Trade Groups Ramp Up Advocacy as Customs Bill Makes Progress
The National Customs Brokers & Forwarders Association of America, International Wood Products Association and American Association of Exporters and Importers were among groups that asked House and Senate Conferees in a Dec. 3 letter (here) to ditch the provisions of the ENFORCE Act and instead include the PROTECT Act's antidumping/countervailing duty language within a final bill. A final bill may come as soon as this week as House Majority Leader Kevin McCarthy, R-Calif., included "Possible Consideration of the Conference Report to Accompany H.R. 644 - Trade Facilitation and Trade Enforcement Act of 2015" within his weekly schedule (here). The Conference Committee also scheduled a public meeting for Dec. 7 (here).
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The letter from the trade groups included a list of significant concerns with the ENFORCE Act. For example, the possibility of imposing "substantial unanticipated duty liability" on innocent U.S. importers without a guarantee to any due process rights "is unprecedented under U.S. trade remedy laws and runs counter to our basic legal principles and sense of fairness, and potentially bankrupting innocent importers does not serve the remedial purpose of the trade remedy laws," said the groups. Also problematic is the ENFORCE Act's provisions "for judicial review under the 'arbitrary and capricious standard,' which is far less rigorous than the 'substantial evidence' standard of review that applies to all other AD/CVD proceedings."
The use of ENFORCE would also allow for "forum shopping," the groups said. "Under a plain reading of the legislation, a domestic producer may file a petition with CBP based on an allegation that an importer is evading an order by failing to declare merchandise as subject to AD/CVD duties," said the groups. "Under the ENFORCE Act, it does not matter whether the importer did not declare the merchandise as subject to AD/CVD duties based on a reasonable belief that the products did not fall within the scope of an order. This gives broad authority to CBP to make determinations as to whether merchandise is subject to AD/CVD duties." The ENFORCE Act also doesn't specifically recognize members of trusted trader programs, which effectively "wastes government resources and hinders overall trade enforcement efforts," the groups said.
There's been some indication that the ENFORCE Act is expected to end up in the final bill (see 1509110020), possibly with a controversial "opt-out" provision (see 1512020032). Debate over the inclusion of PROTECT or ENFORCE, both of which would make changes to trade remedy enforcement, has gone on for years (see 13040911).
Meanwhile, in a separate letter to lawmakers on the same day (here), trade associations asked Congress to move quickly on the customs bill in order to avoid overlap and complications related to the 2016 election cycle. Congress also needs to move quickly in order fix clerical errors in a recently enacted law that will increase duties on some outerwear apparel products, potentially in violation of the World Trade Organization rules (see 1508080003), said the trade groups. Also, "codification of CBP operations and management must be done while there is a sitting Commissioner of Customs ---which may change soon due to the end of the current Administration," the groups said.