SUBCHAPTER IV—PREVENTION OF EVASION OF ANTIDUMPING AND COUNTERVAILING DUTY ORDERS

§4361. Definitions

In this subchapter:

(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 (19 U.S.C. 1671e); or

(B) an antidumping duty order issued under section 736 of the Tariff Act of 1930 (19 U.S.C. 1673e).

(3) Eligible small business

(A) In general

The term "eligible small business" means any business concern that, in the judgment of the Commissioner, 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) Nonreviewability

Any agency decision regarding whether a business concern is an eligible small business for purposes of section 4371(b)(4)(E) of this title 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, of merchandise 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 (19 U.S.C. 1671 et seq.).

(Pub. L. 114–125, title IV, §402, Feb. 24, 2016, 130 Stat. 155.)

Editorial Notes

References in Text

This subchapter, referred to in text, was in the original "this title", meaning title IV of Pub. L. 114–125, Feb. 24, 2016, 130 Stat. 155, which is classified principally to this subchapter. For complete classification of title IV to the Code, see section 401 of Pub. L. 114–125, set out as a Short Title note under section 4301 of this title and Tables.

The Tariff Act of 1930, referred to in par. (7), is act June 17, 1930, ch. 497, 46 Stat. 590. Title VII of the Act is classified generally to subtitle IV (§1671 et seq.) of chapter 4 of this title. For complete classification of this Act to the Code, see section 1654 of this title and Tables.

§4362. Application to Canada and Mexico

Pursuant to article 10.10 of the USMCA (as defined in section 4502 of this title) and section 4588 of this title, this subchapter and the amendments made by this title ¹ shall apply with respect to goods from Canada and Mexico.

(Pub. L. 114–125, title IV, §403, Feb. 24, 2016, 130 Stat. 156; Pub. L. 116–260, div. O, title VI, §602(c), Dec. 27, 2020, 134 Stat. 2153.)

Editorial Notes

References in Text

This subchapter, referred to in text, was in the original "this title", meaning title IV of Pub. L. 114–125, Feb. 24, 2016, 130 Stat. 155, which is classified principally to this subchapter. For complete classification of title IV to the Code, see section 401 of Pub. L. 114–125, set out as a Short Title note under section 4301 of this title and Tables.

The amendments made by this title, referred to in text, mean the amendments made by title IV of Pub. L. 114–125, Feb. 24, 2016, 130 Stat. 155. For complete classification of title IV to the Code, see section 401 of Pub. L. 114–125, set out as a Short Title note under section 4301 of this title and Tables.

Amendments

2020—Pub. L. 116–260 substituted "article 10.10 of the USMCA (as defined in section 4502 of this title) and section 4588 of this title" for "article 1902 of the North American Free Trade Agreement and section 3438 of this title".

Statutory Notes and Related Subsidiaries

Effective Date of 2020 Amendment

Amendment by Pub. L. 116–260 effective July 1, 2020, see section 602(g) of div. O of Pub. L. 116–260, set out as a note under section 2578b of this title.

¹ See References in Text note below.

Part I—Actions Relating to Enforcement of Trade Remedy Laws

§4371. Trade Remedy Law Enforcement Division

(a) Establishment

(1) In general

The Secretary of Homeland Security shall establish and maintain within the Office of Trade established under section 2084 of this title a Trade Remedy Law Enforcement Division.

(2) Composition

The Trade Remedy Law Enforcement Division shall be composed of—

(A) headquarters personnel led by a Director, who shall report to the Executive Assistant Commissioner of the Office of 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, including policies relating to the implementation of section 1517 of this title;

(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 Federal agencies regarding evasion;

(3) notifying on a timely basis the administering authority (as defined in section 1677(1) of this title) and the Commission (as defined in section 1677(2) of this title) 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 activities concerning evasion, including activities relating to investigations conducted under section 1517 of this title, which include—

(A) receiving allegations of evasion from parties, including allegations described in section 1517(b)(2) of this title;

(B) upon request by the party or parties that submitted such an allegation of evasion, providing 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, requesting from the party or parties that submitted such 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) notifying 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, providing technical assistance and advice to eligible small businesses to enable such businesses to prepare and submit such an allegation of evasion, except that the Director may deny technical 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 established under section 4316 of this title, the Trade Support Network, and any other relevant parties and organizations, developing guidelines on the types and nature of information that may be provided in such an allegation of evasion; and

(G) consulting regularly 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, the Automated Targeting System, the Automated Export System, the International Trade Data System established under section 1411(d) of this title, and the TECS (formerly known as the "Treasury Enforcement Communications System"), 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.

(Pub. L. 114–125, title IV, §411, Feb. 24, 2016, 130 Stat. 156.)

§4372. 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) Use of adverse inference

(A) In general

If the Secretary finds that a person described in subparagraph (B) has failed to cooperate by not acting to the best of the person's ability to comply with a request for information under subsection (a), 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.

(B) Person described

A person described in this subparagraph is—

(i) a person who filed an allegation with respect to covered merchandise;

(ii) a person alleged to have entered covered merchandise into the customs territory of the United States through evasion; or

(iii) a foreign producer or exporter of covered merchandise that is alleged to have entered into the customs territory of the United States through evasion.

(C) Application

An inference described in subparagraph (A) may be used under that subparagraph with respect to a person described in clause (ii) or (iii) of subparagraph (B) without regard to whether another person involved in the same transaction or transactions under examination has provided the information sought by the Secretary, such as import or export documentation.

(2) Adverse inference described

An adverse inference used under paragraph (1)(A) 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.

(Pub. L. 114–125, title IV, §412, Feb. 24, 2016, 130 Stat. 158.)

§4373. 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.

(Pub. L. 114–125, title IV, §413(b), Feb. 24, 2016, 130 Stat. 160.)

§4374. 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) or a party to the USMCA (as defined in section 4502 of this title) and the extent to which the country is cooperating under the bilateral agreement or the USMCA, as the case may be, 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 calendar year beginning after February 24, 2016, 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).

(Pub. L. 114–125, title IV, §414, Feb. 24, 2016, 130 Stat. 160; Pub. L. 116–113, title IV, §401, Jan. 29, 2020, 134 Stat. 61.)

Editorial Notes

Amendments

2020—Subsec. (b). Pub. L. 116–113 inserted "or a party to the USMCA (as defined in section 4502 of this title)" after "subsection (a)" and "or the USMCA, as the case may be," after "the bilateral agreement".

Statutory Notes and Related Subsidiaries

Effective Date of 2020 Amendment

Amendment by Pub. L. 116–113 effective on the date on which the USMCA enters into force (July 1, 2020), but not applicable to certain determinations under section 1516a of this title or binational panel reviews under NAFTA, see section 432 of Pub. L. 116–113, set out as a note under section 1516a of this title.

Effect of Termination of USMCA Country Status

For provisions relating to effect of termination of USMCA country status on sections 401 to 432 of Pub. L. 116–113, see section 4601 of this title.

§4375. Trade negotiating objectives

The principal negotiating objectives of the United States shall include obtaining the objectives of the bilateral agreements described under section 4374(a) of this title for any trade agreements under negotiation as of February 24, 2016, or future trade agreement negotiations.

(Pub. L. 114–125, title IV, §415, Feb. 24, 2016, 130 Stat. 161.)

Part II—Other Matters

§4391. 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.

(Pub. L. 114–125, title IV, §431, Feb. 24, 2016, 130 Stat. 169.)

§4392. Annual report on prevention and investigation of evasion of antidumping and countervailing duty orders

(a) In general

Not later than January 15 of each calendar year that begins on or after the date that is 270 days after February 24, 2016, the Commissioner, in consultation with the Secretary of Commerce and the Director of U.S. Immigration and Customs Enforcement, 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 efforts being taken to prevent and investigate the entry of covered merchandise into the customs territory of the United States through evasion.

(b) Contents

Each report required under subsection (a) shall include—

(1) for the calendar year preceding the submission of the report—

(A) a summary of the efforts of U.S. Customs and Border Protection to prevent and investigate the entry of covered merchandise into the customs territory of the United States through evasion;

(B) the number of allegations of evasion received, including allegations received under subsection (b) of section 1517 of this title, and the number of such allegations resulting in investigations by U.S. Customs and Border Protection or any other Federal agency;

(C) a summary of investigations initiated, including investigations initiated under subsection (b) of such section 1517 of this title, including—

(i) the number and nature of the investigations initiated, conducted, or completed; and

(ii) the resolution of each completed investigation;

(D) the amount of additional duties that were determined to be owed as a result of such investigations, the amount of such duties that were collected, and, for any such duties not collected, a description of the reasons those duties were not collected;

(E) with respect to each such investigation that led to the imposition of a penalty, the amount of the penalty;

(F) an identification of the countries of origin of covered merchandise determined under subsection (c) of such section 1517 of this title to be entered into the customs territory of the United States through evasion;

(G) the amount of antidumping and countervailing duties collected as a result of any investigations or other actions by U.S. Customs and Border Protection or any other Federal agency;

(H) a description of the allocation of personnel and other resources of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement to prevent and investigate evasion, including any assessments conducted regarding the allocation of such personnel and resources; and

(I) a description of training conducted to increase expertise and effectiveness in the prevention and investigation of evasion; and

(2) a description of processes and procedures of U.S. Customs and Border Protection to prevent and investigate evasion, including—

(A) the specific guidelines, policies, and practices used by U.S. Customs and Border Protection to ensure that allegations of evasion are promptly evaluated and acted upon in a timely manner;

(B) an evaluation of the efficacy of those guidelines, policies, and practices;

(C) an identification of any changes since the last report required by this section, if any, that have materially improved or reduced the effectiveness of U.S. Customs and Border Protection in preventing and investigating 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 of not collecting those duties;

(E) a description of the processes and procedures for increased cooperation and information sharing with the Department of Commerce, U.S. Immigration and Customs Enforcement, and any other relevant Federal agencies to prevent and investigate evasion; and

(F) an identification of any recommended policy changes for other Federal agencies or legislative changes to improve the effectiveness of U.S. Customs and Border Protection in preventing and investigating evasion.

(c) Public summary

The Commissioner shall make available to the public a summary of the report required by subsection (a) that includes, at a minimum—

(1) a description of the type of merchandise with respect to which investigations were initiated under subsection (b) of section 1517 of this title;

(2) the amount of additional duties determined to be owed as a result of such investigations and the amount of such duties that were collected;

(3) an identification of the countries of origin of covered merchandise determined under subsection (c) of such section 1517 of this title to be entered into the customs territory of the United States through evasion; and

(4) a description of the types of measures used by U.S. Customs and Border Protection to prevent and investigate evasion.

(Pub. L. 114–125, title IV, §432, Feb. 24, 2016, 130 Stat. 169.)