,,ii #aacth ,,congress #b;d ,session ,s4 #biid ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,december #aj1 #bjad ,mr4 ,brown introduced the following bill2 which was read twice and referred to the ,committee on ,finance ,a ,,bill ,to amend the ,tariff ,act of #aicj to facilitate the administration and enforcement of antidumping and countervailing duty orders1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,leveling the ,playing ,field ,act4 #b4 ,consequences of failure to cooperate with a request for information in an investigation ,section #ggf of the ,tariff ,act of #aicj 7#ai ,u4,s4,c4 #afgg;e7 is amended-- 7#a7 in subsection 7b7-- 7,a7 by redesignating paragraphs 7#a7 through 7#d7 as subparagraphs 7,a7 through 7,d71 respectively1 and by moving such subparagraphs1 as so redesignated1 #b ems to the right2 7,b7 by striking ,adverse ,inferences4--,if and inserting the following3 8,adverse ,inferences4-- 7#a7 ,in general ,if 2 7,c7 by striking under this title1 may use and inserting the following3 8under this title-- 7,a7 may use 2 and 7,d7 by striking facts otherwise available4 ,such adverse inference may include and inserting the following3 8facts otherwise available2 and 7,b7 is not required to determine1 or make any adjustments to1 a countervailable subsidy rate or weighted average dumping margin based on any assumptions about information the interested party would have provided if the interested party had complied with the request for information4 7#b7 ,adverse inferences ,an adverse inference under paragraph 7#a77;,a7 may include 2 7#b7 in subsection 7c7-- 7,a7 by striking ,corroboration of ,secondary ,information4--,when the and inserting the following3 8,corroboration of ,secondary ,information4-- 7#a7 ,in general ,when the 2 and 7,b7 by adding at the end the following3 7#b7 ,exceptions 7,a7 ,information provided by party ,if the administrative authority or the ,commission uses an inference that is adverse to the interests of a party under subsection 7b77#a77;,a71 information provided by that party1 including any dumping margin or subsidy rate calculated based on such information1 shall not be considered secondary information under this subsection and shall not be subject to corroboration under paragraph 7#a71 even if the information was submitted by that party in a separate proceeding under this title or a separate segment of the same proceeding4 7,b7 ,information relating to dumping margins and subsidy rates ,if the administering authority uses a countervailable subsidy rate or dumping margin in accordance with subsection 7d77#a71 the administering authority is not required to corroborate information relating to that rate or margin under paragraph 7#a7 if that rate or margin was calculated1 in whole or in part1 using information-- 7i7 submitted by an interested party described in subparagraph 7,a7 or 7,b7 of section #gga7i71 and 7ii7 certified by that interested party as accurate and complete to the best of that interested party's knowledge under section #ghb7;b74 2 and 7#c7 by adding at the end the following3 7d7 ,subsidy rates and dumping margins in adverse inference determinations 7#a7 ,in general ,if the administering authority uses an inference that is adverse to the interests of a party under subsection 7b77#a77;,a7 in selecting among facts otherwise available1 the administering authority may-- 7,a7 in the case of a countervailing duty proceeding1 use a subsidy rate-- 7i7 calculated with respect to a subsidy program involved in the proceeding that is the same or similar to the subsidy program for which a determination is to be made under this section1 or1 in the absence of such a program1 any other subsidy program involved in the proceeding1 7ii7 calculated in another countervailing duty proceeding with respect to another subsidy program implemented by the country that is implementing the subsidy program for which a determination is to be made under this section unless the administering authority has evidence that exporters or producers of the subject merchandise could not have used such other subsidy program1 or 7iii7 alleged in a petition filed under section #gjb7;b7 that was relied on by the administering authority to initiate the countervailing duty investigation1 and 7,b7 in the case of an antidumping duty proceeding1 use-- 7i7 a dumping margin based on any individual sale of the subject merchandise calculated with respect to any exporter or producer involved in the proceeding during the investigation or review1 7ii7 an individual weighted average dumping margin calculated with respect to any exporter or producer involved in the proceeding during the investigation or a review1 7iii7 any dumping margin alleged in a petition filed under section #gcb7;b7 that was relied on by the administering authority to initiate the antidumping duty investigation1 or 7iv7 any dumping margin found in another antidumping duty proceeding with respect to a class or kind of merchandise that is the same or similar to and from the same country as subject merchandise involved in the proceeding4 7#b7 ,discretion to apply highest rate ,the administering authority has the discretion under paragraph 7#a71 in selecting from among facts otherwise available1 to apply any of the countervailable subsidy rates or dumping margins specified under that paragraph1 including the highest such rate or margin4 7#c7 ,no obligation to make certain estimates or address certain claims ,if the administering authority uses an adverse inference under subsection 7b77#a77;,a7 in selecting among facts otherwise available1 the administering authority is not required1 for purposes of subsection 7c7 or for any other purpose-- 7,a7 to estimate what the countervailable subsidy rate or dumping margin would have been if the interested party found to have failed to cooperate under subsection 7b77#a7 had cooperated1 or 7,b7 to demonstrate that the countervailable subsidy rate or dumping margin used by the administering authority reflects the commercial reality of the interested party4 7#d7 ,rule of construction ,nothing in this subsection shall be construed to limit the discretion of the administering authority to use any other countervailable subsidy rate or dumping margin not specified in paragraph 7#a71 subject to the corroboration requirements of subsection 7c74 4 #c4 ,evaluation of impact on domestic industry in determination of material injury ,section #gga7g77;,c7 of the ,tariff ,act of #aicj 7#ai ,u4,s4,c4 #afgg7g77;,c77 is amended by striking clause 7iii7 and inserting the following3 7iii7 ,impact on affected domestic industry 7,i7 ,in general ,in examining the impact required to be considered under subparagraph 7,b77i77,,iii71 the ,commission shall evaluate all relevant economic factors that have a bearing on the state of the industry in the ,united ,states1 including-- 7aa7 actual and potential decline in output1 sales1 market share1 gross profits1 operating profits1 net profits1 ability to service debt1 productivity1 return on investments1 return on assets1 and utilization of capacity1 7bb7 factors affecting domestic prices1 7cc7 actual and potential negative effects on cash flow1 inventories1 employment1 wages1 growth1 ability to raise capital1 and investment1 7dd7 actual and potential negative effects on the existing development and production efforts of the domestic industry1 including efforts to develop a derivative or more advanced version of the domestic like product1 and 7ee7 in a proceeding under subtitle ,b1 the magnitude of the margin of dumping4 7,,ii7 ,evaluation of economic factors in context 7aa7 ,in general ,the ,commission shall evaluate all relevant economic factors described in subclause 7,i7 within the context of the business cycle and conditions of competition that are distinct to the affected industry4 7bb7 ,industry performance ,the fact that the performance of the affected industry has improved during the period of investigation shall not preclude a finding of material injury or threat of material injury if the improvement in performance has been affected by imports of the subject merchandise4 7,,iii7 ,effect of recession ,in the case of an investigation initiated by petition1 if the ,national ,bureau of ,economic ,research or another government agency responsible for business cycle evaluation declares that a recession began at any time during the #c-year period preceding the date on which the petition was filed1 the ,commission may1 if timely requested by an interested party1 extend its normal period of investigation to ensure that the period begins at least #cfe days before the beginning of the recession to ensure that the condition of the affected industry can be appropriately assessed in relation to the business cycle4 4 #d4 ,determination of duties for new exporters and producers based on bona fide ,united ,states sales ,section #gea7;a77#b77;,b7 of the ,tariff ,act of #aicj 7#ai ,u4,s4,c4 #afge7;a77#b77;,b77 is amended-- 7#a7 by striking clause 7iii72 7#b7 by redesignating clause 7iv7 as clause 7iii72 and 7#c7 by adding at the end the following3 7iv7 ,bona fide ,united ,states sales 7,i7 ,eligibility for individual margin or rate ,an exporter or producer is eligible for an individual weighted average dumping margin or individual countervailing duty rate established in a review conducted under clause 7i7 only if that exporter or producer demonstrates that all sales of subject merchandise by that exporter or producer in the ,united ,states or for exportation to the ,united ,states during the period covered by the review are-- 7aa7 bona fide1 and 7bb7 sold to a person that is not affiliated with that exporter or producer4 7,,ii7 ,elements of bona fide determination ,in determining whether the sales of an exporter or producer in the ,united ,states are bona fide for purposes of subclause 7,i77aa71 the administering authority shall consider1 depending on the circumstances surrounding such sales-- 7aa7 the prices of such sales1 7bb7 whether such sales were made in commercial quantities1 7cc7 the timing of such sales1 7dd7 the expenses arising from such sales1 7ee7 whether the subject merchandise involved in such sales was resold in the ,united ,states at a profit1 7ff7 whether such sales were made on an arms-length basis1 and 7gg7 any other factor the administering authority considers to be relevant with respect to whether such sales are1 or are not1 likely to be typical of sales the exporter or producer will make after completion of the review4 4 #e4 ,requirement that certification by importer and exporter accompany certain merchandise upon entry 7a7 ,in general ,subtitle ,d of title ,,vii of the ,tariff ,act of #aicj 7#ai ,u4,s4,c4 #afgg et seq47 is amended by adding at the end the following3 #ghd4 ,requirement that certification by importer and exporter accompany certain merchandise upon entry 7a7 ,requirement 7#a7 ,in general ,in any case in which the administering authority requires that a certification described in paragraph 7#b7 accompany imports of merchandise1 the ,commissioner responsible for ,u4,s4 ,customs and ,border ,protection 7in this section referred to as the ,commissioner7 shall require the merchandise to be accompanied by that certification upon entry into the customs territory of the ,united ,states4 7#b7 ,certification described ,a certification described in this paragraph is a certification1 as required by the administering authority1 by the importer or exporter of the merchandise that the merchandise is not subject to a duty under this title because the merchandise does not fall within the scope of any antidumping or countervailing duty order4 7b7 ,authority ,to assess highest rate of duty ,if a certification described in paragraph 7#b7 of subsection 7a7 is required to accompany the merchandise upon entry into the customs territory of the ,united ,states pursuant to paragraph 7#a7 of that subsection1 and that certification does not accompany the merchandise or a certification that contains any materially false1 fictitious1 or fraudulent statement or representation or any material omission accompanies the merchandise1 the merchandise shall be liquidated or reliquidated at the highest rate of antidumping or countervailing duty applicable to the merchandise4 7c7 ,penalties ,if a certification described in paragraph 7#b7 of subsection 7a7 is required to accompany the merchandise upon entry into the customs territory of the ,united ,states pursuant to paragraph 7#a7 of that subsection1 and that certification does not accompany the merchandise or a certification that contains any materially false1 fictitious1 or fraudulent statement or representation or any material omission accompanies the merchandise1 the importer of the merchandise may be subject to a penalty pursuant to section #eib of this ,act1 section #ajja of title #ah1 ,united ,states ,code1 or any other applicable provision of law4 4 7b7 ,clerical amendment ,the table of contents for title ,,vii of the ,tariff ,act of #aicj is amended by inserting after the item relating to section #ghc the following3 ,sec4 #ghd4 ,requirement that certification by importer and exporter accompany certain merchandise upon entry4 4 #f4 ,reduction in burden on ,department of ,commerce by reducing the number of voluntary respondents ,section #ghb7;a7 of the ,tariff ,act of #aicj 7#ai ,u4,s4,c4 #afggm7a77 is amended-- 7#a7 in paragraph 7#a71 by redesignating subparagraphs 7,a7 and 7,b7 as clauses 7i7 and 7ii71 respectively1 and by moving such clauses1 as so redesignated1 #b ems to the right2 7#b7 by redesignating paragraphs 7#a7 and 7#b7 as subparagraphs 7,a7 and 7,b71 respectively1 and by moving such subparagraphs1 as so redesignated1 #b ems to the right2 7#c7 by striking ,investigations and ,reviews4--,in and inserting the following3 8,investigations and ,reviews4-- 7#a7 ,in general ,in 2 7#d7 in paragraph 7#a71 as designated by paragraph 7#c71 by amending subparagraph 7,b71 as redesignated by paragraph 7#b71 to read as follows3 7,b7 the number of exporters or producers subject to the investigation or review is not so large that any additional individual examination of such exporters or producers would be unduly burdensome to the administering authority and inhibit the timely completion of the investigation or review4 2 and 7#e7 by adding at the end the following3 7#b7 ,determination of unduly burdensome ,in determining if an individual examination under paragraph 7#a77;,b7 would be unduly burdensome1 the administering authority may consider the following3 7,a7 ,the complexity of the issues or information presented in the proceeding1 including questionnaires and any responses thereto4 7,b7 ,any prior experience of the administering authority in the same or similar proceeding4 7,c7 ,the total number of investigations under subtitle ,a or ,b and reviews under section #gea7;a7 being conducted by the administering authority as of the date of the determination4 7,d7 ,the availability of staff and other resources considered necessary by the administering authority for the timely and accurate completion of each such investigation and review4 7,e7 ,such other factors relating to the timely and accurate completion of each such investigation and review as the administering authority considers appropriate4 4 #g4 ,clarification of discretion of ,secretary of ,commerce to disregard certain price or cost values in calculation of normal value ,section #ggc7;c7 of the ,tariff ,act of #aicj 7#ai ,u4,s4,c4 #afgg;b7c77 is amended by adding at the end the following3 7#e7 ,discretion to disregard certain price or cost values ,in valuing the factors of production under paragraph 7#a7 for the subject merchandise1 the administering authority may disregard price or cost values if the administering authority has reason to believe or suspect that the subject merchandise is being subsidized or dumped1 without investigating and determining that subsidization or dumping has occurred4 4 #h4 ,clarification of factors for determining whether a country is a nonmarket economy country ,section #gga7ah77;,b7 of the ,tariff ,act of #aicj 7#ai ,u4,s4,c4 #afgg7ah77;,b77 is amended-- 7#a7 in clause 7v71 by striking and at the end2 7#b7 by redesignating clause 7vi7 as clause 7vii72 and 7#c7 by inserting after clause 7v7 the following3 7vi7 the extent to which the government of the foreign country enforces and administers its laws1 legal and administrative procedures1 and other policies in an open and transparent manner that affords all parties1 whether foreign or domestic1 due process and equal and non-discriminatory treatment under those laws1 procedures1 and policies1 and 4 #i4 ,application to ,canada and ,mexico ,pursuant to article #aijb of the ,north ,american ,free ,trade ,agreement and section #djh of the ,north ,american ,free ,trade ,agreement ,implementation ,act 7#ai ,u4,s4,c4 #cdch71 the amendments made by this ,act shall apply with respect to goods from ,canada and ,mexico4