Senate Dems Target AD/CVD Enforcement Provisions in TPA
Democratic senators may be angling to tack antidumping and countervailing duty (CV/DVD) enforcement provisions on a Trade Promotion Authority bill that's expected to surface in the coming weeks, lawmakers and industry lobbyists said. Those provisions may not make the cut in an initial TPA package or through the amendment process though, nor are they guaranteed to attract more Democratic votes for the TPA measure, said those interviewed.
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Contenders for an enforcement element of a TPA package include the recently introduced Leveling the Playing Field Act and the Enforcing Orders and Reducing Circumvention Evasion (ENFORCE) Act, said industry representatives and a Democratic staffer. Finance committee member Sen. Sherrod Brown, D-Ohio, introduced the Leveling the Playing Field Act in December (here). A spokeswoman for Brown said he aims to include his bill in the TPA package. Several other senators said enforcement provisions could end up in the package. “There is some discussion about that,” said Finance member Sen. Ben Cardin, D-Md. “First and foremost, it’s got to be a good TPA bill.”
The Brown bill would make it easier for the Commerce Department to apply "adverse facts available" in antidumping investigations by removing Commerce’s obligation to show that the applied rate reflects commercial realities. Courts sometimes strike down Commerce's use of high "adverse facts available" rates -- typically applied when foreign exporters refuse to cooperate in an investigation -- because the agency can’t prove the rates reflect those commercial realities. The legislation also would require importers to pay cash deposits, instead of posting a bond, during new shipper reviews, and impose penalties for importers that fail to provide certifications, such as country of origin validations.
The ENFORCE Act, introduced in the previous congress by now-Senate Finance ranking member Ron Wyden, D-Ore., provided the AD/CVD evasion language in proposed Customs Reauthorization legislation (see 13040911). Several lobbyists said lawmakers may include the ENFORCE Act in a package. Wyden has said the U.S. needs to do more to enforce trade remedy laws in place, despite the ambitious U.S. trade agenda in 2014. “That’s an area that’s fair game for amendment,” said National Foreign Trade Council President Bill Reinsch. “The deal breaking amendments, if you will, are more likely to occur on the floor than in committee.”
The ENFORCE Act (here) lays out several deadlines CBP to meet when following up on an allegation of duty evasion. The bill would force CBP to begin investigations 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.
While President Barack Obama has voiced support for TPA recently, a TPA package will likely still be a tough sell, said several Democratic lawmakers. Even if enforcement provisions get in a TPA package, “my view is we need to do a lot more than that,” said Sen. Chuck Schumer, a Finance member and the third-ranking Democrat in the Senate. Many Democrats criticize the Office of the U.S. Trade Representative for refusing to provide more access to trade negotiation texts (see 1501120014).
Sen. Johnny Isakson, R-Ga., expected to be the next Finance Trade Subcommittee chairman, said he’s open to considering various enforcement provisions. “Let’s get it on the floor of the committee and let’s talk about it,” said Isakson, adding that enforcement provisions could potentially attract more Democratic votes for TPA. “We’re a new Congress, a new Senate. We’re going to do amendments. We’re going to have debates.”
TPA is still the most likely vehicle for several expired or expiring trade programs, such as the Generalized System of Preferences and the African Growth and Opportunity Act, many observers say. But TPA is also “sensitive” bill and enforcement provisions may complicate the process, said new Finance Chairman Orrin Hatch, R-Utah. “We got to do it right or we’re going to screw up our international trade,” said Hatch. “I’m hopeful that they will not [add enforcement provisions], but they have a right to.”
The House is another challenge, despite consistent calls for TPA from House Speaker John Boehner, R-Ohio (see 1412050021). Trade policy on the House Ways and Means Committee is likely to stay on a similar course with new Chairman Paul Ryan, R-Wis., and his predecessor, Dave Camp, preferred the PROTECT Act to Wyden’s ENFORCE (see 1412050021). The PROTECT Act doesn’t have the strict deadlines in the ENFORCE Act (see 14050720).
The threat of opposition from lawmakers involved in negotiations over the bill also makes crafting a trade package risky, said President of the Footwear Distributors and Retailers of America Matt Priest. “Even when you sweeten the pot on TPA or the trade agreements, it doesn’t always bring people with you but then you still have to keep commitments,” said Priest. “But everything is on the table, in the discussion. There’s so much pent up priorities for trade legislation, and TPA provides that opportunity. So they’ll be a lot of members, a lot of senators coming forward with proposals.”
In the end, House Democrats will be an obstacle to any TPA bill, regardless of the enforcement provisions, said Reinsch. “[Democratic trade opponents] will be busy drafting amendments to try to do their best to make the bill or the [free trade] agreements rejected or unpalatable, so we’ll see how that evolves,” said Reinsch. House Democrats recently started to ramp up opposition efforts on TPA (see 1501090022).