Manufacturers Lash Into Proposal to Weaken ENFORCE Act in Customs Bill

That proposal would allow CBP to put a pause on ENFORCE mandates if other agencies, such as the Justice Department and ICE, decide to move ahead with their own investigations, said the lobbyists. The administration proposal, however, wouldn’t be limited to criminal investigations, said one former House leadership staffer with ties to domestic manufacturers. “The language would say the administration wouldn’t be able to do parallel investigations, meaning you couldn’t do ENFORCE at the same time as, for instance, an ICE operation,” said that lobbyist. “The problem is sometimes these investigations last several years. Sometimes arrests are made and sometimes not. It’s kind of a black box. And manufacturers consider that language a poison pill.”

The White House, Justice Department and CBP all declined to comment. Staffers with the Finance and Ways and Means committees also declined or didn’t respond for comment, but a spokesman with Rep. Lou Barletta, R-Pa., a lawmaker who has prioritized the customs bill (see 1510080007), contested the proposal. "Congressman Barletta opposes any provision that negates the value of the ENFORCE Act," the spokesman said. Barletta represents steel producers who have aggressively pushed for ENFORCE (see 1507100018). Barletta is one of a number of House Republicans to side with ENFORCE, despite a preference for the PROTECT Act, largely seen as the ENFORCE counterpart, from Ways and Means Chairman Paul Ryan, R-Wis.

The administration floated the proposal recently, said the lobbyists, despite months of negotiations over a compromise customs bill. The Senate formally appointed Customs Reauthorization conferees in late June (see 1507070066). While the House hasn’t yet followed suit, Capitol Hill staffers say the lawmakers involved are aiming to lock down a final bill before moving through the legislative steps to officially launch a conference.

The administration language “a deal breaker" and "a completed nullification” of some major provisions, said one lobbyist for U.S. manufacturers. The proposal is designed to “create a roadblock” for manufacturer challenges to antidumping and countervailing duty evasion, he said. “It would nullify ENFORCE and become another area where importers have greater rights with review,” said the lobbyist.

The ENFORCE Act, which originally surfaced in past congresses (see 11053124) and emerged as a fundamental part of the Senate’s 2015 Customs Reauthorization bill, requires CBP to begin investigations into merchandise 10 days after an allegation is submitted, and by 90 days, the CBP commissioner must make a “reasonable suspicion” determination. If affirmative, CBP may suspend liquidation. The bill also provides the CBP commissioner 270 days to complete an investigation. ENFORCE also provides an opportunity for complainants and defendants to seek recourse through judicial review within 30 days of a final determination. The lobbyists said the judicial review language will almost certainly make it into a final customs compromise, although the language may be slightly modified.

Timeframe for Action

Congressional staffers and lawmakers have noticeably ramped up efforts to lock down a compromise over recent days and weeks, said the lobbyists. A final bill could come at any time, but early-to-mid November may be a reasonable outlook, said the domestic manufacturer lobbyist. “Some of that is likely because lawmakers are seeing a window between now and early November to get some legislation done,” said the lobbyist. “This been out for a while and customs commitments were made to members when deciding to vote for [Trade Promotion Authority].”

TPA moved through the legislative process in the first half of 2015 alongside a number of trade bills, including Customs Reauthorization. The other bills passed into law, but customs has lingered because each chamber produced a different bill. Lawmakers may consider implementation legislation for the Trans-Pacific Partnership in the coming months, in which case, manufacturers will battle hard to enact a customs bill, said the lobbyist. “If you’re thinking about implementing a big trade deal like [the Trans-Pacific Partnership], Customs Reauthorization is critical to move on. So we’ve seen a renewed sense of support and motivation,” the lobbyist said.

Another trade lobbyist, however, hit back at the suggestions of guaranteed quick movement on customs. “The committees appear to be close to finalizing." the lobbyist said. But, once an agreement is reached, "leadership has to be willing to hold another debate on trade policy and find the floor time to do it when such issues as the debt limit, highway funding and budget negotiations are taking all of leadership's attention,” he said.

MTB Prospects Dim

Miscellaneous Tariff Bill proponents haven’t yet conceded that lawmakers will omit a MTB renewal in a final customs bill, but the likelihood of inclusion is slim at best, said all those interviewed. “We have not heard any positives about the trajectory of MTB,” said the domestic manufacturer lobbyist. “Congress is creating their own obstacles, and domestic manufacturers need this program to compete with Chinese finished goods. MTB is very important for a wide range of actors. We are very concerned that this will go forward without MTB.” Another trade lobbyist said: “Barring any change, we have to assume MTB is not going to make it.”