19 U.S.C. § 1517 — Procedures for investigating claims of

Page 241 TITLE 19—CUSTOMS DUTIES § 1517 EFFECT OF TERMINATION OF USMCA COUNTRY STATUS For provisions relating to effect of termination of USMCA country status on sections 401 to 432 of Pub. L. 116–113, see section 4601 of this title. PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989 For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1801–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of Title 26, Internal Revenue Code. Executive Documents ACCEPTANCE BY PRESIDENT OF PANEL AND COMMITTEE DECISIONS For acceptance by President of decisions of bina- tional panels and extraordinary challenge committees in event that subsec. (b)(7)(B) of this section takes ef- fect, see section 2 of Ex. Ord. No. 12889, Dec. 27, 1993, 58 F.R. 69681, set out as a note under former section 3311 of this title. For provision that in the event that subsec. (g)(7)(B) of this section takes effect, the President accepts, as a whole, all decisions of binational panels and extraor- dinary challenge committees, see section 3 of Ex. Ord. No. 12662, Dec. 31, 1988, 54 F.R. 785, set out as a note under section 2112 of this title. § 1517. Procedures for investigating claims of evasion of antidumping and countervailing duty orders (a) Definitions In this section: (1) Administering authority The term ‘‘administering authority’’ has the meaning given that term in section 1677(1) of this title. (2) Commissioner The term ‘‘Commissioner’’ means the Com- missioner of U.S. Customs and Border Protec- tion. (3) Covered merchandise The term ‘‘covered merchandise’’ means merchandise that is subject to— (A) an antidumping duty order issued under section 1673e of this title; or (B) a countervailing duty order issued under section 1671e of this title. (4) Enter; entry The terms ‘‘enter’’ and ‘‘entry’’ refer to the entry, or withdrawal from warehouse for con- sumption, of merchandise into the customs territory of the United States. (5) Evasion (A) In general Except as provided in subparagraph (B), the term ‘‘evasion’’ refers to entering cov- ered merchandise into the customs territory of the United States by means of any docu- ment or electronically transmitted data or information, written or oral statement, or act that is material and false, or any omis- sion that is material, and that results in any cash deposit or other security or any amount of applicable antidumping or coun- tervailing duties being reduced or not being applied with respect to the merchandise. (B) Exception for clerical error (i) In general Except as provided in clause (ii), the term ‘‘evasion’’ does not include entering covered merchandise into the customs ter- ritory of the United States by means of— (I) a document or electronically trans- mitted data or information, written or oral statement, or act that is false as a result of a clerical error; or (II) an omission that results from a clerical error. (ii) Patterns of negligent conduct If the Commissioner determines that a person has entered covered merchandise into the customs territory of the United States by means of a clerical error referred to in subclause (I) or (II) of clause (i) and that the clerical error is part of a pattern of negligent conduct on the part of that person, the Commissioner may determine, notwithstanding clause (i), that the person has entered such covered merchandise into the customs territory of the United States through evasion. (iii) Electronic repetition of errors For purposes of clause (ii), the mere non- intentional repetition by an electronic system of an initial clerical error does not constitute a pattern of negligent conduct. (iv) Rule of construction A determination by the Commissioner that a person has entered covered mer- chandise into the customs territory of the United States by means of a clerical error referred to in subclause (I) or (II) of clause (i) rather than through evasion shall not be construed to excuse that person from the payment of any duties applicable to the merchandise. (6) Interested party (A) In general The term ‘‘interested party’’ means— (i) a foreign manufacturer, producer, or exporter, or the United States importer, of covered merchandise or a trade or business association a majority of the members of which are producers, exporters, or import- ers of such merchandise; (ii) a manufacturer, producer, or whole- saler in the United States of a domestic like product; (iii) a certified union or recognized union or group of workers that is representative of an industry engaged in the manufac- ture, production, or wholesale in the United States of a domestic like product; (iv) a trade or business association a ma- jority of the members of which manufac- ture, produce, or wholesale a domestic like product in the United States; (v) an association a majority of the members of which is composed of inter- Page 242 TITLE 19—CUSTOMS DUTIES § 1517 ested parties described in clause (ii), (iii), or (iv) with respect to a domestic like product; and (vi) if the covered merchandise is a proc- essed agricultural product, as defined in section 1677(4)(E), a coalition or trade as- sociation that is representative of either— (I) processors; (II) processors and producers; or (III) processors and growers. (B) Domestic like product For purposes of subparagraph (A), the term ‘‘domestic like product’’ means a product that is like, or in the absence of like, most similar in characteristics and uses with, cov- ered merchandise. (b) Investigations (1) In general Not later than 15 business days after receiv- ing an allegation described in paragraph (2) or a referral described in paragraph (3), the Com- missioner shall initiate an investigation if the Commissioner determines that the informa- tion provided in the allegation or the referral, as the case may be, reasonably suggests that covered merchandise has been entered into the customs territory of the United States through evasion. (2) Allegation described An allegation described in this paragraph is an allegation that a person has entered cov- ered merchandise into the customs territory of the United States through evasion that is— (A) filed with the Commissioner by an in- terested party; and (B) accompanied by information reason- ably available to the party that filed the al- legation. (3) Referral described A referral described in this paragraph is in- formation submitted to the Commissioner by any other Federal agency, including the De- partment of Commerce or the United States International Trade Commission, that reason- ably suggests that a person has entered cov- ered merchandise into the customs territory of the United States through evasion. (4) Consideration by administering authority (A) In general If the Commissioner receives an allegation under paragraph (2) and is unable to deter- mine whether the merchandise at issue is covered merchandise, the Commissioner shall— (i) refer the matter to the administering authority to determine whether the mer- chandise is covered merchandise pursuant to the authority of the administering au- thority under subtitle IV; and (ii) notify the party that filed the allega- tion, and any other interested party par- ticipating in the investigation, of the re- ferral. (B) Determination; transmission to Commis- sioner After receiving a referral under subpara- graph (A)(i) with respect to merchandise, the administering authority shall determine whether the merchandise is covered mer- chandise and promptly transmit that deter- mination to the Commissioner. (C) Stay of deadlines The period required for any referral and determination under this paragraph shall not be counted in calculating any deadline under this section. (D) Rule of construction Nothing in this paragraph shall be con- strued to affect the authority of an inter- ested party to commence an action in the United States Court of International Trade under section 1516a(a)(2) of this title with re- spect to a determination of the admin- istering authority under this paragraph. (5) Consolidation of allegations and referrals (A) In general The Commissioner may consolidate mul- tiple allegations described in paragraph (2) and referrals described in paragraph (3) into a single investigation if the Commissioner determines it is appropriate to do so. (B) Effect on timing requirements If the Commissioner consolidates multiple allegations or referrals into a single inves- tigation under subparagraph (A), the date on which the Commissioner receives the first such allegation or referral shall be used for purposes of the requirement under paragraph (1) with respect to the timing of the initi- ation of the investigation. (6) Information-sharing to protect health and safety If, during the course of conducting an inves- tigation under paragraph (1) with respect to covered merchandise, the Commissioner has reason to suspect that such covered merchan- dise may pose a health or safety risk to con- sumers, the Commissioner shall provide, as ap- propriate, information to the appropriate Fed- eral agencies for purposes of mitigating the risk. (7) Technical assistance and advice (A) In general Upon request, the Commissioner shall pro- vide technical assistance and advice to eligi- ble small businesses to enable such busi- nesses to prepare and submit allegations de- scribed in paragraph (2), except that the Commissioner may deny technical assist- ance if the Commissioner concludes that the allegation, if submitted, would not lead to the initiation of an investigation under this subsection or any other action to address the allegation. (B) Eligible small business defined (i) In general In this paragraph, the term ‘‘eligible small business’’ means any business con- cern that the Commissioner determines, due to its small size, has neither adequate internal resources nor the financial ability to obtain qualified outside assistance in Page 243 TITLE 19—CUSTOMS DUTIES § 1517 preparing and filing allegations described in paragraph (2). (ii) Non-reviewability The determination of the Commissioner regarding whether a business concern is an eligible small business for purposes of this paragraph is not reviewable by any other agency or by any court. (c) Determinations (1) Determination of evasion (A) In general Except as provided in subparagraph (B), not later than 300 calendar days after the date on which the Commissioner initiates an investigation under subsection (b) with re- spect to covered merchandise, the Commis- sioner shall make a determination, based on substantial evidence, with respect to wheth- er such covered merchandise was entered into the customs territory of the United States through evasion. (B) Additional time The Commissioner may extend the time to make a determination under subparagraph (A) by not more than 60 calendar days if the Commissioner determines that— (i) the investigation is extraordinarily complicated because of— (I) the number and complexity of the transactions to be investigated; (II) the novelty of the issues presented; or (III) the number of entities to be inves- tigated; and (ii) additional time is necessary to make the determination under subparagraph (A). (2) Authority to collect and verify additional information In making a determination under paragraph (1) with respect to covered merchandise, the Commissioner may collect such additional in- formation as is necessary to make the deter- mination through such methods as the Com- missioner considers appropriate, including by— (A) issuing a questionnaire with respect to such covered merchandise to— (i) an interested party that filed an alle- gation under paragraph (2) of subsection (b) that resulted in the initiation of an in- vestigation under paragraph (1) of that subsection with respect to such covered merchandise; (ii) a person alleged to have entered such covered merchandise into the customs ter- ritory of the United States through eva- sion; (iii) a person that is a foreign producer or exporter of such covered merchandise; or (iv) the government of a country from which such covered merchandise was ex- ported; and (B) conducting verifications, including on- site verifications, of any relevant informa- tion. (3) Adverse inference (A) In general If the Commissioner finds that a party or person described in clause (i), (ii), or (iii) of paragraph (2)(A) has failed to cooperate by not acting to the best of the party or per- son’s ability to comply with a request for in- formation, the Commissioner may, in mak- ing a determination under paragraph (1), use an inference that is adverse to the interests of that party or person in selecting from among the facts otherwise available to make the determination. (B) Application An inference described in subparagraph (A) may be used under that subparagraph with respect to a person described in clause (ii) or (iii) of paragraph (2)(A) without regard to whether another person involved in the same transaction or transactions under examina- tion has provided the information sought by the Commissioner, such as import or export documentation. (C) Adverse inference described An adverse inference used under subpara- graph (A) may include reliance on informa- tion derived from— (i) the allegation of evasion of the trade remedy laws, if any, submitted to U.S. Customs and Border Protection; (ii) a determination by the Commis- sioner in another investigation, pro- ceeding, or other action regarding evasion of the unfair trade laws; or (iii) any other available information. (4) Notification Not later than 5 business days after making a determination under paragraph (1) with re- spect to covered merchandise, the Commis- sioner— (A) shall provide to each interested party that filed an allegation under paragraph (2) of subsection (b) that resulted in the initi- ation of an investigation under paragraph (1) of that subsection with respect to such cov- ered merchandise a notification of the deter- mination and may, in addition, include an explanation of the basis for the determina- tion; and (B) may provide to importers, in such manner as the Commissioner determines ap- propriate, information discovered in the in- vestigation that the Commissioner deter- mines will help educate importers with re- spect to importing merchandise into the cus- toms territory of the United States in ac- cordance with all applicable laws and regula- tions. (d) Effect of determinations (1) In general If the Commissioner makes a determination under subsection (c) that covered merchandise was entered into the customs territory of the United States through evasion, the Commis- sioner shall— (A)(i) suspend the liquidation of unliqui- dated entries of such covered merchandise Page 244 TITLE 19—CUSTOMS DUTIES § 1517 that are subject to the determination and that enter on or after the date of the initi- ation of the investigation under subsection (b) with respect to such covered merchandise and on or before the date of the determina- tion; or (ii) if the Commissioner has already sus- pended the liquidation of such entries pursu- ant to subsection (e)(1), continue to suspend the liquidation of such entries; (B) pursuant to the Commissioner’s au- thority under section 1504(b) of this title— (i) extend the period for liquidating un- liquidated entries of such covered mer- chandise that are subject to the deter- mination and that entered before the date of the initiation of the investigation; or (ii) if the Commissioner has already ex- tended the period for liquidating such en- tries pursuant to subsection (e)(1), con- tinue to extend the period for liquidating such entries; (C) notify the administering authority of the determination and request that the ad- ministering authority— (i) identify the applicable antidumping or countervailing duty assessment rates for entries described in subparagraphs (A) and (B); or (ii) if no such assessment rate for such an entry is available at the time, identify the applicable cash deposit rate to be ap- plied to the entry, with the applicable antidumping or countervailing duty as- sessment rate to be provided as soon as that rate becomes available; (D) require the posting of cash deposits and assess duties on entries described in sub- paragraphs (A) and (B) in accordance with the instructions received from the admin- istering authority under paragraph (2); and (E) take such additional enforcement measures as the Commissioner determines appropriate, such as— (i) initiating proceedings under section 1592 or 1595a of this title; (ii) implementing, in consultation with the relevant Federal agencies, rule sets or modifications to rule sets for identifying, particularly through the Automated Tar- geting System and the Automated Com- mercial Environment authorized under section 58c(f)(4) of this title, importers, other parties, and merchandise that may be associated with evasion; (iii) requiring, with respect to merchan- dise for which the importer has repeatedly provided incomplete or erroneous entry summary information in connection with determinations of evasion, the importer to deposit estimated duties at the time of entry; and (iv) referring the record in whole or in part to U.S. Immigration and Customs En- forcement for civil or criminal investiga- tion. (2) Cooperation of administering authority (A) In general Upon receiving a notification from the Commissioner under paragraph (1)(C), the administering authority shall promptly pro- vide to the Commissioner the applicable cash deposit rates and antidumping or coun- tervailing duty assessment rates and any necessary liquidation instructions. (B) Special rule for cases in which the pro- ducer or exporter is unknown If the Commissioner and the administering authority are unable to determine the pro- ducer or exporter of the merchandise with respect to which a notification is made under paragraph (1)(C), the administering authority shall identify, as the applicable cash deposit rate or antidumping or counter- vailing duty assessment rate, the cash de- posit 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 anti- dumping order or countervailing duty order under section 1673e of this title or 1671e of this title, respectively, or a finding issued under the Antidumping Act, 1921, or any ad- ministrative review conducted under section 1675 of this title. (e) Interim measures Not later than 90 calendar days after initi- ating an investigation under subsection (b) with respect to covered merchandise, the Commis- sioner shall decide based on the investigation if there is a reasonable suspicion that such cov- ered merchandise was entered into the customs territory of the United States through evasion and, if the Commissioner decides there is such a reasonable suspicion, the Commissioner shall— (1) suspend the liquidation of each unliqui- dated entry of such covered merchandise that entered on or after the date of the initiation of the investigation; (2) pursuant to the Commissioner’s author- ity under section 1504(b) of this title, extend the period for liquidating each unliquidated entry of such covered merchandise that en- tered before the date of the initiation of the investigation; and (3) pursuant to the Commissioner’s author- ity under section 1623 of this title, take such additional measures as the Commissioner de- termines necessary to protect the revenue of the United States, including requiring a single transaction bond or additional security or the posting of a cash deposit with respect to such covered merchandise. (f) Administrative review (1) In general Not later than 30 business days after the Commissioner makes a determination under subsection (c) with respect to whether covered merchandise was entered into the customs ter- ritory of the United States through evasion, a person determined to have entered such cov- ered merchandise through evasion or an inter- ested party that filed an allegation under paragraph (2) of subsection (b) that resulted in the initiation of an investigation under para- graph (1) of that subsection with respect to such covered merchandise may file an appeal with the Commissioner for de novo review of the determination. Page 245 TITLE 19—CUSTOMS DUTIES § 1520 (2) Timeline for review Not later than 60 business days after an ap- peal of a determination is filed under para- graph (1), the Commissioner shall complete the review of the determination. (g) Judicial review (1) In general Not later than 30 business days after the Commissioner completes a review under sub- section (f) of a determination under subsection (c) with respect to whether covered merchan- dise was entered into the customs territory of the United States through evasion, a person determined to have entered such covered mer- chandise through evasion or an interested party that filed an allegation under paragraph (2) of subsection (b) that resulted in the initi- ation of an investigation under paragraph (1) of that subsection with respect to such cov- ered merchandise may seek judicial review of the determination under subsection (c) and the review under subsection (f) in the United States Court of International Trade to deter- mine whether the determination and review is conducted in accordance with subsections (c) and (f). (2) Standard of review In determining whether a determination under subsection (c) or review under sub- section (f) is conducted in accordance with those subsections, the United States Court of International Trade shall examine— (A) whether the Commissioner fully com- plied with all procedures under subsections (c) and (f); and (B) whether any determination, finding, or conclusion is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. (3) Rule of construction Nothing in this subsection shall affect the availability of judicial review to an interested party under any other provision of law. (h) Rule of construction with respect to other civil and criminal proceedings and investiga- tions No determination under subsection (c), review under subsection (f), or action taken by the Commissioner pursuant to this section shall pre- clude any individual or entity from proceeding, or otherwise affect or limit the authority of any individual or entity to proceed, with any civil, criminal, or administrative investigation or pro- ceeding pursuant to any other provision of Fed- eral or State law, including sections 1592 of this title and 1595a of this title. (June 17, 1930, ch. 497, title IV, § 517, as added Pub. L. 114–125, title IV, § 421(a), Feb. 24, 2016, 130 Stat. 161.) Editorial Notes REFERENCES IN TEXT The Antidumping Act, 1921, referred to in subsec. (d)(2)(B), is act May 27, 1921, ch. 14, title II, 42 Stat. 11, which was classified generally to sections 160 to 171 of this title, and was repealed by Pub. L. 96–39, title I, § 106(a), July 26, 1979, 93 Stat. 193. PRIOR PROVISIONS A prior section 1517, act June 17, 1930, ch. 497, title IV, § 517, 46 Stat. 737, related to frivolous protest or appeal, prior to repeal by act June 25, 1948, ch. 646, § 39, 62 Stat. 992, eff. Sept. 1, 1948. See section 2641 of Title 28, Judici- ary and Judicial Procedure. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 114–125, title IV, § 421(c), Feb. 24, 2016, 130 Stat. 168, provided that: ‘‘The amendments made by this sec- tion [enacting this section and amending section 1581 of Title 28, Judiciary and Judicial Procedure] shall take effect on the date that is 180 days after the date of the enactment of this Act [Feb. 24, 2016].’’ REGULATIONS Pub. L. 114–125, title IV, § 421(d), Feb. 24, 2016, 130 Stat. 169, provided that: ‘‘Not later than the date that is 180 days after the date of the enactment of this Act [Feb. 24, 2016], the Secretary [of the Treasury] shall prescribe such regulations as may be necessary to implement the amendments made by this section [enacting this sec- tion and amending section 1581 of Title 28, Judiciary and Judicial Procedure].’’ §§ 1518, 1519. Repealed. June 25, 1948, ch. 646, § 39, 62 Stat. 992, eff. Sept. 1, 1948 Section 1518, acts June 10, 1890, ch. 407, § 12, 26 Stat. 136; May 27, 1908, ch. 205, § 3, 35 Stat. 406; Aug. 5, 1909, ch. 6, § 28, 36 Stat. 98; May 28, 1926, ch. 411, § 1, 44 Stat. 669; June 17, 1930, ch. 497, title IV, § 518, 46 Stat. 737, re- lated to the judges of the United States Customs Court: their appointment, salary, retirement, vacancies, and powers; the control of the fiscal affairs and of the cler- ical force of the court; and the division of the court. See sections 251 to 254, 456, 1581, 2071, 2639, and 2640 of Title 28, Judiciary and Judicial Procedure. Last sen- tence of section, relating to the transfer of unexpended appropriations for salaries to be available for expendi- tures for the same purposes, was omitted as executed. Section 1519, act June 17, 1930, ch. 497, title IV, § 519, 46 Stat. 739, related to publication of Customs Court’s decisions. See section 255 of Title 28, Judiciary and Ju- dicial Procedure. § 1520. Refunds and errors (a) Cases in which refunds authorized The Secretary of the Treasury is authorized to refund duties or other receipts in the following cases: (1) Excess deposits.—Whenever it is ascertained on liquidation or reliquidation of an entry or reconciliation that more money has been deposited or paid as duties than was required by law to be so deposited or paid. (2) Fees, charges, and exactions.—Whenever it is determined in the manner required by law that any fees, charges, or exactions, other than duties and taxes, have been erroneously or excessively collected. (3) Fines, penalties, and forfeitures.—Whenever money has been deposited in the Treasury on account of a fine, penalty, or forfeiture which did not accrue, or which is finally determined to have accrued in an amount less than that so deposited, or which is mitigated to an amount less than that so deposited or is remitted. (4) Prior to liquidation.—Prior to the liquida- tion of an entry or reconciliation, whenever an importer of record declares or it is ascertained that excess duties, fees, charges, or exactions have been deposited or paid.