective
purchases is to acquire control of the business of the
issuer of the securities any plans or proposals which
such persons may have to liquidate such issuer, to sell
its assets to or merge it with any other persons, or to
make any other major change in its business or
corporate structure;
(D) the number of shares of such security which are
beneficially owned, and the number of shares concerning
which there is a right to acquire, directly or
indirectly, by (i) such person, and (ii) by each
associate of such person, giving the background,
identity, residence, and citizenship of each such
associate; and
(E) information as to any contracts, arrangements, or
understandings with any person with respect to any
securities of the issuer, including but not limited to
transfer of any of the securities, joint ventures, loan
or option arrangements, puts or calls, guaranties of
loans, guaranties against loss or guaranties of
profits, division of losses or profits, or the giving
or withholding of proxies, naming the persons with whom
such contracts, arrangements, or understandings have
been entered into, and giving the details thereof.
(2) If any material change occurs in the facts set forth in
the statement filed with the Commission, an amendment shall be
filed with the Commission, in accordance with such rules and
regulations as the Commission may prescribe as necessary or
appropriate in the public interest or for the protection of
investors.
(3) When two or more persons act as a partnership, limited
partnership, syndicate, or other group for the purpose of
acquiring, holding, or disposing of securities of an issuer,
such syndicate or group shall be deemed a ``person'' for the
purposes of this subsection.
(4) In determining, for purposes of this subsection, any
percentage of a class of any security, such class shall be
deemed to consist of the amount of the outstanding securities
of such class, exclusive of any securities of such class held
by or for the account of the issuer or a subsidiary of the
issuer.
(5) The Commission, by rule or regulation or by order, may
permit any person to file in lieu of the statement required by
paragraph (1) of this subsection or the rules and regulations
thereunder, a notice stating the name of such person, the
number of shares of any equity securities subject to paragraph
(1) which are owned by him, the date of their acquisition and
such other information as the Commission may specify, if it
appears to the Commission that such securities were acquired by
such person in the ordinary course of his business and were not
acquired for the purpose of and do not have the effect of
changing or influencing the control of the issuer nor in
connection with or as a participant in any transaction having
such purpose or effect.
(6) The provisions of this subsection shall not apply to--
(A) any acquisition or offer to acquire securities
made or proposed to be made by means of a registration
statement under the Securities Act of 1933;
(B) any acquisition of the beneficial ownership of a
security which, together with all other acquisitions by
the same person of securities of the same class during
the preceding twelve months, does not exceed 2 per
centum of that class;
(C) any acquisition of an equity security by the
issuer of such security;
(D) any acquisition or proposed acquisition of a
security which the Commission, by rules or regulations
or by order, shall exempt from the provisions of this
subsection as not entered into for the purpose of, and
not having the effect of, changing or influencing the
control of the issuer or otherwise as not comprehended
within the purposes of this subsection.
(e)(1) It shall be unlawful for an issuer which has a class
of equity securities registered pursuant to section 12 of this
title, or which is a closed-end investment company registered
under the Investment Company Act of 1940, to purchase any
equity security issued by it if such purchase is in
contravention of such rules and regulations as the Commission,
in the public interest or for the protection of investors, may
adopt (A) to define acts and practices which are fraudulent,
deceptive, or manipulative, and (B) to prescribe means
reasonably designed to prevent such acts and practices. Such
rules and regulations may require such issuer to provide
holders of equity securities of such class with such
information relating to the reasons for such purchase, the
source of funds, the number of shares to be purchased, the
price to be paid for such securities, the method of purchase,
and such additional information, as the Commission deems
necessary or appropriate in the public interest or for the
protection of investors, or which the Commission deems to be
material to a determination whether such security should be
sold.
(2) For the purpose of this subsection, a purchase by or for
the issuer or any person controlling, controlled by, or under
common control with the issuer, or a purchase subject to
control of the issuer or any such person, shall be deemed to be
a purchase by the issuer. The Commission shall have power to
make rules and regulations implementing this paragraph in the
public interest and for the protection of investors, including
exemptive rules and regulations covering situations in which
the Commission deems it unnecessary or inappropriate that a
purchase of the type described in this paragraph shall be
deemed to be a purchase by the issuer for purposes of some or
all of the provisions of paragraph (1) of this subsection.
(3) At the time of filing such statement as the Commission
may require by rule pursuant to paragraph (1) of this
subsection, the person making the filing shall pay to the
Commission a fee at a rate that, subject to paragraph (4), is
equal to $92 per $1,000,000 of the value of securities proposed
to be purchased. The fee shall be reduced with respect to
securities in an amount equal to any fee paid with respect to
any securities issued in connection with the proposed
transaction under section 6(b) of the Securities Act of 1933,
or the fee paid under that section shall be reduced in an
amount equal to the fee paid to the Commission in connection
with such transaction under this paragraph.
(4) Annual adjustment.--For each fiscal year, the
Commission shall by order adjust the rate required by
paragraph (3) for such fiscal year to a rate that is
equal to the rate (expressed in dollars per million)
that is applicable under section 6(b) of the Securities
Act of 1933 for such fiscal year.
(5) Fee collections.--Fees collected pursuant to this
subsection for fiscal year 2012 and each fiscal year
thereafter shall be deposited and credited as general
revenue of the Treasury and shall not be available for
obligation.
(6) Effective date; publication.--In exercising its
authority under this subsection, the Commission shall
not be required to comply with the provisions of
section 553 of title 5, United States Code. An adjusted
rate prescribed under paragraph (4) shall be published
and take effect in accordance with section 6(b) of the
Securities Act of 1933 (15 U.S.C. 77f(b)).
(7) Pro rata application.--The rates per $1,000,000
required by this subsection shall be applied pro rata
to amounts and balances of less than $1,000,000.
(f)(1) Every institutional investment manager which uses the
mails, or any means or instrumentality of interstate commerce
in the course of its business as an institutional investment
manager and which exercises investment discretion with respect
to accounts holding equity securities of a class described in
section 13(d)(1) of this title having an aggregate fair market
value on the last trading day in any of the preceding twelve
months of at least $100,000,000 or such lesser amount (but in
no case less than $10,000,000) as the Commission, by rule, may
determine, shall file reports with the Commission in such form,
for such periods, and at such times after the end of such
periods as the Commission, by rule, may prescribe, but in no
event shall such reports be filed for periods longer than one
year or shorter than one quarter. Such reports shall include
for each such equity security held on the last day of the
reporting period by accounts (in aggregate or by type as the
Commission, by rule, may prescribe) with respect to which the
institutional investment manager exercises investment
discretion (other than securities held in amounts which the
Commission, by rule, determines to be insignificant for
purposes of this subsection), the name of the issuer and the
title, class, CUSIP number, number of shares or principal
amount, and aggregate fair market value of each such security.
Such reports may also include for accounts (in aggregate or by
type) with respect to which the institutional investment
manager exercises investment discretion such of the following
information as the Commission, by rule, prescribes--
(A) the name of the issuer and the title, class,
CUSIP number, number of shares or principal amount, and
aggregate fair market value or cost or amortized cost
of each other security (other than an exempted
security) held on the last day of the reporting period
by such accounts;
(B) the aggregate fair market value or cost or
amortized cost of exempted securities (in aggregate or
by class) held on the last day of the reporting period
by such accounts;
(C) the number of shares of each equity security of a
class described in section 13(d)(1) of this title held
on the last day of the reporting period by such
accounts with respect to which the institutional
investment manager possesses sole or shared authority
to exercise the voting rights evidenced by such
securities;
(D) the aggregate purchases and aggregate sales
during the reporting period of each security (other
than an exempted security) effected by or for such
accounts; and
(E) with respect to any transaction or series of
transactions having a market value of at least $500,000
or such other amount as the Commission, by rule, may
determine, effected during the reporting period by or
for such accounts in any equity security of a class
described in section 13(d)(1) of this title--
(i) the name of the issuer and the title,
class, and CUSIP number of the security;
(ii) the number of shares or principal amount
of the security involved in the transaction;
(iii) whether the transaction was a purchase
or sale;
(iv) the per share price or prices at which
the transaction was effected;
(v) the date or dates of the transaction;
(vi) the date or dates of the settlement of
the transaction;
(vii) the broker or dealer through whom the
transaction was effected;
(viii) the market or markets in which the
transaction was effected; and
(ix) such other related information as the
Commission, by rule, may prescribe.
(2) The Commission shall prescribe rules providing
for the public disclosure of the name of the issuer and
the title, class, CUSIP number, aggregate amount of the
number of short sales of each security, and any
additional information determined by the Commission
following the end of the reporting period. At a
minimum, such public disclosure shall occur every
month.
(3) The Commission, by rule or order, may exempt,
conditionally or unconditionally, any institutional investment
manager or security or any class of institutional investment
managers or securities from any or all of the provisions of
this subsection or the rules thereunder.
(4) The Commission shall make available to the public for a
reasonable fee a list of all equity securities of a class
described in section 13(d)(1) of this title, updated no less
frequently than reports are required to be filed pursuant to
paragraph (1) of this subsection. The Commission shall tabulate
the information contained in any report filed pursuant to this
subsection in a manner which will, in the view of the
Commission, maximize the usefulness of the information to other
Federal and State authorities and the public. Promptly after
the filing of any such report, the Commission shall make the
information contained therein conveniently available to the
public for a reasonable fee in such form as the Commission, by
rule, may prescribe, except that the Commission, as it
determines to be necessary or appropriate in the public
interest or for the protection of investors, may delay or
prevent public disclosure of any such information in accordance
with section 552 of title 5, United States Code.
Notwithstanding the preceding sentence, any such information
identifying the securities held by the account of a natural
person or an estate or trust (other than a business trust or
investment company) shall not be disclosed to the public.
(5) In exercising its authority under this subsection, the
Commission shall determine (and so state) that its action is
necessary or appropriate in the public interest and for the
protection of investors or to maintain fair and orderly markets
or, in granting an exemption, that its action is consistent
with the protection of investors and the purposes of this
subsection. In exercising such authority the Commission shall
take such steps as are within its power, including consulting
with the Comptroller General of the United States, the Director
of the Office of Management and Budget, the appropriate
regulatory agencies, Federal and State authorities which,
directly or indirectly, require reports from institutional
investment managers of information substantially similar to
that called for by this subsection, national securities
exchanges, and registered securities associations, (A) to
achieve uniform, centralized reporting of information
concerning the securities holdings of and transactions by or
for accounts with respect to which institutional investment
managers exercise investment discretion, and (B) consistently
with the objective set forth in the preceding subparagraph, to
avoid unnecessarily duplicative reporting by, and minimize the
compliance burden on, institutional investment managers.
Federal authorities which, directly or indirectly, require
reports from institutional investment managers of information
substantially similar to that called for by this subsection
shall cooperate with the Commission in the performance of its
responsibilities under the preceding sentence. An institutional
investment manager which is a bank, the deposits of which are
insured in accordance with the Federal Deposit Insurance Act,
shall file with the appropriate regulatory agency a copy of
every report filed with the Commission pursuant to this
subsection.
(6)(A) For purposes of this subsection the term
``institutional investment manager'' includes any person, other
than a natural person, investing in or buying and selling
securities for its own account, and any person exercising
investment discretion with respect to the account of any other
person.
(B) The Commission shall adopt such rules as it deems
necessary or appropriate to prevent duplicative reporting
pursuant to this subsection by two or more institutional
investment managers exercising investment discretion with
respect to the same amount.
(g)(1) Any person who is directly or indirectly the
beneficial owner of more than 5 per centum of any security of a
class described in subsection (d)(1) of this section or
otherwise becomes or is deemed to become a beneficial owner of
any security of a class described in subsection (d)(1) upon the
purchase or sale of a security-based swap that the Commission
may define by ruleshall file with the Commission a statement
setting forth, in such form and at such time as the Commission
may, by rule, prescribe--
(A) such person's identity, residence, and
citizenship; and
(B) the number and description of the shares in which
such person has an interest and the nature of such
interest.
(2) If any material change occurs in the facts set forth in
the statement filed with the Commission, an amendment shall be
filed with the Commission, in accordance with such rules and
regulations as the Commission may prescribe as necessary or
appropriate in the public interest or for the protection of
investors.
(3) When two or more persons act as a partnership, limited
partnership, syndicate, or other group for the purpose of
acquiring, holding, or disposing of securities of an issuer,
such syndicate or group shall be deemed a ``person'' for the
purposes of this subsection.
(4) In determining, for purposes of this subsection, any
percentage of a class of any security, such class shall be
deemed to consist of the amount of the outstanding securities
of such class, exclusive of any securities of such class held
by or for the account of the issuer or a subsidiary of the
issuer.
(5) In exercising its authority under this subsection, the
Commission shall take such steps as it deems necessary or
appropriate in the public interest or for the protection of
investors (A) to achieve centralized reporting of information
regarding ownership, (B) to avoid unnecessarily duplicative
reporting by and minimize the compliance burden on persons
required to report, and (C) to tabulate and promptly make
available the information contained in any report filed
pursuant to this subsection in a manner which will, in the view
of the Commission, maximize the usefulness of the information
to other Federal and State agencies and the public.
(6) The Commission may, by rule or order, exempt, in whole or
in part, any person or class of persons from any or all of the
reporting requirements of this subsection as it deems necessary
or appropriate in the public interest or for the protection of
investors.
(h) Large Trader Reporting.--
(1) Identification requirements for large traders.--
For the purpose of monitoring the impact on the
securities markets of securities transactions involving
a substantial volume or a large fair market value or
exercise value and for the purpose of otherwise
assisting the Commission in the enforcement of this
title, each large trader shall--
(A) provide such information to the
Commission as the Commission may by rule or
regulation prescribe as necessary or
appropriate, identifying such large trader and
all accounts in or through which such large
trader effects such transactions; and
(B) identify, in accordance with such rules
or regulations as the Commission may prescribe
as necessary or appropriate, to any registered
broker or dealer by or through whom such large
trader directly or indirectly effects
securities transactions, such large trader and
all accounts directly or indirectly maintained
with such broker or dealer by such large trader
in or through which such transactions are
effected.
(2) Recordkeeping and reporting requirements for
brokers and dealers.--Every registered broker or dealer
shall make and keep for prescribed periods such records
as the Commission by rule or regulation prescribes as
necessary or appropriate in the public interest, for
the protection of investors, or otherwise in
furtherance of the purposes of this title, with respect
to securities transactions that equal or exceed the
reporting activity level effected directly or
indirectly by or through such registered broker or
dealer of or for any person that such broker or dealer
knows is a large trader, or any person that such broker
or dealer has reason to know is a large trader on the
basis of transactions in securities effected by or
through such broker or dealer. Such records shall be
available for reporting to the Commission, or any self-
regulatory organization that the Commission shall
designate to receive such reports, on the morning of
the day following the day the transactions were
effected, and shall be reported to the Commission or a
self-regulatory organization designated by the
Commission immediately upon request by the Commission
or such a self-regulatory organization. Such records
and reports shall be in a format and transmitted in a
manner prescribed by the Commission (including, but not
limited to, machine readable form).
(3) Aggregation rules.--The Commission may prescribe
rules or regulations governing the manner in which
transactions and accounts shall be aggregated for the
purpose of this subsection, including aggregation on
the basis of common ownership or control.
(4) Examination of broker and dealer records.--All
records required to be made and kept by registered
brokers and dealers pursuant to this subsection with
respect to transactions effected by large traders are
subject at any time, or from time to time, to such
reasonable periodic, special, or other examinations by
representatives of the Commission as the Commission
deems necessary or appropriate in the public interest,
for the protection of investors, or otherwise in
furtherance of the purposes of this title.
(5) Factors to be considered in commission actions.--
In exercising its authority under this subsection, the
Commission shall take into account--
(A) existing reporting systems;
(B) the costs associated with maintaining
information with respect to transactions
effected by large traders and reporting such
information to the Commission or self-
regulatory organizations; and
(C) the relationship between the United
States and international securities markets.
(6) Exemptions.--The Commission, by rule, regulation,
or order, consistent with the purposes of this title,
may exempt any person or class of persons or any
transaction or class of transactions, either
conditionally or upon specified terms and conditions or
for stated periods, from the operation of this
subsection, and the rules and regulations thereunder.
(7) Authority of commission to limit disclosure of
information.--Notwithstanding any other provision of
law, the Commission shall not be compelled to disclose
any information required to be kept or reported under
this subsection. Nothing in this subsection shall
authorize the Commission to withhold information from
Congress, or prevent the Commission from complying with
a request for information from any other Federal
department or agency requesting information for
purposes within the scope of its jurisdiction, or
complying with an order of a court of the United States
in an action brought by the United States or the
Commission. For purposes of section 552 of title 5,
United States Code, this subsection shall be considered
a statute described in subsection (b)(3)(B) of such
section 552.
(8) Definitions.--For purposes of this subsection--
(A) the term ``large trader'' means every
person who, for his own account or an account
for which he exercises investment discretion,
effects transactions for the purchase or sale
of any publicly traded security or securities
by use of any means or instrumentality of
interstate commerce or of the mails, or of any
facility of a national securities exchange,
directly or indirectly by or through a
registered broker or dealer in an aggregate
amount equal to or in excess of the identifying
activity level;
(B) the term ``publicly traded security''
means any equity security (including an option
on individual equity securities, and an option
on a group or index of such securities) listed,
or admitted to unlisted trading privileges, on
a national securities exchange, or quoted in an
automated interdealer quotation system;
(C) the term ``identifying activity level''
means transactions in publicly traded
securities at or above a level of volume, fair
market value, or exercise value as shall be
fixed from time to time by the Commission by
rule or regulation, specifying the time
interval during which such transactions shall
be aggregated;
(D) the term ``reporting activity level''
means transactions in publicly traded
securities at or above a level of volume, fair
market value, or exercise value as shall be
fixed from time to time by the Commission by
rule, regulation, or order, specifying the time
interval during which such transactions shall
be aggregated; and
(E) the term ``person'' has the meaning given
in section 3(a)(9) of this title and also
includes two or more persons acting as a
partnership, limited partnership, syndicate, or
other group, but does not include a foreign
central bank.
(i) Accuracy of Financial Reports.--Each financial report
that contains financial statements, and that is required to be
prepared in accordance with (or reconciled to) generally
accepted accounting principles under this title and filed with
the Commission shall reflect all material correcting
adjustments that have been identified by a registered public
accounting firm in accordance with generally accepted
accounting principles and the rules and regulations of the
Commission.
(j) Off-Balance Sheet Transactions.--Not later than 180 days
after the date of enactment of the Sarbanes-Oxley Act of 2002,
the Commission shall issue final rules providing that each
annual and quarterly financial report required to be filed with
the Commission shall disclose all material off-balance sheet
transactions, arrangements, obligations (including contingent
obligations), and other relationships of the issuer with
unconsolidated entities or other persons, that may have a
material current or future effect on financial condition,
changes in financial condition, results of operations,
liquidity, capital expenditures, capital resources, or
significant components of revenues or expenses.
(k) Prohibition on Personal Loans to Executives.--
(1) In general.--It shall be unlawful for any issuer
(as defined in section 2 of the Sarbanes-Oxley Act of
2002), directly or indirectly, including through any
subsidiary, to extend or maintain credit, to arrange
for the extension of credit, or to renew an extension
of credit, in the form of a personal loan to or for any
director or executive officer (or equivalent thereof)
of that issuer. An extension of credit maintained by
the issuer on the date of enactment of this subsection
shall not be subject to the provisions of this
subsection, provided that there is no material
modification to any term of any such extension of
credit or any renewal of any such extension of credit
on or after that date of enactment.
(2) Limitation.--Paragraph (1) does not preclude any
home improvement and manufactured home loans (as that
term is defined in section 5 of the Home Owners' Loan
Act (12 U.S.C. 1464)), consumer credit (as defined in
section 103 of the Truth in Lending Act (15 U.S.C.
1602)), or any extension of credit under an open end
credit plan (as defined in section 103 of the Truth in
Lending Act (15 U.S.C. 1602)), or a charge card (as
defined in section 127(c)(4)(e) of the Truth in Lending
Act (15 U.S.C. 1637(c)(4)(e)), or any extension of
credit by a broker or dealer registered under section
15 of this title to an employee of that broker or
dealer to buy, trade, or carry securities, that is
permitted under rules or regulations of the Board of
Governors of the Federal Reserve System pursuant to
section 7 of this title (other than an extension of
credit that would be used to purchase the stock of that
issuer), that is--
(A) made or provided in the ordinary course
of the consumer credit business of such issuer;
(B) of a type that is generally made
available by such issuer to the public; and
(C) made by such issuer on market terms, or
terms that are no more favorable than those
offered by the issuer to the general public for
such extensions of credit.
(3) Rule of construction for certain loans.--
Paragraph (1) does not apply to any loan made or
maintained by an insured depository institution (as
defined in section 3 of the Federal Deposit Insurance
Act (12 U.S.C. 1813)), if the loan is subject to the
insider lending restrictions of section 22(h) of the
Federal Reserve Act (12 U.S.C. 375b).
(l) Real Time Issuer Disclosures.--Each issuer reporting
under section 13(a) or 15(d) shall disclose to the public on a
rapid and current basis such additional information concerning
material changes in the financial condition or operations of
the issuer, in plain English, which may include trend and
qualitative information and graphic presentations, as the
Commission determines, by rule, is necessary or useful for the
protection of investors and in the public interest.
(m) Public Availability of Security-based Swap Transaction
Data.--
(1) In general.--
(A) Definition of real-time public
reporting.--In this paragraph, the term ``real-
time public reporting'' means to report data
relating to a security-based swap transaction,
including price and volume, as soon as
technologically practicable after the time at
which the security-based swap transaction has
been executed.
(B) Purpose.--The purpose of this subsection
is to authorize the Commission to make
security-based swap transaction and pricing
data available to the public in such form and
at such times as the Commission determines
appropriate to enhance price discovery.
(C) General rule.--The Commission is
authorized to provide by rule for the public
availability of security-based swap
transaction, volume, and pricing data as
follows:
(i) With respect to those security-
based swaps that are subject to the
mandatory clearing requirement
described in section 3C(a)(1)
(including those security-based swaps
that are excepted from the requirement
pursuant to section 3C(g)), the
Commission shall require real-time
public reporting for such transactions.
(ii) With respect to those security-
based swaps that are not subject to the
mandatory clearing requirement
described in section 3C(a)(1), but are
cleared at a registered clearing
agency, the Commission shall require
real-time public reporting for such
transactions.
(iii) With respect to security-based
swaps that are not cleared at a
registered clearing agency and which
are reported to a security-based swap
data repository or the Commission under
section 3C(a)(6), the Commission shall
require real-time public reporting for
such transactions, in a manner that
does not disclose the business
transactions and market positions of
any person.
(iv) With respect to security-based
swaps that are determined to be
required to be cleared under section
3C(b) but are not cleared, the
Commission shall require real-time
public reporting for such transactions.
(D) Registered entities and public
reporting.--The Commission may require
registered entities to publicly disseminate the
security-based swap transaction and pricing
data required to be reported under this
paragraph.
(E) Rulemaking required.--With respect to the
rule providing for the public availability of
transaction and pricing data for security-based
swaps described in clauses (i) and (ii) of
subparagraph (C), the rule promulgated by the
Commission shall contain provisions--
(i) to ensure such information does
not identify the participants;
(ii) to specify the criteria for
determining what constitutes a large
notional security-based swap
transaction (block trade) for
particular markets and contracts;
(iii) to specify the appropriate time
delay for reporting large notional
security-based swap transactions (block
trades) to the public; and
(iv) that take into account whether
the public disclosure will materially
reduce market liquidity.
(F) Timeliness of reporting.--Parties to a
security-based swap (including agents of the
parties to a security-based swap) shall be
responsible for reporting security-based swap
transaction information to the appropriate
registered entity in a timely manner as may be
prescribed by the Commission.
(G) Reporting of swaps to registered
security-based swap data repositories.--Each
security-based swap (whether cleared or
uncleared) shall be reported to a registered
security-based swap data repository.
(H) Registration of clearing agencies.--A
clearing agency may register as a security-
based swap data repository.
(2) Semiannual and annual public reporting of
aggregate security-based swap data.--
(A) In general.--In accordance with
subparagraph (B), the Commission shall issue a
written report on a semiannual and annual basis
to make available to the public information
relating to--
(i) the trading and clearing in the
major security-based swap categories;
and
(ii) the market participants and
developments in new products.
(B) Use; consultation.--In preparing a report
under subparagraph (A), the Commission shall--
(i) use information from security-
based swap data repositories and
clearing agencies; and
(ii) consult with the Office of the
Comptroller of the Currency, the Bank
for International Settlements, and such
other regulatory bodies as may be
necessary.
(C) Authority of commission.--The Commission
may, by rule, regulation, or order, delegate
the public reporting responsibilities of the
Commission under this paragraph in accordance
with such terms and conditions as the
Commission determines to be appropriate and in
the public interest.
(n) Security-based Swap Data Repositories.--
(1) Registration requirement.--It shall be unlawful
for any person, unless registered with the Commission,
directly or indirectly, to make use of the mails or any
means or instrumentality of interstate commerce to
perform the functions of a security-based swap data
repository.
(2) Inspection and examination.--Each registered
security-based swap data repository shall be subject to
inspection and examination by any representative of the
Commission.
(3) Compliance with core principles.--
(A) In general.--To be registered, and
maintain registration, as a security-based swap
data repository, the security-based swap data
repository shall comply with--
(i) the requirements and core
principles described in this
subsection; and
(ii) any requirement that the
Commission may impose by rule or
regulation.
(B) Reasonable discretion of security-based
swap data repository.--Unless otherwise
determined by the Commission, by rule or
regulation, a security-based swap data
repository described in subparagraph (A) shall
have reasonable discretion in establishing the
manner in which the security-based swap data
repository complies with the core principles
described in this subsection.
(4) Standard setting.--
(A) Data identification.--
(i) In general.--In accordance with
clause (ii), the Commission shall
prescribe standards that specify the
data elements for each security-based
swap that shall be collected and
maintained by each registered security-
based swap data repository.
(ii) Requirement.--In carrying out
clause (i), the Commission shall
prescribe consistent data element
standards applicable to registered
entities and reporting counterparties.
(B) Data collection and maintenance.--The
Commission shall prescribe data collection and
data maintenance standards for security-based
swap data repositories.
(C) Comparability.--The standards prescribed
by the Commission under this subsection shall
be comparable to the data standards imposed by
the Commission on clearing agencies in
connection with their clearing of security-
based swaps.
(5) Duties.--A security-based swap data repository
shall--
(A) accept data prescribed by the Commission
for each security-based swap under subsection
(b);
(B) confirm with both counterparties to the
security-based swap the accuracy of the data
that was submitted;
(C) maintain the data described in
subparagraph (A) in such form, in such manner,
and for such period as may be required by the
Commission;
(D)(i) provide direct electronic access to
the Commission (or any designee of the
Commission, including another registered
entity); and
(ii) provide the information described in
subparagraph (A) in such form and at such
frequency as the Commission may require to
comply with the public reporting requirements
set forth in subsection (m);
(E) at the direction of the Commission,
establish automated systems for monitoring,
screening, and analyzing security-based swap
data;
(F) maintain the privacy of any and all
security-based swap transaction information
that the security-based swap data repository
receives from a security-based swap dealer,
counterparty, or any other registered entity;
and
(G) on a confidential basis pursuant to
section 24, upon request, and after notifying
the Commission of the request, make available
all data obtained by the security-based swap
data repository, including individual
counterparty trade and position data, to--
(i) each appropriate prudential
regulator;
(ii) the Financial Stability
Oversight Council;
(iii) the Commodity Futures Trading
Commission;
(iv) the Department of Justice; and
(v) any other person that the
Commission determines to be
appropriate, including--
(I) foreign financial
supervisors (including foreign
futures authorities);
(II) foreign central banks;
and
(III) foreign ministries.
(H) Confidentiality and indemnification
agreement.--Before the security-based swap data
repository may share information with any
entity described in subparagraph (G)--
(i) the security-based swap data
repository shall receive a written
agreement from each entity stating that
the entity shall abide by the
confidentiality requirements described
in section 24 relating to the
information on security-based swap
transactions that is provided; and
(ii) each entity shall agree to
indemnify the security-based swap data
repository and the Commission for any
expenses arising from litigation
relating to the information provided
under section 24.
(6) Designation of chief compliance officer.--
(A) In general.--Each security-based swap
data repository shall designate an individual
to serve as a chief compliance officer.
(B) Duties.--The chief compliance officer
shall--
(i) report directly to the board or
to the senior officer of the security-
based swap data repository;
(ii) review the compliance of the
security-based swap data repository
with respect to the requirements and
core principles described in this
subsection;
(iii) in consultation with the board
of the security-based swap data
repository, a body performing a
function similar to the board of the
security-based swap data repository, or
the senior officer of the security-
based swap data repository, resolve any
conflicts of interest that may arise;
(iv) be responsible for administering
each policy and procedure that is
required to be established pursuant to
this section;
(v) ensure compliance with this title
(including regulations) relating to
agreements, contracts, or transactions,
including each rule prescribed by the
Commission under this section;
(vi) establish procedures for the
remediation of noncompliance issues
identified by the chief compliance
officer through any--
(I) compliance office review;
(II) look-back;
(III) internal or external
audit finding;
(IV) self-reported error; or
(V) validated complaint; and
(vii) establish and follow
appropriate procedures for the
handling, management response,
remediation, retesting, and closing of
noncompliance issues.
(C) Annual reports.--
(i) In general.--In accordance with
rules prescribed by the Commission, the
chief compliance officer shall annually
prepare and sign a report that contains
a description of--
(I) the compliance of the
security-based swap data
repository of the chief
compliance officer with respect
to this title (including
regulations); and
(II) each policy and
procedure of the security-based
swap data repository of the
chief compliance officer
(including the code of ethics
and conflict of interest
policies of the security-based
swap data repository).
(ii) Requirements.--A compliance
report under clause (i) shall--
(I) accompany each
appropriate financial report of
the security-based swap data
repository that is required to
be furnished to the Commission
pursuant to this section; and
(II) include a certification
that, under penalty of law, the
compliance report is accurate
and complete.
(7) Core principles applicable to security-based swap
data repositories.--
(A) Antitrust considerations.--Unless
necessary or appropriate to achieve the
purposes of this title, the swap data
repository shall not--
(i) adopt any rule or take any action
that results in any unreasonable
restraint of trade; or
(ii) impose any material
anticompetitive burden on the trading,
clearing, or reporting of transactions.
(B) Governance arrangements.--Each security-
based swap data repository shall establish
governance arrangements that are transparent--
(i) to fulfill public interest
requirements; and
(ii) to support the objectives of the
Federal Government, owners, and
participants.
(C) Conflicts of interest.--Each security-
based swap data repository shall--
(i) establish and enforce rules to
minimize conflicts of interest in the
decision-making process of the
security-based swap data repository;
and
(ii) establish a process for
resolving any conflicts of interest
described in clause (i).
(D) Additional duties developed by
commission.--
(i) In general.--The Commission may
develop 1 or more additional duties
applicable to security-based swap data
repositories.
(ii) Consideration of evolving
standards.--In developing additional
duties under subparagraph (A), the
Commission may take into consideration
any evolving standard of the United
States or the international community.
(iii) Additional duties for
commission designees.--The Commission
shall establish additional duties for
any registrant described in section
13(m)(2)(C) in order to minimize
conflicts of interest, protect data,
ensure compliance, and guarantee the
safety and security of the security-
based swap data repository.
(8) Required registration for security-based swap
data repositories.--Any person that is required to be
registered as a security-based swap data repository
under this subsection shall register with the
Commission, regardless of whether that person is also
licensed under the Commodity Exchange Act as a swap
data repository.
(9) Rules.--The Commission shall adopt rules
governing persons that are registered under this
subsection.
(o) Beneficial ownership.--For purposes ofthis section and
section 16, a person shall be deemed to acquire
beneficialownership of an equity security based on the purchase
or sale of asecurity-based swap, only to the extent that the
Commission, by rule,determines after consultation with the
prudential regulators and the Secretaryof the Treasury, that
the purchase or sale of the security-based swap, or classof
security-based swap, provides incidents of ownership comparable
to directownership of the equity security, and that it is
necessary to achieve thepurposes of this section that the
purchase or sale of the security-based swaps,or class of
security-based swap, be deemed the acquisition of
beneficialownership of the equitysecurity.
(p) Disclosures Relating to Conflict Minerals Originating in
the Democratic Republic of the Congo.--
(1) Regulations.--
(A) In general.--Not later than 270 days
after the date of the enactment of this
subsection, the Commission shall promulgate
regulations requiring any person described in
paragraph (2) to disclose annually, beginning
with the person's first full fiscal year that
begins after the date of promulgation of such
regulations, whether conflict minerals that are
necessary as described in paragraph (2)(B), in
the year for which such reporting is required,
did originate in the Democratic Republic of the
Congo or an adjoining country and, in cases in
which such conflict minerals did originate in
any such country, submit to the Commission a
report that includes, with respect to the
period covered by the report--
(i) a description of the measures
taken by the person to exercise due
diligence on the source and chain of
custody of such minerals, which
measures shall include an independent
private sector audit of such report
submitted through the Commission that
is conducted in accordance with
standards established by the
Comptroller General of the United
States, in accordance with rules
promulgated by the Commission, in
consultation with the Secretary of
State; and
(ii) a description of the products
manufactured or contracted to be
manufactured that are not DRC conflict
free (``DRC conflict free'' is defined
to mean the products that do not
contain minerals that directly or
indirectly finance or benefit armed
groups in the Democratic Republic of
the Congo or an adjoining country), the
entity that conducted the independent
private sector audit in accordance with
clause (i), the facilities used to
process the conflict minerals, the
country of origin of the conflict
minerals, and the efforts to determine
the mine or location of origin with the
greatest possible specificity.
(B) Certification.--The person submitting a
report under subparagraph (A) shall certify the
audit described in clause (i) of such
subparagraph that is included in such report.
Such a certified audit shall constitute a
critical component of due diligence in
establishing the source and chain of custody of
such minerals.
(C) Unreliable determination.--If a report
required to be submitted by a person under
subparagraph (A) relies on a determination of
an independent private sector audit, as
described under subparagraph (A)(i), or other
due diligence processes previously determined
by the Commission to be unreliable, the report
shall not satisfy the requirements of the
regulations promulgated under subparagraph
(A)(i).
(D) DRC conflict free.--For purposes of this
paragraph, a product may be labeled as ``DRC
conflict free'' if the product does not contain
conflict minerals that directly or indirectly
finance or benefit armed groups in the
Democratic Republic of the Congo or an
adjoining country.
(E) Information available to the public.--
Each person described under paragraph (2) shall
make available to the public on the Internet
website of such person the information
disclosed by such person under subparagraph
(A).
(2) Person described.--A person is described in this
paragraph if--
(A) the person is required to file reports
with the Commission pursuant to paragraph
(1)(A); and
(B) conflict minerals are necessary to the
functionality or production of a product
manufactured by such person.
(3) Revisions and waivers.--The Commission shall
revise or temporarily waive the requirements described
in paragraph (1) if the President transmits to the
Commission a determination that--
(A) such revision or waiver is in the
national security interest of the United States
and the President includes the reasons
therefor; and
(B) establishes a date, not later than 2
years after the initial publication of such
exemption, on which such exemption shall
expire.
(4) Termination of disclosure requirements.--The
requirements of paragraph (1) shall terminate on the
date on which the President determines and certifies to
the appropriate congressional committees, but in no
case earlier than the date that is one day after the
end of the 5-year period beginning on the date of the
enactment of this subsection, that no armed groups
continue to be directly involved and benefitting from
commercial activity involving conflict minerals.
(5) Definitions.--For purposes of this subsection,
the terms ``adjoining country'', ``appropriate
congressional committees'', ``armed group'', and
``conflict mineral'' have the meaning given those terms
under section 1502 of the Dodd-Frank Wall Street Reform
and Consumer Protection Act.
(q) Disclosure of Payments by Resource Extraction Issuers.--
(1) Definitions.--In this subsection--
(A) the term ``commercial development of oil,
natural gas, or minerals'' includes
exploration, extraction, processing, export,
and other significant actions relating to oil,
natural gas, or minerals, or the acquisition of
a license for any such activity, as determined
by the Commission;
(B) the term ``foreign government'' means a
foreign government, a department, agency, or
instrumentality of a foreign government, or a
company owned by a foreign government, as
determined by the Commission;
(C) the term ``payment''--
(i) means a payment that is--
(I) made to further the
commercial development of oil,
natural gas, or minerals; and
(II) not de minimis; and
(ii) includes taxes, royalties, fees
(including license fees), production
entitlements, bonuses, and other
material benefits, that the Commission,
consistent with the guidelines of the
Extractive Industries Transparency
Initiative (to the extent practicable),
determines are part of the commonly
recognized revenue stream for the
commercial development of oil, natural
gas, or minerals;
(D) the term ``resource extraction issuer''
means an issuer that--
(i) is required to file an annual
report with the Commission; and
(ii) engages in the commercial
development of oil, natural gas, or
minerals;
(E) the term ``interactive data format''
means an electronic data format in which pieces
of information are identified using an
interactive data standard; and
(F) the term ``interactive data standard''
means standardized list of electronic tags that
mark information included in the annual report
of a resource extraction issuer.
(2) Disclosure.--
(A) Information required.--Not later than 270
days after the date of enactment of the Dodd-
Frank Wall Street Reform and Consumer
Protection Act, the Commission shall issue
final rules that require each resource
extraction issuer to include in an annual
report of the resource extraction issuer
information relating to any payment made by the
resource extraction issuer, a subsidiary of the
resource extraction issuer, or an entity under
the control of the resource extraction issuer
to a foreign government or the Federal
Government for the purpose of the commercial
development of oil, natural gas, or minerals,
including--
(i) the type and total amount of such
payments made for each project of the
resource extraction issuer relating to
the commercial development of oil,
natural gas, or minerals; and
(ii) the type and total amount of
such payments made to each government.
(B) Consultation in rulemaking.--In issuing
rules under subparagraph (A), the Commission
may consult with any agency or entity that the
Commission determines is relevant.
(C) Interactive data format.--The rules
issued under subparagraph (A) shall require
that the information included in the annual
report of a resource extraction issuer be
submitted in an interactive data format.
(D) Interactive data standard.--
(i) In general.--The rules issued
under subparagraph (A) shall establish
an interactive data standard for the
information included in the annual
report of a resource extraction issuer.
(ii) Electronic tags.--The
interactive data standard shall include
electronic tags that identify, for any
payments made by a resource extraction
issuer to a foreign government or the
Federal Government--
(I) the total amounts of the
payments, by category;
(II) the currency used to
make the payments;
(III) the financial period in
which the payments were made;
(IV) the business segment of
the resource extraction issuer
that made the payments;
(V) the government that
received the payments, and the
country in which the government
is located;
(VI) the project of the
resource extraction issuer to
which the payments relate; and
(VII) such other information
as the Commission may determine
is necessary or appropriate in
the public interest or for the
protection of investors.
(E) International transparency efforts.--To
the extent practicable, the rules issued under
subparagraph (A) shall support the commitment
of the Federal Government to international
transparency promotion efforts relating to the
commercial development of oil, natural gas, or
minerals.
(F) Effective date.--With respect to each
resource extraction issuer, the final rules
issued under subparagraph (A) shall take effect
on the date on which the resource extraction
issuer is required to submit an annual report
relating to the fiscal year of the resource
extraction issuer that ends not earlier than 1
year after the date on which the Commission
issues final rules under subparagraph (A).
(3) Public availability of information.--
(A) In general.--To the extent practicable,
the Commission shall make available online, to
the public, a compilation of the information
required to be submitted under the rules issued
under paragraph (2)(A).
(B) Other information.--Nothing in this
paragraph shall require the Commission to make
available online information other than the
information required to be submitted under the
rules issued under paragraph (2)(A).
(4) Authorization of appropriations.--There are
authorized to be appropriated to the Commission such
sums as may be necessary to carry out this subsection.
(r) Disclosure of Certain Activities Relating to Iran.--
(1) In general.--Each issuer required to file an
annual or quarterly report under subsection (a) shall
disclose in that report the information required by
paragraph (2) if, during the period covered by the
report, the issuer or any affiliate of the issuer--
(A) knowingly engaged in an activity
described in subsection (a) or (b) of section 5
of the Iran Sanctions Act of 1996 (Public Law
104-172; 50 U.S.C. 1701 note);
(B) knowingly engaged in an activity
described in subsection (c)(2) of section 104
of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 (22
U.S.C. 8513) or a transaction described in
subsection (d)(1) of that section;
(C) knowingly engaged in an activity
described in section 105A(b)(2) of that Act; or
(D) knowingly conducted any transaction or
dealing with--
(i) any person the property and
interests in property of which are
blocked pursuant to Executive Order No.
13224 (66 Fed. Reg. 49079; relating to
blocking property and prohibiting
transactions with persons who commit,
threaten to commit, or support
terrorism);
(ii) any person the property and
interests in property of which are
blocked pursuant to Executive Order No.
13382 (70 Fed. Reg. 38567; relating to
blocking of property of weapons of mass
destruction proliferators and their
supporters); or
(iii) any person or entity identified
under section 560.304 of title 31, Code
of Federal Regulations (relating to the
definition of the Government of Iran)
without the specific authorization of a
Federal department or agency.
(2) Information required.--If an issuer or an
affiliate of the issuer has engaged in any activity
described in paragraph (1), the issuer shall disclose a
detailed description of each such activity, including--
(A) the nature and extent of the activity;
(B) the gross revenues and net profits, if
any, attributable to the activity; and
(C) whether the issuer or the affiliate of
the issuer (as the case may be) intends to
continue the activity.
(3) Notice of disclosures.--If an issuer reports
under paragraph (1) that the issuer or an affiliate of
the issuer has knowingly engaged in any activity
described in that paragraph, the issuer shall
separately file with the Commission, concurrently with
the annual or quarterly report under subsection (a), a
notice that the disclosure of that activity has been
included in that annual or quarterly report that
identifies the issuer and contains the information
required by paragraph (2).
(4) Public disclosure of information.--Upon receiving
a notice under paragraph (3) that an annual or
quarterly report includes a disclosure of an activity
described in paragraph (1), the Commission shall
promptly--
(A) transmit the report to--
(i) the President;
(ii) the Committee on Foreign Affairs
and the Committee on Financial Services
of the House of Representatives; and
(iii) the Committee on Foreign
Relations and the Committee on Banking,
Housing, and Urban Affairs of the
Senate; and
(B) make the information provided in the
disclosure and the notice available to the
public by posting the information on the
Internet website of the Commission.
(5) Investigations.--Upon receiving a report under
paragraph (4) that includes a disclosure of an activity
described in paragraph (1) (other than an activity
described in subparagraph (D)(iii) of that paragraph),
the President shall--
(A) initiate an investigation into the
possible imposition of sanctions under the Iran
Sanctions Act of 1996 (Public Law 104-172; 50
U.S.C. 1701 note), section 104 or 105A of the
Comprehensive Iran Sanctions, Accountability,
and Divestment Act of 2010, an Executive order
specified in clause (i) or (ii) of paragraph
(1)(D), or any other provision of law relating
to the imposition of sanctions with respect to
Iran, as applicable; and
(B) not later than 180 days after initiating
such an investigation, make a determination
with respect to whether sanctions should be
imposed with respect to the issuer or the
affiliate of the issuer (as the case may be).
(6) Sunset.--The provisions of this subsection shall
terminate on the date that is 30 days after the date on
which the President makes the certification described
in section 401(a) of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 (22 U.S.C.
8551(a)).
(s) Israel Trade and Commerce Boycott Reporting.--
(1) In general.--Each foreign issuer required to file
an annual or quarterly report under subsection (a)
shall disclose in that report--
(A) whether the issuer has discriminated
against doing business with Israel in the last
calendar year and in such cases an issuer shall
provide a description of the discrimination.
(B) whether the issuer has been advised by a
foreign government or a non-member state of the
United Nations to discriminate against doing
business with Israel, entities owned or
controlled by the government of Israel, or
entities operating in Israel or Israeli-
controlled territory; and
(C) any instances where the issuer has
learned that a person, foreign government, or a
non-member state of the United Nations is
boycotting the issuer, divesting themselves of
an ownership interest in the issuer, or placing
sanctions on the issuer because of the issuer's
relationship with Israel, entities owned or
controlled by the government of Israel, or
entities operating in Israel or Israeli-
controlled territory.
(2) Definitions.--For purposes of this subsection:
(A) Foreign issuer.--The term ``foreign
issuer'' means an issuer that is not
incorporated in the United States.
(B) Non-member states of the united
nations.--The term ``non-member states of the
United Nations'' has the meaning given such
term by the United Nations.
* * * * * * *
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SECTION 503 OF THE UNITED STATES-KOREA FREE TRADE AGREEMENT
IMPLEMENTATION ACT
SEC. 503. RATE FOR MERCHANDISE PROCESSING FEES.
(a) In general.-- For the period beginning on December 1,
2015, and ending on June 30, 2021, section 13031(a)(9) of the
Consolidated Omnibus Budget Reconciliation Act of 1985 (19
U.S.C. 58c(a)(9)) shall be applied and administered--
(1) in subparagraph (A), by substituting ``0.3464''
for ``0.21''; and
(2) in subparagraph (B)(i), by substituting
``0.3464'' for ``0.21''.
(b) Additional Period.--For the period beginning on July 1,
2025, and ending on July 14, 2025, section 13031(a)(9) of the
Consolidated Omnibus Budget Reconciliation Act of 1985 (19
U.S.C. 58c(a)(9)) shall be applied and administered--
(1) in subparagraph (A), by substituting ``0.3464''
for ``0.21''; and
(2) in subparagraph (B)(i), by substituting
``0.3464'' for ``0.21''.
VII. ADDITIONAL VIEWS
While we join the Majority in favorably reporting H.R.
1907, we do wish to note two issues. First, as was discussed at
the markup, there is still work to be done to improve H.R.
1907, notably by including amendments offered by Ms. Sanchez
(the ENFORCE Act) and Mr. Pascrell (the Leveling the Playing
Field Act). Along those lines, we also wish to note that a
number of additional enforcement provisions should be included
in H.R. 1907, as discussed below. Second, we wish to comment on
a provision that would eliminate a loophole in the rule against
importing products made with forced child labor.
Additional provisions
As was discussed by Democratic and Republican Members at
the markup of H.R. 1907, bipartisan work should follow this
markup to ensure that the Enforcing Orders and Reducing Customs
Evasion (ENFORCE) Act (offered as an amendment, but withdrawn,
by Ms. Sanchez) and the Leveling the Playing Field Act (offered
as an amendment, but withdrawn, by Mr. Pascrell) are both
included in the final version of H.R. 1907. ENFORCE requires
Customs, upon receiving a petition from an interested party, to
investigate, within specified deadlines, allegations that
antidumping or countervailing duties are being evaded.
Nearly identical provisions were included in the Senate
customs bill introduced in 2013 by Senate Finance Committee
Chairman Baucus and Ranking Member Hatch. They were introduced
in the House by Representatives Sanchez and Long, and it was
included in the broader customs bill introduced by
Representative McDermott at the end of 2012. There appears to
be growing consensus that ENFORCE is the appropriate way to
address allegations of evasion. Prior efforts to require
Customs to enforce these allegations by using existing
statutory provisions (e.g., Section 516 of the Tariff Act of
1930) have failed by not requiring Customs to act on a petition
within a fixed period of time. The longer Customs takes, the
more entries are liquidated--that is, they become final, and
any additional duties owing are foregone.
Concerns about imposing deadlines on Customs in connection
with allegations of fraud are inapt; Customs is investigating
whether duties have been evaded. Similar to investigations of
mismarked goods (Section 304 of the Tariff Act of 1930),
Customs is making a factual determination as to the accuracy of
the entry; whether that determination raises questions about
the intent of the parties is left to a separate proceeding.
Further, we also strongly believe that a number of other
provisions that would update U.S. trade remedies laws and
enhance U.S. competitiveness should be included in H.R. 1907,
such as: the Currency Reform for Fair Trade Act (H.R. 890), a
process for future miscellaneous tariff bills, Congressional
Trade Enforcer (H.R. 4733, 109th Congress), Green 301 (H.R.
3733, 113th Congress), and the Supplemental Trade Review,
Oversight, Noncompliance and General Enforcement Resources
(STRONGER) Act of 2015 (as prepared by Mr. Blumenauer). Indeed,
some of these measures were included in the Customs bill during
the Senate Finance Committee markup, and we will seek their
inclusion in any Conference.
Forced child labor
Under Section 307 of the Tariff Act of 1930, imports of
goods made in whole or in part with forced labor, including
forced child labor, are prohibited. There is, however, an
exception for goods where demand in the United States exceeds
domestic supply. This provision dates back to a time when the
use of forced child labor was viewed as a matter of unfair
competition; today, this issue is viewed as a matter of basic
human rights. It is important to close this loophole.
At present, importers have no obligation to take steps to
ensure that goods that fall within this exception are made
without the use of forced child labor. The courts have made
clear that once it is established that goods fall within the
exception, no breach of Section 307--regardless of the evidence
provided that forced child labor was used--will be found. See,
e.g., International Labor Rights Fund v. United States (CIT
2005). Closing this loophole will require that importers use
``reasonable care'' to ensure that their imports comply with
the law prohibiting goods made in whole or in part with forced
child labor. Under current U.S. law as it applies to goods
other than those subject to this exception, there are
procedural requirements that apply when the Bureau of Customs
and Border Protection (``Customs'') investigates allegations
that Section 307 has been breached. See, e.g., China Diesel
Imports v. United States (CIT 1994). There, the Court noted
that Customs has refused to find a violation of Section 307
absent positive, specific evidence, or first-hand knowledge of
the practices in question. Therefore, any concerns about
procedures to be used to enforce the law have already been
addressed by the courts.
Sander M. Levin,
Ranking Member.
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