ENFORCE Act 'Opt-Out' Would Create CBP Loophole in Customs Reauthorization Bill, Says Congressional Steel Caucus
Customs Reauthorization legislation shouldn't include any form of an "opt-out" provision of ENFORCE Act requirements within a final bill, said the Congressional Steel Caucus in a letter to House Ways and Means Committee leadership (here). The ENFORCE provisions "are essential to ensure that U.S. producers, who have been injured by unfairly traded imports, receive the benefit of the remedy provided by the law," said the lawmakers in the Nov. 20 letter. The Obama administration recently pushed a proposal to change some of the requirements within the ENFORCE bill, but domestic manufacturers have some major concerns (see 1510260021).
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The administration 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. "Recent reports that negotiators are considering 'opt-out' provisions, such as allowing CBP to suspend the ENFORCE procedure while other agencies investigate criminal or civil claims related to the same illegal merchandise, are alarming because they are effectively a loophole for CBP to continue failing to enforce the law," said the caucus.
The ENFORCE Act requires CBP to begin investigations into antidumping and countervailing duty evasion 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 Senate formally appointed Customs Reauthorization conferees in late June (see 1507070066), but the House hasn’t yet followed suit.
In addition to its calls to avoid any kind of "opt-out" clause, the letter also urged conferees to continue to identify CBP as the lead agency for AD/CVD evasion enforcement, and maintain ENFORCE's deadlines for CBP action. The lawmakers also said judicial review as a key mechanism for domestic manufacturers that disagree with any CBP determination under ENFORCE, and called for swift passage of Customs Reauthorization, including ENFORCE. "Steelworkers are under attack every day by illegal imports, and we must not delay to strengthen the range of available tools to combat evasion of our trade remedy laws," said the letter. "Therefore, we strongly encourage you to conference and complete the enactment of the Trade Facilitation and Trade Enforcement Act as soon as possible." The American Iron and Steel Institute applauded the letter’s push for “overdue legislation to address the evasion of trade remedy orders,” in a press release (here).