Union Calendar No. 299

104TH CONGRESS

2D SESSION H. R. 2754

[Report No. 104–524, Parts I and II]

A BILL

To approve and implement the OECD Shipbuilding

Trade Agreement.

MAY 30, 1996

Reported from the Committee on National Security with

to be printedWhole House on the State of the Union, and orderedan amendment, committed to the Committee of the
IB

Union Calendar No. 299

104TH CONGRESS

2D SESSION H. R. 2754

[Report No. 104–524, Parts I and II]

To approve and implement the OECD Shipbuilding Trade Agreement.

IN THE HOUSE OF REPRESENTATIVES

DECEMBER 11, 1995

Mr. CRANE (for himself, Mr. GIBBONS, and Ms. DUNN of Washington) introduced the following bill; which was referred to the Committee on Ways

and Means, and in addition to the Committee on National Security, for

a period to be subsequently determined by the Speaker, in each case for

consideration of such provisions as fall within the jurisdiction of the committee concerned

APRIL 18, 1996

Reported from the Committee on Ways and Means with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

APRIL 18, 1996

Referral to the Committee on National Security extended for a period ending

not later than May 30, 1996.

MAY 30, 1996

Additional sponsors: Mr. LEVIN, Mr. CARDIN, and Mr. GENE GREEN of Texas

Deleted sponsor: Mr. QUILLEN (added December 21, 1995; deleted March 29,

1996)

MAY 30, 1996

Reported from the Committee on National Security with an amendment, committed to the Committee of the Whole House on the State of the Union,

and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in bold face roman]

[For text of introduced bill, see copy of bill as introduced on December 11, 1995]
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A BILL

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,

3 SECTION 1. SHORT TITLE.

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

5 Agreement Act’’.

6 SEC. 2. APPROVAL OF THE SHIPBUILDING AGREEMENT.

7 The Congress approves The Agreement Respecting Nor8 mal Competitive Conditions in the Commercial Shipbuild9 ing and Repair Industry (hereafter in this Act referred to

10 as the ‘‘Shipbuilding Agreement’’), a reciprocal trade agree11 ment which resulted from negotiations under the auspices

12 of the Organization for Economic Cooperation and Develop13 ment, and was entered into on December 21, 1994.

14 SEC. 3. EFFECTIVE DATE.

15 This Act and the amendments made by this Act take

16 effect on the date that the Shipbuilding Agreement enters

17 into force with respect to the United States.
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1 TITLE I—INJURIOUS PRICING

2 AND COUNTERMEASURES

3 SEC. 101. INJURIOUS PRICING AND COUNTERMEASURES

4 PROCEEDINGS.

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

6 end the following new title:

7 ‘‘TITLE VIII—INJURIOUS PRIC8 ING AND COUNTERMEASURES

9 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.

‘‘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.
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1 ‘‘Subtitle A—Injurious Pricing

2 Charge and Countermeasures

3 ‘‘SEC. 801. INJURIOUS PRICING CHARGE.

4 ‘‘(a) BASIS FOR CHARGE.—If—

5 ‘‘(1) the administering authority determines that

6 a foreign vessel has been sold directly or indirectly to

7 one or more United States buyers at less than its fair

8 value, and

9 ‘‘(2) the Commission determines that—

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

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

12 or

13 ‘‘(ii) is threatened with material in14 jury, or

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

16 United States is or has been materially retarded,

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

18 be imposed upon the foreign producer of the subject

19 vessel an injurious pricing charge, in an amount

20 equal to the amount by which the normal value ex21 ceeds the export price for the vessel. For purposes of

22 this subsection and section 805(b)(1), a reference to

23 the sale of a foreign vessel includes the creation or

24 transfer of an ownership interest in the vessel, except

25 for an ownership interest created or acquired solely
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1 for the purpose of providing security for a normal

2 commercial loan.

3 ‘‘(b) FOREIGN VESSELS NOT MERCHANDISE.—No for4 eign vessel may be considered to be, or to be part of, a class

5 or kind of merchandise for purposes of subtitle B of title

6 VII.

7 ‘‘SEC. 802. PROCEDURES FOR INITIATING AN INJURIOUS

8 PRICING INVESTIGATION.

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

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

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

12 investigation shall be initiated whenever the admin13 istering authority determines, from information

14 available to it, that a formal investigation is war15 ranted into the question of whether the elements nec16 essary for the imposition of a charge under section

17 801(a) exist, and whether a producer described in sec18 tion 861(17)(C) would meet the criteria of subsection

19 (b)(1)(B) for a petitioner.

20 ‘‘(2) TIME FOR INITIATION BY ADMINISTERING

21 AUTHORITY.—An investigation may only be initiated

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

23 the administering authority first knew or should have

24 known of the sale of the vessel. Any period in which
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1 subsection (d)(6)(A) applies shall not be included in

2 calculating that 6-month period.

3 ‘‘(b) INITIATION BY PETITION.—

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

5 a case in which subsection (d)(6) applies, an injuri6 ous pricing proceeding shall be initiated whenever an

7 interested party, as defined in subparagraph (C), (D),

8 (E), or (F) of section 861(17), files a petition with the

9 administering authority, on behalf of an industry,

10 which alleges the elements necessary for the imposi11 tion of an injurious pricing charge under section

12 801(a) and the elements required under subparagraph

13 (B), (C), (D), or (E) of this paragraph, and which is

14 accompanied by information reasonably available to

15 the petitioner supporting those allegations and identi16 fying the transaction concerned.

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

18 in section 861(17)(C), and—

19 ‘‘(I) if the vessel was sold through a broad

20 multiple bid, the petition shall include informa21 tion indicating that the petitioner was invited to

22 tender a bid on the contract at issue, the peti23 tioner actually did so, and the bid of the peti24 tioner substantially met the delivery date and

25 technical requirements of the bid,
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1 ‘‘(II) if the vessel was sold through any bid2 ding process other than a broad multiple bid and

3 the petitioner was invited to tender a bid on the

4 contract at issue, the petition shall include infor5 mation indicating that the petitioner actually

6 did so and the bid of the petitioner substantially

7 met the delivery date and technical requirements

8 of the bid, or

9 ‘‘(III) except in a case in which the vessel

10 was sold through a broad multiple bid, if there

11 is no invitation to tender a bid, the petition

12 shall include information indicating that the pe13 titioner was capable of building the vessel con14 cerned and, if the petitioner knew or should have

15 known of the proposed purchase, it made demon16 strable efforts to conclude a sale with the United

17 States buyer consistent with the delivery date

18 and technical requirements of the buyer.

19 ‘‘(ii) For purposes of clause (i)(III), there is a

20 rebuttable presumption that the petitioner knew or

21 should have known of the proposed purchase if it is

22 demonstrated that—

23 ‘‘(I) the majority of the producers in the in24 dustry have made efforts with the United States

25 buyer to conclude a sale of the subject vessel, or
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1 ‘‘(II) general information on the sale was

2 available from brokers, financiers, classification

3 societies, charterers, trade associations, or other

4 entities normally involved in shipbuilding trans5 actions with whom the petitioner had regular

6 contacts or dealings.

7 ‘‘(C) If the petitioner is an interested party de8 scribed in section 861(17)(D), the petition shall in9 clude information indicating that members of the

10 union or group of workers described in that section

11 are employed by a producer that meets the require12 ments of subparagraph (B) of this paragraph.

13 ‘‘(D) If the petitioner is an interested party de14 scribed in section 861(17)(E), the petition shall in15 clude information indicating that a member of the as16 sociation described in that section is a producer that

17 meets the requirements of subparagraph (B) of this

18 paragraph.

19 ‘‘(E) If the petitioner is an interested party de20 scribed in section 861(17)(F), the petition shall in21 clude information indicating that a member of the as22 sociation described in that section meets the require23 ments of subparagraph (C) or (D) of this paragraph.
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1 ‘‘(F) The petition may be amended at such time,

2 and upon such conditions, as the administering au3 thority and the Commission may permit.

4 ‘‘(2) SIMULTANEOUS FILING WITH COMMIS5 SION.—The petitioner shall file a copy of the petition

6 with the Commission on the same day as it is filed

7 with the administering authority.

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

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

10 paragraph (1)(B) (i) or (ii) applies shall file the

11 petition no later than the earlier of—

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

13 petitioner first knew or should have known

14 of the sale of the subject vessel, or

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

16 subject vessel.

17 ‘‘(ii) A petitioner to which paragraph

18 (1)(B)(iii) applies shall—

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

20 earlier of 9 months after the time that the

21 petitioner first knew or should have known

22 of the sale of the subject vessel, or 6 months

23 after delivery of the subject vessel, and

24 ‘‘(II) submit to the administering au25 thority a notice of intent to file a petition
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1 no later than 6 months after the time that

2 the petitioner first knew or should have

3 known of the sale (unless the petition itself

4 is filed within that 6-month period).

5 ‘‘(B) PRESUMPTION OF KNOWLEDGE.—For

6 purposes of this paragraph, if the existence of the

7 sale, together with general information concern8 ing the vessel, is published in the international

9 trade press, there is a rebuttable presumption

10 that the petitioner knew or should have known of

11 the sale of the vessel from the date of that publi12 cation.

13 ‘‘(c) ACTIONS BEFORE INITIATING INVESTIGATIONS.—

14 ‘‘(1) NOTIFICATION OF GOVERNMENTS.—Before

15 initiating an investigation under either subsection (a)

16 or (b), the administering authority shall notify the

17 government of the exporting country of the investiga18 tion. In the case of the initiation of an investigation

19 under subsection (b), such notification shall include a

20 public version of the petition.

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

22 administering authority shall not accept any unsolic23 ited oral or written communication from any person

24 other than an interested party described in section

25 861(17)(C), (D), (E), or (F) before the administering
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1 authority makes its decision whether to initiate an

2 investigation pursuant to a petition, except for in3 quiries regarding the status of the administering

4 authority’s consideration of the petition or a request

5 for consultation by the government of the exporting

6 country.

7 ‘‘(3) NONDISCLOSURE OF CERTAIN INFORMA8 TION.—The administering authority and the Commis9 sion shall not disclose information with regard to any

10 draft petition submitted for review and comment be11 fore it is filed under subsection (b)(1).

12 ‘‘(d) PETITION DETERMINATION.—

13 ‘‘(1) TIME FOR INITIAL DETERMINATION.—(A)

14 Within 45 days after the date on which a petition is

15 filed under subsection (b), the administering author16 ity shall, after examining, on the basis of sources

17 readily available to the administering authority, the

18 accuracy and adequacy of the evidence provided in

19 the petition, determine whether the petition—

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

21 imposition of an injurious pricing charge under

22 section 801(a) and the elements required under

23 subsection (b)(1)(B), (C), (D), or (E), and con24 tains information reasonably available to the pe25 titioner supporting the allegations; and
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1 ‘‘(ii) determine if the petition has been filed

2 by or on behalf of the industry.

3 ‘‘(B) Any period in which paragraph (6)(A) ap4 plies shall not be included in calculating the 45-day

5 period described in subparagraph (A).

6 ‘‘(2) AFFIRMATIVE DETERMINATIONS.—If the de7 terminations under clauses (i) and (ii) of paragraph

8 (1)(A) are affirmative, the administering authority

9 shall initiate an investigation to determine whether

10 the vessel was sold at less than fair value, unless

11 paragraph (6) applies.

12 ‘‘(3) NEGATIVE DETERMINATIONS.—If—

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

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

15 ‘‘(B) paragraph (6)(B) applies,

16 the administering authority shall dismiss the petition,

17 terminate the proceeding, and notify the petitioner in

18 writing of the reasons for the determination.

19 ‘‘(4) DETERMINATION OF INDUSTRY SUPPORT.—

20 ‘‘(A) GENERAL RULE.—For purposes of this

21 subsection, the administering authority shall de22 termine that the petition has been filed by or on

23 behalf of the domestic industry, if—

24 ‘‘(i) the domestic producers or workers

25 who support the petition collectively account
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1 for at least 25 percent of the total capacity

2 of domestic producers capable of producing

3 a like vessel, and

4 ‘‘(ii) the domestic producers or workers

5 who support the petition collectively account

6 for more than 50 percent of the total capac7 ity to produce a like vessel of that portion

8 of the domestic industry expressing support

9 for or opposition to the petition.

10 ‘‘(B) CERTAIN POSITIONS DISREGARDED.—

11 In determining industry support under subpara12 graph (A), the administering authority shall dis13 regard the position of domestic producers who

14 oppose the petition, if such producers are related

15 to the foreign producer or United States buyer of

16 the subject vessel, or the domestic producer is it17 self the United States buyer, unless such domestic

18 producers demonstrate that their interests as do19 mestic producers would be adversely affected by

20 the imposition of an injurious pricing charge.

21 ‘‘(C) POLLING THE INDUSTRY.—If the peti22 tion does not establish support of domestic pro23 ducers or workers accounting for more than 50

24 percent of the total capacity to produce a like

25 vessel—
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1 ‘‘(i) the administering authority shall

2 poll the industry or rely on other informa3 tion in order to determine if there is sup4 port for the petition as required by sub5 paragraph (A), or

6 ‘‘(ii) if there is a large number of pro7 ducers in the industry, the administering

8 authority may determine industry support

9 for the petition by using any statistically

10 valid sampling method to poll the industry.

11 ‘‘(D) COMMENTS BY INTERESTED PAR12 TIES.—Before the administering authority makes

13 a determination with respect to initiating an in14 vestigation, any person who would qualify as an

15 interested party under section 861(17) if an in16 vestigation were initiated, may submit comments

17 or information on the issue of industry support.

18 After the administering authority makes a deter19 mination with respect to initiating an investiga20 tion, the determination regarding industry sup21 port shall not be reconsidered.

22 ‘‘(5) DEFINITION OF DOMESTIC PRODUCERS OR

23 WORKERS.—For purposes of this subsection, the term

24 ‘domestic producers or workers’ means interested par25 ties as defined in section 861(17)(C), (D), (E), or (F).
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1 ‘‘(6) PROCEEDINGS BY WTO MEMBERS.—The ad2 ministering authority shall not initiate an investiga3 tion under this section if, with respect to the vessel

4 sale at issue, an antidumping proceeding conducted

5 by a WTO member who is not a Shipbuilding Agree6 ment Party—

7 ‘‘(A) has been initiated and has been pend8 ing for not more than one year, or

9 ‘‘(B) has been completed and resulted in the

10 imposition of antidumping measures or a nega11 tive determination with respect to whether the

12 sale was at less than fair value or with respect

13 to injury.

14 ‘‘(e) NOTIFICATION TO COMMISSION OF DETERMINA15 TION.—The administering authority shall—

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

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

18 and

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

20 available to the Commission such information as it

21 may have relating to the matter under investigation,

22 under such procedures as the administering authority

23 and the Commission may establish to prevent disclo24 sure, other than with the consent of the party provid25 ing it or under protective order, of any information
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1 to which confidential treatment has been given by the

2 administering authority.

3 ‘‘SEC. 803. PRELIMINARY DETERMINATIONS.

4 ‘‘(a) DETERMINATION BY COMMISSION OF REASON5 ABLE INDICATION OF INJURY.—

6 ‘‘(1) GENERAL RULE.—Except in the case of a

7 petition dismissed by the administering authority

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

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

10 based on the information available to it at the time

11 of the determination, whether there is a reasonable in12 dication that—

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

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

15 or

16 ‘‘(ii) is threatened with material in17 jury, or

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

19 United States is or has been materially retarded,

20 by reason of the sale of the subject vessel. If the Com21 mission makes a negative determination under this

22 paragraph, the investigation shall be terminated.

23 ‘‘(2) TIME FOR COMMISSION DETERMINATION.—

24 The Commission shall make the determination de25 scribed in paragraph (1) within 90 days after the
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1 date on which the petition is filed or, in the case of

2 an investigation initiated under section 802(a), with3 in 90 days after the date on which the Commission

4 receives notice from the administering authority that

5 the investigation has been initiated.

6 ‘‘(b) PRELIMINARY DETERMINATION BY ADMINISTER7 ING AUTHORITY.—

8 ‘‘(1) PERIOD OF INJURIOUS PRICING INVESTIGA9 TION.—(A) The administering authority shall make a

10 determination, based upon the information available

11 to it at the time of the determination, of whether there

12 is a reasonable basis to believe or suspect that the sub13 ject vessel was sold at less than fair value.

14 ‘‘(B) If cost data is required to determine nor15 mal value on the basis of a sale of a foreign like vessel

16 that has not been delivered on or before the date on

17 which the administering authority initiates the inves18 tigation, the administering authority shall make its

19 determination within 160 days after the date of deliv20 ery of the foreign like vessel.

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

22 basis of constructed value, the administering author23 ity shall make its determination within 160 days

24 after the date of delivery of the subject vessel.
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1 ‘‘(D) In cases in which subparagraph (B) or (C)

2 does not apply, the administering authority shall

3 make its determination within 160 days after the

4 date on which the administering authority initiates

5 the investigation under section 802.

6 ‘‘(E) In no event shall the administering author7 ity make its determination before an affirmative de8 termination is made by the Commission under sub9 section (a).

10 ‘‘(2) DE MINIMIS INJURIOUS PRICING MARGIN.—

11 In making a determination under this subsection, the

12 administering authority shall disregard any injurious

13 pricing margin that is de minimis. For purposes of

14 the preceding sentence, an injurious pricing margin

15 is de minimis if the administering authority deter16 mines that the margin is less than 2 percent of the

17 export price.

18 ‘‘(c) EXTENSION OF PERIOD IN EXTRAORDINARILY

19 COMPLICATED CASES OR FOR GOOD CAUSE.—

20 ‘‘(1) IN GENERAL.—If—

21 ‘‘(A) the administering authority concludes

22 that the parties concerned are cooperating and

23 determines that—

24 ‘‘(i) the case is extraordinarily com25 plicated by reason of—
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1 ‘‘(I) the novelty of the issues pre2 sented, or

3 ‘‘(II) the nature and extent of the

4 information required, and

5 ‘‘(ii) additional time is necessary to

6 make the preliminary determination, or

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

8 an extension and demonstrates good cause for the

9 extension,

10 then the administering authority may postpone the

11 time for making its preliminary determination.

12 ‘‘(2) LENGTH OF POSTPONEMENT.—The prelimi13 nary determination may be postponed under para14 graph (1)(A) or (B) until not later than the 190th

15 day after—

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

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

18 ‘‘(B) the date of delivery of the subject ves19 sel, if subsection (b)(1)(C) applies, or

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

21 authority initiates an investigation under sec22 tion 802, in a case in which subsection (b)(1)(D)

23 applies.

24 ‘‘(3) NOTICE OF POSTPONEMENT.—The admin25 istering authority shall notify the parties to the inves-
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1 tigation, not later than 20 days before the date on

2 which the preliminary determination would otherwise

3 be required under subsection (b)(1), if it intends to

4 postpone making the preliminary determination

5 under paragraph (1). The notification shall include

6 an explanation of the reasons for the postponement,

7 and notice of the postponement shall be published in

8 the Federal Register.

9 ‘‘(d) EFFECT OF DETERMINATION BY THE ADMIN10 ISTERING AUTHORITY.—If the preliminary determination

11 of the administering authority under subsection (b) is af12 firmative, the administering authority shall—

13 ‘‘(1) determine an estimated injurious pricing

14 margin, and

15 ‘‘(2) make available to the Commission all infor16 mation upon which its determination was based and

17 which the Commission considers relevant to its injury

18 determination, under such procedures as the admin19 istering authority and the Commission may establish

20 to prevent disclosure, other than with the consent of

21 the party providing it or under protective order, of

22 any information to which confidential treatment has

23 been given by the administering authority.

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

25 Commission or the administering authority makes a deter-
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1 mination under this section, the Commission or the admin2 istering authority, as the case may be, shall notify the peti3 tioner, and other parties to the investigation, and the Com4 mission or the administering authority (whichever is ap5 propriate) of its determination. The administering author6 ity shall include with such notification the facts and conclu7 sions on which its determination is based. Not later than

8 5 days after the date on which the determination is required

9 to be made under subsection (a)(2), the Commission shall

10 transmit to the administering authority the facts and con11 clusions on which its determination is based.

12 ‘‘SEC. 804. TERMINATION OR SUSPENSION OF INVESTIGA13 TION.

14 ‘‘(a) TERMINATION OF INVESTIGATION UPON WITH15 DRAWAL OF PETITION.—

16 ‘‘(1) IN GENERAL.—Except as provided in para17 graph (2), an investigation under this subtitle may be

18 terminated by either the administering authority or

19 the Commission, after notice to all parties to the in20 vestigation, upon withdrawal of the petition by the

21 petitioner.

22 ‘‘(2) LIMITATION ON TERMINATION BY COMMIS23 SION.—The Commission may not terminate an inves24 tigation under paragraph (1) before a preliminary
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1 determination is made by the administering author2 ity under section 803(b).

3 ‘‘(b) TERMINATION OF INVESTIGATIONS INITIATED BY

4 ADMINISTERING AUTHORITY.—The administering author5 ity may terminate any investigation initiated by the ad6 ministering authority under section 802(a) after providing

7 notice of such termination to all parties to the investigation.

8 ‘‘(c) ALTERNATE EQUIVALENT REMEDY.—The criteria

9 set forth in subparagraphs (A) through (D) of section

10 806(e)(1) shall apply to any agreement that forms the basis

11 for termination of an investigation under subsection (a) or

12 (b).

13 ‘‘(d) PROCEEDINGS BY WTO MEMBERS.—

14 ‘‘(1) SUSPENSION OF INVESTIGATION.—The ad15 ministering authority and the Commission shall sus16 pend an investigation under this section if a WTO

17 member that is not a Shipbuilding Agreement Party

18 initiates an antidumping proceeding described in sec19 tion 861(29)(A) with respect to the sale of the subject

20 vessel.

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

22 antidumping proceeding described in paragraph (1)

23 is concluded by—

24 ‘‘(A) the imposition of antidumping meas25 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) If

7 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 Commission

13 shall terminate the suspension and continue the inves14 tigation. The period in which the investigation was

15 suspended shall not be included in calculating dead16 lines 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 the

5 subject of the investigation has been sold in the Unit6 ed 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 a

25 proceeding in which the preliminary determina-
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1 tion by the administering authority under sec2 tion 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 MARGIN.—

8 In making a determination under this subsection, the

9 administering authority shall disregard any injurious

10 pricing margin that is de minimis as defined in sec11 tion 803(b)(2).

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

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

14 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 the

21 United States is or has been materially retarded,

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

23 which the administering authority has made an af24 firmative determination under subsection (a)(1).
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1 ‘‘(2) PERIOD FOR INJURY DETERMINATION FOL2 LOWING AFFIRMATIVE PRELIMINARY DETERMINATION

3 BY ADMINISTERING AUTHORITY.—If the preliminary

4 determination by the administering authority under

5 section 803(b) is affirmative, then the Commission

6 shall make the determination required by paragraph

7 (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 FOL16 LOWING NEGATIVE PRELIMINARY DETERMINATION BY

17 ADMINISTERING AUTHORITY.—If the preliminary de18 termination by the administering authority under

19 section 803(b) is negative, and its final determination

20 under subsection (a) is affirmative, then the final de21 termination by the Commission under this subsection

22 shall be made within 75 days after the date of that

23 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 sub19 ject vessel.

20 ‘‘(2) ISSUANCE OF ORDER; EFFECT OF NEGATIVE

21 DETERMINATION.—If the determinations of the ad22 ministering authority and the Commission under sub23 sections (a)(1) and (b)(1) are affirmative, then the

24 administering authority shall issue an injurious pric25 ing order under section 806. If either of such deter-
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1 minations is negative, the investigation shall be ter2 minated upon the publication of notice of that nega3 tive determination.

4 ‘‘(d) PUBLICATION OF NOTICE OF DETERMINATIONS.—

5 Whenever the administering authority or the Commission

6 makes a determination under this section, it shall notify

7 the petitioner, other parties to the investigation, and the

8 other agency of its determination and of the facts and con9 clusions of law upon which the determination is based, and

10 it shall publish notice of its determination in the Federal

11 Register.

12 ‘‘(e) CORRECTION OF MINISTERIAL ERRORS.—The ad13 ministering authority shall establish procedures for the cor14 rection of ministerial errors in final determinations within

15 a reasonable time after the determinations are issued under

16 this section. Such procedures shall ensure opportunity for

17 interested parties to present their views regarding any such

18 errors. As used in this subsection, the term ‘ministerial

19 error’ includes errors in addition, subtraction, or other

20 arithmetic function, clerical errors resulting from inac21 curate copying, duplication, or the like, and any other type

22 of unintentional error which the administering authority

23 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 the

10 designee of the Secretary, within 180 days from the

11 date of publication of the order, an injurious pricing

12 charge in an amount equal to the amount by which

13 the normal value exceeds the export price of the sub14 ject vessel,

15 ‘‘(2) includes the identity and location of the for16 eign producer and a description of the subject vessel,

17 in such detail as the administering authority deems

18 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 inter-
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1 est charges at the Commercial Interest Reference

2 Rate (CIRR), and

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

4 extension of the due date for payment under sub5 section (b).

6 ‘‘(b) EXTENSION OF DUE DATE FOR PAYMENT IN EX7 TRAORDINARY CIRCUMSTANCES.—

8 ‘‘(1) EXTENSION.—Upon request, the administer9 ing authority may amend the order under subsection

10 (a) to set a due date for payment or payments later

11 than the date that is 180 days from the date of publi12 cation of the order, if the administering authority de13 termines that full payment in 180 days would render

14 the producer insolvent or would be incompatible with

15 a judicially supervised reorganization. When an ex16 tended payment schedule provides for a series of par17 tial payments, the administering authority shall

18 specify the circumstances under which default on one

19 or more payments will result in the imposition of

20 countermeasures.

21 ‘‘(2) INTEREST CHARGES.—If a request is grant22 ed under paragraph (1), payments made after the

23 date that is 180 days from the publication of the

24 order shall be subject to interest charges at the 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 au7 thority—

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

9 administering authority determines that producers

10 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 subsection

22 (e), or

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

24 was at issue in the investigation that resulted in

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

2 not a Shipbuilding Agreement Party has been

3 completed and resulted in the imposition of anti4 dumping 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 sub10 ject to the order on an alternative equivalent remedy,

11 that the administering authority determines—

12 ‘‘(A) is at least as effective a remedy as the

13 injurious pricing charge,

14 ‘‘(B) is in the public interest,

15 ‘‘(C) can be effectively monitored and en16 forced, and

17 ‘‘(D) is otherwise consistent with the domes18 tic law and international obligations of the

19 United States.

20 ‘‘(2) PRIOR CONSULTATIONS AND SUBMISSION OF

21 COMMENTS.—Before entering into an agreement

22 under paragraph (1), the administering authority

23 shall consult with the industry, and provide for the

24 submission of comments by interested parties, with re25 spect to the agreement.
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1 ‘‘(3) MATERIAL VIOLATIONS OF AGREEMENT.—If

2 the injurious pricing order has been suspended under

3 paragraph (1), and the administering authority de4 termines that the foreign producer concerned has ma5 terially violated the terms of the agreement under

6 paragraph (1), the administering authority shall ter7 minate the suspension.

8 ‘‘SEC. 807. IMPOSITION OF COUNTERMEASURES.

9 ‘‘(a) GENERAL RULE.—

10 ‘‘(1) ISSUANCE OF ORDER IMPOSING COUNTER11 MEASURES.—Unless an injurious pricing order is re12 voked or suspended under section 806 (d) or (e), the

13 administering authority shall issue an order impos14 ing countermeasures.

15 ‘‘(2) CONTENTS OF ORDER.—The countermeasure

16 order shall—

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

18 a permit to lade or unlade passengers or mer19 chandise may not be issued with respect to ves20 sels contracted to be built by the foreign producer

21 of the vessel with respect to which an injurious

22 pricing order was issued under section 806, and

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

24 prohibition on the issuance of a permit to lade

25 or unlade passengers or merchandise.
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1 ‘‘(b) NOTICE OF INTENT TO IMPOSE COUNTER2 MEASURES.—

3 ‘‘(1) GENERAL RULE.—The administering au4 thority shall issue a notice of intent to impose coun5 termeasures not later than 30 days before the expira6 tion of the time for payment specified in the injurious

7 pricing order (or extended payment provided for

8 under section 806(b)), and shall publish the notice in

9 the Federal Register within 7 days after issuing the

10 notice.

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

12 The notice of intent shall contain at least the follow13 ing elements:

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

15 passengers or merchandise may not be issued

16 with respect to any vessel—

17 ‘‘(i) built by the foreign producer sub18 ject to the proposed countermeasures, and

19 ‘‘(ii) with respect to which the material

20 terms of sale are established within a period

21 of 4 consecutive years beginning on the date

22 that is 30 days after publication in the

23 Fedeal Register of the notice of intent de24 scribed in paragraph (1).
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1 ‘‘(B) DURATION.—For each vessel described

2 in subparagraph (A), a permit to lade or unlade

3 passengers or merchandise may not be issued for

4 a period of 4 years after the date of delivery of

5 the vessel.

6 ‘‘(c) DETERMINATION TO IMPOSE COUNTERMEASURES;

7 ORDER.—

8 ‘‘(1) GENERAL RULE.—The administering au9 thority shall, within the time specified in paragraph

10 (2), issue a determination and order imposing coun11 termeasures.

12 ‘‘(2) TIME FOR DETERMINATION.—The deter13 mination shall be issued within 90 days after the date

14 on which the notice of intent to impose counter15 measures under subsection (b) is published in the

16 Federal Register. The administering authority shall

17 publish the determination, and the order described in

18 paragraph (4), in the Federal Register within 7 days

19 after issuing the final determination, and shall pro20 vide a copy of the determination and order to the

21 Customs Service.

22 ‘‘(3) CONTENT OF THE DETERMINATION.—In the

23 determination imposing countermeasures, the admin24 istering authority shall determine whether, in light of

25 all of the circumstances, an interested party has dem-
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1 onstrated that the scope or duration of the counter2 measures described in subsection (b)(2) should be nar3 rower or shorter than the scope or duration set forth

4 in the notice of intent to impose countermeasures.

5 ‘‘(4) ORDER.—At the same time it issues its de6 termination, the administering authority shall issue

7 an order imposing countermeasures, consistent with

8 its determination.

9 ‘‘(d) ADMINISTRATIVE REVIEW OF DETERMINATION TO

10 IMPOSE COUNTERMEASURES.—

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

12 anniversary month of the issuance of the order impos13 ing countermeasures under subsection (c), the admin14 istering authority shall publish in the Federal Reg15 ister a notice providing that interested parties may

16 request—

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

18 countermeasures determined under subsection

19 (c)(3), and

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

21 review.

22 ‘‘(2) REVIEW.—If a proper request has been re23 ceived under paragraph (1), the administering au24 thority shall—
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1 ‘‘(A) publish notice of initiation of a review

2 in the Federal Register not later than 15 days

3 after the end of the anniversary month of the is4 suance of the order imposing countermeasures,

5 and

6 ‘‘(B) review and determine whether the re7 questing party has demonstrated that the scope

8 or duration of the countermeasures is excessive

9 in light of all of the circumstances.

10 ‘‘(3) TIME FOR REVIEW.—The administering au11 thority shall make its determination under paragraph

12 (2)(B) within 90 days after the date on which the no13 tice of initiation of the review is published. If the de14 termination under paragraph (2)(B) is affirmative,

15 the administering authority shall amend the order ac16 cordingly. The administering authority shall prompt17 ly publish the determination and any amendment to

18 the order in the Federal Register, and shall provide

19 a copy of any amended order to the Customs Service.

20 In extraordinary circumstances, the administering

21 authority may extend the time for its determination

22 under paragraph (2)(B) to not later than 150 days

23 after the date on which the notice of initiation of the

24 review is published.

25 ‘‘(e) EXTENSION OF COUNTERMEASURES.—
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1 ‘‘(1) REQUEST FOR EXTENSION.—Within the

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

3 may file with the administering authority a request

4 that the scope or duration of countermeasures be ex5 tended.

6 ‘‘(2) DEADLINE FOR REQUEST FOR EXTEN7 SION.—

8 ‘‘(A) REQUEST FOR EXTENSION BEYOND 4

9 YEARS.—If the request seeks an extension that

10 would cause the scope or duration of counter11 measures to exceed 4 years, including any prior

12 extensions, the request for extension under para13 graph (1) shall be filed not earlier than the date

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

15 that is 12 months, before the date that marks the

16 end of the period that specifies the vessels that

17 fall within the scope of the order by virtue of the

18 establishment of material terms of sale within

19 that period.

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

21 seeks an extension under paragraph (1) other

22 than one described in subparagraph (A), the re23 quest shall be filed not earlier than the date that

24 is 6 months, and not later than a date that is
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1 3 months, before the date that marks the end of

2 the period referred to in subparagraph (A).

3 ‘‘(3) DETERMINATION.—

4 ‘‘(A) NOTICE OF REQUEST FOR EXTEN5 SION.—If a proper request has been received

6 under paragraph (1), the administering author7 ity shall publish notice of initiation of an exten8 sion proceeding in the Federal Register not later

9 than 15 days after the applicable deadline in

10 paragraph (2) for requesting the extension.

11 ‘‘(B) PROCEDURES.—

12 ‘‘(i) REQUESTS FOR EXTENSION BE13 YOND 4 YEARS.—If paragraph (2)(A) ap14 plies to the request, the administering au15 thority shall consult with the Trade Rep16 resentative under paragraph (4).

17 ‘‘(ii) OTHER REQUESTS.—If para18 graph (2)(B) applies to the request, the ad19 ministering authority shall determine, with20 in 90 days after the date on which the no21 tice of initiation of the proceeding is pub22 lished, whether the requesting party has

23 demonstrated that the scope or duration of

24 the countermeasures is inadequate in light

25 of all of the circumstances. If the admin-
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1 istering authority determines that an exten2 sion is warranted, it shall amend the coun3 termeasure order accordingly. The admin4 istering authority shall promptly publish

5 the determination and any amendment to

6 the order in the Federal Register, and shall

7 provide a copy of any amended order to the

8 Customs Service.

9 ‘‘(4) CONSULTATION WITH TRADE REPRESENTA10 TIVE.—If paragraph (3)(B)(i) applies, the admin11 istering authority shall consult with the Trade Rep12 resentative concerning whether it would be appro13 priate to request establishment of a dispute settlement

14 panel under the Shipbuilding Agreement for the pur15 pose of seeking authorization to extend the scope or

16 duration of countermeasures for a period in excess of

17 4 years.

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

19 based on consultations under paragraph (4), the

20 Trade Representative decides not to request establish21 ment of a panel, the Trade Representative shall in22 form the party requesting the extension of the counter23 measures of the reasons for its decision in writing.

24 The decision shall not be subject to judicial review.
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1 ‘‘(6) PANEL PROCEEDINGS.—If, based on con2 sultations under paragraph (4), the Trade Represent3 ative requests the establishment of a panel under the

4 Shipbuilding Agreement to authorize an extension of

5 the period of countermeasures, and the panel author6 izes such an extension, the administering authority

7 shall promptly amend the countermeasure order. The

8 administering authority shall publish notice of the

9 amendment in the Federal Register.

10 ‘‘(f) LIST OF VESSELS SUBJECT TO COUNTER11 MEASURES.—

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

13 12-month period beginning on the anniversary date of

14 a determination to impose countermeasures under

15 this section, the administering authority shall publish

16 in the Federal Register a list of all delivered vessels

17 subject to countermeasures under the determination.

18 ‘‘(2) CONTENT OF LIST.—The list under para19 graph (1) shall include the following information for

20 each vessel, to the extent the information is available:

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

22 the vessel.

23 ‘‘(B) The vessel identification number.

24 ‘‘(C) The shipyard where the vessel was con25 structed.
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1 ‘‘(D) The last-known registry of the vessel.

2 ‘‘(E) The name and address of the last3 known owner of the vessel.

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

5 ‘‘(G) The remaining duration of counter6 measures on the vessel.

7 ‘‘(H) Any other identifying information

8 available.

9 ‘‘(3) AMENDMENT OF LIST.—-The administering

10 authority may amend the list from time to time to re11 flect new information that comes to its attention and

12 shall publish any amendments in the Federal Reg13 ister.

14 ‘‘(4) SERVICE OF LIST AND AMENDMENTS.—(A)

15 The administering authority shall serve a copy of the

16 list described in paragraph (1) on—

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

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

19 ‘‘(iii) the Secretariat of the Organization

20 for Economic Cooperation and Development,

21 ‘‘(iv) the owners of vessels on the list,

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

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

24 which a shipyard on the list is located.
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1 ‘‘(B) The administering authority shall serve a

2 copy of any amendments to the list under paragraph

3 (3) or subsection (g)(3) on—

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

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

6 ‘‘(ii) if the amendment affects their inter7 ests, the parties listed in clauses (iv), (v), and

8 (vi) of subparagraph (A).

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

10 SUBJECT TO COUNTERMEASURES.—

11 ‘‘(1) REQUEST FOR REVIEW.—(A) An interested

12 party may request in writing a review of the list de13 scribed in subsection (f)(1), including any amend14 ments thereto, to determine whether—

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

16 fall within the scope of the applicable counter17 measure order and should be deleted, or

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

19 within the scope of the applicable counter20 measure order and should be added.

21 ‘‘(B) Any request seeking a determination de22 scribed in subparagraph (A)(i) shall be made within

23 90 days after the date of publication of the applicable

24 list.
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1 ‘‘(2) REVIEW.—If a proper request for review has

2 been received, the administering authority shall—

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

4 in the Federal Register—

5 ‘‘(i) not later than 15 days after the re6 quest is received, or

7 ‘‘(ii) if the request seeks a determina8 tion described in paragraph (1)(A)(i), not

9 later than 15 days after the deadline de10 scribed in paragraph (1)(B), and

11 ‘‘(B) review and determine whether the re12 questing party has demonstrated that—

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

14 not qualify for such inclusion, or

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

16 qualifies for inclusion.

17 ‘‘(3) TIME FOR DETERMINATION.—The admin18 istering authority shall make its determination under

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

20 which the notice of initiation of such review is pub21 lished. If the administering authority determines that

22 a vessel should be added or deleted from the list, the

23 administering authority shall amend the list accord24 ingly. The administering authority shall promptly
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1 publish in the Federal Register the determination and

2 any such amendment to the list.

3 ‘‘(h) EXPIRATION OF COUNTERMEASURES.—Upon ex4 piration of a countermeasure order imposed under this sec5 tion, the administering authority shall promptly publish a

6 notice of the expiration in the Federal Register.

7 ‘‘(i) SUSPENSION OR TERMINATION OF PROCEEDINGS

8 OR COUNTERMEASURES; TEMPORARY REDUCTION OF

9 COUNTERMEASURES.—

10 ‘‘(1) IF INJURIOUS PRICING ORDER REVOKED OR

11 SUSPENDED.—If an injurious pricing order has been

12 revoked or suspended under section 806(d) or (e), the

13 administering authority shall, as appropriate, sus14 pend or terminate proceedings under this section with

15 respect to that order, or suspend or revoke a counter16 measure order issued with respect to that injurious

17 pricing order.

18 ‘‘(2) IF PAYMENT DATE AMENDED.—(A) Subject

19 to subparagraph (C), if the payment date under an

20 injurious pricing order is amended under section 845,

21 the administering authority shall, as appropriate,

22 suspend proceedings or modify deadlines under this

23 section, or suspend or amend a countermeasure order

24 issued with respect to that injurious pricing order.
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1 ‘‘(B) In taking action under subparagraph (A),

2 the administering authority shall ensure that counter3 measures are not applied before the date that is 30

4 days after publication in the Federal Register of the

5 amended payment date.

6 ‘‘(C) If—

7 ‘‘(i) a countermeasure order is issued under

8 subsection (c) before an amendment is made

9 under section 845 to the payment date of the in10 jurious pricing order to which the counter11 measure order applies, and

12 ‘‘(ii) the administering authority deter13 mines that the period of time between the origi14 nal payment date and the amended payment

15 date is significant for purposes of determining

16 the appropriate scope or duration of counter17 measures,

18 the administering authority may, in lieu of acting

19 under subparagraph (A), reinstitute proceedings

20 under subsection (c) for purposes of issuing a new de21 termination under that subsection.

22 ‘‘(j) COMMENT AND HEARING.—In the course of any

23 proceeding under subsection (c), (d), (e), or (g), the admin24 istering authority—
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1 ‘‘(1) shall solicit comments from interested par2 ties, and

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

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

5 a hearing in accordance with section 841(b) in con6 nection with that proceeding, or

7 ‘‘(B) in a proceeding under subsection (e) or (g),

8 upon the request of an interested party, may hold a

9 hearing in accordance with section 841(b) in connec10 tion with that proceeding.

11 ‘‘SEC. 808. INJURIOUS PRICING PETITIONS BY THIRD COUN12 TRIES.

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

14 Shipbuilding Agreement Party may file with the Trade

15 Representative a petition requesting that an investigation

16 be conducted to determine if—

17 ‘‘(1) a vessel from another Shipbuilding Agree18 ment Party has been sold in the United States at less

19 than fair value, and

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

21 producing or capable of producing a like vessel is ma22 terially injured by reason of such sale.

23 ‘‘(b) INITIATION.—The Trade Representative, after

24 consultation with the administering authority and the

25 Commission and obtaining the approval of the Parties
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1 Group under the Shipbuilding Agreement, shall determine

2 whether to initiate an investigation described in subsection

3 (a).

4 ‘‘(c) DETERMINATIONS.—Upon initiation of an inves5 tigation under subsection (a), the Trade Representative

6 shall request the following determinations be made in ac7 cordance with substantive and procedural requirements

8 specified by the Trade Representative, notwithstanding any

9 other provision of this title:

10 ‘‘(1) The administering authority shall deter11 mine whether the subject vessel has been sold at less

12 than fair value.

13 ‘‘(2) The Commission shall determine whether an

14 industry in the petitioning country is materially in15 jured by reason of the sale of the subject vessel in the

16 United States.

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

18 comment shall be provided, as appropriate—

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

20 determinations required by subsection (b), and

21 ‘‘(2) by the administering authority and the

22 Commission, in making the determinations required

23 by subsection (c).

24 ‘‘(e) ISSUANCE OF ORDER.—If the administering au25 thority makes an affirmative determination under para-
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1 graph (1) of subsection (c), and the Commission makes an

2 affirmative determination under paragraph (2) of sub3 section (c), the administering authority shall—

4 ‘‘(1) order an injurious pricing charge in accord5 ance with section 806, and

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

7 other actions as are required by sections 806 and 807,

8 as if affirmative determinations had been made under

9 subsections (a) and (b) of section 805.

10 ‘‘(f) REVIEWS OF DETERMINATIONS.—For purposes of

11 review under section 516B, if an order is issued under sub12 section (e)—

13 ‘‘(1) the final determinations of the administer14 ing authority and the Commission under subsection

15 (c) shall be treated as final determinations made

16 under section 805, and

17 ‘‘(2) determinations of the administering author18 ity under subsection (e)(2) shall be treated as deter19 minations made under section 806 or 807, as the case

20 may be.

21 ‘‘(g) ACCESS TO INFORMATION.—Section 843 shall

22 apply to investigations under this section, to the extent

23 specified by the Trade Representative, after consultation

24 with the administering authority and the Commission.
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1 ‘‘Subtitle B—Special Rules

2 ‘‘SEC. 821. EXPORT PRICE.

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

4 term ‘export price’ means the price at which the subject ves5 sel is first sold (or agreed to be sold) by or for the account

6 of the foreign producer of the subject vessel to an unaffili7 ated United States buyer. The term ‘sold (or agreed to be

8 sold) by or for the account of the foreign producer’ includes

9 any transfer of an ownership interest, including by way

10 of lease or long-term bareboat charter, in conjunction with

11 the original transfer from the producer, either directly or

12 indirectly, to a United States buyer.

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

14 used to establish export price shall be—

15 ‘‘(1) increased by the amount of any import du16 ties imposed by the country of exportation which have

17 been rebated, or which have not been collected, by rea18 son of the exportation of the subject vessel, and

19 ‘‘(2) reduced by—

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

21 price, attributable to any additional costs,

22 charges, or expenses which are incident to bring23 ing the subject vessel from the shipyard in the ex24 porting country to the place of delivery,
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1 ‘‘(B) the amount, if included in such price,

2 of any export tax, duty, or other charge imposed

3 by the exporting country on the exportation of

4 the subject vessel, and

5 ‘‘(C) all other expenses incidental to placing

6 the vessel in condition for delivery to the buyer.

7 ‘‘SEC. 822. NORMAL VALUE.

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

9 title whether a subject vessel has been sold at less than fair

10 value, a fair comparison shall be made between the export

11 price and normal value of the subject vessel. In order to

12 achieve a fair comparison with the export price, normal

13 value shall be determined as follows:

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

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

16 subject vessel shall be the price described in sub17 paragraph (B), at a time reasonably correspond18 ing to the time of the sale used to determine the

19 export price under section 821(a).

20 ‘‘(B) PRICE.—The price referred to in sub21 paragraph (A) is—

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

23 vessel is first sold in the exporting country,

24 in the ordinary course of trade and, to the
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1 extent practicable, at the same level of

2 trade, or

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

4 (C) applies, the price at which a foreign

5 like vessel is so sold for consumption in a

6 country other than the exporting country or

7 the United States, if—

8 ‘‘(I) such price is representative,

9 and

10 ‘‘(II) the administering authority

11 does not determine that the particular

12 market situation in such other country

13 prevents a proper comparison with the

14 export price.

15 ‘‘(C) THIRD COUNTRY SALES.—This sub16 paragraph applies when—

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

18 the exporting country as described in sub19 paragraph (B)(i), or

20 ‘‘(ii) the particular market situation

21 in the exporting country does not permit a

22 proper comparison with the export price.

23 ‘‘(D) CONTEMPORANEOUS SALE.—For pur24 poses of subparagraph (A), ‘a time reasonably

25 corresponding to the time of the sale’ means
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1 within 3 months before or after the sale of the

2 subject vessel or, in the absence of such sales,

3 such longer period as the administering author4 ity determines would be appropriate.

5 ‘‘(2) FICTITIOUS MARKETS.—No pretended sale,

6 and no sale intended to establish a fictitious market,

7 shall be taken into account in determining normal

8 value.

9 ‘‘(3) USE OF CONSTRUCTED VALUE.—If the ad10 ministering authority determines that the normal

11 value of the subject vessel cannot be determined under

12 paragraph (1)(B) or (1)(C), then the normal value of

13 the subject vessel shall be the constructed value of that

14 vessel, as determined under subsection (e).

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

16 sold through an affiliated party, the price at which

17 the foreign like vessel is sold by such affiliated party

18 may be used in determining normal value.

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

20 paragraph (1)(B) shall be—

21 ‘‘(A) reduced by—

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

23 the price described in paragraph (1)(B), at24 tributable to any costs, charges, and ex25 penses incident to bringing the foreign like
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1 vessel from the shipyard to the place of de2 livery to the purchaser,

3 ‘‘(ii) the amount of any taxes imposed

4 directly upon the foreign like vessel or com5 ponents thereof which have been rebated, or

6 which have not been collected, on the subject

7 vessel, but only to the extent that such taxes

8 are added to or included in the price of the

9 foreign like vessel, and

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

11 incidental to placing the foreign like vessel

12 in condition for delivery to the buyer, and

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

14 of any difference (or lack thereof) between the ex15 port price and the price described in paragraph

16 (1)(B) (other than a difference for which allow17 ance is otherwise provided under this section)

18 that is established to the satisfaction of the ad19 ministering authority to be wholly or partly due

20 to—

21 ‘‘(i) physical differences between the

22 subject vessel and the vessel used in deter23 mining normal value, or

24 ‘‘(ii) other differences in the cir25 cumstances of sale.
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1 ‘‘(6) ADJUSTMENTS FOR LEVEL OF TRADE.—The

2 price described in paragraph (1)(B) shall also be in3 creased or decreased to make due allowance for any

4 difference (or lack thereof) between the export price

5 and the price described in paragraph (1)(B) (other

6 than a difference for which allowance is otherwise

7 made under this section) that is shown to be wholly

8 or partly due to a difference in level of trade between

9 the export price and normal value, if the difference in

10 level of trade—

11 ‘‘(A) involves the performance of different

12 selling activities, and

13 ‘‘(B) is demonstrated to affect price com14 parability, based on a pattern of consistent price

15 differences between sales at different levels of

16 trade in the country in which normal value is

17 determined.

18 In a case described in the preceding sentence, the

19 amount of the adjustment shall be based on the price

20 differences between the two levels of trade in the coun21 try in which normal value is determined.

22 ‘‘(7) ADJUSTMENTS TO CONSTRUCTED VALUE.—

23 Constructed value as determined under subsection (d)

24 may be adjusted, as appropriate, pursuant to this

25 subsection.
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1 ‘‘(b) SALES AT LESS THAN COST OF PRODUCTION.—

2 ‘‘(1) DETERMINATION; SALES DISREGARDED.—

3 Whenever the administering authority has reasonable

4 grounds to believe or suspect that the sale of the for5 eign like vessel under consideration for the determina6 tion of normal value has been made at a price which

7 represents less than the cost of production of the for8 eign like vessel, the administering authority shall de9 termine whether, in fact, such sale was made at less

10 than the cost of production. If the administering au11 thority determines that the sale was made at less than

12 the cost of production and was not at a price which

13 permits recovery of all costs within 5 years, such sale

14 may be disregarded in the determination of normal

15 value. Whenever such a sale is disregarded, normal

16 value shall be based on another sale of a foreign like

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

18 made in the ordinary course of trade remain, the nor19 mal value shall be based on the constructed value of

20 the subject vessel.

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

22 purposes of this subsection:

23 ‘‘(A) REASONABLE GROUNDS TO BELIEVE

24 OR SUSPECT.—There are reasonable grounds to

25 believe or suspect that the sale of a foreign like
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1 vessel was made at a price that is less than the

2 cost of production of the vessel, if an interested

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

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

5 based upon observed prices or constructed prices

6 or costs, that the sale of the foreign like vessel

7 under consideration for the determination of nor8 mal value has been made at a price which rep9 resents less than the cost of production of the ves10 sel.

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

12 below the cost of production at the time of sale

13 but is above the weighted average cost of produc14 tion for the period of investigation, such price

15 shall be considered to provide for recovery of

16 costs within 5 years.

17 ‘‘(3) CALCULATION OF COST OF PRODUCTION.—

18 For purposes of this section, the cost of production

19 shall be an amount equal to the sum of—

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

21 or other processing of any kind employed in pro22 ducing the foreign like vessel, during a period

23 which would ordinarily permit the production of

24 that vessel in the ordinary course of business,

25 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 which

11 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 non15 market 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 value

22 of the factors of production utilized in producing the

23 vessel and to which shall be added an amount for gen24 eral expenses and profit plus the cost of expenses inci25 dental to placing the vessel in a condition for delivery
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1 to the buyer. Except as provided in paragraph (2),

2 the valuation of the factors of production shall be

3 based on the best available information regarding the

4 values of such factors in a market economy country

5 or countries considered to be appropriate by the ad6 ministering 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 administering

11 authority shall determine the normal value on the

12 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 econ15 omy countries that are at a level of economic de16 velopment comparable to that of the nonmarket

17 economy country,

18 is sold in other countries, including the United

19 States.

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

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

22 producing the vessel include, but are not limited to—

23 ‘‘(A) hours of labor required,

24 ‘‘(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 PRODUCTION.—

6 The administering authority, in valuing factors of

7 production under paragraph (1), shall utilize, to the

8 extent possible, the prices or costs of factors of produc9 tion in one or more market economy countries that

10 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 pro3 duced in one or more of the facilities outside the ex4 porting country is higher than the normal value of

5 the foreign like vessel produced in the facilities located

6 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 facili10 ties outside the exporting country. The administering au11 thority, 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 facilities

15 outside the exporting country and costs of production of the

16 foreign like vessel produced in facilities in the exporting

17 country, if such differences are demonstrated to its satisfac18 tion.

19 ‘‘(e) CONSTRUCTED VALUE.—

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

21 constructed value of a subject vessel shall be an

22 amount equal to the sum of—

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

24 other processing of any kind employed in pro25 ducing the subject vessel, during a period which
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1 would ordinarily permit the production of the

2 vessel in the ordinary course of business, and

3 ‘‘(B)(i) the actual amounts incurred and re4 alized by the foreign producer of the subject ves5 sel for selling, general, and administrative ex6 penses, and for profits, in connection with the

7 production and sale of a foreign like vessel, in

8 the ordinary course of trade, in the domestic

9 market of the country of origin of the subject ves10 sel, or

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

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

13 then—

14 ‘‘(I) the actual amounts incurred and

15 realized by the foreign producer of the sub16 ject vessel for selling, general, and adminis17 trative expenses, and for profits, in connec18 tion with the production and sale of the

19 same general category of vessel in the do20 mestic market of the country of origin of the

21 subject vessel,

22 ‘‘(II) the weighted average of the actual

23 amounts incurred and realized by producers

24 in the country of origin of the subject vessel

25 (other than the producer of the subject ves-
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1 sel) for selling, general, and administrative

2 expenses, and for profits, in connection with

3 the production and sale of a foreign like

4 vessel, in the ordinary course of trade, in

5 the domestic market, or

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

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

8 and realized for selling, general, and ad9 ministrative expenses, and for profits, based

10 on any other reasonable method, except that

11 the amount allowed for profit may not ex12 ceed the amount normally realized by for13 eign producers (other than the producer of

14 the subject vessel) in connection with the

15 sale of vessels in the same general category

16 of vessel as the subject vessel in the domestic

17 market of the country of origin of the sub18 ject vessel.

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

20 based on the average profit realized over a reasonable

21 period of time before and after the sale of the subject

22 vessel and shall reflect a reasonable profit at the time

23 of such sale. For purposes of the preceding sentence,

24 a ‘reasonable period of time’ shall not, except where

25 otherwise appropriate, exceed 6 months before, or 6
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1 months after, the sale of the subject vessel. In calculat2 ing profit under this paragraph, any distortion which

3 would result in other than a profit which is reason4 able at the time of the sale shall be eliminated.

5 ‘‘(2) COSTS AND PROFITS BASED ON OTHER REA6 SONABLE METHODS.—When costs and profits are de7 termined under paragraph (1)(B)(ii)(III), such deter8 mination shall, except where otherwise appropriate,

9 be based on appropriate export sales by the producer

10 of the subject vessel or, absent such sales, to export

11 sales by other producers of a foreign like vessel or the

12 same general category of vessel as the subject vessel in

13 the country of origin of the subject vessel.

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

15 paragraph (1)(A), the cost of materials shall be deter16 mined without regard to any internal tax in the ex17 porting country imposed on such materials or their

18 disposition which are remitted or refunded upon ex19 portation of the subject vessel produced from such ma20 terials.

21 ‘‘(f) SPECIAL RULES FOR CALCULATION OF COST OF

22 PRODUCTION AND FOR CALCULATION OF CONSTRUCTED

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

24 ‘‘(1) COSTS.—
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1 ‘‘(A) IN GENERAL.—Costs shall normally be

2 calculated based on the records of the foreign

3 producer of the subject vessel, if such records are

4 kept in accordance with the generally accepted

5 accounting principles of the exporting country

6 and reasonably reflect the costs associated with

7 the production and sale of the vessel. The admin8 istering authority shall consider all available

9 evidence on proper allocation of costs, including

10 that which is made available by the foreign pro11 ducer on a timely basis, if such allocations have

12 been historically used by the foreign producer, in

13 particular for establishing appropriate amortiza14 tion and depreciation periods, and allowances

15 for capital expenditures and other development

16 costs.

17 ‘‘(B) NONRECURRING COSTS.—Costs shall be

18 adjusted appropriately for those nonrecurring

19 costs that benefit current or future production, or

20 both.

21 ‘‘(C) STARTUP COSTS.—

22 ‘‘(i) IN GENERAL.—Costs shall be ad23 justed appropriately for circumstances in

24 which costs incurred during the time period
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1 covered by the investigation are affected by

2 startup operations.

3 ‘‘(ii) STARTUP OPERATIONS.—Adjust4 ments shall be made for startup operations

5 only where—

6 ‘‘(I) a producer is using new pro7 duction facilities or producing a new

8 type of vessel that requires substantial

9 additional investment, and

10 ‘‘(II) production levels are limited

11 by technical factors associated with the

12 initial phase of commercial produc13 tion.

14 For purposes of subclause (II), the initial

15 phase of commercial production ends at the

16 end of the startup period. In determining

17 whether commercial production levels have

18 been achieved, the administering authority

19 shall consider factors unrelated to startup

20 operations that might affect the volume of

21 production processed, such as demand,

22 seasonality, or business cycles.

23 ‘‘(iii) ADJUSTMENT FOR STARTUP OP24 ERATIONS.—The adjustment for startup op25 erations shall be made by substituting the
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1 unit production costs incurred with respect

2 to the vessel at the end of the startup period

3 for the unit production costs incurred dur4 ing the startup period. If the startup period

5 extends beyond the period of the investiga6 tion under this title, the administering au7 thority shall use the most recent cost of pro8 duction data that it reasonably can obtain,

9 analyze, and verify without delaying the

10 timely completion of the investigation. For

11 purposes of this subparagraph, the startup

12 period ends at the point at which the level

13 of commercial production that is char14 acteristic of the vessel, the producer, or the

15 industry is achieved.

16 ‘‘(D) COSTS DUE TO EXTRAORDINARY CIR17 CUMSTANCES NOT INCLUDED.—Costs shall not

18 include actual costs which are due to extraor19 dinary circumstances (including, but not limited

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

21 and which are significantly over the cost in22 crease which the shipbuilder could have reason23 ably anticipated and taken into account at the

24 time of sale.
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1 ‘‘(2) TRANSACTIONS DISREGARDED.—A trans2 action directly or indirectly between affiliated persons

3 may be disregarded if, in the case of any element of

4 value required to be considered, the amount represent5 ing that element does not fairly reflect the amount

6 usually reflected in sales of a like vessel in the market

7 under consideration. If a transaction is disregarded

8 under the preceding sentence and no other trans9 actions are available for consideration, the determina10 tion of the amount shall be based on the information

11 available as to what the amount would have been if

12 the transaction had occurred between persons who are

13 not affiliated.

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

15 transaction between affiliated persons involving the

16 production by one of such persons of a major input

17 to the subject vessel, the administering authority has

18 reasonable grounds to believe or suspect that an

19 amount represented as the value of such input is less

20 than the cost of production of such input, then the ad21 ministering authority may determine the value of the

22 major input on the basis of the information available

23 regarding such cost of production, if such cost is

24 greater than the amount that would be determined for

25 such input under paragraph (2).
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1 ‘‘SEC. 823. CURRENCY CONVERSION.

2 ‘‘(a) IN GENERAL.—In an injurious pricing proceed3 ing under this title, the administering authority shall con4 vert foreign currencies into United States dollars using the

5 exchange rate in effect on the date of sale of the subject ves6 sel, except that if it is established that a currency trans7 action on forward markets is directly linked to a sale under

8 consideration, the exchange rate specified with respect to

9 such foreign currency in the forward sale agreement shall

10 be used to convert the foreign currency.

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

12 ‘date of sale’ means the date of the contract of sale or, where

13 appropriate, the date on which the material terms of sale

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

15 significantly changed after such date, the date of sale is the

16 date of such change. In the case of such a change in the

17 date of sale, the administering authority shall make appro18 priate adjustments to take into account any unreasonable

19 effect on the injurious pricing margin due only to fluctua20 tions in the exchange rate between the original date of sale

21 and the new date of sale.

22 ‘‘Subtitle C—Procedures

23 ‘‘SEC. 841. HEARINGS.

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

25 and the Commission shall each hold a hearing in the course

26 of an investigation under this title, upon the request of any
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1 party to the investigation, before making a final determina2 tion under section 805.

3 ‘‘(b) PROCEDURES.—Any hearing required or per4 mitted under this title shall be conducted after notice pub5 lished in the Federal Register, and a transcript of the hear6 ing shall be prepared and made available to the public. The

7 hearing shall not be subject to the provisions of subchapter

8 II of chapter 5 of title 5, United States Code, or to section

9 702 of such title.

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

11 AVAILABLE.

12 ‘‘(a) IN GENERAL.—If—

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

14 the record, or

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

16 ‘‘(A) withholds information that has been

17 requested by the administering authority or the

18 Commission under this title,

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

20 the deadlines for the submission of the informa21 tion or in the form and manner requested, sub22 ject to subsections (b)(1) and (d) of section 844,

23 ‘‘(C) significantly impedes a proceeding

24 under this title, or
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1 ‘‘(D) provides such information but the in2 formation cannot be verified as provided in sec3 tion 844(g),

4 the administering authority and the Commission

5 shall, subject to section 844(c), use the facts otherwise

6 available in reaching the applicable determination

7 under this title.

8 ‘‘(b) ADVERSE INFERENCES.—If the administering au9 thority or the Commission (as the case may be) finds that

10 an interested party has failed to cooperate by not acting

11 to the best of its ability to comply with a request for infor12 mation from the administering authority or the Commis13 sion, the administering authority or the Commission (as

14 the case may be), in reaching the applicable determination

15 under this title, may use an inference that is adverse to

16 the interests of that party in selecting from among the facts

17 otherwise available. Such adverse inference may include re18 liance on information derived from—

19 ‘‘(1) the petition, or

20 ‘‘(2) any other information placed on the record.

21 ‘‘(c) CORROBORATION OF SECONDARY INFORMA22 TION.—When the administering authority or the Commis23 sion relies on secondary information rather than on infor24 mation obtained in the course of an investigation under this

25 title, the administering authority and the Commission, as
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1 the case may be, shall, to the extent practicable, corroborate

2 that information from independent sources that are reason3 ably at their disposal.

4 ‘‘SEC. 843. ACCESS TO INFORMATION.

5 ‘‘(a) INFORMATION GENERALLY MADE AVAILABLE.—

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

7 The administering authority and the Commission

8 shall, from time to time upon request, inform the par9 ties to an investigation under this title of the progress

10 of that investigation.

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

12 authority and the Commission shall maintain a

13 record of any ex parte meeting between—

14 ‘‘(A) interested parties or other persons pro15 viding factual information in connection with a

16 proceeding under this title, and

17 ‘‘(B) the person charged with making the

18 determination, or any person charged with mak19 ing a final recommendation to that person, in

20 connection with that proceeding,

21 if information relating to that proceeding was pre22 sented or discussed at such meeting. The record of

23 such an ex parte meeting shall include the identity of

24 the persons present at the meeting, the date, time, and

25 place of the meeting, and a summary of the matters
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1 discussed or submitted. The record of the ex parte

2 meeting shall be included in the record of the proceed3 ing.

4 ‘‘(3) SUMMARIES; NON-PROPRIETARY SUBMIS5 SIONS.—The administering authority and the Com6 mission shall disclose—

7 ‘‘(A) any proprietary information received

8 in the course of a proceeding under this title if

9 it is disclosed in a form which cannot be associ10 ated with, or otherwise be used to identify, oper11 ations of a particular person, and

12 ‘‘(B) any information submitted in connec13 tion with a proceeding which is not designated

14 as proprietary by the person submitting it.

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

16 administering authority and the Commission shall

17 maintain and make available for public inspection

18 and copying a record of all information which is ob19 tained by the administering authority or the Commis20 sion, as the case may be, in a proceeding under this

21 title to the extent that public disclosure of the infor22 mation is not prohibited under this chapter or exempt

23 from disclosure under section 552 of title 5, United

24 States Code.

25 ‘‘(b) PROPRIETARY INFORMATION.—
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1 ‘‘(1) PROPRIETARY STATUS MAINTAINED.—

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

3 subsection (a)(4) and subsection (c), information

4 submitted to the administering authority or the

5 Commission which is designated as proprietary

6 by the person submitting the information shall

7 not be disclosed to any person without the con8 sent of the person submitting the information,

9 other than—

10 ‘‘(i) to an officer or employee of the ad11 ministering authority or the Commission

12 who is directly concerned with carrying out

13 the investigation in connection with which

14 the information is submitted or any other

15 proceeding under this title covering the

16 same subject vessel, or

17 ‘‘(ii) to an officer or employee of the

18 United States Customs Service who is di19 rectly involved in conducting an investiga20 tion regarding fraud under this title.

21 ‘‘(B) ADDITIONAL REQUIREMENTS.—The

22 administering authority and the Commission

23 shall require that information for which propri24 etary treatment is requested be accompanied

25 by—
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1 ‘‘(i) either—

2 ‘‘(I) a nonproprietary summary

3 in sufficient detail to permit a reason4 able understanding of the substance of

5 the information submitted in con6 fidence, or

7 ‘‘(II) a statement that the infor8 mation is not susceptible to summary,

9 accompanied by a statement of the rea10 sons in support of the contention, and

11 ‘‘(ii) either—

12 ‘‘(I) a statement which permits

13 the administering authority or the

14 Commission to release under adminis15 trative protective order, in accordance

16 with subsection (c), the information

17 submitted in confidence, or

18 ‘‘(II) a statement to the admin19 istering authority or the Commission

20 that the business proprietary informa21 tion is of a type that should not be re22 leased under administrative protective

23 order.

24 ‘‘(2) UNWARRANTED DESIGNATION.—If the ad25 ministering authority or the Commission determines,
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1 on the basis of the nature and extent of the informa2 tion or its availability from public sources, that des3 ignation of any information as proprietary is unwar4 ranted, then it shall notify the person who submitted

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

6 designation. Unless that person persuades the admin7 istering authority or the Commission that the des8 ignation is warranted, or withdraws the designation,

9 the administering authority or the Commission, as

10 the case may be, shall return it to the party submit11 ting it. In a case in which the administering author12 ity or the Commission returns the information to the

13 person submitting it, the person may thereafter sub14 mit other material concerning the subject matter of

15 the returned information if the submission is made

16 within the time otherwise provided for submitting

17 such material.

18 ‘‘(c) LIMITED DISCLOSURE OF CERTAIN PROPRIETARY

19 INFORMATION UNDER PROTECTIVE ORDER.—

20 ‘‘(1) DISCLOSURE BY ADMINISTERING AUTHOR21 ITY OR COMMISSION.—

22 ‘‘(A) IN GENERAL.—Upon receipt of an ap23 plication (before or after receipt of the informa24 tion requested) which describes in general terms

25 the information requested and sets forth the rea-
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1 sons for the request, the administering authority

2 or the Commission shall make all business pro3 prietary information presented to, or obtained by

4 it, during a proceeding under this title (except

5 privileged information, classified information,

6 and specific information of a type for which

7 there is a clear and compelling need to withhold

8 from disclosure) available to all interested par9 ties who are parties to the proceeding under a

10 protective order described in subparagraph (B),

11 regardless of when the information is submitted

12 during the proceeding. Customer names (other

13 than the name of the United States buyer of the

14 subject vessel) obtained during any investigation

15 which requires a determination under section

16 805(b) may not be disclosed by the administering

17 authority under protective order until either an

18 order is published under section 806(a) as a re19 sult of the investigation or the investigation is

20 suspended or terminated. The Commission may

21 delay disclosure of customer names (other than

22 the name of the United States buyer of the sub23 ject vessel) under protective order during any

24 such investigation until a reasonable time before

25 any hearing provided under section 841 is held.
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1 ‘‘(B) PROTECTIVE ORDER.—The protective

2 order under which information is made available

3 shall contain such requirements as the admin4 istering authority or the Commission may deter5 mine by regulation to be appropriate. The ad6 ministering authority and the Commission shall

7 provide by regulation for such sanctions as the

8 administering authority and the Commission de9 termine to be appropriate, including disbarment

10 from practice before the agency.

11 ‘‘(C) TIME LIMITATIONS ON DETERMINA12 TIONS.—The administering authority or the

13 Commission, as the case may be, shall determine

14 whether to make information available under

15 this paragraph—

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

17 the submission pertains to a proceeding

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

19 which the information is submitted, or

20 ‘‘(ii) if—

21 ‘‘(I) the person submitting the in22 formation raises objection to its release,

23 or

24 ‘‘(II) the information is unusually

25 voluminous or complex,
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1 not later than 30 days (10 days if the sub2 mission pertains to a proceeding under sec3 tion 803(a)) after the date on which the in4 formation is submitted.

5 ‘‘(D) AVAILABILITY AFTER DETERMINA6 TION.—If the determination under subparagraph

7 (C) is affirmative, then—

8 ‘‘(i) the business proprietary informa9 tion submitted to the administering author10 ity or the Commission on or before the date

11 of the determination shall be made avail12 able, subject to the terms and conditions of

13 the protective order, on such date, and

14 ‘‘(ii) the business proprietary informa15 tion submitted to the administering author16 ity or the Commission after the date of the

17 determination shall be served as required by

18 subsection (d).

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

20 submitting information to the administering au21 thority refuses to disclose business proprietary

22 information which the administering authority

23 determines should be released under a protective

24 order described in subparagraph (B), the admin25 istering authority shall return the information,
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1 and any nonconfidential summary thereof, to the

2 person submitting the information and summary

3 and shall not consider either.

4 ‘‘(2) DISCLOSURE UNDER COURT ORDER.—If the

5 administering authority or the Commission denies a

6 request for information under paragraph (1), then

7 application may be made to the United States Court

8 of International Trade for an order directing the ad9 ministering authority or the Commission, as the case

10 may be, to make the information available. After no11 tification of all parties to the investigation and after

12 an opportunity for a hearing on the record, the court

13 may issue an order, under such conditions as the

14 court deems appropriate, which shall not have the ef15 fect of stopping or suspending the investigation, di16 recting the administering authority or the Commis17 sion to make all or a portion of the requested infor18 mation described in the preceding sentence available

19 under a protective order and setting forth sanctions

20 for violation of such order if the court finds that,

21 under the standards applicable in proceedings of the

22 court, such an order is warranted, and that—

23 ‘‘(A) the administering authority or the

24 Commission has denied access to the information

25 under subsection (b)(1),
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1 ‘‘(B) the person on whose behalf the infor2 mation is requested is an interested party who is

3 a party to the investigation in connection with

4 which the information was obtained or devel5 oped, and

6 ‘‘(C) the party which submitted the infor7 mation to which the request relates has been no8 tified, in advance of the hearing, of the request

9 made under this section and of its right to ap10 pear and be heard.

11 ‘‘(d) SERVICE.—Any party submitting written infor12 mation, including business proprietary information, to the

13 administering authority or the Commission during a pro14 ceeding shall, at the same time, serve the information upon

15 all interested parties who are parties to the proceeding, if

16 the information is covered by a protective order. The ad17 ministering authority or the Commission shall not accept

18 any such information that is not accompanied by a certifi19 cate of service and a copy of the protective order version

20 of the document containing the information. Business pro21 prietary information shall only be served upon interested

22 parties who are parties to the proceeding that are subject

23 to protective order, except that a nonconfidential summary

24 thereof shall be served upon all other interested parties who

25 are parties to the proceeding.
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1 ‘‘(e) INFORMATION RELATING TO VIOLATIONS OF PRO2 TECTIVE ORDERS AND SANCTIONS.—The administering au3 thority and the Commission may withhold from disclosure

4 any correspondence, private letters of reprimand, settlement

5 agreements, and documents and files compiled in relation

6 to investigations and actions involving a violation or pos7 sible violation of a protective order issued under subsection

8 (c), and such information shall be treated as information

9 described in section 552(b)(3) of title 5, United States Code.

10 ‘‘(f) OPPORTUNITY FOR COMMENT BY VESSEL BUY11 ERS.—The administering authority and the Commission

12 shall provide an opportunity for buyers of subject vessels

13 to submit relevant information to the administering author14 ity concerning a sale at less than fair value or counter15 measures, and to the Commission concerning material in16 jury by reason of the sale of a vessel at less than fair value.

17 ‘‘(g) PUBLICATION OF DETERMINATIONS; REQUIRE18 MENTS FOR FINAL DETERMINATIONS.—

19 ‘‘(1) IN GENERAL.—Whenever the administering

20 authority makes a determination under section 802

21 whether to initiate an investigation, or the admin22 istering authority or the Commission makes a pre23 liminary determination under section 803, a final de24 termination under section 805, a determination under

25 subsection (b), (c), (d), (e)(3)(B)(ii), (g), or (i) of sec-
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1 tion 807, or a determination to suspend an investiga2 tion under this title, the administering authority or

3 the Commission, as the case may be, shall publish the

4 facts and conclusions supporting that determination,

5 and shall publish notice of that determination in the

6 Federal Register.

7 ‘‘(2) CONTENTS OF NOTICE OR DETERMINA8 TION.—The notice or determination published under

9 paragraph (1) shall include, to the extent applica10 ble—

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

12 administering authority—

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

14 and the country of origin of the subject ves15 sel,

16 ‘‘(ii) a description sufficient to identify

17 the subject vessel,

18 ‘‘(iii) with respect to an injurious

19 pricing charge, the injurious pricing mar20 gin established and a full explanation of the

21 methodology used in establishing such mar22 gin,

23 ‘‘(iv) with respect to countermeasures,

24 the scope and duration of countermeasures

25 and, if applicable, any changes thereto, and
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1 ‘‘(v) the primary reasons for the deter2 mination, and

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

4 Commission—

5 ‘‘(i) considerations relevant to the de6 termination of injury, and

7 ‘‘(ii) the primary reasons for the deter8 mination.

9 ‘‘(3) ADDITIONAL REQUIREMENTS FOR FINAL DE10 TERMINATIONS.—In addition to the requirements set

11 forth in paragraph (2)—

12 ‘‘(A) the administering authority shall in13 clude in a final determination under section 805

14 or 807(c) an explanation of the basis for its de15 termination that addresses relevant arguments,

16 made by interested parties who are parties to the

17 investigation, concerning the establishment of the

18 injurious pricing charge with respect to which

19 the determination is made, and

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

21 final determination of injury an explanation of

22 the basis for its determination that addresses rel23 evant arguments that are made by interested

24 parties who are parties to the investigation con-
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1 cerning the effects and impact on the industry of

2 the sale of the subject vessel.

3 ‘‘SEC. 844. CONDUCT OF INVESTIGATIONS.

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

5 providing factual information to the administering author6 ity or the Commission in connection with a proceeding

7 under this title on behalf of the petitioner or any other in8 terested party shall certify that such information is accu9 rate and complete to the best of that person’s knowledge.

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

11 ‘‘(1) NOTIFICATION BY INTERESTED PARTY.—If

12 an interested party, promptly after receiving a re13 quest from the administering authority or the Com14 mission for information, notifies the administering

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

16 that such party is unable to submit the information

17 requested in the requested form and manner, together

18 with a full explanation and suggested alternative

19 forms in which such party is able to submit the infor20 mation, the administering authority or the Commis21 sion (as the case may be) shall consider the ability of

22 the interested party to submit the information in the

23 requested form and manner and may modify such re24 quirements to the extent necessary to avoid imposing

25 an unreasonable burden on that party.
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1 ‘‘(2) ASSISTANCE TO INTERESTED PARTIES.—

2 The administering authority and the Commission

3 shall take into account any difficulties experienced by

4 interested parties, particularly small companies, in

5 supplying information requested by the administering

6 authority or the Commission in connection with in7 vestigations under this title, and shall provide to such

8 interested parties any assistance that is practicable in

9 supplying such information.

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

11 authority or the Commission determines that a response to

12 a request for information under this title does not comply

13 with the request, the administering authority or the Com14 mission (as the case may be) shall promptly inform the per15 son submitting the response of the nature of the deficiency

16 and shall, to the extent practicable, provide that person with

17 an opportunity to remedy or explain the deficiency in light

18 of the time limits established for the completion of investiga19 tions or reviews under this title. If that person submits fur20 ther information in response to such deficiency and either—

21 ‘‘(1) the administering authority or the Commis22 sion (as the case may be) finds that such response is

23 not satisfactory, or

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

25 applicable time limits,
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1 then the administering authority or the Commission (as the

2 case may be) may, subject to subsection (d), disregard all

3 or part of the original and subsequent responses.

4 ‘‘(d) USE OF CERTAIN INFORMATION.—In reaching a

5 determination under section 803, 805, or 807, the admin6 istering authority and the Commission shall not decline to

7 consider information that is submitted by an interested

8 party and is necessary to the determination but does not

9 meet all the applicable requirements established by the ad10 ministering authority or the Commission if—

11 ‘‘(1) the information is submitted by the deadline

12 established for its submission,

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

14 ‘‘(3) the information is not so incomplete that it

15 cannot serve as a reliable basis for reaching the appli16 cable determination,

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

18 it acted to the best of its ability in providing the in19 formation and meeting the requirements established

20 by the administering authority or the Commission

21 with respect to the information, and

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

23 difficulties.

24 ‘‘(e) NONACCEPTANCE OF SUBMISSIONS.—If the ad25 ministering authority or the Commission declines to accept
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1 into the record any information submitted in an investiga2 tion under this title, it shall, to the extent practicable, pro3 vide to the person submitting the information a written ex4 planation of the reasons for not accepting the information.

5 ‘‘(f) PUBLIC COMMENT ON INFORMATION.—Informa6 tion that is submitted on a timely basis to the administer7 ing authority or the Commission during the course of a pro8 ceeding under this title shall be subject to comment by other

9 parties within such reasonable time as the administering

10 authority or the Commission shall provide. The administer11 ing authority and the Commission, before making a final

12 determination under section 805 or 807, shall cease collect13 ing information and shall provide the parties with a final

14 opportunity to comment on the information obtained by the

15 administering authority or the Commission (as the case

16 may be) upon which the parties have not previously had

17 an opportunity to comment. Comments containing new fac18 tual information shall be disregarded.

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

20 shall verify all information relied upon in making a final

21 determination under section 805.

22 ‘‘SEC. 845. ADMINISTRATIVE ACTION FOLLOWING SHIP23 BUILDING AGREEMENT PANEL REPORTS.

24 ‘‘(a) ACTION BY UNITED STATES INTERNATIONAL

25 TRADE COMMISSION.—
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1 ‘‘(1) ADVISORY REPORT.—If a dispute settlement

2 panel under the Shipbuilding Agreement finds in a

3 report that an action by the Commission in connec4 tion with a particular proceeding under this title is

5 not in conformity with the obligations of the United

6 States under the Shipbuilding Agreement, the Trade

7 Representative may request the Commission to issue

8 an advisory report on whether this title permits the

9 Commission to take steps in connection with the par10 ticular proceeding that would render its action not

11 inconsistent with the findings of the panel concerning

12 those obligations. The Trade Representative shall no13 tify the Committee on Ways and Means of the House

14 of Representatives and the Committee on Finance of

15 the Senate of such request.

16 ‘‘(2) TIME LIMITS FOR REPORT.—The Commis17 sion shall transmit its report under paragraph (1) to

18 the Trade Representative within 30 calendar days

19 after the Trade Representative requests the report.

20 ‘‘(3) CONSULTATIONS ON REQUEST FOR COMMIS21 SION DETERMINATION.—If a majority of the Commis22 sioners issues an affirmative report under paragraph

23 (1), the Trade Representatives shall consult with the

24 congressional committees listed in paragraph (1) con25 cerning the matter.
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1 ‘‘(4) COMMISSION DETERMINATION.—Notwith2 standing any other provision of this title, if a major3 ity of the Commissioners issues an affirmative report

4 under paragraph (1), the Commission, upon the writ5 ten request of the Trade Representative, shall issue a

6 determination in connection with the particular pro7 ceeding that would render the Commission’s action

8 described in paragraph (1) not inconsistent with the

9 findings of the panel. The Commission shall issue its

10 determination not later than 120 calendar days after

11 the request from the Trade Representative is made.

12 ‘‘(5) CONSULTATIONS ON IMPLEMENTATION OF

13 COMMISSION DETERMINATION.—The Trade Represent14 ative shall consult with the congressional committees

15 listed in paragraph (1) before the Commission’s deter16 mination under paragraph (4) is implemented.

17 ‘‘(6) REVOCATION OF ORDER.—If, by virtue of

18 the Commission’s determination under paragraph (4),

19 an injurious pricing order is no longer supported by

20 an affirmative Commission determination under this

21 title, the Trade Representative may, after consulting

22 with the congressional committees under paragraph

23 (5), direct the administering authority to revoke the

24 injurious pricing order.

25 ‘‘(b) ACTION BY ADMINISTERING AUTHORITY.—
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1 ‘‘(1) CONSULTATIONS WITH ADMINISTERING AU2 THORITY 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 injuri11 ous pricing charge contained in an order issued

12 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 Represent2 ative, issue a determination, or an amendment to or

3 suspension of an injurious pricing or countermeasure

4 order, as the case may be, in connection with the par5 ticular proceeding that would render the administer6 ing authority’s action described in paragraph (1) not

7 inconsistent with the findings of the panel.

8 ‘‘(3) TIME LIMITS FOR DETERMINATIONS.—The

9 administering authority shall issue its determination,

10 amendment, or suspension under paragraph (2)—

11 ‘‘(A) with respect to a matter described in

12 subparagraph (A) of paragraph (1), within 180

13 calendar days after the request from the Trade

14 Representative is made, and

15 ‘‘(B) with respect to a matter described in

16 subparagraph (B), (C), or (D) of paragraph (1),

17 within 15 calendar days after the request from

18 the Trade Representative is made.

19 ‘‘(4) CONSULTATIONS BEFORE IMPLEMENTA20 TION.—Before the administering authority imple21 ments any determination, amendment, or suspension

22 under paragraph (2), the Trade Representative shall

23 consult with the administering authority and the con24 gressional committees listed in subsection (a)(1) with
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1 respect to such determination, amendment, or suspen2 sion.

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; NO11 TICE OF IMPLEMENTATION.—The administering au12 thority 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 (1),

22 upon issuance of the determination, amendment,

23 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, or

3 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 duties

16 of the administering authority under this title are

17 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 for22 eign country, a political subdivision, dependent terri23 tory, or possession of a foreign country and, except as

24 provided in paragraph (16)(E)(iii), may not include

25 an association of 2 or more foreign countries, politi-
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1 cal subdivisions, dependent territories, or possessions

2 of countries into a customs union outside the United

3 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 propor10 tion of the total domestic capability to produce

11 a domestic like vessel.

12 ‘‘(B) PRODUCER.—A ‘producer’ of a domes13 tic like vessel includes an entity that is produc14 ing the domestic like vessel and an entity with

15 the capability to produce the domestic like vessel.

16 ‘‘(C) CAPABILITY TO PRODUCE A DOMESTIC

17 LIKE VESSEL.—A producer has the ‘capability to

18 produce a domestic like vessel’ if it is capable of

19 producing a domestic like vessel with its present

20 facilities or could adapt its facilities in a timely

21 manner to produce a domestic like vessel.

22 ‘‘(D) RELATED PARTIES.—(i) In an inves23 tigation under this title, if a producer of a do24 mestic like vessel and the foreign producer, seller

25 (other than the foreign producer), or United
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1 States buyer of the subject vessel are related par2 ties, or if a producer of a domestic like vessel is

3 also a United States buyer of the subject vessel,

4 the domestic producer may, in appropriate cir5 cumstances, be excluded from the industry.

6 ‘‘(ii) For purposes of clause (i), a domestic

7 producer and the foreign producer, seller, or

8 United States buyer shall be considered to be re9 lated parties, if—

10 ‘‘(I) the domestic producer directly or

11 indirectly controls the foreign producer, sell12 er or United States buyer,

13 ‘‘(II) the foreign producer, seller, or

14 United States buyer directly or indirectly

15 controls the domestic producer,

16 ‘‘(III) a third party directly or indi17 rectly controls the domestic producer and

18 the foreign producer, seller, or United States

19 buyer, or

20 ‘‘(IV) the domestic producer and the

21 foreign producer, seller, or United States

22 buyer directly or indirectly control a third

23 party and there is reason to believe that the

24 relationship causes the producer to act dif25 ferently than a nonrelated producer.
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1 For purposes of this subparagraph, a party shall

2 be considered to directly or indirectly control an3 other party if the party is legally or operation4 ally in a position to exercise restraint or direc5 tion over the other party.

6 ‘‘(E) PRODUCT LINES.—In an investigation

7 under this title, the effect of the sale of the subject

8 vessel shall be assessed in relation to the United

9 States production (or production capability) of a

10 domestic like vessel if available data permit the

11 separate identification of production (or produc12 tion capability) in terms of such criteria as the

13 production process or the producer’s profits. If

14 the domestic production (or production capabil15 ity) of a domestic like vessel has no separate

16 identity in terms of such criteria, then the effect

17 of the sale shall be assessed by the examination

18 of the production (or production capability) of

19 the narrowest group or range of vessels, which

20 includes a domestic like vessel, for which the nec21 essary information can be provided.

22 ‘‘(5) BUYER.—The term ‘buyer’ means any per23 son who acquires an ownership interest in a vessel,

24 including by way of lease or long-term bareboat char25 ter, in conjunction with the original transfer from the
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1 producer, either directly or indirectly, including an

2 individual or company which owns or controls a

3 buyer. There may be more than one buyer of any one

4 vessel.

5 ‘‘(6) UNITED STATES BUYER.—The term ‘United

6 States buyer’ means a buyer that is any of the follow7 ing:

8 ‘‘(A) A United States citizen.

9 ‘‘(B) A juridical entity, including any cor10 poration, company, association, or other organi11 zation, that is legally constituted under the laws

12 and regulations of the United States or a politi13 cal subdivision thereof, regardless of whether the

14 entity is organized for pecuniary gain, privately

15 or government owned, or organized with limited

16 or unlimited liability.

17 ‘‘(C) A juridical entity that is owned or

18 controlled by nationals or entities described in

19 subparagraphs (A) and (B). For the purposes of

20 this subparagraph—

21 ‘‘(i) the term ‘own’ means having more

22 than a 50 percent interest, and

23 ‘‘(ii) the term ‘control’ means the ac24 tual ability to have substantial influence on

25 corporate behavior, and control is presumed
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1 to exist where there is at least a 25 percent

2 interest.

3 If ownership of a company is established under

4 clause (i), other control is presumed not to exist

5 unless it is otherwise established.

6 ‘‘(7) OWNERSHIP INTEREST.—An ‘ownership in7 terest’ in a vessel includes any contractual or propri8 etary interest which allows the beneficiary or bene9 ficiaries of such interest to take advantage of the oper10 ation of the vessel in a manner substantially com11 parable to the way in which an owner may benefit

12 from the operation of the vessel. In determining

13 whether such substantial comparability exists, the ad14 ministering authority shall consider—

15 ‘‘(A) the terms and circumstances of the

16 transaction which conveys the interest,

17 ‘‘(B) commercial practice,

18 ‘‘(C) whether the vessel subject to the trans19 action is integrated into the operations of the

20 beneficiary or beneficiaries, and

21 ‘‘(D) whether in practice there is a likeli22 hood that the beneficiary or beneficiaries of such

23 interests will take advantage of and the risk for

24 the operation of the vessel for a significant part

25 of the life-time of the vessel.
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1 ‘‘(8) VESSEL.—

2 ‘‘(A) IN GENERAL.—Except as otherwise

3 specifically provided under international agree4 ments, the term ‘vessel’ means—

5 ‘‘(i) a self-propelled seagoing vessel of

6 100 gross tons or more used for transpor7 tation of goods or persons or for perform8 ance of a specialized service (including, but

9 not limited to, ice breakers and dredgers),

10 and

11 ‘‘(ii) a tug of 365 kilowatts or more,

12 that is produced in a Shipbuilding Agreement

13 Party or a country that is not a Shipbuilding

14 Agreement Party and not a WTO member.

15 ‘‘(B) EXCLUSIONS.—The term ‘vessel’ does

16 not include—

17 ‘‘(i) any fishing vessel destined for the

18 fishing fleet of the country in which the ves19 sel is built,

20 ‘‘(ii) any military vessel, and

21 ‘‘(iii) any vessel sold before the date

22 that the Shipbuilding Agreement enters into

23 force with respect to the United States, ex24 cept that any vessel sold after December 21,

25 1994, for delivery more than 5 years after
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1 the date of the contract of sale shall be a

2 ‘vessel’ for purposes of this title unless the

3 shipbuilder demonstrates to the administer4 ing authority that the extended delivery

5 date was for normal commercial reasons

6 and not to avoid applicability of this title.

7 ‘‘(C) SELF-PROPELLED SEAGOING VES8 SEL.—A vessel is ‘self-propelled seagoing’ if its

9 permanent propulsion and steering provide it all

10 the characteristics of self-navigability in the high

11 seas.

12 ‘‘(D) MILITARY VESSEL.—A ‘military ves13 sel’ is a vessel which, according to its basic struc14 tural characteristics and ability, is intended to

15 be used exclusively for military purposes.

16 ‘‘(9) LIKE VESSEL.—The term ‘like vessel’ means

17 a vessel of the same type, same purpose, and approxi18 mate size as the subject vessel and possessing charac19 teristics closely resembling those of the subject vessel.

20 ‘‘(10) DOMESTIC LIKE VESSEL.—The term ‘do21 mestic like vessel’ means a like vessel produced in the

22 United States.

23 ‘‘(11) FOREIGN LIKE VESSEL.—Except as used

24 in section 822(e)(1)(B)(ii)(II), the term ‘foreign like

25 vessel’ means a like vessel produced by the foreign
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1 producer of the subject vessel for sale in the producer’s

2 domestic market or in a third country.

3 ‘‘(12) SAME GENERAL CATEGORY OF VESSEL.—

4 The term ‘same general category of vessel’ means a

5 vessel of the same type and purpose as the subject ves6 sel, but of a significantly different size.

7 ‘‘(13) SUBJECT VESSEL.—The term ‘subject ves8 sel’ means a vessel subject to investigation under sec9 tion 801 or 808.

10 ‘‘(14) FOREIGN PRODUCER.—The term ‘foreign

11 producer’ means the producer or producers of the sub12 ject vessel.

13 ‘‘(15) EXPORTING COUNTRY.—The term ‘export14 ing country’ means the country in which the subject

15 vessel was built.

16 ‘‘(16) MATERIAL INJURY.—

17 ‘‘(A) IN GENERAL.—The term ‘material in18 jury’ means harm which is not inconsequential,

19 immaterial, or unimportant.

20 ‘‘(B) SALE AND CONSEQUENT IMPACT.—In

21 making determinations under sections 803(a)

22 and 805(b), the Commission in each case—

23 ‘‘(i) shall consider—

24 ‘‘(I) the sale of the subject vessel,
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1 ‘‘(II) the effect of the sale of the

2 subject vessel on prices in the United

3 States for a domestic like vessel, and

4 ‘‘(III) the impact of the sale of the

5 subject vessel on domestic producers of

6 the domestic like vessel, but only in the

7 context of production operations within

8 the United States, and

9 ‘‘(ii) may consider such other economic

10 factors as are relevant to the determination

11 regarding whether there is or has been ma12 terial injury by reason of the sale of the

13 subject vessel.

14 In the notification required under section 805(d),

15 the Commission shall explain its analysis of each

16 factor considered under clause (i), and identify

17 each factor considered under clause (ii) and ex18 plain in full its relevance to the determination.

19 ‘‘(C) EVALUATION OF RELEVANT FAC20 TORS.—For purposes of subparagraph (B)—

21 ‘‘(i) SALE OF THE SUBJECT VESSEL.—

22 In evaluating the sale of the subject vessel,

23 the Commission shall consider whether the

24 sale, either in absolute terms or relative to

25 production or demand in the United States,
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1 in terms of either volume or value, is or has

2 been significant.

3 ‘‘(ii) PRICE.—In evaluating the effect

4 of the sale of the subject vessel on prices, the

5 Commission shall consider whether—

6 ‘‘(I) there has been significant

7 price underselling of the subject vessel

8 as compared with the price of a domes9 tic like vessel, and

10 ‘‘(II) the effect of the sale of the

11 subject vessel otherwise depresses or has

12 depressed prices to a significant degree

13 or prevents or has prevented price in14 creases, which otherwise would have oc15 curred, to a significant degree.

16 ‘‘(iii) IMPACT ON AFFECTED DOMESTIC

17 INDUSTRY.—In examining the impact re18 quired to be considered under subparagraph

19 (B)(i)(III), the Commission shall evaluate

20 all relevant economic factors which have a

21 bearing on the state of the industry in the

22 United States, including, but not limited

23 to—

24 ‘‘(I) actual and potential decline

25 in output, sales, market share, profits,
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1 productivity, return on investments,

2 and utilization of capacity,

3 ‘‘(II) factors affecting domestic

4 prices, including with regard to sales,

5 ‘‘(III) actual and potential nega6 tive effects on cash flow, employment,

7 wages, growth, ability to raise capital,

8 and investment,

9 ‘‘(IV) actual and potential nega10 tive effects on the existing development

11 and production efforts of the domestic

12 industry, including efforts to develop a

13 derivative or more advanced version of

14 a domestic like vessel, and

15 ‘‘(V) the magnitude of the injuri16 ous pricing margin.

17 The Commission shall evaluate all relevant

18 economic factors described in this clause

19 within the context of the business cycle and

20 conditions of competition that are distinc21 tive to the affected industry.

22 ‘‘(D) STANDARD FOR DETERMINATION.—

23 The presence or absence of any factor which the

24 Commission is required to evaluate under sub25 paragraph (C) shall not necessarily give decisive
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1 guidance with respect to the determination by

2 the Commission of material injury.

3 ‘‘(E) THREAT OF MATERIAL INJURY.—

4 ‘‘(i) IN GENERAL.—In determining

5 whether an industry in the United States is

6 threatened with material injury by reason

7 of the sale of the subject vessel, the Commis8 sion shall consider, among other relevant

9 economic factors—

10 ‘‘(I) any existing unused produc11 tion capacity or imminent, substantial

12 increase in production capacity in the

13 exporting country indicating the likeli14 hood of substantially increased sales of

15 a foreign like vessel to United States

16 buyers, taking into account the avail17 ability of other export markets to ab18 sorb any additional exports,

19 ‘‘(II) whether the sale of a foreign

20 like vessel or other factors indicate the

21 likelihood of significant additional

22 sales to United States buyers,

23 ‘‘(III) whether sale of the subject

24 vessel or sale of a foreign like vessel by

25 the foreign producer are at prices that
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1 are likely to have a significant depress2 ing or suppressing effect on domestic

3 prices, and are likely to increase de4 mand for further sales,

5 ‘‘(IV) the potential for product6 shifting if production facilities in the

7 exporting country, which can presently

8 be used to produce a foreign like vessel

9 or could be adapted in a timely man10 ner to produce a foreign like vessel, are

11 currently being used to produce other

12 types of vessels,

13 ‘‘(V) the actual and potential neg14 ative effects on the existing develop15 ment and production efforts of the do16 mestic industry, including efforts to

17 develop a derivative or more advanced

18 version of a domestic like vessel, and

19 ‘‘(VI) any other demonstrable ad20 verse trends that indicate the prob21 ability that there is likely to be mate22 rial injury by reason of the sale of the

23 subject vessel.

24 ‘‘(ii) BASIS FOR DETERMINATION.—

25 The Commission shall consider the factors
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1 set forth in clause (i) as a whole. The pres2 ence or absence of any factor which the

3 Commission is required to consider under

4 clause (i) shall not necessarily give decisive

5 guidance with respect to the determination.

6 Such a determination may not be made on

7 the basis of mere conjecture or supposition.

8 ‘‘(iii) EFFECT OF INJURIOUS PRICING

9 IN THIRD-COUNTRY MARKETS.—

10 ‘‘(I) IN GENERAL.—The Commis11 sion shall consider whether injurious

12 pricing in the markets of foreign coun13 tries (as evidenced by injurious pricing

14 findings or injurious pricing remedies

15 of other Shipbuilding Agreement Par16 ties, or antidumping determinations of,

17 or measures imposed by, other coun18 tries, against a like vessel produced by

19 the producer under investigation) sug20 gests a threat of material injury to the

21 domestic industry. In the course of its

22 investigation, the Commission shall re23 quest information from the foreign pro24 ducer or United States buyer concern25 ing this issue.
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1 ‘‘(II) EUROPEAN COMMUNITIES.—

2 For purposes of this clause, the Euro3 pean Communities as a whole shall be

4 treated as a single foreign country.

5 ‘‘(F) CUMULATION FOR DETERMINING MA6 TERIAL INJURY.—

7 ‘‘(i) IN GENERAL.—For purposes of

8 clauses (i) and (ii) of subparagraph (C),

9 and subject to clause (ii) of this subpara10 graph, the Commission shall cumulatively

11 assess the effects of sales of foreign like ves12 sels from all foreign producers with respect

13 to which—

14 ‘‘(I) petitions were filed under sec15 tion 802(b) on the same day,

16 ‘‘(II) investigations were initiated

17 under section 802(a) on the same day,

18 or

19 ‘‘(III) petitions were filed under

20 section 802(b) and investigations were

21 initiated under section 802(a) on the

22 same day,

23 if, with respect to such vessels, the foreign

24 producers compete with each other and with
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1 producers of a domestic like vessel in the

2 United States market.

3 ‘‘(ii) EXCEPTIONS.—The Commission

4 shall not cumulatively assess the effects of

5 sales under clause (i)—

6 ‘‘(I) with respect to which the ad7 ministering authority has made a pre8 liminary negative determination, un9 less the administering authority subse10 quently made a final affirmative deter11 mination with respect to those sales be12 fore the Commission’s final determina13 tion is made, or

14 ‘‘(II) from any producer with re15 spect to which the investigation has

16 been terminated.

17 ‘‘(iii) RECORDS IN FINAL INVESTIGA18 TIONS.—In each final determination in

19 which it cumulatively assesses the effects of

20 sales under clause (i), the Commission may

21 make its determinations based on the record

22 compiled in the first investigation in which

23 it makes a final determination, except that

24 when the administering authority issues its

25 final determination in a subsequently com-
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1 pleted investigation, the Commission shall

2 permit the parties in the subsequent inves3 tigation to submit comments concerning the

4 significance of the administering authority’s

5 final determination, and shall include such

6 comments and the administering authority’s

7 final determination in the record for the

8 subsequent investigation.

9 ‘‘(G) CUMULATION FOR DETERMINING

10 THREAT OF MATERIAL INJURY.—To the extent

11 practicable and subject to subparagraph (F)(ii),

12 for purposes of clause (i) (II) and (III) of sub13 paragraph (E), the Commission may cumula14 tively assess the effects of sales of like vessels from

15 all countries with respect to which—

16 ‘‘(i) petitions were filed under section

17 802(b) on the same day,

18 ‘‘(ii) investigations were initiated

19 under section 802(a) on the same day, or

20 ‘‘(iii) petitions were filed under section

21 802(b) and investigations were initiated

22 under section 802(a) on the same day,

23 if, with respect to such vessels, the foreign pro24 ducers compete with each other and with produc-
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1 ers of a domestic like vessel in the United States

2 market.

3 ‘‘(17) INTERESTED PARTY.—The term ‘interested

4 party’ means, in a proceeding under this title—

5 ‘‘(A)(i) the foreign producer, seller (other

6 than the foreign producer), and the United

7 States buyer of the subject vessel, or

8 ‘‘(ii) a trade or business association a ma9 jority of the members of which are the foreign

10 producer, seller, or United States buyer of the

11 subject vessel,

12 ‘‘(B) the government of the country in

13 which the subject vessel is produced or manufac14 tured,

15 ‘‘(C) a producer that is a member of an in16 dustry,

17 ‘‘(D) a certified union or recognized union

18 or group of workers which is representative of an

19 industry,

20 ‘‘(E) a trade or business association a ma21 jority of whose members are producers in an in22 dustry,

23 ‘‘(F) an association, a majority of whose

24 members is composed of interested parties de25 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 is3 sued under that section, entered into a contract

4 of sale with the foreign producer that is subject

5 to the order.

6 ‘‘(18) AFFIRMATIVE DETERMINATIONS BY DI7 VIDED COMMISSION.—If the Commissioners voting on

8 a determination by the Commission are evenly di9 vided as to whether the determination should be af10 firmative or negative, the Commission shall be deemed

11 to have made an affirmative determination. For the

12 purpose of applying this paragraph when the issue

13 before the Commission is to determine whether there

14 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 affirma22 tive vote on any of the issues shall be treated as a vote

23 that the determination should be affirmative.

24 ‘‘(19) ORDINARY COURSE OF TRADE.—The term

25 ‘ordinary course of trade’ means the conditions and
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1 practices which, for a reasonable time before the sale

2 of the subject vessel, have been normal in the ship3 building industry with respect to a like vessel. The

4 administering authority shall consider the following

5 sales and transactions, among others, to be outside the

6 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 does

15 not operate on market principles of cost or pric16 ing structures, so that sales of vessels in such

17 country do not reflect the fair value of the vessels.

18 ‘‘(B) FACTORS TO BE CONSIDERED.—In

19 making determinations under subparagraph (A)

20 the administering authority shall take into ac21 count—

22 ‘‘(i) the extent to which the currency of

23 the foreign country is convertible into the

24 currency of other countries,
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1 ‘‘(ii) the extent to which wage rates in

2 the foreign country are determined by free

3 bargaining between labor and management,

4 ‘‘(iii) the extent to which joint ventures

5 or other investments by firms of other for6 eign countries are permitted in the foreign

7 country,

8 ‘‘(iv) the extent of government owner9 ship or control of the means of production,

10 ‘‘(v) the extent of government control

11 over the allocation of resources and over the

12 price and output decisions of enterprises,

13 and

14 ‘‘(vi) such other factors as the admin15 istering authority considers appropriate.

16 ‘‘(C) DETERMINATION IN EFFECT.—

17 ‘‘(i) Any determination that a foreign

18 country is a nonmarket economy country

19 shall remain in effect until revoked by the

20 administering authority.

21 ‘‘(ii) The administering authority may

22 make a determination under subparagraph

23 (A) with respect to any foreign country at

24 any time.
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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 sub5 ject to judicial review in any investigation con6 ducted 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 Organiza12 tion for Economic Cooperation and Development, and

13 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 member’

24 means a state, or separate customs territory (within

25 the meaning of Article XII of the WTO Agreement),
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1 with respect to which the United States applies the

2 WTO Agreement.

3 ‘‘(25) TRADE REPRESENTATIVE.—The term

4 ‘Trade Representative’ means the United States Trade

5 Representative.

6 ‘‘(26) AFFILIATED PERSONS.—The following per7 sons shall be considered to be ‘affiliated’ or ‘affiliated

8 persons’:

9 ‘‘(A) Members of a family, including broth10 ers and sisters (whether by the whole or half

11 blood), spouse, ancestors, and lineal descendants.

12 ‘‘(B) Any officer or director of an organiza13 tion and such organization.

14 ‘‘(C) Partners.

15 ‘‘(D) Employer and employee.

16 ‘‘(E) Any person directly or indirectly own17 ing, controlling, or holding with power to vote,

18 5 percent or more of the outstanding voting stock

19 or shares of any organization, and such organi20 zation.

21 ‘‘(F) Two or more persons directly or indi22 rectly controlling, controlled by, or under com23 mon control with, any person.

24 ‘‘(G) Any person who controls any other

25 person, and such other person.
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1 For purposes of this paragraph, a person shall be con2 sidered to control another person if the person is le3 gally or operationally in a position to exercise re4 straint or direction over the other person.

5 ‘‘(27) INJURIOUS PRICING.—The term ‘injurious

6 pricing’ refers to the sale of a vessel at less than fair

7 value.

8 ‘‘(28) INJURIOUS PRICING MARGIN.—

9 ‘‘(A) IN GENERAL.—The term ‘injurious

10 pricing margin’ means the amount by which the

11 normal value exceeds the export price of the sub12 ject vessel.

13 ‘‘(B) MAGNITUDE OF THE INJURIOUS PRIC14 ING MARGIN.—The magnitude of the injurious

15 pricing margin used by the Commission shall

16 be—

17 ‘‘(i) in making a preliminary deter18 mination under section 803(a) in an inves19 tigation (including any investigation in

20 which the Commission cumulatively assesses

21 the effect of sales under paragraph

22 (16)(F)(i)), the injurious pricing margin or

23 margins published by the administering au24 thority in its notice of initiation of the in25 vestigation; and
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1 ‘‘(ii) in making a final determination

2 under section 805(b), the injurious pricing

3 margin or margins most recently published

4 by the administering authority before the

5 closing of the Commission’s administrative

6 record.

7 ‘‘(29) COMMERCIAL INTEREST REFERENCE

8 RATE.—The term ‘Commercial Interest Reference

9 Rate’ or ‘CIRR’ means an interest rate that the ad10 ministering authority determines to be consistent with

11 Annex III, and appendices and notes thereto, of the

12 Understanding on Export Credits for Ships, resulting

13 from negotiations under the auspices of the Organiza14 tion for Economic Cooperation, and entered into on

15 December 21, 1994.

16 ‘‘(30) ANTIDUMPING.—

17 ‘‘(A) WTO MEMBERS.—In the case of a

18 WTO member, the term ‘antidumping’ refers to

19 action taken pursuant to the Agreement on Im20 plementation of Article VI of the General Agree21 ment on Tariffs and Trade 1994.

22 ‘‘(B) OTHER CASES.—In the case of any

23 country that is not a WTO member, the term

24 ‘antidumping’ refers to action taken by the coun25 try against the sale of a vessel at less than fair
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1 value that is comparable to action described in

2 subparagraph (A).

3 ‘‘(31) BROAD MULTIPLE BID.—The term ‘broad

4 multiple bid’ means a bid in which the proposed

5 buyer extends an invitation to at least all the produc6 ers in the industry known by the buyer to be capable

7 of building the subject vessel.’’.

8 SEC. 102. ENFORCEMENT OF COUNTERMEASURES.

9 Part II of title IV of the Tariff Act of 1930 is amended

10 by adding at the end the following:

11 ‘‘SEC. 468. SHIPBUILDING AGREEMENT COUNTER12 MEASURES.

13 ‘‘(a) IN GENERAL.—Notwithstanding any other provi14 sion of law, upon receiving from the Secretary of Commerce

15 a list of vessels subject to countermeasures under section

16 807, the Customs Service shall deny any request for a per17 mit to lade or unlade passengers, merchandise, or baggage

18 from or onto those vessels so listed.

19 ‘‘(b) EXCEPTIONS.—Subsection (a) shall not be applied

20 to deny a permit for the following:

21 ‘‘(1) To unlade any United States citizen or per22 manent legal resident alien from a vessel included in

23 the list described in subsection (a), or to unlade any

24 refugee or any alien who would otherwise be eligible
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1 to apply for asylum and withholding of deportation

2 under the Immigration and Nationality Act.

3 ‘‘(2) To lade or unlade any crewmember of such

4 vessel.

5 ‘‘(3) To lade or unlade coal and other fuel sup6 plies (for the operation of the listed vessel), ships’

7 stores, sea stores, and the legitimate equipment of

8 such vessel.

9 ‘‘(4) To lade or unlade supplies for the use or

10 sale on such vessel.

11 ‘‘(5) To lade or unlade such other merchandise,

12 baggage, or passenger as the Customs Service shall de13 termine necessary to protect the immediate health,

14 safety, or welfare of a human being.

15 ‘‘(c) CORRECTION OF MINISTERIAL OR CLERICAL ER16 RORS.—

17 ‘‘(1) PETITION FOR CORRECTION.—If the master

18 of any vessel whose application for a permit to lade

19 or unlade has been denied under this section believes

20 that such denial resulted from a ministerial or cleri21 cal error, not amounting to a mistake of law, commit22 ted by any Customs officer, the master may petition

23 the Customs Service for correction of such error, as

24 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 correc6 tion under section 520.

7 ‘‘(3) PETITIONS SEEKING ADMINISTRATIVE RE8 VIEW.—Any petition seeking administrative review of

9 any matter regarding the Secretary of Commerce’s de10 cision to list a vessel under section 807 must be

11 brought under that section.

12 ‘‘(d) PENALTIES.—In addition to any other provision

13 of law, the Customs Service may impose a civil penalty of

14 not to exceed $10,000 against the master of any vessel—

15 ‘‘(1) who submits false information in requesting

16 any permit to lade or unlade; or

17 ‘‘(2) who attempts to, or actually does, lade or

18 unlade in violation of any denial of such permit

19 under this section.’’.

20 SEC. 103. JUDICIAL REVIEW IN INJURIOUS PRICING AND

21 COUNTERMEASURE PROCEEDINGS.

22 (a) JUDICIAL REVIEW.—Part III of title IV of the Tar23 iff Act of 1930 is amended by inserting after section 516A

24 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 initiate

8 an investigation,

9 ‘‘(ii) a negative determination by the Com10 mission under section 803(a) as to whether there

11 is or has been reasonable indication of material

12 injury, threat of material injury, or material re13 tardation,

14 ‘‘(iii) a determination by the administering

15 authority to suspend or revoke an injurious pric16 ing 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 scope

23 or duration of a countermeasure order under sec24 tion 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 a

12 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 para21 graph (2), or

22 ‘‘(iv) notice of revocation of an injurious

23 pricing order based on a determination described

24 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 and

5 complaint, each with the content and in the form,

6 manner, and style prescribed by the rules of that

7 court, contesting any factual findings or legal conclu8 sions upon which the determination is based.

9 ‘‘(2) REVIEWABLE DETERMINATIONS.—The deter10 minations 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 a

21 matter described in paragraph (1)(A) of that sec22 tion, 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 publi8 cation in the Federal Register of a final negative de9 termination 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 unsupported

22 by substantial evidence on the record, or other23 wise 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 stipulated

3 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 hear14 ings, and all notices published in the Fed15 eral Register.

16 ‘‘(B) CONFIDENTIAL OR PRIVILEGED MATE17 RIAL.—The confidential or privileged status ac18 corded to any documents, comments, or informa19 tion shall be preserved in any action under this

20 section. Notwithstanding the preceding sentence,

21 the court may examine, in camera, the confiden22 tial or privileged material, and may disclose

23 such material under such terms and conditions

24 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 right

3 to appear and be heard as a party in interest before the

4 United States Court of International Trade in an action

5 under this section. The party filing the action shall notify

6 all such interested parties of the filing of an action under

7 this section, in the form, manner, and within the time pre8 scribed 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 ‘interested

17 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 by

22 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 Tar6 iff Act of 1930, the Court of International Trade may not

7 issue injunctions or any other form of equitable relief, ex8 cept with regard to implementation of a countermeasure

9 order under section 468 of that Act, upon a proper showing

10 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. 1466),

14 is amended by adding at the end the following new sub15 section:

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 goods

22 or persons or for performance of a specialized service

23 (including, but not limited to, ice breakers and

24 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 that

16 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 imple23 mented on the date the Shipbuilding Agreement enters into

24 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,’’ the

7 following: ‘‘or, if the vessel is a Shipbuilding Agree8 ment vessel, constructed in a Shipbuilding Agreement

9 Party, but only with regard to moneys deposited, on

10 or after the date on which the Shipbuilding Trade

11 Agreement Act takes effect, into a construction reserve

12 fund established under subsection (b)’’.

13 (2) Section 601(a) (46 App. U.S.C. 1171(a)) is

14 amended by striking ‘‘, and that such vessel or vessels

15 were built in the United States, or have been docu16 mented under the laws of the United States not later

17 than February 1, 1928, or actually ordered and under

18 construction for the account of citizens of the United

19 States prior to such date’’ and inserting ‘‘and that

20 such vessel or vessels were built in the United States,

21 or, if the vessel or vessels are Shipbuilding Agreement

22 vessels, in a Shipbuilding Agreement Party’’.

23 (3) Section 606(6) (46 App. U.S.C. 1176(6)) is

24 amended by inserting ‘‘or, if the vessel is a Shipbuild25 ing Agreement vessel, in a Shipbuilding Agreement
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1 Party or in the United States’’ before ‘‘, except in an

2 emergency.’’.

3 (4) Section 607 (46 App. U.S.C. 1177) is amend4 ed as follows:

5 (A) Subsection (a) is amended by inserting

6 ‘‘or, if the vessel is a Shipbuilding Agreement

7 vessel, in a Shipbuilding Agreement Party,’’

8 after ‘‘built in the United States’’.

9 (B) Subsection (k) is amended as follows:

10 (i) Paragraph (1) is amended by strik11 ing subparagraph (A) and inserting the fol12 lowing:

13 ‘‘(A)(i) constructed in the United States and, if

14 reconstructed, reconstructed in the United States or in

15 a Shipbuilding Agreement Party, or

16 ‘‘(ii) that is a Shipbuilding Agreement vessel

17 and is constructed in a Shipbuilding Agreement

18 Party and, if reconstructed, is reconstructed in a

19 Shipbuilding Agreement Party or in the United

20 States,’’.

21 (ii) Paragraph (2)(A) is amended to

22 read as follows:

23 ‘‘(A)(i) constructed in the United States and, if

24 reconstructed, reconstructed in the United States or in

25 a Shipbuilding Agreement Party, or
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1 ‘‘(ii) that is a Shipbuilding Agreement vessel

2 and is constructed in a Shipbuilding Agreement

3 Party and, if reconstructed, is reconstructed in a

4 Shipbuilding Agreement Party or in the United

5 States, but only with regard to moneys deposited into

6 the fund on or after the date on which the Shipbuild7 ing Trade Agreement Act takes effect,’’.

8 (5) Section 610 (46 App. U.S.C. 1180) is amend9 ed by striking ‘‘shall be built in a domestic yard or

10 shall have been documented under the laws of the

11 United States not later than February 1, 1928, or ac12 tually ordered and under construction for the account

13 of citizens of the United States prior to such date,’’

14 and inserting ‘‘shall be built in the United States or,

15 if the vessel is a Shipbuilding Agreement vessel, in a

16 Shipbuilding Agreement Party,’’.

17 (6) Section 901(b)(1) (46 App. U.S.C.

18 1241(b)(1)) is amended by striking the third sentence

19 and inserting the following:

20 ‘‘For purposes of this section, the term ‘privately owned

21 United States-flag commercial vessels’ shall be deemed to

22 include—

23 ‘‘(A) any privately owned United States-flag

24 commercial vessel constructed in the United States,

25 and if rebuilt, rebuilt in the United States or in a
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1 Shipbuilding Agreement Party on or after the date on

2 which the Shipbuilding Trade Agreement Act takes ef3 fect, and

4 ‘‘(B) any privately owned vessel constructed in a

5 Shipbuilding Agreement Party on or after the date on

6 which the Shipbuilding Trade Agreement Act takes ef7 fect, and if rebuilt, rebuilt in a Shipbuilding Agree8 ment Party or in the United States, that is docu9 mented pursuant to chapter 121 of title 46, United

10 States Code.

11 The term ‘privately owned United States-flag commercial

12 vessels’ shall also be deemed to include any cargo vessel that

13 so qualified pursuant to section 615 of this Act or this para14 graph before the date on which the Shipbuilding Trade

15 Agreement Act takes effect. The term ‘privately owned Unit16 ed States-flag commercial vessels’ shall not be deemed to in17 clude any liquid bulk cargo vessel that does not meet the

18 requirements of section 3703a of title 46, United States

19 Code.’’.

20 (7) Section 905 (46 App. U.S.C. 1244) is amend21 ed by adding at the end the following:

22 ‘‘(h) The term ‘Shipbuilding Agreement’ means the

23 Agreement Respecting Normal Competitive Conditions in

24 the Commercial Shipbuilding and Repair Industry, which

25 resulted from negotiations under the auspices of the Organi-
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1 zation for Economic Cooperation and Development, and

2 was entered into on December 21, 1994.

3 ‘‘(i) The term ‘Shipbuilding Agreement Party’ means

4 a state or separate customs territory that is a Party to the

5 Shipbuilding Agreement, and with respect to which the

6 United States applies the Shipbuilding Agreement.

7 ‘‘(j) The term ‘Shipbuilding Agreement vessel’ means

8 a vessel to which the Secretary determines Article 2.1 of

9 the Shipbuilding Agreement applies.

10 ‘‘(k) The term ‘Export Credit Understanding’ means

11 the Understanding on Export Credits for Ships which re12 sulted from negotiations under the auspices of the Organiza13 tion for Economic Cooperation and Development and was

14 entered into on December 21, 1994.

15 ‘‘(l) The term ‘Export Credit Understanding vessel’

16 means a vessel to which the Secretary determines the Export

17 Credit Understanding applies.’’.

18 (8) Section 1104A (46 App. U.S.C. 1274) is

19 amended as follows:

20 (A) Paragraph (5) of subsection (b) is

21 amended to read as follows:

22 ‘‘(5) shall bear interest (exclusive of charges for

23 the guarantee and service charges, if any) at rates not

24 to exceed such percent per annum on the unpaid

25 principal as the Secretary determines to be reason-
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1 able, taking into account the range of interest rates

2 prevailing in the private market for similar loans

3 and the risks assumed by the Secretary, except that,

4 with respect to Export Credit Understanding vessels,

5 and Shipbuilding Agreement vessels, the obligations

6 shall bear interest at a rate the Secretary determines

7 to be consistent with obligations of the United States

8 under the Export Credit Understanding or the Ship9 building Agreement, as the case may be;’’.

10 (B) Subsection (i) is amended to read as

11 follows:

12 ‘‘(i)(1) Except as provided in paragraph (2), the Sec13 retary may not, with respect to—

14 ‘‘(A) the general 75 percent or less limitation

15 contained in subsection (b)(2),

‘‘(B) the 871 16 ⁄2 percent or less limitation con17 tained in the 1st, 2nd, 4th, or 5th proviso to sub18 section (b)(2) or in section 1112(b), or

19 ‘‘(C) the 80 percent or less limitation in the 3rd

20 proviso to such subsection,

21 establish by rule, regulation, or procedure any percentage

22 within any such limitation that is, or is intended to be,

23 applied uniformly to all guarantees or commitments to

24 guarantee made under this section that are subject to the

25 limitation.
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1 ‘‘(2) With respect to Export Credit Understanding ves2 sels and Shipbuilding Agreement vessels, the Secretary may

3 establish by rule, regulation, or procedure a uniform per4 centage that the Secretary determines to be consistent with

5 obligations of the United States under the Export Credit

6 Understanding or the Shipbuilding Agreement, as the case

7 may be.’’.

8 (C) Section 1104B(b) (46 App. U.S.C.

9 1274a(b)) is amended by striking the period at

10 the end and inserting the following:

11 ‘‘, except that, with respect to Export Credit Understanding

12 vessels and Shipbuilding Agreement vessels, the Secretary

13 may establish by rule, regulation, or procedure a uniform

14 percentage that the Secretary determines to be consistent

15 with obligations of the United States under the Export

16 Credit Understanding or the Shipbuilding Agreement, as

17 the case may be.’’.

18 TITLE III—REVENUE OFFSET

19 SEC. 301. PENALTIES FOR FAILURE TO DISCLOSE POSITION

20 THAT CERTAIN INTERNATIONAL SHIPPING

21 INCOME IS NOT INCLUDIBLE IN GROSS IN22 COME.

23 (a) IN GENERAL.—Section 883 of the Internal Revenue

24 Code of 1986 is amended by adding at the end the following

25 new subsection:
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1 ‘‘(d) PENALTIES FOR FAILURE TO DISCLOSE POSITION

2 THAT CERTAIN INTERNATIONAL SHIPPING INCOME IS NOT

3 INCLUDIBLE IN GROSS INCOME.—

4 ‘‘(1) IN GENERAL.—A taxpayer who, with re5 spect to any tax imposed by this title, takes the posi6 tion that any of its gross income derived from the

7 international operation of a ship or ships is not in8 cludible in gross income by reason of subsection (a)(1)

9 or section 872(b)(1) shall be entitled to such treatment

10 only if such position is disclosed (in such manner as

11 the Secretary may prescribe) on the return of tax for

12 such tax (or any statement attached to such return).

13 ‘‘(2) ADDITIONAL PENALTIES FOR FAILING TO

14 DISCLOSE POSITION.—If a taxpayer fails to meet the

15 requirement of paragraph (1) with respect to any tax16 able year—

17 ‘‘(A) the amount of the income from the

18 international operation of a ship or ships—

19 ‘‘(i) which is from sources without the

20 United States, and

21 ‘‘(ii) which is attributable to a fixed

22 place of business in the United States,

23 shall be treated for purposes of this title as effec24 tively connected with the conduct of a trade or

25 business within the United States, and
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1 ‘‘(B) no deductions or credits shall be al2 lowed which are attributable to income from the

3 international operation of a ship or ships.

4 ‘‘(3) REASONABLE CAUSE EXCEPTION.—This

5 subsection shall not apply to a failure to disclose a

6 position if it is shown that such failure is due to rea7 sonable cause and not due to willful neglect.’’

8 (b) CONFORMING AMENDMENTS.—

9 (1) Paragraph (1) of section 872(b) of such Code

10 is amended by striking ‘‘Gross income’’ and inserting

11 ‘‘Except as provided in section 883(d), gross income’’.

12 (2) Paragraph (1) of section 883(a) of such Code

13 is amended by striking ‘‘Gross income’’ and inserting

14 ‘‘Except as provided in subsection (d), gross income’’.

15 (c) EFFECTIVE DATE.—

16 (1) IN GENERAL.—Notwithstanding section 3, the

17 amendments made by this section shall apply to tax18 able years beginning after the later of—

19 (A) December 31, 1996, or

20 (B) the date that the Shipbuilding Agree21 ment enters into force with respect to the United

22 States.

23 (2) COORDINATION WITH TREATIES.—The

24 amendments made by this section shall not apply in
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1 any case where their application would be contrary

2 to any treaty obligation of the United States.

3 (d) INFORMATION TO BE PROVIDED BY CUSTOMS

4 SERVICE.—The United States Custom Service shall provide

5 the Secretary of the Treasury or his delegate with such in6 formation as may be specified by such Secretary in order

7 to enable such Secretary to determine whether ships which

8 are not registered in the United States are engaged in

9 transportation to or from the United States.

10 SECTION 1. SHORT TITLE.

11 This Act may be cited as the ‘‘Shipbuilding

12 Trade Agreement Act’’.

13 SEC. 2. APPROVAL OF THE SHIPBUILDING AGREEMENT.

14 The Congress approves The Agreement

15 Respecting Normal Competitive Conditions in

16 the Commercial Shipbuilding and Repair In17 dustry (hereafter in this Act referred to as the

18 ‘‘Shipbuilding Agreement’’), a reciprocal trade

19 agreement which resulted from negotiations

20 under the auspices of the Organization for

21 Economic Cooperation and Development, and

22 was entered into on December 21, 1994.

23 SEC. 3. EFFECTIVE DATE.

24 Except as provided in section 205, this Act

25 and the amendments made by this Act take ef-
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1 fect on the date that the Shipbuilding Agree2 ment enters into force with respect to the

3 United States.

4 TITLE I—INJURIOUS PRICING

5 AND COUNTERMEASURES

6 SEC. 101. INJURIOUS PRICING AND COUNTERMEASURES

7 PROCEEDINGS.

8 The Tariff Act of 1930 is amended by add9 ing at the end the following new title:

10 ‘‘TITLE VIII—INJURIOUS PRIC11 ING AND COUNTERMEASURES

12 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.
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‘‘Subtitle D—Definitions

‘‘Sec. 861. Definitions.

1 ‘‘Subtitle A—Injurious Pricing

2 Charge and Countermeasures

3 ‘‘SEC. 801. INJURIOUS PRICING CHARGE.

4 ‘‘(a) BASIS FOR CHARGE.—If—

5 ‘‘(1) the administering authority de6 termines that a foreign vessel has been

7 sold directly or indirectly to one or more

8 United States buyers at less than its fair

9 value, and

10 ‘‘(2) the Commission determines

11 that—

12 ‘‘(A) an industry in the United

13 States—

14 ‘‘(i) is or has been materially

15 injured, or

16 ‘‘(ii) is threatened with mate17 rial injury, or

18 ‘‘(B) the establishment of an in19 dustry in the United States is or has

20 been materially retarded,

21 by reason of the sale of such vessel, then

22 there shall be imposed upon the foreign

23 producer of the subject vessel an injuri24 ous pricing charge, in an amount equal to
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1 the amount by which the normal value

2 exceeds the export price for the vessel.

3 For purposes of this subsection and sec4 tion 805(b)(1), a reference to the sale of a

5 foreign vessel includes the creation or

6 transfer of an ownership interest in the

7 vessel, except for an ownership interest

8 created or acquired solely for the pur9 pose of providing security for a normal

10 commercial loan.

11 ‘‘(b) FOREIGN VESSELS NOT MERCHANDISE.—

12 No foreign vessel may be considered to be, or

13 to be part of, a class or kind of merchandise

14 for purposes of subtitle B of title VII.

15 ‘‘SEC. 802. PROCEDURES FOR INITIATING AN INJURIOUS

16 PRICING INVESTIGATION.

17 ‘‘(a) INITIATION BY ADMINISTERING AUTHOR18 ITY.—

19 ‘‘(1) GENERAL RULE.—Except in the

20 case in which subsection (d)(6) applies,

21 an injurious pricing investigation shall

22 be initiated whenever the administering

23 authority determines, from information

24 available to it, that a formal investigation

25 is warranted into the question of whether
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1 the elements necessary for the imposition

2 of a charge under section 801(a) exist,

3 and whether a producer described in sec4 tion 861(17)(C) would meet the criteria of

5 subsection (b)(1)(B) for a petitioner.

6 ‘‘(2) TIME FOR INITIATION BY ADMIN7 ISTERING AUTHORITY.—An investigation

8 may only be initiated under paragraph

9 (1) within 6 months after the time the ad10 ministering authority first knew or

11 should have known of the sale of the ves12 sel. Any period in which subsection

13 (d)(6)(A) applies shall not be included in

14 calculating that 6-month period.

15 ‘‘(b) INITIATION BY PETITION.—

16 ‘‘(1) PETITION REQUIREMENTS.—(A) Ex17 cept in a case in which subsection (d)(6)

18 applies, an injurious pricing proceeding

19 shall be initiated whenever an interested

20 party, as defined in subparagraph (C),

21 (D), (E), or (F) of section 861(17), files a

22 petition with the administering author23 ity, on behalf of an industry, which al24 leges the elements necessary for the im25 position of an injurious pricing charge
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1 under section 801(a) and the elements re2 quired under subparagraph (B), (C), (D),

3 or (E) of this paragraph, and which is ac4 companied by information reasonably

5 available to the petitioner supporting

6 those allegations and identifying the

7 transaction concerned.

8 ‘‘(B)(i) If the petitioner is a producer

9 described in section 861(17)(C), and—

10 ‘‘(I) if the petitioner was invited

11 to tender a bid on the contract at

12 issue, the petition shall include infor13 mation indicating that the petitioner

14 actually did so and the bid of the pe15 titioner substantially met the delivery

16 date and technical requirements of

17 the bid, or

18 ‘‘(II) if the petitioner was not in19 vited to tender a bid, the petition

20 shall include information indicating

21 that the petitioner was capable of

22 building the vessel concerned and, if

23 the petitioner knew or should have

24 known of the proposed purchase, it

25 made demonstrable efforts to con-
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1 clude a sale with the United States

2 buyer consistent with the delivery

3 date and technical requirements of

4 the buyer.

5 ‘‘(ii) For purposes of clause (i)(II),

6 there is a rebuttable presumption that

7 the petitioner knew or should have

8 known of the proposed purchase if it is

9 demonstrated that—

10 ‘‘(I) the majority of the producers

11 in the industry have made efforts

12 with the United States buyer to con13 clude a sale of the subject vessel, or

14 ‘‘(II) general information on the

15 sale was available from brokers, fin16 anciers, classification societies,

17 charterers, trade associations, or

18 other entities normally involved in

19 shipbuilding transactions with whom

20 the petitioner had regular contacts or

21 dealings.

22 ‘‘(C) If the petitioner is an interested

23 party described in section 861(17)(D), the

24 petition shall include information indi25 cating that members of the union or
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1 group of workers described in that sec2 tion are employed by a producer that

3 meets the requirements of subparagraph

4 (B) of this paragraph.

5 ‘‘(D) If the petitioner is an interested

6 party described in section 861(17)(E), the

7 petition shall include information indi8 cating that a member of the association

9 described in that section is a producer

10 that meets the requirements of subpara11 graph (B) of this paragraph.

12 ‘‘(E) If the petitioner is an interested

13 party described in section 861(17)(F), the

14 petition shall include information indi15 cating that a member of the association

16 described in that section meets the re17 quirements of subparagraph (C) or (D) of

18 this paragraph.

19 ‘‘(F) The petition may be amended at

20 such time, and upon such conditions, as

21 the administering authority and the Com22 mission may permit.

23 ‘‘(2) SIMULTANEOUS FILING WITH COM24 MISSION.—The petitioner shall file a copy

25 of the petition with the Commission on
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1 the same day as it is filed with the admin2 istering authority.

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

4 ‘‘(A) DEADLINE.—(i) A petitioner to

5 which paragraph (1)(B)(i)(I) applies

6 shall file the petition no later than

7 the earlier of—

8 ‘‘(I) 6 months after the time

9 that the petitioner first knew or

10 should have known of the sale of

11 the subject vessel, or

12 ‘‘(II) 6 months after delivery

13 of the subject vessel.

14 ‘‘(ii) A petitioner to which para15 graph (1)(B)(i)(II) applies shall—

16 ‘‘(I) file the petition no later

17 than the earlier of 9 months after

18 the time that the petitioner first

19 knew or should have known of

20 the sale of the subject vessel, or 6

21 months after delivery of the sub22 ject vessel, and

23 ‘‘(II) submit to the administer24 ing authority a notice of intent to

25 file a petition no later than 6
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1 months after the time that the pe2 titioner first knew or should have

3 known of the sale (unless the peti4 tion itself is filed within that 6-

5 month period).

6 ‘‘(B) PRESUMPTION OF KNOWL7 EDGE.—For purposes of this para8 graph, if the existence of the sale, to9 gether with general information con10 cerning the vessel, is published in the

11 international trade press, there is a

12 rebuttable presumption that the peti13 tioner knew or should have known of

14 the sale of the vessel from the date of

15 that publication.

16 ‘‘(c) ACTIONS BEFORE INITIATING INVESTIGA17 TIONS.—

18 ‘‘(1) NOTIFICATION OF GOVERNMENTS.—

19 Before initiating an investigation under

20 either subsection (a) or (b), the admin21 istering authority shall notify the govern22 ment of the exporting country of the in23 vestigation. In the case of the initiation

24 of an investigation under subsection (b),
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1 such notification shall include a public

2 version of the petition.

3 ‘‘(2) ACCEPTANCE OF COMMUNICA4 TIONS.—The administering authority shall

5 not accept any unsolicited oral or written

6 communication from any person other

7 than an interested party described in sec8 tion 861(17)(C), (D), (E), or (F) before the

9 administering authority makes its deci10 sion whether to initiate an investigation

11 pursuant to a petition, except for inquir12 ies regarding the status of the admin13 istering authority’s consideration of the

14 petition or a request for consultation by

15 the government of the exporting country.

16 ‘‘(3) NONDISCLOSURE OF CERTAIN INFOR17 MATION.—The administering authority

18 and the Commission shall not disclose in19 formation with regard to any draft peti20 tion submitted for review and comment

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

22 ‘‘(d) PETITION DETERMINATION.—

23 ‘‘(1) TIME FOR INITIAL DETERMINA24 TION.—(A) Within 45 days after the date

25 on which a petition is filed under sub-
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1 section (b), the administering authority

2 shall, after examining, on the basis of

3 sources readily available to the admin4 istering authority, the accuracy and ade5 quacy of the evidence provided in the pe6 tition, determine whether the petition—

7 ‘‘(i) alleges the elements necessary

8 for the imposition of an injurious

9 pricing charge under section 801(a)

10 and the elements required under sub11 section (b)(1)(B), (C), (D), or (E), and

12 contains information reasonably

13 available to the petitioner supporting

14 the allegations; and

15 ‘‘(ii) determine if the petition has

16 been filed by or on behalf of the in17 dustry.

18 ‘‘(B) Any period in which paragraph

19 (6)(A) applies shall not be included in cal20 culating the 45-day period described in

21 subparagraph (A).

22 ‘‘(2) AFFIRMATIVE DETERMINATIONS.—If

23 the determinations under clauses (i) and

24 (ii) of paragraph (1)(A) are affirmative,

25 the administering authority shall initiate
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1 an investigation to determine whether

2 the vessel was sold at less than fair value,

3 unless paragraph (6) applies.

4 ‘‘(3) NEGATIVE DETERMINATIONS.—If—

5 ‘‘(A) the determination under

6 clause (i) or (ii) of paragraph (1)(A) is

7 negative, or

8 ‘‘(B) paragraph (6)(B) applies,

9 the administering authority shall dismiss

10 the petition, terminate the proceeding,

11 and notify the petitioner in writing of the

12 reasons for the determination.

13 ‘‘(4) DETERMINATION OF INDUSTRY SUP14 PORT.—

15 ‘‘(A) GENERAL RULE.—For purposes

16 of this subsection, the administering

17 authority shall determine that the pe18 tition has been filed by or on behalf

19 of the domestic industry, if—

20 ‘‘(i) the domestic producers or

21 workers who support the petition

22 collectively account for at least 25

23 percent of the total capacity of

24 domestic producers capable of

25 producing a like vessel, and
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1 ‘‘(ii) the domestic producers

2 or workers who support the peti3 tion collectively account for more

4 than 50 percent of the total capac5 ity to produce a like vessel of that

6 portion of the domestic industry

7 expressing support for or opposi8 tion to the petition.

9 ‘‘(B) CERTAIN POSITIONS DIS10 REGARDED.—In determining industry

11 support under subparagraph (A), the

12 administering authority shall dis13 regard the position of domestic pro14 ducers who oppose the petition, if

15 such producers are related to the for16 eign producer or United States buyer

17 of the subject vessel, or the domestic

18 producer is itself the United States

19 buyer, unless such domestic produc20 ers demonstrate that their interests

21 as domestic producers would be ad22 versely affected by the imposition of

23 an injurious pricing charge.

24 ‘‘(C) POLLING THE INDUSTRY.—If the

25 petition does not establish support of
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1 domestic producers or workers ac2 counting for more than 50 percent of

3 the total capacity to produce a like

4 vessel—

5 ‘‘(i) the administering author6 ity shall poll the industry or rely

7 on other information in order to

8 determine if there is support for

9 the petition as required by sub10 paragraph (A), or

11 ‘‘(ii) if there is a large number

12 of producers in the industry, the

13 administering authority may de14 termine industry support for the

15 petition by using any statistically

16 valid sampling method to poll the

17 industry.

18 ‘‘(D) COMMENTS BY INTERESTED

19 PARTIES.—Before the administering

20 authority makes a determination

21 with respect to initiating an inves22 tigation, any person who would qual23 ify as an interested party under sec24 tion 861(17) if an investigation were

25 initiated, may submit comments or in-
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1 formation on the issue of industry

2 support. After the administering au3 thority makes a determination with

4 respect to initiating an investigation,

5 the determination regarding industry

6 support shall not be reconsidered.

7 ‘‘(5) DEFINITION OF DOMESTIC PRODUC8 ERS OR WORKERS.—For purposes of this

9 subsection, the term ‘domestic producers

10 or workers’ means interested parties as

11 defined in section 861(17)(C), (D), (E), or

12 (F).

13 ‘‘(6) PROCEEDINGS BY WTO MEMBERS.—

14 The administering authority shall not ini15 tiate an investigation under this section

16 if, with respect to the vessel sale at issue,

17 an antidumping proceeding conducted by

18 a WTO member who is not a Shipbuilding

19 Agreement Party—

20 ‘‘(A) has been initiated and has

21 been pending for not more than one

22 year, or

23 ‘‘(B) has been completed and re24 sulted in the imposition of antidump25 ing measures or a negative deter-
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1 mination with respect to whether the

2 sale was at less than fair value or

3 with respect to injury.

4 ‘‘(e) NOTIFICATION TO COMMISSION OF DE5 TERMINATION.—The administering authority

6 shall—

7 ‘‘(1) notify the Commission imme8 diately of any determination it makes

9 under subsection (a) or (d), and

10 ‘‘(2) if the determination is affirma11 tive, make available to the Commission

12 such information as it may have relating

13 to the matter under investigation, under

14 such procedures as the administering au15 thority and the Commission may estab16 lish to prevent disclosure, other than

17 with the consent of the party providing it

18 or under protective order, of any infor19 mation to which confidential treatment

20 has been given by the administering au21 thority.

22 ‘‘SEC. 803. PRELIMINARY DETERMINATIONS.

23 ‘‘(a) DETERMINATION BY COMMISSION OF

24 REASONABLE INDICATION OF INJURY.—
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1 ‘‘(1) GENERAL RULE.—Except in the

2 case of a petition dismissed by the admin3 istering authority under section 802(d)(3),

4 the Commission, within the time speci5 fied in paragraph (2), shall determine,

6 based on the information available to it

7 at the time of the determination, whether

8 there is a reasonable indication that—

9 ‘‘(A) an industry in the United

10 States—

11 ‘‘(i) is or has been materially

12 injured, or

13 ‘‘(ii) is threatened with mate14 rial injury, or

15 ‘‘(B) the establishment of an in16 dustry in the United States is or has

17 been materially retarded,

18 by reason of the sale of the subject vessel.

19 If the Commission makes a negative de20 termination under this paragraph, the in21 vestigation shall be terminated.

22 ‘‘(2) TIME FOR COMMISSION DETERMINA23 TION.—The Commission shall make the

24 determination described in paragraph (1)

25 within 90 days after the date on which
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1 the petition is filed or, in the case of an

2 investigation initiated under section

3 802(a), within 90 days after the date on

4 which the Commission receives notice

5 from the administering authority that the

6 investigation has been initiated.

7 ‘‘(b) PRELIMINARY DETERMINATION BY AD8 MINISTERING AUTHORITY.—

9 ‘‘(1) PERIOD OF INJURIOUS PRICING IN10 VESTIGATION.—(A) The administering au11 thority shall make a determination, based

12 upon the information available to it at

13 the time of the determination, of whether

14 there is a reasonable basis to believe or

15 suspect that the subject vessel was sold

16 at less than fair value.

17 ‘‘(B) If cost data is required to deter18 mine normal value on the basis of a sale

19 of a foreign like vessel that has not been

20 delivered on or before the date on which

21 the administering authority initiates the

22 investigation, the administering author23 ity shall make its determination within

24 160 days after the date of delivery of the

25 foreign like vessel.
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1 ‘‘(C) If normal value is to be deter2 mined on the basis of constructed value,

3 the administering authority shall make

4 its determination within 160 days after

5 the date of delivery of the subject vessel.

6 ‘‘(D) In cases in which subparagraph

7 (B) or (C) does not apply, the administer8 ing authority shall make its determina9 tion within 160 days after the date on

10 which the administering authority initi11 ates the investigation under section 802.

12 ‘‘(E) In no event shall the administer13 ing authority make its determination be14 fore an affirmative determination is

15 made by the Commission under sub16 section (a).

17 ‘‘(2) DE MINIMIS INJURIOUS PRICING

18 MARGIN.—In making a determination

19 under this subsection, the administering

20 authority shall disregard any injurious

21 pricing margin that is de minimis. For

22 purposes of the preceding sentence, an

23 injurious pricing margin is de minimis if

24 the administering authority determines
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1 that the margin is less than 2 percent of

2 the export price.

3 ‘‘(c) EXTENSION OF PERIOD IN EXTRAOR4 DINARILY COMPLICATED CASES OR FOR GOOD

5 CAUSE.—

6 ‘‘(1) IN GENERAL.—If—

7 ‘‘(A) the administering authority

8 concludes that the parties concerned

9 are cooperating and determines

10 that—

11 ‘‘(i) the case is extraordinarily

12 complicated by reason of—

13 ‘‘(I) the novelty of the is14 sues presented, or

15 ‘‘(II) the nature and extent

16 of the information required,

17 and

18 ‘‘(ii) additional time is nec19 essary to make the preliminary

20 determination, or

21 ‘‘(B) a party to the investigation

22 requests an extension and dem23 onstrates good cause for the exten24 sion,
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1 then the administering authority may

2 postpone the time for making its prelimi3 nary determination.

4 ‘‘(2) LENGTH OF POSTPONEMENT.—The

5 preliminary determination may be post6 poned under paragraph (1)(A) or (B) until

7 not later than the 190th day after—

8 ‘‘(A) the date of delivery of the

9 foreign like vessel, if subsection

10 (b)(1)(B) applies,

11 ‘‘(B) the date of delivery of the

12 subject vessel, if subsection (b)(1)(C)

13 applies, or

14 ‘‘(C) the date on which the admin15 istering authority initiates an inves16 tigation under section 802, in a case

17 in which subsection (b)(1)(D) applies.

18 ‘‘(3) NOTICE OF POSTPONEMENT.—The

19 administering authority shall notify the

20 parties to the investigation, not later

21 than 20 days before the date on which

22 the preliminary determination would oth23 erwise be required under subsection

24 (b)(1), if it intends to postpone making

25 the preliminary determination under
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1 paragraph (1). The notification shall in2 clude an explanation of the reasons for

3 the postponement, and notice of the post4 ponement shall be published in the Fed5 eral Register.

6 ‘‘(d) EFFECT OF DETERMINATION BY THE AD7 MINISTERING AUTHORITY.—If the preliminary

8 determination of the administering authority

9 under subsection (b) is affirmative, the ad10 ministering authority shall—

11 ‘‘(1) determine an estimated injurious

12 pricing margin, and

13 ‘‘(2) make available to the Commis14 sion all information upon which its deter15 mination was based and which the Com16 mission considers relevant to its injury

17 determination, under such procedures as

18 the administering authority and the Com19 mission may establish to prevent disclo20 sure, other than with the consent of the

21 party providing it or under protective

22 order, of any information to which con23 fidential treatment has been given by the

24 administering authority.
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1 ‘‘(e) NOTICE OF DETERMINATION.—Whenever

2 the Commission or the administering author3 ity makes a determination under this section,

4 the Commission or the administering author5 ity, as the case may be, shall notify the peti6 tioner, and other parties to the investigation,

7 and the Commission or the administering au8 thority (whichever is appropriate) of its de9 termination. The administering authority

10 shall include with such notification the facts

11 and conclusions on which its determination is

12 based. Not later than 5 days after the date on

13 which the determination is required to be

14 made under subsection (a)(2), the Commission

15 shall transmit to the administering authority

16 the facts and conclusions on which its deter17 mination is based.

18 ‘‘SEC. 804. TERMINATION OR SUSPENSION OF INVESTIGA19 TION.

20 ‘‘(a) TERMINATION OF INVESTIGATION UPON

21 WITHDRAWAL OF PETITION.—

22 ‘‘(1) IN GENERAL.—Except as provided

23 in paragraph (2), an investigation under

24 this subtitle may be terminated by either

25 the administering authority or the Com-
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1 mission, after notice to all parties to the

2 investigation, upon withdrawal of the pe3 tition by the petitioner.

4 ‘‘(2) LIMITATION ON TERMINATION BY

5 COMMISSION.—The Commission may not

6 terminate an investigation under para7 graph (1) before a preliminary determina8 tion is made by the administering author9 ity under section 803(b).

10 ‘‘(b) TERMINATION OF INVESTIGATIONS INITI11 ATED BY ADMINISTERING AUTHORITY.—The ad12 ministering authority may terminate any in13 vestigation initiated by the administering au14 thority under section 802(a) after providing

15 notice of such termination to all parties to the

16 investigation.

17 ‘‘(c) ALTERNATE EQUIVALENT REMEDY.—The

18 criteria set forth in subparagraphs (A)

19 through (D) of section 806(e)(1) shall apply to

20 any agreement that forms the basis for termi21 nation of an investigation under subsection

22 (a) or (b).

23 ‘‘(d) PROCEEDINGS BY WTO MEMBERS.—

24 ‘‘(1) SUSPENSION OF INVESTIGATION.—

25 The administering authority and the
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1 Commission shall suspend an investiga2 tion under this section if a WTO member

3 that is not a Shipbuilding Agreement

4 Party initiates an antidumping proceed5 ing described in section 861(29)(A) with

6 respect to the sale of the subject vessel.

7 ‘‘(2) TERMINATION OF INVESTIGATION.—

8 If an antidumping proceeding described

9 in paragraph (1) is concluded by—

10 ‘‘(A) the imposition of antidump11 ing measures, or

12 ‘‘(B) a negative determination

13 with respect to whether the sale is at

14 less than fair value or with respect to

15 injury,

16 the administering authority and the Com17 mission shall terminate the investigation

18 under this section.

19 ‘‘(3) CONTINUATION OF INVESTIGATION.—

20 (A) If such a proceeding—

21 ‘‘(i) is concluded by a result other

22 than a result described in paragraph

23 (2), or
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1 ‘‘(ii) is not concluded within one

2 year from the date of the initiation of

3 the proceeding,

4 then the administering authority and the

5 Commission shall terminate the suspen6 sion and continue the investigation. The

7 period in which the investigation was

8 suspended shall not be included in cal9 culating deadlines applicable with re10 spect to the investigation.

11 ‘‘(B) Notwithstanding subparagraph

12 (A)(ii), if the proceeding is concluded by

13 a result described in paragraph (2)(A),

14 the administering authority and the Com15 mission shall terminate the investigation

16 under this section.

17 ‘‘SEC. 805. FINAL DETERMINATIONS.

18 ‘‘(a) DETERMINATIONS BY ADMINISTERING

19 AUTHORITY.—

20 ‘‘(1) IN GENERAL.—Within 75 days after

21 the date of its preliminary determination

22 under section 803(b), the administering

23 authority shall make a final determina24 tion of whether the vessel which is the

25 subject of the investigation has been sold
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1 in the United States at less than its fair

2 value.

3 ‘‘(2) EXTENSION OF PERIOD FOR DETER4 MINATION.—(A) The administering author5 ity may postpone making the final deter6 mination under paragraph (1) until not

7 later than 290 days after—

8 ‘‘(i) the date of delivery of the for9 eign like vessel, in an investigation to

10 which section 803(b)(1)(B) applies,

11 ‘‘(ii) the date of delivery of the

12 subject vessel, in an investigation to

13 which section 803(b)(1)(C) applies, or

14 ‘‘(iii) the date on which the ad15 ministering authority initiates the in16 vestigation under section 802, in an

17 investigation to which section

18 803(b)(1)(D) applies.

19 ‘‘(B) The administering authority may

20 apply subparagraph (A) if a request in

21 writing is made by—

22 ‘‘(i) the producer of the subject

23 vessel, in a proceeding in which the

24 preliminary determination by the ad-
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1 ministering authority under section

2 803(b) was affirmative, or

3 ‘‘(ii) the petitioner, in a proceed4 ing in which the preliminary deter5 mination by the administering au6 thority under section 803(b) was neg7 ative.

8 ‘‘(3) DE MINIMIS INJURIOUS PRICING

9 MARGIN.—In making a determination

10 under this subsection, the administering

11 authority shall disregard any injurious

12 pricing margin that is de minimis as de13 fined in section 803(b)(2).

14 ‘‘(b) FINAL DETERMINATION BY COMMIS15 SION.—

16 ‘‘(1) IN GENERAL.—The Commission

17 shall make a final determination of

18 whether—

19 ‘‘(A) an industry in the United

20 States—

21 ‘‘(i) is or has been materially

22 injured, or

23 ‘‘(ii) is threatened with mate24 rial injury, or
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1 ‘‘(B) the establishment of an in2 dustry in the United States is or has

3 been materially retarded, by reason

4 of the sale of the vessel with respect

5 to which the administering authority

6 has made an affirmative determina7 tion under subsection (a)(1).

8 ‘‘(2) PERIOD FOR INJURY DETERMINATION

9 FOLLOWING AFFIRMATIVE PRELIMINARY DE10 TERMINATION BY ADMINISTERING AUTHOR11 ITY.—If the preliminary determination by

12 the administering authority under sec13 tion 803(b) is affirmative, then the Com14 mission shall make the determination re15 quired by paragraph (1) before the later

16 of—

17 ‘‘(A) the 120th day after the day

18 on which the administering authority

19 makes its affirmative preliminary de20 termination under section 803(b), or

21 ‘‘(B) the 45th day after the day on

22 which the administering authority

23 makes its affirmative final determina24 tion under subsection (a).
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1 ‘‘(3) PERIOD FOR INJURY DETERMINATION

2 FOLLOWING NEGATIVE PRELIMINARY DETER3 MINATION BY ADMINISTERING AUTHORITY.—If

4 the preliminary determination by the ad5 ministering authority under section

6 803(b) is negative, and its final deter7 mination under subsection (a) is affirma8 tive, then the final determination by the

9 Commission under this subsection shall

10 be made within 75 days after the date of

11 that affirmative final determination.

12 ‘‘(c) EFFECT OF FINAL DETERMINATIONS.—

13 ‘‘(1) EFFECT OF AFFIRMATIVE DETER14 MINATION BY THE ADMINISTERING AUTHOR15 ITY.—If the determination of the admin16 istering authority under subsection (a) is

17 affirmative, then the administering au18 thority shall—

19 ‘‘(A) make available to the Com20 mission all information upon which

21 such determination was based and

22 which the Commission considers rel23 evant to its determination, under

24 such procedures as the administering

25 authority and the Commission may
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1 establish to prevent disclosure, other

2 than with the consent of the party

3 providing it or under protective

4 order, of any information to which

5 confidential treatment has been given

6 by the administering authority, and

7 ‘‘(B) calculate an injurious pricing

8 charge in an amount equal to the

9 amount by which the normal value

10 exceeds the export price of the sub11 ject vessel.

12 ‘‘(2) ISSUANCE OF ORDER; EFFECT OF

13 NEGATIVE DETERMINATION.—If the deter14 minations of the administering authority

15 and the Commission under subsections

16 (a)(1) and (b)(1) are affirmative, then the

17 administering authority shall issue an in18 jurious pricing order under section 806.

19 If either of such determinations is nega20 tive, the investigation shall be terminated

21 upon the publication of notice of that

22 negative determination.

23 ‘‘(d) PUBLICATION OF NOTICE OF DETERMINA24 TIONS.—Whenever the administering author25 ity or the Commission makes a determination
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1 under this section, it shall notify the peti2 tioner, other parties to the investigation, and

3 the other agency of its determination and of

4 the facts and conclusions of law upon which

5 the determination is based, and it shall pub6 lish notice of its determination in the Federal

7 Register.

8 ‘‘(e) CORRECTION OF MINISTERIAL ERRORS.—

9 The administering authority shall establish

10 procedures for the correction of ministerial

11 errors in final determinations within a rea12 sonable time after the determinations are is13 sued under this section. Such procedures

14 shall ensure opportunity for interested par15 ties to present their views regarding any such

16 errors. As used in this subsection, the term

17 ‘ministerial error’ includes errors in addition,

18 subtraction, or other arithmetic function,

19 clerical errors resulting from inaccurate

20 copying, duplication, or the like, and any

21 other type of unintentional error which the

22 administering authority considers ministe23 rial.
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1 ‘‘SEC. 806. IMPOSITION AND COLLECTION OF INJURIOUS

2 PRICING CHARGE.

3 ‘‘(a) IN GENERAL.—Within 10 days after

4 being notified by the Commission of an af5 firmative determination under section 805(b),

6 the administering authority shall publish an

7 order imposing an injurious pricing charge

8 on the foreign producer of the subject vessel

9 which—

10 ‘‘(1) directs the foreign producer of

11 the subject vessel to pay to the Secretary

12 of the Treasury, or the designee of the

13 Secretary, within 180 days from the date

14 of publication of the order, an injurious

15 pricing charge in an amount equal to the

16 amount by which the normal value ex17 ceeds the export price of the subject ves18 sel,

19 ‘‘(2) includes the identity and location

20 of the foreign producer and a description

21 of the subject vessel, in such detail as the

22 administering authority deems necessary,

23 and

24 ‘‘(3) informs the foreign producer

25 that—
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1 ‘‘(A) failure to pay the injurious

2 pricing charge in a timely fashion

3 may result in the imposition of coun4 termeasures with respect to that pro5 ducer under section 807,

6 ‘‘(B) payment made after the

7 deadline described in paragraph (1)

8 shall be subject to interest charges at

9 the Commercial Interest Reference

10 Rate (CIRR), and

11 ‘‘(C) the foreign producer may re12 quest an extension of the due date for

13 payment under subsection (b).

14 ‘‘(b) EXTENSION OF DUE DATE FOR PAYMENT

15 IN EXTRAORDINARY CIRCUMSTANCES.—

16 ‘‘(1) EXTENSION.—Upon request, the

17 administering authority may amend the

18 order under subsection (a) to set a due

19 date for payment or payments later than

20 the date that is 180 days from the date of

21 publication of the order, if the admin22 istering authority determines that full

23 payment in 180 days would render the

24 producer insolvent or would be incom25 patible with a judicially supervised reor-
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1 ganization. When an extended payment

2 schedule provides for a series of partial

3 payments, the administering authority

4 shall specify the circumstances under

5 which default on one or more payments

6 will result in the imposition of counter7 measures.

8 ‘‘(2) INTEREST CHARGES.—If a request

9 is granted under paragraph (1), payments

10 made after the date that is 180 days from

11 the publication of the order shall be sub12 ject to interest charges at the CIRR.

13 ‘‘(c) NOTIFICATION OF ORDER.—The admin14 istering authority shall deliver a copy of the

15 order requesting payment to the foreign pro16 ducer of the subject vessel and to an appro17 priate representative of the government of

18 the exporting country.

19 ‘‘(d) REVOCATION OF ORDER.—The admin20 istering authority—

21 ‘‘(1) may revoke an injurious pricing

22 order if the administering authority de23 termines that producers accounting for

24 substantially all of the capacity to

25 produce a domestic like vessel have ex-
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1 pressed a lack of interest in the order,

2 and

3 ‘‘(2) shall revoke an injurious pricing

4 order—

5 ‘‘(A) if the sale of the vessel that

6 was the subject of the injurious pric7 ing determination is voided,

8 ‘‘(B) if the injurious pricing

9 charge is paid in full, including any

10 interest accrued for late payment,

11 ‘‘(C) upon full implementation of

12 an alternative equivalent remedy de13 scribed in subsection (e), or

14 ‘‘(D) if, with respect to the vessel

15 sale that was at issue in the investiga16 tion that resulted in the injurious

17 pricing order, an antidumping pro18 ceeding conducted by a WTO member

19 who is not a Shipbuilding Agreement

20 Party has been completed and re21 sulted in the imposition of antidump22 ing measures.

23 ‘‘(e) ALTERNATIVE EQUIVALENT REMEDY.—

24 ‘‘(1) AGREEMENT FOR ALTERNATE REM25 EDY.—The administering authority may
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1 suspend an injurious pricing order if the

2 administering authority enters into an

3 agreement with the foreign producer sub4 ject to the order on an alternative equiv5 alent remedy, that the administering au6 thority determines—

7 ‘‘(A) is at least as effective a rem8 edy as the injurious pricing charge,

9 ‘‘(B) is in the public interest,

10 ‘‘(C) can be effectively monitored

11 and enforced, and

12 ‘‘(D) is otherwise consistent with

13 the domestic law and international

14 obligations of the United States.

15 ‘‘(2) PRIOR CONSULTATIONS AND SUBMIS16 SION OF COMMENTS.—Before entering into

17 an agreement under paragraph (1), the

18 administering authority shall consult

19 with the industry, and provide for the

20 submission of comments by interested

21 parties, with respect to the agreement.

22 ‘‘(3) MATERIAL VIOLATIONS OF AGREE23 MENT.—If the injurious pricing order has

24 been suspended under paragraph (1), and

25 the administering authority determines
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1 that the foreign producer concerned has

2 materially violated the terms of the

3 agreement under paragraph (1), the ad4 ministering authority shall terminate the

5 suspension.

6 ‘‘SEC. 807. IMPOSITION OF COUNTERMEASURES.

7 ‘‘(a) GENERAL RULE.—

8 ‘‘(1) ISSUANCE OF ORDER IMPOSING

9 COUNTERMEASURES.—Unless an injurious

10 pricing order is revoked or suspended

11 under section 806 (d) or (e), the admin12 istering authority shall issue an order im13 posing countermeasures.

14 ‘‘(2) CONTENTS OF ORDER.—The coun15 termeasure order shall—

16 ‘‘(A) state that, as provided in sec17 tion 468, a permit to lade or unlade

18 passengers or merchandise may not

19 be issued with respect to vessels con20 tracted to be built by the foreign pro21 ducer of the vessel with respect to

22 which an injurious pricing order was

23 issued under section 806, and

24 ‘‘(B) specify the scope and dura25 tion of the prohibition on the issu-
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1 ance of a permit to lade or unlade

2 passengers or merchandise.

3 ‘‘(b) NOTICE OF INTENT TO IMPOSE COUNTER4 MEASURES.—

5 ‘‘(1) GENERAL RULE.—The administer6 ing authority shall issue a notice of in7 tent to impose countermeasures not later

8 than 30 days before the expiration of the

9 time for payment specified in the injuri10 ous pricing order (or extended payment

11 provided for under section 806(b)), and

12 shall publish the notice in the Federal

13 Register within 7 days after issuing the

14 notice.

15 ‘‘(2) ELEMENTS OF THE NOTICE OF IN16 TENT.—The notice of intent shall contain

17 at least the following elements:

18 ‘‘(A) SCOPE.—A permit to lade or

19 unlade passengers or merchandise

20 may not be issued with respect to any

21 vessel—

22 ‘‘(i) built by the foreign pro23 ducer subject to the proposed

24 countermeasures, and
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1 ‘‘(ii) with respect to which the

2 material terms of sale are estab3 lished within a period of 4 con4 secutive years beginning on the

5 date that is 30 days after publica6 tion in the Fedeal Register of the

7 notice of intent described in para8 graph (1).

9 ‘‘(B) DURATION.—For each vessel

10 described in subparagraph (A), a per11 mit to lade or unlade passengers or

12 merchandise may not be issued for a

13 period of 4 years after the date of de14 livery of the vessel.

15 ‘‘(c) DETERMINATION TO IMPOSE COUNTER16 MEASURES; ORDER.—

17 ‘‘(1) GENERAL RULE.—The administer18 ing authority shall, within the time speci19 fied in paragraph (2), issue a determina20 tion and order imposing counter21 measures.

22 ‘‘(2) TIME FOR DETERMINATION.—The

23 determination shall be issued within 90

24 days after the date on which the notice of

25 intent to impose countermeasures under
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1 subsection (b) is published in the Federal

2 Register. The administering authority

3 shall publish the determination, and the

4 order described in paragraph (4), in the

5 Federal Register within 7 days after issu6 ing the final determination, and shall

7 provide a copy of the determination and

8 order to the Customs Service.

9 ‘‘(3) CONTENT OF THE DETERMINATION.—

10 In the determination imposing counter11 measures, the administering authority

12 shall determine whether, in light of all of

13 the circumstances, an interested party

14 has demonstrated that the scope or dura15 tion of the countermeasures described in

16 subsection (b)(2) should be narrower or

17 shorter than the scope or duration set

18 forth in the notice of intent to impose

19 countermeasures.

20 ‘‘(4) ORDER.—At the same time it is21 sues its determination, the administering

22 authority shall issue an order imposing

23 countermeasures, consistent with its de24 termination.
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1 ‘‘(d) ADMINISTRATIVE REVIEW OF DETER2 MINATION TO IMPOSE COUNTERMEASURES.—

3 ‘‘(1) REQUEST FOR REVIEW.—Each year,

4 in the anniversary month of the issuance

5 of the order imposing countermeasures

6 under subsection (c), the administering

7 authority shall publish in the Federal

8 Register a notice providing that inter9 ested parties may request—

10 ‘‘(A) a review of the scope or du11 ration of the countermeasures deter12 mined under subsection (c)(3), and

13 ‘‘(B) a hearing in connection with

14 such a review.

15 ‘‘(2) REVIEW.—If a proper request has

16 been received under paragraph (1), the

17 administering authority shall—

18 ‘‘(A) publish notice of initiation of

19 a review in the Federal Register not

20 later than 15 days after the end of the

21 anniversary month of the issuance of

22 the order imposing countermeasures,

23 and

24 ‘‘(B) review and determine wheth25 er the requesting party has dem-
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1 onstrated that the scope or duration

2 of the countermeasures is excessive

3 in light of all of the circumstances.

4 ‘‘(3) TIME FOR REVIEW.—The admin5 istering authority shall make its deter6 mination under paragraph (2)(B) within

7 90 days after the date on which the no8 tice of initiation of the review is pub9 lished. If the determination under para10 graph (2)(B) is affirmative, the admin11 istering authority shall amend the order

12 accordingly. The administering authority

13 shall promptly publish the determination

14 and any amendment to the order in the

15 Federal Register, and shall provide a

16 copy of any amended order to the Cus17 toms Service. In extraordinary cir18 cumstances, the administering authority

19 may extend the time for its determina20 tion under paragraph (2)(B) to not later

21 than 150 days after the date on which the

22 notice of initiation of the review is pub23 lished.

24 ‘‘(e) EXTENSION OF COUNTERMEASURES.—
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1 ‘‘(1) REQUEST FOR EXTENSION.—Within

2 the time described in paragraph (2), an

3 interested party may file with the admin4 istering authority a request that the

5 scope or duration of countermeasures be

6 extended.

7 ‘‘(2) DEADLINE FOR REQUEST FOR EXTEN8 SION.—

9 ‘‘(A) REQUEST FOR EXTENSION BE10 YOND 4 YEARS.—If the request seeks an

11 extension that would cause the scope

12 or duration of countermeasures to ex13 ceed 4 years, including any prior ex14 tensions, the request for extension

15 under paragraph (1) shall be filed not

16 earlier than the date that is 15

17 months, and not later than the date

18 that is 12 months, before the date

19 that marks the end of the period that

20 specifies the vessels that fall within

21 the scope of the order by virtue of the

22 establishment of material terms of

23 sale within that period.

24 ‘‘(B) OTHER REQUESTS.—If the re25 quest seeks an extension under para-
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1 graph (1) other than one described in

2 subparagraph (A), the request shall

3 be filed not earlier than the date that

4 is 6 months, and not later than a date

5 that is 3 months, before the date that

6 marks the end of the period referred

7 to in subparagraph (A).

8 ‘‘(3) DETERMINATION.—

9 ‘‘(A) NOTICE OF REQUEST FOR EX10 TENSION.—If a proper request has

11 been received under paragraph (1),

12 the administering authority shall

13 publish notice of initiation of an ex14 tension proceeding in the Federal

15 Register not later than 15 days after

16 the applicable deadline in paragraph

17 (2) for requesting the extension.

18 ‘‘(B) PROCEDURES.—

19 ‘‘(i) REQUESTS FOR EXTENSION

20 BEYOND 4 YEARS.—If paragraph

21 (2)(A) applies to the request, the

22 administering authority shall con23 sult with the Trade Representa24 tive under paragraph (4).
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1 ‘‘(ii) OTHER REQUESTS.—If

2 paragraph (2)(B) applies to the re3 quest, the administering author4 ity shall determine, within 90

5 days after the date on which the

6 notice of initiation of the proceed7 ing is published, whether the re8 questing party has demonstrated

9 that the scope or duration of the

10 countermeasures is inadequate in

11 light of all of the circumstances.

12 If the administering authority de13 termines that an extension is war14 ranted, it shall amend the coun15 termeasure order accordingly.

16 The administering authority shall

17 promptly publish the determina18 tion and any amendment to the

19 order in the Federal Register, and

20 shall provide a copy of any

21 amended order to the Customs

22 Service.

23 ‘‘(4) CONSULTATION WITH TRADE REP24 RESENTATIVE.—If paragraph (3)(B)(i) ap25 plies, the administering authority shall
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1 consult with the Trade Representative

2 concerning whether it would be appro3 priate to request establishment of a dis4 pute settlement panel under the Ship5 building Agreement for the purpose of

6 seeking authorization to extend the scope

7 or duration of countermeasures for a pe8 riod in excess of 4 years.

9 ‘‘(5) DECISION NOT TO REQUEST PANEL.—

10 If, based on consultations under para11 graph (4), the Trade Representative de12 cides not to request establishment of a

13 panel, the Trade Representative shall in14 form the party requesting the extension

15 of the countermeasures of the reasons for

16 its decision in writing. The decision shall

17 not be subject to judicial review.

18 ‘‘(6) PANEL PROCEEDINGS.—If, based on

19 consultations under paragraph (4), the

20 Trade Representative requests the estab21 lishment of a panel under the Shipbuild22 ing Agreement to authorize an extension

23 of the period of countermeasures, and the

24 panel authorizes such an extension, the

25 administering authority shall promptly
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1 amend the countermeasure order. The

2 administering authority shall publish no3 tice of the amendment in the Federal

4 Register.

5 ‘‘(f) LIST OF VESSELS SUBJECT TO COUNTER6 MEASURES.—

7 ‘‘(1) GENERAL RULE.—At least once

8 during each 12-month period beginning

9 on the anniversary date of a determina10 tion to impose countermeasures under

11 this section, the administering authority

12 shall publish in the Federal Register a

13 list of all delivered vessels subject to

14 countermeasures under the determina15 tion.

16 ‘‘(2) CONTENT OF LIST.—The list under

17 paragraph (1) shall include the following

18 information for each vessel, to the extent

19 the information is available:

20 ‘‘(A) The name and general de21 scription of the vessel.

22 ‘‘(B) The vessel identification

23 number.

24 ‘‘(C) The shipyard where the ves25 sel was constructed.
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1 ‘‘(D) The last-known registry of

2 the vessel.

3 ‘‘(E) The name and address of the

4 last-known owner of the vessel.

5 ‘‘(F) The delivery date of the ves6 sel.

7 ‘‘(G) The remaining duration of

8 countermeasures on the vessel.

9 ‘‘(H) Any other identifying infor10 mation available.

11 ‘‘(3) AMENDMENT OF LIST.—-The admin12 istering authority may amend the list

13 from time to time to reflect new informa14 tion that comes to its attention and shall

15 publish any amendments in the Federal

16 Register.

17 ‘‘(4) SERVICE OF LIST AND AMEND18 MENTS.—(A) The administering authority

19 shall serve a copy of the list described in

20 paragraph (1) on—

21 ‘‘(i) the petitioner under section

22 802(b),

23 ‘‘(ii) the United States Customs

24 Service,
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1 ‘‘(iii) the Secretariat of the Orga2 nization for Economic Cooperation

3 and Development,

4 ‘‘(iv) the owners of vessels on the

5 list,

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

7 ‘‘(vi) the government of the coun8 try in which a shipyard on the list is

9 located.

10 ‘‘(B) The administering authority

11 shall serve a copy of any amendments to

12 the list under paragraph (3) or subsection

13 (g)(3) on—

14 ‘‘(i) the parties listed in clauses

15 (i), (ii), and (iii) of subparagraph (A),

16 and,

17 ‘‘(ii) if the amendment affects

18 their interests, the parties listed in

19 clauses (iv), (v), and (vi) of subpara20 graph (A).

21 ‘‘(g) ADMINISTRATIVE REVIEW OF LIST OF

22 VESSELS SUBJECT TO COUNTERMEASURES.—

23 ‘‘(1) REQUEST FOR REVIEW.—(A) An in24 terested party may request in writing a

25 review of the list described in subsection
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1 (f)(1), including any amendments thereto,

2 to determine whether—

3 ‘‘(i) a vessel included in the list

4 does not fall within the scope of the

5 applicable countermeasure order and

6 should be deleted, or

7 ‘‘(ii) a vessel not included in the

8 list falls within the scope of the appli9 cable countermeasure order and

10 should be added.

11 ‘‘(B) Any request seeking a determina12 tion described in subparagraph (A)(i)

13 shall be made within 90 days after the

14 date of publication of the applicable list.

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

16 review has been received, the administer17 ing authority shall—

18 ‘‘(A) publish notice of initiation of

19 a review in the Federal Register—

20 ‘‘(i) not later than 15 days

21 after the request is received, or

22 ‘‘(ii) if the request seeks a de23 termination described in para24 graph (1)(A)(i), not later than 15
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1 days after the deadline described

2 in paragraph (1)(B), and

3 ‘‘(B) review and determine wheth4 er the requesting party has dem5 onstrated that—

6 ‘‘(i) a vessel included in the

7 list does not qualify for such in8 clusion, or

9 ‘‘(ii) a vessel not included in

10 the list qualifies for inclusion.

11 ‘‘(3) TIME FOR DETERMINATION.—The

12 administering authority shall make its

13 determination under paragraph (2)(B)

14 within 90 days after the date on which

15 the notice of initiation of such review is

16 published. If the administering authority

17 determines that a vessel should be added

18 or deleted from the list, the administer19 ing authority shall amend the list accord20 ingly. The administering authority shall

21 promptly publish in the Federal Register

22 the determination and any such amend23 ment to the list.

24 ‘‘(h) EXPIRATION OF COUNTERMEASURES.—

25 Upon expiration of a countermeasure order
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1 imposed under this section, the administering

2 authority shall promptly publish a notice of

3 the expiration in the Federal Register.

4 ‘‘(i) SUSPENSION OR TERMINATION OF PRO5 CEEDINGS OR COUNTERMEASURES; TEMPORARY

6 REDUCTION OF COUNTERMEASURES.—

7 ‘‘(1) IF INJURIOUS PRICING ORDER RE8 VOKED OR SUSPENDED.—If an injurious

9 pricing order has been revoked or sus10 pended under section 806(d) or (e), the

11 administering authority shall, as appro12 priate, suspend or terminate proceedings

13 under this section with respect to that

14 order, or suspend or revoke a counter15 measure order issued with respect to that

16 injurious pricing order.

17 ‘‘(2) IF PAYMENT DATE AMENDED.—(A)

18 Subject to subparagraph (C), if the pay19 ment date under an injurious pricing

20 order is amended under section 845, the

21 administering authority shall, as appro22 priate, suspend proceedings or modify

23 deadlines under this section, or suspend

24 or amend a countermeasure order issued
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1 with respect to that injurious pricing

2 order.

3 ‘‘(B) In taking action under subpara4 graph (A), the administering authority

5 shall ensure that countermeasures are

6 not applied before the date that is 30

7 days after publication in the Federal Reg8 ister of the amended payment date.

9 ‘‘(C) If—

10 ‘‘(i) a countermeasure order is is11 sued under subsection (c) before an

12 amendment is made under section

13 845 to the payment date of the injuri14 ous pricing order to which the coun15 termeasure order applies, and

16 ‘‘(ii) the administering authority

17 determines that the period of time be18 tween the original payment date and

19 the amended payment date is signifi20 cant for purposes of determining the

21 appropriate scope or duration of

22 countermeasures,

23 the administering authority may, in lieu

24 of acting under subparagraph (A), re25 institute proceedings under subsection
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1 (c) for purposes of issuing a new deter2 mination under that subsection.

3 ‘‘(j) COMMENT AND HEARING.—In the course

4 of any proceeding under subsection (c), (d),

5 (e), or (g), the administering authority—

6 ‘‘(1) shall solicit comments from inter7 ested parties, and

8 ‘‘(2)(A) in a proceeding under sub9 section (c) or (d), upon the request of an

10 interested party, shall hold a hearing in

11 accordance with section 841(b) in connec12 tion with that proceeding, or

13 ‘‘(B) in a proceeding under subsection

14 (e) or (g), upon the request of an inter15 ested party, may hold a hearing in ac16 cordance with section 841(b) in connec17 tion with that proceeding.

18 ‘‘SEC. 808. INJURIOUS PRICING PETITIONS BY THIRD COUN19 TRIES.

20 ‘‘(a) FILING OF PETITION.—The government

21 of a Shipbuilding Agreement Party may file

22 with the Trade Representative a petition re23 questing that an investigation be conducted

24 to determine if—
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1 ‘‘(1) a vessel from another Shipbuild2 ing Agreement Party has been sold in the

3 United States at less than fair value, and

4 ‘‘(2) an industry, in the petitioning

5 country, producing or capable of produc6 ing a like vessel is materially injured by

7 reason of such sale.

8 ‘‘(b) INITIATION.—The Trade Representa9 tive, after consultation with the administer10 ing authority and the Commission and obtain11 ing the approval of the Parties Group under

12 the Shipbuilding Agreement, shall determine

13 whether to initiate an investigation described

14 in subsection (a).

15 ‘‘(c) DETERMINATIONS.—Upon initiation of

16 an investigation under subsection (a), the

17 Trade Representative shall request the fol18 lowing determinations be made in accordance

19 with substantive and procedural require20 ments specified by the Trade Representative,

21 notwithstanding any other provision of this

22 title:

23 ‘‘(1) The administering authority shall

24 determine whether the subject vessel has

25 been sold at less than fair value.
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1 ‘‘(2) The Commission shall determine

2 whether an industry in the petitioning

3 country is materially injured by reason of

4 the sale of the subject vessel in the Unit5 ed States.

6 ‘‘(d) PUBLIC COMMENT.—An opportunity

7 for public comment shall be provided, as ap8 propriate—

9 ‘‘(1) by the Trade Representative, in

10 making the determinations required by

11 subsection (b), and

12 ‘‘(2) by the administering authority

13 and the Commission, in making the deter14 minations required by subsection (c).

15 ‘‘(e) ISSUANCE OF ORDER.—If the admin16 istering authority makes an affirmative deter17 mination under paragraph (1) of subsection

18 (c), and the Commission makes an affirmative

19 determination under paragraph (2) of sub20 section (c), the administering authority

21 shall—

22 ‘‘(1) order an injurious pricing charge

23 in accordance with section 806, and

24 ‘‘(2) make such determinations and

25 take such other actions as are required
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1 by sections 806 and 807, as if affirmative

2 determinations had been made under

3 subsections (a) and (b) of section 805.

4 ‘‘(f) REVIEWS OF DETERMINATIONS.—For

5 purposes of review under section 516B, if an

6 order is issued under subsection (e)—

7 ‘‘(1) the final determinations of the

8 administering authority and the Commis9 sion under subsection (c) shall be treated

10 as final determinations made under sec11 tion 805, and

12 ‘‘(2) determinations of the administer13 ing authority under subsection (e)(2)

14 shall be treated as determinations made

15 under section 806 or 807, as the case may

16 be.

17 ‘‘(g) ACCESS TO INFORMATION.—Section 843

18 shall apply to investigations under this sec19 tion, to the extent specified by the Trade Rep20 resentative, after consultation with the ad21 ministering authority and the Commission.

22 ‘‘SEC. 809. THIRD COUNTRY SALES.

23 ‘‘(a) FILING OF PETITION.—Any interested

24 party that would be eligible to file a petition

25 under section 802(b)(1) with respect to a sale
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1 if such sale had been to a United States buyer

2 may, with respect to a sale of a vessel by a for3 eign producer in a Shipbuilding Agreement

4 Party to a buyer in a third country that is a

5 Shipbuilding Agreement Party, file with the

6 Trade Representative a petition alleging

7 that—

8 ‘‘(1) such vessel has been sold at less

9 than fair value; and

10 ‘‘(2) the industry in the United States

11 producing or capable of producing a like

12 vessel is materially injured by reason of

13 such sale.

14 ‘‘(b) DETERMINATION.—Upon receipt of a

15 petition under subsection (a), the Trade Rep16 resentative shall request that the following

17 determinations be made in accordance with

18 substantive and procedural requirements

19 specified by the Trade Representative, not20 withstanding any other provision of this title:

21 ‘‘(1) The administering authority shall

22 determine whether there is reasonable

23 cause to believe that the subject vessel

24 has been sold at less than fair value.
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1 ‘‘(2) The Commission shall determine

2 whether there is reasonable cause to be3 lieve that the industry in the United

4 States is materially injured by reason of

5 such sale.

6 ‘‘(c) COMPLAINT BY TRADE REPRESENTA7 TIVE.—If the administering authority makes

8 an affirmative determination under para9 graph (1) of subsection (b), and the Commis10 sion makes an affirmative determination

11 under paragraph (2) of subsection (b), the

12 Trade Representative shall make application

13 to the country of the buyer of the subject ves14 sel for an injurious pricing action and relief

15 similar to that available under section 808.

16 The Trade Representative shall advise the pe17 titioner of the proceedings undertaken by the

18 third country in response to such application

19 and shall permit the petitioner to participate

20 in such proceedings to the greatest extent

21 practicable.

22 ‘‘Subtitle B—Special Rules

23 ‘‘SEC. 821. EXPORT PRICE.

24 ‘‘(a) EXPORT PRICE.—For purposes of this

25 title, the term ‘export price’ means the price
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1 at which the subject vessel is first sold (or

2 agreed to be sold) by or for the account of the

3 foreign producer of the subject vessel to an

4 unaffiliated United States buyer. The term

5 ‘sold (or agreed to be sold) by or for the ac6 count of the foreign producer’ includes any

7 transfer of an ownership interest, including

8 by way of lease or long-term bareboat charter,

9 in conjunction with the original transfer from

10 the producer, either directly or indirectly, to

11 a United States buyer.

12 ‘‘(b) ADJUSTMENTS TO EXPORT PRICE.—The

13 price used to establish export price shall be—

14 ‘‘(1) increased by the amount of any

15 import duties imposed by the country of

16 exportation which have been rebated, or

17 which have not been collected, by reason

18 of the exportation of the subject vessel,

19 and

20 ‘‘(2) reduced by—

21 ‘‘(A) the amount, if any, included

22 in such price, attributable to any ad23 ditional costs, charges, or expenses

24 which are incident to bringing the

25 subject vessel from the shipyard in
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1 the exporting country to the place of

2 delivery,

3 ‘‘(B) the amount, if included in

4 such price, of any export tax, duty, or

5 other charge imposed by the export6 ing country on the exportation of the

7 subject vessel, and

8 ‘‘(C) all other expenses incidental

9 to placing the vessel in condition for

10 delivery to the buyer.

11 ‘‘SEC. 822. NORMAL VALUE.

12 ‘‘(a) DETERMINATION.—In determining

13 under this title whether a subject vessel has

14 been sold at less than fair value, a fair com15 parison shall be made between the export

16 price and normal value of the subject vessel.

17 In order to achieve a fair comparison with the

18 export price, normal value shall be deter19 mined as follows:

20 ‘‘(1) DETERMINATION OF NORMAL

21 VALUE.—

22 ‘‘(A) IN GENERAL.—The normal

23 value of the subject vessel shall be

24 the price described in subparagraph

25 (B), at a time reasonably correspond-
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1 ing to the time of the sale used to de2 termine the export price under sec3 tion 821(a).

4 ‘‘(B) PRICE.—The price referred to

5 in subparagraph (A) is—

6 ‘‘(i) the price at which a for7 eign like vessel is first sold in the

8 exporting country, in the ordi9 nary course of trade and, to the

10 extent practicable, at the same

11 level of trade, or

12 ‘‘(ii) in a case to which sub13 paragraph (C) applies, the price

14 at which a foreign like vessel is so

15 sold for consumption in a country

16 other than the exporting country

17 or the United States, if—

18 ‘‘(I) such price is rep19 resentative, and

20 ‘‘(II) the administering au21 thority does not determine

22 that the particular market sit23 uation in such other country

24 prevents a proper comparison

25 with the export price.
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1 ‘‘(C) THIRD COUNTRY SALES.—This

2 subparagraph applies when—

3 ‘‘(i) a foreign like vessel is not

4 sold in the exporting country as

5 described in subparagraph (B)(i),

6 or

7 ‘‘(ii) the particular market sit8 uation in the exporting country

9 does not permit a proper com10 parison with the export price.

11 ‘‘(D) CONTEMPORANEOUS SALE.—For

12 purposes of subparagraph (A), ‘a time

13 reasonably corresponding to the time

14 of the sale’ means within 3 months

15 before or after the sale of the subject

16 vessel or, in the absence of such sales,

17 such longer period as the administer18 ing authority determines would be

19 appropriate.

20 ‘‘(2) FICTITIOUS MARKETS.—No pre21 tended sale, and no sale intended to es22 tablish a fictitious market, shall be taken

23 into account in determining normal

24 value.
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1 ‘‘(3) USE OF CONSTRUCTED VALUE.—If

2 the administering authority determines

3 that the normal value of the subject ves4 sel cannot be determined under para5 graph (1)(B) or (1)(C), then the normal

6 value of the subject vessel shall be the

7 constructed value of that vessel, as deter8 mined under subsection (e).

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

10 vessel is sold through an affiliated party,

11 the price at which the foreign like vessel

12 is sold by such affiliated party may be

13 used in determining normal value.

14 ‘‘(5) ADJUSTMENTS.—The price de15 scribed in paragraph (1)(B) shall be—

16 ‘‘(A) reduced by—

17 ‘‘(i) the amount, if any, in18 cluded in the price described in

19 paragraph (1)(B), attributable to

20 any costs, charges, and expenses

21 incident to bringing the foreign

22 like vessel from the shipyard to

23 the place of delivery to the pur24 chaser,
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1 ‘‘(ii) the amount of any taxes

2 imposed directly upon the foreign

3 like vessel or components thereof

4 which have been rebated, or

5 which have not been collected, on

6 the subject vessel, but only to the

7 extent that such taxes are added

8 to or included in the price of the

9 foreign like vessel, and

10 ‘‘(iii) the amount of all other

11 expenses incidental to placing the

12 foreign like vessel in condition

13 for delivery to the buyer, and

14 ‘‘(B) increased or decreased by

15 the amount of any difference (or lack

16 thereof) between the export price and

17 the price described in paragraph

18 (1)(B) (other than a difference for

19 which allowance is otherwise pro20 vided under this section) that is es21 tablished to the satisfaction of the ad22 ministering authority to be wholly or

23 partly due to—

24 ‘‘(i) physical differences be25 tween the subject vessel and the
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1 vessel used in determining nor2 mal value, or

3 ‘‘(ii) other differences in the

4 circumstances of sale.

5 ‘‘(6) ADJUSTMENTS FOR LEVEL OF

6 TRADE.—The price described in para7 graph (1)(B) shall also be increased or de8 creased to make due allowance for any

9 difference (or lack thereof) between the

10 export price and the price described in

11 paragraph (1)(B) (other than a difference

12 for which allowance is otherwise made

13 under this section) that is shown to be

14 wholly or partly due to a difference in

15 level of trade between the export price

16 and normal value, if the difference in

17 level of trade—

18 ‘‘(A) involves the performance of

19 different selling activities, and

20 ‘‘(B) is demonstrated to affect

21 price comparability, based on a pat22 tern of consistent price differences

23 between sales at different levels of

24 trade in the country in which normal

25 value is determined.
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1 In a case described in the preceding sen2 tence, the amount of the adjustment shall

3 be based on the price differences be4 tween the two levels of trade in the coun5 try in which normal value is determined.

6 ‘‘(7) ADJUSTMENTS TO CONSTRUCTED

7 VALUE.—Constructed value as determined

8 under subsection (d) may be adjusted, as

9 appropriate, pursuant to this subsection.

10 ‘‘(b) SALES AT LESS THAN COST OF PRODUC11 TION.—

12 ‘‘(1) DETERMINATION; SALES DIS13 REGARDED.—Whenever the administering

14 authority has reasonable grounds to be15 lieve or suspect that the sale of the for16 eign like vessel under consideration for

17 the determination of normal value has

18 been made at a price which represents

19 less than the cost of production of the

20 foreign like vessel, the administering au21 thority shall determine whether, in fact,

22 such sale was made at less than the cost

23 of production. If the administering au24 thority determines that the sale was

25 made at less than the cost of production
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1 and was not at a price which permits re2 covery of all costs within 5 years, such

3 sale may be disregarded in the deter4 mination of normal value. Whenever such

5 a sale is disregarded, normal value shall

6 be based on another sale of a foreign like

7 vessel in the ordinary course of trade. If

8 no sales made in the ordinary course of

9 trade remain, the normal value shall be

10 based on the constructed value of the

11 subject vessel.

12 ‘‘(2) DEFINITIONS AND SPECIAL RULES.—

13 For purposes of this subsection:

14 ‘‘(A) REASONABLE GROUNDS TO BE15 LIEVE OR SUSPECT.—There are reason16 able grounds to believe or suspect

17 that the sale of a foreign like vessel

18 was made at a price that is less than

19 the cost of production of the vessel, if

20 an interested party described in sub21 paragraph (C), (D), (E), or (F) of sec22 tion 861(17) provides information,

23 based upon observed prices or con24 structed prices or costs, that the sale

25 of the foreign like vessel under con-
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1 sideration for the determination of

2 normal value has been made at a

3 price which represents less than the

4 cost of production of the vessel.

5 ‘‘(B) RECOVERY OF COSTS.—If the

6 price is below the cost of production

7 at the time of sale but is above the

8 weighted average cost of production

9 for the period of investigation, such

10 price shall be considered to provide

11 for recovery of costs within 5 years.

12 ‘‘(3) CALCULATION OF COST OF PRODUC13 TION.—For purposes of this section, the

14 cost of production shall be an amount

15 equal to the sum of—

16 ‘‘(A) the cost of materials and of

17 fabrication or other processing of any

18 kind employed in producing the for19 eign like vessel, during a period

20 which would ordinarily permit the

21 production of that vessel in the ordi22 nary course of business, and

23 ‘‘(B) an amount for selling, gen24 eral, and administrative expenses

25 based on actual data pertaining to
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1 the production and sale of the foreign

2 like vessel by the producer in ques3 tion.

4 For purposes of subparagraph (A), if the

5 normal value is based on the price of the

6 foreign like vessel sold in a country other

7 than the exporting country, the cost of

8 materials shall be determined without re9 gard to any internal tax in the exporting

10 country imposed on such materials or on

11 their disposition which are remitted or

12 refunded upon exportation.

13 ‘‘(c) NONMARKET ECONOMY COUNTRIES.—

14 ‘‘(1) IN GENERAL.—If—

15 ‘‘(A) the subject vessel is pro16 duced in a nonmarket economy coun17 try, and

18 ‘‘(B) the administering authority

19 finds that available information does

20 not permit the normal value of the

21 subject vessel to be determined under

22 subsection (a),

23 the administering authority shall deter24 mine the normal value of the subject ves25 sel on the basis of the value of the factors
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1 of production utilized in producing the

2 vessel and to which shall be added an

3 amount for general expenses and profit

4 plus the cost of expenses incidental to

5 placing the vessel in a condition for de6 livery to the buyer. Except as provided in

7 paragraph (2), the valuation of the fac8 tors of production shall be based on the

9 best available information regarding the

10 values of such factors in a market econ11 omy country or countries considered to

12 be appropriate by the administering au13 thority.

14 ‘‘(2) EXCEPTION.—If the administering

15 authority finds that the available infor16 mation is inadequate for purposes of de17 termining the normal value of the subject

18 vessel under paragraph (1), the admin19 istering authority shall determine the

20 normal value on the basis of the price at

21 which a vessel that is—

22 ‘‘(A) comparable to the subject

23 vessel, and

24 ‘‘(B) produced in one or more

25 market economy countries that are at
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1 a level of economic development com2 parable to that of the nonmarket

3 economy country,

4 is sold in other countries, including the

5 United States.

6 ‘‘(3) FACTORS OF PRODUCTION.—For

7 purposes of paragraph (1), the factors of

8 production utilized in producing the ves9 sel include, but are not limited to—

10 ‘‘(A) hours of labor required,

11 ‘‘(B) quantities of raw materials

12 employed,

13 ‘‘(C) amounts of energy and other

14 utilities consumed, and

15 ‘‘(D) representative capital cost,

16 including depreciation.

17 ‘‘(4) VALUATION OF FACTORS OF PRODUC18 TION.—The administering authority, in

19 valuing factors of production under para20 graph (1), shall utilize, to the extent pos21 sible, the prices or costs of factors of pro22 duction in one or more market economy

23 countries that are—
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1 ‘‘(A) at a level of economic devel2 opment comparable to that of the

3 nonmarket economy country, and

4 ‘‘(B) significant producers of com5 parable vessels.

6 ‘‘(d) SPECIAL RULE FOR CERTAIN MULTI7 NATIONAL CORPORATIONS.—Whenever, in the

8 course of an investigation under this title, the

9 administering authority determines that—

10 ‘‘(1) the subject vessel was produced

11 in facilities which are owned or con12 trolled, directly or indirectly, by a per13 son, firm, or corporation which also owns

14 or controls, directly or indirectly, other

15 facilities for the production of a foreign

16 like vessel which are located in another

17 country or countries,

18 ‘‘(2) subsection (a)(1)(C) applies, and

19 ‘‘(3) the normal value of a foreign like

20 vessel produced in one or more of the fa21 cilities outside the exporting country is

22 higher than the normal value of the for23 eign like vessel produced in the facilities

24 located in the exporting country,
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1 the administering authority shall determine

2 the normal value of the subject vessel by ref3 erence to the normal value at which a foreign

4 like vessel is sold from one or more facilities

5 outside the exporting country. The admin6 istering authority, in making any determina7 tion under this subsection, shall make adjust8 ments for the difference between the costs of

9 production (including taxes, labor, materials,

10 and overhead) of the foreign like vessel pro11 duced in facilities outside the exporting coun12 try and costs of production of the foreign like

13 vessel produced in facilities in the exporting

14 country, if such differences are demonstrated

15 to its satisfaction.

16 ‘‘(e) CONSTRUCTED VALUE.—

17 ‘‘(1) IN GENERAL.—For purposes of this

18 title, the constructed value of a subject

19 vessel shall be an amount equal to the

20 sum of—

21 ‘‘(A) the cost of materials and fab22 rication or other processing of any

23 kind employed in producing the sub24 ject vessel, during a period which

25 would ordinarily permit the produc-
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1 tion of the vessel in the ordinary

2 course of business, and

3 ‘‘(B)(i) the actual amounts in4 curred and realized by the foreign

5 producer of the subject vessel for sell6 ing, general, and administrative ex7 penses, and for profits, in connection

8 with the production and sale of a for9 eign like vessel, in the ordinary

10 course of trade, in the domestic mar11 ket of the country of origin of the

12 subject vessel, or

13 ‘‘(ii) if actual data are not avail14 able with respect to the amounts de15 scribed in clause (i), then—

16 ‘‘(I) the actual amounts in17 curred and realized by the for18 eign producer of the subject ves19 sel for selling, general, and ad20 ministrative expenses, and for

21 profits, in connection with the

22 production and sale of the same

23 general category of vessel in the

24 domestic market of the country of

25 origin of the subject vessel,
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1 ‘‘(II) the weighted average of

2 the actual amounts incurred and

3 realized by producers in the

4 country of origin of the subject

5 vessel (other than the producer of

6 the subject vessel) for selling,

7 general, and administrative ex8 penses, and for profits, in connec9 tion with the production and sale

10 of a foreign like vessel, in the or11 dinary course of trade, in the do12 mestic market, or

13 ‘‘(III) if data is not available

14 under subclause (I) or (II), the

15 amounts incurred and realized

16 for selling, general, and adminis17 trative expenses, and for profits,

18 based on any other reasonable

19 method, except that the amount

20 allowed for profit may not exceed

21 the amount normally realized by

22 foreign producers (other than the

23 producer of the subject vessel) in

24 connection with the sale of ves25 sels in the same general category
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1 of vessel as the subject vessel in

2 the domestic market of the coun3 try of origin of the subject vessel.

4 The profit shall, for purposes of this

5 paragraph, be based on the average prof6 it realized over a reasonable period of

7 time before and after the sale of the sub8 ject vessel and shall reflect a reasonable

9 profit at the time of such sale. For pur10 poses of the preceding sentence, a ‘rea11 sonable period of time’ shall not, except

12 where otherwise appropriate, exceed 6

13 months before, or 6 months after, the sale

14 of the subject vessel. In calculating profit

15 under this paragraph, any distortion

16 which would result in other than a profit

17 which is reasonable at the time of the

18 sale shall be eliminated.

19 ‘‘(2) COSTS AND PROFITS BASED ON

20 OTHER REASONABLE METHODS.—When costs

21 and profits are determined under para22 graph (1)(B)(ii)(III), such determination

23 shall, except where otherwise appro24 priate, be based on appropriate export

25 sales by the producer of the subject ves-
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1 sel or, absent such sales, to export sales

2 by other producers of a foreign like ves3 sel or the same general category of vessel

4 as the subject vessel in the country of ori5 gin of the subject vessel.

6 ‘‘(3) COSTS OF MATERIALS.—For pur7 poses of paragraph (1)(A), the cost of ma8 terials shall be determined without re9 gard to any internal tax in the exporting

10 country imposed on such materials or

11 their disposition which are remitted or

12 refunded upon exportation of the subject

13 vessel produced from such materials.

14 ‘‘(f) SPECIAL RULES FOR CALCULATION OF

15 COST OF PRODUCTION AND FOR CALCULATION OF

16 CONSTRUCTED VALUE.—For purposes of sub17 sections (b) and (e)—

18 ‘‘(1) COSTS.—

19 ‘‘(A) IN GENERAL.—Costs shall nor20 mally be calculated based on the

21 records of the foreign producer of the

22 subject vessel, if such records are

23 kept in accordance with the generally

24 accepted accounting principles of the

25 exporting country and reasonably re-
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1 flect the costs associated with the

2 production and sale of the vessel. The

3 administering authority shall con4 sider all available evidence on proper

5 allocation of costs, including that

6 which is made available by the for7 eign producer on a timely basis, if

8 such allocations have been histori9 cally used by the foreign producer, in

10 particular for establishing appro11 priate amortization and depreciation

12 periods, and allowances for capital

13 expenditures and other development

14 costs.

15 ‘‘(B) NONRECURRING COSTS.—Costs

16 shall be adjusted appropriately for

17 those nonrecurring costs that benefit

18 current or future production, or both.

19 ‘‘(C) STARTUP COSTS.—

20 ‘‘(i) IN GENERAL.—Costs shall

21 be adjusted appropriately for cir22 cumstances in which costs in23 curred during the time period

24 covered by the investigation are

25 affected by startup operations.
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1 ‘‘(ii) STARTUP OPERATIONS.—Ad2 justments shall be made for start3 up operations only where—

4 ‘‘(I) a producer is using

5 new production facilities or

6 producing a new type of ves7 sel that requires substantial

8 additional investment, and

9 ‘‘(II) production levels are

10 limited by technical factors

11 associated with the initial

12 phase of commercial produc13 tion.

14 For purposes of subclause (II), the

15 initial phase of commercial pro16 duction ends at the end of the

17 startup period. In determining

18 whether commercial production

19 levels have been achieved, the ad20 ministering authority shall con21 sider factors unrelated to startup

22 operations that might affect the

23 volume of production processed,

24 such as demand, seasonality, or

25 business cycles.
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1 ‘‘(iii) ADJUSTMENT FOR STARTUP

2 OPERATIONS.—The adjustment for

3 startup operations shall be made

4 by substituting the unit produc5 tion costs incurred with respect

6 to the vessel at the end of the

7 startup period for the unit pro8 duction costs incurred during the

9 startup period. If the startup pe10 riod extends beyond the period of

11 the investigation under this title,

12 the administering authority shall

13 use the most recent cost of pro14 duction data that it reasonably

15 can obtain, analyze, and verify

16 without delaying the timely com17 pletion of the investigation. For

18 purposes of this subparagraph,

19 the startup period ends at the

20 point at which the level of com21 mercial production that is char22 acteristic of the vessel, the pro23 ducer, or the industry is

24 achieved.
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1 ‘‘(D) COSTS DUE TO EXTRAORDINARY

2 CIRCUMSTANCES NOT INCLUDED.—Costs

3 shall not include actual costs which

4 are due to extraordinary cir5 cumstances (including, but not lim6 ited to, labor disputes, fire, and natu7 ral disasters) and which are signifi8 cantly over the cost increase which

9 the shipbuilder could have reason10 ably anticipated and taken into ac11 count at the time of sale.

12 ‘‘(2) TRANSACTIONS DISREGARDED.—A

13 transaction directly or indirectly be14 tween affiliated persons may be dis15 regarded if, in the case of any element of

16 value required to be considered, the

17 amount representing that element does

18 not fairly reflect the amount usually re19 flected in sales of a like vessel in the mar20 ket under consideration. If a transaction

21 is disregarded under the preceding sen22 tence and no other transactions are avail23 able for consideration, the determination

24 of the amount shall be based on the infor25 mation available as to what the amount
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1 would have been if the transaction had

2 occurred between persons who are not

3 affiliated.

4 ‘‘(3) MAJOR INPUT RULE.—If, in the case

5 of a transaction between affiliated per6 sons involving the production by one of

7 such persons of a major input to the sub8 ject vessel, the administering authority

9 has reasonable grounds to believe or sus10 pect that an amount represented as the

11 value of such input is less than the cost

12 of production of such input, then the ad13 ministering authority may determine the

14 value of the major input on the basis of

15 the information available regarding such

16 cost of production, if such cost is greater

17 than the amount that would be deter18 mined for such input under paragraph

19 (2).

20 ‘‘SEC. 823. CURRENCY CONVERSION.

21 ‘‘(a) IN GENERAL.—In an injurious pricing

22 proceeding under this title, the administering

23 authority shall convert foreign currencies

24 into United States dollars using the exchange

25 rate in effect on the date of sale of the subject
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1 vessel, except that if it is established that a

2 currency transaction on forward markets is

3 directly linked to a sale under consideration,

4 the exchange rate specified with respect to

5 such foreign currency in the forward sale

6 agreement shall be used to convert the for7 eign currency.

8 ‘‘(b) DATE OF SALE.—For purposes of this

9 section, ‘date of sale’ means the date of the

10 contract of sale or, where appropriate, the

11 date on which the material terms of sale are

12 otherwise established. If the material terms of

13 sale are significantly changed after such date,

14 the date of sale is the date of such change. In

15 the case of such a change in the date of sale,

16 the administering authority shall make ap17 propriate adjustments to take into account

18 any unreasonable effect on the injurious pric19 ing margin due only to fluctuations in the ex20 change rate between the original date of sale

21 and the new date of sale.

22 ‘‘Subtitle C—Procedures

23 ‘‘SEC. 841. HEARINGS.

24 ‘‘(a) UPON REQUEST.—The administering

25 authority and the Commission shall each hold
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1 a hearing in the course of an investigation

2 under this title, upon the request of any party

3 to the investigation, before making a final de4 termination under section 805.

5 ‘‘(b) PROCEDURES.—Any hearing required

6 or permitted under this title shall be con7 ducted after notice published in the Federal

8 Register, and a transcript of the hearing shall

9 be prepared and made available to the public.

10 The hearing shall not be subject to the provi11 sions of subchapter II of chapter 5 of title 5,

12 United States Code, or to section 702 of such

13 title.

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

15 AVAILABLE.

16 ‘‘(a) IN GENERAL.—If—

17 ‘‘(1) necessary information is not

18 available on the record, or

19 ‘‘(2) an interested party or any other

20 person—

21 ‘‘(A) withholds information that

22 has been requested by the admin23 istering authority or the Commission

24 under this title,
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1 ‘‘(B) fails to provide such informa2 tion by the deadlines for the submis3 sion of the information or in the form

4 and manner requested, subject to

5 subsections (b)(1) and (d) of section

6 844,

7 ‘‘(C) significantly impedes a pro8 ceeding under this title, or

9 ‘‘(D) provides such information

10 but the information cannot be veri11 fied as provided in section 844(g),

12 the administering authority and the Com13 mission shall, subject to section 844(c),

14 use the facts otherwise available in

15 reaching the applicable determination

16 under this title.

17 ‘‘(b) ADVERSE INFERENCES.—If the admin18 istering authority or the Commission (as the

19 case may be) finds that an interested party

20 has failed to cooperate by not acting to the

21 best of its ability to comply with a request for

22 information from the administering authority

23 or the Commission, the administering author24 ity or the Commission (as the case may be),

25 in reaching the applicable determination
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1 under this title, may use an inference that is

2 adverse to the interests of that party in select3 ing from among the facts otherwise available.

4 Such adverse inference may include reliance

5 on information derived from—

6 ‘‘(1) the petition, or

7 ‘‘(2) any other information placed on

8 the record.

9 ‘‘(c) CORROBORATION OF SECONDARY INFOR10 MATION.—When the administering authority

11 or the Commission relies on secondary infor12 mation rather than on information obtained

13 in the course of an investigation under this

14 title, the administering authority and the

15 Commission, as the case may be, shall, to the

16 extent practicable, corroborate that informa17 tion from independent sources that are rea18 sonably at their disposal.

19 ‘‘SEC. 843. ACCESS TO INFORMATION.

20 ‘‘(a) INFORMATION GENERALLY MADE AVAIL21 ABLE.—

22 ‘‘(1) PROGRESS OF INVESTIGATION RE23 PORTS.—The administering authority and

24 the Commission shall, from time to time

25 upon request, inform the parties to an in-
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1 vestigation under this title of the

2 progress of that investigation.

3 ‘‘(2) EX PARTE MEETINGS.—The admin4 istering authority and the Commission

5 shall maintain a record of any ex parte

6 meeting between—

7 ‘‘(A) interested parties or other

8 persons providing factual informa9 tion in connection with a proceeding

10 under this title, and

11 ‘‘(B) the person charged with

12 making the determination, or any

13 person charged with making a final

14 recommendation to that person, in

15 connection with that proceeding,

16 if information relating to that proceeding

17 was presented or discussed at such meet18 ing. The record of such an ex parte meet19 ing shall include the identity of the per20 sons present at the meeting, the date,

21 time, and place of the meeting, and a

22 summary of the matters discussed or sub23 mitted. The record of the ex parte meet24 ing shall be included in the record of the

25 proceeding.
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1 ‘‘(3) SUMMARIES; NON-PROPRIETARY SUB2 MISSIONS.—The administering authority

3 and the Commission shall disclose—

4 ‘‘(A) any proprietary information

5 received in the course of a proceed6 ing under this title if it is disclosed in

7 a form which cannot be associated

8 with, or otherwise be used to identify,

9 operations of a particular person, and

10 ‘‘(B) any information submitted in

11 connection with a proceeding which

12 is not designated as proprietary by

13 the person submitting it.

14 ‘‘(4) MAINTENANCE OF PUBLIC RECORD.—

15 The administering authority and the

16 Commission shall maintain and make

17 available for public inspection and copy18 ing a record of all information which is

19 obtained by the administering authority

20 or the Commission, as the case may be, in

21 a proceeding under this title to the ex22 tent that public disclosure of the infor23 mation is not prohibited under this chap24 ter or exempt from disclosure under sec25 tion 552 of title 5, United States Code.
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1 ‘‘(b) PROPRIETARY INFORMATION.—

2 ‘‘(1) PROPRIETARY STATUS MAIN3 TAINED.—

4 ‘‘(A) IN GENERAL.—Except as pro5 vided in subsection (a)(4) and sub6 section (c), information submitted to

7 the administering authority or the

8 Commission which is designated as

9 proprietary by the person submitting

10 the information shall not be disclosed

11 to any person without the consent of

12 the person submitting the informa13 tion, other than—

14 ‘‘(i) to an officer or employee

15 of the administering authority or

16 the Commission who is directly

17 concerned with carrying out the

18 investigation in connection with

19 which the information is submit20 ted or any other proceeding

21 under this title covering the same

22 subject vessel, or

23 ‘‘(ii) to an officer or employee

24 of the United States Customs

25 Service who is directly involved
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1 in conducting an investigation re2 garding fraud under this title.

3 ‘‘(B) ADDITIONAL REQUIREMENTS.—

4 The administering authority and the

5 Commission shall require that infor6 mation for which proprietary treat7 ment is requested be accompanied

8 by—

9 ‘‘(i) either—

10 ‘‘(I) a nonproprietary sum11 mary in sufficient detail to

12 permit a reasonable under13 standing of the substance of

14 the information submitted in

15 confidence, or

16 ‘‘(II) a statement that the

17 information is not susceptible

18 to summary, accompanied by

19 a statement of the reasons in

20 support of the contention, and

21 ‘‘(ii) either—

22 ‘‘(I) a statement which

23 permits the administering au24 thority or the Commission to

25 release under administrative
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1 protective order, in accord2 ance with subsection (c), the

3 information submitted in con4 fidence, or

5 ‘‘(II) a statement to the ad6 ministering authority or the

7 Commission that the business

8 proprietary information is of

9 a type that should not be re10 leased under administrative

11 protective order.

12 ‘‘(2) UNWARRANTED DESIGNATION.—If

13 the administering authority or the Com14 mission determines, on the basis of the

15 nature and extent of the information or

16 its availability from public sources, that

17 designation of any information as propri18 etary is unwarranted, then it shall notify

19 the person who submitted it and ask for

20 an explanation of the reasons for the des21 ignation. Unless that person persuades

22 the administering authority or the Com23 mission that the designation is war24 ranted, or withdraws the designation, the

25 administering authority or the Commis-
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1 sion, as the case may be, shall return it to

2 the party submitting it. In a case in

3 which the administering authority or the

4 Commission returns the information to

5 the person submitting it, the person may

6 thereafter submit other material concern7 ing the subject matter of the returned in8 formation if the submission is made with9 in the time otherwise provided for sub10 mitting such material.

11 ‘‘(c) LIMITED DISCLOSURE OF CERTAIN PRO12 PRIETARY INFORMATION UNDER PROTECTIVE

13 ORDER.—

14 ‘‘(1) DISCLOSURE BY ADMINISTERING AU15 THORITY OR COMMISSION.—

16 ‘‘(A) IN GENERAL.—Upon receipt of

17 an application (before or after receipt

18 of the information requested) which

19 describes in general terms the infor20 mation requested and sets forth the

21 reasons for the request, the admin22 istering authority or the Commission

23 shall make all business proprietary

24 information presented to, or obtained

25 by it, during a proceeding under this
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1 title (except privileged information,

2 classified information, and specific

3 information of a type for which there

4 is a clear and compelling need to

5 withhold from disclosure) available to

6 all interested parties who are parties

7 to the proceeding under a protective

8 order described in subparagraph (B),

9 regardless of when the information is

10 submitted during the proceeding.

11 Customer names (other than the

12 name of the United States buyer of

13 the subject vessel) obtained during

14 any investigation which requires a

15 determination under section 805(b)

16 may not be disclosed by the admin17 istering authority under protective

18 order until either an order is pub19 lished under section 806(a) as a result

20 of the investigation or the investiga21 tion is suspended or terminated. The

22 Commission may delay disclosure of

23 customer names (other than the name

24 of the United States buyer of the sub25 ject vessel) under protective order
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1 during any such investigation until a

2 reasonable time before any hearing

3 provided under section 841 is held.

4 ‘‘(B) PROTECTIVE ORDER.—The pro5 tective order under which informa6 tion is made available shall contain

7 such requirements as the administer8 ing authority or the Commission may

9 determine by regulation to be appro10 priate. The administering authority

11 and the Commission shall provide by

12 regulation for such sanctions as the

13 administering authority and the Com14 mission determine to be appropriate,

15 including disbarment from practice

16 before the agency.

17 ‘‘(C) TIME LIMITATIONS ON DETER18 MINATIONS.—The administering au19 thority or the Commission, as the

20 case may be, shall determine whether

21 to make information available under

22 this paragraph—

23 ‘‘(i) not later than 14 days (7

24 days if the submission pertains to

25 a proceeding under section
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1 803(a)) after the date on which

2 the information is submitted, or

3 ‘‘(ii) if—

4 ‘‘(I) the person submitting

5 the information raises objec6 tion to its release, or

7 ‘‘(II) the information is un8 usually voluminous or com9 plex,

10 not later than 30 days (10 days if

11 the submission pertains to a pro12 ceeding under section 803(a))

13 after the date on which the infor14 mation is submitted.

15 ‘‘(D) AVAILABILITY AFTER DETER16 MINATION.—If the determination

17 under subparagraph (C) is affirma18 tive, then—

19 ‘‘(i) the business proprietary

20 information submitted to the ad21 ministering authority or the Com22 mission on or before the date of

23 the determination shall be made

24 available, subject to the terms
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1 and conditions of the protective

2 order, on such date, and

3 ‘‘(ii) the business proprietary

4 information submitted to the ad5 ministering authority or the Com6 mission after the date of the de7 termination shall be served as re8 quired by subsection (d).

9 ‘‘(E) FAILURE TO DISCLOSE.—If a

10 person submitting information to the

11 administering authority refuses to

12 disclose business proprietary infor13 mation which the administering au14 thority determines should be released

15 under a protective order described in

16 subparagraph (B), the administering

17 authority shall return the informa18 tion, and any nonconfidential sum19 mary thereof, to the person submit20 ting the information and summary

21 and shall not consider either.

22 ‘‘(2) DISCLOSURE UNDER COURT

23 ORDER.—If the administering authority or

24 the Commission denies a request for in25 formation under paragraph (1), then ap-
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•HR 2754 RH

1 plication may be made to the United

2 States Court of International Trade for

3 an order directing the administering au4 thority or the Commission, as the case

5 may be, to make the information avail6 able. After notification of all parties to

7 the investigation and after an oppor8 tunity for a hearing on the record, the

9 court may issue an order, under such

10 conditions as the court deems appro11 priate, which shall not have the effect of

12 stopping or suspending the investigation,

13 directing the administering authority or

14 the Commission to make all or a portion

15 of the requested information described in

16 the preceding sentence available under a

17 protective order and setting forth sanc18 tions for violation of such order if the

19 court finds that, under the standards ap20 plicable in proceedings of the court, such

21 an order is warranted, and that—

22 ‘‘(A) the administering authority

23 or the Commission has denied access

24 to the information under subsection

25 (b)(1),
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1 ‘‘(B) the person on whose behalf

2 the information is requested is an in3 terested party who is a party to the

4 investigation in connection with

5 which the information was obtained

6 or developed, and

7 ‘‘(C) the party which submitted

8 the information to which the request

9 relates has been notified, in advance

10 of the hearing, of the request made

11 under this section and of its right to

12 appear and be heard.

13 ‘‘(d) SERVICE.—Any party submitting writ14 ten information, including business propri15 etary information, to the administering au16 thority or the Commission during a proceed17 ing shall, at the same time, serve the informa18 tion upon all interested parties who are par19 ties to the proceeding, if the information is

20 covered by a protective order. The admin21 istering authority or the Commission shall

22 not accept any such information that is not

23 accompanied by a certificate of service and a

24 copy of the protective order version of the

25 document containing the information. Busi-
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1 ness proprietary information shall only be

2 served upon interested parties who are par3 ties to the proceeding that are subject to pro4 tective order, except that a nonconfidential

5 summary thereof shall be served upon all

6 other interested parties who are parties to the

7 proceeding.

8 ‘‘(e) INFORMATION RELATING TO VIOLATIONS

9 OF PROTECTIVE ORDERS AND SANCTIONS.—The

10 administering authority and the Commission

11 may withhold from disclosure any cor12 respondence, private letters of reprimand,

13 settlement agreements, and documents and

14 files compiled in relation to investigations

15 and actions involving a violation or possible

16 violation of a protective order issued under

17 subsection (c), and such information shall be

18 treated as information described in section

19 552(b)(3) of title 5, United States Code.

20 ‘‘(f) OPPORTUNITY FOR COMMENT BY VESSEL

21 BUYERS.—The administering authority and

22 the Commission shall provide an opportunity

23 for buyers of subject vessels to submit rel24 evant information to the administering au25 thority concerning a sale at less than fair
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1 value or countermeasures, and to the Com2 mission concerning material injury by reason

3 of the sale of a vessel at less than fair value.

4 ‘‘(g) PUBLICATION OF DETERMINATIONS; RE5 QUIREMENTS FOR FINAL DETERMINATIONS.—

6 ‘‘(1) IN GENERAL.—Whenever the ad7 ministering authority makes a determina8 tion under section 802 whether to initiate

9 an investigation, or the administering au10 thority or the Commission makes a pre11 liminary determination under section

12 803, a final determination under section

13 805, a determination under subsection

14 (b), (c), (d), (e)(3)(B)(ii), (g), or (i) of sec15 tion 807, or a determination to suspend

16 an investigation under this title, the ad17 ministering authority or the Commission,

18 as the case may be, shall publish the facts

19 and conclusions supporting that deter20 mination, and shall publish notice of that

21 determination in the Federal Register.

22 ‘‘(2) CONTENTS OF NOTICE OR DETER23 MINATION.—The notice or determination

24 published under paragraph (1) shall in25 clude, to the extent applicable—
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1 ‘‘(A) in the case of a determina2 tion of the administering authority—

3 ‘‘(i) the names of the foreign

4 producer and the country of ori5 gin of the subject vessel,

6 ‘‘(ii) a description sufficient to

7 identify the subject vessel,

8 ‘‘(iii) with respect to an injuri9 ous pricing charge, the injurious

10 pricing margin established and a

11 full explanation of the methodol12 ogy used in establishing such

13 margin,

14 ‘‘(iv) with respect to counter15 measures, the scope and duration

16 of countermeasures and, if appli17 cable, any changes thereto, and

18 ‘‘(v) the primary reasons for

19 the determination, and

20 ‘‘(B) in the case of a determina21 tion of the Commission—

22 ‘‘(i) considerations relevant to

23 the determination of injury, and

24 ‘‘(ii) the primary reasons for

25 the determination.
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1 ‘‘(3) ADDITIONAL REQUIREMENTS FOR

2 FINAL DETERMINATIONS.—In addition to the

3 requirements set forth in paragraph (2)—

4 ‘‘(A) the administering authority

5 shall include in a final determination

6 under section 805 or 807(c) an expla7 nation of the basis for its determina8 tion that addresses relevant argu9 ments, made by interested parties

10 who are parties to the investigation,

11 concerning the establishment of the

12 injurious pricing charge with respect

13 to which the determination is made,

14 and

15 ‘‘(B) the Commission shall include

16 in a final determination of injury an

17 explanation of the basis for its deter18 mination that addresses relevant ar19 guments that are made by interested

20 parties who are parties to the inves21 tigation concerning the effects and

22 impact on the industry of the sale of

23 the subject vessel.
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1 ‘‘SEC. 844. CONDUCT OF INVESTIGATIONS.

2 ‘‘(a) CERTIFICATION OF SUBMISSIONS.—Any

3 person providing factual information to the

4 administering authority or the Commission in

5 connection with a proceeding under this title

6 on behalf of the petitioner or any other inter7 ested party shall certify that such information

8 is accurate and complete to the best of that

9 person’s knowledge.

10 ‘‘(b) DIFFICULTIES IN MEETING REQUIRE11 MENTS.—

12 ‘‘(1) NOTIFICATION BY INTERESTED

13 PARTY.—If an interested party, promptly

14 after receiving a request from the admin15 istering authority or the Commission for

16 information, notifies the administering

17 authority or the Commission (as the case

18 may be) that such party is unable to sub19 mit the information requested in the re20 quested form and manner, together with

21 a full explanation and suggested alter22 native forms in which such party is able

23 to submit the information, the admin24 istering authority or the Commission (as

25 the case may be) shall consider the abil26 ity of the interested party to submit the
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1 information in the requested form and

2 manner and may modify such require3 ments to the extent necessary to avoid

4 imposing an unreasonable burden on that

5 party.

6 ‘‘(2) ASSISTANCE TO INTERESTED PAR7 TIES.—The administering authority and

8 the Commission shall take into account

9 any difficulties experienced by interested

10 parties, particularly small companies, in

11 supplying information requested by the

12 administering authority or the Commis13 sion in connection with investigations

14 under this title, and shall provide to such

15 interested parties any assistance that is

16 practicable in supplying such informa17 tion.

18 ‘‘(c) DEFICIENT SUBMISSIONS.—If the admin19 istering authority or the Commission deter20 mines that a response to a request for infor21 mation under this title does not comply with

22 the request, the administering authority or

23 the Commission (as the case may be) shall

24 promptly inform the person submitting the

25 response of the nature of the deficiency and
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1 shall, to the extent practicable, provide that

2 person with an opportunity to remedy or ex3 plain the deficiency in light of the time limits

4 established for the completion of investiga5 tions or reviews under this title. If that per6 son submits further information in response

7 to such deficiency and either—

8 ‘‘(1) the administering authority or

9 the Commission (as the case may be)

10 finds that such response is not satisfac11 tory, or

12 ‘‘(2) such response is not submitted

13 within the applicable time limits,

14 then the administering authority or the Com15 mission (as the case may be) may, subject to

16 subsection (d), disregard all or part of the

17 original and subsequent responses.

18 ‘‘(d) USE OF CERTAIN INFORMATION.—In

19 reaching a determination under section 803,

20 805, or 807, the administering authority and

21 the Commission shall not decline to consider

22 information that is submitted by an inter23 ested party and is necessary to the determina24 tion but does not meet all the applicable re-
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1 quirements established by the administering

2 authority or the Commission if—

3 ‘‘(1) the information is submitted by

4 the deadline established for its submis5 sion,

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

7 ‘‘(3) the information is not so incom8 plete that it cannot serve as a reliable

9 basis for reaching the applicable deter10 mination,

11 ‘‘(4) the interested party has dem12 onstrated that it acted to the best of its

13 ability in providing the information and

14 meeting the requirements established by

15 the administering authority or the Com16 mission with respect to the information,

17 and

18 ‘‘(5) the information can be used with19 out undue difficulties.

20 ‘‘(e) NONACCEPTANCE OF SUBMISSIONS.—If

21 the administering authority or the Commis22 sion declines to accept into the record any in23 formation submitted in an investigation

24 under this title, it shall, to the extent prac25 ticable, provide to the person submitting the
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1 information a written explanation of the rea2 sons for not accepting the information.

3 ‘‘(f) PUBLIC COMMENT ON INFORMATION.—In4 formation that is submitted on a timely basis

5 to the administering authority or the Commis6 sion during the course of a proceeding under

7 this title shall be subject to comment by other

8 parties within such reasonable time as the ad9 ministering authority or the Commission

10 shall provide. The administering authority

11 and the Commission, before making a final

12 determination under section 805 or 807, shall

13 cease collecting information and shall provide

14 the parties with a final opportunity to com15 ment on the information obtained by the ad16 ministering authority or the Commission (as

17 the case may be) upon which the parties have

18 not previously had an opportunity to com19 ment. Comments containing new factual in20 formation shall be disregarded.

21 ‘‘(g) VERIFICATION.—The administering au22 thority shall verify all information relied

23 upon in making a final determination under

24 section 805.
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1 ‘‘SEC. 845. ADMINISTRATIVE ACTION FOLLOWING SHIP2 BUILDING AGREEMENT PANEL REPORTS.

3 ‘‘(a) ACTION BY UNITED STATES INTER4 NATIONAL TRADE COMMISSION.—

5 ‘‘(1) ADVISORY REPORT.—If a dispute

6 settlement panel under the Shipbuilding

7 Agreement finds in a report that an ac8 tion by the Commission in connection

9 with a particular proceeding under this

10 title is not in conformity with the obliga11 tions of the United States under the Ship12 building Agreement, the Trade Rep13 resentative may request the Commission

14 to issue an advisory report on whether

15 this title permits the Commission to take

16 steps in connection with the particular

17 proceeding that would render its action

18 not inconsistent with the findings of the

19 panel concerning those obligations. The

20 Trade Representative shall notify the

21 Committee on Ways and Means of the

22 House of Representatives and the Com23 mittee on Finance of the Senate of such

24 request.

25 ‘‘(2) TIME LIMITS FOR REPORT.—The

26 Commission shall transmit its report
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1 under paragraph (1) to the Trade Rep2 resentative within 30 calendar days after

3 the Trade Representative requests the re4 port.

5 ‘‘(3) CONSULTATIONS ON REQUEST FOR

6 COMMISSION DETERMINATION.—If a majority

7 of the Commissioners issues an affirma8 tive report under paragraph (1), the

9 Trade Representatives shall consult with

10 the congressional committees listed in

11 paragraph (1) concerning the matter.

12 ‘‘(4) COMMISSION DETERMINATION.—Not13 withstanding any other provision of this

14 title, if a majority of the Commissioners

15 issues an affirmative report under para16 graph (1), the Commission, upon the writ17 ten request of the Trade Representative,

18 shall issue a determination in connection

19 with the particular proceeding that

20 would render the Commission’s action de21 scribed in paragraph (1) not inconsistent

22 with the findings of the panel. The Com23 mission shall issue its determination not

24 later than 120 calendar days after the re-
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1 quest from the Trade Representative is

2 made.

3 ‘‘(5) CONSULTATIONS ON IMPLEMENTA4 TION OF COMMISSION DETERMINATION.—The

5 Trade Representative shall consult with

6 the congressional committees listed in

7 paragraph (1) before the Commission’s

8 determination under paragraph (4) is im9 plemented.

10 ‘‘(6) REVOCATION OF ORDER.—If, by vir11 tue of the Commission’s determination

12 under paragraph (4), an injurious pricing

13 order is no longer supported by an af14 firmative Commission determination

15 under this title, the Trade Representative

16 may, after consulting with the congres17 sional committees under paragraph (5),

18 direct the administering authority to re19 voke the injurious pricing order.

20 ‘‘(b) ACTION BY ADMINISTERING AUTHOR21 ITY.—

22 ‘‘(1) CONSULTATIONS WITH ADMINISTER23 ING AUTHORITY AND CONGRESSIONAL COM24 MITTEES.—Promptly after a report or

25 other determination by a dispute settle-
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1 ment panel under the Shipbuilding

2 Agreement is issued that contains find3 ings that—

4 ‘‘(A) an action by the administer5 ing authority in a proceeding under

6 this title is not in conformity with the

7 obligations of the United States

8 under the Shipbuilding Agreement,

9 ‘‘(B) the due date for payment of

10 an injurious pricing charge contained

11 in an order issued under section 806

12 should be amended,

13 ‘‘(C) countermeasures provided

14 for in an order issued under section

15 807 should be provisionally sus16 pended or reduced pending the final

17 decision of the panel, or

18 ‘‘(D) the scope or duration of

19 countermeasures imposed under sec20 tion 807 should be narrowed or short21 ened,

22 the Trade Representative shall consult

23 with the administering authority and the

24 congressional committees listed in sub25 section (a)(1) on the matter.
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1 ‘‘(2) DETERMINATION BY ADMINISTERING

2 AUTHORITY.—Notwithstanding any other

3 provision of this title, the administering

4 authority shall, in response to a written

5 request from the Trade Representative,

6 issue a determination, or an amendment

7 to or suspension of an injurious pricing

8 or countermeasure order, as the case may

9 be, in connection with the particular pro10 ceeding that would render the admin11 istering authority’s action described in

12 paragraph (1) not inconsistent with the

13 findings of the panel.

14 ‘‘(3) TIME LIMITS FOR DETERMINA15 TIONS.—The administering authority shall

16 issue its determination, amendment, or

17 suspension under paragraph (2)—

18 ‘‘(A) with respect to a matter de19 scribed in subparagraph (A) of para20 graph (1), within 180 calendar days

21 after the request from the Trade Rep22 resentative is made, and

23 ‘‘(B) with respect to a matter de24 scribed in subparagraph (B), (C), or

25 (D) of paragraph (1), within 15 cal-
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1 endar days after the request from the

2 Trade Representative is made.

3 ‘‘(4) CONSULTATIONS BEFORE IMPLEMEN4 TATION.—Before the administering au5 thority implements any determination,

6 amendment, or suspension under para7 graph (2), the Trade Representative shall

8 consult with the administering authority

9 and the congressional committees listed

10 in subsection (a)(1) with respect to such

11 determination, amendment, or suspen12 sion.

13 ‘‘(5) IMPLEMENTATION OF DETERMINA14 TION.—The Trade Representative may,

15 after consulting with the administering

16 authority and the congressional commit17 tees under paragraph (4), direct the ad18 ministering authority to implement, in

19 whole or in part, the determination,

20 amendment, or suspension made under

21 paragraph (2).

22 ‘‘(6) IMPLEMENTATION OF DETERMINA23 TION; NOTICE OF IMPLEMENTATION.—The ad24 ministering authority shall implement
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1 the determination, amendment, or sus2 pension under paragraph (2)—

3 ‘‘(A) with respect to a matter de4 scribed in subparagraph (A) of para5 graph (1), only if the injurious pricing

6 margin determined under paragraph

7 (2) differs from the injurious pricing

8 margin in the determination re9 viewed by the panel, and

10 ‘‘(B) with respect to a matter de11 scribed in subparagraph (B), (C), or

12 (D) of paragraph (1), upon issuance of

13 the determination, amendment, or

14 suspension under paragraph (2).

15 The administering authority shall publish

16 notice of such implementation in the Fed17 eral Register.

18 ‘‘(c) OPPORTUNITY FOR COMMENT BY INTER19 ESTED PARTIES.—Before issuing a determina20 tion, amendment, or suspension, the admin21 istering authority, in a matter described in

22 subsection (b)(1)(A), or the Commission, in a

23 matter described in subsection (a)(1), as the

24 case may be, shall provide interested parties

25 with an opportunity to submit written com-
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1 ments and, in appropriate cases, may hold a

2 hearing, with respect to the determination.

3 ‘‘Subtitle D—Definitions

4 ‘‘SEC. 861. DEFINITIONS.

5 ‘‘For purposes of this title:

6 ‘‘(1) ADMINISTERING AUTHORITY.—The

7 term ‘administering authority’ means the

8 Secretary of Commerce, or any other offi9 cer of the United States to whom the re10 sponsibility for carrying out the duties of

11 the administering authority under this

12 title are transferred by law.

13 ‘‘(2) COMMISSION.—The term ‘Commis14 sion’ means the United States Inter15 national Trade Commission.

16 ‘‘(3) COUNTRY.—The term ‘country’

17 means a foreign country, a political sub18 division, dependent territory, or posses19 sion of a foreign country and, except as

20 provided in paragraph (16)(E)(iii), may

21 not include an association of 2 or more

22 foreign countries, political subdivisions,

23 dependent territories, or possessions of

24 countries into a customs union outside

25 the United States.
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1 ‘‘(4) INDUSTRY.—

2 ‘‘(A) IN GENERAL.—Except as used

3 in section 808, the term ‘industry’

4 means the producers as a whole of a

5 domestic like vessel, or those produc6 ers whose collective capability to

7 produce a domestic like vessel con8 stitutes a major proportion of the

9 total domestic capability to produce a

10 domestic like vessel.

11 ‘‘(B) PRODUCER.—A ‘producer’ of a

12 domestic like vessel includes an en13 tity that is producing the domestic

14 like vessel and an entity with the ca15 pability to produce the domestic like

16 vessel.

17 ‘‘(C) CAPABILITY TO PRODUCE A DO18 MESTIC LIKE VESSEL.—A producer has

19 the ‘capability to produce a domestic

20 like vessel’ if it is capable of produc21 ing a domestic like vessel with its

22 present facilities or could adapt its

23 facilities in a timely manner to

24 produce a domestic like vessel.
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1 ‘‘(D) RELATED PARTIES.—(i) In an

2 investigation under this title, if a pro3 ducer of a domestic like vessel and

4 the foreign producer, seller (other

5 than the foreign producer), or United

6 States buyer of the subject vessel are

7 related parties, or if a producer of a

8 domestic like vessel is also a United

9 States buyer of the subject vessel, the

10 domestic producer may, in appro11 priate circumstances, be excluded

12 from the industry.

13 ‘‘(ii) For purposes of clause (i), a

14 domestic producer and the foreign

15 producer, seller, or United States

16 buyer shall be considered to be relat17 ed parties, if—

18 ‘‘(I) the domestic producer di19 rectly or indirectly controls the

20 foreign producer, seller or United

21 States buyer,

22 ‘‘(II) the foreign producer,

23 seller, or United States buyer di24 rectly or indirectly controls the

25 domestic producer,
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1 ‘‘(III) a third party directly or

2 indirectly controls the domestic

3 producer and the foreign pro4 ducer, seller, or United States

5 buyer, or

6 ‘‘(IV) the domestic producer

7 and the foreign producer, seller,

8 or United States buyer directly or

9 indirectly control a third party

10 and there is reason to believe that

11 the relationship causes the pro12 ducer to act differently than a

13 nonrelated producer.

14 For purposes of this subparagraph, a

15 party shall be considered to directly

16 or indirectly control another party if

17 the party is legally or operationally

18 in a position to exercise restraint or

19 direction over the other party.

20 ‘‘(E) PRODUCT LINES.—In an inves21 tigation under this title, the effect of

22 the sale of the subject vessel shall be

23 assessed in relation to the United

24 States production (or production ca25 pability) of a domestic like vessel if
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1 available data permit the separate

2 identification of production (or pro3 duction capability) in terms of such

4 criteria as the production process or

5 the producer’s profits. If the domestic

6 production (or production capability)

7 of a domestic like vessel has no sepa8 rate identity in terms of such criteria,

9 then the effect of the sale shall be as10 sessed by the examination of the pro11 duction (or production capability) of

12 the narrowest group or range of ves13 sels, which includes a domestic like

14 vessel, for which the necessary infor15 mation can be provided.

16 ‘‘(5) BUYER.—The term ‘buyer’ means

17 any person who acquires an ownership

18 interest in a vessel, including by way of

19 lease or long-term bareboat charter, in

20 conjunction with the original transfer

21 from the producer, either directly or indi22 rectly, including an individual or com23 pany which owns or controls a buyer.

24 There may be more than one buyer of

25 any one vessel.
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1 ‘‘(6) UNITED STATES BUYER.—The term

2 ‘United States buyer’ means a buyer that

3 is any of the following:

4 ‘‘(A) A United States citizen.

5 ‘‘(B) A juridical entity, including

6 any corporation, company, associa7 tion, or other organization, that is le8 gally constituted under the laws and

9 regulations of the United States or a

10 political subdivision thereof, regard11 less of whether the entity is orga12 nized for pecuniary gain, privately or

13 government owned, or organized with

14 limited or unlimited liability.

15 ‘‘(C) A juridical entity that is

16 owned or controlled by nationals or

17 entities described in subparagraphs

18 (A) and (B). For the purposes of this

19 subparagraph—

20 ‘‘(i) the term ‘own’ means hav21 ing more than a 50 percent inter22 est, and

23 ‘‘(ii) the term ‘control’ means

24 the actual ability to have substan25 tial influence on corporate behav-
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1 ior, and control is presumed to

2 exist where there is at least a 25

3 percent interest.

4 If ownership of a company is estab5 lished under clause (i), other control

6 is presumed not to exist unless it is

7 otherwise established.

8 ‘‘(7) OWNERSHIP INTEREST.—An ‘owner9 ship interest’ in a vessel includes any

10 contractual or proprietary interest which

11 allows the beneficiary or beneficiaries of

12 such interest to take advantage of the op13 eration of the vessel in a manner substan14 tially comparable to the way in which an

15 owner may benefit from the operation of

16 the vessel. In determining whether such

17 substantial comparability exists, the ad18 ministering authority shall consider—

19 ‘‘(A) the terms and circumstances

20 of the transaction which conveys the

21 interest,

22 ‘‘(B) commercial practice,

23 ‘‘(C) whether the vessel subject to

24 the transaction is integrated into the
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1 operations of the beneficiary or bene2 ficiaries, and

3 ‘‘(D) whether in practice there is

4 a likelihood that the beneficiary or

5 beneficiaries of such interests will

6 take advantage of and the risk for the

7 operation of the vessel for a signifi8 cant part of the life-time of the vessel.

9 ‘‘(8) VESSEL.—

10 ‘‘(A) IN GENERAL.—Except as other11 wise specifically provided under

12 international agreements, the term

13 ‘vessel’ means—

14 ‘‘(i) a self-propelled seagoing

15 vessel of 100 gross tons or more

16 used for transportation of goods

17 or persons or for performance of

18 a specialized service (including,

19 but not limited to, ice breakers

20 and dredgers), and

21 ‘‘(ii) a tug of 365 kilowatts or

22 more,

23 that is produced in a Shipbuilding

24 Agreement Party or a country that is
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1 not a Shipbuilding Agreement Party

2 and not a WTO member.

3 ‘‘(B) EXCLUSIONS.—The term ‘ves4 sel’ does not include—

5 ‘‘(i) any fishing vessel des6 tined for the fishing fleet of the

7 country in which the vessel is

8 built,

9 ‘‘(ii) any military vessel,

10 ‘‘(iii) a military reserve vessel,

11 and

12 ‘‘(iv) any vessel sold before

13 the date that the Shipbuilding

14 Agreement enters into force with

15 respect to the United States, ex16 cept that any vessel sold after De17 cember 21, 1994, for delivery more

18 than 5 years after the date of the

19 contract of sale shall be a ‘vessel’

20 for purposes of this title unless

21 the shipbuilder demonstrates to

22 the administering authority that

23 the extended delivery date was

24 for normal commercial reasons
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1 and not to avoid applicability of

2 this title.

3 ‘‘(C) SELF-PROPELLED SEAGOING

4 VESSEL.—A vessel is ‘self-propelled

5 seagoing’ if its permanent propulsion

6 and steering provide it all the charac7 teristics of self-navigability in the

8 high seas.

9 ‘‘(D) MILITARY VESSEL.—A ‘military

10 vessel’ is a vessel which, according to

11 its basic structural characteristics

12 and ability, is intended to be used ex13 clusively for military purposes.

14 ‘‘(E) MILITARY RESERVE VESSEL.—A

15 ‘military reserve vessel’ is a vessel

16 that has been constructed with na17 tional defense features and character18 istics required by the Secretary of De19 fense for the purpose of supporting

20 the United States Armed Forces in a

21 contingency.

22 ‘‘(9) LIKE VESSEL.—The term ‘like ves23 sel’ means a vessel of the same type, same

24 purpose, and approximate size as the

25 subject vessel and possessing characteris-
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1 tics closely resembling those of the sub2 ject vessel.

3 ‘‘(10) DOMESTIC LIKE VESSEL.—The

4 term ‘domestic like vessel’ means a like

5 vessel produced in the United States.

6 ‘‘(11) FOREIGN LIKE VESSEL.—Except as

7 used in section 822(e)(1)(B)(ii)(II), the

8 term ‘foreign like vessel’ means a like

9 vessel produced by the foreign producer

10 of the subject vessel for sale in the pro11 ducer’s domestic market or in a third

12 country.

13 ‘‘(12) SAME GENERAL CATEGORY OF VES14 SEL.—The term ‘same general category of

15 vessel’ means a vessel of the same type

16 and purpose as the subject vessel, but of

17 a significantly different size.

18 ‘‘(13) SUBJECT VESSEL.—The term ‘sub19 ject vessel’ means a vessel subject to in20 vestigation under section 801, 808, or 809.

21 ‘‘(14) FOREIGN PRODUCER.—The term

22 ‘foreign producer’ means the producer or

23 producers of the subject vessel.
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1 ‘‘(15) EXPORTING COUNTRY.—The term

2 ‘exporting country’ means the country in

3 which the subject vessel was built.

4 ‘‘(16) MATERIAL INJURY.—

5 ‘‘(A) IN GENERAL.—The term ‘mate6 rial injury’ means harm which is not

7 inconsequential, immaterial, or unim8 portant.

9 ‘‘(B) SALE AND CONSEQUENT IM10 PACT.—In making determinations

11 under sections 803(a) and 805(b), the

12 Commission in each case—

13 ‘‘(i) shall consider—

14 ‘‘(I) the sale of the subject

15 vessel,

16 ‘‘(II) the effect of the sale

17 of the subject vessel on prices

18 in the United States for a do19 mestic like vessel, and

20 ‘‘(III) the impact of the

21 sale of the subject vessel on

22 domestic producers of the do23 mestic like vessel, but only in

24 the context of production op-
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1 erations within the United

2 States, and

3 ‘‘(ii) may consider such other

4 economic factors as are relevant

5 to the determination regarding

6 whether there is or has been ma7 terial injury by reason of the sale

8 of the subject vessel.

9 In the notification required under

10 section 805(d), the Commission shall

11 explain its analysis of each factor

12 considered under clause (i), and iden13 tify each factor considered under

14 clause (ii) and explain in full its rel15 evance to the determination.

16 ‘‘(C) EVALUATION OF RELEVANT FAC17 TORS.—For purposes of subparagraph

18 (B)—

19 ‘‘(i) SALE OF THE SUBJECT VES20 SEL.—In evaluating the sale of the

21 subject vessel, the Commission

22 shall consider whether the sale,

23 either in absolute terms or rel24 ative to production or demand in

25 the United States, in terms of ei-
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1 ther volume or value, is or has

2 been significant.

3 ‘‘(ii) PRICE.—In evaluating the

4 effect of the sale of the subject

5 vessel on prices, the Commission

6 shall consider whether—

7 ‘‘(I) there has been signifi8 cant price underselling of the

9 subject vessel as compared

10 with the price of a domestic

11 like vessel, and

12 ‘‘(II) the effect of the sale

13 of the subject vessel other14 wise depresses or has de15 pressed prices to a significant

16 degree or prevents or has pre17 vented price increases, which

18 otherwise would have oc19 curred, to a significant de20 gree.

21 ‘‘(iii) IMPACT ON AFFECTED DO22 MESTIC INDUSTRY.—In examining

23 the impact required to be consid24 ered under subparagraph

25 (B)(i)(III), the Commission shall
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1 evaluate all relevant economic

2 factors which have a bearing on

3 the state of the industry in the

4 United States, including, but not

5 limited to—

6 ‘‘(I) actual and potential

7 decline in output, sales, mar8 ket share, profits, productiv9 ity, return on investments,

10 and utilization of capacity,

11 ‘‘(II) factors affecting do12 mestic prices, including with

13 regard to sales,

14 ‘‘(III) actual and potential

15 negative effects on cash flow,

16 employment, wages, growth,

17 ability to raise capital, and in18 vestment,

19 ‘‘(IV) actual and potential

20 negative effects on the exist21 ing development and produc22 tion efforts of the domestic in23 dustry, including efforts to

24 develop a derivative or more
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1 advanced version of a domes2 tic like vessel, and

3 ‘‘(V) the magnitude of the

4 injurious pricing margin.

5 The Commission shall evaluate all

6 relevant economic factors de7 scribed in this clause within the

8 context of the business cycle and

9 conditions of competition that are

10 distinctive to the affected indus11 try.

12 ‘‘(D) STANDARD FOR DETERMINA13 TION.—The presence or absence of

14 any factor which the Commission is

15 required to evaluate under subpara16 graph (C) shall not necessarily give

17 decisive guidance with respect to the

18 determination by the Commission of

19 material injury.

20 ‘‘(E) THREAT OF MATERIAL INJURY.—

21 ‘‘(i) IN GENERAL.—In determin22 ing whether an industry in the

23 United States is threatened with

24 material injury by reason of the

25 sale of the subject vessel, the
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1 Commission shall consider,

2 among other relevant economic

3 factors—

4 ‘‘(I) any existing unused

5 production capacity or immi6 nent, substantial increase in

7 production capacity in the ex8 porting country indicating

9 the likelihood of substantially

10 increased sales of a foreign

11 like vessel to United States

12 buyers, taking into account

13 the availability of other ex14 port markets to absorb any

15 additional exports,

16 ‘‘(II) whether the sale of a

17 foreign like vessel or other

18 factors indicate the likelihood

19 of significant additional sales

20 to United States buyers,

21 ‘‘(III) whether sale of the

22 subject vessel or sale of a for23 eign like vessel by the foreign

24 producer are at prices that

25 are likely to have a significant
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1 depressing or suppressing ef2 fect on domestic prices, and

3 are likely to increase demand

4 for further sales,

5 ‘‘(IV) the potential for

6 product-shifting if production

7 facilities in the exporting

8 country, which can presently

9 be used to produce a foreign

10 like vessel or could be adapt11 ed in a timely manner to

12 produce a foreign like vessel,

13 are currently being used to

14 produce other types of ves15 sels,

16 ‘‘(V) the actual and poten17 tial negative effects on the ex18 isting development and pro19 duction efforts of the domes20 tic industry, including efforts

21 to develop a derivative or

22 more advanced version of a

23 domestic like vessel, and

24 ‘‘(VI) any other demon25 strable adverse trends that in-
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1 dicate the probability that

2 there is likely to be material

3 injury by reason of the sale of

4 the subject vessel.

5 ‘‘(ii) BASIS FOR DETERMINA6 TION.—The Commission shall con7 sider the factors set forth in

8 clause (i) as a whole. The pres9 ence or absence of any factor

10 which the Commission is required

11 to consider under clause (i) shall

12 not necessarily give decisive guid13 ance with respect to the deter14 mination. Such a determination

15 may not be made on the basis of

16 mere conjecture or supposition.

17 ‘‘(iii) EFFECT OF INJURIOUS

18 PRICING IN THIRD-COUNTRY MAR19 KETS.—

20 ‘‘(I) IN GENERAL.—The

21 Commission shall consider

22 whether injurious pricing in

23 the markets of foreign coun24 tries (as evidenced by injuri25 ous pricing findings or injuri-
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1 ous pricing remedies of other

2 Shipbuilding Agreement Par3 ties, or antidumping deter4 minations of, or measures im5 posed by, other countries,

6 against a like vessel produced

7 by the producer under inves8 tigation) suggests a threat of

9 material injury to the domes10 tic industry. In the course of

11 its investigation, the Commis12 sion shall request information

13 from the foreign producer or

14 United States buyer concern15 ing this issue.

16 ‘‘(II) EUROPEAN COMMU17 NITIES.—For purposes of this

18 clause, the European Commu19 nities as a whole shall be

20 treated as a single foreign

21 country.

22 ‘‘(F) CUMULATION FOR DETERMINING

23 MATERIAL INJURY.—

24 ‘‘(i) IN GENERAL.—For purposes

25 of clauses (i) and (ii) of subpara-
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1 graph (C), and subject to clause

2 (ii) of this subparagraph, the

3 Commission shall cumulatively

4 assess the effects of sales of for5 eign like vessels from all foreign

6 producers with respect to

7 which—

8 ‘‘(I) petitions were filed

9 under section 802(b) on the

10 same day,

11 ‘‘(II) investigations were

12 initiated under section 802(a)

13 on the same day, or

14 ‘‘(III) petitions were filed

15 under section 802(b) and in16 vestigations were initiated

17 under section 802(a) on the

18 same day,

19 if, with respect to such vessels,

20 the foreign producers compete

21 with each other and with produc22 ers of a domestic like vessel in the

23 United States market.

24 ‘‘(ii) EXCEPTIONS.—The Com25 mission shall not cumulatively as-
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1 sess the effects of sales under

2 clause (i)—

3 ‘‘(I) with respect to which

4 the administering authority

5 has made a preliminary nega6 tive determination, unless the

7 administering authority sub8 sequently made a final affirm9 ative determination with re10 spect to those sales before the

11 Commission’s final determina12 tion is made, or

13 ‘‘(II) from any producer

14 with respect to which the in15 vestigation has been termi16 nated.

17 ‘‘(iii) RECORDS IN FINAL INVES18 TIGATIONS.—In each final deter19 mination in which it cumulatively

20 assesses the effects of sales under

21 clause (i), the Commission may

22 make its determinations based on

23 the record compiled in the first

24 investigation in which it makes a

25 final determination, except that
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1 when the administering authority

2 issues its final determination in a

3 subsequently completed inves4 tigation, the Commission shall

5 permit the parties in the subse6 quent investigation to submit

7 comments concerning the signifi8 cance of the administering

9 authority’s final determination,

10 and shall include such comments

11 and the administering authority’s

12 final determination in the record

13 for the subsequent investigation.

14 ‘‘(G) CUMULATION FOR DETERMINING

15 THREAT OF MATERIAL INJURY.—To the

16 extent practicable and subject to sub17 paragraph (F)(ii), for purposes of

18 clause (i) (II) and (III) of subpara19 graph (E), the Commission may cumu20 latively assess the effects of sales of

21 like vessels from all countries with

22 respect to which—

23 ‘‘(i) petitions were filed under

24 section 802(b) on the same day,
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1 ‘‘(ii) investigations were initi2 ated under section 802(a) on the

3 same day, or

4 ‘‘(iii) petitions were filed

5 under section 802(b) and inves6 tigations were initiated under

7 section 802(a) on the same day,

8 if, with respect to such vessels, the

9 foreign producers compete with each

10 other and with producers of a domes11 tic like vessel in the United States

12 market.

13 ‘‘(17) INTERESTED PARTY.—The term

14 ‘interested party’ means, in a proceeding

15 under this title—

16 ‘‘(A)(i) the foreign producer, seller

17 (other than the foreign producer),

18 and the United States buyer of the

19 subject vessel, or

20 ‘‘(ii) a trade or business associa21 tion a majority of the members of

22 which are the foreign producer, sell23 er, or United States buyer of the sub24 ject vessel,
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1 ‘‘(B) the government of the coun2 try in which the subject vessel is pro3 duced or manufactured,

4 ‘‘(C) a producer that is a member

5 of an industry,

6 ‘‘(D) a certified union or recog7 nized union or group of workers

8 which is representative of an indus9 try,

10 ‘‘(E) a trade or business associa11 tion a majority of whose members are

12 producers in an industry,

13 ‘‘(F) an association, a majority of

14 whose members is composed of inter15 ested parties described in subpara16 graph (C), (D), or (E), and

17 ‘‘(G) for purposes of section 807, a

18 purchaser who, after the effective

19 date of an order issued under that

20 section, entered into a contract of

21 sale with the foreign producer that is

22 subject to the order.

23 ‘‘(18) AFFIRMATIVE DETERMINATIONS BY

24 DIVIDED COMMISSION.—If the Commis25 sioners voting on a determination by the
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1 Commission are evenly divided as to

2 whether the determination should be af3 firmative or negative, the Commission

4 shall be deemed to have made an affirma5 tive determination. For the purpose of

6 applying this paragraph when the issue

7 before the Commission is to determine

8 whether there is or has been—

9 ‘‘(A) material injury to an indus10 try in the United States,

11 ‘‘(B) threat of material injury to

12 such an industry, or

13 ‘‘(C) material retardation of the

14 establishment of an industry in the

15 United States,

16 by reason of the sale of the subject vessel,

17 an affirmative vote on any of the issues

18 shall be treated as a vote that the deter19 mination should be affirmative.

20 ‘‘(19) ORDINARY COURSE OF TRADE.—

21 The term ‘ordinary course of trade’

22 means the conditions and practices

23 which, for a reasonable time before the

24 sale of the subject vessel, have been nor25 mal in the shipbuilding industry with re-
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1 spect to a like vessel. The administering

2 authority shall consider the following

3 sales and transactions, among others, to

4 be outside the ordinary course of trade:

5 ‘‘(A) Sales disregarded under sec6 tion 822(b)(1).

7 ‘‘(B) Transactions disregarded

8 under section 822(f)(2).

9 ‘‘(20) NONMARKET ECONOMY COUNTRY.—

10 ‘‘(A) IN GENERAL.—The term ‘non11 market economy country’ means any

12 foreign country that the administer13 ing authority determines does not op14 erate on market principles of cost or

15 pricing structures, so that sales of

16 vessels in such country do not reflect

17 the fair value of the vessels.

18 ‘‘(B) FACTORS TO BE CONSIDERED.—

19 In making determinations under sub20 paragraph (A) the administering au21 thority shall take into account—

22 ‘‘(i) the extent to which the

23 currency of the foreign country is

24 convertible into the currency of

25 other countries,
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1 ‘‘(ii) the extent to which wage

2 rates in the foreign country are

3 determined by free bargaining be4 tween labor and management,

5 ‘‘(iii) the extent to which joint

6 ventures or other investments by

7 firms of other foreign countries

8 are permitted in the foreign coun9 try,

10 ‘‘(iv) the extent of government

11 ownership or control of the

12 means of production,

13 ‘‘(v) the extent of government

14 control over the allocation of re15 sources and over the price and

16 output decisions of enterprises,

17 and

18 ‘‘(vi) such other factors as the

19 administering authority considers

20 appropriate.

21 ‘‘(C) DETERMINATION IN EFFECT.—

22 ‘‘(i) Any determination that a

23 foreign country is a nonmarket

24 economy country shall remain in
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1 effect until revoked by the admin2 istering authority.

3 ‘‘(ii) The administering au4 thority may make a determina5 tion under subparagraph (A) with

6 respect to any foreign country at

7 any time.

8 ‘‘(D) DETERMINATIONS NOT IN

9 ISSUE.—Notwithstanding any other

10 provision of law, any determination

11 made by the administering authority

12 under subparagraph (A) shall not be

13 subject to judicial review in any in14 vestigation conducted under subtitle

15 A.

16 ‘‘(21) SHIPBUILDING AGREEMENT.—The

17 term ‘Shipbuilding Agreement’ means

18 The Agreement Respecting Normal Com19 petitive Conditions in the Commercial

20 Shipbuilding and Repair Industry, result21 ing from negotiations under the auspices

22 of the Organization for Economic Co23 operation and Development, and entered

24 into on December 21, 1994.
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1 ‘‘(22) SHIPBUILDING AGREEMENT

2 PARTY.—The term ‘Shipbuilding Agree3 ment Party’ means a state or separate

4 customs territory that is a Party to the

5 Shipbuilding Agreement, and with re6 spect to which the United States applies

7 the Shipbuilding Agreement.

8 ‘‘(23) WTO AGREEMENT.—The term

9 ‘WTO Agreement’ means the Agreement

10 defined in section 2(9) of the Uruguay

11 Round Agreements Act.

12 ‘‘(24) WTO MEMBER.—The term ‘WTO

13 member’ means a state, or separate cus14 toms territory (within the meaning of Ar15 ticle XII of the WTO Agreement), with re16 spect to which the United States applies

17 the WTO Agreement.

18 ‘‘(25) TRADE REPRESENTATIVE.—The

19 term ‘Trade Representative’ means the

20 United States Trade Representative.

21 ‘‘(26) AFFILIATED PERSONS.—The fol22 lowing persons shall be considered to be

23 ‘affiliated’ or ‘affiliated persons’:

24 ‘‘(A) Members of a family, includ25 ing brothers and sisters (whether by
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1 the whole or half blood), spouse, an2 cestors, and lineal descendants.

3 ‘‘(B) Any officer or director of an

4 organization and such organization.

5 ‘‘(C) Partners.

6 ‘‘(D) Employer and employee.

7 ‘‘(E) Any person directly or indi8 rectly owning, controlling, or holding

9 with power to vote, 5 percent or more

10 of the outstanding voting stock or

11 shares of any organization, and such

12 organization.

13 ‘‘(F) Two or more persons directly

14 or indirectly controlling, controlled

15 by, or under common control with,

16 any person.

17 ‘‘(G) Any person who controls any

18 other person, and such other person.

19 For purposes of this paragraph, a person

20 shall be considered to control another

21 person if the person is legally or oper22 ationally in a position to exercise re23 straint or direction over the other per24 son.
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1 ‘‘(27) INJURIOUS PRICING.—The term

2 ‘injurious pricing’ refers to the sale of a

3 vessel at less than fair value.

4 ‘‘(28) INJURIOUS PRICING MARGIN.—

5 ‘‘(A) IN GENERAL.—The term ‘inju6 rious pricing margin’ means the

7 amount by which the normal value

8 exceeds the export price of the sub9 ject vessel.

10 ‘‘(B) MAGNITUDE OF THE INJURIOUS

11 PRICING MARGIN.—The magnitude of

12 the injurious pricing margin used by

13 the Commission shall be—

14 ‘‘(i) in making a preliminary

15 determination under section

16 803(a) in an investigation (includ17 ing any investigation in which the

18 Commission cumulatively as19 sesses the effect of sales under

20 paragraph (16)(F)(i)), the injuri21 ous pricing margin or margins

22 published by the administering

23 authority in its notice of initi24 ation of the investigation; and
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1 ‘‘(ii) in making a final deter2 mination under section 805(b),

3 the injurious pricing margin or

4 margins most recently published

5 by the administering authority

6 before the closing of the Commis7 sion’s administrative record.

8 ‘‘(29) COMMERCIAL INTEREST REF9 ERENCE RATE.—The term ‘Commercial In10 terest Reference Rate’ or ‘CIRR’ means

11 an interest rate that the administering

12 authority determines to be consistent

13 with Annex III, and appendices and notes

14 thereto, of the Understanding on Export

15 Credits for Ships, resulting from negotia16 tions under the auspices of the Organiza17 tion for Economic Cooperation, and en18 tered into on December 21, 1994.

19 ‘‘(30) ANTIDUMPING.—

20 ‘‘(A) WTO MEMBERS.—In the case

21 of a WTO member, the term ‘anti22 dumping’ refers to action taken pur23 suant to the Agreement on Implemen24 tation of Article VI of the General

25 Agreement on Tariffs and Trade 1994.
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1 ‘‘(B) OTHER CASES.—In the case of

2 any country that is not a WTO mem3 ber, the term ‘antidumping’ refers to

4 action taken by the country against

5 the sale of a vessel at less than fair

6 value that is comparable to action de7 scribed in subparagraph (A).

8 ‘‘(31) BROAD MULTIPLE BID.—The term

9 ‘broad multiple bid’ means a bid in which

10 the proposed buyer extends an invitation

11 to at least all the producers in the indus12 try known by the buyer to be capable of

13 building the subject vessel.’’.

14 SEC. 102. ENFORCEMENT OF COUNTERMEASURES.

15 Part II of title IV of the Tariff Act of 1930

16 is amended by adding at the end the follow17 ing:

18 ‘‘SEC. 468. SHIPBUILDING AGREEMENT COUNTER19 MEASURES.

20 ‘‘(a) IN GENERAL.—Notwithstanding any

21 other provision of law, upon receiving from

22 the Secretary of Commerce a list of vessels

23 subject to countermeasures under section 807,

24 the Customs Service shall deny any request

25 for a permit to lade or unlade passengers,
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1 merchandise, or baggage from or onto those

2 vessels so listed.

3 ‘‘(b) EXCEPTIONS.—Subsection (a) shall not

4 be applied to deny a permit for the following:

5 ‘‘(1) To unlade any United States citi6 zen or permanent legal resident alien

7 from a vessel included in the list de8 scribed in subsection (a), or to unlade

9 any refugee or any alien who would oth10 erwise be eligible to apply for asylum and

11 withholding of deportation under the Im12 migration and Nationality Act.

13 ‘‘(2) To lade or unlade any crew14 member of such vessel.

15 ‘‘(3) To lade or unlade coal and other

16 fuel supplies (for the operation of the list17 ed vessel), ships’ stores, sea stores, and

18 the legitimate equipment of such vessel.

19 ‘‘(4) To lade or unlade supplies for the

20 use or sale on such vessel.

21 ‘‘(5) To lade or unlade such other

22 merchandise, baggage, or passenger as

23 the Customs Service shall determine nec24 essary to protect the immediate health,

25 safety, or welfare of a human being.
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1 ‘‘(c) CORRECTION OF MINISTERIAL OR CLERI2 CAL ERRORS.—

3 ‘‘(1) PETITION FOR CORRECTION.—If the

4 master of any vessel whose application

5 for a permit to lade or unlade has been

6 denied under this section believes that

7 such denial resulted from a ministerial or

8 clerical error, not amounting to a mis9 take of law, committed by any Customs

10 officer, the master may petition the Cus11 toms Service for correction of such error,

12 as provided by regulation.

13 ‘‘(2) INAPPLICABILITY OF SECTIONS 514

14 AND 520.—Notwithstanding paragraph (1),

15 imposition of countermeasures under this

16 section shall not be deemed an exclusion

17 or other protestable decision under sec18 tion 514, and shall not be subject to cor19 rection under section 520.

20 ‘‘(3) PETITIONS SEEKING ADMINISTRATIVE

21 REVIEW.—Any petition seeking adminis22 trative review of any matter regarding

23 the Secretary of Commerce’s decision to

24 list a vessel under section 807 must be

25 brought under that section.
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1 ‘‘(d) PENALTIES.—In addition to any other

2 provision of law, the Customs Service may im3 pose a civil penalty of not to exceed $10,000

4 against the master of any vessel—

5 ‘‘(1) who submits false information in

6 requesting any permit to lade or unlade;

7 or

8 ‘‘(2) who attempts to, or actually does,

9 lade or unlade in violation of any denial

10 of such permit under this section.’’.

11 SEC. 103. JUDICIAL REVIEW IN INJURIOUS PRICING AND

12 COUNTERMEASURE PROCEEDINGS.

13 (a) JUDICIAL REVIEW.—Part III of title IV of

14 the Tariff Act of 1930 is amended by inserting

15 after section 516A the following:

16 ‘‘SEC. 516B. JUDICIAL REVIEW IN INJURIOUS PRICING AND

17 COUNTERMEASURE PROCEEDINGS.

18 ‘‘(a) REVIEW OF DETERMINATION.—

19 ‘‘(1) IN GENERAL.—Within 30 days after

20 the date of publication in the Federal

21 Register of—

22 ‘‘(A)(i) a determination by the ad23 ministering authority under section

24 802(c) not to initiate an investigation,
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1 ‘‘(ii) a negative determination by

2 the Commission under section 803(a)

3 as to whether there is or has been

4 reasonable indication of material in5 jury, threat of material injury, or ma6 terial retardation,

7 ‘‘(iii) a determination by the ad8 ministering authority to suspend or

9 revoke an injurious pricing order

10 under section 806(d) or (e),

11 ‘‘(iv) a determination by the ad12 ministering authority under section

13 807(c),

14 ‘‘(v) a determination by the ad15 ministering authority in a review

16 under section 807(d),

17 ‘‘(vi) a determination by the ad18 ministering authority concerning

19 whether to extend the scope or dura20 tion of a countermeasure order under

21 section 807(e)(3)(B)(ii),

22 ‘‘(vii) a determination by the ad23 ministering authority to amend a

24 countermeasure order under section

25 807(e)(6),
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1 ‘‘(viii) a determination by the ad2 ministering authority in a review

3 under section 807(g),

4 ‘‘(ix) a determination by the ad5 ministering authority under section

6 807(i) to terminate proceedings, or to

7 amend or revoke a countermeasure

8 order,

9 ‘‘(x) a determination by the ad10 ministering authority under section

11 845(b), with respect to a matter de12 scribed in paragraph (1)(D) of that

13 section, or

14 ‘‘(B)(i) an injurious pricing order

15 based on a determination described

16 in subparagraph (A) of paragraph (2),

17 ‘‘(ii) notice of a determination de18 scribed in subparagraph (B) of para19 graph (2),

20 ‘‘(iii) notice of implementation of

21 a determination described in sub22 paragraph (C) of paragraph (2), or

23 ‘‘(iv) notice of revocation of an in24 jurious pricing order based on a de-
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1 termination described in subpara2 graph (D) of paragraph (2),

3 an interested party who is a party to the

4 proceeding in connection with which the

5 matter arises may commence an action in

6 the United States Court of International

7 Trade by filing concurrently a summons

8 and complaint, each with the content and

9 in the form, manner, and style prescribed

10 by the rules of that court, contesting any

11 factual findings or legal conclusions upon

12 which the determination is based.

13 ‘‘(2) REVIEWABLE DETERMINATIONS.—

14 The determinations referred to in para15 graph (1)(B) are—

16 ‘‘(A) a final affirmative determina17 tion by the administering authority

18 or by the Commission under section

19 805, including any negative part of

20 such a determination (other than a

21 part referred to in subparagraph (B)),

22 ‘‘(B) a final negative determina23 tion by the administering authority

24 or the Commission under section 805,
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1 ‘‘(C) a determination by the ad2 ministering authority under section

3 845(b), with respect to a matter de4 scribed in paragraph (1)(A) of that

5 section, and

6 ‘‘(D) a determination by the Com7 mission under section 845(a) that re8 sults in the revocation of an injurious

9 pricing order.

10 ‘‘(3) EXCEPTION.—Notwithstanding the

11 30-day limitation imposed by paragraph

12 (1) with regard to an order described in

13 paragraph (1)(B)(i), a final affirmative de14 termination by the administering author15 ity under section 805 may be contested by

16 commencing an action, in accordance

17 with the provisions of paragraph (1),

18 within 30 days after the date of publica19 tion in the Federal Register of a final

20 negative determination by the Commis21 sion under section 805.

22 ‘‘(4) PROCEDURES AND FEES.—The pro23 cedures and fees set forth in chapter 169

24 of title 28, United States Code, apply to

25 an action under this section.
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1 ‘‘(b) STANDARDS OF REVIEW.—

2 ‘‘(1) REMEDY.—The court shall hold

3 unlawful any determination, finding, or

4 conclusion found—

5 ‘‘(A) in an action brought under

6 subparagraph (A) of subsection (a)(1),

7 to be arbitrary, capricious, an abuse

8 of discretion, or otherwise not in ac9 cordance with law, or

10 ‘‘(B) in an action brought under

11 subparagraph (B) of subsection (a)(1),

12 to be unsupported by substantial evi13 dence on the record, or otherwise not

14 in accordance with law.

15 ‘‘(2) RECORD FOR REVIEW.—

16 ‘‘(A) IN GENERAL.—For purposes of

17 this subsection, the record, unless

18 otherwise stipulated by the parties,

19 shall consist of—

20 ‘‘(i) a copy of all information

21 presented to or obtained by the

22 administering authority or the

23 Commission during the course of

24 the administrative proceeding, in25 cluding all governmental memo-
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1 randa pertaining to the case and

2 the record of ex parte meetings

3 required to be kept by section

4 843(a)(2); and

5 ‘‘(ii) a copy of the determina6 tion, all transcripts or records of

7 conferences or hearings, and all

8 notices published in the Federal

9 Register.

10 ‘‘(B) CONFIDENTIAL OR PRIVILEGED

11 MATERIAL.—The confidential or privi12 leged status accorded to any docu13 ments, comments, or information

14 shall be preserved in any action

15 under this section. Notwithstanding

16 the preceding sentence, the court

17 may examine, in camera, the con18 fidential or privileged material, and

19 may disclose such material under

20 such terms and conditions as it may

21 order.

22 ‘‘(c) STANDING.—Any interested party who

23 was a party to the proceeding under title VIII

24 shall have the right to appear and be heard

25 as a party in interest before the United States
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1 Court of International Trade in an action

2 under this section. The party filing the action

3 shall notify all such interested parties of the

4 filing of an action under this section, in the

5 form, manner, and within the time prescribed

6 by rules of the court.

7 ‘‘(d) DEFINITIONS.—For purposes of this

8 section:

9 ‘‘(1) ADMINISTERING AUTHORITY.—The

10 term ‘administering authority’ has the

11 meaning given that term in section

12 861(1).

13 ‘‘(2) COMMISSION.—The term ‘Commis14 sion’ means the United States Inter15 national Trade Commission.

16 ‘‘(3) INTERESTED PARTY.—The term ‘in17 terested party’ means any person de18 scribed in section 861(17).’’.

19 (b) CONFORMING AMENDMENTS.—

20 (1) JURISDICTION OF THE COURT.—Sec21 tion 1581(c) of title 28, United States

22 Code, is amended by inserting ‘‘or 516B’’

23 after ‘‘section 516A’’.

24 (2) RELIEF.—Section 2643 of title 28,

25 United States Code, is amended—
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1 (A) in subsection (c)(1) by striking

2 ‘‘and (5)’’ and inserting ‘‘(5), and (6)’’;

3 and

4 (B) in subsection (c) by adding at

5 the end the following new paragraph:

6 ‘‘(6) In any civil action under section 516B

7 of the Tariff Act of 1930, the Court of Inter8 national Trade may not issue injunctions or

9 any other form of equitable relief, except with

10 regard to implementation of a counter11 measure order under section 468 of that Act,

12 upon a proper showing that such relief is war13 ranted.’’.

14 TITLE II—OTHER PROVISIONS

15 SEC. 201. EQUIPMENT AND REPAIR OF VESSELS.

16 Section 466 of the Tariff Act of 1930 (19

17 U.S.C. 1466), is amended by adding at the end

18 the following new subsection:

19 ‘‘(i) The duty imposed by subsection (a)

20 shall not apply with respect to activities oc21 curring in a Shipbuilding Agreement Party,

22 as defined in section 861(22), with respect to—

23 ‘‘(1) self-propelled seagoing vessels of

24 100 gross tons or more that are used for

25 transportation of goods or persons or for
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1 performance of a specialized service (in2 cluding, but not limited to, ice breakers

3 and dredges), and

4 ‘‘(2) tugs of 365 kilowatts or more.

5 A vessel shall be considered ‘self-propelled

6 seagoing’ if its permanent propulsion and

7 steering provide it all the characteristics of

8 self-navigability in the high seas.’’.

9 SEC. 202. EFFECT OF AGREEMENT WITH RESPECT TO PRI10 VATE REMEDIES.

11 No person other than the United States—

12 (1) shall have any cause of action or

13 defense under the Shipbuilding Agree14 ment or by virtue of congressional ap15 proval of the agreement, or

16 (2) may challenge, in any action

17 brought under any provision of law, any

18 action or inaction by any department,

19 agency, or other instrumentality of the

20 United States, the District of Columbia,

21 any State, any political subdivision of a

22 State, or any territory or possession of

23 the United States on the ground that

24 such action or inaction is inconsistent

25 with such agreement.
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1 SEC. 203. IMPLEMENTING REGULATIONS.

2 After the date of the enactment of this

3 Act, the heads of agencies with functions

4 under this Act and the amendments made by

5 this Act may issue such regulations as may be

6 necessary to ensure that this Act is appro7 priately implemented on the date the Ship8 building Agreement enters into force with re9 spect to the United States.

10 SEC. 204. AMENDMENTS TO THE MERCHANT MARINE ACT,

11 1936.

12 The Merchant Marine Act, 1936, is amend13 ed as follows:

14 (1) Section 511(a)(2) (46 App. U.S.C.

15 1161(a)(2)) is amended by inserting after

16 ‘‘1939,’’ the following: ‘‘or, if the vessel is

17 a Shipbuilding Agreement vessel, con18 structed in a Shipbuilding Agreement

19 Party, but only with regard to moneys de20 posited, on or after the date on which the

21 Shipbuilding Trade Agreement Act takes

22 effect, into a construction reserve fund

23 established under subsection (b)’’.

24 (2) Section 601(a) (46 App. U.S.C.

25 1171(a)) is amended by striking ‘‘, and

26 that such vessel or vessels were built in
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1 the United States, or have been docu2 mented under the laws of the United

3 States not later than February 1, 1928, or

4 actually ordered and under construction

5 for the account of citizens of the United

6 States prior to such date’’ and inserting

7 ‘‘and that such vessel or vessels were

8 built in the United States, or, if the vessel

9 or vessels are Shipbuilding Agreement

10 vessels, in a Shipbuilding Agreement

11 Party’’.

12 (3) Section 606(6) (46 App. U.S.C.

13 1176(6)) is amended by inserting ‘‘or, if

14 the vessel is a Shipbuilding Agreement

15 vessel, in a Shipbuilding Agreement

16 Party or in the United States’’ before ‘‘,

17 except in an emergency.’’.

18 (4) Section 607 (46 App. U.S.C. 1177) is

19 amended as follows:

20 (A) Subsection (a) is amended by

21 inserting ‘‘or, if the vessel is a Ship22 building Agreement vessel, in a Ship23 building Agreement Party,’’ after

24 ‘‘built in the United States’’.
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1 (B) Subsection (k) is amended as

2 follows:

3 (i) Paragraph (1) is amended

4 by striking subparagraph (A) and

5 inserting the following:

6 ‘‘(A)(i) constructed in the United

7 States and, if reconstructed, recon8 structed in the United States or in a

9 Shipbuilding Agreement Party, or

10 ‘‘(ii) that is a Shipbuilding Agreement

11 vessel and is constructed in a Shipbuild12 ing Agreement Party and, if recon13 structed, is reconstructed in a Shipbuild14 ing Agreement Party or in the United

15 States,’’.

16 (ii) Paragraph (2)(A) is

17 amended to read as follows:

18 ‘‘(A)(i) constructed in the United

19 States and, if reconstructed, recon20 structed in the United States or in a

21 Shipbuilding Agreement Party, or

22 ‘‘(ii) that is a Shipbuilding Agreement

23 vessel and is constructed in a Shipbuild24 ing Agreement Party and, if recon25 structed, is reconstructed in a Shipbuild-
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1 ing Agreement Party or in the United

2 States, but only with regard to moneys

3 deposited into the fund on or after the

4 date on which the Shipbuilding Trade

5 Agreement Act takes effect,’’.

6 (5) Section 610 (46 App. U.S.C. 1180) is

7 amended by striking ‘‘shall be built in a

8 domestic yard or shall have been docu9 mented under the laws of the United

10 States not later than February 1, 1928, or

11 actually ordered and under construction

12 for the account of citizens of the United

13 States prior to such date,’’ and inserting

14 ‘‘shall be built in the United States or, if

15 the vessel is a Shipbuilding Agreement

16 vessel, in a Shipbuilding Agreement

17 Party,’’.

18 (6) Section 901(b)(1) (46 App. U.S.C.

19 1241(b)(1)) is amended by striking the

20 third sentence and inserting the follow21 ing:

22 ‘‘For purposes of this section, the term ‘pri23 vately owned United States-flag commercial

24 vessels’ shall be deemed to include—
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1 ‘‘(A) any privately owned United

2 States-flag commercial vessel constructed

3 in the United States, and if rebuilt, re4 built in the United States or in a Ship5 building Agreement Party on or after the

6 date on which the Shipbuilding Trade

7 Agreement Act takes effect, and

8 ‘‘(B) any privately owned vessel con9 structed in a Shipbuilding Agreement

10 Party on or after the date on which the

11 Shipbuilding Trade Agreement Act takes

12 effect, and if rebuilt, rebuilt in a Ship13 building Agreement Party or in the Unit14 ed States, that is documented pursuant to

15 chapter 121 of title 46, United States

16 Code.

17 The term ‘privately owned United States-flag

18 commercial vessels’ shall also be deemed to

19 include any cargo vessel that so qualified pur20 suant to section 615 of this Act or this para21 graph before the date on which the Shipbuild22 ing Trade Agreement Act takes effect. The

23 term ‘privately owned United States-flag com24 mercial vessels’ shall not be deemed to in25 clude any liquid bulk cargo vessel that does
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1 not meet the requirements of section 3703a of

2 title 46, United States Code.’’.

3 (7) Section 905 (46 App. U.S.C. 1244) is

4 amended by adding at the end the follow5 ing:

6 ‘‘(h) The term ‘Shipbuilding Agreement’

7 means the Agreement Respecting Normal

8 Competitive Conditions in the Commercial

9 Shipbuilding and Repair Industry, which re10 sulted from negotiations under the auspices

11 of the Organization for Economic Coopera12 tion and Development, and was entered into

13 on December 21, 1994.

14 ‘‘(i) The term ‘Shipbuilding Agreement

15 Party’ means a state or separate customs ter16 ritory that is a Party to the Shipbuilding

17 Agreement, and with respect to which the

18 United States applies the Shipbuilding Agree19 ment.

20 ‘‘(j) The term ‘Shipbuilding Agreement

21 vessel’ means a vessel to which the Secretary

22 determines Article 2.1 of the Shipbuilding

23 Agreement applies.

24 ‘‘(k) The term ‘Export Credit Understand25 ing’ means the Understanding on Export
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1 Credits for Ships which resulted from nego2 tiations under the auspices of the Organiza3 tion for Economic Cooperation and Develop4 ment and was entered into on December 21,

5 1994.

6 ‘‘(l) The term ‘Export Credit Understand7 ing vessel’ means a vessel to which the Sec8 retary determines the Export Credit Under9 standing applies.’’.

10 (8) Section 1104A (46 App. U.S.C. 1274)

11 is amended as follows:

12 (A) Paragraph (5) of subsection

13 (b) is amended to read as follows:

14 ‘‘(5) shall bear interest (exclusive of

15 charges for the guarantee and service

16 charges, if any) at rates not to exceed

17 such percent per annum on the unpaid

18 principal as the Secretary determines to

19 be reasonable, taking into account the

20 range of interest rates prevailing in the

21 private market for similar loans and the

22 risks assumed by the Secretary, except

23 that, with respect to Export Credit Un24 derstanding vessels, and Shipbuilding

25 Agreement vessels, the obligations shall
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1 bear interest at a rate the Secretary de2 termines to be consistent with obliga3 tions of the United States under the Ex4 port Credit Understanding or the Ship5 building Agreement, as the case may be;’’.

6 (B) Subsection (i) is amended to

7 read as follows:

8 ‘‘(i)(1) Except as provided in paragraph

9 (2), the Secretary may not, with respect to—

10 ‘‘(A) the general 75 percent or less

11 limitation contained in subsection (b)(2),

‘‘(B) the 871 12 ⁄2 percent or less limita13 tion contained in the 1st, 2nd, 4th, or 5th

14 proviso to subsection (b)(2) or in section

15 1112(b), or

16 ‘‘(C) the 80 percent or less limitation

17 in the 3rd proviso to such subsection,

18 establish by rule, regulation, or procedure

19 any percentage within any such limitation

20 that is, or is intended to be, applied uniformly

21 to all guarantees or commitments to guaran22 tee made under this section that are subject

23 to the limitation.

24 ‘‘(2) With respect to Export Credit Under25 standing vessels and Shipbuilding Agreement
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1 vessels, the Secretary may establish by rule,

2 regulation, or procedure a uniform percent3 age that the Secretary determines to be con4 sistent with obligations of the United States

5 under the Export Credit Understanding or

6 the Shipbuilding Agreement, as the case may

7 be.’’.

8 (C) Section 1104B(b) (46 App.

9 U.S.C. 1274a(b)) is amended by strik10 ing the period at the end and insert11 ing the following:

12 ‘‘, except that, with respect to Export Credit

13 Understanding vessels and Shipbuilding

14 Agreement vessels, the Secretary may estab15 lish by rule, regulation, or procedure a uni16 form percentage that the Secretary deter17 mines to be consistent with obligations of the

18 United States under the Export Credit Under19 standing or the Shipbuilding Agreement, as

20 the case may be.’’.

21 SEC. 205. APPLICABILITY OF TITLE XI AMENDMENTS.

22 (a) EFFECTIVE DATE.—

23 (1) IN GENERAL.—Notwithstanding any

24 provision of the Shipbuilding Agreement

25 or the Export Credit Understanding, the
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1 amendments made by paragraph (8) of

2 section 204 shall not apply with respect

3 to any commitment to guarantee made

4 under title XI of the Merchant Marine

5 Act, 1936, before January 1, 1999, with re6 spect to a vessel delivered—

7 (A) before January 1, 2002, or

8 (B) in the case of unusual cir9 cumstances to which paragraph (2)

10 applies, as soon after January 1, 2002,

11 as is practicable.

12 (2) UNUSUAL CIRCUMSTANCES.—This

13 paragraph applies in a case in which un14 usual circumstances beyond the control

15 of the parties concerned prevent the de16 livery of a vessel by January 1, 2002. As

17 used in this paragraph, the term ‘‘un18 usual circumstances’’ means acts of God

19 (other than ordinary storms or inclement

20 weather conditions), labor strikes, acts of

21 sabotage, explosions, fires, or vandalism,

22 and similar circumstances.

23 SEC. 206. WITHDRAWAL FROM THE AGREEMENT.

24 (a) WITHDRAWAL.—
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1 (1) NOTICE.—The President shall give

2 notice, under Article 14 of the Shipbuild3 ing Agreement, of intent of the United

4 States to withdraw from the Shipbuilding

5 Agreement, as soon as is practicable after

6 one or more Shipbuilding Agreement Par7 ties give notice, under such article, of in8 tent to withdraw from the Shipbuilding

9 Agreement, if paragraph (2) applies.

10 (2) TONNAGE OF NEW CONSTRUCTION IN

11 WITHDRAWING PARTIES.—This paragraph

12 applies if the combined gross tonnage of

13 new Shipbuilding Agreement vessels con14 structed in all Shipbuilding Agreement

15 Parties who have given notice to with16 draw from the Shipbuilding Agreement,

17 which were delivered in the calendar

18 year preceding the calendar year in

19 which the notice is given, is 15 percent or

20 more of the gross tonnage of new Ship21 building Agreement vessels that were

22 constructed in all Shipbuilding Agree23 ment Parties and were delivered in the

24 calendar year preceding the calendar

25 year in which the notice is given.
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1 (3) TERMINATION OF WITHDRAWAL.—If a

2 Shipbuilding Agreement Party described

3 in paragraph (2) takes action to termi4 nate its withdrawal from the Shipbuild5 ing Agreement, so that paragraph (2)

6 would not apply if that Party had not

7 given the notice to withdraw, the Presi8 dent may take the necessary steps to ter9 minate the notice of withdrawal of the

10 United States from the Shipbuilding

11 Agreement.

12 (b) REINSTATEMENT OF LAWS.—If the Unit13 ed States withdraws from the Shipbuilding

14 Agreement, on the date on which such with15 drawal becomes effective, the amendments

16 made by section 204 shall be deemed not to

17 have been made, and the provisions of law

18 amended by section 204 shall, on and after

19 such date, be effective as if this Act had not

20 been enacted.

21 SEC. 207. OTHER LAWS NOT AFFECTED.

22 The Shipbuilding Agreement shall not af23 fect, directly or indirectly, the Merchant Ma24 rine Act, 1920, the Act of June 19, 1886 (46

25 U.S.C. App. 289), or any other provision of law
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1 set forth in Accompanying Note 2 to Annex II

2 to the Shipbuilding Agreement, and shall not

3 provide any mechanism to subject any pro4 ducer of vessels in the United States to finan5 cial penalties, duties, bid restrictions, unfa6 vorable bid preferences, or withdrawal of con7 cessions under the GATT 1994 or other Uru8 guay Round Agreements, in the competition

9 for international commercial vessel construc10 tion or reconstruction orders because of con11 struction of vessels by United States ship12 builders for operation in the coastwise trade

13 of the United States.

14 SEC. 208. PROTECTION OF UNITED STATES INTERESTS.

15 Nothing in the Shipbuilding Agreement

16 shall be construed to prevent the United

17 States from taking any action which it consid18 ers necessary for the protection of essential

19 security interests or from invoking its sov20 ereign autority to define, for purposes of ex21 clusion from coverage under the Shipbuilding

22 Agreement and from any dispute or challenge

23 based on Annex I to the Shipbuilding Agree24 ment, ‘‘military vessel’’, ‘‘military reserve ves25 sel’’, or ‘‘essential security interest’’ on a case
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1 by case basis, as determined by the Secretary

2 of Defense.

3 SEC. 209. DEFINITIONS.

4 As used in this title—

5 (1) the terms ‘‘Shipbuilding Agree6 ment’’, ‘‘Shipbuilding Agreement Party’’,

7 ‘‘Shipbuilding Agreement Vessels’’, and

8 ‘‘Export Credit Understanding’’ have the

9 meanings given those terms in sub10 sections (h), (i), (j), and (k), respectively,

11 of section 905 of the Merchant Marine

12 Act, 1936, as added by section 204(7) of

13 this Act; and

14 (2) the terms ‘‘GATT 1994’’ and ‘‘Uru15 guay Round Agreements’’ have the mean16 ings given those terms in section 2 of the

17 Uruguay Round Agreements Act.

18 TITLE III—REVENUE OFFSET

19 SEC. 301. PENALTIES FOR FAILURE TO DISCLOSE POSITION

20 THAT CERTAIN INTERNATIONAL SHIPPING

21 INCOME IS NOT INCLUDIBLE IN GROSS IN22 COME.

23 (a) IN GENERAL.—Section 883 of the Inter24 nal Revenue Code of 1986 is amended by add25 ing at the end the following new subsection:
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1 ‘‘(d) PENALTIES FOR FAILURE TO DISCLOSE

2 POSITION THAT CERTAIN INTERNATIONAL SHIP3 PING INCOME IS NOT INCLUDIBLE IN GROSS IN4 COME.—

5 ‘‘(1) IN GENERAL.—A taxpayer who,

6 with respect to any tax imposed by this

7 title, takes the position that any of its

8 gross income derived from the inter9 national operation of a ship or ships is

10 not includible in gross income by reason

11 of subsection (a)(1) or section 872(b)(1)

12 shall be entitled to such treatment only if

13 such position is disclosed (in such man14 ner as the Secretary may prescribe) on

15 the return of tax for such tax (or any

16 statement attached to such return).

17 ‘‘(2) ADDITIONAL PENALTIES FOR FAILING

18 TO DISCLOSE POSITION.—If a taxpayer fails

19 to meet the requirement of paragraph (1)

20 with respect to any taxable year—

21 ‘‘(A) the amount of the income

22 from the international operation of a

23 ship or ships—

24 ‘‘(i) which is from sources

25 without the United States, and
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1 ‘‘(ii) which is attributable to a

2 fixed place of business in the

3 United States,

4 shall be treated for purposes of this

5 title as effectively connected with the

6 conduct of a trade or business within

7 the United States, and

8 ‘‘(B) no deductions or credits shall

9 be allowed which are attributable to

10 income from the international oper11 ation of a ship or ships.

12 ‘‘(3) REASONABLE CAUSE EXCEPTION.—

13 This subsection shall not apply to a fail14 ure to disclose a position if it is shown

15 that such failure is due to reasonable

16 cause and not due to willful neglect.’’

17 (b) CONFORMING AMENDMENTS.—

18 (1) Paragraph (1) of section 872(b) of

19 such Code is amended by striking ‘‘Gross

20 income’’ and inserting ‘‘Except as pro21 vided in section 883(d), gross income’’.

22 (2) Paragraph (1) of section 883(a) of

23 such Code is amended by striking ‘‘Gross

24 income’’ and inserting ‘‘Except as pro25 vided in subsection (d), gross income’’.
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1 (c) EFFECTIVE DATE.—

2 (1) IN GENERAL.—Notwithstanding sec3 tion 3, the amendments made by this sec4 tion shall apply to taxable years begin5 ning after the later of—

6 (A) December 31, 1996, or

7 (B) the date that the Shipbuilding

8 Agreement enters into force with re9 spect to the United States.

10 (2) COORDINATION WITH TREATIES.—The

11 amendments made by this section shall

12 not apply in any case where their appli13 cation would be contrary to any treaty

14 obligation of the United States.

15 (d) INFORMATION TO BE PROVIDED BY CUS16 TOMS SERVICE.—The United States Custom

17 Service shall provide the Secretary of the

18 Treasury or his delegate with such informa19 tion as may be specified by such Secretary in

20 order to enable such Secretary to determine

21 whether ships which are not registered in the

22 United States are engaged in transportation

23 to or from the United States.