Leveling the Playing Field 2.0 Act

II 118TH CONGRESS 1ST SESSION S. 1856 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 JUNE 7, 2023 Mr. BROWN (for himself, Mr. YOUNG, Ms. KLOBUCHAR, Mr. BRAUN, Mr. MANCHIN, Mr. TUBERVILLE, Ms. BALDWIN, Mr. COTTON, Mr. CASEY, Mrs. CAPITO, Mr. FETTERMAN, Mr. VANCE, and Ms. SMITH) 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 ‘‘Leveling the Playing Field 2.0 Act’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. VerDate Sep 11 2014 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1856 IS TITLE I—SUCCESSIVE INVESTIGATIONS 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 normal value to account for 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—PREVENTING DUTY EVASION Sec. 501. Limitation on protest against decisions of U.S. Customs and Border Protection of claims of evasion of antidumping and counter- vailing duty orders. Sec. 502. Procedures for investigating claims of evasion of safeguard actions. Sec. 503. Application of provisions relating to certain proprietary information. TITLE VI—GENERAL PROVISIONS Sec. 601. Application to Canada and Mexico. Sec. 602. Effective date. VerDate Sep 11 2014 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1856 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 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1856 IS dise on producers of domestic like 1 products under subparagraph (C)(iii), 2 the Commission shall— 3 ‘‘(aa) consider the condition 4 of the domestic industry as found 5 in a recently completed investiga- 6 tion; 7 ‘‘(bb) consider the effect of 8 a concurrent investigation or re- 9 cently completed investigation on 10 trade and the financial perform- 11 ance of the domestic industry, in- 12 cluding whether the imports are 13 likely to lead to the continuation 14 or recurrence of material injury 15 determined by the Commission in 16 any concurrent investigation or 17 recently completed investigation; 18 and 19 ‘‘(cc) include in the record 20 any prior injury determinations 21 by the Commission with respect 22 to imports of the merchandise. 23 ‘‘(II) EFFECT OF RECENT IM- 24 PROVEMENT ON MATERIAL INJURY 25 VerDate Sep 11 2014 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1856 IS DETERMINATION.—For the purposes 1 of this subparagraph, the Commission 2 may not find that there is no material 3 injury or threat of material injury to 4 a domestic industry solely based on 5 recent improvements in the industry’s 6 performance, such as an increase in 7 sales, market share, or profitability of 8 domestic producers, that are related 9 to relief granted pursuant to a con- 10 current investigation or recently com- 11 pleted investigation. 12 ‘‘(ii) RETROACTIVE APPLICATION OF 13 FINAL DETERMINATION.—In making any 14 finding under section 705(b)(4)(A) or 15 735(b)(4)(A) in a successive investigation, 16 the Commission shall consider that a con- 17 current investigation or recently completed 18 investigation contributes to the likelihood 19 that the remedial effect of the counter- 20 vailing duty order to be issued under sec- 21 tion 706 or the antidumping duty order to 22 be issued under section 736 will be seri- 23 ously undermined.’’. 24 VerDate Sep 11 2014 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1856 IS (b) DEFINITIONS.—Section 771 of the Tariff Act of 1 1930 (19 U.S.C. 1677) is amended by adding at the end 2 the following: 3 ‘‘(37) TREATMENT OF SUCCESSIVE INVESTIGA- 4 TIONS.—For purposes of paragraph (7)(E) and sec- 5 tions 702(f), 732(f), and 784: 6 ‘‘(A) CONCURRENT INVESTIGATION.—The 7 term ‘concurrent investigation’ means an ongo- 8 ing investigation in which an affirmative deter- 9 mination under section 703(a) or 733(a) has 10 been made by the Commission with respect to 11 imports of a class or kind of merchandise that 12 are the same or similar to imports of a class or 13 kind of merchandise that are the subject of a 14 successive investigation. 15 ‘‘(B) RECENTLY COMPLETED INVESTIGA- 16 TION.—The term ‘recently completed investiga- 17 tion’ means a completed investigation in which 18 an affirmative determination under section 19 705(b) or 735(b) was issued by the Commission 20 with respect to imports of a class or kind of 21 merchandise that are the same or similar to im- 22 ports of a class or kind of merchandise that are 23 the subject of a successive investigation not 24 VerDate Sep 11 2014 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1856 IS more than 2 years before the date of initiation 1 of the successive investigation. 2 ‘‘(C) SUCCESSIVE INVESTIGATION.—The 3 term ‘successive investigation’ means an inves- 4 tigation that has been initiated by the admin- 5 istering authority following a petition filed pur- 6 suant to section 702(f) or 732(f).’’. 7 SEC. 102. INITIATION OF SUCCESSIVE ANTIDUMPING AND 8 COUNTERVAILING DUTY INVESTIGATIONS. 9 (a) COUNTERVAILING DUTY INVESTIGATION.—Sec- 10 tion 702 of the Tariff Act of 1930 (19 U.S.C. 1671a) is 11 amended by adding at the end the following: 12 ‘‘(f) INITIATION BY ADMINISTERING AUTHORITY OF 13 SUCCESSIVE COUNTERVAILING DUTY INVESTIGATION.— 14 A 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 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1856 IS ‘‘(A) the determinations under clauses (i) 1 and (ii) of subsection (c)(1)(A) are affirmative 2 with respect to imports of a class or kind of 3 merchandise; and 4 ‘‘(B) imports of the same or similar class 5 or kind of merchandise are or have been the 6 subject of a concurrent investigation or recently 7 completed investigation.’’. 8 (b) ANTIDUMPING DUTY INVESTIGATION.—Section 9 732 of the Tariff Act of 1930 (19 U.S.C. 1673a) is 10 amended by adding at the end the following: 11 ‘‘(f) INITIATION BY ADMINISTERING AUTHORITY OF 12 SUCCESSIVE ANTIDUMPING DUTY INVESTIGATION.—A 13 successive investigation shall be initiated— 14 ‘‘(1) under subsection (a), if— 15 ‘‘(A) the requirements under that sub- 16 section are met with respect to imports of a 17 class or kind of merchandise; and 18 ‘‘(B) imports of the same or similar class 19 or kind of merchandise are or have been the 20 subject of a concurrent investigation or recently 21 completed investigation; or 22 ‘‘(2) under subsection (b), if— 23 ‘‘(A) the determinations under clauses (i) 24 and (ii) of subsection (c)(1)(A) are affirmative 25 VerDate Sep 11 2014 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1856 IS with respect to imports of a class or kind of 1 merchandise; and 2 ‘‘(B) imports of the same or similar class 3 or kind of merchandise are or have been the 4 subject of a concurrent investigation or recently 5 completed investigation.’’. 6 SEC. 103. ISSUANCE OF DETERMINATIONS WITH RESPECT 7 TO SUCCESSIVE ANTIDUMPING AND COUN- 8 TERVAILING DUTY INVESTIGATIONS. 9 (a) IN GENERAL.—Subtitle D of title VII of the Tar- 10 iff Act of 1930 (19 U.S.C. 1677 et seq.) is amended by 11 adding at the end the following: 12 ‘‘SEC. 784. DETERMINATIONS RELATING TO SUCCESSIVE IN- 13 VESTIGATIONS. 14 ‘‘(a) IN GENERAL.—Notwithstanding any other pro- 15 vision of this title, the administering authority— 16 ‘‘(1) with respect to a successive investigation 17 under section 702(f)— 18 ‘‘(A) shall issue a preliminary determina- 19 tion under section 703(b) not later than 85 20 days after initiating the investigation; 21 ‘‘(B) may not postpone under section 22 703(c) such deadline for the issuance of a pre- 23 liminary determination unless requested by the 24 petitioner; 25 VerDate Sep 11 2014 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1856 IS ‘‘(C) upon receipt of an allegation by the 1 petitioner pursuant to section 703(e), shall 2 make a determination under section 703(e) with 3 respect to the investigation; 4 ‘‘(D) shall issue a final determination 5 under section 705(a) not later than 75 days 6 after issuing the preliminary determination 7 under subparagraph (A); and 8 ‘‘(E) shall extend the date of the final de- 9 termination under section 705(a) if requested 10 by the petitioner; and 11 ‘‘(2) with respect to a successive investigation 12 under section 732(f)— 13 ‘‘(A) shall issue a preliminary determina- 14 tion under section 733(b) not later than 140 15 days after initiating the investigation; 16 ‘‘(B) may not postpone under section 17 733(c) such deadline for the issuance of a pre- 18 liminary determination unless requested by the 19 petitioner; 20 ‘‘(C) upon receipt of an allegation by the 21 petitioner pursuant to section 733(e), shall 22 make a determination under section 733(e) with 23 respect to the investigation; 24 VerDate Sep 11 2014 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1856 IS ‘‘(D) shall issue a final determination 1 under section 735(a) not later than 75 days 2 after issuing the preliminary determination 3 under subparagraph (A); and 4 ‘‘(E) may extend the date of the final de- 5 termination under section 735(a)(2) if re- 6 quested by the petitioner.’’. 7 (b) CLERICAL AMENDMENT.—The table of contents 8 for the Tariff Act of 1930 is amended by inserting after 9 the item relating to section 783 the following: 10 ‘‘Sec. 784. Determinations relating to successive investigations.’’. TITLE II—RESPONDING TO 11 MARKET DISTORTIONS 12 SEC. 201. ADDRESSING CROSS-BORDER SUBSIDIES IN 13 COUNTERVAILING DUTY INVESTIGATIONS. 14 (a) IN GENERAL.—Section 701(d) of the Tariff Act 15 of 1930 (19 U.S.C. 1671(d)) is amended— 16 (1) in the subsection heading, by striking 17 ‘‘TREATMENT OF INTERNATIONAL CONSORTIA’’ and 18 inserting ‘‘CUMULATION OF CROSS-BORDER SUB- 19 SIDIES’’; 20 (2) by striking ‘‘For purposes’’ and inserting 21 the following: 22 ‘‘(1) INTERNATIONAL CONSORTIA AND MULTI- 23 NATIONAL CORPORATIONS.—For purposes’’; 24 VerDate Sep 11 2014 00:49 Jul 01, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1856.IS S1856 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1856 IS (3) in paragraph (1), as designated by para- 1 graph (2)— 2 (A) by inserting after ‘‘in their respective 3 home countries,’’ the following: ‘‘or multi- 4 national corporations that are engaged in the 5 production of subject merchandise receive 6 countervailable subsidies to assist, permit, or 7 otherwise enable their production or manufac- 8 turing operations in the country in which the 9 class or kind of merchandise is produced, ex- 10 ported, or sold (or likely to be sold) for impor- 11 tation into the United States,’’; and 12 (B) by inserting after ‘‘the international 13 consortium’’ the following: ‘‘or multinational 14 corporation’’; and 15 (4) by adding at the end the following: 16 ‘‘(2) TRANSNATIONAL S [Text truncated for display. 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