H.R. 1548 — Leveling the Playing Field 2.0 Act

This section establishes special rules for the U.S. International Trade Commission's (USITC) material injury determinations in successive antidumping or countervailing duty investigations (i.e., investigations initiated by the Department of Commerce following petitions under sections 702(f) or 732(f) of the Tariff Act of 1930). (As background, the USITC evaluates whether subject imports materially injure, threaten material injury to, or retard establishment of the domestic industry producing the like product.) Specifically, the section inserts new subparagraph (E) to section 771(7) of the Tariff Act (19 U.S.C. 1677(7)), requiring the USITC, in assessing import impacts under subparagraph (C)(iii)—(1) to consider the domestic industry's condition from a recently completed investigation, effects of any concurrent or recently completed investigation (including likelihood of injury continuation or recurrence), and prior USITC injury determinations included in the record; (2) to prohibit findings of no material injury or threat solely due to recent performance improvements (e.g., sales, market share, profitability) related to relief from a concurrent or recent investigation; and (3) in critical circumstances analyses under sections 705(b)(4)(A) or 735(b)(4)(A), to consider prior investigations' contribution to undermining new orders' remedial effects. The section also redesignates subparagraphs (E)–(J) as (F)–(K), updates cross-references accordingly, and adds definitions to section 771 of "concurrent investigation" (ongoing with prior affirmative preliminary injury finding on same/similar merchandise), "recently completed investigation" (affirmative final injury determination on same/similar merchandise completed no more than two years before the successive investigation's initiation), and "successive investigation."

This section establishes requirements for the administering authority to initiate successive countervailing duty investigations (19 U.S.C. 1671a(f), as added) and successive antidumping duty investigations (19 U.S.C. 1673a(f), as added). A successive investigation must be initiated (1) under subsection (a) (self-initiation), if the requirements of that subsection are met for imports of a class or kind of merchandise and imports of the same or similar class or kind are or have been subject to a concurrent or recently completed investigation; or (2) under subsection (b) (petition initiation), if the preliminary determinations under clauses (i) and (ii) of subsection (c)(1)(A)—that a countervailable subsidy exists and the domestic industry is injured or threatened with injury—are affirmative for such imports and imports of the same or similar class or kind are or have been subject to a concurrent or recently completed investigation. (Countervailing duties counter foreign subsidies on exports to the United States; antidumping duties counter imports sold below fair value.)

This section establishes expedited timelines and petitioner-controlled postponement and extension rules for determinations by the Department of Commerce (the administering authority) in successive countervailing duty (CVD) and antidumping (AD) investigations (i.e., investigations initiated under sections 702(f) or 732(f) following revocation or termination of prior orders on the same merchandise). (1) For successive CVD investigations, it requires a preliminary determination within 85 days of initiation (with postponement allowed only if requested by the petitioner), a critical circumstances determination upon petitioner allegation, and a final determination within 75 days of the preliminary (with extension allowed if requested by the petitioner). (2) For successive AD investigations, it requires a preliminary determination within 140 days of initiation (with postponement allowed only if requested by the petitioner), a critical circumstances determination upon petitioner allegation, and a final determination within 75 days of the preliminary (with extension allowed if requested by the petitioner). This section also makes a clerical amendment to the table of contents for the Tariff Act of 1930.

This section revises countervailing duty (CVD) rules under the Tariff Act of 1930 to address cross-border subsidies. (CVDs offset foreign government subsidies found to injure or threaten U.S. industries, or to retard new industry establishment, primarily for imports from WTO members or equivalent countries.) Specifically, it amends Section 701(d) (1) to retitle the subsection as "Cumulation of cross-Border subsidies" (from "Treatment of international consortia"); (2) to expand treatment of international consortia to also cover multinational corporations (i.e., entities owning or controlling production facilities in two or more foreign countries) receiving countervailable subsidies in their home countries or production countries for subject merchandise; and (3) to add a new paragraph on transnational subsidies, requiring the administering authority (Commerce Department) to treat third-country subsidies as provided by the subject country—and to cumulate them with subject-country subsidies—when the subject country facilitates the third-country subsidy (subject to U.S. international obligations). It further amends Section 771 definitions (1) to clarify that transnational subsidies are evaluated for specificity based on the subject-country situation; (2) to add third-country governments as interested parties in transnational subsidy proceedings; and (3) to define "multinational corporation." Finally, it amends Section 771A on upstream subsidies (i.e., countervailable subsidies on inputs) to add a new subsection (d) applying such subsidies to multinational corporations' purchases of inputs from cross-owned companies in third countries that received countervailable subsidies (if bestowing a competitive benefit on subject merchandise), regardless of the companies' existence at the time of prior findings (subject to U.S. international obligations; cross-owned company defined by regulation). (Thus, these changes enable broader cumulation and attribution of cross-border subsidies to counter potential subsidy circumvention via multinational operations or third-country facilitation.)

This section modifies the definition of ordinary course of trade (i.e., sales conditions normal in the foreign market, used to calculate normal value for antidumping duty margins) to specify that situations in which the quantity of foreign like product selected for comparison is insufficient to permit a proper comparison to the export price or constructed export price are outside the ordinary course of trade.

This section limits the adjustment increasing export price and constructed export price for import duties imposed by the exporting country that are rebated (or not collected) upon exportation to the United States to the per unit amount of such duties contained in the weighted average cost of production (previously, the full amount of any such duties). (Export price and constructed export price are used as the U.S. price in antidumping duty calculations under the Tariff Act of 1930; thus, this cap reduces the adjusted U.S. price and may increase calculated dumping margins.)

This section modifies antidumping proceedings under Title VII of the Tariff Act of 1930 to expand the use of "particular market situation" (PMS) determinations to address distortions of production costs caused by foreign government actions or market conditions, allowing the Department of Commerce to use alternative calculation methodologies for normal value. Specifically, the section (1) amends the disregarded-sales provision (19 U.S.C. 1677b(b)(3)) by replacing "business" with "trade" and authorizing alternative methodologies if a PMS causes costs of materials and processing not to reasonably reflect ordinary-course-of-trade costs; (2) revises the constructed-value provision (19 U.S.C. 1677b(e)) by changing "accurately" to "reasonably" reflect costs; (3) expands the "ordinary course of trade" definition (19 U.S.C. 1677(15)) to deem a PMS as existing if it distorts production costs for normal-value purposes under 19 U.S.C. 1677b(b) or (e), with such a distortion found when input costs do not reasonably reflect ordinary-course-of-trade costs; and (4) defines PMS (19 U.S.C. 1677(39)) as any circumstance preventing proper price comparisons or distorting production costs, deeming 12 specified circumstances (e.g., predominant state-owned input suppliers, export taxes or rebates on inputs, or ineffective enforcement of labor/environmental laws) likely to create cost distortions without requiring quantification. (Thus, these changes enable Commerce to disregard distorted foreign costs in calculating antidumping dumping margins, potentially increasing duties on affected imports.)

This section revises the special rules for calculating cost of production and constructed value in antidumping investigations (i.e., components of normal value used when home market or third-country sales are inadequate for fair comparison to U.S. export price) by designating the existing rule for major inputs from affiliated persons as subparagraph (A) and adding subparagraph (B). Under new subparagraph (B), the administering authority may value major inputs obtained from certain unaffiliated persons using an alternative amount—what an arm's-length transaction would reflect—if greater than the exporter's or producer's recorded price, for unaffiliated persons that are (1) in a nonmarket economy country (unless the input is produced in the exporting country), (2) receiving a countervailable subsidy for an identical or comparable input in the subject country (if no countervailing duty order exists from the exporting country), (3) selling an identical or comparable input below fair value in the subject country (if no antidumping duty order exists from the exporting country), (4) a government or public body in the exporting country or elsewhere, or (5) a group or combination thereof accounting for a meaningful share of input production. (Thus, this addresses potential cost distortions from subsidized, dumped, or government-influenced inputs.)

This section revises subsection (f) of section 781 of the Tariff Act of 1930 to establish procedures for circumvention inquiries (i.e., investigations into whether merchandise circumvents an antidumping or countervailing duty order, such as through minor alterations or third-country assembly), as follows: (1) requires initiation by the administering authority (Commerce) when warranted or upon an interested party's inquiry request supported by reasonably available information; (2) prohibits unsolicited communications before the initiation decision, except on status; (3) requires action on requests within 45 days (extendable by 15 days) to initiate, dismiss as inadequate, or address via a class-or-kind determination under section 781A; (4) requires a preliminary determination within 150 days of initiation (extendable by 60 days) on whether circumvention exists; (5) requires a final determination within 150 days of the preliminary (extendable by 65 days); and (6) requires class-or-kind determinations within 335 days of the request filing. The section also adds subsection (g) to require, upon initiation, continued suspension of liquidation and cash deposits (at all-others or country-wide rates) for already-suspended unliquidated entries subject to the inquiry; and, upon a preliminary affirmative determination, continued suspension and deposits for those entries, plus suspension and deposits for later entries (and potentially earlier ones if warranted).

This section establishes a certification requirement in new section 785 of the Tariff Act of 1930 for the administering authority (i.e., Commerce) to require importers or other parties, for U.S. imports, to certify at entry (or with the entry summary), maintain, or demonstrate that the merchandise and its production inputs are not subject to antidumping or countervailing duty proceedings or orders. If a required certification is not provided or contains false, misleading, fraudulent statements or material omissions, Commerce must instruct CBP to suspend liquidation, require cash deposits equal to applicable duties, and assess duties upon liquidation (using the cash deposit rate if the final rate is unavailable); violators are subject to penalties under section 592 of the Tariff Act, 18 U.S.C. 1001, or other applicable law.

This section establishes new authority under the Tariff Act of 1930 for the Department of Commerce, as administering authority, to determine using any reasonable method—unbound by rulings from other agencies such as U.S. Customs and Border Protection—whether imported merchandise is covered by an antidumping or countervailing duty proceeding, including whether it is the same class or kind or originates from a particular country. It specifies seven factors for origin determinations, including class-or-kind differences between upstream and downstream products, physical characteristics, end use, value added from third-country processing, processing sophistication, investment levels, and substantial transformation. This section also amends the 30-day judicial review deadline under 19 USC 1516a(a)(2)(A) by removing scope determinations (clause (iv) of subparagraph (B)) from the Federal Register publication trigger list in clause (i)(I) and replacing clause (ii)—previously the mailing date for revocation determinations (clause (vi))—with the publication date of notice for scope determinations or, if none published, the date Commerce conveys a copy to an interested party. (Thus, provides an actual-notice backstop for scope ruling challenges while eliminating the prior mailing trigger for revocation challenges.)

This section establishes asset and bonding requirements for nonresident importers (i.e., importers as defined in section 641(i) of the Tariff Act of 1930 other than U.S. residents) by adding new section 484c to the Tariff Act of 1930 (19 U.S.C. 1481 et seq.). Specifically, it (1) requires the Commissioner of U.S. Customs and Border Protection (CBP) to mandate that such importers maintain U.S.-based assets (e.g., in U.S. financial institutions, U.S. entities, or U.S. real/personal property) with clear title from entry to liquidation, sufficient to cover all potential duties, fees, interest, taxes, charges, and deposits calculated at the highest applicable duty rate based on the merchandise's fair market value; (2) requires a bond ensuring full liability based on those assets; (3) exempts validated Tier 2 or Tier 3 participants in the Customs-Trade Partnership Against Terrorism program (C-TPAT, 6 U.S.C. 961 et seq.) or importers where CBP determines equivalent collection ability as for residents; (4) directs CBP to prescribe compliance procedures; and (5) imposes civil penalties for violations of $50,000 per violation if the merchandise's domestic value is $50,000 or more, or 50% of such value if less, plus any other applicable penalties under customs laws or 18 U.S.C. The requirements take effect on the date of enactment and apply to merchandise entered or withdrawn from warehouse for consumption 180 days after enactment, with procedures required within 90 days of enactment.

This section requires the administering authority (i.e., Commerce Department) to examine currency undervaluation by a foreign government or public entity as a countervailable subsidy during a countervailing duty investigation under 19 U.S.C. 1671 et seq.—which imposes duties to offset foreign subsidies injuring a U.S. industry—provided the petition alleges such undervaluation for a country meeting the requirements of 19 U.S.C. 1671a(c)(1)(A)(i), the determinations under clauses (i) and (ii) of that provision are affirmative (i.e., petition properly alleges countervailable subsidy elements and Commerce initiates), or during a review under subtitle C (e.g., administrative reviews) of a countervailing duty order involving such an allegation. (Thus, this treats qualifying currency undervaluation as a subsidy subject to countervailing duties.)

This section amends the definition of a benefit conferred by a countervailable subsidy under the Tariff Act of 1930 to include, as a new clause (v), any shortfall in foreign currency received in exchange for U.S. dollars under a unified exchange rate due to currency undervaluation. (As background, the Department of Commerce, as administering authority, determines countervailable subsidies—i.e., financial contributions from foreign governments that benefit domestic producers of subject merchandise—to support imposition of countervailing duties.) It further specifies that such benefit determinations compare exchange rates derived from an appropriate methodology to actual rates and consider government action contributing to the undervaluation.

This section limits protests under section 514 of the Tariff Act of 1930 (19 U.S.C. 1514) against U.S. Customs and Border Protection (CBP) decisions on evasion claims under the Enforce and Protect Act (EAPA, 19 U.S.C. 517). Specifically, it (1) expands the finality provision in subsection 514(b) to include EAPA determinations reviewable under section 517(g), and (2) clarifies in section 517(h) that CBP decisions on liquidation or reliquidation of covered merchandise pursuant to an EAPA determination under subsection 517(c) (and administrative review under 517(f), if applicable) are not subject to protest. (As background, EAPA authorizes CBP to investigate allegations that imported merchandise is entering the U.S. through evasion of antidumping or countervailing duties and to recover evaded duties via adjusted liquidation instructions.)

This section expands Customs and Border Protection (CBP) evasion investigation procedures under Section 517 of the Tariff Act of 1930 (19 USC 1517)—which target importers entering antidumping or countervailing duty order merchandise (i.e., covered merchandise) through material false statements or omissions that reduce or avoid applicable duties—to also cover merchandise subject to safeguard actions (i.e., temporary tariffs or quotas under Trade Act of 1974 Section 203, 19 USC 2253). It (1) adds safeguard actions to the definitions of covered merchandise and evasion; (2) inserts conforming language throughout 19 USC 1517 (e.g., in subsections (b)(4) and (d)(1)) to distinguish procedures applicable only to antidumping or countervailing duty merchandise from those now covering safeguards; and (3) amends the Trade Facilitation and Trade Enforcement Act of 2015 (Sections 402 and 412, 19 USC 4361 and 4372) to make parallel changes, including new CBP authority to request information from and require certifications by persons reasonably suspected of evasion.

This section applies subsections (b), (c), and (d) of section 777 of the Tariff Act of 1930—governing limited disclosure of business proprietary information ("BPI") in antidumping and countervailing duty proceedings under title VII—to information submitted in evasion proceedings under section 1517 (i.e., Enforce and Protect Act [EAPA] proceedings addressing evasion of such duties), with specified substitutions and exceptions. (1) Substitutes "the Commissioner" [of U.S. Customs and Border Protection] for references to "the administering authority" [i.e., Commerce Department] or "the Commission" [i.e., International Trade Commission]; (2) excludes paragraphs (1)(A) and (3) of subsection (b) and the second and third sentences of subsection (c)(1)(A); (3) revises subsection (c)(1)(B) to authorize sanctions the Commissioner determines to be appropriate (omitting disbarment from practice before the agency); (4) standardizes subsection (c)(1)(C) timelines to 14 days (from 14 days [7 days for preliminary determinations]) and 30 days (from 30 days [10 days for preliminary determinations]); and (5) updates subsection (c)(2) to refer to the United States Court of International Trade (from United States Customs Court). The Commissioner must issue implementing regulations, with the amendment effective 180 days after enactment. (Thus, participants in EAPA proceedings may submit BPI under confidentiality procedures similar to those in title VII investigations, tailored to CBP administration.)

This section establishes the effective date and applicability of amendments made by this Act to countervailing duty (CVD) investigations under subtitle A of title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et seq.), antidumping duty (AD) investigations under subtitle B (19 U.S.C. 1673 et seq.), reviews under subtitle C (19 U.S.C. 1675 et seq.), and circumvention inquiries under section 781 (19 U.S.C. 1677j). In general, the amendments apply to such proceedings initiated on or after the date of enactment; to pending investigations or reviews if the fully extended preliminary determination is scheduled not earlier than 45 days after enactment; to circumvention inquiries initiated before enactment and pending on that date; and to circumvention inquiries requested but not initiated before enactment (with the administering authority required to act on such requests within 20 days after enactment). For pending circumvention inquiries initiated before enactment, amended deadlines are calculated from the date of enactment rather than the initiation or filing date. Separately, amendments made by section 204 (on normal value determinations accounting for cost distortions in foreign countries) apply retroactively to AD investigations and reviews initiated on or after June 29, 2015, and to related U.S. Customs and Border Protection actions and federal court proceedings without final judgment as of enactment.