Eliminating Global Market Distortions To Protect American Jobs Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1187 To amend the Tariff Act of 1930 to improve the administration of antidumping and countervailing duty laws, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 15, 2021 Mr. BROWN (for himself and Mr. PORTMAN) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend the Tariff Act of 1930 to improve the administra- tion of antidumping and countervailing duty laws, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Eliminating Global Market Distortions To Protect Amer- 5 ican Jobs Act of 2021’’. 6 (b) TABLE OF CONTENTS.—The table of contents for 7 this Act is as follows: 8 Sec. 1. Short title; table of contents. TITLE I—SUCCESSIVE INVESTIGATIONS VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 1187 IS Sec. 101. Establishment of special rules for determination of material injury in the case of successive antidumping and countervailing duty in- vestigations. Sec. 102. Initiation of successive antidumping and countervailing duty inves- tigations. Sec. 103. Issuance of determinations with respect to successive antidumping and countervailing duty investigations. TITLE II—RESPONDING TO MARKET DISTORTIONS Sec. 201. Addressing cross-border subsidies in countervailing duty investiga- tions. Sec. 202. Modification of definition of ordinary course of trade to specify that an insufficient quantity of foreign like products constitutes a situation outside the ordinary course of trade. Sec. 203. Modification of adjustments to export price and constructed export price with respect to duty drawback. Sec. 204. Modification of determination of constructed value to include distor- tions of costs that occur in foreign countries. Sec. 205. Special rules for calculation of cost of production and constructed value to address distorted costs. TITLE III—PREVENTING CIRCUMVENTION Sec. 301. Modification of requirements in circumvention inquiries. Sec. 302. Requirement of provision by importer of certification by importer or other party. Sec. 303. Clarification of authority for Department of Commerce regarding merchandise covered by antidumping and countervailing duty proceedings. Sec. 304. Asset requirements applicable to nonresident importers. TITLE IV—COUNTERING CURRENCY UNDERVALUATION Sec. 401. Investigation or review of currency undervaluation under counter- vailing duty law. Sec. 402. Determination of benefit with respect to currency undervaluation. TITLE V—GENERAL PROVISIONS Sec. 501. Application to Canada and Mexico. Sec. 502. Effective date. VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 1187 IS TITLE I—SUCCESSIVE 1 INVESTIGATIONS 2 SEC. 101. ESTABLISHMENT OF SPECIAL RULES FOR DETER- 3 MINATION OF MATERIAL INJURY IN THE 4 CASE OF SUCCESSIVE ANTIDUMPING AND 5 COUNTERVAILING DUTY INVESTIGATIONS. 6 (a) IN GENERAL.—Section 771(7) of the Tariff Act 7 of 1930 (19 U.S.C. 1677(7)) is amended— 8 (1) by redesignating subparagraphs (E) 9 through (J) as subparagraphs (F) through (K), re- 10 spectively; 11 (2) in subparagraph (I), as redesignated by 12 paragraph (1)— 13 (A) by striking ‘‘subparagraph (G)(ii)’’ and 14 inserting ‘‘subparagraph (H)(ii)’’; and 15 (B) by striking ‘‘subparagraph (F)’’ and 16 inserting ‘‘subparagraph (G)’’; and 17 (3) by inserting after subparagraph (D) the fol- 18 lowing: 19 ‘‘(E) SPECIAL RULES FOR SUCCESSIVE IN- 20 VESTIGATIONS.— 21 ‘‘(i) IN GENERAL.— 22 ‘‘(I) EVALUATION OF IMPACT ON 23 DOMESTIC INDUSTRY.—In evaluating 24 the impact of imports of the merchan- 25 VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 1187 IS dise on producers of domestic like 1 products under subparagraph (C)(iii), 2 the Commission shall— 3 ‘‘(aa) assess the condition of 4 the domestic industry as found in 5 a recently completed investiga- 6 tion; 7 ‘‘(bb) assess the effect of a 8 concurrent investigation or re- 9 cently completed investigation on 10 trade and the financial perform- 11 ance of the domestic industry, in- 12 cluding whether the imports are 13 likely to lead to the continuation 14 or recurrence of material injury 15 determined by the Commission in 16 any concurrent investigation or 17 recently completed investigation; 18 and 19 ‘‘(cc) take into account and 20 include in the record any prior 21 injury determinations by the 22 Commission with respect to im- 23 ports of the merchandise, includ- 24 ing the volume, price effect, and 25 VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 1187 IS impact of those imports on the 1 domestic industry as determined 2 in a concurrent investigation or 3 recently completed investigation. 4 ‘‘(II) EFFECT OF RECENT IM- 5 PROVEMENT ON MATERIAL INJURY 6 DETERMINATION.—For the purposes 7 of this subparagraph, the Commission 8 may not find that there is no material 9 injury or threat of material injury to 10 a domestic industry based on recent 11 improvements in the industry’s per- 12 formance, such as an increase in 13 sales, market share, or profitability of 14 domestic producers, that are related 15 to relief granted pursuant to a con- 16 current investigation or recently com- 17 pleted investigation. 18 ‘‘(ii) RETROACTIVE APPLICATION OF 19 FINAL DETERMINATION.— 20 ‘‘(I) IN GENERAL.—In making 21 any finding under section 22 705(b)(4)(A) or 735(b)(4)(A) in a 23 successive investigation, the Commis- 24 sion shall consider whether a concur- 25 VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 1187 IS rent investigation or recently com- 1 pleted investigation contributes to the 2 likelihood that the remedial effect of 3 the countervailing duty order to be 4 issued under section 706 or the anti- 5 dumping duty order to be issued 6 under section 736 will be seriously un- 7 dermined. 8 ‘‘(II) BURDEN OF PERSUA- 9 SION.—The respondent in a successive 10 investigation shall have the burden of 11 persuasion with respect to whether— 12 ‘‘(aa) imports subject to an 13 affirmative determination under 14 subsection (a) of section 705 15 have not met the standard for 16 retroactive application under sub- 17 section (b)(4)(A) of that section; 18 or 19 ‘‘(bb) imports subject to an 20 affirmative determination under 21 subsection (a) of section 735 22 have not met the standard for 23 retroactive application under sub- 24 VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 1187 IS section (b)(4)(A) of that sec- 1 tion.’’. 2 (b) DEFINITIONS.—Section 771 of the Tariff Act of 3 1930 (19 U.S.C. 1677) is amended by adding at the end 4 the following: 5 ‘‘(37) TREATMENT OF SUCCESSIVE INVESTIGA- 6 TIONS.—For purposes of sections 702(f), 732(f), 7 771(7)(E), and 784: 8 ‘‘(A) CONCURRENT INVESTIGATION.—The 9 term ‘concurrent investigation’ means an ongo- 10 ing investigation in which an affirmative deter- 11 mination under section 703(a) or 733(a) has 12 been made by the Commission with respect to 13 imports of a class or kind of merchandise that 14 are the same or similar to imports of a class or 15 kind of merchandise from another country that 16 are the subject of a successive investigation. 17 ‘‘(B) RECENTLY COMPLETED INVESTIGA- 18 TION.—The term ‘recently completed investiga- 19 tion’ means a completed investigation in which 20 an affirmative determination under section 21 705(b) or 735(b) was issued by the Commission 22 with respect to imports of a class or kind of 23 merchandise that are the same or similar to im- 24 ports of a class or kind of merchandise from 25 VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 1187 IS another country that are the subject of a suc- 1 cessive investigation not more than 2 years be- 2 fore the date of initiation of the successive in- 3 vestigation. 4 ‘‘(C) SUCCESSIVE INVESTIGATION.—The 5 term ‘successive investigation’ means an inves- 6 tigation that has been initiated by the admin- 7 istering authority following a petition filed pur- 8 suant to section 702(f) or 732(f).’’. 9 SEC. 102. INITIATION OF SUCCESSIVE ANTIDUMPING AND 10 COUNTERVAILING DUTY INVESTIGATIONS. 11 (a) COUNTERVAILING DUTY INVESTIGATION.—Sec- 12 tion 702 of the Tariff Act of 1930 (19 U.S.C. 1671a) is 13 amended by adding at the end the following: 14 ‘‘(f) INITIATION BY ADMINISTERING AUTHORITY OF 15 SUCCESSIVE COUNTERVAILING DUTY INVESTIGATION.— 16 A successive investigation shall be initiated— 17 ‘‘(1) under subsection (a), if— 18 ‘‘(A) the requirements under that sub- 19 section are met with respect to imports of a 20 class or kind of merchandise; and 21 ‘‘(B) imports of the same or similar class 22 or kind of merchandise are or have been the 23 subject of a concurrent investigation or recently 24 completed investigation; or 25 VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 1187 IS ‘‘(2) under subsection (b), if— 1 ‘‘(A) the determinations under clauses (i) 2 and (ii) of subsection (c)(1)(A) are affirmative 3 with respect to imports of a class or kind of 4 merchandise; and 5 ‘‘(B) imports of the same or similar class 6 or kind of merchandise are or have been the 7 subject of a concurrent investigation or recently 8 completed investigation.’’. 9 (b) ANTIDUMPING DUTY INVESTIGATION.—Section 10 732 of the Tariff Act of 1930 (19 U.S.C. 1673a) is 11 amended by adding at the end the following: 12 ‘‘(f) INITIATION BY ADMINISTERING AUTHORITY OF 13 SUCCESSIVE ANTIDUMPING DUTY INVESTIGATION.—A 14 successive investigation shall be initiated— 15 ‘‘(1) under subsection (a), if— 16 ‘‘(A) the requirements under that sub- 17 section are met with respect to imports of a 18 class or kind of merchandise; and 19 ‘‘(B) imports of the same or similar class 20 or kind of merchandise are or have been the 21 subject of a concurrent investigation or recently 22 completed investigation; or 23 ‘‘(2) under subsection (b), if— 24 VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 1187 IS ‘‘(A) the determinations under clauses (i) 1 and (ii) of subsection (c)(1)(A) are affirmative 2 with respect to imports of a class or kind of 3 merchandise; and 4 ‘‘(B) imports of the same or similar class 5 or kind of merchandise are or have been the 6 subject of a concurrent investigation or recently 7 completed investigation.’’. 8 SEC. 103. ISSUANCE OF DETERMINATIONS WITH RESPECT 9 TO SUCCESSIVE ANTIDUMPING AND COUN- 10 TERVAILING DUTY INVESTIGATIONS. 11 (a) IN GENERAL.—Subtitle D of title VII of the Tar- 12 iff Act of 1930 (19 U.S.C. 1677 et seq.) is amended by 13 adding at the end the following: 14 ‘‘SEC. 784. DETERMINATIONS RELATING TO SUCCESSIVE IN- 15 VESTIGATIONS. 16 ‘‘(a) IN GENERAL.—Notwithstanding any other pro- 17 vision of this title, the administering authority— 18 ‘‘(1) with respect to a successive investigation 19 under section 702(f)— 20 ‘‘(A) shall issue a preliminary determina- 21 tion under section 703(b) not later than 85 22 days after initiating the investigation; 23 ‘‘(B) may not postpone under section 24 703(c) such deadline for the issuance of a pre- 25 VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 1187 IS liminary determination unless requested by the 1 petitioner; 2 ‘‘(C) shall obtain the information required 3 for a determination under section 703(e); 4 ‘‘(D) shall make a determination under 5 section 703(e) with respect to the investigation; 6 ‘‘(E) shall issue a final determination 7 under section 705(a) not later than 75 days 8 after issuing the preliminary determination 9 under subparagraph (A); and 10 ‘‘(F) shall extend the date of the final de- 11 termination under section 705(a) if requested 12 by the petitioner; and 13 ‘‘(2) with respect to a successive investigation 14 under section 732(f)— 15 ‘‘(A) shall issue a preliminary determina- 16 tion under section 733(b) not later than 85 17 days after initiating the investigation; 18 ‘‘(B) may not postpone under section 19 733(c) such deadline for the issuance of a pre- 20 liminary determination unless requested by the 21 petitioner; 22 ‘‘(C) shall obtain the information required 23 for a determination under section 733(e); 24 VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 1187 IS ‘‘(D) shall make a determination under 1 section 733(e) with respect to the investigation; 2 ‘‘(E) shall issue a final determination 3 under section 735(a) not later than 75 days 4 after issuing the preliminary determination 5 under subparagraph (A); and 6 ‘‘(F) may extend the date of the final de- 7 termination under section 735(a)(2).’’. 8 (b) CLERICAL AMENDMENT.—The table of contents 9 for the Tariff Act of 1930 is amended by inserting after 10 the item relating to section 783 the following: 11 ‘‘Sec. 784. Determinations relating to successive investigations.’’. TITLE II—RESPONDING TO 12 MARKET DISTORTIONS 13 SEC. 201. ADDRESSING CROSS-BORDER SUBSIDIES IN 14 COUNTERVAILING DUTY INVESTIGATIONS. 15 (a) DEFINITIONS.— 16 (1) COUNTERVAILABLE SUBSIDY.—Section 771 17 of the Tariff Act of 1930 (19 U.S.C. 1677) is 18 amended— 19 (A) in paragraph (5)(B)— 20 (i) in clause (i), by inserting after ‘‘fi- 21 nancial contribution’’ the following: ‘‘or al- 22 lows, explicitly or otherwise, another au- 23 thority to provide a financial contribution’’; 24 and 25 VerDate Sep 11 2014 01:32 May 13, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 1187 IS (ii) in the flush text after clause (iii), 1 by striking ‘‘the country’’ and inserting ‘‘a 2 country’’; and 3 (B) in paragraph (9)— 4 (i) in subparagraph (B), by inserting 5 after ‘‘is exported’’ the following: ‘‘or th [Text truncated for display. Full text available on Congress.gov.]