The bill is the first product of a new process established through the American Manufacturing Competitiveness Act of 2016, which codified elements of the previous Congressional-led process. Among other things, the Act also tasked the non-partisan U.S. International Trade Commission with reviewing petitions for consistency against statutory criteria, coordinating an inter-agency process, and recommending a legislative package for congressional consideration. According to a House Ways and Means Committee statement, when enacted in law, the MTB Act is expected to lower the cost of imports, create more jobs, increase wages for American workers, boost America’s competitiveness, and ultimately decrease prices for consumers.

All eyes are now on the Senate, where Senate Finance Committee Chairman Hatch and Ranking Member Wyden have voiced previous support to quickly move legislation, as staff continue to consider procedural strategies for moving the bill, either as a stand-alone measure or as part of a larger package. There have been previous reports of a preference to move MTB in tandem with the expired Generalized System of Preferences program; however the House-passed bill included only the MTB. Many have pointed to the budget spending package as a potential vehicle for both items – despite several attempts to enact more than stop-gap measures on that package – however, any reports including MTB in the mix on active legislative is a positive sign. Though the final play has not yet crystalized, with several options at hand and strong support from both industry and the House, enactment is very much within reach when the Senate is ready to step to the plate.

The new MTB process and prospect for a bill received bipartisan support from members attending the hearing, where they discussed the potential economic benefits to U.S. manufacturers and consumers of providing temporary tariff relief on imported products not produced or available in the United States. Trade Subcommittee Chairman David Reichert (R-WA) stated that passing an MTB was a priority this year, and suggested the bill may be included in a trade package that also renews the Generalized System of Preferences program for developing countries, which expires on December 31.

If successful, this will be the first omnibus duty relief bill to pass Congress in seven years. The National Association for Manufacturers estimates beneficiary companies have faced an estimated annual $748 million in duty related costs since the expiration of the last MTB on December 31, 2012, which has also resulted in an overall $1.8 billion loss to the U.S. economy.

The statute encouraged a wide variety of stakeholders to participate in this new administrative process. For example, the statute defined “interested parties” who may file an allegation of evasion to include foreign exporters and producers, importers, and domestic manufacturers and wholesalers, of products covered by antidumping and countervailing duty orders. Indeed, interested parties on all sides of the trade equation who play by the rules have an incentive to participate in the CBP’s evasion investigations.

In August 2016, however, CBP published in the federal register an interim final rule which some have claimed discourages the broad participation envisioned by the statute. Just last week, Senators Sherrod Brown and Rob Portman expressed this very sentiment in a letter to Kevin McAleenan, the Acting Commission of CBP.

Senators Brown and Portman identified one issue that was also commonly identified in the comments CBP received last winter concerning its interim rule – the lack of an administrative protective order or “APO.” In the context of antidumping and countervailing duty proceedings, the APO allows counsel and consultants who are approved by the Department of Commerce and/or International Trade Commission to view business proprietary information submitted by parties on the record of the proceeding. Without this type of procedure in EAPA investigations, neither counsel to the importers subject of the allegations nor counsel to the party making the allegations will be able to review and vet confidential information placed on the record of the investigation by other parties. The lack of an APO, also limits the ability of counsel to assist CBP in developing the administrative record and conducting its investigations of evasion.

Investigations currently underway are proceeding under the interim final rule. CBP has not yet indicated when it will issue a final rule and, it thus, remains to be seen what types of changes to the interim final rule CBP will make. Encouraging broader participation in the administrative process among the trade community would seem to be an ideal guidepost for any changes the agency does make.