,,ii #aadth ,,congress #ast ,session ,s4 #hia ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,march #bf1 #bjae,mr4 ,brown 7for himself1 ,mr4 ,graham1 ,mr4 ,franken1 and ,mrs4 ,mc,caskill7 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 a proceeding ,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 ,potential sources of information for adverse inferences ,an adverse inference under paragraph 7#a77;,a7 may include 2 and 7#b7 by adding at the end the following3 7d7 ,judicial review ,notwithstanding any other provision of law1 any determination made by the administering authority or the ,commission in selecting the facts otherwise available or using an inference that is adverse to the interests of a party under subsection 7b77#a77;,a7 shall not be subject to judicial review4 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 injury4 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 as the ,commission considers appropriate4 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 may be 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-- 7aa7 is not affiliated with an exporter or producer who exported subject merchandise during the period covered by the review or exported subject merchandise to the ,united ,states during any period1 and 7bb7 demonstrates that sales of subject merchandise by that exporter or producer in the ,united ,states1 or for exportation to the ,united ,states1 during the period covered by the review that are relied upon as the basis for requesting the review and the calculation of an individual dumping margin or individual countervailing duty rate1 are-- 7,,aa7 bona fide1 and 7,,bb7 sold to a person that is not affiliated with that exporter or producer4 7,,ii7 ,elements of bona fide determination ,in determining whether sales in the ,united ,states by an exporter or producer 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 of provision by importer of certification by importer or other party 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 for certification by importer or other party 7a7 ,requirement 7#a7 ,in general ,for imports of merchandise into the customs territory of the ,united ,states1 the administering authority may require an importer-- 7,a7 to provide a certification described in paragraph 7#b7 physically or by electronic means at the time of entry or with the entry summary1 or 7,b7 to otherwise demonstrate compliance with the requirements for a certification described in paragraph 7#b74 7#b7 ,certification described ,a certification described in this paragraph is a certification by the importer of the merchandise or another party1 as required by the administering authority1 such as a certification that the merchandise is not subject to an antidumping or countervailing duty under this title4 7#c7 ,available upon request ,if a certification required under paragraph 7#a7 is required to be maintained by the importer or another party1 as determined by the administering authority in consultation with the ,commissioner responsible for ,u4,s4 ,customs and ,border ,protection 7in this section referred to as the ,commissioner71 the ,commissioner or administering authority may require that the importer or other party make the certification available to the ,commissioner or administering authority upon request4 7b7 ,penalties 7#a7 ,authority ,to collect cash deposits and ,to assess duties ,if the administering authority requires an importer or other party to provide a certification described in paragraph 7#b7 of subsection 7a7 for merchandise imported into the customs territory of the ,united ,states pursuant to paragraph 7#a7 of that subsection1 and the importer or other party does not provide that certification or that certification contains any false1 misleading1 or fraudulent statement or representation or any material omission1 the administering authority shall instruct the ,commissioner-- 7,a7 to suspend liquidation of the entry2 7,b7 to require that the importer or other party post a cash deposit at an amount equal to the antidumping duty or countervailing duty applicable to the merchandise2 and 7,c7 to assess the rate of duty determined under paragraph 7#b7 upon liquidation or reliquidation of the entry4 7#b7 ,other penalties ,if the administering authority requires an importer or other party to provide a certification described in paragraph 7#b7 of subsection 7a7 for merchandise imported into the customs territory of the ,united ,states pursuant to paragraph 7#a7 of that subsection1 and the importer or other party does not provide that certification or that certification contains any false1 misleading1 or fraudulent statement or representation or any material omission1 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 for certification by importer or other party4 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 ,b1 reviews under section #gea1 and other proceedings being conducted by the administering authority as of the date of the determination4 7,d7 ,such other factors relating to the timely 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 7,a7 ,in general ,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 an input for the subject merchandise is subsidized or dumped4 7,b7 ,prior investigations 7i7 ,in general ,the administering authority has reason to believe or suspect under subparagraph 7,a7 that an input for the subject merchandise is subsidized or dumped if an investigation has found broadly available export subsidies or specific instances of dumping or subsidies with respect to that input from a country or customs territory4 7ii7 ,further investigation ,if the administering authority makes a finding described in clause 7i71 the administering authority is not required to conduct further investigation with respect to that input for purposes of this paragraph4 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