104TH CONGRESS

2D SESSION H. R. 2754

AN ACT

To approve and implement the OECD Shipbuilding

Trade Agreement.
104TH CONGRESS

2D SESSION H. R. 2754

AN ACT

To approve and implement the OECD Shipbuilding Trade

Agreement.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Shipbuilding Trade

3 Agreement Act’’.

4 SEC. 2. APPROVAL OF THE SHIPBUILDING AGREEMENT.

5 The Congress approves The Agreement Respecting

6 Normal Competitive Conditions in the Commercial Ship7 building and Repair Industry (hereafter in this Act re8 ferred to as the ‘‘Shipbuilding Agreement’’), a reciprocal

9 trade agreement which resulted from negotiations under

10 the auspices of the Organization for Economic Coopera11 tion and Development, and was entered into on December

12 21, 1994.

13 SEC. 3. EFFECTIVE DATE.

14 Except as provided in section 206, this Act and the

15 amendments made by this Act take effect on the date that

16 the Shipbuilding Agreement enters into force with respect

17 to the United States.

18 TITLE I—INJURIOUS PRICING

19 AND COUNTERMEASURES

20 SEC. 101. INJURIOUS PRICING AND COUNTERMEASURES

21 PROCEEDINGS.

22 The Tariff Act of 1930 is amended by adding at the

23 end the following new title:
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1 ‘‘TITLE VIII—INJURIOUS PRIC2 ING AND COUNTERMEASURES

3 RELATING TO SHIPBUILDING

‘‘Subtitle A—Injurious Pricing Charge and Countermeasures

‘‘Sec. 801. Injurious pricing charge.

‘‘Sec. 802. Procedures for initiating an injurious pricing investigation.

‘‘Sec. 803. Preliminary determinations.

‘‘Sec. 804. Termination or suspension of investigation.

‘‘Sec. 805. Final determinations.

‘‘Sec. 806. Imposition and collection of injurious pricing charge.

‘‘Sec. 807. Imposition of countermeasures.

‘‘Sec. 808. Injurious pricing petitions by third countries.

‘‘Sec. 809. Third country sales.

‘‘Subtitle B—Special Rules

‘‘Sec. 821. Export price.

‘‘Sec. 822. Normal value.

‘‘Sec. 823. Currency conversion.

‘‘Subtitle C—Procedures

‘‘Sec. 841. Hearings.

‘‘Sec. 842. Determinations on the basis of the facts available.

‘‘Sec. 843. Access to information.

‘‘Sec. 844. Conduct of investigations.

‘‘Sec. 845. Administrative action following shipbuilding agreement panel

reports.

‘‘Subtitle D—Definitions

‘‘Sec. 861. Definitions.

4 ‘‘Subtitle A—Injurious Pricing

5 Charge and Countermeasures

6 ‘‘SEC. 801. INJURIOUS PRICING CHARGE.

7 ‘‘(a) BASIS FOR CHARGE.—If—

8 ‘‘(1) the administering authority determines

9 that a foreign vessel has been sold directly or indi10 rectly to one or more United States buyers at less

11 than its fair value, and

12 ‘‘(2) the Commission determines that—
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1 ‘‘(A) an industry in the United States—

2 ‘‘(i) is or has been materially injured,

3 or

4 ‘‘(ii) is threatened with material in5 jury, or

6 ‘‘(B) the establishment of an industry in

7 the United States is or has been materially re8 tarded,

9 by reason of the sale of such vessel, then there shall

10 be imposed upon the foreign producer of the subject

11 vessel an injurious pricing charge, in an amount

12 equal to the amount by which the normal value ex13 ceeds the export price for the vessel. For purposes

14 of this subsection and section 805(b)(1), a reference

15 to the sale of a foreign vessel includes the creation

16 or transfer of an ownership interest in the vessel, ex17 cept for an ownership interest created or acquired

18 solely for the purpose of providing security for a

19 normal commercial loan.

20 ‘‘(b) FOREIGN VESSELS NOT MERCHANDISE.—No

21 foreign vessel may be considered to be, or to be part of,

22 a class or kind of merchandise for purposes of subtitle B

23 of title VII.
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1 ‘‘SEC. 802. PROCEDURES FOR INITIATING AN INJURIOUS

2 PRICING INVESTIGATION.

3 ‘‘(a) INITIATION BY ADMINISTERING AUTHORITY.—

4 ‘‘(1) GENERAL RULE.—Except in the case in

5 which subsection (d)(6) applies, an injurious pricing

6 investigation shall be initiated whenever the admin7 istering authority determines, from information

8 available to it, that a formal investigation is war9 ranted into the question of whether the elements

10 necessary for the imposition of a charge under sec11 tion 801(a) exist, and whether a producer described

12 in section 861(17)(C) would meet the criteria of sub13 section (b)(1)(B) for a petitioner.

14 ‘‘(2) TIME FOR INITIATION BY ADMINISTERING

15 AUTHORITY.—An investigation may only be initiated

16 under paragraph (1) within 6 months after the time

17 the administering authority first knew or should

18 have known of the sale of the vessel. Any period in

19 which subsection (d)(6)(A) applies shall not be in20 cluded in calculating that 6-month period.

21 ‘‘(b) INITIATION BY PETITION.—

22 ‘‘(1) PETITION REQUIREMENTS.—(A) Except in

23 a case in which subsection (d)(6) applies, an injuri24 ous pricing proceeding shall be initiated whenever an

25 interested party, as defined in subparagraph (C),

26 (D), (E), or (F) of section 861(17), files a petition
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1 with the administering authority, on behalf of an in2 dustry, which alleges the elements necessary for the

3 imposition of an injurious pricing charge under sec4 tion 801(a) and the elements required under sub5 paragraph (B), (C), (D), or (E) of this paragraph,

6 and which is accompanied by information reasonably

7 available to the petitioner supporting those allega8 tions and identifying the transaction concerned.

9 ‘‘(B)(i) If the petitioner is a producer described

10 in section 861(17)(C), and—

11 ‘‘(I) if the petitioner was invited to tender

12 a bid on the contract at issue, the petition shall

13 include information indicating that the peti14 tioner actually did so and the bid of the peti15 tioner substantially met the delivery date and

16 technical requirements of the bid, or

17 ‘‘(II) if the petitioner was not invited to

18 tender a bid, the petition shall include informa19 tion indicating that the petitioner was capable

20 of building the vessel concerned and, if the peti21 tioner knew or should have known of the pro22 posed purchase, it made demonstrable efforts to

23 conclude a sale with the United States buyer

24 consistent with the delivery date and technical

25 requirements of the buyer.
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1 ‘‘(ii) For purposes of clause (i)(II), there is a

2 rebuttable presumption that the petitioner knew or

3 should have known of the proposed purchase if it is

4 demonstrated that—

5 ‘‘(I) the majority of the producers in the

6 industry have made efforts with the United

7 States buyer to conclude a sale of the subject

8 vessel, or

9 ‘‘(II) general information on the sale was

10 available from brokers, financiers, classification

11 societies, charterers, trade associations, or other

12 entities normally involved in shipbuilding trans13 actions with whom the petitioner had regular

14 contacts or dealings.

15 ‘‘(C) If the petitioner is an interested party de16 scribed in section 861(17)(D), the petition shall in17 clude information indicating that members of the

18 union or group of workers described in that section

19 are employed by a producer that meets the require20 ments of subparagraph (B) of this paragraph.

21 ‘‘(D) If the petitioner is an interested party de22 scribed in section 861(17)(E), the petition shall in23 clude information indicating that a member of the

24 association described in that section is a producer
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1 that meets the requirements of subparagraph (B) of

2 this paragraph.

3 ‘‘(E) If the petitioner is an interested party de4 scribed in section 861(17)(F), the petition shall in5 clude information indicating that a member of the

6 association described in that section meets the re7 quirements of subparagraph (C) or (D) of this para8 graph.

9 ‘‘(F) The petition may be amended at such

10 time, and upon such conditions, as the administering

11 authority and the Commission may permit.

12 ‘‘(2) SIMULTANEOUS FILING WITH COMMIS13 SION.—The petitioner shall file a copy of the peti14 tion with the Commission on the same day as it is

15 filed with the administering authority.

16 ‘‘(3) DEADLINE FOR FILING PETITION.—

17 ‘‘(A) DEADLINE.—(i) A petitioner to which

18 paragraph (1)(B)(i)(I) applies shall file the pe19 tition no later than the earlier of—

20 ‘‘(I) 6 months after the time that the

21 petitioner first knew or should have known

22 of the sale of the subject vessel, or

23 ‘‘(II) 6 months after delivery of the

24 subject vessel.
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1 ‘‘(ii) A petitioner to which paragraph

2 (1)(B)(i)(II) applies shall—

3 ‘‘(I) file the petition no later than the

4 earlier of 9 months after the time that the

5 petitioner first knew or should have known

6 of the sale of the subject vessel, or 6

7 months after delivery of the subject vessel,

8 and

9 ‘‘(II) submit to the administering au10 thority a notice of intent to file a petition

11 no later than 6 months after the time that

12 the petitioner first knew or should have

13 known of the sale (unless the petition itself

14 is filed within that 6-month period).

15 ‘‘(B) PRESUMPTION OF KNOWLEDGE.—

16 For purposes of this paragraph, if the existence

17 of the sale, together with general information

18 concerning the vessel, is published in the inter19 national trade press, there is a rebuttable pre20 sumption that the petitioner knew or should

21 have known of the sale of the vessel from the

22 date of that publication.

23 ‘‘(c) ACTIONS BEFORE INITIATING INVESTIGA24 TIONS.—
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1 ‘‘(1) NOTIFICATION OF GOVERNMENTS.—Before

2 initiating an investigation under either subsection

3 (a) or (b), the administering authority shall notify

4 the government of the exporting country of the in5 vestigation. In the case of the initiation of an inves6 tigation under subsection (b), such notification shall

7 include a public version of the petition.

8 ‘‘(2) ACCEPTANCE OF COMMUNICATIONS.—The

9 administering authority shall not accept any unsolic10 ited oral or written communication from any person

11 other than an interested party described in section

12 861(17)(C), (D), (E), or (F) before the administer13 ing authority makes its decision whether to initiate

14 an investigation pursuant to a petition, except for

15 inquiries regarding the status of the administering

16 authority’s consideration of the petition or a request

17 for consultation by the government of the exporting

18 country.

19 ‘‘(3) NONDISCLOSURE OF CERTAIN INFORMA20 TION.—The administering authority and the Com21 mission shall not disclose information with regard to

22 any draft petition submitted for review and comment

23 before it is filed under subsection (b)(1).

24 ‘‘(d) PETITION DETERMINATION.—
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1 ‘‘(1) TIME FOR INITIAL DETERMINATION.—(A)

2 Within 45 days after the date on which a petition

3 is filed under subsection (b), the administering au4 thority shall, after examining, on the basis of

5 sources readily available to the administering au6 thority, the accuracy and adequacy of the evidence

7 provided in the petition, determine whether the peti8 tion—

9 ‘‘(i) alleges the elements necessary for the

10 imposition of an injurious pricing charge under

11 section 801(a) and the elements required under

12 subsection (b)(1)(B), (C), (D), or (E), and con13 tains information reasonably available to the pe14 titioner supporting the allegations; and

15 ‘‘(ii) determine if the petition has been

16 filed by or on behalf of the industry.

17 ‘‘(B) Any period in which paragraph (6)(A) ap18 plies shall not be included in calculating the 45-day

19 period described in subparagraph (A).

20 ‘‘(2) AFFIRMATIVE DETERMINATIONS.—If the

21 determinations under clauses (i) and (ii) of para22 graph (1)(A) are affirmative, the administering au23 thority shall initiate an investigation to determine

24 whether the vessel was sold at less than fair value,

25 unless paragraph (6) applies.
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1 ‘‘(3) NEGATIVE DETERMINATIONS.—If—

2 ‘‘(A) the determination under clause (i) or

3 (ii) of paragraph (1)(A) is negative, or

4 ‘‘(B) paragraph (6)(B) applies,

5 the administering authority shall dismiss the peti6 tion, terminate the proceeding, and notify the peti7 tioner in writing of the reasons for the determina8 tion.

9 ‘‘(4) DETERMINATION OF INDUSTRY SUP10 PORT.—

11 ‘‘(A) GENERAL RULE.—For purposes of

12 this subsection, the administering authority

13 shall determine that the petition has been filed

14 by or on behalf of the domestic industry, if—

15 ‘‘(i) the domestic producers or work16 ers who support the petition collectively ac17 count for at least 25 percent of the total

18 capacity of domestic producers capable of

19 producing a like vessel, and

20 ‘‘(ii) the domestic producers or work21 ers who support the petition collectively ac22 count for more than 50 percent of the total

23 capacity to produce a like vessel of that

24 portion of the domestic industry expressing

25 support for or opposition to the petition.
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1 ‘‘(B) CERTAIN POSITIONS DIS2 REGARDED.—In determining industry support

3 under subparagraph (A), the administering au4 thority shall disregard the position of domestic

5 producers who oppose the petition, if such pro6 ducers are related to the foreign producer or

7 United States buyer of the subject vessel, or the

8 domestic producer is itself the United States

9 buyer, unless such domestic producers dem10 onstrate that their interests as domestic pro11 ducers would be adversely affected by the impo12 sition of an injurious pricing charge.

13 ‘‘(C) POLLING THE INDUSTRY.—If the pe14 tition does not establish support of domestic

15 producers or workers accounting for more than

16 50 percent of the total capacity to produce a

17 like vessel—

18 ‘‘(i) the administering authority shall

19 poll the industry or rely on other informa20 tion in order to determine if there is sup21 port for the petition as required by sub22 paragraph (A), or

23 ‘‘(ii) if there is a large number of pro24 ducers in the industry, the administering

25 authority may determine industry support
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1 for the petition by using any statistically

2 valid sampling method to poll the industry.

3 ‘‘(D) COMMENTS BY INTERESTED PAR4 TIES.—Before the administering authority

5 makes a determination with respect to initiating

6 an investigation, any person who would qualify

7 as an interested party under section 861(17) if

8 an investigation were initiated, may submit

9 comments or information on the issue of indus10 try support. After the administering authority

11 makes a determination with respect to initiating

12 an investigation, the determination regarding

13 industry support shall not be reconsidered.

14 ‘‘(5) DEFINITION OF DOMESTIC PRODUCERS OR

15 WORKERS.—For purposes of this subsection, the

16 term ‘domestic producers or workers’ means inter17 ested parties as defined in section 861(17)(C), (D),

18 (E), or (F).

19 ‘‘(6) PROCEEDINGS BY WTO MEMBERS.—The

20 administering authority shall not initiate an inves21 tigation under this section if, with respect to the ves22 sel sale at issue, an antidumping proceeding con23 ducted by a WTO member who is not a Shipbuilding

24 Agreement Party—
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1 ‘‘(A) has been initiated and has been pend2 ing for not more than one year, or

3 ‘‘(B) has been completed and resulted in

4 the imposition of antidumping measures or a

5 negative determination with respect to whether

6 the sale was at less than fair value or with re7 spect to injury.

8 ‘‘(e) NOTIFICATION TO COMMISSION OF DETERMINA9 TION.—The administering authority shall—

10 ‘‘(1) notify the Commission immediately of any

11 determination it makes under subsection (a) or (d),

12 and

13 ‘‘(2) if the determination is affirmative, make

14 available to the Commission such information as it

15 may have relating to the matter under investigation,

16 under such procedures as the administering author17 ity and the Commission may establish to prevent

18 disclosure, other than with the consent of the party

19 providing it or under protective order, of any infor20 mation to which confidential treatment has been

21 given by the administering authority.

22 ‘‘SEC. 803. PRELIMINARY DETERMINATIONS.

23 ‘‘(a) DETERMINATION BY COMMISSION OF REASON24 ABLE INDICATION OF INJURY.—
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1 ‘‘(1) GENERAL RULE.—Except in the case of a

2 petition dismissed by the administering authority

3 under section 802(d)(3), the Commission, within the

4 time specified in paragraph (2), shall determine,

5 based on the information available to it at the time

6 of the determination, whether there is a reasonable

7 indication that—

8 ‘‘(A) an industry in the United States—

9 ‘‘(i) is or has been materially injured,

10 or

11 ‘‘(ii) is threatened with material in12 jury, or

13 ‘‘(B) the establishment of an industry in

14 the United States is or has been materially re15 tarded,

16 by reason of the sale of the subject vessel. If the

17 Commission makes a negative determination under

18 this paragraph, the investigation shall be termi19 nated.

20 ‘‘(2) TIME FOR COMMISSION DETERMINA21 TION.—The Commission shall make the determina22 tion described in paragraph (1) within 90 days after

23 the date on which the petition is filed or, in the case

24 of an investigation initiated under section 802(a),

25 within 90 days after the date on which the Commis-
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1 sion receives notice from the administering authority

2 that the investigation has been initiated.

3 ‘‘(b) PRELIMINARY DETERMINATION BY ADMIN4 ISTERING AUTHORITY.—

5 ‘‘(1) PERIOD OF INJURIOUS PRICING INVES6 TIGATION.—(A) The administering authority shall

7 make a determination, based upon the information

8 available to it at the time of the determination, of

9 whether there is a reasonable basis to believe or sus10 pect that the subject vessel was sold at less than fair

11 value.

12 ‘‘(B) If cost data is required to determine nor13 mal value on the basis of a sale of a foreign like ves14 sel that has not been delivered on or before the date

15 on which the administering authority initiates the

16 investigation, the administering authority shall make

17 its determination within 160 days after the date of

18 delivery of the foreign like vessel.

19 ‘‘(C) If normal value is to be determined on the

20 basis of constructed value, the administering author21 ity shall make its determination within 160 days

22 after the date of delivery of the subject vessel.

23 ‘‘(D) In cases in which subparagraph (B) or

24 (C) does not apply, the administering authority shall

25 make its determination within 160 days after the
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1 date on which the administering authority initiates

2 the investigation under section 802.

3 ‘‘(E) In no event shall the administering au4 thority make its determination before an affirmative

5 determination is made by the Commission under

6 subsection (a).

7 ‘‘(2) DE MINIMIS INJURIOUS PRICING MAR8 GIN.—In making a determination under this sub9 section, the administering authority shall disregard

10 any injurious pricing margin that is de minimis. For

11 purposes of the preceding sentence, an injurious

12 pricing margin is de minimis if the administering

13 authority determines that the margin is less than 2

14 percent of the export price.

15 ‘‘(c) EXTENSION OF PERIOD IN EXTRAORDINARILY

16 COMPLICATED CASES OR FOR GOOD CAUSE.—

17 ‘‘(1) IN GENERAL.—If—

18 ‘‘(A) the administering authority concludes

19 that the parties concerned are cooperating and

20 determines that—

21 ‘‘(i) the case is extraordinarily com22 plicated by reason of—

23 ‘‘(I) the novelty of the issues pre24 sented, or
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1 ‘‘(II) the nature and extent of

2 the information required, and

3 ‘‘(ii) additional time is necessary to

4 make the preliminary determination, or

5 ‘‘(B) a party to the investigation requests

6 an extension and demonstrates good cause for

7 the extension,

8 then the administering authority may postpone the

9 time for making its preliminary determination.

10 ‘‘(2) LENGTH OF POSTPONEMENT.—The pre11 liminary determination may be postponed under

12 paragraph (1)(A) or (B) until not later than the

13 190th day after—

14 ‘‘(A) the date of delivery of the foreign like

15 vessel, if subsection (b)(1)(B) applies,

16 ‘‘(B) the date of delivery of the subject

17 vessel, if subsection (b)(1)(C) applies, or

18 ‘‘(C) the date on which the administering

19 authority initiates an investigation under sec20 tion 802, in a case in which subsection

21 (b)(1)(D) applies.

22 ‘‘(3) NOTICE OF POSTPONEMENT.—The admin23 istering authority shall notify the parties to the in24 vestigation, not later than 20 days before the date

25 on which the preliminary determination would other-
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1 wise be required under subsection (b)(1), if it in2 tends to postpone making the preliminary deter3 mination under paragraph (1). The notification shall

4 include an explanation of the reasons for the post5 ponement, and notice of the postponement shall be

6 published in the Federal Register.

7 ‘‘(d) EFFECT OF DETERMINATION BY THE ADMIN8 ISTERING AUTHORITY.—If the preliminary determination

9 of the administering authority under subsection (b) is af10 firmative, the administering authority shall—

11 ‘‘(1) determine an estimated injurious pricing

12 margin, and

13 ‘‘(2) make available to the Commission all in14 formation upon which its determination was based

15 and which the Commission considers relevant to its

16 injury determination, under such procedures as the

17 administering authority and the Commission may es18 tablish to prevent disclosure, other than with the

19 consent of the party providing it or under protective

20 order, of any information to which confidential treat21 ment has been given by the administering authority.

22 ‘‘(e) NOTICE OF DETERMINATION.—Whenever the

23 Commission or the administering authority makes a deter24 mination under this section, the Commission or the admin25 istering authority, as the case may be, shall notify the pe-
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1 titioner, and other parties to the investigation, and the

2 Commission or the administering authority (whichever is

3 appropriate) of its determination. The administering au4 thority shall include with such notification the facts and

5 conclusions on which its determination is based. Not later

6 than 5 days after the date on which the determination is

7 required to be made under subsection (a)(2), the Commis8 sion shall transmit to the administering authority the facts

9 and conclusions on which its determination is based.

10 ‘‘SEC. 804. TERMINATION OR SUSPENSION OF INVESTIGA11 TION.

12 ‘‘(a) TERMINATION OF INVESTIGATION UPON WITH13 DRAWAL OF PETITION.—

14 ‘‘(1) IN GENERAL.—Except as provided in para15 graph (2), an investigation under this subtitle may

16 be terminated by either the administering authority

17 or the Commission, after notice to all parties to the

18 investigation, upon withdrawal of the petition by the

19 petitioner.

20 ‘‘(2) LIMITATION ON TERMINATION BY COMMIS21 SION.—The Commission may not terminate an in22 vestigation under paragraph (1) before a preliminary

23 determination is made by the administering author24 ity under section 803(b).
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1 ‘‘(b) TERMINATION OF INVESTIGATIONS INITIATED

2 BY ADMINISTERING AUTHORITY.—The administering au3 thority may terminate any investigation initiated by the

4 administering authority under section 802(a) after provid5 ing notice of such termination to all parties to the inves6 tigation.

7 ‘‘(c) ALTERNATE EQUIVALENT REMEDY.—The cri8 teria set forth in subparagraphs (A) through (D) of sec9 tion 806(e)(1) shall apply to any agreement that forms

10 the basis for termination of an investigation under sub11 section (a) or (b).

12 ‘‘(d) PROCEEDINGS BY WTO MEMBERS.—

13 ‘‘(1) SUSPENSION OF INVESTIGATION.—The ad14 ministering authority and the Commission shall sus15 pend an investigation under this section if a WTO

16 member that is not a Shipbuilding Agreement Party

17 initiates an antidumping proceeding described in sec18 tion 861(29)(A) with respect to the sale of the sub19 ject vessel.

20 ‘‘(2) TERMINATION OF INVESTIGATION.—If an

21 antidumping proceeding described in paragraph (1)

22 is concluded by—

23 ‘‘(A) the imposition of antidumping meas24 ures, or
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1 ‘‘(B) a negative determination with respect

2 to whether the sale is at less than fair value or

3 with respect to injury,

4 the administering authority and the Commission

5 shall terminate the investigation under this section.

6 ‘‘(3) CONTINUATION OF INVESTIGATION.—(A)

7 If such a proceeding—

8 ‘‘(i) is concluded by a result other than a

9 result described in paragraph (2), or

10 ‘‘(ii) is not concluded within one year from

11 the date of the initiation of the proceeding,

12 then the administering authority and the Commis13 sion shall terminate the suspension and continue the

14 investigation. The period in which the investigation

15 was suspended shall not be included in calculating

16 deadlines applicable with respect to the investigation.

17 ‘‘(B) Notwithstanding subparagraph (A)(ii), if

18 the proceeding is concluded by a result described in

19 paragraph (2)(A), the administering authority and

20 the Commission shall terminate the investigation

21 under this section.

22 ‘‘SEC. 805. FINAL DETERMINATIONS.

23 ‘‘(a) DETERMINATIONS BY ADMINISTERING AUTHOR24 ITY.—
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1 ‘‘(1) IN GENERAL.—Within 75 days after the

2 date of its preliminary determination under section

3 803(b), the administering authority shall make a

4 final determination of whether the vessel which is

5 the subject of the investigation has been sold in the

6 United States at less than its fair value.

7 ‘‘(2) EXTENSION OF PERIOD FOR DETERMINA8 TION.—(A) The administering authority may post9 pone making the final determination under para10 graph (1) until not later than 290 days after—

11 ‘‘(i) the date of delivery of the foreign like

12 vessel, in an investigation to which section

13 803(b)(1)(B) applies,

14 ‘‘(ii) the date of delivery of the subject ves15 sel, in an investigation to which section

16 803(b)(1)(C) applies, or

17 ‘‘(iii) the date on which the administering

18 authority initiates the investigation under sec19 tion 802, in an investigation to which section

20 803(b)(1)(D) applies.

21 ‘‘(B) The administering authority may apply

22 subparagraph (A) if a request in writing is made

23 by—

24 ‘‘(i) the producer of the subject vessel, in

25 a proceeding in which the preliminary deter-
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1 mination by the administering authority under

2 section 803(b) was affirmative, or

3 ‘‘(ii) the petitioner, in a proceeding in

4 which the preliminary determination by the ad5 ministering authority under section 803(b) was

6 negative.

7 ‘‘(3) DE MINIMIS INJURIOUS PRICING MAR8 GIN.—In making a determination under this sub9 section, the administering authority shall disregard

10 any injurious pricing margin that is de minimis as

11 defined in section 803(b)(2).

12 ‘‘(b) FINAL DETERMINATION BY COMMISSION.—

13 ‘‘(1) IN GENERAL.—The Commission shall

14 make a final determination of whether—

15 ‘‘(A) an industry in the United States—

16 ‘‘(i) is or has been materially injured,

17 or

18 ‘‘(ii) is threatened with material in19 jury, or

20 ‘‘(B) the establishment of an industry in

21 the United States is or has been materially re22 tarded,

23 by reason of the sale of the vessel with respect to

24 which the administering authority has made an af25 firmative determination under subsection (a)(1).
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1 ‘‘(2) PERIOD FOR INJURY DETERMINATION

2 FOLLOWING AFFIRMATIVE PRELIMINARY DETER3 MINATION BY ADMINISTERING AUTHORITY.—If the

4 preliminary determination by the administering au5 thority under section 803(b) is affirmative, then the

6 Commission shall make the determination required

7 by paragraph (1) before the later of—

8 ‘‘(A) the 120th day after the day on which

9 the administering authority makes its affirma10 tive preliminary determination under section

11 803(b), or

12 ‘‘(B) the 45th day after the day on which

13 the administering authority makes its affirma14 tive final determination under subsection (a).

15 ‘‘(3) PERIOD FOR INJURY DETERMINATION

16 FOLLOWING NEGATIVE PRELIMINARY DETERMINA17 TION BY ADMINISTERING AUTHORITY.—If the pre18 liminary determination by the administering author19 ity under section 803(b) is negative, and its final de20 termination under subsection (a) is affirmative, then

21 the final determination by the Commission under

22 this subsection shall be made within 75 days after

23 the date of that affirmative final determination.

24 ‘‘(c) EFFECT OF FINAL DETERMINATIONS.—
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1 ‘‘(1) EFFECT OF AFFIRMATIVE DETERMINATION

2 BY THE ADMINISTERING AUTHORITY.—If the deter3 mination of the administering authority under sub4 section (a) is affirmative, then the administering au5 thority shall—

6 ‘‘(A) make available to the Commission all

7 information upon which such determination was

8 based and which the Commission considers rel9 evant to its determination, under such proce10 dures as the administering authority and the

11 Commission may establish to prevent disclosure,

12 other than with the consent of the party provid13 ing it or under protective order, of any informa14 tion to which confidential treatment has been

15 given by the administering authority, and

16 ‘‘(B) calculate an injurious pricing charge

17 in an amount equal to the amount by which the

18 normal value exceeds the export price of the

19 subject vessel.

20 ‘‘(2) ISSUANCE OF ORDER; EFFECT OF NEGA21 TIVE DETERMINATION.—If the determinations of the

22 administering authority and the Commission under

23 subsections (a)(1) and (b)(1) are affirmative, then

24 the administering authority shall issue an injurious

25 pricing order under section 806. If either of such de-
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1 terminations is negative, the investigation shall be

2 terminated upon the publication of notice of that

3 negative determination.

4 ‘‘(d) PUBLICATION OF NOTICE OF DETERMINA5 TIONS.—Whenever the administering authority or the

6 Commission makes a determination under this section, it

7 shall notify the petitioner, other parties to the investiga8 tion, and the other agency of its determination and of the

9 facts and conclusions of law upon which the determination

10 is based, and it shall publish notice of its determination

11 in the Federal Register.

12 ‘‘(e) CORRECTION OF MINISTERIAL ERRORS.—The

13 administering authority shall establish procedures for the

14 correction of ministerial errors in final determinations

15 within a reasonable time after the determinations are is16 sued under this section. Such procedures shall ensure op17 portunity for interested parties to present their views re18 garding any such errors. As used in this subsection, the

19 term ‘ministerial error’ includes errors in addition, sub20 traction, or other arithmetic function, clerical errors re21 sulting from inaccurate copying, duplication, or the like,

22 and any other type of unintentional error which the ad23 ministering authority considers ministerial.
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1 ‘‘SEC. 806. IMPOSITION AND COLLECTION OF INJURIOUS

2 PRICING CHARGE.

3 ‘‘(a) IN GENERAL.—Within 10 days after being noti4 fied by the Commission of an affirmative determination

5 under section 805(b), the administering authority shall

6 publish an order imposing an injurious pricing charge on

7 the foreign producer of the subject vessel which—

8 ‘‘(1) directs the foreign producer of the subject

9 vessel to pay to the Secretary of the Treasury, or

10 the designee of the Secretary, within 180 days from

11 the date of publication of the order, an injurious

12 pricing charge in an amount equal to the amount by

13 which the normal value exceeds the export price of

14 the subject vessel,

15 ‘‘(2) includes the identity and location of the

16 foreign producer and a description of the subject

17 vessel, in such detail as the administering authority

18 deems necessary, and

19 ‘‘(3) informs the foreign producer that—

20 ‘‘(A) failure to pay the injurious pricing

21 charge in a timely fashion may result in the im22 position of countermeasures with respect to that

23 producer under section 807,

24 ‘‘(B) payment made after the deadline de25 scribed in paragraph (1) shall be subject to in-
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•HR 2754 EH

1 terest charges at the Commercial Interest Ref2 erence Rate (CIRR), and

3 ‘‘(C) the foreign producer may request an

4 extension of the due date for payment under

5 subsection (b).

6 ‘‘(b) EXTENSION OF DUE DATE FOR PAYMENT IN

7 EXTRAORDINARY CIRCUMSTANCES.—

8 ‘‘(1) EXTENSION.—Upon request, the admin9 istering authority may amend the order under sub10 section (a) to set a due date for payment or pay11 ments later than the date that is 180 days from the

12 date of publication of the order, if the administering

13 authority determines that full payment in 180 days

14 would render the producer insolvent or would be in15 compatible with a judicially supervised reorganiza16 tion. When an extended payment schedule provides

17 for a series of partial payments, the administering

18 authority shall specify the circumstances under

19 which default on one or more payments will result

20 in the imposition of countermeasures.

21 ‘‘(2) INTEREST CHARGES.—If a request is

22 granted under paragraph (1), payments made after

23 the date that is 180 days from the publication of the

24 order shall be subject to interest charges at the

25 CIRR.
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1 ‘‘(c) NOTIFICATION OF ORDER.—The administering

2 authority shall deliver a copy of the order requesting pay3 ment to the foreign producer of the subject vessel and to

4 an appropriate representative of the government of the ex5 porting country.

6 ‘‘(d) REVOCATION OF ORDER.—The administering

7 authority—

8 ‘‘(1) may revoke an injurious pricing order if

9 the administering authority determines that produc10 ers accounting for substantially all of the capacity to

11 produce a domestic like vessel have expressed a lack

12 of interest in the order, and

13 ‘‘(2) shall revoke an injurious pricing order—

14 ‘‘(A) if the sale of the vessel that was the

15 subject of the injurious pricing determination is

16 voided,

17 ‘‘(B) if the injurious pricing charge is paid

18 in full, including any interest accrued for late

19 payment,

20 ‘‘(C) upon full implementation of an alter21 native equivalent remedy described in sub22 section (e), or

23 ‘‘(D) if, with respect to the vessel sale that

24 was at issue in the investigation that resulted

25 in the injurious pricing order, an antidumping
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1 proceeding conducted by a WTO member who

2 is not a Shipbuilding Agreement Party has been

3 completed and resulted in the imposition of

4 antidumping measures.

5 ‘‘(e) ALTERNATIVE EQUIVALENT REMEDY.—

6 ‘‘(1) AGREEMENT FOR ALTERNATE REMEDY.—

7 The administering authority may suspend an injuri8 ous pricing order if the administering authority en9 ters into an agreement with the foreign producer

10 subject to the order on an alternative equivalent

11 remedy, that the administering authority deter12 mines—

13 ‘‘(A) is at least as effective a remedy as

14 the injurious pricing charge,

15 ‘‘(B) is in the public interest,

16 ‘‘(C) can be effectively monitored and en17 forced, and

18 ‘‘(D) is otherwise consistent with the do19 mestic law and international obligations of the

20 United States.

21 ‘‘(2) PRIOR CONSULTATIONS AND SUBMISSION

22 OF COMMENTS.—Before entering into an agreement

23 under paragraph (1), the administering authority

24 shall consult with the industry, and provide for the
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•HR 2754 EH

1 submission of comments by interested parties, with

2 respect to the agreement.

3 ‘‘(3) MATERIAL VIOLATIONS OF AGREEMENT.—

4 If the injurious pricing order has been suspended

5 under paragraph (1), and the administering author6 ity determines that the foreign producer concerned

7 has materially violated the terms of the agreement

8 under paragraph (1), the administering authority

9 shall terminate the suspension.

10 ‘‘SEC. 807. IMPOSITION OF COUNTERMEASURES.

11 ‘‘(a) GENERAL RULE.—

12 ‘‘(1) ISSUANCE OF ORDER IMPOSING COUNTER13 MEASURES.—Unless an injurious pricing order is re14 voked or suspended under section 806 (d) or (e), the

15 administering authority shall issue an order impos16 ing countermeasures.

17 ‘‘(2) CONTENTS OF ORDER.—The counter18 measure order shall—

19 ‘‘(A) state that, as provided in section 468,

20 a permit to lade or unlade passengers or mer21 chandise may not be issued with respect to ves22 sels contracted to be built by the foreign pro23 ducer of the vessel with respect to which an in24 jurious pricing order was issued under section

25 806, and
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•HR 2754 EH

1 ‘‘(B) specify the scope and duration of the

2 prohibition on the issuance of a permit to lade

3 or unlade passengers or merchandise.

4 ‘‘(b) NOTICE OF INTENT TO IMPOSE COUNTER5 MEASURES.—

6 ‘‘(1) GENERAL RULE.—The administering au7 thority shall issue a notice of intent to impose coun8 termeasures not later than 30 days before the expi9 ration of the time for payment specified in the inju10 rious pricing order (or extended payment provided

11 for under section 806(b)), and shall publish the no12 tice in the Federal Register within 7 days after issu13 ing the notice.

14 ‘‘(2) ELEMENTS OF THE NOTICE OF INTENT.—

15 The notice of intent shall contain at least the follow16 ing elements:

17 ‘‘(A) SCOPE.—A permit to lade or unlade

18 passengers or merchandise may not be issued

19 with respect to any vessel—

20 ‘‘(i) built by the foreign producer sub21 ject to the proposed countermeasures, and

22 ‘‘(ii) with respect to which the mate23 rial terms of sale are established within a

24 period of 4 consecutive years beginning on

25 the date that is 30 days after publication
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•HR 2754 EH

1 in the Fedeal Register of the notice of in2 tent described in paragraph (1).

3 ‘‘(B) DURATION.—For each vessel de4 scribed in subparagraph (A), a permit to lade

5 or unlade passengers or merchandise may not

6 be issued for a period of 4 years after the date

7 of delivery of the vessel.

8 ‘‘(c) DETERMINATION TO IMPOSE COUNTER9 MEASURES; ORDER.—

10 ‘‘(1) GENERAL RULE.—The administering au11 thority shall, within the time specified in paragraph

12 (2), issue a determination and order imposing coun13 termeasures.

14 ‘‘(2) TIME FOR DETERMINATION.—The deter15 mination shall be issued within 90 days after the

16 date on which the notice of intent to impose counter17 measures under subsection (b) is published in the

18 Federal Register. The administering authority shall

19 publish the determination, and the order described

20 in paragraph (4), in the Federal Register within 7

21 days after issuing the final determination, and shall

22 provide a copy of the determination and order to the

23 Customs Service.

24 ‘‘(3) CONTENT OF THE DETERMINATION.—In

25 the determination imposing countermeasures, the
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•HR 2754 EH

1 administering authority shall determine whether, in

2 light of all of the circumstances, an interested party

3 has demonstrated that the scope or duration of the

4 countermeasures described in subsection (b)(2)

5 should be narrower or shorter than the scope or du6 ration set forth in the notice of intent to impose

7 countermeasures.

8 ‘‘(4) ORDER.—At the same time it issues its

9 determination, the administering authority shall

10 issue an order imposing countermeasures, consistent

11 with its determination.

12 ‘‘(d) ADMINISTRATIVE REVIEW OF DETERMINATION

13 TO IMPOSE COUNTERMEASURES.—

14 ‘‘(1) REQUEST FOR REVIEW.—Each year, in the

15 anniversary month of the issuance of the order im16 posing countermeasures under subsection (c), the

17 administering authority shall publish in the Federal

18 Register a notice providing that interested parties

19 may request—

20 ‘‘(A) a review of the scope or duration of

21 the countermeasures determined under sub22 section (c)(3), and

23 ‘‘(B) a hearing in connection with such a

24 review.
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•HR 2754 EH

1 ‘‘(2) REVIEW.—If a proper request has been re2 ceived under paragraph (1), the administering au3 thority shall—

4 ‘‘(A) publish notice of initiation of a review

5 in the Federal Register not later than 15 days

6 after the end of the anniversary month of the

7 issuance of the order imposing counter8 measures, and

9 ‘‘(B) review and determine whether the re10 questing party has demonstrated that the scope

11 or duration of the countermeasures is excessive

12 in light of all of the circumstances.

13 ‘‘(3) TIME FOR REVIEW.—The administering

14 authority shall make its determination under para15 graph (2)(B) within 90 days after the date on which

16 the notice of initiation of the review is published. If

17 the determination under paragraph (2)(B) is affirm18 ative, the administering authority shall amend the

19 order accordingly. The administering authority shall

20 promptly publish the determination and any amend21 ment to the order in the Federal Register, and shall

22 provide a copy of any amended order to the Customs

23 Service. In extraordinary circumstances, the admin24 istering authority may extend the time for its deter25 mination under paragraph (2)(B) to not later than
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•HR 2754 EH

1 150 days after the date on which the notice of initi2 ation of the review is published.

3 ‘‘(e) EXTENSION OF COUNTERMEASURES.—

4 ‘‘(1) REQUEST FOR EXTENSION.—Within the

5 time described in paragraph (2), an interested party

6 may file with the administering authority a request

7 that the scope or duration of countermeasures be ex8 tended.

9 ‘‘(2) DEADLINE FOR REQUEST FOR EXTEN10 SION.—

11 ‘‘(A) REQUEST FOR EXTENSION BEYOND 4

12 YEARS.—If the request seeks an extension that

13 would cause the scope or duration of counter14 measures to exceed 4 years, including any prior

15 extensions, the request for extension under

16 paragraph (1) shall be filed not earlier than the

17 date that is 15 months, and not later than the

18 date that is 12 months, before the date that

19 marks the end of the period that specifies the

20 vessels that fall within the scope of the order by

21 virtue of the establishment of material terms of

22 sale within that period.

23 ‘‘(B) OTHER REQUESTS.—If the request

24 seeks an extension under paragraph (1) other

25 than one described in subparagraph (A), the re-
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•HR 2754 EH

1 quest shall be filed not earlier than the date

2 that is 6 months, and not later than a date that

3 is 3 months, before the date that marks the end

4 of the period referred to in subparagraph (A).

5 ‘‘(3) DETERMINATION.—

6 ‘‘(A) NOTICE OF REQUEST FOR EXTEN7 SION.—If a proper request has been received

8 under paragraph (1), the administering author9 ity shall publish notice of initiation of an exten10 sion proceeding in the Federal Register not

11 later than 15 days after the applicable deadline

12 in paragraph (2) for requesting the extension.

13 ‘‘(B) PROCEDURES.—

14 ‘‘(i) REQUESTS FOR EXTENSION BE15 YOND 4 YEARS.—If paragraph (2)(A) ap16 plies to the request, the administering au17 thority shall consult with the Trade Rep18 resentative under paragraph (4).

19 ‘‘(ii) OTHER REQUESTS.—If para20 graph (2)(B) applies to the request, the

21 administering authority shall determine,

22 within 90 days after the date on which the

23 notice of initiation of the proceeding is

24 published, whether the requesting party

25 has demonstrated that the scope or dura-
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•HR 2754 EH

1 tion of the countermeasures is inadequate

2 in light of all of the circumstances. If the

3 administering authority determines that an

4 extension is warranted, it shall amend the

5 countermeasure order accordingly. The ad6 ministering authority shall promptly pub7 lish the determination and any amendment

8 to the order in the Federal Register, and

9 shall provide a copy of any amended order

10 to the Customs Service.

11 ‘‘(4) CONSULTATION WITH TRADE REPRESENT12 ATIVE.—If paragraph (3)(B)(i) applies, the admin13 istering authority shall consult with the Trade Rep14 resentative concerning whether it would be appro15 priate to request establishment of a dispute settle16 ment panel under the Shipbuilding Agreement for

17 the purpose of seeking authorization to extend the

18 scope or duration of countermeasures for a period in

19 excess of 4 years.

20 ‘‘(5) DECISION NOT TO REQUEST PANEL.—If,

21 based on consultations under paragraph (4), the

22 Trade Representative decides not to request estab23 lishment of a panel, the Trade Representative shall

24 inform the party requesting the extension of the

25 countermeasures of the reasons for its decision in
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•HR 2754 EH

1 writing. The decision shall not be subject to judicial

2 review.

3 ‘‘(6) PANEL PROCEEDINGS.—If, based on con4 sultations under paragraph (4), the Trade Rep5 resentative requests the establishment of a panel

6 under the Shipbuilding Agreement to authorize an

7 extension of the period of countermeasures, and the

8 panel authorizes such an extension, the administer9 ing authority shall promptly amend the counter10 measure order. The administering authority shall

11 publish notice of the amendment in the Federal Reg12 ister.

13 ‘‘(f) LIST OF VESSELS SUBJECT TO COUNTER14 MEASURES.—

15 ‘‘(1) GENERAL RULE.—At least once during

16 each 12-month period beginning on the anniversary

17 date of a determination to impose countermeasures

18 under this section, the administering authority shall

19 publish in the Federal Register a list of all delivered

20 vessels subject to countermeasures under the deter21 mination.

22 ‘‘(2) CONTENT OF LIST.—The list under para23 graph (1) shall include the following information for

24 each vessel, to the extent the information is avail25 able:
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•HR 2754 EH

1 ‘‘(A) The name and general description of

2 the vessel.

3 ‘‘(B) The vessel identification number.

4 ‘‘(C) The shipyard where the vessel was

5 constructed.

6 ‘‘(D) The last-known registry of the vessel.

7 ‘‘(E) The name and address of the last8 known owner of the vessel.

9 ‘‘(F) The delivery date of the vessel.

10 ‘‘(G) The remaining duration of counter11 measures on the vessel.

12 ‘‘(H) Any other identifying information

13 available.

14 ‘‘(3) AMENDMENT OF LIST.—-The administer15 ing authority may amend the list from time to time

16 to reflect new information that comes to its atten17 tion and shall publish any amendments in the Fed18 eral Register.

19 ‘‘(4) SERVICE OF LIST AND AMENDMENTS.—

20 (A) The administering authority shall serve a copy

21 of the list described in paragraph (1) on—

22 ‘‘(i) the petitioner under section 802(b),

23 ‘‘(ii) the United States Customs Service,

24 ‘‘(iii) the Secretariat of the Organization

25 for Economic Cooperation and Development,
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1 ‘‘(iv) the owners of vessels on the list,

2 ‘‘(v) the shipyards on the list, and

3 ‘‘(vi) the government of the country in

4 which a shipyard on the list is located.

5 ‘‘(B) The administering authority shall serve a

6 copy of any amendments to the list under paragraph

7 (3) or subsection (g)(3) on—

8 ‘‘(i) the parties listed in clauses (i), (ii),

9 and (iii) of subparagraph (A), and,

10 ‘‘(ii) if the amendment affects their inter11 ests, the parties listed in clauses (iv), (v), and

12 (vi) of subparagraph (A).

13 ‘‘(g) ADMINISTRATIVE REVIEW OF LIST OF VESSELS

14 SUBJECT TO COUNTERMEASURES.—

15 ‘‘(1) REQUEST FOR REVIEW.—(A) An inter16 ested party may request in writing a review of the

17 list described in subsection (f)(1), including any

18 amendments thereto, to determine whether—

19 ‘‘(i) a vessel included in the list does not

20 fall within the scope of the applicable counter21 measure order and should be deleted, or

22 ‘‘(ii) a vessel not included in the list falls

23 within the scope of the applicable counter24 measure order and should be added.
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1 ‘‘(B) Any request seeking a determination de2 scribed in subparagraph (A)(i) shall be made within

3 90 days after the date of publication of the applica4 ble list.

5 ‘‘(2) REVIEW.—If a proper request for review

6 has been received, the administering authority

7 shall—

8 ‘‘(A) publish notice of initiation of a review

9 in the Federal Register—

10 ‘‘(i) not later than 15 days after the

11 request is received, or

12 ‘‘(ii) if the request seeks a determina13 tion described in paragraph (1)(A)(i), not

14 later than 15 days after the deadline de15 scribed in paragraph (1)(B), and

16 ‘‘(B) review and determine whether the re17 questing party has demonstrated that—

18 ‘‘(i) a vessel included in the list does

19 not qualify for such inclusion, or

20 ‘‘(ii) a vessel not included in the list

21 qualifies for inclusion.

22 ‘‘(3) TIME FOR DETERMINATION.—The admin23 istering authority shall make its determination under

24 paragraph (2)(B) within 90 days after the date on

25 which the notice of initiation of such review is pub-
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1 lished. If the administering authority determines

2 that a vessel should be added or deleted from the

3 list, the administering authority shall amend the list

4 accordingly. The administering authority shall

5 promptly publish in the Federal Register the deter6 mination and any such amendment to the list.

7 ‘‘(h) EXPIRATION OF COUNTERMEASURES.—Upon

8 expiration of a countermeasure order imposed under this

9 section, the administering authority shall promptly publish

10 a notice of the expiration in the Federal Register.

11 ‘‘(i) SUSPENSION OR TERMINATION OF PROCEED12 INGS OR COUNTERMEASURES; TEMPORARY REDUCTION

13 OF COUNTERMEASURES.—

14 ‘‘(1) IF INJURIOUS PRICING ORDER REVOKED

15 OR SUSPENDED.—If an injurious pricing order has

16 been revoked or suspended under section 806(d) or

17 (e), the administering authority shall, as appro18 priate, suspend or terminate proceedings under this

19 section with respect to that order, or suspend or re20 voke a countermeasure order issued with respect to

21 that injurious pricing order.

22 ‘‘(2) IF PAYMENT DATE AMENDED.—(A) Sub23 ject to subparagraph (C), if the payment date under

24 an injurious pricing order is amended under section

25 845, the administering authority shall, as appro-
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1 priate, suspend proceedings or modify deadlines

2 under this section, or suspend or amend a counter3 measure order issued with respect to that injurious

4 pricing order.

5 ‘‘(B) In taking action under subparagraph (A),

6 the administering authority shall ensure that coun7 termeasures are not applied before the date that is

8 30 days after publication in the Federal Register of

9 the amended payment date.

10 ‘‘(C) If—

11 ‘‘(i) a countermeasure order is issued

12 under subsection (c) before an amendment is

13 made under section 845 to the payment date of

14 the injurious pricing order to which the coun15 termeasure order applies, and

16 ‘‘(ii) the administering authority deter17 mines that the period of time between the origi18 nal payment date and the amended payment

19 date is significant for purposes of determining

20 the appropriate scope or duration of counter21 measures,

22 the administering authority may, in lieu of acting

23 under subparagraph (A), reinstitute proceedings

24 under subsection (c) for purposes of issuing a new

25 determination under that subsection.
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1 ‘‘(j) COMMENT AND HEARING.—In the course of any

2 proceeding under subsection (c), (d), (e), or (g), the ad3 ministering authority—

4 ‘‘(1) shall solicit comments from interested par5 ties, and

6 ‘‘(2)(A) in a proceeding under subsection (c) or

7 (d), upon the request of an interested party, shall

8 hold a hearing in accordance with section 841(b) in

9 connection with that proceeding, or

10 ‘‘(B) in a proceeding under subsection (e) or

11 (g), upon the request of an interested party, may

12 hold a hearing in accordance with section 841(b) in

13 connection with that proceeding.

14 ‘‘SEC. 808. INJURIOUS PRICING PETITIONS BY THIRD COUN15 TRIES.

16 ‘‘(a) FILING OF PETITION.—The government of a

17 Shipbuilding Agreement Party may file with the Trade

18 Representative a petition requesting that an investigation

19 be conducted to determine if—

20 ‘‘(1) a vessel from another Shipbuilding Agree21 ment Party has been sold in the United States at

22 less than fair value, and

23 ‘‘(2) an industry, in the petitioning country,

24 producing or capable of producing a like vessel is

25 materially injured by reason of such sale.
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1 ‘‘(b) INITIATION.—The Trade Representative, after

2 consultation with the administering authority and the

3 Commission and obtaining the approval of the Parties

4 Group under the Shipbuilding Agreement, shall determine

5 whether to initiate an investigation described in subsection

6 (a).

7 ‘‘(c) DETERMINATIONS.—Upon initiation of an inves8 tigation under subsection (a), the Trade Representative

9 shall request the following determinations be made in ac10 cordance with substantive and procedural requirements

11 specified by the Trade Representative, notwithstanding

12 any other provision of this title:

13 ‘‘(1) The administering authority shall deter14 mine whether the subject vessel has been sold at less

15 than fair value.

16 ‘‘(2) The Commission shall determine whether

17 an industry in the petitioning country is materially

18 injured by reason of the sale of the subject vessel in

19 the United States.

20 ‘‘(d) PUBLIC COMMENT.—An opportunity for public

21 comment shall be provided, as appropriate—

22 ‘‘(1) by the Trade Representative, in making

23 the determinations required by subsection (b), and
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1 ‘‘(2) by the administering authority and the

2 Commission, in making the determinations required

3 by subsection (c).

4 ‘‘(e) ISSUANCE OF ORDER.—If the administering au5 thority makes an affirmative determination under para6 graph (1) of subsection (c), and the Commission makes

7 an affirmative determination under paragraph (2) of sub8 section (c), the administering authority shall—

9 ‘‘(1) order an injurious pricing charge in ac10 cordance with section 806, and

11 ‘‘(2) make such determinations and take such

12 other actions as are required by sections 806 and

13 807, as if affirmative determinations had been made

14 under subsections (a) and (b) of section 805.

15 ‘‘(f) REVIEWS OF DETERMINATIONS.—For purposes

16 of review under section 516B, if an order is issued under

17 subsection (e)—

18 ‘‘(1) the final determinations of the administer19 ing authority and the Commission under subsection

20 (c) shall be treated as final determinations made

21 under section 805, and

22 ‘‘(2) determinations of the administering au23 thority under subsection (e)(2) shall be treated as

24 determinations made under section 806 or 807, as

25 the case may be.
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1 ‘‘(g) ACCESS TO INFORMATION.—Section 843 shall

2 apply to investigations under this section, to the extent

3 specified by the Trade Representative, after consultation

4 with the administering authority and the Commission.

5 ‘‘SEC. 809. THIRD COUNTRY SALES.

6 ‘‘(a) FILING OF PETITION.—Any interested party

7 that would be eligible to file a petition under section

8 802(b)(1) with respect to a sale if such sale had been to

9 a United States buyer may, with respect to a sale of a

10 vessel by a foreign producer in a Shipbuilding Agreement

11 Party to a buyer in a third country that is a Shipbuilding

12 Agreement Party, file with the Trade Representative a pe13 tition alleging that—

14 ‘‘(1) such vessel has been sold at less than fair

15 value; and

16 ‘‘(2) the industry in the United States produc17 ing or capable of producing a like vessel is materially

18 injured by reason of such sale.

19 ‘‘(b) DETERMINATION.—Upon receipt of a petition

20 under subsection (a), the Trade Representative shall re21 quest the following determinations to be made in accord22 ance with substantive and procedural requirements speci23 fied by the Trade Representative, notwithstanding any

24 other provision of this title:
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1 ‘‘(1) The administering authority shall deter2 mine whether there is reasonable cause to believe

3 that the subject vessel has been sold at less than fair

4 value.

5 ‘‘(2) The Commission shall determine whether

6 there is reasonable cause to believe that the industry

7 in the United States is materially injured by reason

8 of such sale.

9 ‘‘(c) COMPLAINT BY TRADE REPRESENTATIVE.—If

10 the administering authority makes an affirmative deter11 mination under paragraph (1) of subsection (b), and the

12 Commission makes an affirmative determination under

13 paragraph (2) of subsection (b), the Trade Representative

14 shall make application to the country of the buyer of the

15 subject vessel for an injurious pricing action and relief

16 similar to that available under section 808. The Trade

17 Representative shall advise the petitioner of the proceed18 ings undertaken by the third country in response to such

19 application and shall permit the petitioner to participate

20 in such proceedings to the greatest extent practicable.

21 ‘‘Subtitle B—Special Rules

22 ‘‘SEC. 821. EXPORT PRICE.

23 ‘‘(a) EXPORT PRICE.—For purposes of this title, the

24 term ‘export price’ means the price at which the subject

25 vessel is first sold (or agreed to be sold) by or for the
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1 account of the foreign producer of the subject vessel to

2 an unaffiliated United States buyer. The term ‘sold (or

3 agreed to be sold) by or for the account of the foreign

4 producer’ includes any transfer of an ownership interest,

5 including by way of lease or long-term bareboat charter,

6 in conjunction with the original transfer from the pro7 ducer, either directly or indirectly, to a United States

8 buyer.

9 ‘‘(b) ADJUSTMENTS TO EXPORT PRICE.—The price

10 used to establish export price shall be—

11 ‘‘(1) increased by the amount of any import du12 ties imposed by the country of exportation which

13 have been rebated, or which have not been collected,

14 by reason of the exportation of the subject vessel,

15 and

16 ‘‘(2) reduced by—

17 ‘‘(A) the amount, if any, included in such

18 price, attributable to any additional costs,

19 charges, or expenses which are incident to

20 bringing the subject vessel from the shipyard in

21 the exporting country to the place of delivery,

22 ‘‘(B) the amount, if included in such price,

23 of any export tax, duty, or other charge im24 posed by the exporting country on the expor25 tation of the subject vessel, and
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1 ‘‘(C) all other expenses incidental to plac2 ing the vessel in condition for delivery to the

3 buyer.

4 ‘‘SEC. 822. NORMAL VALUE.

5 ‘‘(a) DETERMINATION.—In determining under this

6 title whether a subject vessel has been sold at less than

7 fair value, a fair comparison shall be made between the

8 export price and normal value of the subject vessel. In

9 order to achieve a fair comparison with the export price,

10 normal value shall be determined as follows:

11 ‘‘(1) DETERMINATION OF NORMAL VALUE.—

12 ‘‘(A) IN GENERAL.—The normal value of

13 the subject vessel shall be the price described in

14 subparagraph (B), at a time reasonably cor15 responding to the time of the sale used to deter16 mine the export price under section 821(a).

17 ‘‘(B) PRICE.—The price referred to in sub18 paragraph (A) is—

19 ‘‘(i) the price at which a foreign like

20 vessel is first sold in the exporting country,

21 in the ordinary course of trade and, to the

22 extent practicable, at the same level of

23 trade, or

24 ‘‘(ii) in a case to which subparagraph

25 (C) applies, the price at which a foreign
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1 like vessel is so sold for consumption in a

2 country other than the exporting country

3 or the United States, if—

4 ‘‘(I) such price is representative,

5 and

6 ‘‘(II) the administering authority

7 does not determine that the particular

8 market situation in such other coun9 try prevents a proper comparison with

10 the export price.

11 ‘‘(C) THIRD COUNTRY SALES.—This sub12 paragraph applies when—

13 ‘‘(i) a foreign like vessel is not sold in

14 the exporting country as described in sub15 paragraph (B)(i), or

16 ‘‘(ii) the particular market situation

17 in the exporting country does not permit a

18 proper comparison with the export price.

19 ‘‘(D) CONTEMPORANEOUS SALE.—For

20 purposes of subparagraph (A), ‘a time reason21 ably corresponding to the time of the sale’

22 means within 3 months before or after the sale

23 of the subject vessel or, in the absence of such

24 sales, such longer period as the administering

25 authority determines would be appropriate.
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1 ‘‘(2) FICTITIOUS MARKETS.—No pretended

2 sale, and no sale intended to establish a fictitious

3 market, shall be taken into account in determining

4 normal value.

5 ‘‘(3) USE OF CONSTRUCTED VALUE.—If the ad6 ministering authority determines that the normal

7 value of the subject vessel cannot be determined

8 under paragraph (1)(B) or (1)(C), then the normal

9 value of the subject vessel shall be the constructed

10 value of that vessel, as determined under subsection

11 (e).

12 ‘‘(4) INDIRECT SALES.—If a foreign like vessel

13 is sold through an affiliated party, the price at

14 which the foreign like vessel is sold by such affiliated

15 party may be used in determining normal value.

16 ‘‘(5) ADJUSTMENTS.—The price described in

17 paragraph (1)(B) shall be—

18 ‘‘(A) reduced by—

19 ‘‘(i) the amount, if any, included in

20 the price described in paragraph (1)(B),

21 attributable to any costs, charges, and ex22 penses incident to bringing the foreign like

23 vessel from the shipyard to the place of de24 livery to the purchaser,
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1 ‘‘(ii) the amount of any taxes imposed

2 directly upon the foreign like vessel or

3 components thereof which have been re4 bated, or which have not been collected, on

5 the subject vessel, but only to the extent

6 that such taxes are added to or included in

7 the price of the foreign like vessel, and

8 ‘‘(iii) the amount of all other expenses

9 incidental to placing the foreign like vessel

10 in condition for delivery to the buyer, and

11 ‘‘(B) increased or decreased by the amount

12 of any difference (or lack thereof) between the

13 export price and the price described in para14 graph (1)(B) (other than a difference for which

15 allowance is otherwise provided under this sec16 tion) that is established to the satisfaction of

17 the administering authority to be wholly or

18 partly due to—

19 ‘‘(i) physical differences between the

20 subject vessel and the vessel used in deter21 mining normal value, or

22 ‘‘(ii) other differences in the cir23 cumstances of sale.

24 ‘‘(6) ADJUSTMENTS FOR LEVEL OF TRADE.—

25 The price described in paragraph (1)(B) shall also
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1 be increased or decreased to make due allowance for

2 any difference (or lack thereof) between the export

3 price and the price described in paragraph (1)(B)

4 (other than a difference for which allowance is oth5 erwise made under this section) that is shown to be

6 wholly or partly due to a difference in level of trade

7 between the export price and normal value, if the

8 difference in level of trade—

9 ‘‘(A) involves the performance of different

10 selling activities, and

11 ‘‘(B) is demonstrated to affect price com12 parability, based on a pattern of consistent

13 price differences between sales at different lev14 els of trade in the country in which normal

15 value is determined.

16 In a case described in the preceding sentence, the

17 amount of the adjustment shall be based on the

18 price differences between the two levels of trade in

19 the country in which normal value is determined.

20 ‘‘(7) ADJUSTMENTS TO CONSTRUCTED

21 VALUE.—Constructed value as determined under

22 subsection (d) may be adjusted, as appropriate, pur23 suant to this subsection.

24 ‘‘(b) SALES AT LESS THAN COST OF PRODUCTION.—
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1 ‘‘(1) DETERMINATION; SALES DISREGARDED.—

2 Whenever the administering authority has reason3 able grounds to believe or suspect that the sale of

4 the foreign like vessel under consideration for the

5 determination of normal value has been made at a

6 price which represents less than the cost of produc7 tion of the foreign like vessel, the administering au8 thority shall determine whether, in fact, such sale

9 was made at less than the cost of production. If the

10 administering authority determines that the sale was

11 made at less than the cost of production and was

12 not at a price which permits recovery of all costs

13 within 5 years, such sale may be disregarded in the

14 determination of normal value. Whenever such a sale

15 is disregarded, normal value shall be based on an16 other sale of a foreign like vessel in the ordinary

17 course of trade. If no sales made in the ordinary

18 course of trade remain, the normal value shall be

19 based on the constructed value of the subject vessel.

20 ‘‘(2) DEFINITIONS AND SPECIAL RULES.—For

21 purposes of this subsection:

22 ‘‘(A) REASONABLE GROUNDS TO BELIEVE

23 OR SUSPECT.—There are reasonable grounds to

24 believe or suspect that the sale of a foreign like

25 vessel was made at a price that is less than the
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1 cost of production of the vessel, if an interested

2 party described in subparagraph (C), (D), (E),

3 or (F) of section 861(17) provides information,

4 based upon observed prices or constructed

5 prices or costs, that the sale of the foreign like

6 vessel under consideration for the determination

7 of normal value has been made at a price which

8 represents less than the cost of production of

9 the vessel.

10 ‘‘(B) RECOVERY OF COSTS.—If the price is

11 below the cost of production at the time of sale

12 but is above the weighted average cost of pro13 duction for the period of investigation, such

14 price shall be considered to provide for recovery

15 of costs within 5 years.

16 ‘‘(3) CALCULATION OF COST OF PRODUC17 TION.—For purposes of this section, the cost of pro18 duction shall be an amount equal to the sum of—

19 ‘‘(A) the cost of materials and of fabrica20 tion or other processing of any kind employed

21 in producing the foreign like vessel, during a

22 period which would ordinarily permit the pro23 duction of that vessel in the ordinary course of

24 business, and
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1 ‘‘(B) an amount for selling, general, and

2 administrative expenses based on actual data

3 pertaining to the production and sale of the for4 eign like vessel by the producer in question.

5 For purposes of subparagraph (A), if the normal

6 value is based on the price of the foreign like vessel

7 sold in a country other than the exporting country,

8 the cost of materials shall be determined without re9 gard to any internal tax in the exporting country im10 posed on such materials or on their disposition

11 which are remitted or refunded upon exportation.

12 ‘‘(c) NONMARKET ECONOMY COUNTRIES.—

13 ‘‘(1) IN GENERAL.—If—

14 ‘‘(A) the subject vessel is produced in a

15 nonmarket economy country, and

16 ‘‘(B) the administering authority finds that

17 available information does not permit the nor18 mal value of the subject vessel to be determined

19 under subsection (a),

20 the administering authority shall determine the nor21 mal value of the subject vessel on the basis of the

22 value of the factors of production utilized in produc23 ing the vessel and to which shall be added an

24 amount for general expenses and profit plus the cost

25 of expenses incidental to placing the vessel in a con-
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1 dition for delivery to the buyer. Except as provided

2 in paragraph (2), the valuation of the factors of pro3 duction shall be based on the best available informa4 tion regarding the values of such factors in a market

5 economy country or countries considered to be ap6 propriate by the administering authority.

7 ‘‘(2) EXCEPTION.—If the administering author8 ity finds that the available information is inadequate

9 for purposes of determining the normal value of the

10 subject vessel under paragraph (1), the administer11 ing authority shall determine the normal value on

12 the basis of the price at which a vessel that is—

13 ‘‘(A) comparable to the subject vessel, and

14 ‘‘(B) produced in one or more market

15 economy countries that are at a level of eco16 nomic development comparable to that of the

17 nonmarket economy country,

18 is sold in other countries, including the United

19 States.

20 ‘‘(3) FACTORS OF PRODUCTION.—For purposes

21 of paragraph (1), the factors of production utilized

22 in producing the vessel include, but are not limited

23 to—

24 ‘‘(A) hours of labor required,

25 ‘‘(B) quantities of raw materials employed,
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1 ‘‘(C) amounts of energy and other utilities

2 consumed, and

3 ‘‘(D) representative capital cost, including

4 depreciation.

5 ‘‘(4) VALUATION OF FACTORS OF PRODUC6 TION.—The administering authority, in valuing fac7 tors of production under paragraph (1), shall utilize,

8 to the extent possible, the prices or costs of factors

9 of production in one or more market economy coun10 tries that are—

11 ‘‘(A) at a level of economic development

12 comparable to that of the nonmarket economy

13 country, and

14 ‘‘(B) significant producers of comparable

15 vessels.

16 ‘‘(d) SPECIAL RULE FOR CERTAIN MULTINATIONAL

17 CORPORATIONS.—Whenever, in the course of an investiga18 tion under this title, the administering authority deter19 mines that—

20 ‘‘(1) the subject vessel was produced in facilities

21 which are owned or controlled, directly or indirectly,

22 by a person, firm, or corporation which also owns or

23 controls, directly or indirectly, other facilities for the

24 production of a foreign like vessel which are located

25 in another country or countries,
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1 ‘‘(2) subsection (a)(1)(C) applies, and

2 ‘‘(3) the normal value of a foreign like vessel

3 produced in one or more of the facilities outside the

4 exporting country is higher than the normal value of

5 the foreign like vessel produced in the facilities lo6 cated in the exporting country,

7 the administering authority shall determine the normal

8 value of the subject vessel by reference to the normal value

9 at which a foreign like vessel is sold from one or more

10 facilities outside the exporting country. The administering

11 authority, in making any determination under this sub12 section, shall make adjustments for the difference between

13 the costs of production (including taxes, labor, materials,

14 and overhead) of the foreign like vessel produced in facili15 ties outside the exporting country and costs of production

16 of the foreign like vessel produced in facilities in the ex17 porting country, if such differences are demonstrated to

18 its satisfaction.

19 ‘‘(e) CONSTRUCTED VALUE.—

20 ‘‘(1) IN GENERAL.—For purposes of this title,

21 the constructed value of a subject vessel shall be an

22 amount equal to the sum of—

23 ‘‘(A) the cost of materials and fabrication

24 or other processing of any kind employed in

25 producing the subject vessel, during a period
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1 which would ordinarily permit the production of

2 the vessel in the ordinary course of business,

3 and

4 ‘‘(B)(i) the actual amounts incurred and

5 realized by the foreign producer of the subject

6 vessel for selling, general, and administrative

7 expenses, and for profits, in connection with the

8 production and sale of a foreign like vessel, in

9 the ordinary course of trade, in the domestic

10 market of the country of origin of the subject

11 vessel, or

12 ‘‘(ii) if actual data are not available with

13 respect to the amounts described in clause (i),

14 then—

15 ‘‘(I) the actual amounts incurred and

16 realized by the foreign producer of the sub17 ject vessel for selling, general, and admin18 istrative expenses, and for profits, in con19 nection with the production and sale of the

20 same general category of vessel in the do21 mestic market of the country of origin of

22 the subject vessel,

23 ‘‘(II) the weighted average of the ac24 tual amounts incurred and realized by pro25 ducers in the country of origin of the sub-
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1 ject vessel (other than the producer of the

2 subject vessel) for selling, general, and ad3 ministrative expenses, and for profits, in

4 connection with the production and sale of

5 a foreign like vessel, in the ordinary course

6 of trade, in the domestic market, or

7 ‘‘(III) if data is not available under

8 subclause (I) or (II), the amounts incurred

9 and realized for selling, general, and ad10 ministrative expenses, and for profits,

11 based on any other reasonable method, ex12 cept that the amount allowed for profit

13 may not exceed the amount normally real14 ized by foreign producers (other than the

15 producer of the subject vessel) in connec16 tion with the sale of vessels in the same

17 general category of vessel as the subject

18 vessel in the domestic market of the coun19 try of origin of the subject vessel.

20 The profit shall, for purposes of this paragraph, be

21 based on the average profit realized over a reason22 able period of time before and after the sale of the

23 subject vessel and shall reflect a reasonable profit at

24 the time of such sale. For purposes of the preceding

25 sentence, a ‘reasonable period of time’ shall not, ex-
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1 cept where otherwise appropriate, exceed 6 months

2 before, or 6 months after, the sale of the subject ves3 sel. In calculating profit under this paragraph, any

4 distortion which would result in other than a profit

5 which is reasonable at the time of the sale shall be

6 eliminated.

7 ‘‘(2) COSTS AND PROFITS BASED ON OTHER

8 REASONABLE METHODS.—When costs and profits

9 are determined under paragraph (1)(B)(ii)(III), such

10 determination shall, except where otherwise appro11 priate, be based on appropriate export sales by the

12 producer of the subject vessel or, absent such sales,

13 to export sales by other producers of a foreign like

14 vessel or the same general category of vessel as the

15 subject vessel in the country of origin of the subject

16 vessel.

17 ‘‘(3) COSTS OF MATERIALS.—For purposes of

18 paragraph (1)(A), the cost of materials shall be de19 termined without regard to any internal tax in the

20 exporting country imposed on such materials or their

21 disposition which are remitted or refunded upon ex22 portation of the subject vessel produced from such

23 materials.
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1 ‘‘(f) SPECIAL RULES FOR CALCULATION OF COST OF

2 PRODUCTION AND FOR CALCULATION OF CONSTRUCTED

3 VALUE.—For purposes of subsections (b) and (e)—

4 ‘‘(1) COSTS.—

5 ‘‘(A) IN GENERAL.—Costs shall normally

6 be calculated based on the records of the for7 eign producer of the subject vessel, if such

8 records are kept in accordance with the gen9 erally accepted accounting principles of the ex10 porting country and reasonably reflect the costs

11 associated with the production and sale of the

12 vessel. The administering authority shall con13 sider all available evidence on proper allocation

14 of costs, including that which is made available

15 by the foreign producer on a timely basis, if

16 such allocations have been historically used by

17 the foreign producer, in particular for establish18 ing appropriate amortization and depreciation

19 periods, and allowances for capital expenditures

20 and other development costs.

21 ‘‘(B) NONRECURRING COSTS.—Costs shall

22 be adjusted appropriately for those non23 recurring costs that benefit current or future

24 production, or both.

25 ‘‘(C) STARTUP COSTS.—
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1 ‘‘(i) IN GENERAL.—Costs shall be ad2 justed appropriately for circumstances in

3 which costs incurred during the time pe4 riod covered by the investigation are af5 fected by startup operations.

6 ‘‘(ii) STARTUP OPERATIONS.—Adjust7 ments shall be made for startup operations

8 only where—

9 ‘‘(I) a producer is using new pro10 duction facilities or producing a new

11 type of vessel that requires substantial

12 additional investment, and

13 ‘‘(II) production levels are limited

14 by technical factors associated with

15 the initial phase of commercial pro16 duction.

17 For purposes of subclause (II), the initial

18 phase of commercial production ends at

19 the end of the startup period. In determin20 ing whether commercial production levels

21 have been achieved, the administering au22 thority shall consider factors unrelated to

23 startup operations that might affect the

24 volume of production processed, such as

25 demand, seasonality, or business cycles.
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1 ‘‘(iii) ADJUSTMENT FOR STARTUP OP2 ERATIONS.—The adjustment for startup

3 operations shall be made by substituting

4 the unit production costs incurred with re5 spect to the vessel at the end of the start6 up period for the unit production costs in7 curred during the startup period. If the

8 startup period extends beyond the period

9 of the investigation under this title, the ad10 ministering authority shall use the most

11 recent cost of production data that it rea12 sonably can obtain, analyze, and verify

13 without delaying the timely completion of

14 the investigation. For purposes of this sub15 paragraph, the startup period ends at the

16 point at which the level of commercial pro17 duction that is characteristic of the vessel,

18 the producer, or the industry is achieved.

19 ‘‘(D) COSTS DUE TO EXTRAORDINARY CIR20 CUMSTANCES NOT INCLUDED.—Costs shall not

21 include actual costs which are due to extraor22 dinary circumstances (including, but not limited

23 to, labor disputes, fire, and natural disasters)

24 and which are significantly over the cost in25 crease which the shipbuilder could have reason-
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1 ably anticipated and taken into account at the

2 time of sale.

3 ‘‘(2) TRANSACTIONS DISREGARDED.—A trans4 action directly or indirectly between affiliated per5 sons may be disregarded if, in the case of any ele6 ment of value required to be considered, the amount

7 representing that element does not fairly reflect the

8 amount usually reflected in sales of a like vessel in

9 the market under consideration. If a transaction is

10 disregarded under the preceding sentence and no

11 other transactions are available for consideration,

12 the determination of the amount shall be based on

13 the information available as to what the amount

14 would have been if the transaction had occurred be15 tween persons who are not affiliated.

16 ‘‘(3) MAJOR INPUT RULE.—If, in the case of a

17 transaction between affiliated persons involving the

18 production by one of such persons of a major input

19 to the subject vessel, the administering authority has

20 reasonable grounds to believe or suspect that an

21 amount represented as the value of such input is

22 less than the cost of production of such input, then

23 the administering authority may determine the value

24 of the major input on the basis of the information

25 available regarding such cost of production, if such
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1 cost is greater than the amount that would be deter2 mined for such input under paragraph (2).

3 ‘‘SEC. 823. CURRENCY CONVERSION.

4 ‘‘(a) IN GENERAL.—In an injurious pricing proceed5 ing under this title, the administering authority shall con6 vert foreign currencies into United States dollars using the

7 exchange rate in effect on the date of sale of the subject

8 vessel, except that if it is established that a currency

9 transaction on forward markets is directly linked to a sale

10 under consideration, the exchange rate specified with re11 spect to such foreign currency in the forward sale agree12 ment shall be used to convert the foreign currency.

13 ‘‘(b) DATE OF SALE.—For purposes of this section,

14 ‘date of sale’ means the date of the contract of sale or,

15 where appropriate, the date on which the material terms

16 of sale are otherwise established. If the material terms of

17 sale are significantly changed after such date, the date of

18 sale is the date of such change. In the case of such a

19 change in the date of sale, the administering authority

20 shall make appropriate adjustments to take into account

21 any unreasonable effect on the injurious pricing margin

22 due only to fluctuations in the exchange rate between the

23 original date of sale and the new date of sale.
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1 ‘‘Subtitle C—Procedures

2 ‘‘SEC. 841. HEARINGS.

3 ‘‘(a) UPON REQUEST.—The administering authority

4 and the Commission shall each hold a hearing in the

5 course of an investigation under this title, upon the re6 quest of any party to the investigation, before making a

7 final determination under section 805.

8 ‘‘(b) PROCEDURES.—Any hearing required or per9 mitted under this title shall be conducted after notice pub10 lished in the Federal Register, and a transcript of the

11 hearing shall be prepared and made available to the public.

12 The hearing shall not be subject to the provisions of sub13 chapter II of chapter 5 of title 5, United States Code, or

14 to section 702 of such title.

15 ‘‘SEC. 842. DETERMINATIONS ON THE BASIS OF THE FACTS

16 AVAILABLE.

17 ‘‘(a) IN GENERAL.—If—

18 ‘‘(1) necessary information is not available on

19 the record, or

20 ‘‘(2) an interested party or any other person—

21 ‘‘(A) withholds information that has been

22 requested by the administering authority or the

23 Commission under this title,

24 ‘‘(B) fails to provide such information by

25 the deadlines for the submission of the informa-
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1 tion or in the form and manner requested, sub2 ject to subsections (b)(1) and (d) of section

3 844,

4 ‘‘(C) significantly impedes a proceeding

5 under this title, or

6 ‘‘(D) provides such information but the in7 formation cannot be verified as provided in sec8 tion 844(g),

9 the administering authority and the Commission

10 shall, subject to section 844(c), use the facts other11 wise available in reaching the applicable determina12 tion under this title.

13 ‘‘(b) ADVERSE INFERENCES.—If the administering

14 authority or the Commission (as the case may be) finds

15 that an interested party has failed to cooperate by not act16 ing to the best of its ability to comply with a request for

17 information from the administering authority or the Com18 mission, the administering authority or the Commission

19 (as the case may be), in reaching the applicable determina20 tion under this title, may use an inference that is adverse

21 to the interests of that party in selecting from among the

22 facts otherwise available. Such adverse inference may in23 clude reliance on information derived from—

24 ‘‘(1) the petition, or
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1 ‘‘(2) any other information placed on the

2 record.

3 ‘‘(c) CORROBORATION OF SECONDARY INFORMA4 TION.—When the administering authority or the Commis5 sion relies on secondary information rather than on infor6 mation obtained in the course of an investigation under

7 this title, the administering authority and the Commis8 sion, as the case may be, shall, to the extent practicable,

9 corroborate that information from independent sources

10 that are reasonably at their disposal.

11 ‘‘SEC. 843. ACCESS TO INFORMATION.

12 ‘‘(a) INFORMATION GENERALLY MADE AVAIL13 ABLE.—

14 ‘‘(1) PROGRESS OF INVESTIGATION REPORTS.—

15 The administering authority and the Commission

16 shall, from time to time upon request, inform the

17 parties to an investigation under this title of the

18 progress of that investigation.

19 ‘‘(2) EX PARTE MEETINGS.—The administering

20 authority and the Commission shall maintain a

21 record of any ex parte meeting between—

22 ‘‘(A) interested parties or other persons

23 providing factual information in connection with

24 a proceeding under this title, and
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1 ‘‘(B) the person charged with making the

2 determination, or any person charged with mak3 ing a final recommendation to that person, in

4 connection with that proceeding,

5 if information relating to that proceeding was pre6 sented or discussed at such meeting. The record of

7 such an ex parte meeting shall include the identity

8 of the persons present at the meeting, the date,

9 time, and place of the meeting, and a summary of

10 the matters discussed or submitted. The record of

11 the ex parte meeting shall be included in the record

12 of the proceeding.

13 ‘‘(3) SUMMARIES; NON-PROPRIETARY SUBMIS14 SIONS.—The administering authority and the Com15 mission shall disclose—

16 ‘‘(A) any proprietary information received

17 in the course of a proceeding under this title if

18 it is disclosed in a form which cannot be associ19 ated with, or otherwise be used to identify, op20 erations of a particular person, and

21 ‘‘(B) any information submitted in connec22 tion with a proceeding which is not designated

23 as proprietary by the person submitting it.

24 ‘‘(4) MAINTENANCE OF PUBLIC RECORD.—The

25 administering authority and the Commission shall
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1 maintain and make available for public inspection

2 and copying a record of all information which is ob3 tained by the administering authority or the Com4 mission, as the case may be, in a proceeding under

5 this title to the extent that public disclosure of the

6 information is not prohibited under this chapter or

7 exempt from disclosure under section 552 of title 5,

8 United States Code.

9 ‘‘(b) PROPRIETARY INFORMATION.—

10 ‘‘(1) PROPRIETARY STATUS MAINTAINED.—

11 ‘‘(A) IN GENERAL.—Except as provided in

12 subsection (a)(4) and subsection (c), informa13 tion submitted to the administering authority or

14 the Commission which is designated as propri15 etary by the person submitting the information

16 shall not be disclosed to any person without the

17 consent of the person submitting the informa18 tion, other than—

19 ‘‘(i) to an officer or employee of the

20 administering authority or the Commission

21 who is directly concerned with carrying out

22 the investigation in connection with which

23 the information is submitted or any other

24 proceeding under this title covering the

25 same subject vessel, or
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1 ‘‘(ii) to an officer or employee of the

2 United States Customs Service who is di3 rectly involved in conducting an investiga4 tion regarding fraud under this title.

5 ‘‘(B) ADDITIONAL REQUIREMENTS.—The

6 administering authority and the Commission

7 shall require that information for which propri8 etary treatment is requested be accompanied

9 by—

10 ‘‘(i) either—

11 ‘‘(I) a nonproprietary summary

12 in sufficient detail to permit a reason13 able understanding of the substance

14 of the information submitted in con15 fidence, or

16 ‘‘(II) a statement that the infor17 mation is not susceptible to summary,

18 accompanied by a statement of the

19 reasons in support of the contention,

20 and

21 ‘‘(ii) either—

22 ‘‘(I) a statement which permits

23 the administering authority or the

24 Commission to release under adminis25 trative protective order, in accordance
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1 with subsection (c), the information

2 submitted in confidence, or

3 ‘‘(II) a statement to the admin4 istering authority or the Commission

5 that the business proprietary informa6 tion is of a type that should not be re7 leased under administrative protective

8 order.

9 ‘‘(2) UNWARRANTED DESIGNATION.—If the ad10 ministering authority or the Commission determines,

11 on the basis of the nature and extent of the informa12 tion or its availability from public sources, that des13 ignation of any information as proprietary is unwar14 ranted, then it shall notify the person who submitted

15 it and ask for an explanation of the reasons for the

16 designation. Unless that person persuades the ad17 ministering authority or the Commission that the

18 designation is warranted, or withdraws the designa19 tion, the administering authority or the Commission,

20 as the case may be, shall return it to the party sub21 mitting it. In a case in which the administering au22 thority or the Commission returns the information

23 to the person submitting it, the person may there24 after submit other material concerning the subject

25 matter of the returned information if the submission
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1 is made within the time otherwise provided for sub2 mitting such material.

3 ‘‘(c) LIMITED DISCLOSURE OF CERTAIN PROPRI4 ETARY INFORMATION UNDER PROTECTIVE ORDER.—

5 ‘‘(1) DISCLOSURE BY ADMINISTERING AUTHOR6 ITY OR COMMISSION.—

7 ‘‘(A) IN GENERAL.—Upon receipt of an

8 application (before or after receipt of the infor9 mation requested) which describes in general

10 terms the information requested and sets forth

11 the reasons for the request, the administering

12 authority or the Commission shall make all

13 business proprietary information presented to,

14 or obtained by it, during a proceeding under

15 this title (except privileged information, classi16 fied information, and specific information of a

17 type for which there is a clear and compelling

18 need to withhold from disclosure) available to

19 all interested parties who are parties to the pro20 ceeding under a protective order described in

21 subparagraph (B), regardless of when the infor22 mation is submitted during the proceeding.

23 Customer names (other than the name of the

24 United States buyer of the subject vessel) ob25 tained during any investigation which requires
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1 a determination under section 805(b) may not

2 be disclosed by the administering authority

3 under protective order until either an order is

4 published under section 806(a) as a result of

5 the investigation or the investigation is sus6 pended or terminated. The Commission may

7 delay disclosure of customer names (other than

8 the name of the United States buyer of the sub9 ject vessel) under protective order during any

10 such investigation until a reasonable time be11 fore any hearing provided under section 841 is

12 held.

13 ‘‘(B) PROTECTIVE ORDER.—The protective

14 order under which information is made avail15 able shall contain such requirements as the ad16 ministering authority or the Commission may

17 determine by regulation to be appropriate. The

18 administering authority and the Commission

19 shall provide by regulation for such sanctions as

20 the administering authority and the Commis21 sion determine to be appropriate, including dis22 barment from practice before the agency.

23 ‘‘(C) TIME LIMITATIONS ON DETERMINA24 TIONS.—The administering authority or the

25 Commission, as the case may be, shall deter-
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1 mine whether to make information available

2 under this paragraph—

3 ‘‘(i) not later than 14 days (7 days if

4 the submission pertains to a proceeding

5 under section 803(a)) after the date on

6 which the information is submitted, or

7 ‘‘(ii) if—

8 ‘‘(I) the person submitting the

9 information raises objection to its re10 lease, or

11 ‘‘(II) the information is unusu12 ally voluminous or complex,

13 not later than 30 days (10 days if the sub14 mission pertains to a proceeding under sec15 tion 803(a)) after the date on which the

16 information is submitted.

17 ‘‘(D) AVAILABILITY AFTER DETERMINA18 TION.—If the determination under subpara19 graph (C) is affirmative, then—

20 ‘‘(i) the business proprietary informa21 tion submitted to the administering au22 thority or the Commission on or before the

23 date of the determination shall be made

24 available, subject to the terms and condi-
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1 tions of the protective order, on such date,

2 and

3 ‘‘(ii) the business proprietary informa4 tion submitted to the administering au5 thority or the Commission after the date of

6 the determination shall be served as re7 quired by subsection (d).

8 ‘‘(E) FAILURE TO DISCLOSE.—If a person

9 submitting information to the administering au10 thority refuses to disclose business proprietary

11 information which the administering authority

12 determines should be released under a protec13 tive order described in subparagraph (B), the

14 administering authority shall return the infor15 mation, and any nonconfidential summary

16 thereof, to the person submitting the informa17 tion and summary and shall not consider either.

18 ‘‘(2) DISCLOSURE UNDER COURT ORDER.—If

19 the administering authority or the Commission de20 nies a request for information under paragraph (1),

21 then application may be made to the United States

22 Court of International Trade for an order directing

23 the administering authority or the Commission, as

24 the case may be, to make the information available.

25 After notification of all parties to the investigation
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1 and after an opportunity for a hearing on the

2 record, the court may issue an order, under such

3 conditions as the court deems appropriate, which

4 shall not have the effect of stopping or suspending

5 the investigation, directing the administering author6 ity or the Commission to make all or a portion of

7 the requested information described in the preceding

8 sentence available under a protective order and set9 ting forth sanctions for violation of such order if the

10 court finds that, under the standards applicable in

11 proceedings of the court, such an order is warranted,

12 and that—

13 ‘‘(A) the administering authority or the

14 Commission has denied access to the informa15 tion under subsection (b)(1),

16 ‘‘(B) the person on whose behalf the infor17 mation is requested is an interested party who

18 is a party to the investigation in connection

19 with which the information was obtained or de20 veloped, and

21 ‘‘(C) the party which submitted the infor22 mation to which the request relates has been

23 notified, in advance of the hearing, of the re24 quest made under this section and of its right

25 to appear and be heard.
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1 ‘‘(d) SERVICE.—Any party submitting written infor2 mation, including business proprietary information, to the

3 administering authority or the Commission during a pro4 ceeding shall, at the same time, serve the information

5 upon all interested parties who are parties to the proceed6 ing, if the information is covered by a protective order.

7 The administering authority or the Commission shall not

8 accept any such information that is not accompanied by

9 a certificate of service and a copy of the protective order

10 version of the document containing the information. Busi11 ness proprietary information shall only be served upon in12 terested parties who are parties to the proceeding that are

13 subject to protective order, except that a nonconfidential

14 summary thereof shall be served upon all other interested

15 parties who are parties to the proceeding.

16 ‘‘(e) INFORMATION RELATING TO VIOLATIONS OF

17 PROTECTIVE ORDERS AND SANCTIONS.—The administer18 ing authority and the Commission may withhold from dis19 closure any correspondence, private letters of reprimand,

20 settlement agreements, and documents and files compiled

21 in relation to investigations and actions involving a viola22 tion or possible violation of a protective order issued under

23 subsection (c), and such information shall be treated as

24 information described in section 552(b)(3) of title 5, Unit25 ed States Code.
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1 ‘‘(f) OPPORTUNITY FOR COMMENT BY VESSEL BUY2 ERS.—The administering authority and the Commission

3 shall provide an opportunity for buyers of subject vessels

4 to submit relevant information to the administering au5 thority concerning a sale at less than fair value or counter6 measures, and to the Commission concerning material in7 jury by reason of the sale of a vessel at less than fair

8 value.

9 ‘‘(g) PUBLICATION OF DETERMINATIONS; REQUIRE10 MENTS FOR FINAL DETERMINATIONS.—

11 ‘‘(1) IN GENERAL.—Whenever the administer12 ing authority makes a determination under section

13 802 whether to initiate an investigation, or the ad14 ministering authority or the Commission makes a

15 preliminary determination under section 803, a final

16 determination under section 805, a determination

17 under subsection (b), (c), (d), (e)(3)(B)(ii), (g), or

18 (i) of section 807, or a determination to suspend an

19 investigation under this title, the administering au20 thority or the Commission, as the case may be, shall

21 publish the facts and conclusions supporting that de22 termination, and shall publish notice of that deter23 mination in the Federal Register.

24 ‘‘(2) CONTENTS OF NOTICE OR DETERMINA25 TION.—The notice or determination published under
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1 paragraph (1) shall include, to the extent applica2 ble—

3 ‘‘(A) in the case of a determination of the

4 administering authority—

5 ‘‘(i) the names of the foreign producer

6 and the country of origin of the subject

7 vessel,

8 ‘‘(ii) a description sufficient to iden9 tify the subject vessel,

10 ‘‘(iii) with respect to an injurious pric11 ing charge, the injurious pricing margin

12 established and a full explanation of the

13 methodology used in establishing such

14 margin,

15 ‘‘(iv) with respect to countermeasures,

16 the scope and duration of countermeasures

17 and, if applicable, any changes thereto,

18 and

19 ‘‘(v) the primary reasons for the de20 termination, and

21 ‘‘(B) in the case of a determination of the

22 Commission—

23 ‘‘(i) considerations relevant to the de24 termination of injury, and
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1 ‘‘(ii) the primary reasons for the de2 termination.

3 ‘‘(3) ADDITIONAL REQUIREMENTS FOR FINAL

4 DETERMINATIONS.—In addition to the requirements

5 set forth in paragraph (2)—

6 ‘‘(A) the administering authority shall in7 clude in a final determination under section 805

8 or 807(c) an explanation of the basis for its de9 termination that addresses relevant arguments,

10 made by interested parties who are parties to

11 the investigation, concerning the establishment

12 of the injurious pricing charge with respect to

13 which the determination is made, and

14 ‘‘(B) the Commission shall include in a

15 final determination of injury an explanation of

16 the basis for its determination that addresses

17 relevant arguments that are made by interested

18 parties who are parties to the investigation con19 cerning the effects and impact on the industry

20 of the sale of the subject vessel.

21 ‘‘SEC. 844. CONDUCT OF INVESTIGATIONS.

22 ‘‘(a) CERTIFICATION OF SUBMISSIONS.—Any person

23 providing factual information to the administering author24 ity or the Commission in connection with a proceeding

25 under this title on behalf of the petitioner or any other
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1 interested party shall certify that such information is ac2 curate and complete to the best of that person’s knowl3 edge.

4 ‘‘(b) DIFFICULTIES IN MEETING REQUIREMENTS.—

5 ‘‘(1) NOTIFICATION BY INTERESTED PARTY.—

6 If an interested party, promptly after receiving a re7 quest from the administering authority or the Com8 mission for information, notifies the administering

9 authority or the Commission (as the case may be)

10 that such party is unable to submit the information

11 requested in the requested form and manner, to12 gether with a full explanation and suggested alter13 native forms in which such party is able to submit

14 the information, the administering authority or the

15 Commission (as the case may be) shall consider the

16 ability of the interested party to submit the informa17 tion in the requested form and manner and may

18 modify such requirements to the extent necessary to

19 avoid imposing an unreasonable burden on that

20 party.

21 ‘‘(2) ASSISTANCE TO INTERESTED PARTIES.—

22 The administering authority and the Commission

23 shall take into account any difficulties experienced

24 by interested parties, particularly small companies,

25 in supplying information requested by the admin-
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1 istering authority or the Commission in connection

2 with investigations under this title, and shall provide

3 to such interested parties any assistance that is

4 practicable in supplying such information.

5 ‘‘(c) DEFICIENT SUBMISSIONS.—If the administering

6 authority or the Commission determines that a response

7 to a request for information under this title does not com8 ply with the request, the administering authority or the

9 Commission (as the case may be) shall promptly inform

10 the person submitting the response of the nature of the

11 deficiency and shall, to the extent practicable, provide that

12 person with an opportunity to remedy or explain the defi13 ciency in light of the time limits established for the com14 pletion of investigations or reviews under this title. If that

15 person submits further information in response to such

16 deficiency and either—

17 ‘‘(1) the administering authority or the Com18 mission (as the case may be) finds that such re19 sponse is not satisfactory, or

20 ‘‘(2) such response is not submitted within the

21 applicable time limits,

22 then the administering authority or the Commission (as

23 the case may be) may, subject to subsection (d), disregard

24 all or part of the original and subsequent responses.
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1 ‘‘(d) USE OF CERTAIN INFORMATION.—In reaching

2 a determination under section 803, 805, or 807, the ad3 ministering authority and the Commission shall not de4 cline to consider information that is submitted by an inter5 ested party and is necessary to the determination but does

6 not meet all the applicable requirements established by the

7 administering authority or the Commission if—

8 ‘‘(1) the information is submitted by the dead9 line established for its submission,

10 ‘‘(2) the information can be verified,

11 ‘‘(3) the information is not so incomplete that

12 it cannot serve as a reliable basis for reaching the

13 applicable determination,

14 ‘‘(4) the interested party has demonstrated that

15 it acted to the best of its ability in providing the in16 formation and meeting the requirements established

17 by the administering authority or the Commission

18 with respect to the information, and

19 ‘‘(5) the information can be used without undue

20 difficulties.

21 ‘‘(e) NONACCEPTANCE OF SUBMISSIONS.—If the ad22 ministering authority or the Commission declines to accept

23 into the record any information submitted in an investiga24 tion under this title, it shall, to the extent practicable, pro25 vide to the person submitting the information a written
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1 explanation of the reasons for not accepting the informa2 tion.

3 ‘‘(f) PUBLIC COMMENT ON INFORMATION.—Informa4 tion that is submitted on a timely basis to the administer5 ing authority or the Commission during the course of a

6 proceeding under this title shall be subject to comment

7 by other parties within such reasonable time as the admin8 istering authority or the Commission shall provide. The

9 administering authority and the Commission, before mak10 ing a final determination under section 805 or 807, shall

11 cease collecting information and shall provide the parties

12 with a final opportunity to comment on the information

13 obtained by the administering authority or the Commis14 sion (as the case may be) upon which the parties have

15 not previously had an opportunity to comment. Comments

16 containing new factual information shall be disregarded.

17 ‘‘(g) VERIFICATION.—The administering authority

18 shall verify all information relied upon in making a final

19 determination under section 805.

20 ‘‘SEC. 845. ADMINISTRATIVE ACTION FOLLOWING SHIP21 BUILDING AGREEMENT PANEL REPORTS.

22 ‘‘(a) ACTION BY UNITED STATES INTERNATIONAL

23 TRADE COMMISSION.—

24 ‘‘(1) ADVISORY REPORT.—If a dispute settle25 ment panel under the Shipbuilding Agreement finds
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1 in a report that an action by the Commission in con2 nection with a particular proceeding under this title

3 is not in conformity with the obligations of the Unit4 ed States under the Shipbuilding Agreement, the

5 Trade Representative may request the Commission

6 to issue an advisory report on whether this title per7 mits the Commission to take steps in connection

8 with the particular proceeding that would render its

9 action not inconsistent with the findings of the panel

10 concerning those obligations. The Trade Representa11 tive shall notify the Committee on Ways and Means

12 of the House of Representatives and the Committee

13 on Finance of the Senate of such request.

14 ‘‘(2) TIME LIMITS FOR REPORT.—The Commis15 sion shall transmit its report under paragraph (1) to

16 the Trade Representative within 30 calendar days

17 after the Trade Representative requests the report.

18 ‘‘(3) CONSULTATIONS ON REQUEST FOR COM19 MISSION DETERMINATION.—If a majority of the

20 Commissioners issues an affirmative report under

21 paragraph (1), the Trade Representatives shall con22 sult with the congressional committees listed in

23 paragraph (1) concerning the matter.

24 ‘‘(4) COMMISSION DETERMINATION.—Notwith25 standing any other provision of this title, if a major-
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1 ity of the Commissioners issues an affirmative report

2 under paragraph (1), the Commission, upon the

3 written request of the Trade Representative, shall

4 issue a determination in connection with the particu5 lar proceeding that would render the Commission’s

6 action described in paragraph (1) not inconsistent

7 with the findings of the panel. The Commission shall

8 issue its determination not later than 120 calendar

9 days after the request from the Trade Representa10 tive is made.

11 ‘‘(5) CONSULTATIONS ON IMPLEMENTATION OF

12 COMMISSION DETERMINATION.—The Trade Rep13 resentative shall consult with the congressional com14 mittees listed in paragraph (1) before the Commis15 sion’s determination under paragraph (4) is imple16 mented.

17 ‘‘(6) REVOCATION OF ORDER.—If, by virtue of

18 the Commission’s determination under paragraph

19 (4), an injurious pricing order is no longer sup20 ported by an affirmative Commission determination

21 under this title, the Trade Representative may, after

22 consulting with the congressional committees under

23 paragraph (5), direct the administering authority to

24 revoke the injurious pricing order.

25 ‘‘(b) ACTION BY ADMINISTERING AUTHORITY.—
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1 ‘‘(1) CONSULTATIONS WITH ADMINISTERING

2 AUTHORITY AND CONGRESSIONAL COMMITTEES.—

3 Promptly after a report or other determination by a

4 dispute settlement panel under the Shipbuilding

5 Agreement is issued that contains findings that—

6 ‘‘(A) an action by the administering au7 thority in a proceeding under this title is not in

8 conformity with the obligations of the United

9 States under the Shipbuilding Agreement,

10 ‘‘(B) the due date for payment of an inju11 rious pricing charge contained in an order is12 sued under section 806 should be amended,

13 ‘‘(C) countermeasures provided for in an

14 order issued under section 807 should be provi15 sionally suspended or reduced pending the final

16 decision of the panel, or

17 ‘‘(D) the scope or duration of counter18 measures imposed under section 807 should be

19 narrowed or shortened,

20 the Trade Representative shall consult with the ad21 ministering authority and the congressional commit22 tees listed in subsection (a)(1) on the matter.

23 ‘‘(2) DETERMINATION BY ADMINISTERING AU24 THORITY.—Notwithstanding any other provision of

25 this title, the administering authority shall, in re-
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1 sponse to a written request from the Trade Rep2 resentative, issue a determination, or an amendment

3 to or suspension of an injurious pricing or counter4 measure order, as the case may be, in connection

5 with the particular proceeding that would render the

6 administering authority’s action described in para7 graph (1) not inconsistent with the findings of the

8 panel.

9 ‘‘(3) TIME LIMITS FOR DETERMINATIONS.—The

10 administering authority shall issue its determination,

11 amendment, or suspension under paragraph (2)—

12 ‘‘(A) with respect to a matter described in

13 subparagraph (A) of paragraph (1), within 180

14 calendar days after the request from the Trade

15 Representative is made, and

16 ‘‘(B) with respect to a matter described in

17 subparagraph (B), (C), or (D) of paragraph

18 (1), within 15 calendar days after the request

19 from the Trade Representative is made.

20 ‘‘(4) CONSULTATIONS BEFORE IMPLEMENTA21 TION.—Before the administering authority imple22 ments any determination, amendment, or suspension

23 under paragraph (2), the Trade Representative shall

24 consult with the administering authority and the

25 congressional committees listed in subsection (a)(1)
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1 with respect to such determination, amendment, or

2 suspension.

3 ‘‘(5) IMPLEMENTATION OF DETERMINATION.—

4 The Trade Representative may, after consulting with

5 the administering authority and the congressional

6 committees under paragraph (4), direct the admin7 istering authority to implement, in whole or in part,

8 the determination, amendment, or suspension made

9 under paragraph (2).

10 ‘‘(6) IMPLEMENTATION OF DETERMINATION;

11 NOTICE OF IMPLEMENTATION.—The administering

12 authority shall implement the determination, amend13 ment, or suspension under paragraph (2)—

14 ‘‘(A) with respect to a matter described in

15 subparagraph (A) of paragraph (1), only if the

16 injurious pricing margin determined under

17 paragraph (2) differs from the injurious pricing

18 margin in the determination reviewed by the

19 panel, and

20 ‘‘(B) with respect to a matter described in

21 subparagraph (B), (C), or (D) of paragraph

22 (1), upon issuance of the determination, amend23 ment, or suspension under paragraph (2).

24 The administering authority shall publish notice of

25 such implementation in the Federal Register.
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1 ‘‘(c) OPPORTUNITY FOR COMMENT BY INTERESTED

2 PARTIES.—Before issuing a determination, amendment,

3 or suspension, the administering authority, in a matter de4 scribed in subsection (b)(1)(A), or the Commission, in a

5 matter described in subsection (a)(1), as the case may be,

6 shall provide interested parties with an opportunity to sub7 mit written comments and, in appropriate cases, may hold

8 a hearing, with respect to the determination.

9 ‘‘Subtitle D—Definitions

10 ‘‘SEC. 861. DEFINITIONS.

11 ‘‘For purposes of this title:

12 ‘‘(1) ADMINISTERING AUTHORITY.—The term

13 ‘administering authority’ means the Secretary of

14 Commerce, or any other officer of the United States

15 to whom the responsibility for carrying out the du16 ties of the administering authority under this title

17 are transferred by law.

18 ‘‘(2) COMMISSION.—The term ‘Commission’

19 means the United States International Trade Com20 mission.

21 ‘‘(3) COUNTRY.—The term ‘country’ means a

22 foreign country, a political subdivision, dependent

23 territory, or possession of a foreign country and, ex24 cept as provided in paragraph (16)(E)(iii), may not

25 include an association of 2 or more foreign coun-
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1 tries, political subdivisions, dependent territories, or

2 possessions of countries into a customs union out3 side the United States.

4 ‘‘(4) INDUSTRY.—

5 ‘‘(A) IN GENERAL.—Except as used in sec6 tion 808, the term ‘industry’ means the produc7 ers as a whole of a domestic like vessel, or those

8 producers whose collective capability to produce

9 a domestic like vessel constitutes a major pro10 portion of the total domestic capability to

11 produce a domestic like vessel.

12 ‘‘(B) PRODUCER.—A ‘producer’ of a do13 mestic like vessel includes an entity that is pro14 ducing the domestic like vessel and an entity

15 with the capability to produce the domestic like

16 vessel.

17 ‘‘(C) CAPABILITY TO PRODUCE A DOMES18 TIC LIKE VESSEL.—A producer has the ‘capa19 bility to produce a domestic like vessel’ if it is

20 capable of producing a domestic like vessel with

21 its present facilities or could adapt its facilities

22 in a timely manner to produce a domestic like

23 vessel.

24 ‘‘(D) RELATED PARTIES.—(i) In an inves25 tigation under this title, if a producer of a do-
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1 mestic like vessel and the foreign producer, sell2 er (other than the foreign producer), or United

3 States buyer of the subject vessel are related

4 parties, or if a producer of a domestic like ves5 sel is also a United States buyer of the subject

6 vessel, the domestic producer may, in appro7 priate circumstances, be excluded from the in8 dustry.

9 ‘‘(ii) For purposes of clause (i), a domestic

10 producer and the foreign producer, seller, or

11 United States buyer shall be considered to be

12 related parties, if—

13 ‘‘(I) the domestic producer directly or

14 indirectly controls the foreign producer,

15 seller or United States buyer,

16 ‘‘(II) the foreign producer, seller, or

17 United States buyer directly or indirectly

18 controls the domestic producer,

19 ‘‘(III) a third party directly or indi20 rectly controls the domestic producer and

21 the foreign producer, seller, or United

22 States buyer, or

23 ‘‘(IV) the domestic producer and the

24 foreign producer, seller, or United States

25 buyer directly or indirectly control a third
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1 party and there is reason to believe that

2 the relationship causes the producer to act

3 differently than a nonrelated producer.

4 For purposes of this subparagraph, a party

5 shall be considered to directly or indirectly con6 trol another party if the party is legally or oper7 ationally in a position to exercise restraint or

8 direction over the other party.

9 ‘‘(E) PRODUCT LINES.—In an investiga10 tion under this title, the effect of the sale of the

11 subject vessel shall be assessed in relation to

12 the United States production (or production ca13 pability) of a domestic like vessel if available

14 data permit the separate identification of pro15 duction (or production capability) in terms of

16 such criteria as the production process or the

17 producer’s profits. If the domestic production

18 (or production capability) of a domestic like

19 vessel has no separate identity in terms of such

20 criteria, then the effect of the sale shall be as21 sessed by the examination of the production (or

22 production capability) of the narrowest group or

23 range of vessels, which includes a domestic like

24 vessel, for which the necessary information can

25 be provided.
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1 ‘‘(5) BUYER.—The term ‘buyer’ means any per2 son who acquires an ownership interest in a vessel,

3 including by way of lease or long-term bareboat

4 charter, in conjunction with the original transfer

5 from the producer, either directly or indirectly, in6 cluding an individual or company which owns or con7 trols a buyer. There may be more than one buyer of

8 any one vessel.

9 ‘‘(6) UNITED STATES BUYER.—The term ‘Unit10 ed States buyer’ means a buyer that is any of the

11 following:

12 ‘‘(A) A United States citizen.

13 ‘‘(B) A juridical entity, including any cor14 poration, company, association, or other organi15 zation, that is legally constituted under the laws

16 and regulations of the United States or a politi17 cal subdivision thereof, regardless of whether

18 the entity is organized for pecuniary gain, pri19 vately or government owned, or organized with

20 limited or unlimited liability.

21 ‘‘(C) A juridical entity that is owned or

22 controlled by nationals or entities described in

23 subparagraphs (A) and (B). For the purposes

24 of this subparagraph—
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1 ‘‘(i) the term ‘own’ means having

2 more than a 50 percent interest, and

3 ‘‘(ii) the term ‘control’ means the ac4 tual ability to have substantial influence on

5 corporate behavior, and control is pre6 sumed to exist where there is at least a 25

7 percent interest.

8 If ownership of a company is established under

9 clause (i), other control is presumed not to exist

10 unless it is otherwise established.

11 ‘‘(7) OWNERSHIP INTEREST.—An ‘ownership

12 interest’ in a vessel includes any contractual or pro13 prietary interest which allows the beneficiary or

14 beneficiaries of such interest to take advantage of

15 the operation of the vessel in a manner substantially

16 comparable to the way in which an owner may bene17 fit from the operation of the vessel. In determining

18 whether such substantial comparability exists, the

19 administering authority shall consider—

20 ‘‘(A) the terms and circumstances of the

21 transaction which conveys the interest,

22 ‘‘(B) commercial practice,

23 ‘‘(C) whether the vessel subject to the

24 transaction is integrated into the operations of

25 the beneficiary or beneficiaries, and
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1 ‘‘(D) whether in practice there is a likeli2 hood that the beneficiary or beneficiaries of

3 such interests will take advantage of and the

4 risk for the operation of the vessel for a signifi5 cant part of the life-time of the vessel.

6 ‘‘(8) VESSEL.—

7 ‘‘(A) IN GENERAL.—Except as otherwise

8 specifically provided under international agree9 ments, the term ‘vessel’ means—

10 ‘‘(i) a self-propelled seagoing vessel of

11 100 gross tons or more used for transpor12 tation of goods or persons or for perform13 ance of a specialized service (including, but

14 not limited to, ice breakers and dredgers),

15 and

16 ‘‘(ii) a tug of 365 kilowatts or more,

17 that is produced in a Shipbuilding Agreement

18 Party or a country that is not a Shipbuilding

19 Agreement Party and not a WTO member.

20 ‘‘(B) EXCLUSIONS.—The term ‘vessel’ does

21 not include—

22 ‘‘(i) any fishing vessel destined for the

23 fishing fleet of the country in which the

24 vessel is built,

25 ‘‘(ii) any military vessel,
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1 ‘‘(iii) a military reserve vessel, and

2 ‘‘(iv) any vessel sold before the date

3 that the Shipbuilding Agreement enters

4 into force with respect to the United

5 States, except that any vessel sold after

6 December 21, 1994, for delivery more than

7 5 years after the date of the contract of

8 sale shall be a ‘vessel’ for purposes of this

9 title unless the shipbuilder demonstrates to

10 the administering authority that the ex11 tended delivery date was for normal com12 mercial reasons and not to avoid applica13 bility of this title.

14 ‘‘(C) SELF-PROPELLED SEAGOING VES15 SEL.—A vessel is ‘self-propelled seagoing’ if its

16 permanent propulsion and steering provide it all

17 the characteristics of self-navigability in the

18 high seas.

19 ‘‘(D) MILITARY VESSEL.—A ‘military ves20 sel’ is a vessel which, according to its basic

21 structural characteristics and ability, is in22 tended to be used exclusively for military pur23 poses.

24 ‘‘(E) MILITARY RESERVE VESSEL.—A

25 ‘military reserve vessel’ is a vessel that has been
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1 constructed with national defense features and

2 characteristics required by the Secretary of De3 fense for the purpose of supporting the United

4 States Armed Forces in a contingency.

5 ‘‘(9) LIKE VESSEL.—The term ‘like vessel’

6 means a vessel of the same type, same purpose, and

7 approximate size as the subject vessel and possessing

8 characteristics closely resembling those of the sub9 ject vessel.

10 ‘‘(10) DOMESTIC LIKE VESSEL.—The term ‘do11 mestic like vessel’ means a like vessel produced in

12 the United States.

13 ‘‘(11) FOREIGN LIKE VESSEL.—Except as used

14 in section 822(e)(1)(B)(ii)(II), the term ‘foreign like

15 vessel’ means a like vessel produced by the foreign

16 producer of the subject vessel for sale in the produc17 er’s domestic market or in a third country.

18 ‘‘(12) SAME GENERAL CATEGORY OF VESSEL.—

19 The term ‘same general category of vessel’ means a

20 vessel of the same type and purpose as the subject

21 vessel, but of a significantly different size.

22 ‘‘(13) SUBJECT VESSEL.—The term ‘subject

23 vessel’ means a vessel subject to investigation under

24 section 801, 808, or 809.
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1 ‘‘(14) FOREIGN PRODUCER.—The term ‘foreign

2 producer’ means the producer or producers of the

3 subject vessel.

4 ‘‘(15) EXPORTING COUNTRY.—The term ‘ex5 porting country’ means the country in which the

6 subject vessel was built.

7 ‘‘(16) MATERIAL INJURY.—

8 ‘‘(A) IN GENERAL.—The term ‘material in9 jury’ means harm which is not inconsequential,

10 immaterial, or unimportant.

11 ‘‘(B) SALE AND CONSEQUENT IMPACT.—In

12 making determinations under sections 803(a)

13 and 805(b), the Commission in each case—

14 ‘‘(i) shall consider—

15 ‘‘(I) the sale of the subject vessel,

16 ‘‘(II) the effect of the sale of the

17 subject vessel on prices in the United

18 States for a domestic like vessel, and

19 ‘‘(III) the impact of the sale of

20 the subject vessel on domestic produc21 ers of the domestic like vessel, but

22 only in the context of production oper23 ations within the United States, and

24 ‘‘(ii) may consider such other eco25 nomic factors as are relevant to the deter-
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1 mination regarding whether there is or has

2 been material injury by reason of the sale

3 of the subject vessel.

4 In the notification required under section

5 805(d), the Commission shall explain its analy6 sis of each factor considered under clause (i),

7 and identify each factor considered under clause

8 (ii) and explain in full its relevance to the deter9 mination.

10 ‘‘(C) EVALUATION OF RELEVANT FAC11 TORS.—For purposes of subparagraph (B)—

12 ‘‘(i) SALE OF THE SUBJECT VES13 SEL.—In evaluating the sale of the subject

14 vessel, the Commission shall consider

15 whether the sale, either in absolute terms

16 or relative to production or demand in the

17 United States, in terms of either volume or

18 value, is or has been significant.

19 ‘‘(ii) PRICE.—In evaluating the effect

20 of the sale of the subject vessel on prices,

21 the Commission shall consider whether—

22 ‘‘(I) there has been significant

23 price underselling of the subject vessel

24 as compared with the price of a do25 mestic like vessel, and
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1 ‘‘(II) the effect of the sale of the

2 subject vessel otherwise depresses or

3 has depressed prices to a significant

4 degree or prevents or has prevented

5 price increases, which otherwise would

6 have occurred, to a significant degree.

7 ‘‘(iii) IMPACT ON AFFECTED DOMES8 TIC INDUSTRY.—In examining the impact

9 required to be considered under subpara10 graph (B)(i)(III), the Commission shall

11 evaluate all relevant economic factors

12 which have a bearing on the state of the

13 industry in the United States, including,

14 but not limited to—

15 ‘‘(I) actual and potential decline

16 in output, sales, market share, profits,

17 productivity, return on investments,

18 and utilization of capacity,

19 ‘‘(II) factors affecting domestic

20 prices, including with regard to sales,

21 ‘‘(III) actual and potential nega22 tive effects on cash flow, employment,

23 wages, growth, ability to raise capital,

24 and investment,
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1 ‘‘(IV) actual and potential nega2 tive effects on the existing develop3 ment and production efforts of the do4 mestic industry, including efforts to

5 develop a derivative or more advanced

6 version of a domestic like vessel, and

7 ‘‘(V) the magnitude of the injuri8 ous pricing margin.

9 The Commission shall evaluate all relevant

10 economic factors described in this clause

11 within the context of the business cycle

12 and conditions of competition that are dis13 tinctive to the affected industry.

14 ‘‘(D) STANDARD FOR DETERMINATION.—

15 The presence or absence of any factor which the

16 Commission is required to evaluate under sub17 paragraph (C) shall not necessarily give decisive

18 guidance with respect to the determination by

19 the Commission of material injury.

20 ‘‘(E) THREAT OF MATERIAL INJURY.—

21 ‘‘(i) IN GENERAL.—In determining

22 whether an industry in the United States

23 is threatened with material injury by rea24 son of the sale of the subject vessel, the
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1 Commission shall consider, among other

2 relevant economic factors—

3 ‘‘(I) any existing unused produc4 tion capacity or imminent, substantial

5 increase in production capacity in the

6 exporting country indicating the likeli7 hood of substantially increased sales

8 of a foreign like vessel to United

9 States buyers, taking into account the

10 availability of other export markets to

11 absorb any additional exports,

12 ‘‘(II) whether the sale of a for13 eign like vessel or other factors indi14 cate the likelihood of significant addi15 tional sales to United States buyers,

16 ‘‘(III) whether sale of the subject

17 vessel or sale of a foreign like vessel

18 by the foreign producer are at prices

19 that are likely to have a significant

20 depressing or suppressing effect on

21 domestic prices, and are likely to in22 crease demand for further sales,

23 ‘‘(IV) the potential for product24 shifting if production facilities in the

25 exporting country, which can pres-
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1 ently be used to produce a foreign like

2 vessel or could be adapted in a timely

3 manner to produce a foreign like ves4 sel, are currently being used to

5 produce other types of vessels,

6 ‘‘(V) the actual and potential

7 negative effects on the existing devel8 opment and production efforts of the

9 domestic industry, including efforts to

10 develop a derivative or more advanced

11 version of a domestic like vessel, and

12 ‘‘(VI) any other demonstrable ad13 verse trends that indicate the prob14 ability that there is likely to be mate15 rial injury by reason of the sale of the

16 subject vessel.

17 ‘‘(ii) BASIS FOR DETERMINATION.—

18 The Commission shall consider the factors

19 set forth in clause (i) as a whole. The pres20 ence or absence of any factor which the

21 Commission is required to consider under

22 clause (i) shall not necessarily give decisive

23 guidance with respect to the determination.

24 Such a determination may not be made on
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1 the basis of mere conjecture or suppo2 sition.

3 ‘‘(iii) EFFECT OF INJURIOUS PRICING

4 IN THIRD-COUNTRY MARKETS.—

5 ‘‘(I) IN GENERAL.—The Commis6 sion shall consider whether injurious

7 pricing in the markets of foreign

8 countries (as evidenced by injurious

9 pricing findings or injurious pricing

10 remedies of other Shipbuilding Agree11 ment Parties, or antidumping deter12 minations of, or measures imposed by,

13 other countries, against a like vessel

14 produced by the producer under inves15 tigation) suggests a threat of material

16 injury to the domestic industry. In the

17 course of its investigation, the Com18 mission shall request information

19 from the foreign producer or United

20 States buyer concerning this issue.

21 ‘‘(II) EUROPEAN COMMU22 NITIES.—For purposes of this clause,

23 the European Communities as a whole

24 shall be treated as a single foreign

25 country.
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1 ‘‘(F) CUMULATION FOR DETERMINING MA2 TERIAL INJURY.—

3 ‘‘(i) IN GENERAL.—For purposes of

4 clauses (i) and (ii) of subparagraph (C),

5 and subject to clause (ii) of this subpara6 graph, the Commission shall cumulatively

7 assess the effects of sales of foreign like

8 vessels from all foreign producers with re9 spect to which—

10 ‘‘(I) petitions were filed under

11 section 802(b) on the same day,

12 ‘‘(II) investigations were initiated

13 under section 802(a) on the same day,

14 or

15 ‘‘(III) petitions were filed under

16 section 802(b) and investigations were

17 initiated under section 802(a) on the

18 same day,

19 if, with respect to such vessels, the foreign

20 producers compete with each other and

21 with producers of a domestic like vessel in

22 the United States market.

23 ‘‘(ii) EXCEPTIONS.—The Commission

24 shall not cumulatively assess the effects of

25 sales under clause (i)—
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1 ‘‘(I) with respect to which the ad2 ministering authority has made a pre3 liminary negative determination, un4 less the administering authority sub5 sequently made a final affirmative de6 termination with respect to those sales

7 before the Commission’s final deter8 mination is made, or

9 ‘‘(II) from any producer with re10 spect to which the investigation has

11 been terminated.

12 ‘‘(iii) RECORDS IN FINAL INVESTIGA13 TIONS.—In each final determination in

14 which it cumulatively assesses the effects

15 of sales under clause (i), the Commission

16 may make its determinations based on the

17 record compiled in the first investigation in

18 which it makes a final determination, ex19 cept that when the administering authority

20 issues its final determination in a subse21 quently completed investigation, the Com22 mission shall permit the parties in the sub23 sequent investigation to submit comments

24 concerning the significance of the admin25 istering authority’s final determination,
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1 and shall include such comments and the

2 administering authority’s final determina3 tion in the record for the subsequent inves4 tigation.

5 ‘‘(G) CUMULATION FOR DETERMINING

6 THREAT OF MATERIAL INJURY.—To the extent

7 practicable and subject to subparagraph (F)(ii),

8 for purposes of clause (i) (II) and (III) of sub9 paragraph (E), the Commission may cumula10 tively assess the effects of sales of like vessels

11 from all countries with respect to which—

12 ‘‘(i) petitions were filed under section

13 802(b) on the same day,

14 ‘‘(ii) investigations were initiated

15 under section 802(a) on the same day, or

16 ‘‘(iii) petitions were filed under sec17 tion 802(b) and investigations were initi18 ated under section 802(a) on the same

19 day,

20 if, with respect to such vessels, the foreign pro21 ducers compete with each other and with pro22 ducers of a domestic like vessel in the United

23 States market.
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1 ‘‘(17) INTERESTED PARTY.—The term ‘inter2 ested party’ means, in a proceeding under this

3 title—

4 ‘‘(A)(i) the foreign producer, seller (other

5 than the foreign producer), and the United

6 States buyer of the subject vessel, or

7 ‘‘(ii) a trade or business association a ma8 jority of the members of which are the foreign

9 producer, seller, or United States buyer of the

10 subject vessel,

11 ‘‘(B) the government of the country in

12 which the subject vessel is produced or manu13 factured,

14 ‘‘(C) a producer that is a member of an in15 dustry,

16 ‘‘(D) a certified union or recognized union

17 or group of workers which is representative of

18 an industry,

19 ‘‘(E) a trade or business association a ma20 jority of whose members are producers in an in21 dustry,

22 ‘‘(F) an association, a majority of whose

23 members is composed of interested parties de24 scribed in subparagraph (C), (D), or (E), and
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1 ‘‘(G) for purposes of section 807, a pur2 chaser who, after the effective date of an order

3 issued under that section, entered into a con4 tract of sale with the foreign producer that is

5 subject to the order.

6 ‘‘(18) AFFIRMATIVE DETERMINATIONS BY DI7 VIDED COMMISSION.—If the Commissioners voting

8 on a determination by the Commission are evenly di9 vided as to whether the determination should be af10 firmative or negative, the Commission shall be

11 deemed to have made an affirmative determination.

12 For the purpose of applying this paragraph when

13 the issue before the Commission is to determine

14 whether there is or has been—

15 ‘‘(A) material injury to an industry in the

16 United States,

17 ‘‘(B) threat of material injury to such an

18 industry, or

19 ‘‘(C) material retardation of the establish20 ment of an industry in the United States,

21 by reason of the sale of the subject vessel, an affirm22 ative vote on any of the issues shall be treated as

23 a vote that the determination should be affirmative.

24 ‘‘(19) ORDINARY COURSE OF TRADE.—The

25 term ‘ordinary course of trade’ means the conditions
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1 and practices which, for a reasonable time before the

2 sale of the subject vessel, have been normal in the

3 shipbuilding industry with respect to a like vessel.

4 The administering authority shall consider the fol5 lowing sales and transactions, among others, to be

6 outside the ordinary course of trade:

7 ‘‘(A) Sales disregarded under section

8 822(b)(1).

9 ‘‘(B) Transactions disregarded under sec10 tion 822(f)(2).

11 ‘‘(20) NONMARKET ECONOMY COUNTRY.—

12 ‘‘(A) IN GENERAL.—The term ‘nonmarket

13 economy country’ means any foreign country

14 that the administering authority determines

15 does not operate on market principles of cost or

16 pricing structures, so that sales of vessels in

17 such country do not reflect the fair value of the

18 vessels.

19 ‘‘(B) FACTORS TO BE CONSIDERED.—In

20 making determinations under subparagraph (A)

21 the administering authority shall take into ac22 count—

23 ‘‘(i) the extent to which the currency

24 of the foreign country is convertible into

25 the currency of other countries,
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•HR 2754 EH

1 ‘‘(ii) the extent to which wage rates in

2 the foreign country are determined by free

3 bargaining between labor and manage4 ment,

5 ‘‘(iii) the extent to which joint ven6 tures or other investments by firms of

7 other foreign countries are permitted in

8 the foreign country,

9 ‘‘(iv) the extent of government owner10 ship or control of the means of production,

11 ‘‘(v) the extent of government control

12 over the allocation of resources and over

13 the price and output decisions of enter14 prises, and

15 ‘‘(vi) such other factors as the admin16 istering authority considers appropriate.

17 ‘‘(C) DETERMINATION IN EFFECT.—

18 ‘‘(i) Any determination that a foreign

19 country is a nonmarket economy country

20 shall remain in effect until revoked by the

21 administering authority.

22 ‘‘(ii) The administering authority may

23 make a determination under subparagraph

24 (A) with respect to any foreign country at

25 any time.
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•HR 2754 EH

1 ‘‘(D) DETERMINATIONS NOT IN ISSUE.—

2 Notwithstanding any other provision of law, any

3 determination made by the administering au4 thority under subparagraph (A) shall not be

5 subject to judicial review in any investigation

6 conducted under subtitle A.

7 ‘‘(21) SHIPBUILDING AGREEMENT.—The term

8 ‘Shipbuilding Agreement’ means The Agreement Re9 specting Normal Competitive Conditions in the Com10 mercial Shipbuilding and Repair Industry, resulting

11 from negotiations under the auspices of the Organi12 zation for Economic Cooperation and Development,

13 and entered into on December 21, 1994.

14 ‘‘(22) SHIPBUILDING AGREEMENT PARTY.—The

15 term ‘Shipbuilding Agreement Party’ means a state

16 or separate customs territory that is a Party to the

17 Shipbuilding Agreement, and with respect to which

18 the United States applies the Shipbuilding Agree19 ment.

20 ‘‘(23) WTO AGREEMENT.—The term ‘WTO

21 Agreement’ means the Agreement defined in section

22 2(9) of the Uruguay Round Agreements Act.

23 ‘‘(24) WTO MEMBER.—The term ‘WTO mem24 ber’ means a state, or separate customs territory

25 (within the meaning of Article XII of the WTO
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1 Agreement), with respect to which the United States

2 applies the WTO Agreement.

3 ‘‘(25) TRADE REPRESENTATIVE.—The term

4 ‘Trade Representative’ means the United States

5 Trade Representative.

6 ‘‘(26) AFFILIATED PERSONS.—The following

7 persons shall be considered to be ‘affiliated’ or ‘af8 filiated persons’:

9 ‘‘(A) Members of a family, including broth10 ers and sisters (whether by the whole or half

11 blood), spouse, ancestors, and lineal descend12 ants.

13 ‘‘(B) Any officer or director of an organi14 zation and such organization.

15 ‘‘(C) Partners.

16 ‘‘(D) Employer and employee.

17 ‘‘(E) Any person directly or indirectly own18 ing, controlling, or holding with power to vote,

19 5 percent or more of the outstanding voting

20 stock or shares of any organization, and such

21 organization.

22 ‘‘(F) Two or more persons directly or indi23 rectly controlling, controlled by, or under com24 mon control with, any person.
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1 ‘‘(G) Any person who controls any other

2 person, and such other person.

3 For purposes of this paragraph, a person shall be

4 considered to control another person if the person is

5 legally or operationally in a position to exercise re6 straint or direction over the other person.

7 ‘‘(27) INJURIOUS PRICING.—The term ‘injuri8 ous pricing’ refers to the sale of a vessel at less than

9 fair value.

10 ‘‘(28) INJURIOUS PRICING MARGIN.—

11 ‘‘(A) IN GENERAL.—The term ‘injurious

12 pricing margin’ means the amount by which the

13 normal value exceeds the export price of the

14 subject vessel.

15 ‘‘(B) MAGNITUDE OF THE INJURIOUS

16 PRICING MARGIN.—The magnitude of the inju17 rious pricing margin used by the Commission

18 shall be—

19 ‘‘(i) in making a preliminary deter20 mination under section 803(a) in an inves21 tigation (including any investigation in

22 which the Commission cumulatively as23 sesses the effect of sales under paragraph

24 (16)(F)(i)), the injurious pricing margin or

25 margins published by the administering
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1 authority in its notice of initiation of the

2 investigation; and

3 ‘‘(ii) in making a final determination

4 under section 805(b), the injurious pricing

5 margin or margins most recently published

6 by the administering authority before the

7 closing of the Commission’s administrative

8 record.

9 ‘‘(29) COMMERCIAL INTEREST REFERENCE

10 RATE.—The term ‘Commercial Interest Reference

11 Rate’ or ‘CIRR’ means an interest rate that the ad12 ministering authority determines to be consistent

13 with Annex III, and appendices and notes thereto, of

14 the Understanding on Export Credits for Ships, re15 sulting from negotiations under the auspices of the

16 Organization for Economic Cooperation, and entered

17 into on December 21, 1994.

18 ‘‘(30) ANTIDUMPING.—

19 ‘‘(A) WTO MEMBERS.—In the case of a

20 WTO member, the term ‘antidumping’ refers to

21 action taken pursuant to the Agreement on Im22 plementation of Article VI of the General

23 Agreement on Tariffs and Trade 1994.

24 ‘‘(B) OTHER CASES.—In the case of any

25 country that is not a WTO member, the term
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1 ‘antidumping’ refers to action taken by the

2 country against the sale of a vessel at less than

3 fair value that is comparable to action described

4 in subparagraph (A).

5 ‘‘(31) BROAD MULTIPLE BID.—The term ‘broad

6 multiple bid’ means a bid in which the proposed

7 buyer extends an invitation to at least all the pro8 ducers in the industry known by the buyer to be ca9 pable of building the subject vessel.’’.

10 SEC. 102. ENFORCEMENT OF COUNTERMEASURES.

11 Part II of title IV of the Tariff Act of 1930 is amend12 ed by adding at the end the following:

13 ‘‘SEC. 468. SHIPBUILDING AGREEMENT COUNTER14 MEASURES.

15 ‘‘(a) IN GENERAL.—Notwithstanding any other pro16 vision of law, upon receiving from the Secretary of Com17 merce a list of vessels subject to countermeasures under

18 section 807, the Customs Service shall deny any request

19 for a permit to lade or unlade passengers, merchandise,

20 or baggage from or onto those vessels so listed.

21 ‘‘(b) EXCEPTIONS.—Subsection (a) shall not be ap22 plied to deny a permit for the following:

23 ‘‘(1) To unlade any United States citizen or

24 permanent legal resident alien from a vessel included

25 in the list described in subsection (a), or to unlade
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1 any refugee or any alien who would otherwise be eli2 gible to apply for asylum and withholding of depor3 tation under the Immigration and Nationality Act.

4 ‘‘(2) To lade or unlade any crewmember of such

5 vessel.

6 ‘‘(3) To lade or unlade coal and other fuel sup7 plies (for the operation of the listed vessel), ships’

8 stores, sea stores, and the legitimate equipment of

9 such vessel.

10 ‘‘(4) To lade or unlade supplies for the use or

11 sale on such vessel.

12 ‘‘(5) To lade or unlade such other merchandise,

13 baggage, or passenger as the Customs Service shall

14 determine necessary to protect the immediate health,

15 safety, or welfare of a human being.

16 ‘‘(c) CORRECTION OF MINISTERIAL OR CLERICAL

17 ERRORS.—

18 ‘‘(1) PETITION FOR CORRECTION.—If the mas19 ter of any vessel whose application for a permit to

20 lade or unlade has been denied under this section be21 lieves that such denial resulted from a ministerial or

22 clerical error, not amounting to a mistake of law,

23 committed by any Customs officer, the master may

24 petition the Customs Service for correction of such

25 error, as provided by regulation.
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1 ‘‘(2) INAPPLICABILITY OF SECTIONS 514 AND

2 520.—Notwithstanding paragraph (1), imposition of

3 countermeasures under this section shall not be

4 deemed an exclusion or other protestable decision

5 under section 514, and shall not be subject to cor6 rection under section 520.

7 ‘‘(3) PETITIONS SEEKING ADMINISTRATIVE RE8 VIEW.—Any petition seeking administrative review

9 of any matter regarding the Secretary of Com10 merce’s decision to list a vessel under section 807

11 must be brought under that section.

12 ‘‘(d) PENALTIES.—In addition to any other provision

13 of law, the Customs Service may impose a civil penalty

14 of not to exceed $10,000 against the master of any ves15 sel—

16 ‘‘(1) who submits false information in request17 ing any permit to lade or unlade; or

18 ‘‘(2) who attempts to, or actually does, lade or

19 unlade in violation of any denial of such permit

20 under this section.’’.

21 SEC. 103. JUDICIAL REVIEW IN INJURIOUS PRICING AND

22 COUNTERMEASURE PROCEEDINGS.

23 (a) JUDICIAL REVIEW.—Part III of title IV of the

24 Tariff Act of 1930 is amended by inserting after section

25 516A the following:
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1 ‘‘SEC. 516B. JUDICIAL REVIEW IN INJURIOUS PRICING AND

2 COUNTERMEASURE PROCEEDINGS.

3 ‘‘(a) REVIEW OF DETERMINATION.—

4 ‘‘(1) IN GENERAL.—Within 30 days after the

5 date of publication in the Federal Register of—

6 ‘‘(A)(i) a determination by the administer7 ing authority under section 802(c) not to initi8 ate an investigation,

9 ‘‘(ii) a negative determination by the Com10 mission under section 803(a) as to whether

11 there is or has been reasonable indication of

12 material injury, threat of material injury, or

13 material retardation,

14 ‘‘(iii) a determination by the administering

15 authority to suspend or revoke an injurious

16 pricing order under section 806(d) or (e),

17 ‘‘(iv) a determination by the administering

18 authority under section 807(c),

19 ‘‘(v) a determination by the administering

20 authority in a review under section 807(d),

21 ‘‘(vi) a determination by the administering

22 authority concerning whether to extend the

23 scope or duration of a countermeasure order

24 under section 807(e)(3)(B)(ii),
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1 ‘‘(vii) a determination by the administering

2 authority to amend a countermeasure order

3 under section 807(e)(6),

4 ‘‘(viii) a determination by the administer5 ing authority in a review under section 807(g),

6 ‘‘(ix) a determination by the administering

7 authority under section 807(i) to terminate pro8 ceedings, or to amend or revoke a counter9 measure order,

10 ‘‘(x) a determination by the administering

11 authority under section 845(b), with respect to

12 a matter described in paragraph (1)(D) of that

13 section, or

14 ‘‘(B)(i) an injurious pricing order based on

15 a determination described in subparagraph (A)

16 of paragraph (2),

17 ‘‘(ii) notice of a determination described in

18 subparagraph (B) of paragraph (2),

19 ‘‘(iii) notice of implementation of a deter20 mination described in subparagraph (C) of

21 paragraph (2), or

22 ‘‘(iv) notice of revocation of an injurious

23 pricing order based on a determination de24 scribed in subparagraph (D) of paragraph (2),
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1 an interested party who is a party to the proceeding

2 in connection with which the matter arises may com3 mence an action in the United States Court of Inter4 national Trade by filing concurrently a summons

5 and complaint, each with the content and in the

6 form, manner, and style prescribed by the rules of

7 that court, contesting any factual findings or legal

8 conclusions upon which the determination is based.

9 ‘‘(2) REVIEWABLE DETERMINATIONS.—The de10 terminations referred to in paragraph (1)(B) are—

11 ‘‘(A) a final affirmative determination by

12 the administering authority or by the Commis13 sion under section 805, including any negative

14 part of such a determination (other than a part

15 referred to in subparagraph (B)),

16 ‘‘(B) a final negative determination by the

17 administering authority or the Commission

18 under section 805,

19 ‘‘(C) a determination by the administering

20 authority under section 845(b), with respect to

21 a matter described in paragraph (1)(A) of that

22 section, and

23 ‘‘(D) a determination by the Commission

24 under section 845(a) that results in the revoca25 tion of an injurious pricing order.
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1 ‘‘(3) EXCEPTION.—Notwithstanding the 30-day

2 limitation imposed by paragraph (1) with regard to

3 an order described in paragraph (1)(B)(i), a final af4 firmative determination by the administering author5 ity under section 805 may be contested by commenc6 ing an action, in accordance with the provisions of

7 paragraph (1), within 30 days after the date of pub8 lication in the Federal Register of a final negative

9 determination by the Commission under section 805.

10 ‘‘(4) PROCEDURES AND FEES.—The procedures

11 and fees set forth in chapter 169 of title 28, United

12 States Code, apply to an action under this section.

13 ‘‘(b) STANDARDS OF REVIEW.—

14 ‘‘(1) REMEDY.—The court shall hold unlawful

15 any determination, finding, or conclusion found—

16 ‘‘(A) in an action brought under subpara17 graph (A) of subsection (a)(1), to be arbitrary,

18 capricious, an abuse of discretion, or otherwise

19 not in accordance with law, or

20 ‘‘(B) in an action brought under subpara21 graph (B) of subsection (a)(1), to be unsup22 ported by substantial evidence on the record, or

23 otherwise not in accordance with law.

24 ‘‘(2) RECORD FOR REVIEW.—
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1 ‘‘(A) IN GENERAL.—For purposes of this

2 subsection, the record, unless otherwise stipu3 lated by the parties, shall consist of—

4 ‘‘(i) a copy of all information pre5 sented to or obtained by the administering

6 authority or the Commission during the

7 course of the administrative proceeding, in8 cluding all governmental memoranda per9 taining to the case and the record of ex

10 parte meetings required to be kept by sec11 tion 843(a)(2); and

12 ‘‘(ii) a copy of the determination, all

13 transcripts or records of conferences or

14 hearings, and all notices published in the

15 Federal Register.

16 ‘‘(B) CONFIDENTIAL OR PRIVILEGED MA17 TERIAL.—The confidential or privileged status

18 accorded to any documents, comments, or infor19 mation shall be preserved in any action under

20 this section. Notwithstanding the preceding sen21 tence, the court may examine, in camera, the

22 confidential or privileged material, and may dis23 close such material under such terms and con24 ditions as it may order.
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1 ‘‘(c) STANDING.—Any interested party who was a

2 party to the proceeding under title VIII shall have the

3 right to appear and be heard as a party in interest before

4 the United States Court of International Trade in an ac5 tion under this section. The party filing the action shall

6 notify all such interested parties of the filing of an action

7 under this section, in the form, manner, and within the

8 time prescribed by rules of the court.

9 ‘‘(d) DEFINITIONS.—For purposes of this section:

10 ‘‘(1) ADMINISTERING AUTHORITY.—The term

11 ‘administering authority’ has the meaning given that

12 term in section 861(1).

13 ‘‘(2) COMMISSION.—The term ‘Commission’

14 means the United States International Trade Com15 mission.

16 ‘‘(3) INTERESTED PARTY.—The term ‘inter17 ested party’ means any person described in section

18 861(17).’’.

19 (b) CONFORMING AMENDMENTS.—

20 (1) JURISDICTION OF THE COURT.—Section

21 1581(c) of title 28, United States Code, is amended

22 by inserting ‘‘or 516B’’ after ‘‘section 516A’’.

23 (2) RELIEF.—Section 2643 of title 28, United

24 States Code, is amended—
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1 (A) in subsection (c)(1) by striking ‘‘and

2 (5)’’ and inserting ‘‘(5), and (6)’’; and

3 (B) in subsection (c) by adding at the end

4 the following new paragraph:

5 ‘‘(6) In any civil action under section 516B of the

6 Tariff Act of 1930, the Court of International Trade may

7 not issue injunctions or any other form of equitable relief,

8 except with regard to implementation of a countermeasure

9 order under section 468 of that Act, upon a proper show10 ing that such relief is warranted.’’.

11 TITLE II—OTHER PROVISIONS

12 SEC. 201. EQUIPMENT AND REPAIR OF VESSELS.

13 Section 466 of the Tariff Act of 1930 (19 U.S.C.

14 1466), is amended by adding at the end the following new

15 subsection:

16 ‘‘(i) The duty imposed by subsection (a) shall not

17 apply with respect to activities occurring in a Shipbuilding

18 Agreement Party, as defined in section 861(22), with re19 spect to—

20 ‘‘(1) self-propelled seagoing vessels of 100 gross

21 tons or more that are used for transportation of

22 goods or persons or for performance of a specialized

23 service (including, but not limited to, ice breakers

24 and dredges), and

25 ‘‘(2) tugs of 365 kilowatts or more.
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1 A vessel shall be considered ‘self-propelled seagoing’ if its

2 permanent propulsion and steering provide it all the char3 acteristics of self-navigability in the high seas.’’.

4 SEC. 202. EFFECT OF AGREEMENT WITH RESPECT TO PRI5 VATE REMEDIES.

6 No person other than the United States—

7 (1) shall have any cause of action or defense

8 under the Shipbuilding Agreement or by virtue of

9 congressional approval of the agreement, or

10 (2) may challenge, in any action brought under

11 any provision of law, any action or inaction by any

12 department, agency, or other instrumentality of the

13 United States, the District of Columbia, any State,

14 any political subdivision of a State, or any territory

15 or possession of the United States on the ground

16 that such action or inaction is inconsistent with such

17 agreement.

18 SEC. 203. IMPLEMENTING REGULATIONS.

19 After the date of the enactment of this Act, the heads

20 of agencies with functions under this Act and the amend21 ments made by this Act may issue such regulations as may

22 be necessary to ensure that this Act is appropriately im23 plemented on the date the Shipbuilding Agreement enters

24 into force with respect to the United States.
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1 SEC. 204. AMENDMENTS TO THE MERCHANT MARINE ACT,

2 1936.

3 The Merchant Marine Act, 1936, is amended as fol4 lows:

5 (1) Section 511(a)(2) (46 App. U.S.C.

6 1161(a)(2)) is amended by inserting after ‘‘1939,’’

7 the following: ‘‘or, if the vessel is a Shipbuilding

8 Agreement vessel, constructed in a Shipbuilding

9 Agreement Party, but only with regard to moneys

10 deposited, on or after the date on which the Ship11 building Trade Agreement Act takes effect, into a

12 construction reserve fund established under sub13 section (b)’’.

14 (2) Section 601(a) (46 App. U.S.C. 1171(a)) is

15 amended by striking ‘‘, and that such vessel or ves16 sels were built in the United States, or have been

17 documented under the laws of the United States not

18 later than February 1, 1928, or actually ordered and

19 under construction for the account of citizens of the

20 United States prior to such date’’ and inserting

21 ‘‘and that such vessel or vessels were built in the

22 United States, or, if the vessel or vessels are Ship23 building Agreement vessels, in a Shipbuilding Agree24 ment Party’’.

25 (3) Section 606(6) (46 App. U.S.C. 1176(6)) is

26 amended by inserting ‘‘or, if the vessel is a Ship-
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1 building Agreement vessel, in a Shipbuilding Agree2 ment Party or in the United States’’ before ‘‘, except

3 in an emergency.’’.

4 (4) Section 607 (46 App. U.S.C. 1177) is

5 amended as follows:

6 (A) Subsection (a) is amended by inserting

7 ‘‘or, if the vessel is a Shipbuilding Agreement

8 vessel, in a Shipbuilding Agreement Party,’’

9 after ‘‘built in the United States’’.

10 (B) Subsection (k) is amended as follows:

11 (i) Paragraph (1) is amended by

12 striking subparagraph (A) and inserting

13 the following:

14 ‘‘(A)(i) constructed in the United States and, if

15 reconstructed, reconstructed in the United States or

16 in a Shipbuilding Agreement Party, or

17 ‘‘(ii) that is a Shipbuilding Agreement vessel

18 and is constructed in a Shipbuilding Agreement

19 Party and, if reconstructed, is reconstructed in a

20 Shipbuilding Agreement Party or in the United

21 States,’’.

22 (ii) Paragraph (2)(A) is amended to

23 read as follows:
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1 ‘‘(A)(i) constructed in the United States and, if

2 reconstructed, reconstructed in the United States or

3 in a Shipbuilding Agreement Party, or

4 ‘‘(ii) that is a Shipbuilding Agreement vessel

5 and is constructed in a Shipbuilding Agreement

6 Party and, if reconstructed, is reconstructed in a

7 Shipbuilding Agreement Party or in the United

8 States, but only with regard to moneys deposited

9 into the fund on or after the date on which the Ship10 building Trade Agreement Act takes effect,’’.

11 (5) Section 610 (46 App. U.S.C. 1180) is

12 amended by striking ‘‘shall be built in a domestic

13 yard or shall have been documented under the laws

14 of the United States not later than February 1,

15 1928, or actually ordered and under construction for

16 the account of citizens of the United States prior to

17 such date,’’ and inserting ‘‘shall be built in the Unit18 ed States or, if the vessel is a Shipbuilding Agree19 ment vessel, in a Shipbuilding Agreement Party,’’.

20 (6) Section 901(b)(1) (46 App. U.S.C.

21 1241(b)(1)) is amended by striking the third sen22 tence and inserting the following:

23 ‘‘For purposes of this section, the term ‘privately owned

24 United States-flag commercial vessels’ shall be deemed to

25 include—
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1 ‘‘(A) any privately owned United States-flag

2 commercial vessel constructed in the United States,

3 and if rebuilt, rebuilt in the United States or in a

4 Shipbuilding Agreement Party on or after the date

5 on which the Shipbuilding Trade Agreement Act

6 takes effect, and

7 ‘‘(B) any privately owned vessel constructed in

8 a Shipbuilding Agreement Party on or after the date

9 on which the Shipbuilding Trade Agreement Act

10 takes effect, and if rebuilt, rebuilt in a Shipbuilding

11 Agreement Party or in the United States, that is

12 documented pursuant to chapter 121 of title 46,

13 United States Code.

14 The term ‘privately owned United States-flag commercial

15 vessels’ shall also be deemed to include any cargo vessel

16 that so qualified pursuant to section 615 of this Act or

17 this paragraph before the date on which the Shipbuilding

18 Trade Agreement Act takes effect. The term ‘privately

19 owned United States-flag commercial vessels’ shall not be

20 deemed to include any liquid bulk cargo vessel that does

21 not meet the requirements of section 3703a of title 46,

22 United States Code.’’.

23 (7) Section 905 (46 App. U.S.C. 1244) is

24 amended by adding at the end the following:
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1 ‘‘(h) The term ‘Shipbuilding Agreement’ means the

2 Agreement Respecting Normal Competitive Conditions in

3 the Commercial Shipbuilding and Repair Industry, which

4 resulted from negotiations under the auspices of the Orga5 nization for Economic Cooperation and Development, and

6 was entered into on December 21, 1994.

7 ‘‘(i) The term ‘Shipbuilding Agreement Party’ means

8 a state or separate customs territory that is a Party to

9 the Shipbuilding Agreement, and with respect to which the

10 United States applies the Shipbuilding Agreement.

11 ‘‘(j) The term ‘Shipbuilding Agreement vessel’ means

12 a vessel to which the Secretary determines Article 2.1 of

13 the Shipbuilding Agreement applies.

14 ‘‘(k) The term ‘Export Credit Understanding’ means

15 the Understanding on Export Credits for Ships which re16 sulted from negotiations under the auspices of the Organi17 zation for Economic Cooperation and Development and

18 was entered into on December 21, 1994.

19 ‘‘(l) The term ‘Export Credit Understanding vessel’

20 means a vessel to which the Secretary determines the Ex21 port Credit Understanding applies.’’.

22 (8) Section 1104A (46 App. U.S.C. 1274) is

23 amended as follows:

24 (A) Paragraph (5) of subsection (b) is

25 amended to read as follows:
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1 ‘‘(5) shall bear interest (exclusive of charges for

2 the guarantee and service charges, if any) at rates

3 not to exceed such percent per annum on the unpaid

4 principal as the Secretary determines to be reason5 able, taking into account the range of interest rates

6 prevailing in the private market for similar loans

7 and the risks assumed by the Secretary, except that,

8 with respect to Export Credit Understanding vessels,

9 and Shipbuilding Agreement vessels, the obligations

10 shall bear interest at a rate the Secretary determines

11 to be consistent with obligations of the United

12 States under the Export Credit Understanding or

13 the Shipbuilding Agreement, as the case may be;’’.

14 (B) Subsection (i) is amended to read as

15 follows:

16 ‘‘(i)(1) Except as provided in paragraph (2), the Sec17 retary may not, with respect to—

18 ‘‘(A) the general 75 percent or less limitation

19 contained in subsection (b)(2),

‘‘(B) the 871 20 ⁄2 percent or less limitation con21 tained in the 1st, 2nd, 4th, or 5th proviso to sub22 section (b)(2) or in section 1112(b), or

23 ‘‘(C) the 80 percent or less limitation in the 3rd

24 proviso to such subsection,
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1 establish by rule, regulation, or procedure any percentage

2 within any such limitation that is, or is intended to be,

3 applied uniformly to all guarantees or commitments to

4 guarantee made under this section that are subject to the

5 limitation.

6 ‘‘(2) With respect to Export Credit Understanding

7 vessels and Shipbuilding Agreement vessels, the Secretary

8 may establish by rule, regulation, or procedure a uniform

9 percentage that the Secretary determines to be consistent

10 with obligations of the United States under the Export

11 Credit Understanding or the Shipbuilding Agreement, as

12 the case may be.’’.

13 (C) Section 1104B(b) (46 App. U.S.C.

14 1274a(b)) is amended by striking the period at

15 the end and inserting the following:

16 ‘‘, except that, with respect to Export Credit Understand17 ing vessels and Shipbuilding Agreement vessels, the Sec18 retary may establish by rule, regulation, or procedure a

19 uniform percentage that the Secretary determines to be

20 consistent with obligations of the United States under the

21 Export Credit Understanding or the Shipbuilding Agree22 ment, as the case may be.’’.

23 SEC. 205. WITHDRAWAL FROM THE AGREEMENT.

24 (a) WITHDRAWAL.—
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1 (1) NOTICE.—The President shall give notice,

2 under Article 14 of the Shipbuilding Agreement, of

3 intent of the United States to withdraw from the

4 Shipbuilding Agreement, as soon as is practicable

5 after one or more Shipbuilding Agreement Parties

6 give notice, under such article, of intent to withdraw

7 from the Shipbuilding Agreement, if paragraph (2)

8 applies.

9 (2) TONNAGE OF NEW CONSTRUCTION IN WITH10 DRAWING PARTIES.—This paragraph applies if the

11 combined gross tonnage of new Shipbuilding Agree12 ment vessels constructed in all Shipbuilding Agree13 ment Parties who have given notice to withdraw

14 from the Shipbuilding Agreement, which were deliv15 ered in the calendar year preceding the calendar

16 year in which the notice is given, is 15 percent or

17 more of the gross tonnage of new Shipbuilding

18 Agreement vessels that were constructed in all Ship19 building Agreement Parties and were delivered in

20 the calendar year preceding the calendar year in

21 which the notice is given.

22 (3) TERMINATION OF WITHDRAWAL.—If a

23 Shipbuilding Agreement Party described in para24 graph (2) takes action to terminate its withdrawal

25 from the Shipbuilding Agreement, so that paragraph
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1 (2) would not apply if that Party had not given the

2 notice to withdraw, the President may take the nec3 essary steps to terminate the notice of withdrawal of

4 the United States from the Shipbuilding Agreement.

5 (b) REINSTATEMENT OF LAWS.—If the United

6 States withdraws from the Shipbuilding Agreement, on

7 the date on which such withdrawal becomes effective, the

8 amendments made by section 204 shall be deemed not to

9 have been made, and the provisions of law amended by

10 section 204 shall, on and after such date, be effective as

11 if this Act had not been enacted.

12 SEC. 206. APPLICABILITY OF TITLE XI AMENDMENTS.

13 (a) EFFECTIVE DATE.—

14 (1) IN GENERAL.—Notwithstanding any provi15 sion of the Shipbuilding Agreement or the Export

16 Credit Understanding, the amendments made by

17 paragraph (8) of section 204 shall not apply with re18 spect to any commitment to guarantee made under

19 title XI of the Merchant Marine Act, 1936, before

20 January 1, 1999, with respect to a vessel deliv21 ered—

22 (A) before January 1, 2002, or

23 (B) in the case of unusual circumstances

24 to which paragraph (2) applies, as soon after

25 January 1, 2002, as is practicable.
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1 (2) UNUSUAL CIRCUMSTANCES.—This para2 graph applies in a case in which unusual cir3 cumstances beyond the control of the parties con4 cerned prevent the delivery of a vessel by January

5 1, 2002. As used in this paragraph, the term ‘‘un6 usual circumstances’’ means acts of God (other than

7 ordinary storms or inclement weather conditions),

8 labor strikes, acts of sabotage, explosions, fires, or

9 vandalism, and similar circumstances.

10 SEC. 207. OTHER LAWS NOT AFFECTED.

11 The Shipbuilding Agreement shall not affect, directly

12 or indirectly, the Merchant Marine Act, 1920, the Act of

13 June 19, 1886 (46 U.S.C. App. 289), or any other provi14 sion of law set forth in Accompanying Note 2 to Annex

15 II to the Shipbuilding Agreement, and shall not provide

16 any mechanism to subject any producer of vessels in the

17 United States to financial penalties, duties, bid restric18 tions, unfavorable bid preferences, or withdrawal of con19 cessions under the GATT 1994 or other Uruguay Round

20 Agreements, in the competition for international commer21 cial vessel construction or reconstruction orders because

22 of construction of vessels by United States shipbuilders

23 for operation in the coastwise trade of the United States.
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1 SEC. 208. PROTECTION OF UNITED STATES INTERESTS.

2 Nothing in the Shipbuilding Agreement shall be con3 strued to prevent the United States from taking any ac4 tion which it considers necessary for the protection of es5 sential security interests or from invoking its sovereign au6 thority to define, for purposes of exclusion from coverage

7 under the Shipbuilding Agreement and from any dispute

8 or challenge based on Annex I to the Shipbuilding Agree9 ment, ‘‘military vessel’’, ‘‘military reserve vessel’’, or ‘‘es10 sential security interest’’ on a case by case basis, as deter11 mined by the Secretary of Defense.

12 SEC. 209. DEFINITIONS.

13 As used in this title—

14 (1) the terms ‘‘Shipbuilding Agreement’’,

15 ‘‘Shipbuilding Agreement Party’’, ‘‘Shipbuilding

16 Agreement vessel’’, and ‘‘Export Credit Understand17 ing’’ have the meanings given those terms in sub18 sections (h), (i), (j), and (k), respectively, of section

19 905 of the Merchant Marine Act, 1936, as added by

20 section 204(7) of this Act; and

21 (2) the terms ‘‘GATT 1994’’ and ‘‘Uruguay

22 Round Agreements’’ have the meanings given those

23 terms in section 2 of the Uruguay Round Agree24 ments Act.
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1 TITLE III—REVENUE OFFSET

2 SEC. 301. PENALTIES FOR FAILURE TO DISCLOSE POSITION

3 THAT CERTAIN INTERNATIONAL SHIPPING

4 INCOME IS NOT INCLUDIBLE IN GROSS IN5 COME.

6 (a) IN GENERAL.—Section 883 of the Internal Reve7 nue Code of 1986 is amended by adding at the end the

8 following new subsection:

9 ‘‘(d) PENALTIES FOR FAILURE TO DISCLOSE POSI10 TION THAT CERTAIN INTERNATIONAL SHIPPING INCOME

11 IS NOT INCLUDIBLE IN GROSS INCOME.—

12 ‘‘(1) IN GENERAL.—A taxpayer who, with re13 spect to any tax imposed by this title, takes the posi14 tion that any of its gross income derived from the

15 international operation of a ship or ships is not in16 cludible in gross income by reason of subsection

17 (a)(1) or section 872(b)(1) shall be entitled to such

18 treatment only if such position is disclosed (in such

19 manner as the Secretary may prescribe) on the re20 turn of tax for such tax (or any statement attached

21 to such return).

22 ‘‘(2) ADDITIONAL PENALTIES FOR FAILING TO

23 DISCLOSE POSITION.—If a taxpayer fails to meet the

24 requirement of paragraph (1) with respect to any

25 taxable year—
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1 ‘‘(A) the amount of the income from the

2 international operation of a ship or ships—

3 ‘‘(i) which is from sources without the

4 United States, and

5 ‘‘(ii) which is attributable to a fixed

6 place of business in the United States,

7 shall be treated for purposes of this title as ef8 fectively connected with the conduct of a trade

9 or business within the United States, and

10 ‘‘(B) no deductions or credits shall be al11 lowed which are attributable to income from the

12 international operation of a ship or ships.

13 ‘‘(3) REASONABLE CAUSE EXCEPTION.—This

14 subsection shall not apply to a failure to disclose a

15 position if it is shown that such failure is due to rea16 sonable cause and not due to willful neglect.’’

17 (b) CONFORMING AMENDMENTS.—

18 (1) Paragraph (1) of section 872(b) of such

19 Code is amended by striking ‘‘Gross income’’ and in20 serting ‘‘Except as provided in section 883(d), gross

21 income’’.

22 (2) Paragraph (1) of section 883(a) of such

23 Code is amended by striking ‘‘Gross income’’ and in24 serting ‘‘Except as provided in subsection (d), gross

25 income’’.
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1 (c) EFFECTIVE DATE.—

2 (1) IN GENERAL.—Notwithstanding section 3,

3 the amendments made by this section shall apply to

4 taxable years beginning after the later of—

5 (A) December 31, 1996, or

6 (B) the date that the Shipbuilding Agree7 ment enters into force with respect to the Unit8 ed States.

9 (2) COORDINATION WITH TREATIES.—The

10 amendments made by this section shall not apply in

11 any case where their application would be contrary

12 to any treaty obligation of the United States.

13 (d) INFORMATION TO BE PROVIDED BY CUSTOMS

14 SERVICE.—The United States Custom Service shall pro15 vide the Secretary of the Treasury or his delegate with

16 such information as may be specified by such Secretary

17 in order to enable such Secretary to determine whether

18 ships which are not registered in the United States are

19 engaged in transportation to or from the United States.

Passed the House of Representatives June 13, 1996.

Attest:

Clerk.