I
112th CONGRESS
2d Session
H. R. 6656
IN THE HOUSE OF REPRESENTATIVES
December 13, 2012
Mr. McDermott (for himself and Mr. Levin) introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committees on Homeland Security and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To reauthorize customs trade facilitation and enforcement functions and programs, and for other purposes.
Short title; table of contents
Short title
This Act may be cited as the
Customs Enhanced Enforcement and Trade
Facilitation Act of 2012
.
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Title I—Customs facilitation
Subtitle A—Functions other than investigative functions
Sec. 101. Establishment of Agency; Commissioner.
Sec. 102. Officers and employees.
Sec. 103. Separate budget for U.S. Customs and Border Protection Agency.
Sec. 104. Revolving fund.
Sec. 105. Advances in foreign countries.
Sec. 106. Advances for enforcement of customs provisions.
Sec. 107. Certification of reason for advance.
Sec. 108. Payments in foreign countries; claims for reimbursement.
Sec. 109. Customs administration.
Sec. 110. Designation of trade oversight personnel.
Sec. 111. Consultation on trade and customs revenue functions.
Sec. 112. Authorization of appropriations.
Subtitle B—Investigative functions
Sec. 121. Separate budget for U.S. Immigration and Customs Enforcement.
Sec. 122. Authorization of appropriations.
Subtitle C—Joint Strategic Plan
Sec. 131. Joint Strategic Plan.
Title II—Customs facilitation, trade enforcement, and transparency
Subtitle A—Customs facilitation and transparency
Sec. 201. Consultations with respect to mutual recognition agreements.
Sec. 202. Commercial Customs Operations Advisory Committee.
Sec. 203. Automated Commercial Environment computer system.
Sec. 204. International Trade Data System.
Subtitle B—Trade enforcement
Chapter 1—Commercial risk assessment targeting
Sec. 211. Commercial Targeting Division and National Targeting and Analysis Groups.
Sec. 212. Centers of Excellence and Expertise.
Sec. 213. Report on oversight of revenue protection and enforcement measures.
Sec. 214. Report on security and revenue measures with respect to merchandise transported in bond.
Sec. 215. Report on effectiveness of trade enforcement activities.
Sec. 216. Priorities and performance standards for Customs modernization, trade facilitation, and trade enforcement functions and programs.
Sec. 217. Educational seminars to improve efforts to classify and appraise imported articles and to improve trade enforcement efforts.
Chapter 2—Importer requirements
Sec. 221. Importer of record program.
Sec. 222. Customs broker identification of importers.
Sec. 223. Establishment of
new importerprogram.
Sec. 224. Requirements applicable to non-resident importers.
Sec. 225. Certified importer program.
Chapter 3—Import-Related protection of intellectual property rights
Sec. 231. Exchange of information related to trade enforcement.
Title III—Prevention of evasion of antidumping and countervailing duty orders
Subtitle A—Actions relating to enforcement of trade remedy laws
Sec. 301. Prevention and investigation of evasion.
Sec. 302. Application to Canada and Mexico.
Subtitle B—Other matters
Sec. 311. Definitions.
Sec. 312. Allocation and training of personnel.
Sec. 313. Regulations.
Sec. 314. Annual report on prevention of evasion of antidumping and countervailing duty orders.
Sec. 315. Government Accountability Office report on reliquidation authority.
Sec. 316. Addressing circumvention by new shippers.
Title IV—Miscellaneous provisions
Sec. 401. Penalties for customs brokers.
Sec. 402. De minimis value and entry under regulations.
Sec. 403. Collection and remittance of certain Customs User Fees.
Sec. 404. Drawback and refunds.
Sec. 405. Amendments to chapter 98 of the Harmonized Tariff Schedule of the United States.
Title V—Other trade agencies
Sec. 501. United States International Trade Commission.
Sec. 502. Office of the United States Trade Representative.
Definitions
In this Act:
Commercial Customs Operations Advisory Committee
The term Commercial Customs Operations Advisory Committee means the Advisory Committee established pursuant to section 202 of this Act or any successor committee.
Commercial operations
The term commercial operations, with respect to the U.S. Customs and Border Protection Agency, includes—
administering any customs revenue function delegated by the Secretary of the Treasury to the Secretary of Homeland Security pursuant to section 412 of the Homeland Security Act of 2002 (6 U.S.C. 212);
facilitating legitimate international trade, and enforcing the customs and trade laws of the United States to the extent of the authority of the Commissioner under such laws;
coordinating all efforts of the Department of Homeland Security to facilitate legitimate international trade and to enforce the customs and trade laws of the United States;
coordinating, on behalf of the Department of Homeland Security, efforts among executive branch agencies to facilitate legitimate trade and to enforce the customs and trade laws of the United States, including—
representing the Department of Homeland Security in interagency fora addressing such efforts; and
coordinating with the Director of U.S. Immigration and Customs Enforcement to develop and implement the Joint Strategic Plan;
coordinating, on behalf of the United States, efforts with foreign customs agencies to facilitate legitimate international trade and to enforce the customs and trade laws of the United States and of foreign countries;
collecting, assessing, and disseminating information as appropriate and in accordance with law, regarding cargo destined for the United States, to ensure that such cargo complies with the customs and trade laws of the United States and to facilitate the legitimate international trade of such cargo;
soliciting and considering on a regular basis input from the private sector, including the Commercial Customs Operations Advisory Committee, the Trade Support Network, and other entities affected by the efforts of the Federal Government to facilitate legitimate international trade and to enforce the customs and trade laws of the United States, with respect to—
the implementation of new or amended customs and trade laws of the United States; and
the development, implementation, or revision of policies or regulations administered by the U.S. Customs and Border Protection Agency; and
otherwise advising the Secretary of Homeland Security with respect to the development of policies associated with facilitating legitimate international trade and enforcing the customs and trade laws of the United States.
Customs and trade laws of the United States
The term customs and trade laws of the United States includes the following:
The Tariff Act of 1930.
Section 249 of the Revised Statutes of the United States (19 U.S.C. 3).
Section 2 of the Act of March 4, 1923 (19 U.S.C. 6).
Section 13031 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c).
Section 251 of the Revised Statutes of the United States (19 U.S.C. 66).
Section 1 of the Act of June 26, 1930 (19 U.S.C. 68).
The Foreign Trade Zones Act (19 U.S.C. 81a et seq.).
Section 1 of the Act of March 2, 1911 (19 U.S.C. 198).
The Trade Act of 1974.
The Trade Agreements Act of 1979.
The North American Free Trade Area Implementation Act.
The Uruguay Round Agreements Act.
The Caribbean Basin Economic Recovery Act.
The Andean Trade Preference Act.
The African Growth and Opportunity Act.
The Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2071 et seq.).
The Customs Enforcement Act of 1986 (Public Law 99–570; 100 Stat. 3207–79).
The Customs and Trade Act of 1990 (Public Law 101–382; 104 Stat. 629).
The Customs Procedural Reform and Simplification Act of 1978 (Public Law 95–410; 92 Stat. 888).
The Trade Act of 2002 (Public Law 107–210; 116 Stat. 933).
The Convention on Cultural Property Implementation Act (19 U.S.C. 2601 et seq.).
The Act of August 7, 1939 (53 Stat. 1263, chapter 566; 19 U.S.C. 2077 et seq.).
Any other provision of law vesting customs revenue functions in the Secretary of the Treasury.
Any other provision of law relating to customs facilitation or trade enforcement that is administered by the U.S. Customs and Border Protection Agency on behalf of any Federal agency that is required to participate in the International Trade Data System established pursuant to section 411(d) of the Tariff Act of 1930 (19 U.S.C. 1411(d)), as amended by section 204 of this Act.
Any other provision of customs or trade law administered by the U.S. Customs and Border Protection Agency.
Customs revenue function
The term customs revenue function has the meaning given that term in section 415 of the Homeland Security Act of 2002 (6 U.S.C. 215).
Importer
The term importer means one of the parties qualifying as an importer of record under section 484(a)(2)(B) of the Tariff Act of 1930 (19 U.S.C. 1484(a)(2)(B)).
Nonresident importer
The term nonresident importer means an importer who is—
an individual who is not a citizen of the United States or an alien lawfully admitted for permanent residence in the United States; or
a partnership, corporation, or other commercial entity that is not organized under the laws of a jurisdiction within the customs territory of the United States (as such term is defined in General Note 2 of the Harmonized Tariff Schedule of the United States) or in the Virgin Islands of the United States.
Joint strategic plan
The term Joint Strategic Plan means the plan required by section 131 of this Act.
Trade Support Network
The term Trade Support Network means representatives of the private sector that provide input on the design and development of modernization projects of the U.S. Customs and Border Protection Agency.
Customs facilitation
Functions other than investigative functions
Establishment of Agency; Commissioner
In general
The first section of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2071), is amended to read as follows:
Establishment of U.S. Customs and Border Protection Agency; commissioner
Establishment of U.S. Customs and Border Protection Agency
There is established in the Department of Homeland Security the U.S. Customs and Border Protection Agency.
Establishment of Commissioner of U.S. Customs and Border Protection
The head of the U.S. Customs and Border Protection Agency shall be a Commissioner of U.S. Customs and Border Protection (in this Act referred to as the Commissioner), who shall—
be appointed by the President, by and with the advice and consent of the Senate;
carry out the duties described in subsection (c); and
report directly to the Secretary of Homeland Security.
Duties
In general
The Commissioner shall—
carry out the duties and powers prescribed by law or by the Secretary of Homeland Security;
direct the administration of the commercial operations of the U.S. Customs and Border Protection Agency and the enforcement of the customs and trade laws of the United States; and
otherwise safeguard the economic and homeland security interests of the United States at land borders and ports of entry.
Definitions
In this subsection, the terms commercial operations and customs and trade laws of the United States have the meanings given such terms in section 2 of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012.
Absence or disability of Commissioner
The Deputy Commissioner of U.S. Customs and Border Protection, appointed pursuant to section 2, shall act as Commissioner of U.S. Customs and Border Protection during the absence or disability of the Commissioner of U.S. Customs and Border Protection, or in the event that there is no Commissioner of U.S. Customs and Border Protection.
.
Administrative continuity
In general
The Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2073), is amended by striking section 3 and inserting the following:
Transfer of functions, assets, liabilities, and duties
In general
Effective on the date of the enactment of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012, the functions and associated personnel, assets, and liabilities, identified under section 411 of the Homeland Security Act of 2002 (6 U.S.C. 211) on the day before such date of enactment, are transferred to the U.S. Customs and Border Protection Agency.
Continuation in office
The individual serving as Commissioner of Customs, in the Department of Homeland Security, on the day before the date of the enactment of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012 may serve as the Commissioner of the U.S. Customs and Border Protection Agency until the earlier of—
the date on which such individual is no longer eligible to serve as Commissioner of Customs; or
the date on which a person nominated by the President to be the Commissioner of U.S. Customs and Border Protection is confirmed by the Senate.
.
Repeal
Section 411 of the Homeland Security Act of 2002 (6 U.S.C. 211), and the item relating to that section in the table of contents for that Act, are repealed.
Reference
On and after the effective date of this
Act, any reference in law or regulations to the Commissioner of
Customs
or the Commissioner of the Customs Service
shall
be deemed to be a reference to the Commissioner of U.S. Customs and Border
Protection established pursuant to section 1 of the Act of March 3, 1927, as
amended by subsection (a) of this section.
Compensation
Section 5314 of title 5, United States
Code, is amended by striking Commissioner of Customs, Department of
Homeland Security
and inserting Commissioner of U.S. Customs and
Border Protection, Department of Homeland Security
.
Officers and employees
Deputy commissioner
Section 2 of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072), is amended by striking subsection (a) and inserting the following:
Deputy Commissioner
In general
There shall be in the U.S. Customs and Border Protection Agency established by the first section, 1 Deputy Commissioner who shall be appointed by the President, by and with the advice and consent of the Senate.
Qualifications
A person appointed to be the Deputy Commissioner of U.S. Customs and Border Protection shall have a minimum of 10 years of professional experience in the operation of the customs and trade laws of the United States.
Duties
The duties of the Deputy Commissioner shall include—
overseeing the commercial operations of the U.S. Customs and Border Protection Agency, including the operations of the Office of International Trade and all other offices of the Agency whose duties primarily relate to the commercial operations of the Agency;
resolving issues relating to the commercial operations of the U.S. Customs and Border Protection Agency, including liaising between offices primarily charged with carrying out the commercial operations of the Agency and any operational or port level office, including the Office of Field Operations or any successor office, in the administration of duties relating to the commercial operations of the Agency;
overseeing the development and implementation information technology, research, and communication functions of the U.S. Border and Protection Agency that affect the commercial operations of the Agency, including modernization strategies, that support the commercial operations of the Agency, including the implementation of the Automated Commercial Environment computer system authorized under section 13031(f)(5) of the Consolidated Omnibus Budget and Reconciliation Act of 1985 (19 U.S.C. 58c(f)(5));
overseeing the customs revenue functions of the U.S. Customs and Border Protection Agency in consultation, as appropriate, with the Deputy Assistant Secretary for Tax, Trade, and Tariff Policy of the Department of the Treasury or any successor position;
overseeing the administration of customs revenue functions of the U.S. Customs and Border Protection Agency; and
consulting with the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives on a regular and timely basis regarding the administration of the commercial operations of the U.S. Customs and Border Protection Agency, including—
the status and substance of international negotiations relating to the customs and trade laws of the United States, or of foreign countries, in which personnel of the Agency are participating;
the resource needs of the Agency in relation to the commercial operations of the Agency;
any proposed changes to policy, regulations, interpretations, or practices that relate to commercial operations;
any legislative proposals that the Agency or the Department of Homeland Security provides to other committees of the Senate or the House of Representatives or individual members of such committees that relate to the commercial operations of the Agency; and
the implementation of new or amended customs and trade laws of the United States.
Absence or disability of Deputy Commissioner
The Assistant Commissioner of the Office of International Trade shall act as the Deputy Commissioner during the disability of the Deputy Commissioner, or in the event that there is no Deputy Commissioner.
.
Trade advocate
Section 2 of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072), as amended by subsection (a) of this section, is further amended by striking subsection (b) and inserting the following:
Trade Advocate
In general
The Commissioner shall appoint within the U.S. Customs and Border Protection Agency, a Trade Advocate, who shall report directly to the Commissioner.
Qualifications
A person appointed to be Trade Advocate shall have not less than 5 years experience working in international trade in the private sector.
Duties
The Trade Advocate shall—
serve as the primary liaison between the U.S. Customs and Border Protection Agency and the public with respect to the Agency’s administration of customs facilitation and trade enforcement functions;
assist the Commissioner in resolving issues relating to the commercial operations of the Agency by effectively communicating the perspectives held by interested parties in the private sector, including domestic producers, and other private commercial interests;
consult with interested parties in the private sector, including domestic producers, the Commercial Customs Operations Advisory Committee, and the Trade Support Network, for their input with respect to the Agency's—
development and implementation of rules, regulations, decisions, and notices related to the customs and trade laws of the United States administered by the Agency;
development of the Joint Strategic Plan required under section 131 of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012;
assessment of the effectiveness of customs facilitation and trade enforcement efforts; and
trade modernization activities, including the development and implementation of the Automated Commercial Environment computer system authorized under section 13031(f)(5) of the Consolidated Omnibus Budget and Reconciliation Act of 1985 (19 U.S.C. 58c(f)(5)) and support for the establishment of the International Trade Data System under the oversight of the Department of the Treasury pursuant to section 411(d) of the Tariff Act of 1930 (19 U.S.C. 1411(d));
advise the Commissioner with respect to the consultations described in subparagraph (C); and
otherwise consult with the public as directed by the Commissioner or by law.
.
Other officers
Section 2 of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072), as amended by subsections (a) and (b) of this section, is further amended by striking subsection (c) and inserting the following:
Other officers
The Secretary of Homeland Security may appoint such other officers as are necessary to manage the individual offices within the U.S. Customs and Border Protection Agency. Any appointment of personnel under this subsection shall be subject to the provisions of the civil service laws, and the salaries of such personnel shall be fixed in accordance with chapter 51 and subchapter III of chapter 53 of title 5, United States Code.
.
Office of International Trade
Section 2(d) of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072(d)), is amended—
in paragraph (1),
by striking United States Customs and Border Protection
and
inserting U.S. Customs and Border Protection Agency
; and
in paragraph (2)—
in the heading, by
striking ; elimination of
offices
;
by striking subparagraph (A) and inserting the following:
Office of Field Operations
Transfer
In general
Not later than 90 days after the date of enactment of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012, the Commissioner shall transfer to the Office of International Trade established pursuant to paragraph (1) the assets, functions (other than administrative functions), and personnel described in subclause (II) of the Office of Field Operations.
Personnel described
The personnel of the Office of Field Operations referred to in subclause (I) are the following:
Personnel having the statutory authority to classify and appraise goods entering the United States.
Personnel having the responsibility to act as principal point of contact and technical experts with respect to goods entering the United States, including responsibilities relating to collection and deposit of duties, taxes, and fees.
Such other personnel as the Commissioner determines to be necessary.
Assistant Commissioner in the Office of International Trade
The assets, functions, and personnel transferred to the Office of International Trade pursuant to clause (i) shall be under the authority of the Assistant Commissioner in the Office of International Trade.
Training
Not later than 18 months after the date of the enactment of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012, the Commissioner shall ensure that sufficient training with respect to facilitating legitimate international trade and enforcing the customs and trade laws of the United States has been provided to personnel transferred to the Office of International Trade pursuant to clause (i).
Limitation on funds
No funds appropriated to the U.S. Customs and Border Protection Agency may be used to transfer the assets, functions, or personnel of the Office of Field Operations to an office other than the Office of International Trade.
;
by striking subparagraph (B);
by redesignating subparagraphs (C) through (F) as subparagraphs (B) through (E), respectively;
in subparagraph (B), as redesignated by
subparagraph (D) of this paragraph, by striking United States Customs
and Border Protection
and inserting U.S. Customs and Border
Protection Agency
; and
in subparagraph (E), as redesignated by subparagraph (D) of this paragraph—
by striking United States Customs
and Border Protection
and inserting U.S. Customs and Border
Protection Agency
; and
by
striking subparagraph (E)(ii)
and inserting subparagraph
(D)(ii)
.
Definitions
Section 2(f) of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072) is amended to read as follows:
Definitions
In this section—
the term Commissioner means the Commissioner of U.S. Customs and Border Protection; and
the terms Commercial Customs Operations Advisory Committee, commercial operations, customs and trade laws of the United States, and Trade Support Network have the meaning given such terms in section 2 of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012.
.
United States Trade Representative review of Customs regulations, interpretations, and practices
The Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2071 et seq.), is amended by inserting after section 3 the following:
United States Trade Representative review of Customs regulations, interpretations, and practices
Referral
The Commissioner of U.S. Customs and Border Protection shall consult with the United States Representative with respect to any proposed change to a regulation, interpretation, or practice of the Agency relating to commercial operations of the Agency that implicates compliance by the United States Government with its international trade obligations.
Definition
In this section, the term commercial operations has the meaning given the term in section 2 of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012.
.
Compensation
Section 5315 of title 5, United States Code, is amended by adding at the end the following:
Deputy Commissioner of U.S. Customs
and Border Protection, Department of Homeland Security.
.
Separate budget for U.S. Customs and Border Protection Agency
In general
The President shall include in each budget transmitted to Congress under section 1105 of title 31, United States Code, a separate budget request for the commercial operations of the U.S. Customs and Border Protection Agency.
Repeal
Section 414 of the Homeland Security Act of 2002 (6 U.S.C. 214), and the item relating to that section in the table of contents of that Act, are repealed.
Revolving fund
The matter under the
heading revolving fund, bureau of customs
in the
Treasury and Post Office Departments Appropriation Act, 1950 (63 Stat. 360,
chapter 286; 19 U.S.C. 2074), is amended by striking Bureau of
Customs
and inserting U.S. Customs and Border Protection
Agency
.
Advances in foreign countries
The matter under the heading
bureau of
customs
in title I of the Treasury Department
Appropriation Act 1940 (53 Stat. 660, chapter 115; 19 U.S.C. 2076), is amended
in the last proviso by striking Bureau of Customs
and inserting
U.S. Customs and Border Protection Agency or U.S. Immigration and
Customs Enforcement
.
Advances for enforcement of customs provisions
Section 2 of the
Act entitled An Act to provide for advances of funds by special
disbursing agents in connection with the enforcement of Acts relating to
narcotic drugs
, approved March 28, 1928 (19 U.S.C. 2077), is amended to
read as follows:
Advances for enforcement of customs provisions
The Commissioner of U.S. Customs and Border Protection and the Director of U.S. Immigration and Customs Enforcement, with the approval of the Secretary of Homeland Security and the Secretary of the Treasury, are each authorized to direct the advance of funds by the Fiscal Service in the Department of the Treasury, in connection with the enforcement of the customs and trade laws of the United States (as defined in section 2 of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012).
.
Certification of reason for advance
Section 3 of the Act
of March 28, 1928 (19 U.S.C. 2078), is amended by striking Commissioner
of Customs
and inserting Commissioner of U.S. Customs and Border
Protection or the Director of U.S. Immigration and Customs
Enforcement
.
Payments in foreign countries; claims for reimbursement
Section 4 of the Act of August 7, 1939 (53 Stat. 1263, chapter 566; 19 U.S.C. 2079), is amended to read as follows:
Payments in foreign countries; claims for reimbursement
The provisions of this Act shall not affect payments made for the U.S. Customs and Border Protection Agency or U.S. Immigration and Customs Enforcement in foreign countries, or the right of any officer or employee of such Agencies to claim reimbursement for personal funds expended in connection with the enforcement of the customs and trade laws of the United States (as defined in section 2 of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012).
.
Customs administration
Section 113 of the Customs and Trade Act of 1990 (19 U.S.C. 2082) is amended to read as follows:
Customs Administration
In general
The Commissioner of U.S. Customs and Border Protection and the Director of U.S. Immigration and Customs Enforcement each shall—
develop and implement accounting systems that accurately determine and report the allocation of the personnel and other resources of the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement among the various operational functions of each Agency, including merchandise processing and customs and trade law enforcement; and
for fiscal year 2013 and each subsequent fiscal year, develop and implement labor distribution surveys of major workforce activities within the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement to determine the cost of the various operational functions of each Agency and the extent to which the costs of one Agency are covered by the other Agency.
Survey reports
The Commissioner of U.S. Customs and Border Protection and the Director of U.S. Immigration and Customs Enforcement shall each, not later than December 31, 2013, and December 31 of each subsequent calendar year, 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 results of the surveys implemented under paragraph (2) of subsection (a) for the preceding fiscal year.
.
Designation of trade oversight personnel
Subsection (c) of section 412 of the Homeland Security Act of 2002 (6 U.S.C. 212(c)) is amended to read as follows:
Designation of trade oversight personnel
Not later than 90 days after the date of the enactment of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012, the Secretary of the Treasury shall designate and dedicate not less than 5 full-time equivalent personnel to work exclusively with the Deputy Assistant Secretary of the Treasury for Tax, Trade, and Tariff Policy in the performance and oversight of customs revenue functions.
.
Consultation on trade and customs revenue functions
Section 401(c) of the Safety and Accountability for Every Port Act (6 U.S.C. 115(c)) is amended—
in paragraph (1), by striking on
Department policies and actions that have
and inserting not
later than 30 days after proposing, and not later than 30 days before
finalizing, any Department policies, initiatives, or actions that will
have
; and
in paragraph (2)(A), by striking not
later than 30 days prior to the finalization of
and inserting
not later than 60 days before proposing, and not later than 60 days
before finalizing,
.
Authorization of appropriations
In general
Section 301 of the Customs Procedural Reform and Simplification Act of 1978 (19 U.S.C. 2075) is amended—
in subsection (a)—
in paragraph (1)—
by
striking October 1, 1979
and inserting October 1,
2012
; and
by
striking Department of the Treasury for the United States Customs
Service
and inserting Department of Homeland Security for the
U.S. Customs and Border Protection Agency
;
by striking paragraph (2) and inserting the following:
Requirement for authorization
The authorization of the appropriations for the U.S. Customs and Border Protection Agency for each fiscal year after fiscal year 2012 shall specify the amount authorized for the fiscal year for the salaries and expenses of the Agency in conducting commercial operations.
; and
by striking paragraph (3);
by striking subsections (b), (c), and (d) and inserting the following:
Authorization of appropriations
In general
There are authorized to be appropriated for the salaries and expenses of the U.S. Customs and Border Protection Agency that are incurred in commercial operations—
not less than $1,800,000,000 for fiscal year 2013;
not less than $1,817,000,000 for fiscal year 2014; and
not less than $1,830,000,000 for fiscal year 2015.
Customs user fee account
The monies authorized to be appropriated pursuant to paragraph (1) for any fiscal year, except for such sums as may be necessary for the salaries and expenses of the U.S. Customs and Border Protection Agency that are incurred in connection with the processing of merchandise that is exempt from the fees imposed pursuant to section 13031(a) (9) and (10) of the Consolidated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c(a) (9) and (10)), shall be appropriated from the Customs User Fee Account.
Mandatory 10-Day deferment
No part of the funds appropriated under subsection (a) for any fiscal year may be used to provide less time for the collection of estimated duties than the 10-day deferment procedure in effect on January 1, 1981.
Overtime pay limitations; waiver
No part of the funds appropriated pursuant to subsection (a) for any fiscal year may be used for administrative expenses to pay any customs officer overtime pay in an amount exceeding $35,000 unless the Secretary of Homeland Security determines on an individual basis that payment of overtime pay to such officer in an amount exceeding $35,000 is necessary for national security purposes, to prevent excessive costs, or to meet emergency requirements of the Agency.
;
in subsection (e)—
by striking
October 1, 1982
and inserting October 1,
2012
;
by striking
Department of the Treasury for salaries of the United States Customs
Service
and inserting Department of Homeland Security for
salaries of the U.S. Customs and Border Protection Agency
; and
by striking
to reflect
and all that follows and inserting to reflect
any adjustment in rates of basic pay made in accordance with subchapter I of
chapter 53 of title 5, United States Code.
;
by striking subsections (f) and (g) and inserting the following:
Use of savings resulting from administrative consolidations
If savings in salaries and expenses result from the consolidation of administrative functions within the U.S. Customs and Border Protection Agency, the Commissioner of U.S. Customs and Border Protection shall apply the savings, to the extent the savings are not needed to meet emergency requirements of the Agency, to strengthening the commercial operations of the Agency by increasing the number of personnel dedicated to administering such commercial operations.
Allocation of resources; report to congressional committees
The Commissioner of U.S. Customs and Border Protection shall notify the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives at least 180 days prior to taking any action that would—
result in any significant reduction in force of employees of the U.S. Customs and Border Protection Agency other than by means of attrition;
result in any significant reduction in hours of operation or services rendered at any office of the U.S. Customs and Border Protection Agency or any United States port of entry;
eliminate or relocate any office of the U.S. Customs and Border Protection Agency;
eliminate any United States port of entry; or
significantly reduce the number of employees assigned to any office or any function of the U.S. Customs and Border Protection Agency.
; and
by adding at the end the following:
Definition
In this section, the term commercial operations has the meaning given such term in section 2 of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012.
.
Resource optimization model
Subsection (h) of section 301 of the
Customs Procedural Reform and Simplification Act of 1978 is amended by striking
Resource Allocation Model
each place it appears in the text and
in the heading and inserting Resource Optimization Model
.
Conforming amendment
Subsection (c) of section 5 of the Act of February 13, 1911 (19 U.S.C. 267(c)), is amended to read as follows:
Limitations
Fiscal year cap
The aggregate of overtime pay under subsection (a) of this section (including commuting compensation under subsection (a)(2)(B) of this section) and premium pay under subsection (b) of this section that a customs officer may be paid in any fiscal year may not exceed $35,000 unless the Secretary of Homeland Security determines on an individual basis that payment of overtime pay to such officer in an amount exceeding $35,000 is necessary for national security purposes, to prevent excessive costs, or to meet emergency requirements of the Agency.
Exclusivity of pay under this section
A customs officer who receives overtime pay under subsection (a) of this section, or premium pay under subsection (b) of this section for time worked, may not receive pay or other compensation for that work under any other provision of law.
.
Investigative functions
Separate budget for U.S. Immigration and Customs Enforcement
The President shall include in each budget transmitted to Congress under section 1105 of title 31, United States Code, a separate budget request of U.S. Immigration and Customs Enforcement for the enforcement of the customs and trade laws of the United States.
Authorization of appropriations
Title III of the Customs Procedural Reform and Simplification Act of 1978 (19 U.S.C. 2075) is amended by inserting after section 301 the following:
Authorization of appropriations for certain Customs enforcement activities
In general
Fiscal years beginning on or after October 1, 2012
For the fiscal year beginning October 1, 2012, and each fiscal year thereafter, there are authorized to be appropriated to the U.S. Immigration and Customs Enforcement of the Department of Homeland Security for the enforcement of the customs and trade laws of the United States only such sums as may be authorized by law.
Specification of amounts
The authorization of the appropriations for the U.S. Immigration and Customs Enforcement for each fiscal year after fiscal year 2012 shall specify the amount authorized for the fiscal year for the salaries and expenses of U.S. Immigration and Customs Enforcement for the enforcement of the customs and trade laws of the United States.
Authorization of appropriations
There are authorized to be appropriated for the salaries and expenses of the U.S. Immigration and Customs Enforcement that are incurred in enforcement of the customs and trade laws of the United States—
not less than $86,000,000 for fiscal year 2013;
not less than $88,150,000 for fiscal year 2014; and
not less than $90,200,000 for fiscal year 2015.
Definition
In this section, the term customs and trade laws of the United States has the meaning given such term in section 2 of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012.
.
Joint Strategic Plan
Joint Strategic Plan
In general
Not later than June 30, 2013, and every 2 years thereafter, the Commissioner of U.S. Customs and Border Protection and the Director of U.S. Immigration and Customs Enforcement shall jointly develop and submit to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives, a Joint Strategic Plan.
Contents
The Joint Strategic Plan required under this section shall be comprised of a comprehensive multi-year plan for enforcing the customs and trade laws of the United States and for facilitating the international trade of the United States, and shall include—
a summary of actions taken to date to better enforce the customs and trade laws of the United States and to better facilitate the international trade of the United States, including a description and analysis of specific performance measures to evaluate the progress of the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement in meeting each such responsibility;
a statement of objectives and plans for further improving the enforcement of the customs and trade laws of the United States and the facilitation of the international trade of the United States;
a specific identification of the priority trade issues described in paragraph (3)(B)(ii) of section 2(d) of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072(d)), as added by section 211(a) of this Act;
a description of efforts made to improve consultation and coordination among Federal departments and agencies, and in particular between the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement, regarding the enforcement of the customs and trade laws of the United States and the facilitation of the international trade of the United States;
a description of the training that has occurred to date within the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement to improve such enforcement and facilitation, including training under section 217 of this Act;
a specific identification of any domestic or international best practices that may further improve such enforcement and facilitation; and
any legislative recommendations to further improve such enforcement of the customs and trade laws of the United States or facilitation.
Consultations
In general
In developing the Joint Strategic Plan required under this section, the Commissioner and the Director shall consult with—
appropriate officials from the relevant Federal departments and agencies, including—
the Department of the Treasury;
the Department of Agriculture;
the Department of Commerce;
the Department of Justice;
the Department of the Interior;
the Department of Health and Human Services;
the Food and Drug Administration;
the Consumer Product Safety Commission; and
the Office of the United States Trade Representative; and
the Commercial Customs Operations Advisory Committee (established in section 202 of this Act).
Other consultations
In developing the Joint Strategic Plan required under this section, the Commissioner and the Director shall seek to consult with—
appropriate officials from relevant foreign law enforcement agencies and international organizations, including the World Customs Organization; and
interested parties in the private sector, including domestic producers.
Customs facilitation, trade enforcement, and transparency
Customs facilitation and transparency
Consultations with respect to mutual recognition agreements
The Secretary of Homeland Security, with respect to any proposed Mutual Recognition Arrangement or similar agreement between the United States and a foreign government providing for mutual recognition of supply chain security programs and customs revenue functions, shall—
consult, not later than 30 days before initiating negotiations to enter into any such agreement, with the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives; and
consult, not later than 30 days before entering into any such agreement, with the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives.
Commercial Customs Operations Advisory Committee
Establishment
Not later than 60 days after the date of
enactment of this Act, the Secretary of the Treasury and the Secretary of
Homeland Security shall jointly establish a Commercial Customs Operations
Advisory Committee (in this section referred to as the Advisory
Committee
).
Membership
In general
The Advisory Committee shall be comprised of—
20 individuals appointed under paragraph (2);
the Assistant Secretary for Tax Policy of the Department of the Treasury and the Assistant Secretary of Policy and Planning of the Department of Homeland Security, who shall jointly co-chair meetings of the Advisory Committee; and
the Commissioner of U.S. Customs and Border Protection and the Director of U.S. Immigration and Customs Enforcement, who shall serve as deputy co-chairs of meetings of the Advisory Committee.
Appointment
In general
The Secretary of the Treasury and the Secretary of Homeland Security shall jointly appoint 20 individuals from the private sector to the Advisory Committee.
Requirements
In making appointments under subparagraph (A), the Secretary of the Treasury and the Secretary of Homeland Security shall appoint members—
to ensure that the membership of the Advisory Committee is representative of the individuals and firms affected by the commercial operations of the U.S. Customs and Border Protection Agency;
to ensure that a majority of the individuals are not members of the same political party; and
to ensure that domestic manufacturing parties are represented.
Duties
The Advisory Committee established under subsection (a) shall—
advise the Secretary of the Treasury and the Secretary of Homeland Security on matters involving the commercial operations of the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement, including advising with respect to significant changes that are proposed with respect to agency regulations, policies, or practices;
provide recommendations to the Secretary of the Treasury and the Secretary of Homeland Security on improvements to the commercial operations of the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement; and
perform such other functions relating to the commercial operations of the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement as prescribed by law or as the Secretary of the Treasury and the Secretary of Homeland Security jointly direct.
Meetings
The Advisory Committee shall meet at the call of the Secretary of the Treasury and the Secretary of Homeland Security.
Annual report
Not later than December 31 of each calendar year, the Advisory Committee shall submit to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives a report that—
describes the activities of the Advisory Committee during the preceding fiscal year; and
sets forth any recommendations of the Advisory Committee regarding the commercial operations of the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement.
Termination
Section 14(a)(2)(B) of the Federal Advisory Committee Act (5 U.S.C. App.; relating to the termination of advisory committees) shall not apply to the Advisory Committee.
Conforming amendment
In general
Effective on the date on which the Advisory Committee is established under subsection (a), section 9503(c) of the Omnibus Budget Reconciliation Act of 1987 (19 U.S.C. 2071 note) is repealed.
Reference
Any reference in law to the Advisory Committee on Commercial Operations of the United States Customs Service established under section 9503(c) of the Omnibus Budget Reconciliation Act of 1987 (19 U.S.C. 2071 note) made on or after the date on which the Advisory Committee is established under subsection (a), shall be deemed a reference to the Commercial Customs Operations Advisory Committee established under subsection (a).
Automated Commercial Environment computer system
Funding
Section 13031(f)(5) of the Consolidated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c(f)(5)) is amended—
in subparagraph (A)—
by striking 2003, 2004, and
2005
and inserting 2013, 2014, and 2015
; and
by striking $350,000,000
and
inserting $700,242,000
; and
in subparagraph (B)—
by striking 2003 through
2005
and inserting 2013 through 2015
;
by striking such amounts as are
available in that Account
and inserting not less than
$138,794,000
; and
by striking for the
development
and inserting to complete the
development
.
Report
Section 311(b)(3) of the Customs Border Security Act of 2002 (19 U.S.C. 2075 note) is amended to read as follows:
Report
In general
Not later than December 31, 2012, the Commissioner of U.S. Customs and Border Protection shall submit to the Committee on Appropriations and the Committee on Finance of the Senate and the Committee on Appropriations and the Committee on Ways and Means of the House of Representatives a report specifying—
the plans of the U.S. Customs and Border Protection Agency and deadlines for incorporating all cargo release data elements into the Automated Commercial Environment computer system not later than September 30, 2015, to conform with the admissibility criteria of agencies participating in the International Trade Data System identified pursuant to section 411(d)(4)(A)(iii) of the Tariff Act of 1930;
the Agency’s remaining priorities for incorporating entry summary data elements, cargo manifest data elements, cargo financial data elements, and export elements into the Automated Commercial Environment computer system; and
the Agency’s objectives, plans, and deadlines for implementing the priorities identified under clause (ii) not later than September 30, 2015.
Update of reports
Not later than December 31, 2014, and September 30, 2015, the Commissioner shall submit to the Committee on Appropriations and the Committee on Finance of the Senate and the Committee on Appropriations and the Committee on Ways and Means of the House of Representatives an updated report addressing each of the matters referred to in subparagraph (A).
.
Government accountability office report
Not later than December 31, 2015, the Comptroller General of the United States shall submit to the Committee on Appropriations and the Committee on Finance of the Senate and the Committee on Appropriations and the Committee on Ways and Means of the House of Representatives a report—
evaluating the cost and effectiveness of the efforts of the U.S. Customs and Border Protection Agency to complete the development, establishment, and implementation of the Automated Commercial Environment computer system;
assessing the extent to which any additional functionality may be added into the Automated Commercial Environment computer system at a reasonable cost; and
assessing the potential cost savings to the United States Government and importers and exporters and the potential benefits to enforcement of the customs and trade laws of the United States if the elements identified in clauses (i) and (ii) of section 311(b)(3)(A) of the Customs Border Security Act of 2002, as amended by subsection (b) of this section, are implemented.
International Trade Data System
Section 411(d) of the Tariff Act of 1930 (19 U.S.C. 1411(d)) is amended—
in paragraph (1), by adding at the end the following:
Prohibition on other systems for cargo clearance
The Secretary shall ensure that each agency that participates in the ITDS use the ITDS to collect and distribute data and documentation for clearing or licensing the importation or exportation of cargo, including to authorize the release of cargo by the U.S. Customs and Border Protection Agency, and does not use any other system for such purposes.
;
by redesignating paragraphs (4) through (7) as paragraphs (5) through (8), respectively;
by inserting after paragraph (3) the following:
Information technology infrastructure
The head of each Federal agency that requires documentation for clearing or licensing the importation and exportation of cargo shall—
develop and maintain the necessary information technology infrastructure to support the operation of the ITDS;
not later than March 31, 2013, enter into a memorandum of understanding, or take such other action as is necessary, to provide for the information sharing between the agency and the U.S. Customs and Border Protection Agency necessary for the operation and maintenance of the ITDS; and
not later than March 31, 2013, identify and transmit to the Commissioner of U.S. Customs and Border Protection the admissibility criteria and data elements required by the agency to authorize the release of cargo by the U.S. Customs and Border Protection Agency for incorporation into the operational functionality of the Automated Commercial Environment computer system.
;
in paragraph (5), as redesignated, by
striking each fiscal year
and inserting each of the
fiscal years 2010 through 2013
; and
in paragraph (8),
as redesignated, by striking section 9503(c) of the Omnibus Budget
Reconciliation Act of 1987 (19 U.S.C. 2071 note)
and inserting
section 202 of the Customs Enhanced Enforcement and Trade Facilitation
Act of 2012
.
Trade enforcement
Commercial risk assessment targeting
Commercial Targeting Division and National Targeting and Analysis Groups
In general
Section 2(d) of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072(d)), as amended by section 102(d) of this Act, is further amended by adding at the end the following:
Commercial Targeting Division and National Targeting and Analysis Groups
Establishment of commercial targeting division
In general
The Secretary of Homeland Security shall establish and maintain within the Office of International Trade a Commercial Targeting Division.
Composition
The Commercial Targeting Division shall be composed of—
headquarters personnel led by an Executive Director, who shall report to the Assistant Commissioner of the Office of International Trade; and
individual National Targeting and Analysis Groups, each led by a Director who shall report to the Executive Director of the Commercial Targeting Division.
Duties
The Commercial Targeting Division shall be dedicated—
to the development and conduct of commercial risk assessment targeting with respect to cargo destined for the United States in accordance with subparagraph (C); and
to issuing Trade Alerts described in subparagraph (D).
National targeting and analysis groups
In general
A National Targeting and Analysis Group referred to in subparagraph (A)(ii)(II) shall, at a minimum, be established for each priority trade issue described in clause (ii).
Priority trade issues
In general
The priority trade issues described in this clause are the following:
Agriculture programs.
Antidumping and countervailing duties.
Import safety.
Intellectual property rights.
Penalties.
Revenue.
Textiles.
Trade agreements.
Modification
The Commissioner is authorized to establish new priority trade issues and eliminate, consolidate, or otherwise modify the priority trade issues described in this paragraph if the Commissioner—
determines it necessary and appropriate to do so; and
submits to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives a summary of the proposed changes to the priority trade issues not later than 60 days before such changes are to take effect.
Duties
The duties of each National Targeting and Analysis Group shall include—
directing the trade enforcement and compliance assessment activities of the U.S. Customs and Border Protection Agency that relate to the Group’s priority trade issue;
facilitating, promoting, and coordinating cooperation and the exchange of information between the U.S. Customs and Border Protection Agency, U.S. Immigration and Customs Enforcement, and other relevant Federal departments and agencies regarding the Group’s priority trade issue; and
serving as the primary liaison between the U.S. Customs and Border Protection Agency and the public regarding United States Government activities regarding the Group’s priority trade issue, including—
providing for receipt and transmission to the appropriate U.S. Customs and Border Protection Agency office of allegations from interested parties in the private sector of violations of customs and trade laws of the United States of merchandise relating to the priority trade issue;
obtaining information from the appropriate U.S. Customs and Border Protection Agency office on the status of any activities resulting from the submission of any such allegation, including any decision not to pursue the allegation, and providing any such information to each interested party in the private sector that submitted the allegation every 90 days after the allegation was received by the U.S. Customs and Border Protection Agency; and
notifying on a timely basis each interested party in the private sector that submitted such allegation of any civil or criminal actions taken by the U.S. Customs and Border Protection Agency or other Federal department or agency resulting from the allegation.
Commercial risk assessment targeting
In carrying out its duties with respect to commercial risk assessment targeting, the Commercial Targeting Division shall—
establish targeted risk assessment methodologies and standards—
for evaluating the risk that cargo destined for the United States may violate the customs and trade laws of the United States, particularly those laws applicable to merchandise subject to the priority trade issues described in subparagraph (B)(ii); and
for issuing, as appropriate, Trade Alerts described in subparagraph (D); and
to the extent practicable and otherwise authorized by law, use information available from the Automated Commercial System, the Automated Commercial Environment computer system, the Automated Targeting System, the Automated Export System, the International Trade Data System, and the Treasury Enforcement Communications System, and any successor systems, to administer the methodologies and standards established under clause (i).
Trade alerts
Issuance
Based upon the application of the targeted risk assessment methodologies and standards established under subparagraph (C), the Executive Director of the Commercial Targeting Division and the Directors of the National Targeting and Analysis Groups may issue Trade Alerts to directors of United States ports of entry directing further inspection, or physical examination or testing, of specific merchandise to ensure compliance with all applicable customs and trade laws and regulations administered by the U.S. Customs and Border Protection Agency.
Determinations not to implement Trade Alerts
The director of a United States port of entry may determine not to conduct further inspections, or physical examination or testing, pursuant to a Trade Alert issued under clause (i) if—
the director finds that such a determination is justified by port security interests; and
notifies the Assistant Commissioner of the Office of Field Operations of the U.S. Customs and Border Protection Agency of the determination and the reasons for the determination not later than 48 hours after making the determination.
Summary of determinations not to implement
The Assistant Commissioner of the Office of Field Operations of the U.S. Customs and Border Protection Agency shall—
compile an annual public summary of all determinations by directors of United States ports of entry under clause (ii) and the reasons for those determinations; and
submit the summary to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives not later than December 31 of each year.
Inspection defined
In this subparagraph, the term inspection means the comprehensive evaluation process used by the U.S. Customs and Border Protection Agency, other than physical examination or testing, to permit the entry of merchandise into the United States, or the clearance of merchandise for transportation in bond through the United States, for purposes of—
assessing duties;
identifying restricted or prohibited items; and
ensuring compliance with all applicable customs and trade laws and regulations administered by the Agency.
.
Use of trade data for commercial enforcement purposes
Section 343(a) of the Trade Act of 2002 (19 U.S.C. 2071 note) is amended—
in the first
sentence of paragraph (2), by inserting and to carry out commercial risk
assessment targeting (as described in 2(d)(3)(C) of the Act of March 3, 1927
(44 Stat. 1381, chapter 348; 19 U.S.C. 2072(d)))
after to ensure
cargo safety and security
; and
in paragraph(3)—
by striking subparagraph (F); and
by redesignating subparagraphs (G) through (L) as subparagraphs (F) through (K).
Centers of Excellence and Expertise
Section 2(d) of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072(d)), as amended by sections 102(d) and 211 of this Act, is further amended by adding at the end the following:
Centers of Excellence and Expertise
Establishment
The Secretary of Homeland Security is authorized to establish and maintain within the Office of International Trade Centers of Excellence and Expertise.
Composition
Each Center of Excellence and Expertise shall be composed of headquarters and field personnel of the U.S. Customs and Border Protection Agency led by an Executive Director, who shall report to the Assistant Commissioner of the Office of International Trade.
Duties
Each Center of Excellence and Expertise shall be dedicated—
to facilitating legitimate trade through increasing specific industry knowledge and uniformity of cargo clearance procedures;
to improving enforcement efforts of priority trade issues described in paragraph (3)(B)(ii) in specific industry sectors through application of targeting information from the Commercial Targeting Division established under paragraph (3)(A) and from other means of verifications;
to developing and implementing measurable benefits to the trade community;
to fostering partnerships though the expansion of trade programs such as Importer Self Assessment program and other trusted partner programs;
to developing applicable performance measurements to meet internal efficiency and effectiveness goals; and
to increasing the accuracy and completeness of international trade data and facilitate a more efficient flow of information between Federal departments and agencies.
.
Report on oversight of revenue protection and enforcement measures
Contents of report
The Inspector General of the Department of Homeland Security shall, at the times specified in subsection (b), submit to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives a report assessing the following, with respect to the 2 fiscal year period to which the report applies:
The effectiveness of the measures taken by the U.S. Customs and Border Protection Agency with respect to revenue protection, including—
the collection of countervailing and antidumping duties;
the assessment and collection of commercial fines and penalties; and
the adequacy of the policies of the Agency with respect to monitoring and tracking of merchandise transported in bond and collecting duties, as appropriate.
The effectiveness of actions taken by the U.S. Customs and Border Protection Agency to measure accountability and performance with respect to revenue protection.
The number and outcome of investigations instituted by the U.S. Customs and Border Protection Agency with respect to the underpayment of duties.
The adequacy of training with respect to the collection of duties provided for personnel of the U.S. Customs and Border Protection Agency.
Timing of report
The report under subsection (a) shall be submitted not later than March 31, 2014, and not later than March 31 of each second year thereafter, with respect to the 2 fiscal year period ending on September 30 of the preceding calendar year.
Report on security and revenue measures with respect to merchandise transported in bond
In general
Not later than December 31 of 2013, 2014, and 2015 the Secretary of Homeland Security and the Secretary of the Treasury shall jointly submit to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives a report on efforts undertaken by the U.S. Customs and Border Protection Agency to ensure the secure transportation of merchandise in bond through the United States and the collection of revenue owed upon the entry of such merchandise into the United States for consumption.
Contents
The report required by subsection (a) shall include information, for the fiscal year preceding the submission of the report, on—
the overall number of entries of merchandise for transportation in bond through the United States;
the ports at which merchandise arrives in the United States for transportation in bond and at which records of the arrival of such merchandise are generated;
the average time taken to reconcile such records with the records at the final destination of the merchandise in the United States to demonstrate that the merchandise reaches its final destination or is re-exported;
the average time taken to transport merchandise in bond from the port at which the merchandise arrives in the United States to its final destination in the United States;
the total amount of duties, taxes, and fees owed with respect to shipments of merchandise transported in bond and the total amount of such duties, taxes, and fees paid;
the total number of notifications by carriers of merchandise being transported in bond that the destination of the merchandise has changed; and
the number of entries that remain unreconciled.
Report on effectiveness of trade enforcement activities
In general
Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States 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 effectiveness of trade enforcement activities of the U.S. Customs and Border Protection Agency.
Contents
The report shall include—
a description of the use of resources, results of audits and verifications, targeting, organization, and training of the U.S. Customs and Border Protection Agency; and
a description of trade enforcement activities to address undervaluation, transshipment, legitimacy of entities making entry, protection of revenues, fraud prevention and detection, and penalties, including intentional misclassification, inadequate bonding, and other misrepresentations.
Priorities and performance standards for Customs modernization, trade facilitation, and trade enforcement functions and programs
Priorities and performance standards
In general
The Commissioner of U.S. Customs and Border Protection, in consultation with the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, shall establish priorities and performance standards to measure the development and levels of achievement of the Customs modernization, trade facilitation, and trade enforcement functions and programs described in subsection (b).
Minimum priorities and standards
Such priorities and performance standards shall, at a minimum, include priorities and standards relating to efficiency, outcome, output, and other types of applicable measures.
Functions and programs described
The functions and programs referred to in subsection (a) are the following:
The Automated Commercial Environment computer system authorized under section 13031(f)(5) of the Consolidated Omnibus Budget and Reconciliation Act of 1985 (19 U.S.C. 58c(f)(5)).
Each of the priority trade issues described in paragraph (3)(B)(ii) of section 2(d) of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072(d)), as added by section 211(a) of this Act.
The Centers of Excellence and Expertise described in section 212(c) of this Act.
Drawback for exported merchandise under section 313 of the Tariff Act of 1930 (19 U.S.C. 1313), as amended by section 404 of this Act.
Transactions relating to imported merchandise in bond.
Collection of countervailing duties assessed under subtitle A of title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et seq.) and antidumping duties assessed under subtitle B of title VII of the Tariff Act of 1930 (19 U.S.C. 1673 et seq.).
The expedited clearance of cargo.
The issuance of regulations and rulings.
The issuance of Regulatory Audit Reports.
Submission to Congress
In general
The Commissioner of U.S. Customs and Border Protection shall submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a description of the priorities and performance standards referred to in subsection (a) not later than 180 days after the date of enactment of this Act.
Proposed changes
The Commissioner of U.S. Customs and Border Protection shall submit to the congressional committees referred to in paragraph (1) a description of any changes to the priorities and performance standards referred to in subsection (a) not later than 30 days before such changes are to take effect.
Report
Not later than December 31, 2013, and December 31 of each year thereafter, the Commissioner of U.S. Customs and Border Protection shall submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a report on the implementation of this section for the previous fiscal year.
Educational seminars to improve efforts to classify and appraise imported articles and to improve trade enforcement efforts
In general
Establishment
The Commissioner of U.S. Customs and Border Protection and the Director of U.S. Immigration and Customs Enforcement shall establish and carry out on a fiscal year basis educational seminars to—
improve the ability of U.S. Customs and Border Protection Agency personnel to classify and appraise articles imported into the United States in accordance with the customs and trade laws of the United States; and
improve the trade enforcement efforts of U.S. Customs and Border Protection Agency personnel and U.S. Immigration and Customs Enforcement personnel.
Location
Each educational seminar under this section shall be located at a United States port of entry or a Center of Excellence and Expertise described in section 212(c) of this Act.
Content
Classifying and appraising imported articles
In carrying out subsection (a)(1)(A), the Commissioner, the Director, and interested parties in the private sector selected under subsection (c) shall provide instruction and related instructional materials at each educational seminar under this section to U.S. Customs and Border Protection Agency personnel and, as appropriate, to U.S. Immigration and Customs Enforcement Agency personnel on the following:
Conducting a physical inspection of an article imported into the United States, including testing of samples of the article, to determine if the article is mislabeled in the manifest or other accompanying documentation.
Reviewing the manifest and other accompanying documentation of an article imported into the United States to determine if the country of origin of the article listed in the manifest or other accompanying documentation is accurate.
Customs valuation.
Industry supply chains and other related matters as determined to be appropriate by the Commissioner.
Trade enforcement efforts
In carrying out subsection (a)(1)(B), the Commissioner, the Director, and interested parties in the private sector selected under subsection (c) shall provide instruction and related instructional materials at each educational seminar under this section to U.S. Customs and Border Protection Agency personnel and, as appropriate, to U.S. Immigration and Customs Enforcement Agency personnel to identify opportunities to enhance enforcement of the following:
Collection of countervailing duties assessed under subtitle A of title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et seq.) and antidumping duties assessed under subtitle B of title VII of the Tariff Act of 1930 (19 U.S.C. 1673 et seq.).
Addressing evasion of duties on imports of textiles.
Protection of intellectual property rights.
Enforcement of child labor laws.
Approval of commissioner and director
The instruction and related instructional materials at each educational seminar under this section shall be subject to the approval of the Commissioner and the Director.
Selection process
In general
The Commissioner shall establish a process to solicit, evaluate, and select interested parties in the private sector for purposes of assisting in providing instruction and related instructional materials described in subsection (b) at each educational seminar under this section.
Criteria
The Commissioner shall evaluate and select interested parties in the private sector under the process established under paragraph (1) based on—
availability and usefulness;
the volume, value, and incidence of mislabeling or misidentification of origin of imported articles; and
other appropriate criteria established by the Commissioner.
Public availability
The Commissioner shall publish in the Federal Register a detailed description of the process established under paragraph (1) and the criteria established under paragraph (2).
Special Rule for Antidumping and Countervailing Orders
In general
The Commissioner shall give due consideration to carrying out an educational seminar under this section in whole or in part to improve the ability of U.S. Customs and Border Protection Agency personnel to enforce a countervailing or antidumping duty order issued under section 706 or 736 of the Tariff Act of 1930 (19 U.S.C. 1671e or 1673e) upon the request of a petitioner in an action underlying such countervailing or antidumping duty order.
Interested party
A petitioner described in paragraph (1) shall be treated as an interested party in the private sector for purposes of the requirements of this section.
Performance standards
The Commissioner and the Director shall establish performance standards to measure the development and level of achievement of educational seminars under this section.
Reporting
Beginning September 30, 2013, the Commissioner and Director shall submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate an annual report on the effectiveness of educational seminars under this section.
Definitions
In this section:
Commissioner
The term Commissioner means the Commissioner of U.S. Customs and Border Protection.
Director
The term Director means the Director of U.S. Immigration and Customs Enforcement.
United States
The term United States means the customs territory of the United States, as defined in General Note 2 to the Harmonized Tariff Schedule of the United States.
U.S. Customs and Border Protection Agency personnel
The term U.S. Customs and Border Protection Agency personnel means import specialists, auditors, and other appropriate employees of the U.S. Customs and Border Protection Agency.
U.S. Immigration and Customs Enforcement Agency personnel
The term U.S. Immigrations and Customs Enforcement Agency personnel means Homeland Security Investigations Directorate personnel and other appropriate employees of the U.S. Immigrations and Customs Enforcement Agency.
Importer requirements
Importer of record program
Establishment
Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall establish an importer of record program to assign and maintain importer of record numbers.
Requirements
The Secretary of Homeland Security shall ensure that, as part of the importer of record program, the U.S. Customs and Border Protection Agency—
develops criteria that importers must meet in order to obtain an importer of record number, including—
criteria to ensure sufficient information is collected to allow the U.S. Customs and Border Protection Agency to verify the existence of the importer requesting the importer of record number;
criteria to ensure sufficient information is collected to allow the U.S. Customs and Border Protection Agency to identify linkages or other affiliations between importers that are requesting or have been assigned importer of record numbers; and
criteria to ensure sufficient information is collected to allow the U.S. Customs and Border Protection Agency to identify changes in address and corporate structure of importers;
provides a process by which importers are assigned importer of record numbers;
maintains a centralized database of importer of record numbers, including a history of importer of record numbers associated with each importer, and the information described in subparagraphs (A), (B), and (C) of paragraph (1);
evaluates the accuracy of the database; and
takes measures to ensure that duplicate importer of record numbers are not issued.
Report
Not later than 1 year after the date of the enactment of this Act, the Secretary of Homeland Security 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 importer of record program established under subsection (a).
Number defined
In this subsection, the term number, with respect to an importer of record, means a filing identification number described in section 24.5 of title 19, Code of Federal Regulations (as in effect on the day before the date of the enactment of this Act).
Customs broker identification of importers
In general
Section 641 of the Tariff Act of 1930 (19 U.S.C. 1641) is amended by adding at the end the following:
Identification of importers
In general
The Secretary shall prescribe regulations setting forth the minimum standards for customs brokers and importers, including nonresident importers, regarding the identity of the importer that shall apply in connection with the importation of merchandise into the United States.
Minimum requirements
The regulations shall, at a minimum, require customs brokers to implement, and importers (after being given adequate notice) to comply with, reasonable procedures for—
collecting the identity of importers, including nonresident importers, seeking to import merchandise into the United States to the extent reasonable and practicable; and
maintaining records of the information used to substantiate a person’s identity, including name, address, and other identifying information.
Penalties
Any customs broker who fails to collect information required under the regulations prescribed under this subsection shall be liable to the United States, at the discretion of the Secretary, for a monetary penalty not to exceed $10,000 for each violation of those regulations and subject to revocation or suspension of a license or permit of the customs broker pursuant to the procedures set forth in subsection (d).
Definitions
In this subsection, the terms importer and nonresident importer have the meaning given such terms in section 2 of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012.
.
Study and report required
Not later than 180 days after the date of enactment of this Act, the Commissioner of U.S. Customs and Border Protection shall submit to Congress a report containing recommendations for—
determining the most timely and effective way to require foreign nationals to provide customs brokers with appropriate and accurate information, comparable to that which is required of United States nationals, concerning the identity, address, and other related information relating to such foreign nationals necessary to enable customs brokers to comply with the requirements of section 641(i) of the Tariff Act of 1930 (as added by subsection (a)); and
establishing a system for customs brokers to review information maintained by relevant Federal agencies for purposes of verifying the identities of importers, including nonresident importers, seeking to import merchandise into the United States.
Establishment
of new importer
program
In general
Not later than 180 days after the date of the enactment of this Act, the Commissioner of U.S. Customs and Border Protection shall establish a new importer program that directs the U.S. Customs and Border Protection Agency to adjust bond amounts for new importers based on the level of risk assessed by the U.S. Customs and Border Protection Agency for protection of revenue of the Federal Government.
Requirements
The Commissioner shall ensure that, as part of the new importer program established under subsection (a), the U.S. Customs and Border Protection Agency—
develops risk assessment guidelines for new importers to determine if and to what extent—
to adjust bond amounts of imported products of new importers; and
to increase screening of imported products of new importers;
develops procedures to ensure increased oversight of imported products of new importers relating to the enforcement of the priority trade issues described in paragraph (3)(B)(ii) of section 2(d) of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072(d)), as added by section 211(a) of this Act;
develops procedures to ensure increased oversight of imported products of new importers by Centers of Excellence and Expertise established under section 212; and
establishes a centralized database of new importers to ensure accuracy of information that is required to be provided by new importers to the U.S. Customs and Border Protection Agency.
Requirements applicable to non-resident importers
In general
Part III of title IV of the Tariff Act of 1930 (19 U.S.C. 1481 et seq.) is amended by inserting after section 484b the following new section:
Requirements applicable to non-resident importers
In general
Except as provided in subsection (c), if an importer of record under section 484 of this Act is not a resident of the United States, the Commissioner of U.S. Customs and Border Protection shall require the non-resident importer to designate a resident agent in the United States subject to the requirements described in subsection (b).
Requirements
The requirements described in this subsection are the following:
The resident agent shall be authorized to accept service of process against the non-resident importer in connection with the importation of merchandise.
The resident agent shall be liable to the United States for payment of duties and penalties or other fines issued by the Secretary of Homeland Security or the Commissioner if the Secretary or Commissioner is unable to collect such duties and penalties or other fines from such non-resident importer in connection with the importation of merchandise.
The Secretary of the Treasury may require the resident agent to secure a bond or other security in connection with the importation of merchandise as the Secretary may deem necessary for the protection of the revenue or to assure compliance with any provision of law, regulation, or instruction which the Secretary of the Commissioner may be authorized to enforce.
The Commissioner of U.S. Customs and Border Protection shall require the non-resident importer to establish a power of attorney with the resident agent in connection with the importation of merchandise.
Non-Applicability
The requirements of this section shall not apply with respect to a non-resident importer who is a validated Tier 2 or Tier 3 participant in the Customs-Trade Partnership Against Terrorism program established under subtitle B of title II of the SAFE Port Act (6 U.S.C. 961 et seq.).
Penalties
In general
It shall be unlawful for any person to import into the United States any merchandise in violation of this section.
Civil penalties
Any person who violates paragraph (1) shall be liable for a civil penalty of $50,000 for each such violation.
Other penalties
In addition to the penalties specified in paragraph (2), any violation of this section that violates any other customs and trade laws of the United States shall be subject to any applicable civil and criminal penalty, including seizure and forfeiture, that may be imposed under such customs or trade law or title 18, United States Code, with respect to the importation of merchandise.
Definition
In this subsection, the term customs and trade laws of the United States has the meaning given such term in section 2 of the Customs Enhanced Enforcement and Trade Facilitation Act of 2012.
.
Effective date
Section 484c of the Tariff Act of 1930, as added by subsection (a), takes effect on the date of the enactment of this Act and applies with respect to the importation of merchandise of an importer of record under section 484 of the Tariff Act of 1930 who is not resident of the United States on or after the date that is 180 days after such date of enactment.
Certified importer program
Interagency committee
Establishment and membership
There is established an interagency committee composed of representatives of each covered Federal agency.
Chairperson
The Commissioner of U.S. Customs and Border Protection shall serve as the chairperson of the interagency committee.
Duties
The interagency committee shall—
not later than December 30, 2014, and in consultation with interested parties in the private sector, establish a certified importer program as described in (c); and
assess and make recommendations with respect to other trade facilitation benefits for certified importers.
Certified importer program
In general
The certified importer program described in this subsection is a program to authorize the release of cargo imported by a certified importer on an expedited basis that is subject to documentation for clearing or licensing the importation or exportation of such cargo by one or more covered Federal agencies.
Clearance
Such release of cargo shall include clearance through the Automated Commercial Environment computer system authorized under section 13031(f)(5) of the Consolidated Omnibus Budget and Reconciliation Act of 1985 (19 U.S.C. 58c(f)(5)), as amended by section 203 of this Act, or its predecessor system upon transmission of data governing entry and immediate delivery.
Definitions
In this section:
Certified importer
The term certified importer means an importer that—
is a validated Tier 2 or Tier 3 participant in the Customs-Trade Partnership Against Terrorism program established under subtitle B of title II of the SAFE Port Act (6 U.S.C. 961 et seq.); and
is a participant in good standing of the U.S. Customs and Border Protection Agency’s importer self-assessment program; and
where applicable, participants in good standing in one or more programs maintained by a covered Federal agency to formally identify entities that are highly complaint with the covered Federal agency’s requirements and which maintain a rigorous system of internal controls and system of records to promote and document such compliance.
Covered Federal agency
The term covered Federal agency means a Federal department or agency that requires documentation for clearing or licensing the importation or exportation of cargo.
Report
In general
Not later than March 31, 2014, the Commissioner of U.S. Customs and Border Protection shall submit to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives a report assessing the progress in establishing the certified importer program as described in subsection (c) and coordination among the Commissioner and the heads of each covered Federal agency in facilitating the implementation of the certified importer program.
Update
Not later than December 31, 2015, the Commissioner of U.S. Customs and Border Protection shall submit to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives an update of the report required under paragraph (1).
Import-Related protection of intellectual property rights
Exchange of information related to trade enforcement
The Tariff Act of 1930 is amended by inserting after section 628 (19 U.S.C. 1628) the following new section:
Exchange of information related to trade enforcement
Sharing of information relating to copyrights and registered marks
Sharing of information and samples
Notwithstanding any other provision of law, the Secretary is authorized, at the time that merchandise is presented for examination and thereafter, to provide to the owner of a copyright or a registered mark, with notification to the importer of record—
any information appearing on the merchandise or its retail packaging,
a sample, or digital image, of the merchandise and its retail packaging, or
if a sample is provided under subparagraph (B), any packing material accompanying the sample that bears either a mark suspected of being a counterfeit mark of the registered mark, or a work suspected of infringing the copyright,
Nondisclosure
In general
Any owner of a copyright or a registered mark to whom information, a sample, an image, or material described in subparagraph (A), (B), or (C) of paragraph (1) is provided under paragraph (1) may not disclose it to any other person or use it for a purpose other than the purpose described in paragraph (1).
Exception
Subparagraph (A) does not apply in the case of information, a sample, an image, or material that is disclosed or used in a civil action for infringement of a copyright under title 17, United States Code, or infringement of a registered mark under the Lanham Act.
Use in judicial proceedings barred
Information, samples, images, or material described in subparagraph (A), (B), or (C) of paragraph (1), or information obtained from the provision of information, samples, images, or material under any such subparagraph, may not be used by the owner of a copyright or registered mark in any judicial proceeding, other than a proceeding described in subparagraph (B).
Bonding requirements
The Secretary may impose bonding requirements on the owner of the copyright or registered mark as a condition of disclosure of information and the provision of samples under this subsection.
Implementation
Regulations
Not later than the 90th day after the date of the enactment of this section, the Secretary shall promulgate revised regulations to carry out this subsection. Until such time as the Secretary promulgates the revised regulations, and notwithstanding section 818(g)(2) of the National Defense Authorization Act of 2012 (10 U.S.C. 2302 note; Public Law 112–81), those regulations in effect on the date of the enactment of this section implementing section 818(g)(1) of the National Defense Authorization Act of 2012 shall be in effect, except to the extent such regulations limit the application of this subsection.
Information sharing processes
For importers
In general
The Secretary is authorized to establish a clearance process for those importers of record who wish to participate in the process to allow for or accelerate the release of merchandise from the custody of the United States Customs and Border Protection Agency without the provision under paragraph (1), prior to seizure of the merchandise, of information, samples, images, or material with respect to the merchandise.
Limitation on sharing of information
In the case of an importer of record that participates in the process under subclause (I), no information, samples, images, or material described in subparagraph (A), (B), or (C) of paragraph (1) of merchandise of that importer may be provided, without redaction, to the owner of a copyright or registered mark prior to seizure of the merchandise.
For owners of copyrights and registered marks
In general
Establishment
The Secretary shall establish a process or processes for those owners of copyrights and owners of registered marks that wish to participate in the process or processes, through which any sharing of information, samples, images, and material under paragraph (1) will be carried out before the notification to the importer of record referred to in paragraph (1) is made, subject to the limitation under subclause (II) of clause (i).
Ineligibility
An owner of a copyright or a registered mark shall not be eligible to participate in a process described in item (aa) if that owner of a copyright or a registered mark has violated the prohibitions on disclosure under paragraph (2).
Provision of samples and information to CBP
The Secretary is authorized to establish a process for those owners of copyrights and owners of registered marks that wish to provide to the United States Customs and Border Protection Agency samples of, or information regarding, their copyrighted merchandise or merchandise that bears their registered marks (as the case may be), to assist the Secretary in determining whether merchandise presented for examination infringes the copyright or bears or consists of a counterfeit mark of the registered mark.
Merchandise in violation of anticircumvention measures
Notification upon seizure
Notification of copyright owner
Upon the seizure of merchandise by the Secretary for a violation of subsection (a) or (b) of section 1201 of title 17, United States Code, the Secretary shall notify the owner of a copyright who is included on the list established under paragraph (4) of the seizure of the merchandise that is capable of circumventing a technological measure of the copyright owner under either such subsection. The Secretary shall also provide to any such person additional information upon request, which shall be equivalent to information provided pursuant to section 602(b) of title 17, United States Code, and the regulations issued under that section.
Notification of trademark owner
Upon the seizure of merchandise by the Secretary for a violation of subsection (a) or (b) of section 1201 of title 17, United States Code, the Secretary shall notify the owner of a registered mark—
on hardware that contains a technological measure that the seized merchandise is capable of circumventing, or
on hardware on which the use of the seized merchandise is capable of circumventing a technological measure of a copyright owner,
Pre-seizure provision of samples
In general
In the case of merchandise that the Secretary reasonably suspects may be subject to seizure by the Secretary for a violation of subsection (a) or (b) of section 1201 of title 17, United States Code, the Secretary is authorized to provide a sample of the merchandise to any person described in subparagraph (B) in the case of merchandise that is suspected of such a violation, when necessary in the view of the Secretary to assist the Secretary in determining whether such a violation has occurred.
Recipients of samples
Persons to whom provision of samples is authorized under subparagraph (A) are—
the owner of a copyright whose technological measure the merchandise is capable of circumventing under subsection (a) or (b) of section 1201 of title 17, United States Code; and
the owner of a registered mark—
on hardware that contains a technological measure that the seized merchandise is capable of circumventing, or
on hardware on which the use of the seized merchandise is capable of circumventing a technological measure of a copyright owner,
Nondisclosure
In general
Any owner of a copyright or a registered mark to whom a sample is provided under subparagraph (A) before the merchandise is seized may not disclose it to any other person or use it for a purpose other than the purpose described in subparagraph (A) for such provision of samples.
Exception
Clause (i) does not apply in the case of a sample that is disclosed or used in a civil action for infringement of a copyright under title 17, United States Code, or infringement of a registered mark under the Lanham Act.
Use in judicial proceedings barred
A sample provided under subparagraph (A), or information obtained from the provision of such a sample, may not be used by the owner of a copyright or registered mark in any judicial proceeding, other than a proceeding described in clause (ii).
Bonding requirements
The Secretary may impose bonding requirements on the owner of the copyright or trademark as a condition of the provision of samples under this paragraph.
Post-seizure provision of samples
In general
In the case of merchandise subject to seizure by the Secretary for a violation of subsection (a) or (b) of section 1201 of title 17, United States Code, the Secretary is authorized to provide a sample of the merchandise to any person described in subparagraph (B) if the merchandise has been seized for such a violation.
Recipients of samples
Persons to whom provision of samples is authorized under subparagraph (A) are—
the owner of a copyright whose technological measure the merchandise is capable of circumventing under subsection (a) or (b) of section 1201 of title 17, United States Code, and who is included on the list established under paragraph (4); and
the owner of a registered mark—
on hardware that contains a technological measure that the seized merchandise is capable of circumventing, or
on hardware on which the use of the seized merchandise is capable of circumventing a technological measure of a copyright owner,
Bonding requirements
The Secretary may impose bonding requirements on the owner of the copyright or trademark as a condition of the provision of samples under this paragraph.
Eligible owners of copyrights and registered marks
An owner of a copyright or a registered mark is eligible to receive notification under paragraph (1) or samples under paragraph (3) if such owner is included on a list that the Secretary is authorized to maintain and periodically revise, through a process of notice and comment, for purposes of paragraphs (1) and (3) of this subsection.
Regulations
Not later than the 90th day after the date of the enactment of this section, the Secretary shall promulgate regulations establishing procedures that implement this subsection.
Notification of parties responsible for initiation of section 337 investigations
The Secretary is authorized to notify the party or parties responsible for initiating an investigation under section 337 of this Act when merchandise is excluded under subsection (d) of that section, or merchandise is seized under subsection (i) of that section, pursuant to that investigation.
Definitions
In this section:
The term counterfeit mark has the meaning given that term in section 2320(e) of title 18, United States Code.
The term Lanham Act means the
Act entitled An Act to provide for the registration and protection of
trademarks used in commerce, to carry out the provisions of certain
international conventions, and for other purposes
, approved July 5,
1946 (15 U.S.C. 1051 et seq.).
The term mark has the meaning given that term in section 45 of the Lanham Act (15 U.S.C. 1127).
The term registered mark has the meaning given that term in section 45 of the Lanham Act (15 U.S.C. 1127).
The term Secretary means the Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection.
The term work means a work within the meaning of title 17, United States Code.
The term without redaction means without modification, deletion or omission.
.
Prevention of evasion of antidumping and countervailing duty orders
Actions relating to enforcement of trade remedy laws
Prevention and investigation of evasion
In general
The Tariff Act of 1930 is amended by inserting after section 516A (19 U.S.C. 1516a) the following:
Procedures for investigating claims of evasion of antidumping and countervailing duty orders
Definitions
In this section:
Administering authority
The term administering authority has the meaning given that term in section 771(1).
Appropriate congressional committees
The term appropriate congressional committees means—
the Committee on Finance and the Committee on Appropriations of the Senate; and
the Committee on Ways and Means and the Committee on Appropriations of the House of Representatives.
Commissioner
The term Commissioner means the Commissioner of U.S. Customs and Border Protection Agency.
Covered merchandise
The term covered merchandise means merchandise that is subject to—
a countervailing duty order issued under section 706 of the Tariff Act of 1930;
an antidumping duty order issued under section 736 of the Tariff Act of 1930; or
a finding issued under the Antidumping Act, 1921.
Eligible small business
In general
The term eligible small business means any business concern which, in the Commissioner’s judgment, 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.
Non-reviewability
Any agency decision regarding whether a business concern is an eligible small business for purposes of section 311(b)(3) is not reviewable by any other agency or by any court.
Enter; entry
The terms enter and entry refer to the entry, or withdrawal from warehouse for consumption, in the customs territory of the United States.
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.
Interested party
The term interested party has the meaning given the term in section 771(9) (other than subparagraph (A) or (B) of such section).
Secretary
The term Secretary means the Secretary of the Treasury.
Trade remedy laws
The term trade remedy laws means title VII of the Tariff Act of 1930.
Trade Remedy Law Enforcement Division
Establishment
In general
The Secretary of Homeland Security shall establish and maintain within the Office of International Trade of U.S. Customs and Border Protection Agency, established under section 2(d) of the Act of March 3, 1927 (44 Stat. 1381, chapter 348; 19 U.S.C. 2072(d)), a Trade Remedy Law Enforcement Division.
Composition
The Trade Law Remedy Enforcement Division shall be composed of—
headquarters personnel led by a Director, who shall report to the Assistant Commissioner of the Office of International Trade; and
a National Targeting and Analysis Group dedicated to preventing and countering evasion.
Duties
The Trade Remedy Law Enforcement Division shall be dedicated—
to the development and administration of policies to prevent and counter evasion;
to direct enforcement and compliance assessment activities concerning evasion;
to the development and conduct of commercial risk assessment targeting with respect to cargo destined for the United States in accordance with paragraph (3);
to issuing Trade Alerts described in paragraph (4); and
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.
Duties of Director
The duties of the Director of the Trade Remedy Law Enforcement Division shall include—
directing the trade enforcement and compliance assessment activities of the U.S. Customs and Border Protection Agency that concern evasion;
facilitating, promoting, and coordinating cooperation and the exchange of information between the U.S. Customs and Border Protection Agency, U.S. Immigration and Customs Enforcement, and other relevant agencies regarding evasion;
notifying on a timely basis the administering authority (as defined in section 771(1) of the Tariff Act of 1930 (19 U.S.C. 1677(1))) and the Commission (as defined in section 771(2) of the Tariff Act of 1930 (19 U.S.C. 1677(2))) of any finding, determination, civil action, or criminal action taken by the U.S. Customs and Border Protection Agency or other Federal agency regarding evasion;
serving as the primary liaison between the U.S. Customs and Border Protection Agency and the public regarding United States Government activities concerning evasion, including—
establish and administer the procedures described in subsection (c);
upon request, provide technical assistance and advice to eligible small businesses to enable such businesses to prepare and submit allegations of evasion; and
regularly consult 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.
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—
establish targeted risk assessment methodologies and standards—
for evaluating the risk that cargo destined for the United States may constitute evading covered merchandise; and
for issuing, as appropriate, Trade Alerts described in paragraph (4); and
to the extent practicable and otherwise authorized by law, use information available from the Automated Commercial System, the Automated Commercial Environment computer system, the Automated Targeting System, the Automated Export System, the International Trade Data System, and the Treasury Enforcement Communications System, and any successor systems, to administer the methodologies and standards established under subparagraph (A).
Trade alerts
Based upon the application of the targeted risk assessment methodologies and standards established under paragraph (3), 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, or physical examination or testing, of specific merchandise to ensure compliance with the trade remedy laws.
Single entry bond
The Secretary of the Treasury shall require a single entry bond, in addition to any continuous bond, in any case in which the Secretary has a reasonable belief, based on evidence, that merchandise—
may be subject to an order issued under section 706 or section 736; and
is being entered into the United States by means of evasion.
Procedures for investigating allegations of evasion
Initiation by petition or referral
In general
Not later than 10 days after the date on which the Commissioner receives a petition described in subparagraph (B) or a referral described in subparagraph (C), the Commissioner shall initiate an investigation pursuant to this paragraph.
Petition described
A petition described in this subparagraph is a petition that—
is filed with the Commissioner by any party who is an interested party with respect to covered merchandise;
alleges that a person has entered covered merchandise into the customs territory of the United States through evasion; and
is accompanied by information reasonably available to the petitioner supporting the allegation.
Referral described
A referral described in this subparagraph is information submitted to the Commissioner by any other Federal agency, including the Department of Commerce or the United States International Trade Commission, indicating that a person has entered covered merchandise into the customs territory of the United States through evasion.
Determinations
Preliminary determination
In general
Not later than 90 days after the date on which the Commissioner initiates an investigation under paragraph (1), the Commissioner shall issue a preliminary determination, based on information available to the Commissioner at the time of the determination, with respect to whether there is a reasonable basis to believe or suspect that the covered merchandise was entered into the customs territory of the United States through evasion.
Extension
The Commissioner may extend by not more than 45 days the time period specified in clause (i) if the Commissioner determines that sufficient information to make a preliminary determination under that clause is not available within that time period or the inquiry is unusually complex.
Final determination
In general
Not later than 120 days after making a preliminary determination under subparagraph (A), the Commissioner shall make a final determination, based on substantial evidence, with respect to whether covered merchandise was entered into the customs territory of the United States through evasion.
Extension
The Commissioner may extend by not more than 60 days the time period specified in clause (i) if the Commissioner determines that sufficient information to make a final determination under that clause is not available within that time period or the inquiry is unusually complex.
Opportunity for comment; hearing
After making a preliminary determination under subparagraph (A) and before issuing a final determination under this subparagraph with respect to whether covered merchandise was entered into the customs territory of the United States through evasion, the Commissioner shall—
provide any person alleged to have entered the merchandise into the customs territory of the United States through evasion, and any person that is an interested party with respect to the merchandise, with an opportunity to be heard;
upon request, hold a hearing with respect to whether the covered merchandise was entered into the customs territory of the United States through evasion; and
provide an opportunity for public comment.
Authority to collect and verify additional information
In making a preliminary determination under subparagraph (A) or a final determination under subparagraph (B), the Commissioner—
shall exercise all existing authorities to collect information needed to make the determination; and
may collect such additional information as is necessary to make the determination through such methods as the Commissioner considers appropriate, including by—
issuing a questionnaire with respect to covered merchandise to—
a person that filed a petition under paragraph (1)(B);
a person alleged to have entered covered merchandise into the customs territory of the United States through evasion; or
any other person that is an interested party with respect to the covered merchandise; or
conducting verifications, including on-site verifications, of any relevant information.
Adverse inference
In general
If the Commissioner finds that a person that filed a petition under paragraph (1)(B), a person alleged to have entered covered merchandise into the customs territory of the United States through evasion, or a foreign producer or exporter, has failed to cooperate by not acting to the best of the person's ability to comply with a request for information, the Commissioner may, in making a preliminary determination under subparagraph (A) or a final determination under subparagraph (B), 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.
Adverse inference described
An adverse inference used under clause (i) may include reliance on information derived from—
the petition, if any, submitted under paragraph (1)(B) with respect to the covered merchandise;
a determination by the Commissioner in another investigation under this section;
an investigation or review by the administering authority under title VII; or
any other information placed on the record.
Notification and publication
Not later than 7 days after making a preliminary determination under subparagraph (A) or a final determination under subparagraph (B), the Commissioner shall—
provide notification of the determination to—
the administering authority; and
the person that submitted the petition under paragraph (1)(B) or the Federal agency that submitted the referral under paragraph (1)(C); and
provide the determination for publication in the Federal Register.
Business proprietary information
Establishment of procedures
For each investigation initiated under paragraph (1), the Commissioner shall establish procedures for the submission of business proprietary information under an administrative protective order that—
protects against public disclosure of such information; and
for purposes of submitting comments to the Commissioner, provides limited access to such information for—
the person that submitted the petition under paragraph (1)(B) or the Federal agency that submitted the referral under paragraph (1)(C); and
the person alleged to have entered covered merchandise into the customs territory of the United States through evasion.
Administration in accordance with other procedures
The procedures established under subparagraph (A) shall be administered, to the maximum extent practicable, in accordance with administrative protective order procedures under section 777 by the administering authority.
Disclosure of business proprietary information
The Commissioner shall, in accordance with the procedures established under subparagraph (A), make all business proprietary information presented to, or obtained by, the Commissioner during an investigation available to the persons specified in subparagraph (A)(ii) under an administrative protective order, regardless of when such information is submitted during an investigation.
Referrals to other Federal agencies
After preliminary determination
Notwithstanding section 777 and subject to subparagraph (C), when the Commissioner makes an affirmative preliminary determination under paragraph (2)(A), the Commissioner shall, at the request of the head of another Federal agency, transmit the administrative record to the head of that agency.
After final determination
Notwithstanding section 777 and subject to subparagraph (C), when the Commissioner makes an affirmative final determination under paragraph (2)(B), the Commissioner shall, at the request of the head of another Federal agency, transmit the complete administrative record to the head of that agency.
Protective orders
Before transmitting an administrative record to the head of another Federal agency under subparagraph (A) or (B), the Commissioner shall verify that the other agency has in effect with respect to the administrative record a protective order that provides the same or a similar level of protection for the information in the administrative record as the protective order in effect with respect to such information under this subsection.
Effect of determinations
Effect of affirmative preliminary determination
If the Commissioner makes a preliminary determination in accordance with subsection (c)(2)(A) that there is a reasonable basis to believe or suspect that covered merchandise was entered into the customs territory of the United States through evasion, the Commissioner shall—
suspend the liquidation of each unliquidated entry of the covered merchandise that is subject to the preliminary determination and that entered on or after the date of the initiation of the investigation under paragraph (1) and, pursuant to the Commissioner’s authority under section 504(b), extend liquidation of each unliquidated entry of the covered merchandise that is subject to the preliminary determination and that entered prior to the date of the initiation of the investigation under paragraph (1);
review and reassess the amount of bond or other security the importer is required to post for each entry of merchandise described in subparagraph (A);
require the posting of a cash deposit with respect to each entry of merchandise described in subparagraph (A); and
take such other measures as the Commissioner determines appropriate to ensure the collection of any duties that may be owed with respect to merchandise described in subparagraph (A) as a result of a final determination under subsection (c)(2)(B).
Effect of negative preliminary determination
If the Commissioner makes a preliminary determination in accordance with subsection (c)(2)(A) that there is not a reasonable basis to believe or suspect that covered merchandise was entered into the customs territory of the United States through evasion, the Commissioner shall continue the investigation and notify the administering authority pending a final determination under subsection (c)(2)(B).
Effect of affirmative final determination
If the Commissioner makes a final determination in accordance with subsection (c)(2)(B) that covered merchandise was entered into the customs territory of the United States through evasion, the Commissioner shall—
suspend or continue to suspend, as the case may be, the liquidation of each entry of the covered merchandise that is subject to the determination and that enters on or after the date of the determination and, pursuant to the Commissioner’s authority under section 504(b), extend or continue to extend, as the case may be, the liquidation of each entry of the covered merchandise that is subject to the determination and that entered prior to the date of the determination;
notify the administering authority of the determination and request that the administering authority—
identify the applicable antidumping or countervailing duty assessment rate for the entries for which liquidation is suspended under paragraph (1)(A) or subparagraph (A) of this paragraph; or
if no such assessment rates are available at the time, identify the applicable cash deposit rate to be applied to the entries described in subparagraph (A), with the applicable antidumping or countervailing duty assessment rates to be provided as soon as such rates become available;
require the posting of cash deposits and assess duties on each entry of merchandise described in subparagraph (A) in accordance with the instructions received from the administering authority under paragraph (5);
review and reassess the amount of bond or other security the importer is required to post for merchandise described in subparagraph (A) to ensure the protection of revenue and compliance with the law; and
take such additional enforcement measures as the Commissioner determines appropriate, such as—
initiating proceedings under section 592 or 596;
implementing, in consultation with the relevant Federal agencies, rule sets or modifications to rules sets for identifying, particularly through the Automated Targeting System and the Automated Commercial Environment, importers, other parties, and merchandise that may be associated with evasion;
requiring, with respect to merchandise for which the importer has repeatedly provided incomplete or erroneous entry summary information in connection with determinations of evasion, the importer to submit entry summary documentation and to deposit estimated duties at the time of entry;
referring the record in whole or in part to U.S. Immigration and Customs Enforcement for civil or criminal investigation; and
transmitting the administrative record to the administering authority for further appropriate proceedings.
Effect of negative final determination
If the Commissioner makes a final determination in accordance with subsection (c)(2)(B) that covered merchandise was not entered into the customs territory of the United States through evasion, the Commissioner shall terminate the suspension of liquidation pursuant to paragraph (1)(A) and refund any cash deposits collected pursuant to paragraph (1)(C) that are in excess of the cash deposit rate that would otherwise have been applicable the merchandise.
Cooperation of administering authority
In general
Upon receiving a notification from the Commissioner under paragraph (3)(B), the administering authority shall promptly provide to the Commissioner the applicable cash deposit rates and antidumping or countervailing duty assessment rates and any necessary liquidation instructions.
Special rule for cases in which the producer or exporter is unknown
If
the Commissioner and administering authority are unable to determine the
producer or exporter of the merchandise with respect to which a notification is
made under paragraph (3)(B), the administering authority shall identify, as the
applicable cash deposit rate or antidumping or countervailing duty assessment
rate, the cash deposit or duty (as the case may be) in the highest amount
applicable to any producer or exporter, including the all-others
rate of the merchandise subject to an antidumping order or countervailing duty
order under section 736 or 706, respectively, or a finding issued under the
Antidumping Act, 1921, or any administrative review conducted under section
751.
Special rules
Effect on other authorities
Neither the initiation of an investigation under subsection (c)(1) nor a preliminary determination or a final determination under subsection (c)(2) shall affect the authority of the Commissioner—
to pursue such other enforcement measures with respect to the evasion of antidumping or countervailing duties as the Commissioner determines necessary, including enforcement measures described in clauses (i) through (iv) of subsection (d)(3)(E); or
to assess any penalties or collect any applicable duties, taxes, and fees, including pursuant to section 592.
Effect of determinations on fraud actions
Neither a preliminary determination nor a final determination under subsection (c)(2) shall be determinative in a proceeding under section 592.
Negligence or intent
The Commissioner shall investigate and make a preliminary determination or a final determination under this section with respect to whether a person has entered covered merchandise into the customs territory of the United States through evasion without regard to whether the person—
intended to violate an antidumping duty order or countervailing duty order under section 736 or 706, respectively, or a finding issued under the Antidumping Act, 1921; or
exercised reasonable care with respect to avoiding a violation of such an order or finding.
.
Technical amendment
Clause (ii) of section 777(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1677f(b)(1)(A)) is amended to read as follows:
to an officer or employee of U.S. Customs and Border Protection Agency who is directly involved in conducting an investigation regarding fraud under this title or claims of evasion under section 516B.
.
Judicial review
Section 516A(a)(2) of the Tariff Act of 1930 (19 U.S.C. 1516a(a)(2)) is amended—
in subparagraph (A)—
in clause
(i)(III), by striking or
at the end;
in clause (ii), by
adding or
at the end; and
by inserting after clause (ii) the following:
the date of publication in the Federal Register of a determination described in clause (ix) of subparagraph (B),
; and
in subparagraph (B), by adding at the end the following new clause:
A determination by the Commissioner responsible for U.S. Customs and Border Protection under section 516B that merchandise has been entered into the customs territory of the United States through evasion.
.
Finality of determinations
Section 514(b) of the Tariff Act of 1930 (19
U.S.C. 1514(b)) is amended by striking section 303
and all that
follows through which are reviewable
and inserting
section 516B or title VII that are reviewable
.
Application to Canada and Mexico
Pursuant to article 1902 of the North American Free Trade Agreement and section 408 of the North American Free Trade Agreement Implementation Act (19 U.S.C. 3438), the amendments made by this title shall apply with respect to goods from Canada and Mexico.
Other matters
Definitions
In this subtitle, the terms appropriate congressional committees, Commissioner, covered merchandise, enter and entry, and evade and evasion have the meanings given those terms in section 516B(a) of the Tariff Act of 1930 (as added by section 301(a) of this Act).
Allocation and training of personnel
Reassignment and allocation
The Commissioner shall, to the maximum extent possible, ensure that the U.S. Customs and Border Protection Agency—
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;
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
provides adequate training to relevant personnel to increase expertise and effectiveness in the prevention and investigation of entries of covered merchandise into the customs territory of the United States through evasion.
Commercial enforcement officers
Not later than 30 days after the enactment of this Act, the Secretary of Homeland Security, the Commissioner, and the Assistant Secretary for U.S. Immigration and Customs Enforcement shall assess and properly allocate the resources of the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement—
to effectively implement the provisions of, and amendments made by, this Act; and
to improve efforts to investigate and combat evasion.
Regulations
In general
Not later than 240 days after the date of the enactment of this Act, the Commissioner shall issue regulations to carry out this title and the amendments made by this title.
Cooperation between U.S. Customs and Border Protection Agency, U.S. Immigration and Customs Enforcement, and Department of Commerce
Not later than 240 days after the date of the enactment of this Act, the Commissioner, the Assistant Secretary for U.S. Immigration and Customs Enforcement, and the Secretary of Commerce shall establish procedures to ensure maximum cooperation and communication between the U.S. Customs and Border Protection Agency, U.S. Immigration and Customs Enforcement, and the Department of Commerce in order to quickly, efficiently, and accurately investigate allegations of evasion under section 516B of the Tariff Act of 1930 (as added by section 301(a) of this Act).
Annual report on prevention of evasion of antidumping and countervailing duty orders
In general
Not later than February 28 of each year, beginning in 2013, the Commissioner, in consultation with the Secretary of Commerce and the Assistant Secretary for U.S. Immigration and Customs Enforcement, shall submit to the appropriate congressional committees a report on the efforts being taken to prevent and investigate evasion.
Contents
Each report required under subsection (a) shall include—
for the calendar year preceding the submission of the report—
a summary of the efforts of the U.S. Customs and Border Protection Agency to prevent and investigate evasion;
the number of allegations of evasion received and the number of allegations of evasion resulting in investigations by the U.S. Customs and Border Protection Agency or any other agency;
a summary of the completed investigations of evasion, including the number and nature of the investigations initiated, conducted, or completed, as well as their resolution;
with respect to investigations that lead to lead to issuance of a penalty notice, the penalty amounts;
the amounts of antidumping and countervailing duties collected as a result of any investigations or other actions by the U.S. Customs and Border Protection Agency or any other agency;
a description of the allocation of personnel and other resources of the U.S. Customs and Border Protection Agency and U.S. Immigration and Customs Enforcement to prevent and investigation evasion, including any assessments conducted regarding the allocation of such personnel and resources; and
a description of training conducted to increase expertise and effectiveness in the prevention and investigation of evasion; and
a description of the U.S. Customs and Border Protection Agency processes and procedures to prevent and investigate evasion, including—
the specific guidelines, policies, and practices used by the U.S. Customs and Border Protection Agency to ensure that allegations of evasion are promptly evaluated and acted upon in a timely manner;
an evaluation of the efficacy of such existing guidelines, policies, and practices;
identification of any changes since the last report that have materially improved or reduced the effectiveness of the U.S. Customs and Border Protection Agency to prevent and investigate evasion;
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 on noncollection;
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
identification of any recommended policy changes of other Federal agencies or legislative changes to improve the effectiveness of the U.S. Customs and Border Protection Agency to prevent and investigate evasion.
Government Accountability Office report on reliquidation authority
Not later than 60 days after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the appropriate congressional committees, and make available to the public, a report estimating the amount of duties that could not be collected on covered merchandise that entered the customs territory of the United States through evasion during fiscal years 2011 and 2012 because the Commissioner did not have the authority to reliquidate the entries of such merchandise.
Addressing circumvention by new shippers
Section 751(a)(2)(B) of the Tariff Act of 1930 (19 U.S.C. 1675(a)(2)(B)) is amended—
by striking clause (iii);
by redesignating clause (iv) as clause (iii); and
inserting after clause (iii), as redesignated by paragraph (2) of this section, the following:
Any weighted average dumping margin or individual countervailing duty rate determined for an exporter or producer in a review conducted under clause (i) shall be based solely on the bona fide United States sales of an exporter or producer, as the case may be, made during the period covered by the review. In determining whether the United States sales of an exporter or producer made during the period covered by the review were bona fide, the administering authority shall consider, depending on the circumstances surrounding such sales—
the prices of such sales;
whether such sales were made in commercial quantities;
the timing of such sales;
the expenses arising from such sales;
whether the subject merchandise involved in such sales were resold in the United States at a profit;
whether such sales were made on an arms-length basis; and
any other factor the administering authority determines to be relevant as to whether such sales are, or are not, likely to be typical of those the exporter or producer will make after completion of the review.
.
Miscellaneous provisions
Penalties for customs brokers
In general
Section 641(d)(1) of the Tariff Act of 1930 (19 U.S.C. 1641(d)(1)) is amended—
in subparagraph (E), by striking ;
or
and inserting a semicolon;
in subparagraph (F), by striking the period
and inserting ; or
; and
by adding at the end the following:
has been convicted of committing or conspiring to commit an act of terrorism described in section 2332b of title 18, United States Code.
.
Technical amendments
Section 641 of the Tariff Act of 1930 (19 U.S.C. 1641) is amended—
in subsection (g)(2)(B), by striking
Secretary's notice
and inserting notice under
subparagraph (A)
; and
by striking Customs Service
each place it appears and inserting U.S. Customs and Border Protection
Agency
.
De minimis value and entry under regulations
De Minimis value
Section 321(a)(2)(C) of
the Tariff Act of 1930 (19 U.S.C. 1321(a)(2)(C)) is amended by striking
$200
and inserting $800
.
Entry under regulations
Section 498 of the Tariff Act of 1930 (19 U.S.C. 1498) is amended—
in subsection (a), by striking paragraph (1) and inserting the following:
Merchandise, when different commercial facilitation and risk considerations that may vary for different classes or kinds of merchandise or different classes of transactions may dictate;
;
by redesignating subsection (b) as subsection (c); and
by inserting after subsection (a) the following:
Entry of merchandise valued at $2,500 or less
The Secretary of the Treasury shall prescribe rules and regulations for the declaration and entry of merchandise if the aggregate value of the shipment of merchandise does not exceed $2,500.
.
Effective date
The amendments made by this section apply to articles entered, or withdrawn from warehouse for consumption, on or after the 90th day after the date of the enactment of this Act.
Collection and remittance of certain Customs User Fees
In general
Section 13031(d) of the Consolidated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c(d)) is amended—
in the subsection
heading, by inserting and
remittance
after collection
;
in paragraph (3)—
by inserting
required to be collected under such paragraph
after shall
remit those fees
; and
by striking
31 days after the close of the calendar quarter in which the fees are
collected
and inserting 30 days after the end of the month in
which the fees are required to be collected
; and
by adding at the end the following:
The refund of any fee collected under subsection (a)(5) shall not be payable from the Customs User Fee Account.
A person who collects fees under paragraph (1) or (2) and does not remit those fees to the Secretary of the Treasury as required by paragraph (3) shall be subject to a penalty in accordance with the requirements of this paragraph.
The amount of such penalty shall be equal to 2 times the amount of the fee that was required to be remitted to the Secretary of the Treasury. The Secretary of the Treasury may establish and impose additional penalties through rulemaking for failure to comply with any provision of this subsection.
Any penalty collected under this paragraph shall be used to directly reimburse each appropriation for the amount paid out of that appropriation for the costs described in subsection (f)(3)(A).
.
Effective date
The amendments made by subsection (a) take effect on the date of enactment of this Act and apply with respect to fees that are required to be collected and remitted to the Secretary of the Treasury under section 13031(d) of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended by subsection (a), on or after such date of enactment.
Drawback and refunds
Articles made from imported merchandise
Section 313(a) of the Tariff Act of 1930 (19 U.S.C. 1313(a)) is amended—
by striking
under customs supervision
; and
by inserting as calculated under
subsection (r)(4)(A),
after less 1 per centum of such
duties,
.
Substitution for drawback purposes
Section 313(b) of the Tariff Act of 1930 (19 U.S.C. 1313(b)) is amended—
by striking
If imported
and inserting the following:
In general
If imported
;
by striking
and any other merchandise (whether imported or domestic) of the same
kind and quality
and inserting and substitute
merchandise
;
by striking
three years
and inserting 5 years
;
by striking
the receipt of such imported merchandise by the manufacturer or producer
of such articles
and inserting the date of importation of such
imported merchandise by the importer
;
by striking
under customs supervision
each place it appears;
by inserting after
merchandise used therein been imported,
the following: as
calculated under subsection (r)(4)(A),
;
by striking the period at the end and
inserting , as calculated under subsection (r)(4)(A).
;
and
by adding at the end the following:
Requirements relating to transfer of merchandise
Manufacturers and producers
Drawback may be allowed under paragraph (1) in the amount referred to under paragraph (1) only if the manufacturer or producer of articles has received the imported, duty-paid merchandise or substitute merchandise, directly or indirectly, of imported duty-paid merchandise or substitute merchandise.
Exporters and destroyers
Drawback may be allowed under paragraph (1) in the amount referred to under paragraph (1) only if the exporter or destroyer of articles has received the manufactured or produced article or substitute article, directly or indirectly, of a substitute article.
Evidence of transfer
Transfers of merchandise under subparagraph (A) and transfers of articles under subparagraph (B) may be evidenced by business records kept in the normal course of business and no additional certificates of transfer or manufacture shall be required.
.
Merchandise not conforming to sample or specifications
Section 313(c) of the Tariff Act of 1930 (19 U.S.C. 1313(c)) is amended—
in paragraph (1)—
in the matter
preceding subparagraph (A), by striking under the supervision of the
Customs Service
;
in subparagraph (D)—
by striking 3
and inserting
5
; and
by
striking under the supervision of the Customs Service
;
and
in the text
immediately following subparagraph (D), by inserting as calculated under
subsection (r)(4)(A),
after merchandise,
; and
in paragraph (2)—
by striking under the supervision of
the Customs Service
; and
by striking the
last sentence and inserting the following: Transfers of merchandise may
be evidenced by business records kept in the normal course of business and no
additional certificates of transfer shall be required.
.
Proof of exportation
Section 313(i) of the Tariff Act of 1930 (19 U.S.C. 1313(i)) is amended to read as follows:
Proof of exportation
A person claiming drawback under this section shall, as proof of exportation, maintain the record of exportation entered in the automated export system of the United States Government or, if the exporter is unable to use that system, records kept in the normal course of business similar to the information contained in such record of exportation.
.
Unused merchandise drawback
Section 313(j) of the Tariff Act of 1930 (19 U.S.C. 1313(j)) is amended—
in paragraph (1)(A)—
by striking
3-year
and inserting 5-year
; and
by inserting and before filing the
drawback claim
after the date of importation
; and
in paragraph (2)—
in subparagraph (B)—
by
striking 3-year
and inserting 5-year
;
by inserting and before filing the
drawback claim
after the imported merchandise
;
and
by
striking under customs supervision
;
in subparagraph (C)(ii)(II)—
by
inserting , directly or indirectly,
after
received
; and
by
inserting , tax, or fee
after duty
; and
in the text immediately following subparagraph (C)—
by inserting
, as calculated under subsection (r)(4),
after under this
subsection
; and
by
adding at the end the following: Merchandise shall be considered to be
received directly or indirectly from a person who imported and paid any duty,
tax, or fee due on the imported merchandise if the recipient received any
imported merchandise, any other merchandise (whether imported or domestic), or
any combination of imported merchandise and such other merchandise, from the
importer through a transfer directly to the recipient, or a transfer from the
importer through one or more intermediate transfers involving one or more
parties of any combination of imported merchandise or such other merchandise.
Transfers of merchandise may be evidenced by business records kept in the
normal course of business and no additional certificates of transfer shall be
required.
.
Certificate of delivery
Section 313 of the Tariff Act of 1930 (19 U.S.C. 1313) is amended by striking subsection (k).
Regulations
Section 313(l) of the Tariff Act of 1930
(19 U.S.C. 1313(l)) is amended by striking and the designation of the
person to whom any refund or payment of drawback shall be made
and
inserting and the authority to require that all drawback entries be
filed electronically
.
Substitution of finished petroleum derivatives
Section 313(p) of the Tariff Act of 1930 (19 U.S.C. 1313(p)) is amended—
by striking
Harmonized Tariff Schedule of the United States
each place it
appears and inserting HTS
; and
the text immediately following paragraph
(3)(A)(ii), by striking Commissioner of Customs
and inserting
Commissioner of U.S. Customs and Border Protection
.
Packaging material
Section 313(q)(3) of the Tariff Act of 1930 (19 U.S.C.
1313(q)(3)) is amended by striking they contain
and inserting
it contains
.
Filing and calculation of drawback claims
Section 313(r) of the Tariff Act of 1930 (19 U.S.C. 1313(r)) is amended—
in the heading, by
inserting and calculation
of
after Filing
;
in paragraph (1)—
by striking the
first sentence and inserting the following: A drawback entry shall be
filed or applied for, as applicable, not later than 5 years after the date on
which merchandise on which drawback is claimed was imported. If merchandise
summarized on an entry summary line item with respect to which drawback is
claimed was imported on more than one date, the earliest date of importation of
the merchandise contained on that entry summary line item shall be used for
purposes of this paragraph.
;
in the second
sentence, by striking 3-year
and inserting
5-year
; and
in the third
sentence, by striking the Customs Service
and inserting
U.S. Customs and Border Protection
;
in paragraph (3)(A)—
in the matter
preceding clause (i), by striking The Customs Service
and
inserting U.S. Customs and Border Protection
; and
in clauses (i) and
(ii), by striking the Customs Service
each place it appears and
inserting U.S. Customs and Border Protection
; and
by adding at the end the following:
The amount used for purposes of determining a drawback entry for refund filed under subsection (a), (b), or (c) shall equal the amount determined by multiplying—
the amount determined by dividing—
the total amount of duties, taxes, and fees on the entry summary line item under which imported merchandise is reported; by
the number of units of imported merchandise; and
the number of units of imported merchandise claimed for drawback.
.
Drawbacks for recovered materials
Section 313(x) of the Tariff Act of 1930 (19
U.S.C. 1313(x)) is amended by striking and (c)
and inserting
(c), and (j)
.
Definitions
Section 313 of the Tariff Act of 1930 (19 U.S.C. 1313) is amended by adding at the end the following:
Definitions
In this section:
Directly
The term directly means a transfer of merchandise or an article from 1 person to another person without any intermediate transfer.
HTS
The term HTS means the Harmonized Tariff Schedule of the United States.
Indirectly
The term indirectly means a transfer of merchandise or an article from 1 person to another person with 1 or more intermediate transfers.
Schedule B
The term Schedule B means the Department of Commerce Schedule B, Statistical Classification of Domestic and Foreign Commodities Exported from the United States.
Substitute merchandise; substitute article
The terms substitute merchandise and substitute article mean—
a good that is classifiable within the same 8-digit HTS subheading number as another good (the Schedule B number may be used to demonstrate this fact) whether imported or domestic; or
a good demonstrated to have been classifiable within the same 8-digit HTS subheading number as another good at some point during the 5-year period beginning on the date of importation of the designated imported merchandise (the Schedule B number may be used to demonstrate this fact) whether imported or domestic.
.
Effective date
In general
The amendments made by this section shall—
take effect on the date of the enactment of this Act; and
except as provided in paragraph (2), apply to drawback claims filed with respect to merchandise that enters the United States on or after such date of enactment.
Transition rule
During the 2-year period beginning on the date described in paragraph (1)(A), a person may elect to file a claim for drawback under—
section 313 of the Tariff Act of 1930, as amended by this section; or
section 313 of the Tariff Act of 1930, as in effect on the day before the date described in paragraph (1)(A).
Government Accountability Office report
Not later than one year after the date of enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a report that contains—
a description of the implementation of section 313 of the Tariff Act of 1930 (19 U.S.C. 1313), as amended by this section;
an evaluation of the modernization of drawback and refunds under subsection (b) of section 313 of such Act (relating to substitution for drawback purposes), as amended by this section;
an evaluation of extending the modernization of drawback and refunds to subsection (j) of section 313 of such Act (relating to unused merchandise drawback), as amended by this section; and
recommendations for the processing of drawback claims under the Automated Commercial Environment computer system authorized under section 13031(f)(5) of the Consolidated Omnibus Budget and Reconciliation Act of 1985 (19 U.S.C. 58c(f)(5)).
Amendments to chapter 98 of the Harmonized Tariff Schedule of the United States
Articles exported and returned, advanced or improved abroad
In general
U.S. Note 3 to subchapter II of chapter 98 of the Harmonized Tariff Schedule of the United States is amended by adding at the end the following:
For purposes of subheadings 9802.00.40 and 9802.00.50, fungible goods exported from the United States for the purposes described in such subheadings—
may be commingled; and
the origin, value, and classification of such goods may be accounted for using an inventory management method.
If a person chooses to use an inventory management method under this paragraph with respect to fungible goods, the person shall use the same inventory management method for any other goods with respect to which the person claims fungibility under this paragraph.
For the purposes of this paragraph—
the term fungible good means any good that is commercially interchangeable with another good and that has properties that are essentially identical to the properties of another good; and
the term inventory management method means any method for managing inventory that is based on generally accepted accounting principles.
.
Effective date
The amendment made by this subsection applies to articles classifiable under subheading 9802.00.40 or 9802.00.50 of the Harmonized Tariff Schedule of the United States that are entered, or withdrawn from warehouse for consumption, on or after the date that is 60 days after the date of the enactment of this Act.
Modification of provisions relating to returned property
In general
The article
description for heading 9801.00.10 of the Harmonized Tariff Schedule of the
United States is amended by inserting after exported
the
following: , or any other products when returned within 3 years after
having been exported
.
Effective date
The amendment made by paragraph (1) applies to goods entered, or withdrawn from warehouse for consumption, on or after the 15th day after the date of the enactment of this Act.
Duty free treatment for certain United States Government property returned to the United States
In general
Subchapter I of chapter 98 of the Harmonized Tariff Schedule of the United States is amended by inserting in numerical sequence the following new heading:
| 9801.00.11 | United States Government property, returned to the United States without having been advanced in value or improved in condition by any means while abroad, entered by the United States Government or a contractor to the United States Government, and certified by the importer as United States Government property | Free |
.
Effective Date
The amendment made by paragraph (1) applies to goods entered, or withdrawn from warehouse for consumption, on or after the 15th day after the date of the enactment of this Act.
Other trade agencies
United States International Trade Commission
Fiscal year 2013
There are authorized to be appropriated for the salaries and expenses of the United States International Trade Commission not to exceed $82,800,000 for fiscal year 2013.
Fiscal years 2014 and 2015
Section 330(e)(2)(A) of the Tariff Act of 1930 (19 U.S.C. 1330(e)(2)(A)) is amended by striking clauses (i) and (ii) and inserting the following:
$86,800,000 for fiscal year 2014.
$88,900,000 for fiscal year 2015.
.
Office of the United States Trade Representative
Fiscal year 2013
There are authorized to be appropriated for the salaries and expenses of the Office of the United States Trade Representative not less than $54,500,000, including for additional resources to strengthen the monitoring and enforcement of existing United States trade agreements.
Sense of congress on interagency trade enforcement center
It is the sense of Congress that—
robust monitoring and enforcement of United States rights under international trade agreements, and enforcement of domestic trade laws, are crucial to expanding exports and ensuring United States workers, businesses, ranchers, and farmers are able to compete on a level playing field with foreign trade partners;
to strengthen monitoring and enforcement, executive departments and agencies must coordinate and augment their efforts to identify and reduce or eliminate foreign trade barriers and unfair foreign trade practices; and
an Interagency Trade Enforcement Center, as established by Executive Order 13601 of February 28, 2012, has the potential to strengthen the monitoring and enforcement of United States rights under international trade agreements and the enforcement of domestic trade laws.