I

104TH CONGRESS

1ST SESSION H. R. 2754

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

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

8 Normal Competitive Conditions in the Commercial Ship9 building and Repair Industry (hereafter in this Act re-
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1 ferred to as the ‘‘Shipbuilding Agreement’’), a reciprocal

2 trade agreement which resulted from negotiations under

3 the auspices of the Organization for Economic Coopera4 tion and Development, and was entered into on December

5 21, 1994.

6 SEC. 3. EFFECTIVE DATE.

7 This Act and the amendments made by this Act take

8 effect on the date that the Shipbuilding Agreement enters

9 into force with respect to the United States.

10 TITLE I—INJURIOUS PRICING

11 AND COUNTERMEASURES

12 SEC. 101. INJURIOUS PRICING AND COUNTERMEASURES

13 PROCEEDINGS.

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

15 end the following new title:

16 ‘‘TITLE VIII—INJURIOUS PRIC17 ING AND COUNTERMEASURES

18 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.
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‘‘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.

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

6 that a foreign vessel has been sold directly or indi7 rectly to one or more United States buyers at less

8 than its fair 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

16 the United States is or has been materially re17 tarded,

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

19 be imposed upon the foreign producer of the subject
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1 vessel an injurious pricing charge, in an amount

2 equal to the amount by which the normal value ex3 ceeds the export price for the vessel. For purposes

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

5 to the sale of a foreign vessel includes the creation

6 or transfer of an ownership interest in the vessel, ex7 cept for an ownership interest created or acquired

8 solely for the purpose of providing security for a

9 normal commercial loan.

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

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

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

13 of title VII.

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

15 PRICING INVESTIGATION.

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

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

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

19 investigation shall be initiated whenever the admin20 istering authority determines, from information

21 available to it, that a formal investigation is war22 ranted into the question of whether the elements

23 necessary for the imposition of a charge under sec24 tion 801(a) exist, and whether a producer described
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1 in section 861(17)(C) would meet the criteria of sub2 section (b)(1)(B) for a petitioner.

3 ‘‘(2) TIME FOR INITIATION BY ADMINISTERING

4 AUTHORITY.—An investigation may only be initiated

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

6 the administering authority first knew or should

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

8 which subsection (d)(6)(A) applies shall not be in9 cluded in calculating that 6-month period.

10 ‘‘(b) INITIATION BY PETITION.—

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

12 a case in which subsection (d)(6) applies, an injuri13 ous pricing proceeding shall be initiated whenever an

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

15 (D), (E), or (F) of section 861(17), files a petition

16 with the administering authority, on behalf of an in17 dustry, which alleges the elements necessary for the

18 imposition of an injurious pricing charge under sec19 tion 801(a) and the elements required under sub20 paragraph (B), (C), (D), or (E) of this paragraph,

21 and which is accompanied by information reasonably

22 available to the petitioner supporting those allega23 tions and identifying the transaction concerned.

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

25 in section 861(17)(C), and—
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1 ‘‘(I) if the vessel was sold through a broad

2 multiple bid, the petition shall include informa3 tion indicating that the petitioner was invited to

4 tender a bid on the contract at issue, the peti5 tioner actually did so, and the bid of the peti6 tioner substantially met the delivery date and

7 technical requirements of the bid,

8 ‘‘(II) if the vessel was sold through any

9 bidding process other than a broad multiple bid

10 and the petitioner was invited to tender a bid

11 on the contract at issue, the petition shall in12 clude information indicating that the petitioner

13 actually did so and the bid of the petitioner

14 substantially met the delivery date and tech15 nical requirements of the bid, or

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

17 was sold through a broad multiple bid, if there

18 is no invitation to tender a bid, the petition

19 shall include information indicating that the pe20 titioner was capable of building the vessel con21 cerned and, if the petitioner knew or should

22 have known of the proposed purchase, it made

23 demonstrable efforts to conclude a sale with the

24 United States buyer consistent with the delivery

25 date and technical requirements of the buyer.
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1 ‘‘(ii) For purposes of clause (i)(III), there is a

2 rebuttable presumption that the petitioner knew or

3 should have known of the proposed purchase if it is

4 demonstrated that—

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

6 industry have made efforts with the United

7 States buyer to conclude a sale of the subject

8 vessel, or

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

10 available from brokers, financiers, classification

11 societies, charterers, trade associations, or other

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

14 contacts or dealings.

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

18 union or group of workers described in that section

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

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

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

2 this paragraph.

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

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

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

10 time, and upon such conditions, as the administering

11 authority and the Commission may permit.

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

15 filed with the administering authority.

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

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

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

19 petition no later than the earlier of—

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

21 petitioner first knew or should have known

22 of the sale of the subject vessel, or

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

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

2 (1)(B)(iii) applies shall—

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

4 earlier of 9 months after the time that the

5 petitioner first knew or should have known

6 of the sale of the subject vessel, or 6

7 months after delivery of the subject vessel,

8 and

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

11 no later than 6 months after the time that

12 the petitioner first knew or should have

13 known of the sale (unless the petition itself

14 is filed within that 6-month period).

15 ‘‘(B) PRESUMPTION OF KNOWLEDGE.—

16 For purposes of this paragraph, if the existence

17 of the sale, together with general information

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

21 have known of the sale of the vessel from the

22 date of that publication.

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

2 initiating an investigation under either subsection

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

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

7 include a public version of the petition.

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

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

11 other than an interested party described in section

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

14 an investigation pursuant to a petition, except for

15 inquiries regarding the status of the administering

16 authority’s consideration of the petition or a request

17 for consultation by the government of the exporting

18 country.

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

22 any draft petition submitted for review and comment

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

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

2 Within 45 days after the date on which a petition

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

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

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

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

10 imposition of an injurious pricing charge under

11 section 801(a) and the elements required under

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

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

16 filed by or on behalf of the industry.

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

19 period described in subparagraph (A).

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

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

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

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

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

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

4 ‘‘(B) paragraph (6)(B) applies,

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

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

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

12 this subsection, the administering authority

13 shall determine that the petition has been filed

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

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

18 capacity of domestic producers capable of

19 producing a like vessel, and

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

23 capacity to produce a like vessel of that

24 portion of the domestic industry expressing

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

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

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

7 United States buyer of the subject vessel, or the

8 domestic producer is itself the United States

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

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

15 producers or workers accounting for more than

16 50 percent of the total capacity to produce a

17 like vessel—

18 ‘‘(i) the administering authority shall

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

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

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

2 valid sampling method to poll the industry.

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

5 makes a determination with respect to initiating

6 an investigation, any person who would qualify

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

8 an investigation were initiated, may submit

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

11 makes a determination with respect to initiating

12 an investigation, the determination regarding

13 industry support shall not be reconsidered.

14 ‘‘(5) DEFINITION OF DOMESTIC PRODUCERS OR

15 WORKERS.—For purposes of this subsection, the

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

18 (E), or (F).

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

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

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

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

4 the imposition of antidumping measures or a

5 negative determination with respect to whether

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

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

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

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

12 and

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

14 available to the Commission such information as it

15 may have relating to the matter under investigation,

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

18 disclosure, other than with the consent of the party

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

21 given by the administering authority.

22 ‘‘SEC. 803. PRELIMINARY DETERMINATIONS.

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

2 petition dismissed by the administering authority

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

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

5 based on the information available to it at the time

6 of the determination, whether there is a reasonable

7 indication that—

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

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

10 or

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

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

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

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

17 Commission makes a negative determination under

18 this paragraph, the investigation shall be termi19 nated.

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

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

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

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

2 that the investigation has been initiated.

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

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

7 make a determination, based upon the information

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

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

11 value.

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

15 on which the administering authority initiates the

16 investigation, the administering authority shall make

17 its determination within 160 days after the date of

18 delivery of the foreign like vessel.

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

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

22 after the date of delivery of the subject vessel.

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

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

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

2 the investigation under section 802.

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

5 determination is made by the Commission under

6 subsection (a).

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

10 any injurious pricing margin that is de minimis. For

11 purposes of the preceding sentence, an injurious

12 pricing margin is de minimis if the administering

13 authority determines that the margin is less than 2

14 percent of the export price.

15 ‘‘(c) EXTENSION OF PERIOD IN EXTRAORDINARILY

16 COMPLICATED CASES OR FOR GOOD CAUSE.—

17 ‘‘(1) IN GENERAL.—If—

18 ‘‘(A) the administering authority concludes

19 that the parties concerned are cooperating and

20 determines that—

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

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

2 the information required, and

3 ‘‘(ii) additional time is necessary to

4 make the preliminary determination, or

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

6 an extension and demonstrates good cause for

7 the extension,

8 then the administering authority may postpone the

9 time for making its preliminary determination.

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

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

13 190th day after—

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

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

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

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

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

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

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

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

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

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

6 published in the Federal Register.

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

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

11 ‘‘(1) determine an estimated injurious pricing

12 margin, and

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

15 and which the Commission considers relevant to its

16 injury determination, under such procedures as the

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

19 consent of the party providing it or under protective

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

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

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

2 Commission or the administering authority (whichever is

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

5 conclusions on which its determination is based. Not later

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

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

9 and conclusions on which its determination is based.

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

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

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

16 be terminated by either the administering authority

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

18 investigation, upon withdrawal of the petition by the

19 petitioner.

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

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

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

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

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

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

12 ‘‘(d) PROCEEDINGS BY WTO MEMBERS.—

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

16 member that is not a Shipbuilding Agreement Party

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

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

21 antidumping proceeding described in paragraph (1)

22 is concluded by—

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

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

3 with respect to injury,

4 the administering authority and the Commission

5 shall terminate the investigation under this section.

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

7 If such a proceeding—

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

9 result described in paragraph (2), or

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

11 the date of the initiation of the proceeding,

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

14 investigation. The period in which the investigation

15 was suspended shall not be included in calculating

16 deadlines applicable with respect to the investigation.

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

18 the proceeding is concluded by a result described in

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

20 the Commission shall terminate the investigation

21 under this section.

22 ‘‘SEC. 805. FINAL DETERMINATIONS.

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

2 date of its preliminary determination under section

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

4 final determination of whether the vessel which is

5 the subject of the investigation has been sold in the

6 United States at less than its fair value.

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

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

12 vessel, in an investigation to which section

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

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

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

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

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

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

21 ‘‘(B) The administering authority may apply

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

23 by—

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

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

2 section 803(b) was affirmative, or

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

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

6 negative.

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

10 any injurious pricing margin that is de minimis as

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

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

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

14 make a final determination of whether—

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

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

17 or

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

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

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

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

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

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

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

6 Commission shall make the determination required

7 by paragraph (1) before the later of—

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

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

11 803(b), or

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

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

15 ‘‘(3) PERIOD FOR INJURY DETERMINATION

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

21 the final determination by the Commission under

22 this subsection shall be made within 75 days after

23 the date of that affirmative final determination.

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

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

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

7 information upon which such determination was

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

11 Commission may establish to prevent disclosure,

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

15 given by the administering authority, and

16 ‘‘(B) calculate an injurious pricing charge

17 in an amount equal to the amount by which the

18 normal value exceeds the export price of the

19 subject vessel.

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

22 administering authority and the Commission under

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

24 the administering authority shall issue an injurious

25 pricing order under section 806. If either of such de-
28

•HR 2754 IH

1 terminations is negative, the investigation shall be

2 terminated upon the publication of notice of that

3 negative determination.

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

6 Commission makes a determination under this section, it

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

9 facts and conclusions of law upon which the determination

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

11 in the Federal Register.

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

13 administering authority shall establish procedures for the

14 correction of ministerial errors in final determinations

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

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

22 and any other type of unintentional error which the ad23 ministering authority considers ministerial.
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•HR 2754 IH

1 ‘‘SEC. 806. IMPOSITION AND COLLECTION OF INJURIOUS

2 PRICING CHARGE.

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

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

6 publish an order imposing an injurious pricing charge on

7 the foreign producer of the subject vessel which—

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

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

10 the designee of the Secretary, within 180 days from

11 the date of publication of the order, an injurious

12 pricing charge in an amount equal to the amount by

13 which the normal value exceeds the export price of

14 the subject vessel,

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

16 foreign producer and a description of the subject

17 vessel, in such detail as the administering authority

18 deems necessary, and

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

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

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

23 producer under section 807,

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

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

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

4 extension of the due date for payment under

5 subsection (b).

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

7 EXTRAORDINARY CIRCUMSTANCES.—

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

12 date of publication of the order, if the administering

13 authority determines that full payment in 180 days

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

17 for a series of partial payments, the administering

18 authority shall specify the circumstances under

19 which default on one or more payments will result

20 in the imposition of countermeasures.

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

22 granted under paragraph (1), payments made after

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

24 order shall be subject to interest charges at the

25 CIRR.
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•HR 2754 IH

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

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

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

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

7 authority—

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

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

11 produce a domestic like vessel have expressed a lack

12 of interest in the order, and

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

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

15 subject of the injurious pricing determination is

16 voided,

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

18 in full, including any interest accrued for late

19 payment,

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

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

24 was at issue in the investigation that resulted

25 in the injurious pricing order, an antidumping
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•HR 2754 IH

1 proceeding conducted by a WTO member who

2 is not a Shipbuilding Agreement Party has been

3 completed and resulted in the imposition of

4 antidumping measures.

5 ‘‘(e) ALTERNATIVE EQUIVALENT REMEDY.—

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

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

10 subject to the order on an alternative equivalent

11 remedy, that the administering authority deter12 mines—

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

14 the injurious pricing charge,

15 ‘‘(B) is in the public interest,

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

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

20 United States.

21 ‘‘(2) PRIOR CONSULTATIONS AND SUBMISSION

22 OF COMMENTS.—Before entering into an agreement

23 under paragraph (1), the administering authority

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

1 submission of comments by interested parties, with

2 respect to the agreement.

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

4 If the injurious pricing order has been suspended

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

7 has materially violated the terms of the agreement

8 under paragraph (1), the administering authority

9 shall terminate the suspension.

10 ‘‘SEC. 807. IMPOSITION OF COUNTERMEASURES.

11 ‘‘(a) GENERAL RULE.—

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

15 administering authority shall issue an order impos16 ing countermeasures.

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

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

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

25 806, and
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•HR 2754 IH

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

2 prohibition on the issuance of a permit to lade

3 or unlade passengers or merchandise.

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

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

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

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

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

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

18 passengers or merchandise may not be issued

19 with respect to any vessel—

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

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

24 period of 4 consecutive years beginning on

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

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

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

5 or unlade passengers or merchandise may not

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

7 of delivery of the vessel.

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

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

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

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

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

18 Federal Register. The administering authority shall

19 publish the determination, and the order described

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

21 days after issuing the final determination, and shall

22 provide a copy of the determination and order to the

23 Customs Service.

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

25 the determination imposing countermeasures, the
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•HR 2754 IH

1 administering authority shall determine whether, in

2 light of all of the circumstances, an interested party

3 has demonstrated that the scope or duration of the

4 countermeasures described in subsection (b)(2)

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

7 countermeasures.

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

9 determination, the administering authority shall

10 issue an order imposing countermeasures, consistent

11 with its determination.

12 ‘‘(d) ADMINISTRATIVE REVIEW OF DETERMINATION

13 TO IMPOSE COUNTERMEASURES.—

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

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

17 administering authority shall publish in the Federal

18 Register a notice providing that interested parties

19 may request—

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

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

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

24 review.
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•HR 2754 IH

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

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

5 in the Federal Register not later than 15 days

6 after the end of the anniversary month of the

7 issuance of the order imposing counter8 measures, and

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

11 or duration of the countermeasures is excessive

12 in light of all of the circumstances.

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

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

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

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

19 order accordingly. The administering authority shall

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

22 provide a copy of any amended order to the Customs

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

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

3 ‘‘(e) EXTENSION OF COUNTERMEASURES.—

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

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

6 may file with the administering authority a request

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

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

11 ‘‘(A) REQUEST FOR EXTENSION BEYOND 4

12 YEARS.—If the request seeks an extension that

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

15 extensions, the request for extension under

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

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

18 date that is 12 months, before the date that

19 marks the end of the period that specifies the

20 vessels that fall within the scope of the order by

21 virtue of the establishment of material terms of

22 sale within that period.

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

24 seeks an extension under paragraph (1) other

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

1 quest shall be filed not earlier than the date

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

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

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

5 ‘‘(3) DETERMINATION.—

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

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

11 later than 15 days after the applicable deadline

12 in paragraph (2) for requesting the extension.

13 ‘‘(B) PROCEDURES.—

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

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

21 administering authority shall determine,

22 within 90 days after the date on which the

23 notice of initiation of the proceeding is

24 published, whether the requesting party

25 has demonstrated that the scope or dura-
40

•HR 2754 IH

1 tion of the countermeasures is inadequate

2 in light of all of the circumstances. If the

3 administering authority determines that an

4 extension is warranted, it shall amend the

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

8 to the order in the Federal Register, and

9 shall provide a copy of any amended order

10 to the Customs Service.

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

17 the purpose of seeking authorization to extend the

18 scope or duration of countermeasures for a period in

19 excess of 4 years.

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

21 based on consultations under paragraph (4), the

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

24 inform the party requesting the extension of the

25 countermeasures of the reasons for its decision in
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1 writing. The decision shall not be subject to judicial

2 review.

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

6 under the Shipbuilding Agreement to authorize an

7 extension of the period of countermeasures, and the

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

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

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

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

16 each 12-month period beginning on the anniversary

17 date of a determination to impose countermeasures

18 under this section, the administering authority shall

19 publish in the Federal Register a list of all delivered

20 vessels subject to countermeasures under the deter21 mination.

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

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

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

2 the vessel.

3 ‘‘(B) The vessel identification number.

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

5 constructed.

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

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

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

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

12 ‘‘(H) Any other identifying information

13 available.

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

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

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

20 (A) The administering authority shall serve a copy

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

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

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

24 ‘‘(iii) the Secretariat of the Organization

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

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

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

4 which a shipyard on the list is located.

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

6 copy of any amendments to the list under paragraph

7 (3) or subsection (g)(3) on—

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

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

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

12 (vi) of subparagraph (A).

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

14 SUBJECT TO COUNTERMEASURES.—

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

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

18 amendments thereto, to determine whether—

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

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

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

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

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

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

6 has been received, the administering authority

7 shall—

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

9 in the Federal Register—

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

11 request is received, or

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

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

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

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

19 not qualify for such inclusion, or

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

21 qualifies for inclusion.

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

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

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

2 that a vessel should be added or deleted from the

3 list, the administering authority shall amend the list

4 accordingly. The administering authority shall

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

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

8 expiration of a countermeasure order imposed under this

9 section, the administering authority shall promptly publish

10 a notice of the expiration in the Federal Register.

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

13 OF COUNTERMEASURES.—

14 ‘‘(1) IF INJURIOUS PRICING ORDER REVOKED

15 OR SUSPENDED.—If an injurious pricing order has

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

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

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

21 that injurious pricing order.

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

24 an injurious pricing order is amended under section

25 845, the administering authority shall, as appro-
46

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1 priate, suspend proceedings or modify deadlines

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

4 pricing order.

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

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

8 30 days after publication in the Federal Register of

9 the amended payment date.

10 ‘‘(C) If—

11 ‘‘(i) a countermeasure order is issued

12 under subsection (c) before an amendment is

13 made under section 845 to the payment date of

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

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

19 date is significant for purposes of determining

20 the appropriate scope or duration of counter21 measures,

22 the administering authority may, in lieu of acting

23 under subparagraph (A), reinstitute proceedings

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

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

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

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

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

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

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

9 connection with that proceeding, or

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

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

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

13 connection with that proceeding.

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

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

17 Shipbuilding Agreement Party may file with the Trade

18 Representative a petition requesting that an investigation

19 be conducted to determine if—

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

22 less than fair value, and

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

24 producing or capable of producing a like vessel is

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

2 consultation with the administering authority and the

3 Commission and obtaining the approval of the Parties

4 Group under the Shipbuilding Agreement, shall determine

5 whether to initiate an investigation described in subsection

6 (a).

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

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

11 specified by the Trade Representative, notwithstanding

12 any other provision of this title:

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

15 than fair value.

16 ‘‘(2) The Commission shall determine whether

17 an industry in the petitioning country is materially

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

19 the United States.

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

21 comment shall be provided, as appropriate—

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

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

2 Commission, in making the determinations required

3 by subsection (c).

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

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

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

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

12 other actions as are required by sections 806 and

13 807, as if affirmative determinations had been made

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

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

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

17 subsection (e)—

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

20 (c) shall be treated as final determinations made

21 under section 805, and

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

24 determinations made under section 806 or 807, as

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

2 apply to investigations under this section, to the extent

3 specified by the Trade Representative, after consultation

4 with the administering authority and the Commission.

5 ‘‘Subtitle B—Special Rules

6 ‘‘SEC. 821. EXPORT PRICE.

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

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

9 vessel is first sold (or agreed to be sold) by or for the

10 account of the foreign producer of the subject vessel to

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

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

13 producer’ includes any transfer of an ownership interest,

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

15 in conjunction with the original transfer from the pro16 ducer, either directly or indirectly, to a United States

17 buyer.

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

19 used to establish export price shall be—

20 ‘‘(1) increased by the amount of any import du21 ties imposed by the country of exportation which

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

23 by reason of the exportation of the subject vessel,

24 and

25 ‘‘(2) reduced by—
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1 ‘‘(A) the amount, if any, included in such

2 price, attributable to any additional costs,

3 charges, or expenses which are incident to

4 bringing the subject vessel from the shipyard in

5 the exporting country to the place of delivery,

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

7 of any export tax, duty, or other charge im8 posed by the exporting country on the expor9 tation of the subject vessel, and

10 ‘‘(C) all other expenses incidental to plac11 ing the vessel in condition for delivery to the

12 buyer.

13 ‘‘SEC. 822. NORMAL VALUE.

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

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

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

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

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

19 normal value shall be determined as follows:

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

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

22 the subject vessel shall be the price described in

23 subparagraph (B), at a time reasonably cor24 responding to the time of the sale used to deter25 mine the export price under section 821(a).
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1 ‘‘(B) PRICE.—The price referred to in sub2 paragraph (A) is—

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

4 vessel is first sold in the exporting country,

5 in the ordinary course of trade and, to the

6 extent practicable, at the same level of

7 trade, or

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

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

10 like vessel is so sold for consumption in a

11 country other than the exporting country

12 or the United States, if—

13 ‘‘(I) such price is representative,

14 and

15 ‘‘(II) the administering authority

16 does not determine that the particular

17 market situation in such other coun18 try prevents a proper comparison with

19 the export price.

20 ‘‘(C) THIRD COUNTRY SALES.—This sub21 paragraph applies when—

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

23 the exporting country as described in sub24 paragraph (B)(i), or
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1 ‘‘(ii) the particular market situation

2 in the exporting country does not permit a

3 proper comparison with the export price.

4 ‘‘(D) CONTEMPORANEOUS SALE.—For

5 purposes of subparagraph (A), ‘a time reason6 ably corresponding to the time of the sale’

7 means within 3 months before or after the sale

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

9 sales, such longer period as the administering

10 authority determines would be appropriate.

11 ‘‘(2) FICTITIOUS MARKETS.—No pretended

12 sale, and no sale intended to establish a fictitious

13 market, shall be taken into account in determining

14 normal value.

15 ‘‘(3) USE OF CONSTRUCTED VALUE.—If the ad16 ministering authority determines that the normal

17 value of the subject vessel cannot be determined

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

19 value of the subject vessel shall be the constructed

20 value of that vessel, as determined under subsection

21 (e).

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

23 is sold through an affiliated party, the price at

24 which the foreign like vessel is sold by such affiliated

25 party may be used in determining normal value.
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1 ‘‘(5) ADJUSTMENTS.—The price described in

2 paragraph (1)(B) shall be—

3 ‘‘(A) reduced by—

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

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

6 attributable to any costs, charges, and ex7 penses incident to bringing the foreign like

8 vessel from the shipyard to the place of de9 livery to the purchaser,

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

11 directly upon the foreign like vessel or

12 components thereof which have been re13 bated, or which have not been collected, on

14 the subject vessel, but only to the extent

15 that such taxes are added to or included in

16 the price of the foreign like vessel, and

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

18 incidental to placing the foreign like vessel

19 in condition for delivery to the buyer, and

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

21 of any difference (or lack thereof) between the

22 export price and the price described in para23 graph (1)(B) (other than a difference for which

24 allowance is otherwise provided under this sec25 tion) that is established to the satisfaction of
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•HR 2754 IH

1 the administering authority to be wholly or

2 partly due to—

3 ‘‘(i) physical differences between the

4 subject vessel and the vessel used in deter5 mining normal value, or

6 ‘‘(ii) other differences in the cir7 cumstances of sale.

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

9 The price described in paragraph (1)(B) shall also

10 be increased or decreased to make due allowance for

11 any difference (or lack thereof) between the export

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

13 (other than a difference for which allowance is oth14 erwise made under this section) that is shown to be

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

16 between the export price and normal value, if the

17 difference in level of trade—

18 ‘‘(A) involves the performance of different

19 selling activities, and

20 ‘‘(B) is demonstrated to affect price com21 parability, based on a pattern of consistent

22 price differences between sales at different lev23 els of trade in the country in which normal

24 value is determined.
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•HR 2754 IH

1 In a case described in the preceding sentence, the

2 amount of the adjustment shall be based on the

3 price differences between the two levels of trade in

4 the country in which normal value is determined.

5 ‘‘(7) ADJUSTMENTS TO CONSTRUCTED

6 VALUE.—Constructed value as determined under

7 subsection (d) may be adjusted, as appropriate, pur8 suant to this subsection.

9 ‘‘(b) SALES AT LESS THAN COST OF PRODUCTION.—

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

11 Whenever the administering authority has reason12 able grounds to believe or suspect that the sale of

13 the foreign like vessel under consideration for the

14 determination of normal value has been made at a

15 price which represents less than the cost of produc16 tion of the foreign like vessel, the administering au17 thority shall determine whether, in fact, such sale

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

19 administering authority determines that the sale was

20 made at less than the cost of production and was

21 not at a price which permits recovery of all costs

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

23 determination of normal value. Whenever such a sale

24 is disregarded, normal value shall be based on an25 other sale of a foreign like vessel in the ordinary
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1 course of trade. If no sales made in the ordinary

2 course of trade remain, the normal value shall be

3 based on the constructed value of the subject vessel.

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

5 purposes of this subsection:

6 ‘‘(A) REASONABLE GROUNDS TO BELIEVE

7 OR SUSPECT.—There are reasonable grounds to

8 believe or suspect that the sale of a foreign like

9 vessel was made at a price that is less than the

10 cost of production of the vessel, if an interested

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

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

13 based upon observed prices or constructed

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

15 vessel under consideration for the determination

16 of normal value has been made at a price which

17 represents less than the cost of production of

18 the vessel.

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

20 below the cost of production at the time of sale

21 but is above the weighted average cost of pro22 duction for the period of investigation, such

23 price shall be considered to provide for recovery

24 of costs within 5 years.
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1 ‘‘(3) CALCULATION OF COST OF PRODUC2 TION.—For purposes of this section, the cost of pro3 duction shall be an amount equal to the sum of—

4 ‘‘(A) the cost of materials and of fabrica5 tion or other processing of any kind employed

6 in producing the foreign like vessel, during a

7 period which would ordinarily permit the pro8 duction of that vessel in the ordinary course of

9 business, and

10 ‘‘(B) an amount for selling, general, and

11 administrative expenses based on actual data

12 pertaining to the production and sale of the for13 eign like vessel by the producer in question.

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

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

16 sold in a country other than the exporting country,

17 the cost of materials shall be determined without re18 gard to any internal tax in the exporting country im19 posed on such materials or on their disposition

20 which are remitted or refunded upon exportation.

21 ‘‘(c) NONMARKET ECONOMY COUNTRIES.—

22 ‘‘(1) IN GENERAL.—If—

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

24 nonmarket economy country, and
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•HR 2754 IH

1 ‘‘(B) the administering authority finds that

2 available information does not permit the nor3 mal value of the subject vessel to be determined

4 under subsection (a),

5 the administering authority shall determine the nor6 mal value of the subject vessel on the basis of the

7 value of the factors of production utilized in produc8 ing the vessel and to which shall be added an

9 amount for general expenses and profit plus the cost

10 of expenses incidental to placing the vessel in a con11 dition for delivery to the buyer. Except as provided

12 in paragraph (2), the valuation of the factors of pro13 duction shall be based on the best available informa14 tion regarding the values of such factors in a market

15 economy country or countries considered to be ap16 propriate by the administering authority.

17 ‘‘(2) EXCEPTION.—If the administering author18 ity finds that the available information is inadequate

19 for purposes of determining the normal value of the

20 subject vessel under paragraph (1), the administer21 ing authority shall determine the normal value on

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

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

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

25 economy countries that are at a level of eco-
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•HR 2754 IH

1 nomic development comparable to that of the

2 nonmarket economy country,

3 is sold in other countries, including the United

4 States.

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

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

7 in producing the vessel include, but are not limited

8 to—

9 ‘‘(A) hours of labor required,

10 ‘‘(B) quantities of raw materials employed,

11 ‘‘(C) amounts of energy and other utilities

12 consumed, and

13 ‘‘(D) representative capital cost, including

14 depreciation.

15 ‘‘(4) VALUATION OF FACTORS OF PRODUC16 TION.—The administering authority, in valuing fac17 tors of production under paragraph (1), shall utilize,

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

19 of production in one or more market economy coun20 tries that are—

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

22 comparable to that of the nonmarket economy

23 country, and

24 ‘‘(B) significant producers of comparable

25 vessels.
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•HR 2754 IH

1 ‘‘(d) SPECIAL RULE FOR CERTAIN MULTINATIONAL

2 CORPORATIONS.—Whenever, in the course of an investiga3 tion under this title, the administering authority deter4 mines that—

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

6 which are owned or controlled, directly or indirectly,

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

8 controls, directly or indirectly, other facilities for the

9 production of a foreign like vessel which are located

10 in another country or countries,

11 ‘‘(2) subsection (a)(1)(C) applies, and

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

13 produced in one or more of the facilities outside the

14 exporting country is higher than the normal value of

15 the foreign like vessel produced in the facilities lo16 cated in the exporting country,

17 the administering authority shall determine the normal

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

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

20 facilities outside the exporting country. The administering

21 authority, in making any determination under this sub22 section, shall make adjustments for the difference between

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

24 and overhead) of the foreign like vessel produced in facili25 ties outside the exporting country and costs of production
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•HR 2754 IH

1 of the foreign like vessel produced in facilities in the ex2 porting country, if such differences are demonstrated to

3 its satisfaction.

4 ‘‘(e) CONSTRUCTED VALUE.—

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

6 the constructed value of a subject vessel shall be an

7 amount equal to the sum of—

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

9 or other processing of any kind employed in

10 producing the subject vessel, during a period

11 which would ordinarily permit the production of

12 the vessel in the ordinary course of business,

13 and

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

15 realized by the foreign producer of the subject

16 vessel for selling, general, and administrative

17 expenses, and for profits, in connection with the

18 production and sale of a foreign like vessel, in

19 the ordinary course of trade, in the domestic

20 market of the country of origin of the subject

21 vessel, or

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

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

24 then—
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•HR 2754 IH

1 ‘‘(I) the actual amounts incurred and

2 realized by the foreign producer of the sub3 ject vessel for selling, general, and admin4 istrative expenses, and for profits, in con5 nection with the production and sale of the

6 same general category of vessel in the do7 mestic market of the country of origin of

8 the subject vessel,

9 ‘‘(II) the weighted average of the ac10 tual amounts incurred and realized by pro11 ducers in the country of origin of the sub12 ject vessel (other than the producer of the

13 subject vessel) for selling, general, and ad14 ministrative expenses, and for profits, in

15 connection with the production and sale of

16 a foreign like vessel, in the ordinary course

17 of trade, in the domestic market, or

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

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

20 and realized for selling, general, and ad21 ministrative expenses, and for profits,

22 based on any other reasonable method, ex23 cept that the amount allowed for profit

24 may not exceed the amount normally real25 ized by foreign producers (other than the
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•HR 2754 IH

1 producer of the subject vessel) in connec2 tion with the sale of vessels in the same

3 general category of vessel as the subject

4 vessel in the domestic market of the coun5 try of origin of the subject vessel.

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

7 based on the average profit realized over a reason8 able period of time before and after the sale of the

9 subject vessel and shall reflect a reasonable profit at

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

11 sentence, a ‘reasonable period of time’ shall not, ex12 cept where otherwise appropriate, exceed 6 months

13 before, or 6 months after, the sale of the subject ves14 sel. In calculating profit under this paragraph, any

15 distortion which would result in other than a profit

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

17 eliminated.

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

19 REASONABLE METHODS.—When costs and profits

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

21 determination shall, except where otherwise appro22 priate, be based on appropriate export sales by the

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

24 to export sales by other producers of a foreign like

25 vessel or the same general category of vessel as the
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•HR 2754 IH

1 subject vessel in the country of origin of the subject

2 vessel.

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

4 paragraph (1)(A), the cost of materials shall be de5 termined without regard to any internal tax in the

6 exporting country imposed on such materials or their

7 disposition which are remitted or refunded upon ex8 portation of the subject vessel produced from such

9 materials.

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

11 PRODUCTION AND FOR CALCULATION OF CONSTRUCTED

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

13 ‘‘(1) COSTS.—

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

15 be calculated based on the records of the for16 eign producer of the subject vessel, if such

17 records are kept in accordance with the gen18 erally accepted accounting principles of the ex19 porting country and reasonably reflect the costs

20 associated with the production and sale of the

21 vessel. The administering authority shall con22 sider all available evidence on proper allocation

23 of costs, including that which is made available

24 by the foreign producer on a timely basis, if

25 such allocations have been historically used by
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•HR 2754 IH

1 the foreign producer, in particular for establish2 ing appropriate amortization and depreciation

3 periods, and allowances for capital expenditures

4 and other development costs.

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

6 be adjusted appropriately for those non7 recurring costs that benefit current or future

8 production, or both.

9 ‘‘(C) STARTUP COSTS.—

10 ‘‘(i) IN GENERAL.—Costs shall be ad11 justed appropriately for circumstances in

12 which costs incurred during the time pe13 riod covered by the investigation are af14 fected by startup operations.

15 ‘‘(ii) STARTUP OPERATIONS.—Adjust16 ments shall be made for startup operations

17 only where—

18 ‘‘(I) a producer is using new pro19 duction facilities or producing a new

20 type of vessel that requires substantial

21 additional investment, and

22 ‘‘(II) production levels are limited

23 by technical factors associated with

24 the initial phase of commercial pro25 duction.
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1 For purposes of subclause (II), the initial

2 phase of commercial production ends at

3 the end of the startup period. In determin4 ing whether commercial production levels

5 have been achieved, the administering au6 thority shall consider factors unrelated to

7 startup operations that might affect the

8 volume of production processed, such as

9 demand, seasonality, or business cycles.

10 ‘‘(iii) ADJUSTMENT FOR STARTUP OP11 ERATIONS.—The adjustment for startup

12 operations shall be made by substituting

13 the unit production costs incurred with re14 spect to the vessel at the end of the start15 up period for the unit production costs in16 curred during the startup period. If the

17 startup period extends beyond the period

18 of the investigation under this title, the ad19 ministering authority shall use the most

20 recent cost of production data that it rea21 sonably can obtain, analyze, and verify

22 without delaying the timely completion of

23 the investigation. For purposes of this sub24 paragraph, the startup period ends at the

25 point at which the level of commercial pro-
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1 duction that is characteristic of the vessel,

2 the producer, or the industry is achieved.

3 ‘‘(D) COSTS DUE TO EXTRAORDINARY CIR4 CUMSTANCES NOT INCLUDED.—Costs shall not

5 include actual costs which are due to extraor6 dinary circumstances (including, but not limited

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

8 and which are significantly over the cost in9 crease which the shipbuilder could have reason10 ably anticipated and taken into account at the

11 time of sale.

12 ‘‘(2) TRANSACTIONS DISREGARDED.—A trans13 action directly or indirectly between affiliated per14 sons may be disregarded if, in the case of any ele15 ment of value required to be considered, the amount

16 representing that element does not fairly reflect the

17 amount usually reflected in sales of a like vessel in

18 the market under consideration. If a transaction is

19 disregarded under the preceding sentence and no

20 other transactions are available for consideration,

21 the determination of the amount shall be based on

22 the information available as to what the amount

23 would have been if the transaction had occurred be24 tween persons who are not affiliated.
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1 ‘‘(3) MAJOR INPUT RULE.—If, in the case of a

2 transaction between affiliated persons involving the

3 production by one of such persons of a major input

4 to the subject vessel, the administering authority has

5 reasonable grounds to believe or suspect that an

6 amount represented as the value of such input is

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

8 the administering authority may determine the value

9 of the major input on the basis of the information

10 available regarding such cost of production, if such

11 cost is greater than the amount that would be deter12 mined for such input under paragraph (2).

13 ‘‘SEC. 823. CURRENCY CONVERSION.

14 ‘‘(a) IN GENERAL.—In an injurious pricing proceed15 ing under this title, the administering authority shall con16 vert foreign currencies into United States dollars using the

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

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

19 transaction on forward markets is directly linked to a sale

20 under consideration, the exchange rate specified with re21 spect to such foreign currency in the forward sale agree22 ment shall be used to convert the foreign currency.

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

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

25 where appropriate, the date on which the material terms
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1 of sale are otherwise established. If the material terms of

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

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

4 change in the date of sale, the administering authority

5 shall make appropriate adjustments to take into account

6 any unreasonable effect on the injurious pricing margin

7 due only to fluctuations in the exchange rate between the

8 original date of sale and the new date of sale.

9 ‘‘Subtitle C—Procedures

10 ‘‘SEC. 841. HEARINGS.

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

12 and the Commission shall each hold a hearing in the

13 course of an investigation under this title, upon the re14 quest of any party to the investigation, before making a

15 final determination under section 805.

16 ‘‘(b) PROCEDURES.—Any hearing required or per17 mitted under this title shall be conducted after notice pub18 lished in the Federal Register, and a transcript of the

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

20 The hearing shall not be subject to the provisions of sub21 chapter II of chapter 5 of title 5, United States Code, or

22 to section 702 of such title.

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

24 AVAILABLE.

25 ‘‘(a) IN GENERAL.—If—
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1 ‘‘(1) necessary information is not available on

2 the record, or

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

4 ‘‘(A) withholds information that has been

5 requested by the administering authority or the

6 Commission under this title,

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

8 the deadlines for the submission of the informa9 tion or in the form and manner requested, sub10 ject to subsections (b)(1) and (d) of section

11 844,

12 ‘‘(C) significantly impedes a proceeding

13 under this title, or

14 ‘‘(D) provides such information but the in15 formation cannot be verified as provided in sec16 tion 844(g),

17 the administering authority and the Commission

18 shall, subject to section 844(c), use the facts other19 wise available in reaching the applicable determina20 tion under this title.

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

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

23 that an interested party has failed to cooperate by not act24 ing to the best of its ability to comply with a request for

25 information from the administering authority or the Com-
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1 mission, the administering authority or the Commission

2 (as the case may be), in reaching the applicable determina3 tion under this title, may use an inference that is adverse

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

5 facts otherwise available. Such adverse inference may in6 clude reliance on information derived from—

7 ‘‘(1) the petition, or

8 ‘‘(2) any other information placed on the

9 record.

10 ‘‘(c) CORROBORATION OF SECONDARY INFORMA11 TION.—When the administering authority or the Commis12 sion relies on secondary information rather than on infor13 mation obtained in the course of an investigation under

14 this title, the administering authority and the Commis15 sion, as the case may be, shall, to the extent practicable,

16 corroborate that information from independent sources

17 that are reasonably at their disposal.

18 ‘‘SEC. 843. ACCESS TO INFORMATION.

19 ‘‘(a) INFORMATION GENERALLY MADE AVAIL20 ABLE.—

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

22 The administering authority and the Commission

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

24 parties to an investigation under this title of the

25 progress of that investigation.
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1 ‘‘(2) EX PARTE MEETINGS.—The administering

2 authority and the Commission shall maintain a

3 record of any ex parte meeting between—

4 ‘‘(A) interested parties or other persons

5 providing factual information in connection with

6 a proceeding under this title, and

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

8 determination, or any person charged with mak9 ing a final recommendation to that person, in

10 connection with that proceeding,

11 if information relating to that proceeding was pre12 sented or discussed at such meeting. The record of

13 such an ex parte meeting shall include the identity

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

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

16 the matters discussed or submitted. The record of

17 the ex parte meeting shall be included in the record

18 of the proceeding.

19 ‘‘(3) SUMMARIES; NON-PROPRIETARY SUBMIS20 SIONS.—The administering authority and the Com21 mission shall disclose—

22 ‘‘(A) any proprietary information received

23 in the course of a proceeding under this title if

24 it is disclosed in a form which cannot be associ-
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1 ated with, or otherwise be used to identify, op2 erations of a particular person, and

3 ‘‘(B) any information submitted in connec4 tion with a proceeding which is not designated

5 as proprietary by the person submitting it.

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

7 administering authority and the Commission shall

8 maintain and make available for public inspection

9 and copying a record of all information which is ob10 tained by the administering authority or the Com11 mission, as the case may be, in a proceeding under

12 this title to the extent that public disclosure of the

13 information is not prohibited under this chapter or

14 exempt from disclosure under section 552 of title 5,

15 United States Code.

16 ‘‘(b) PROPRIETARY INFORMATION.—

17 ‘‘(1) PROPRIETARY STATUS MAINTAINED.—

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

19 subsection (a)(4) and subsection (c), informa20 tion submitted to the administering authority or

21 the Commission which is designated as propri22 etary by the person submitting the information

23 shall not be disclosed to any person without the

24 consent of the person submitting the informa25 tion, other than—
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1 ‘‘(i) to an officer or employee of the

2 administering authority or the Commission

3 who is directly concerned with carrying out

4 the investigation in connection with which

5 the information is submitted or any other

6 proceeding under this title covering the

7 same subject vessel, or

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

9 United States Customs Service who is di10 rectly involved in conducting an investiga11 tion regarding fraud under this title.

12 ‘‘(B) ADDITIONAL REQUIREMENTS.—The

13 administering authority and the Commission

14 shall require that information for which propri15 etary treatment is requested be accompanied

16 by—

17 ‘‘(i) either—

18 ‘‘(I) a nonproprietary summary

19 in sufficient detail to permit a reason20 able understanding of the substance

21 of the information submitted in con22 fidence, or

23 ‘‘(II) a statement that the infor24 mation is not susceptible to summary,

25 accompanied by a statement of the
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1 reasons in support of the contention,

2 and

3 ‘‘(ii) either—

4 ‘‘(I) a statement which permits

5 the administering authority or the

6 Commission to release under adminis7 trative protective order, in accordance

8 with subsection (c), the information

9 submitted in confidence, or

10 ‘‘(II) a statement to the admin11 istering authority or the Commission

12 that the business proprietary informa13 tion is of a type that should not be re14 leased under administrative protective

15 order.

16 ‘‘(2) UNWARRANTED DESIGNATION.—If the ad17 ministering authority or the Commission determines,

18 on the basis of the nature and extent of the informa19 tion or its availability from public sources, that des20 ignation of any information as proprietary is unwar21 ranted, then it shall notify the person who submitted

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

23 designation. Unless that person persuades the ad24 ministering authority or the Commission that the

25 designation is warranted, or withdraws the designa-
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1 tion, the administering authority or the Commission,

2 as the case may be, shall return it to the party sub3 mitting it. In a case in which the administering au4 thority or the Commission returns the information

5 to the person submitting it, the person may there6 after submit other material concerning the subject

7 matter of the returned information if the submission

8 is made within the time otherwise provided for sub9 mitting such material.

10 ‘‘(c) LIMITED DISCLOSURE OF CERTAIN PROPRI11 ETARY INFORMATION UNDER PROTECTIVE ORDER.—

12 ‘‘(1) DISCLOSURE BY ADMINISTERING AUTHOR13 ITY OR COMMISSION.—

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

15 application (before or after receipt of the infor16 mation requested) which describes in general

17 terms the information requested and sets forth

18 the reasons for the request, the administering

19 authority or the Commission shall make all

20 business proprietary information presented to,

21 or obtained by it, during a proceeding under

22 this title (except privileged information, classi23 fied information, and specific information of a

24 type for which there is a clear and compelling

25 need to withhold from disclosure) available to
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1 all interested parties who are parties to the pro2 ceeding under a protective order described in

3 subparagraph (B), regardless of when the infor4 mation is submitted during the proceeding.

5 Customer names (other than the name of the

6 United States buyer of the subject vessel) ob7 tained during any investigation which requires

8 a determination under section 805(b) may not

9 be disclosed by the administering authority

10 under protective order until either an order is

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

12 the investigation or the investigation is sus13 pended or terminated. The Commission may

14 delay disclosure of customer names (other than

15 the name of the United States buyer of the sub16 ject vessel) under protective order during any

17 such investigation until a reasonable time be18 fore any hearing provided under section 841 is

19 held.

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

21 order under which information is made avail22 able shall contain such requirements as the ad23 ministering authority or the Commission may

24 determine by regulation to be appropriate. The

25 administering authority and the Commission
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1 shall provide by regulation for such sanctions as

2 the administering authority and the Commis3 sion determine to be appropriate, including dis4 barment from practice before the agency.

5 ‘‘(C) TIME LIMITATIONS ON DETERMINA6 TIONS.—The administering authority or the

7 Commission, as the case may be, shall deter8 mine whether to make information available

9 under this paragraph—

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

11 the submission pertains to a proceeding

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

13 which the information is submitted, or

14 ‘‘(ii) if—

15 ‘‘(I) the person submitting the

16 information raises objection to its re17 lease, or

18 ‘‘(II) the information is unusu19 ally voluminous or complex,

20 not later than 30 days (10 days if the sub21 mission pertains to a proceeding under sec22 tion 803(a)) after the date on which the

23 information is submitted.
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1 ‘‘(D) AVAILABILITY AFTER DETERMINA2 TION.—If the determination under subpara3 graph (C) is affirmative, then—

4 ‘‘(i) the business proprietary informa5 tion submitted to the administering au6 thority or the Commission on or before the

7 date of the determination shall be made

8 available, subject to the terms and condi9 tions of the protective order, on such date,

10 and

11 ‘‘(ii) the business proprietary informa12 tion submitted to the administering au13 thority or the Commission after the date of

14 the determination shall be served as re15 quired by subsection (d).

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

17 submitting information to the administering au18 thority refuses to disclose business proprietary

19 information which the administering authority

20 determines should be released under a protec21 tive order described in subparagraph (B), the

22 administering authority shall return the infor23 mation, and any nonconfidential summary

24 thereof, to the person submitting the informa25 tion and summary and shall not consider either.
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1 ‘‘(2) DISCLOSURE UNDER COURT ORDER.—If

2 the administering authority or the Commission de3 nies a request for information under paragraph (1),

4 then application may be made to the United States

5 Court of International Trade for an order directing

6 the administering authority or the Commission, as

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

8 After notification of all parties to the investigation

9 and after an opportunity for a hearing on the

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

11 conditions as the court deems appropriate, which

12 shall not have the effect of stopping or suspending

13 the investigation, directing the administering author14 ity or the Commission to make all or a portion of

15 the requested information described in the preceding

16 sentence available under a protective order and set17 ting forth sanctions for violation of such order if the

18 court finds that, under the standards applicable in

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

20 and that—

21 ‘‘(A) the administering authority or the

22 Commission has denied access to the informa23 tion under subsection (b)(1),

24 ‘‘(B) the person on whose behalf the infor25 mation is requested is an interested party who
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1 is a party to the investigation in connection

2 with which the information was obtained or de3 veloped, and

4 (C) the party which submitted the infor5 mation to which the request relates has been

6 notified, in advance of the hearing, of the re7 quest made under this section and of its right

8 to appear and be heard.

9 ‘‘(d) SERVICE.—Any party submitting written infor10 mation, including business proprietary information, to the

11 administering authority or the Commission during a pro12 ceeding shall, at the same time, serve the information

13 upon all interested parties who are parties to the proceed14 ing, if the information is covered by a protective order.

15 The administering authority or the Commission shall not

16 accept any such information that is not accompanied by

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

18 version of the document containing the information. Busi19 ness proprietary information shall only be served upon in20 terested parties who are parties to the proceeding that are

21 subject to protective order, except that a nonconfidential

22 summary thereof shall be served upon all other interested

23 parties who are parties to the proceeding.

24 ‘‘(e) INFORMATION RELATING TO VIOLATIONS OF

25 PROTECTIVE ORDERS AND SANCTIONS.—The administer-
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1 ing authority and the Commission may withhold from dis2 closure any correspondence, private letters of reprimand,

3 settlement agreements, and documents and files compiled

4 in relation to investigations and actions involving a viola5 tion or possible violation of a protective order issued under

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

7 information described in section 552(b)(3) of title 5, Unit8 ed States Code.

9 ‘‘(f) OPPORTUNITY FOR COMMENT BY VESSEL BUY10 ERS.—The administering authority and the Commission

11 shall provide an opportunity for buyers of subject vessels

12 to submit relevant information to the administering au13 thority concerning a sale at less than fair value or counter14 measures, and to the Commission concerning material in15 jury by reason of the sale of a vessel at less than fair

16 value.

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

19 ‘‘(1) IN GENERAL.—Whenever the administer20 ing authority makes a determination under section

21 802 whether to initiate an investigation, or the ad22 ministering authority or the Commission makes a

23 preliminary determination under section 803, a final

24 determination under section 805, a determination

25 under subsection (b), (c), (d), (e)(3)(B)(ii), (g), or
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1 (i) of section 807, or a determination to suspend an

2 investigation under this title, the administering au3 thority or the Commission, as the case may be, shall

4 publish the facts and conclusions supporting that de5 termination, and shall publish notice of that deter6 mination in the 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

15 vessel,

16 ‘‘(ii) a description sufficient to iden17 tify the subject vessel,

18 ‘‘(iii) with respect to an injurious pric19 ing charge, the injurious pricing margin

20 established and a full explanation of the

21 methodology used in establishing such

22 margin,

23 ‘‘(iv) with respect to countermeasures,

24 the scope and duration of countermeasures
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1 and, if applicable, any changes thereto,

2 and

3 ‘‘(v) the primary reasons for the de4 termination, and

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

6 Commission—

7 ‘‘(i) considerations relevant to the de8 termination of injury, and

9 ‘‘(ii) the primary reasons for the de10 termination.

11 ‘‘(3) ADDITIONAL REQUIREMENTS FOR FINAL

12 DETERMINATIONS.—In addition to the requirements

13 set forth in paragraph (2)—

14 ‘‘(A) the administering authority shall in15 clude in a final determination under section 805

16 or 807(c) an explanation of the basis for its de17 termination that addresses relevant arguments,

18 made by interested parties who are parties to

19 the investigation, concerning the establishment

20 of the injurious pricing charge with respect to

21 which the determination is made, and

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

23 final determination of injury an explanation of

24 the basis for its determination that addresses

25 relevant arguments that are made by interested
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1 parties who are parties to the investigation con2 cerning the effects and impact on the industry

3 of the sale of the subject vessel.

4 ‘‘SEC. 844. CONDUCT OF INVESTIGATIONS.

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

6 providing factual information to the administering author7 ity or the Commission in connection with a proceeding

8 under this title on behalf of the petitioner or any other

9 interested party shall certify that such information is ac10 curate and complete to the best of that person’s knowl11 edge.

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

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

14 If an interested party, promptly after receiving a re15 quest from the administering authority or the Com16 mission for information, notifies the administering

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

18 that such party is unable to submit the information

19 requested in the requested form and manner, to20 gether with a full explanation and suggested alter21 native forms in which such party is able to submit

22 the information, the administering authority or the

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

24 ability of the interested party to submit the informa25 tion in the requested form and manner and may
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1 modify such requirements to the extent necessary to

2 avoid imposing an unreasonable burden on that

3 party.

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

5 The administering authority and the Commission

6 shall take into account any difficulties experienced

7 by interested parties, particularly small companies,

8 in supplying information requested by the admin9 istering authority or the Commission in connection

10 with investigations under this title, and shall provide

11 to such interested parties any assistance that is

12 practicable in supplying such information.

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

14 authority or the Commission determines that a response

15 to a request for information under this title does not com16 ply with the request, the administering authority or the

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

18 the person submitting the response of the nature of the

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

20 person with an opportunity to remedy or explain the defi21 ciency in light of the time limits established for the com22 pletion of investigations or reviews under this title. If that

23 person submits further information in response to such

24 deficiency and either—
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1 ‘‘(1) the administering authority or the Com2 mission (as the case may be) finds that such re3 sponse is not satisfactory, or

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

5 applicable time limits,

6 then the administering authority or the Commission (as

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

8 all or part of the original and subsequent responses.

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

10 a determination under section 803, 805, or 807, the ad11 ministering authority and the Commission shall not de12 cline to consider information that is submitted by an inter13 ested party and is necessary to the determination but does

14 not meet all the applicable requirements established by the

15 administering authority or the Commission if—

16 ‘‘(1) the information is submitted by the dead17 line established for its submission,

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

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

20 it cannot serve as a reliable basis for reaching the

21 applicable determination,

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

23 it acted to the best of its ability in providing the in24 formation and meeting the requirements established
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1 by the administering authority or the Commission

2 with respect to the information, and

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

4 difficulties.

5 ‘‘(e) NONACCEPTANCE OF SUBMISSIONS.—If the ad6 ministering authority or the Commission declines to accept

7 into the record any information submitted in an investiga8 tion under this title, it shall, to the extent practicable, pro9 vide to the person submitting the information a written

10 explanation of the reasons for not accepting the informa11 tion.

12 ‘‘(f) PUBLIC COMMENT ON INFORMATION.—Informa13 tion that is submitted on a timely basis to the administer14 ing authority or the Commission during the course of a

15 proceeding under this title shall be subject to comment

16 by other parties within such reasonable time as the admin17 istering authority or the Commission shall provide. The

18 administering authority and the Commission, before mak19 ing a final determination under section 805 or 807, shall

20 cease collecting information and shall provide the parties

21 with a final opportunity to comment on the information

22 obtained by the administering authority or the Commis23 sion (as the case may be) upon which the parties have

24 not previously had an opportunity to comment. Comments

25 containing new factual information shall be disregarded.
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1 ‘‘(g) VERIFICATION.—The administering authority

2 shall verify all information relied upon in making a final

3 determination under section 805.

4 ‘‘SEC. 845. ADMINISTRATIVE ACTION FOLLOWING SHIP5 BUILDING AGREEMENT PANEL REPORTS.

6 ‘‘(a) ACTION BY UNITED STATES INTERNATIONAL

7 TRADE COMMISSION.—

8 ‘‘(1) ADVISORY REPORT.—If a dispute settle9 ment panel under the Shipbuilding Agreement finds

10 in a report that an action by the Commission in con11 nection with a particular proceeding under this title

12 is not in conformity with the obligations of the Unit13 ed States under the Shipbuilding Agreement, the

14 Trade Representative may request the Commission

15 to issue an advisory report on whether this title per16 mits the Commission to take steps in connection

17 with the particular proceeding that would render its

18 action not inconsistent with the findings of the panel

19 concerning those obligations. The Trade Representa20 tive shall notify the Committee on Ways and Means

21 of the House of Representatives and the Committee

22 on Finance of the Senate of such request.

23 ‘‘(2) TIME LIMITS FOR REPORT.—The Commis24 sion shall transmit its report under paragraph (1) to
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1 the Trade Representative within 30 calendar days

2 after the Trade Representative requests the report.

3 ‘‘(3) CONSULTATIONS ON REQUEST FOR COM4 MISSION DETERMINATION.—If a majority of the

5 Commissioners issues an affirmative report under

6 paragraph (1), the Trade Representatives shall con7 sult with the congressional committees listed in

8 paragraph (1) concerning the matter.

9 ‘‘(4) COMMISSION DETERMINATION.—Notwith10 standing any other provision of this title, if a major11 ity of the Commissioners issues an affirmative report

12 under paragraph (1), the Commission, upon the

13 written request of the Trade Representative, shall

14 issue a determination in connection with the particu15 lar proceeding that would render the Commission’s

16 action described in paragraph (1) not inconsistent

17 with the findings of the panel. The Commission shall

18 issue its determination not later than 120 calendar

19 days after the request from the Trade Representa20 tive is made.

21 ‘‘(5) CONSULTATIONS ON IMPLEMENTATION OF

22 COMMISSION DETERMINATION.—The Trade Rep23 resentative shall consult with the congressional com24 mittees listed in paragraph (1) before the Commis-
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1 sion’s determination under paragraph (4) is imple2 mented.

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

4 the Commission’s determination under paragraph

5 (4), an injurious pricing order is no longer sup6 ported by an affirmative Commission determination

7 under this title, the Trade Representative may, after

8 consulting with the congressional committees under

9 paragraph (5), direct the administering authority to

10 revoke the injurious pricing order.

11 ‘‘(b) ACTION BY ADMINISTERING AUTHORITY.—

12 ‘‘(1) CONSULTATIONS WITH ADMINISTERING

13 AUTHORITY AND CONGRESSIONAL COMMITTEES.—

14 Promptly after a report or other determination by a

15 dispute settlement panel under the Shipbuilding

16 Agreement is issued that contains findings that—

17 ‘‘(A) an action by the administering au18 thority in a proceeding under this title is not in

19 conformity with the obligations of the United

20 States under the Shipbuilding Agreement,

21 ‘‘(B) the due date for payment of an inju22 rious pricing charge contained in an order is23 sued under section 806 should be amended,

24 ‘‘(C) countermeasures provided for in an

25 order issued under section 807 should be provi-
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1 sionally suspended or reduced pending the final

2 decision of the panel, or

3 ‘‘(D) the scope or duration of counter4 measures imposed under section 807 should be

5 narrowed or shortened,

6 the Trade Representative shall consult with the ad7 ministering authority and the congressional commit8 tees listed in subsection (a)(1) on the matter.

9 ‘‘(2) DETERMINATION BY ADMINISTERING AU10 THORITY.—Notwithstanding any other provision of

11 this title, the administering authority shall, in re12 sponse to a written request from the Trade Rep13 resentative, issue a determination, or an amendment

14 to or suspension of an injurious pricing or counter15 measure order, as the case may be, in connection

16 with the particular proceeding that would render the

17 administering authority’s action described in para18 graph (1) not inconsistent with the findings of the

19 panel.

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

21 administering authority shall issue its determination,

22 amendment, or suspension under paragraph (2)—

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

24 subparagraph (A) of paragraph (1), within 180
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1 calendar days after the request from the Trade

2 Representative is made, and

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

4 subparagraph (B), (C), or (D) of paragraph

5 (1), within 15 calendar days after the request

6 from the Trade Representative is made.

7 ‘‘(4) CONSULTATIONS BEFORE IMPLEMENTA8 TION.—Before the administering authority imple9 ments any determination, amendment, or suspension

10 under paragraph (2), the Trade Representative shall

11 consult with the administering authority and the

12 congressional committees listed in subsection (a)(1)

13 with respect to such determination, amendment, or

14 suspension.

15 ‘‘(5) IMPLEMENTATION OF DETERMINATION.—

16 The Trade Representative may, after consulting with

17 the administering authority and the congressional

18 committees under paragraph (4), direct the admin19 istering authority to implement, in whole or in part,

20 the determination, amendment, or suspension made

21 under paragraph (2).

22 ‘‘(6) IMPLEMENTATION OF DETERMINATION;

23 NOTICE OF IMPLEMENTATION.—The administering

24 authority shall implement the determination, amend25 ment, or suspension under paragraph (2)—
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1 ‘‘(A) with respect to a matter described in

2 subparagraph (A) of paragraph (1), only if the

3 injurious pricing margin determined under

4 paragraph (2) differs from the injurious pricing

5 margin in the determination reviewed by the

6 panel, and

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

8 subparagraph (B), (C), or (D) of paragraph

9 (1), upon issuance of the determination, amend10 ment, or suspension under paragraph (2).

11 The administering authority shall publish notice of

12 such implementation in the Federal Register.

13 ‘‘(c) OPPORTUNITY FOR COMMENT BY INTERESTED

14 PARTIES.—Before issuing a determination, amendment,

15 or suspension, the administering authority, in a matter de16 scribed in subsection (b)(1)(A), or the Commission, in a

17 matter described in subsection (a)(1), as the case may be,

18 shall provide interested parties with an opportunity to sub19 mit written comments and, in appropriate cases, may hold

20 a hearing, with respect to the determination.

21 ‘‘Subtitle D—Definitions

22 ‘‘SEC. 861. DEFINITIONS.

23 ‘‘For purposes of this title:

24 ‘‘(1) ADMINISTERING AUTHORITY.—The term

25 ‘administering authority’ means the Secretary of
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1 Commerce, or any other officer of the United States

2 to whom the responsibility for carrying out the du3 ties of the administering authority under this title

4 are transferred by law.

5 ‘‘(2) COMMISSION.—The term ‘Commission’

6 means the United States International Trade Com7 mission.

8 ‘‘(3) COUNTRY.—The term ‘country’ means a

9 foreign country, a political subdivision, dependent

10 territory, or possession of a foreign country and, ex11 cept as provided in paragraph (16)(E)(iii), may not

12 include an association of 2 or more foreign coun13 tries, political subdivisions, dependent territories, or

14 possessions of countries into a customs union out15 side the United States.

16 ‘‘(4) INDUSTRY.—

17 ‘‘(A) IN GENERAL.—Except as used in sec18 tion 808, the term ‘industry’ means the produc19 ers as a whole of a domestic like vessel, or those

20 producers whose collective capability to produce

21 a domestic like vessel constitutes a major pro22 portion of the total domestic capability to

23 produce a domestic like vessel.

24 ‘‘(B) PRODUCER.—A ‘producer’ of a do25 mestic like vessel includes an entity that is pro-
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1 ducing the domestic like vessel and an entity

2 with the capability to produce the domestic like

3 vessel.

4 ‘‘(C) CAPABILITY TO PRODUCE A DOMES5 TIC LIKE VESSEL.—A producer has the ‘capa6 bility to produce a domestic like vessel’ if it is

7 capable of producing a domestic like vessel with

8 its present facilities or could adapt its facilities

9 in a timely manner to produce a domestic like

10 vessel.

11 ‘‘(D) RELATED PARTIES.—(i) In an inves12 tigation under this title, if a producer of a do13 mestic like vessel and the foreign producer, sell14 er (other than the foreign producer), or United

15 States buyer of the subject vessel are related

16 parties, or if a producer of a domestic like ves17 sel is also a United States buyer of the subject

18 vessel, the domestic producer may, in appro19 priate circumstances, be excluded from the in20 dustry.

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

22 producer and the foreign producer, seller, or

23 United States buyer shall be considered to be

24 related parties, if—
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1 ‘‘(I) the domestic producer directly or

2 indirectly controls the foreign producer,

3 seller or United States buyer,

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

5 United States buyer directly or indirectly

6 controls the domestic producer,

7 ‘‘(III) a third party directly or indi8 rectly controls the domestic producer and

9 the foreign producer, seller, or United

10 States buyer, or

11 ‘‘(IV) the domestic producer and the

12 foreign producer, seller, or United States

13 buyer directly or indirectly control a third

14 party and there is reason to believe that

15 the relationship causes the producer to act

16 differently than a nonrelated producer.

17 For purposes of this subparagraph, a party

18 shall be considered to directly or indirectly con19 trol another party if the party is legally or oper20 ationally in a position to exercise restraint or

21 direction over the other party.

22 ‘‘(E) PRODUCT LINES.—In an investiga23 tion under this title, the effect of the sale of the

24 subject vessel shall be assessed in relation to

25 the United States production (or production ca-
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1 pability) of a domestic like vessel if available

2 data permit the separate identification of pro3 duction (or production capability) in terms of

4 such criteria as the production process or the

5 producer’s profits. If the domestic production

6 (or production capability) of a domestic like

7 vessel has no separate identity in terms of such

8 criteria, then the effect of the sale shall be as9 sessed by the examination of the production (or

10 production capability) of the narrowest group or

11 range of vessels, which includes a domestic like

12 vessel, for which the necessary information can

13 be provided.

14 ‘‘(5) BUYER.—The term ‘buyer’ means any per15 son who acquires an ownership interest in a vessel,

16 including by way of lease or long-term bareboat

17 charter, in conjunction with the original transfer

18 from the producer, either directly or indirectly, in19 cluding an individual or company which owns or con20 trols a buyer. There may be more than one buyer of

21 any one vessel.

22 ‘‘(6) UNITED STATES BUYER.—The term ‘Unit23 ed States buyer’ means a buyer that is any of the

24 following:

25 ‘‘(A) A United States citizen.
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1 ‘‘(B) A juridical entity, including any cor2 poration, company, association, or other organi3 zation, that is legally constituted under the laws

4 and regulations of the United States or a politi5 cal subdivision thereof, regardless of whether

6 the entity is organized for pecuniary gain, pri7 vately or government owned, or organized with

8 limited or unlimited liability.

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

10 controlled by nationals or entities described in

11 subparagraphs (A) and (B). For the purposes

12 of this subparagraph—

13 ‘‘(i) the term ‘own’ means having

14 more than a 50 percent interest, and

15 ‘‘(ii) the term ‘control’ means the ac16 tual ability to have substantial influence on

17 corporate behavior, and control is pre18 sumed to exist where there is at least a 25

19 percent interest.

20 If ownership of a company is established under

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

22 unless it is otherwise established.

23 ‘‘(7) OWNERSHIP INTEREST.—An ‘ownership

24 interest’ in a vessel includes any contractual or pro25 prietary interest which allows the beneficiary or
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1 beneficiaries of such interest to take advantage of

2 the operation of the vessel in a manner substantially

3 comparable to the way in which an owner may bene4 fit from the operation of the vessel. In determining

5 whether such substantial comparability exists, the

6 administering authority shall consider—

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

8 transaction which conveys the interest,

9 ‘‘(B) commercial practice,

10 ‘‘(C) whether the vessel subject to the

11 transaction is integrated into the operations of

12 the beneficiary or beneficiaries, and

13 ‘‘(D) whether in practice there is a likeli14 hood that the beneficiary or beneficiaries of

15 such interests will take advantage of and the

16 risk for the operation of the vessel for a signifi17 cant part of the life-time of the vessel.

18 ‘‘(8) VESSEL.—

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

20 specifically provided under international agree21 ments, the term ‘vessel’ means—

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

23 100 gross tons or more used for transpor24 tation of goods or persons or for perform25 ance of a specialized service (including, but
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1 not limited to, ice breakers and dredgers),

2 and

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

4 that is produced in a Shipbuilding Agreement

5 Party or a country that is not a Shipbuilding

6 Agreement Party and not a WTO member.

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

8 not include—

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

10 fishing fleet of the country in which the

11 vessel is built,

12 ‘‘(ii) any military vessel, and

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

14 that the Shipbuilding Agreement enters

15 into force with respect to the United

16 States, except that any vessel sold after

17 December 21, 1994, for delivery more than

18 5 years after the date of the contract of

19 sale shall be a ‘vessel’ for purposes of this

20 title unless the shipbuilder demonstrates to

21 the administering authority that the ex22 tended delivery date was for normal com23 mercial reasons and not to avoid applica24 bility of this title.
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1 ‘‘(C) SELF-PROPELLED SEAGOING VES2 SEL.—A vessel is ‘self-propelled seagoing’ if its

3 permanent propulsion and steering provide it all

4 the characteristics of self-navigability in the

5 high seas.

6 ‘‘(D) MILITARY VESSEL.—A ‘military ves7 sel’ is a vessel which, according to its basic

8 structural characteristics and ability, is in9 tended to be used exclusively for military pur10 poses.

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

12 means a vessel of the same type, same purpose, and

13 approximate size as the subject vessel and possessing

14 characteristics closely resembling those of the sub15 ject vessel.

16 ‘‘(10) DOMESTIC LIKE VESSEL.—The term ‘do17 mestic like vessel’ means a like vessel produced in

18 the United States.

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

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

21 vessel’ means a like vessel produced by the foreign

22 producer of the subject vessel for sale in the produc23 er’s domestic market or in a third country.

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

25 The term ‘same general category of vessel’ means a
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1 vessel of the same type and purpose as the subject

2 vessel, but of a significantly different size.

3 ‘‘(13) SUBJECT VESSEL.—The term ‘subject

4 vessel’ means a vessel subject to investigation under

5 section 801 or 808.

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

7 producer’ means the producer or producers of the

8 subject vessel.

9 ‘‘(15) EXPORTING COUNTRY.—The term ‘ex10 porting country’ means the country in which the

11 subject vessel was built.

12 ‘‘(16) MATERIAL INJURY.—

13 ‘‘(A) IN GENERAL.—The term ‘material in14 jury’ means harm which is not inconsequential,

15 immaterial, or unimportant.

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

17 making determinations under sections 803(a)

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

19 ‘‘(i) shall consider—

20 ‘‘(I) the sale of the subject vessel,

21 ‘‘(II) the effect of the sale of the

22 subject vessel on prices in the United

23 States for a domestic like vessel, and

24 ‘‘(III) the impact of the sale of

25 the subject vessel on domestic produc-
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1 ers of the domestic like vessel, but

2 only in the context of production oper3 ations within the United States, and

4 ‘‘(ii) may consider such other eco5 nomic factors as are relevant to the deter6 mination regarding whether there is or has

7 been material injury by reason of the sale

8 of the subject vessel.

9 In the notification required under section

10 805(d), the Commission shall explain its analy11 sis of each factor considered under clause (i),

12 and identify each factor considered under clause

13 (ii) and explain in full its relevance to the deter14 mination.

15 ‘‘(C) EVALUATION OF RELEVANT FAC16 TORS.—For purposes of subparagraph (B)—

17 ‘‘(i) SALE OF THE SUBJECT VES18 SEL.—In evaluating the sale of the subject

19 vessel, the Commission shall consider

20 whether the sale, either in absolute terms

21 or relative to production or demand in the

22 United States, in terms of either volume or

23 value, is or has been significant.
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1 ‘‘(ii) PRICE.—In evaluating the effect

2 of the sale of the subject vessel on prices,

3 the Commission shall consider whether—

4 ‘‘(I) there has been significant

5 price underselling of the subject vessel

6 as compared with the price of a do7 mestic like vessel, and

8 ‘‘(II) the effect of the sale of the

9 subject vessel otherwise depresses or

10 has depressed prices to a significant

11 degree or prevents or has prevented

12 price increases, which otherwise would

13 have occurred, to a significant degree.

14 ‘‘(iii) IMPACT ON AFFECTED DOMES15 TIC INDUSTRY.—In examining the impact

16 required to be considered under subpara17 graph (B)(i)(III), the Commission shall

18 evaluate all relevant economic factors

19 which have a bearing on the state of the

20 industry in the United States, including,

21 but not limited to—

22 ‘‘(I) actual and potential decline

23 in output, sales, market share, profits,

24 productivity, return on investments,

25 and utilization of capacity,
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1 ‘‘(II) factors affecting domestic

2 prices, including with regard to sales,

3 ‘‘(III) actual and potential nega4 tive effects on cash flow, employment,

5 wages, growth, ability to raise capital,

6 and investment,

7 ‘‘(IV) actual and potential nega8 tive effects on the existing develop9 ment and production efforts of the do10 mestic industry, including efforts to

11 develop a derivative or more advanced

12 version of a domestic like vessel, and

13 ‘‘(V) the magnitude of the injuri14 ous pricing margin.

15 The Commission shall evaluate all relevant

16 economic factors described in this clause

17 within the context of the business cycle

18 and conditions of competition that are dis19 tinctive to the affected industry.

20 ‘‘(D) STANDARD FOR DETERMINATION.—

21 The presence or absence of any factor which the

22 Commission is required to evaluate under sub23 paragraph (C) shall not necessarily give decisive

24 guidance with respect to the determination by

25 the Commission of material injury.
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1 ‘‘(E) THREAT OF MATERIAL INJURY.—

2 ‘‘(i) IN GENERAL.—In determining

3 whether an industry in the United States

4 is threatened with material injury by rea5 son of the sale of the subject vessel, the

6 Commission shall consider, among other

7 relevant economic factors—

8 ‘‘(I) any existing unused produc9 tion capacity or imminent, substantial

10 increase in production capacity in the

11 exporting country indicating the likeli12 hood of substantially increased sales

13 of a foreign like vessel to United

14 States buyers, taking into account the

15 availability of other export markets to

16 absorb any additional exports,

17 ‘‘(II) whether the sale of a for18 eign like vessel or other factors indi19 cate the likelihood of significant addi20 tional sales to United States buyers,

21 ‘‘(III) whether sale of the subject

22 vessel or sale of a foreign like vessel

23 by the foreign producer are at prices

24 that are likely to have a significant

25 depressing or suppressing effect on
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1 domestic prices, and are likely to in2 crease demand for further sales,

3 ‘‘(IV) the potential for product4 shifting if production facilities in the

5 exporting country, which can pres6 ently be used to produce a foreign like

7 vessel or could be adapted in a timely

8 manner to produce a foreign like ves9 sel, are currently being used to

10 produce other types of vessels,

11 ‘‘(V) the actual and potential

12 negative effects on the existing devel13 opment and production efforts of the

14 domestic industry, including efforts to

15 develop a derivative or more advanced

16 version of a domestic like vessel, and

17 ‘‘(VI) any other demonstrable ad18 verse trends that indicate the prob19 ability that there is likely to be mate20 rial injury by reason of the sale of the

21 subject vessel.

22 ‘‘(ii) BASIS FOR DETERMINATION.—

23 The Commission shall consider the factors

24 set forth in clause (i) as a whole. The pres25 ence or absence of any factor which the
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1 Commission is required to consider under

2 clause (i) shall not necessarily give decisive

3 guidance with respect to the determination.

4 Such a determination may not be made on

5 the basis of mere conjecture or suppo6 sition.

7 ‘‘(iii) EFFECT OF INJURIOUS PRICING

8 IN THIRD-COUNTRY MARKETS.—

9 ‘‘(I) IN GENERAL.—The Commis10 sion shall consider whether injurious

11 pricing in the markets of foreign

12 countries (as evidenced by injurious

13 pricing findings or injurious pricing

14 remedies of other Shipbuilding Agree15 ment Parties, or antidumping deter16 minations of, or measures imposed by,

17 other countries, against a like vessel

18 produced by the producer under inves19 tigation) suggests a threat of material

20 injury to the domestic industry. In the

21 course of its investigation, the Com22 mission shall request information

23 from the foreign producer or United

24 States buyer concerning this issue.
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1 ‘‘(II) EUROPEAN COMMU2 NITIES.—For purposes of this clause,

3 the European Communities as a whole

4 shall be treated as a single foreign

5 country.

6 ‘‘(F) CUMULATION FOR DETERMINING MA7 TERIAL INJURY.—

8 ‘‘(i) IN GENERAL.—For purposes of

9 clauses (i) and (ii) of subparagraph (C),

10 and subject to clause (ii) of this subpara11 graph, the Commission shall cumulatively

12 assess the effects of sales of foreign like

13 vessels from all foreign producers with re14 spect to which—

15 ‘‘(I) petitions were filed under

16 section 802(b) on the same day,

17 ‘‘(II) investigations were initiated

18 under section 802(a) on the same day,

19 or

20 ‘‘(III) petitions were filed under

21 section 802(b) and investigations were

22 initiated under section 802(a) on the

23 same day,

24 if, with respect to such vessels, the foreign

25 producers compete with each other and
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1 with producers of a domestic like vessel in

2 the 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 sub10 sequently made a final affirmative de11 termination with respect to those sales

12 before the Commission’s final deter13 mination 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

20 of sales under clause (i), the Commission

21 may make its determinations based on the

22 record compiled in the first investigation in

23 which it makes a final determination, ex24 cept that when the administering authority

25 issues its final determination in a subse-
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1 quently completed investigation, the Com2 mission shall permit the parties in the sub3 sequent investigation to submit comments

4 concerning the significance of the admin5 istering authority’s final determination,

6 and shall include such comments and the

7 administering authority’s final determina8 tion in the record for the subsequent inves9 tigation.

10 ‘‘(G) CUMULATION FOR DETERMINING

11 THREAT OF MATERIAL INJURY.—To the extent

12 practicable and subject to subparagraph (F)(ii),

13 for purposes of clause (i) (II) and (III) of sub14 paragraph (E), the Commission may cumula15 tively assess the effects of sales of like vessels

16 from all countries with respect to which—

17 ‘‘(i) petitions were filed under section

18 802(b) on the same day,

19 ‘‘(ii) investigations were initiated

20 under section 802(a) on the same day, or

21 ‘‘(iii) petitions were filed under sec22 tion 802(b) and investigations were initi23 ated under section 802(a) on the same

24 day,
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1 if, with respect to such vessels, the foreign pro2 ducers compete with each other and with pro3 ducers of a domestic like vessel in the United

4 States market.

5 ‘‘(17) INTERESTED PARTY.—The term ‘inter6 ested party’ means, in a proceeding under this

7 title—

8 ‘‘(A)(i) the foreign producer, seller (other

9 than the foreign producer), and the United

10 States buyer of the subject vessel, or

11 ‘‘(ii) a trade or business association a ma12 jority of the members of which are the foreign

13 producer, seller, or United States buyer of the

14 subject vessel,

15 ‘‘(B) the government of the country in

16 which the subject vessel is produced or manu17 factured,

18 ‘‘(C) a producer that is a member of an in19 dustry,

20 ‘‘(D) a certified union or recognized union

21 or group of workers which is representative of

22 an industry,

23 ‘‘(E) a trade or business association a ma24 jority of whose members are producers in an in25 dustry,
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1 ‘‘(F) an association, a majority of whose

2 members is composed of interested parties de3 scribed in subparagraph (C), (D), or (E), and

4 ‘‘(G) for purposes of section 807, a pur5 chaser who, after the effective date of an order

6 issued under that section, entered into a con7 tract of sale with the foreign producer that is

8 subject to the order.

9 ‘‘(18) AFFIRMATIVE DETERMINATIONS BY DI10 VIDED COMMISSION.—If the Commissioners voting

11 on a determination by the Commission are evenly di12 vided as to whether the determination should be af13 firmative or negative, the Commission shall be

14 deemed to have made an affirmative determination.

15 For the purpose of applying this paragraph when

16 the issue before the Commission is to determine

17 whether there is or has been—

18 ‘‘(A) material injury to an industry in the

19 United States,

20 ‘‘(B) threat of material injury to such an

21 industry, or

22 ‘‘(C) material retardation of the establish23 ment of an industry in the United States,
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1 by reason of the sale of the subject vessel, an affirm2 ative vote on any of the issues shall be treated as

3 a vote that the determination should be affirmative.

4 ‘‘(19) ORDINARY COURSE OF TRADE.—The

5 term ‘ordinary course of trade’ means the conditions

6 and practices which, for a reasonable time before the

7 sale of the subject vessel, have been normal in the

8 shipbuilding industry with respect to a like vessel.

9 The administering authority shall consider the fol10 lowing sales and transactions, among others, to be

11 outside the ordinary course of trade:

12 ‘‘(A) Sales disregarded under section

13 822(b)(1).

14 ‘‘(B) Transactions disregarded under sec15 tion 822(f)(2).

16 ‘‘(20) NONMARKET ECONOMY COUNTRY.—

17 ‘‘(A) IN GENERAL.—The term ‘nonmarket

18 economy country’ means any foreign country

19 that the administering authority determines

20 does not operate on market principles of cost or

21 pricing structures, so that sales of vessels in

22 such country do not reflect the fair value of the

23 vessels.

24 ‘‘(B) FACTORS TO BE CONSIDERED.—In

25 making determinations under subparagraph (A)
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1 the administering authority shall take into ac2 count—

3 ‘‘(i) the extent to which the currency

4 of the foreign country is convertible into

5 the currency of other countries,

6 ‘‘(ii) the extent to which wage rates in

7 the foreign country are determined by free

8 bargaining between labor and manage9 ment,

10 ‘‘(iii) the extent to which joint ven11 tures or other investments by firms of

12 other foreign countries are permitted in

13 the foreign country,

14 ‘‘(iv) the extent of government owner15 ship or control of the means of production,

16 ‘‘(v) the extent of government control

17 over the allocation of resources and over

18 the price and output decisions of enter19 prises, and

20 ‘‘(vi) such other factors as the admin21 istering authority considers appropriate.

22 ‘‘(C) DETERMINATION IN EFFECT.—

23 ‘‘(i) Any determination that a foreign

24 country is a nonmarket economy country
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1 shall remain in effect until revoked by the

2 administering authority.

3 ‘‘(ii) The administering authority may

4 make a determination under subparagraph

5 (A) with respect to any foreign country at

6 any time.

7 ‘‘(D) DETERMINATIONS NOT IN ISSUE.—

8 Notwithstanding any other provision of law, any

9 determination made by the administering au10 thority under subparagraph (A) shall not be

11 subject to judicial review in any investigation

12 conducted under subtitle A.

13 ‘‘(21) SHIPBUILDING AGREEMENT.—The term

14 ‘Shipbuilding Agreement’ means The Agreement Re15 specting Normal Competitive Conditions in the Com16 mercial Shipbuilding and Repair Industry, resulting

17 from negotiations under the auspices of the Organi18 zation for Economic Cooperation and Development,

19 and entered into on December 21, 1994.

20 ‘‘(22) SHIPBUILDING AGREEMENT PARTY.—The

21 term ‘Shipbuilding Agreement Party’ means a state

22 or separate customs territory that is a Party to the

23 Shipbuilding Agreement, and with respect to which

24 the United States applies the Shipbuilding Agree25 ment.
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1 ‘‘(23) WTO AGREEMENT.—The term ‘WTO

2 Agreement’ means the Agreement defined in section

3 2(9) of the Uruguay Round Agreements Act.

4 ‘‘(24) WTO MEMBER.—The term ‘WTO mem5 ber’ means a state, or separate customs territory

6 (within the meaning of Article XII of the WTO

7 Agreement), with respect to which the United States

8 applies the WTO Agreement.

9 ‘‘(25) TRADE REPRESENTATIVE.—The term

10 ‘Trade Representative’ means the United States

11 Trade Representative.

12 ‘‘(26) AFFILIATED PERSONS.—The following

13 persons shall be considered to be ‘affiliated’ or ‘af14 filiated persons’:

15 ‘‘(A) Members of a family, including broth16 ers and sisters (whether by the whole or half

17 blood), spouse, ancestors, and lineal descend18 ants.

19 ‘‘(B) Any officer or director of an organi20 zation and such organization.

21 ‘‘(C) Partners.

22 ‘‘(D) Employer and employee.

23 ‘‘(E) Any person directly or indirectly own24 ing, controlling, or holding with power to vote,

25 5 percent or more of the outstanding voting
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1 stock or shares of any organization, and such

2 organization.

3 ‘‘(F) Two or more persons directly or indi4 rectly controlling, controlled by, or under com5 mon control with, any person.

6 ‘‘(G) Any person who controls any other

7 person, and such other person.

8 For purposes of this paragraph, a person shall be

9 considered to control another person if the person is

10 legally or operationally in a position to exercise re11 straint or direction over the other person.

12 ‘‘(27) INJURIOUS PRICING.—The term ‘injuri13 ous pricing’ refers to the sale of a vessel at less than

14 fair value.

15 ‘‘(28) INJURIOUS PRICING MARGIN.—

16 ‘‘(A) IN GENERAL.—The term ‘injurious

17 pricing margin’ means the amount by which the

18 normal value exceeds the export price of the

19 subject vessel.

20 ‘‘(B) MAGNITUDE OF THE INJURIOUS

21 PRICING MARGIN.—The magnitude of the inju22 rious pricing margin used by the Commission

23 shall be—

24 ‘‘(i) in making a preliminary deter25 mination under section 803(a) in an inves-
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1 tigation (including any investigation in

2 which the Commission cumulatively as3 sesses the effect of sales under paragraph

4 (16)(F)(i)), the injurious pricing margin or

5 margins published by the administering

6 authority in its notice of initiation of the

7 investigation; and

8 ‘‘(ii) in making a final determination

9 under section 805(b), the injurious pricing

10 margin or margins most recently published

11 by the administering authority before the

12 closing of the Commission’s administrative

13 record.

14 ‘‘(29) COMMERCIAL INTEREST REFERENCE

15 RATE.—The term ‘Commercial Interest Reference

16 Rate’ or ‘CIRR’ means an interest rate that the ad17 ministering authority determines to be consistent

18 with Annex III, and appendices and notes thereto, of

19 the Understanding on Export Credits for Ships, re20 sulting from negotiations under the auspices of the

21 Organization for Economic Cooperation, and entered

22 into on December 21, 1994.

23 ‘‘(30) ANTIDUMPING.—

24 ‘‘(A) WTO MEMBERS.—In the case of a

25 WTO member, the term ‘antidumping’ refers to
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1 action taken pursuant to the Agreement on Im2 plementation of Article VI of the General

3 Agreement on Tariffs and Trade 1994.

4 ‘‘(B) OTHER CASES.—In the case of any

5 country that is not a WTO member, the term

6 ‘antidumping’ refers to action taken by the

7 country against the sale of a vessel at less than

8 fair value that is comparable to action described

9 in subparagraph (A).

10 ‘‘(31) BROAD MULTIPLE BID.—The term ‘broad

11 multiple bid’ means a bid in which the proposed

12 buyer extends an invitation to at least all the pro13 ducers in the industry known by the buyer to be ca14 pable of building the subject vessel.’’.

15 SEC. 102. ENFORCEMENT OF COUNTERMEASURES.

16 Part II of title IV of the Tariff Act of 1930 is amend17 ed by adding at the end the following:

18 ‘‘SEC. 468. SHIPBUILDING AGREEMENT COUNTER19 MEASURES.

20 ‘‘(a) IN GENERAL.—Notwithstanding any other pro21 vision of law, upon receiving from the Secretary of Com22 merce a list of vessels subject to countermeasures under

23 section 807, the Customs Service shall deny any request

24 for a permit to lade or unlade passengers, merchandise,

25 or baggage from or onto those vessels so listed.
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1 ‘‘(b) EXCEPTIONS.—Subsection (a) shall not be ap2 plied to deny a permit for the following:

3 ‘‘(1) To unlade any United States citizen or

4 permanent legal resident alien from a vessel included

5 in the list described in subsection (a), or to unlade

6 any refugee or any alien who would otherwise be eli7 gible to apply for asylum and withholding of depor8 tation under the Immigration and Nationality Act.

9 ‘‘(2) To lade or unlade any crewmember of such

10 vessel.

11 ‘‘(3) To lade or unlade coal and other fuel sup12 plies (for the operation of the listed vessel), ships’

13 stores, sea stores, and the legitimate equipment of

14 such vessel.

15 ‘‘(4) To lade or unlade supplies for the use or

16 sale on such vessel.

17 ‘‘(5) To lade or unlade such other merchandise,

18 baggage, or passenger as the Customs Service shall

19 determine necessary to protect the immediate health,

20 safety, or welfare of a human being.

21 ‘‘(c) CORRECTION OF MINISTERIAL OR CLERICAL

22 ERRORS.—

23 ‘‘(1) PETITION FOR CORRECTION.—If the mas24 ter of any vessel whose application for a permit to

25 lade or unlade has been denied under this section be-
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1 lieves that such denial resulted from a ministerial or

2 clerical error, not amounting to a mistake of law,

3 committed by any Customs officer, the master may

4 petition the Customs Service for correction of such

5 error, as provided by regulation.

6 ‘‘(2) INAPPLICABILITY OF SECTIONS 514 AND

7 520.—Notwithstanding paragraph (1), imposition of

8 countermeasures under this section shall not be

9 deemed an exclusion or other protestable decision

10 under section 514, and shall not be subject to cor11 rection under section 520.

12 ‘‘(3) PETITIONS SEEKING ADMINISTRATIVE RE13 VIEW.—Any petition seeking administrative review

14 of any matter regarding the Secretary of Com15 merce’s decision to list a vessel under section 807

16 must be brought under that section.

17 ‘‘(d) PENALTIES.—In addition to any other provision

18 of law, the Customs Service may impose a civil penalty

19 of not to exceed $10,000 against the master of any ves20 sel—

21 ‘‘(1) who submits false information in request22 ing any permit to lade or unlade; or

23 ‘‘(2) who attempts to, or actually does, lade or

24 unlade in violation of any denial of such permit

25 under this section.’’.
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1 SEC. 103. JUDICIAL REVIEW IN INJURIOUS PRICING AND

2 COUNTERMEASURE PROCEEDINGS.

3 (a) JUDICIAL REVIEW.—Part III of title IV of the

4 Tariff Act of 1930 is amended by inserting after section

5 516A the following:

6 ‘‘SEC. 516B. JUDICIAL REVIEW IN INJURIOUS PRICING AND

7 COUNTERMEASURE PROCEEDINGS.

8 ‘‘(a) REVIEW OF DETERMINATION.—

9 ‘‘(1) IN GENERAL.—Within 30 days after the

10 date of publication in the Federal Register of—

11 ‘‘(A)(i) a determination by the administer12 ing authority under section 802(c) not to initi13 ate an investigation,

14 ‘‘(ii) a negative determination by the Com15 mission under section 803(a) as to whether

16 there is or has been reasonable indication of

17 material injury, threat of material injury, or

18 material retardation,

19 ‘‘(iii) a determination by the administering

20 authority to suspend or revoke an injurious

21 pricing order under section 806(d) or (e),

22 ‘‘(iv) a determination by the administering

23 authority under section 807(c),

24 ‘‘(v) a determination by the administering

25 authority in a review under section 807(d),
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1 ‘‘(vi) a determination by the administering

2 authority concerning whether to extend the

3 scope or duration of a countermeasure order

4 under section 807(e)(3)(B)(ii),

5 ‘‘(vii) a determination by the administering

6 authority to amend a countermeasure order

7 under section 807(e)(6),

8 ‘‘(viii) a determination by the administer9 ing authority in a review under section 807(g),

10 ‘‘(ix) a determination by the administering

11 authority under section 807(i) to terminate pro12 ceedings, or to amend or revoke a counter13 measure order,

14 ‘‘(x) a determination by the administering

15 authority under section 845(b), with respect to

16 a matter described in paragraph (1)(D) of that

17 section, or

18 ‘‘(B)(i) an injurious pricing order based on

19 a determination described in subparagraph (A)

20 of paragraph (2),

21 ‘‘(ii) notice of a determination described in

22 subparagraph (B) of paragraph (2),

23 ‘‘(iii) notice of implementation of a deter24 mination described in subparagraph (C) of

25 paragraph (2), or
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1 ‘‘(iv) notice of revocation of an injurious

2 pricing order based on a determination de3 scribed in subparagraph (D) of paragraph (2),

4 an interested party who is a party to the proceeding

5 in connection with which the matter arises may com6 mence an action in the United States Court of Inter7 national Trade by filing concurrently a summons

8 and complaint, each with the content and in the

9 form, manner, and style prescribed by the rules of

10 that court, contesting any factual findings or legal

11 conclusions upon which the determination is based.

12 ‘‘(2) REVIEWABLE DETERMINATIONS.—The de13 terminations referred to in paragraph (1)(B) are—

14 ‘‘(A) a final affirmative determination by

15 the administering authority or by the Commis16 sion under section 805, including any negative

17 part of such a determination (other than a part

18 referred to in subparagraph (B)),

19 ‘‘(B) a final negative determination by the

20 administering authority or the Commission

21 under section 805,

22 ‘‘(C) a determination by the administering

23 authority under section 845(b), with respect to

24 a matter described in paragraph (1)(A) of that

25 section, and
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1 ‘‘(D) a determination by the Commission

2 under section 845(a) that results in the revoca3 tion of an injurious pricing order.

4 ‘‘(3) EXCEPTION.—Notwithstanding the 30-day

5 limitation imposed by paragraph (1) with regard to

6 an order described in paragraph (1)(B)(i), a final af7 firmative determination by the administering author8 ity under section 805 may be contested by commenc9 ing an action, in accordance with the provisions of

10 paragraph (1), within 30 days after the date of pub11 lication in the Federal Register of a final negative

12 determination by the Commission under section 805.

13 ‘‘(4) PROCEDURES AND FEES.—The procedures

14 and fees set forth in chapter 169 of title 28, United

15 States Code, apply to an action under this section.

16 ‘‘(b) STANDARDS OF REVIEW.—

17 ‘‘(1) REMEDY.—The court shall hold unlawful

18 any determination, finding, or conclusion found—

19 ‘‘(A) in an action brought under subpara20 graph (A) of subsection (a)(1), to be arbitrary,

21 capricious, an abuse of discretion, or otherwise

22 not in accordance with law, or

23 ‘‘(B) in an action brought under subpara24 graph (B) of subsection (a)(1), to be unsup-
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1 ported by substantial evidence on the record, or

2 otherwise not in accordance with law.

3 ‘‘(2) RECORD FOR REVIEW.—

4 ‘‘(A) IN GENERAL.—For purposes of this

5 subsection, the record, unless otherwise stipu6 lated by the parties, shall consist of—

7 ‘‘(i) a copy of all information pre8 sented to or obtained by the administering

9 authority or the Commission during the

10 course of the administrative proceeding, in11 cluding all governmental memoranda per12 taining to the case and the record of ex

13 parte meetings required to be kept by sec14 tion 843(a)(2); and

15 ‘‘(ii) a copy of the determination, all

16 transcripts or records of conferences or

17 hearings, and all notices published in the

18 Federal Register.

19 ‘‘(B) CONFIDENTIAL OR PRIVILEGED MA20 TERIAL.—The confidential or privileged status

21 accorded to any documents, comments, or infor22 mation shall be preserved in any action under

23 this section. Notwithstanding the preceding sen24 tence, the court may examine, in camera, the

25 confidential or privileged material, and may dis-
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1 close such material under such terms and con2 ditions as it may order.

3 ‘‘(c) STANDING.—Any interested party who was a

4 party to the proceeding under title VIII shall have the

5 right to appear and be heard as a party in interest before

6 the United States Court of International Trade in an ac7 tion under this section. The party filing the action shall

8 notify all such interested parties of the filing of an action

9 under this section, in the form, manner, and within the

10 time prescribed by rules of the court.

11 ‘‘(d) DEFINITIONS.—For purposes of this section:

12 ‘‘(1) ADMINISTERING AUTHORITY.—The term

13 ‘administering authority’ has the meaning given that

14 term in section 861(1).

15 ‘‘(2) COMMISSION.—The term ‘Commission’

16 means the United States International Trade Com17 mission.

18 ‘‘(3) INTERESTED PARTY.—The term ‘inter19 ested party’ means any person described in section

20 861(17).’’.

21 (b) CONFORMING AMENDMENTS.—

22 (1) JURISDICTION OF THE COURT.—Section

23 1581(c) of title 28, United States Code, is amended

24 by inserting ‘‘or 516B’’ after ‘‘section 516A’’.
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1 (2) RELIEF.—Section 2643 of title 28, United

2 States Code, is amended—

3 (A) in subsection (c)(1) by striking ‘‘and

4 (5)’’ and inserting ‘‘(5), and (6)’’; and

5 (B) in subsection (c) by adding at the end

6 the following new paragraph:

7 ‘‘(6) In any civil action under section 516B of the

8 Tariff Act of 1930, the Court of International Trade may

9 not issue injunctions or any other form of equitable relief,

10 except with regard to implementation of a countermeasure

11 order under section 468 of that Act, upon a proper show12 ing that such relief is warranted.’’.

13 TITLE II—OTHER PROVISIONS

14 SEC. 201. EQUIPMENT AND REPAIR OF VESSELS.

15 Section 466 of the Tariff Act of 1930 (19 U.S.C.

16 1466), is amended by adding at the end the following new

17 subsection:

18 ‘‘(i) The duty imposed by subsection (a) shall not

19 apply with respect to activities occurring in a Shipbuilding

20 Agreement Party, as defined in section 861(22), with re21 spect to—

22 ‘‘(1) self-propelled seagoing vessels of 100 gross

23 tons or more that are used for transportation of

24 goods or persons or for performance of a specialized
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1 service (including, but not limited to, ice breakers

2 and dredges), and

3 ‘‘(2) tugs of 365 kilowatts or more.

4 A vessel shall be considered ‘self-propelled seagoing’ if its

5 permanent propulsion and steering provide it all the char6 acteristics of self-navigability in the high seas.’’.

7 SEC. 202. EFFECT OF AGREEMENT WITH RESPECT TO PRI8 VATE REMEDIES.

9 No person other than the United States—

10 (1) shall have any cause of action or defense

11 under the Shipbuilding Agreement or by virtue of

12 congressional approval of the agreement, or

13 (2) may challenge, in any action brought under

14 any provision of law, any action or inaction by any

15 department, agency, or other instrumentality of the

16 United States, the District of Columbia, any State,

17 any political subdivision of a State, or any territory

18 or possession of the United States on the ground

19 that such action or inaction is inconsistent with such

20 agreement.

21 SEC. 203. IMPLEMENTING REGULATIONS.

22 After the date of the enactment of this Act, the heads

23 of agencies with functions under this Act and the amend24 ments made by this Act may issue such regulations as may

25 be necessary to ensure that this Act is appropriately im-
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1 plemented on the date the Shipbuilding Agreement enters

2 into force with respect to the United States.

3 SEC. 204. AMENDMENTS TO THE MERCHANT MARINE ACT,

4 1936.

5 The Merchant Marine Act, 1936, is amended as fol6 lows:

7 (1) Section 511(a)(2) (46 App. U.S.C.

8 1161(a)(2)) is amended by inserting after ‘‘1939,’’

9 the following: ‘‘or, if the vessel is a Shipbuilding

10 Agreement vessel, constructed in a Shipbuilding

11 Agreement Party, but only with regard to moneys

12 deposited, on or after the date on which the Ship13 building Trade Agreement Act takes effect, into a

14 construction reserve fund established under sub15 section (b)’’.

16 (2) Section 601(a) (46 App. U.S.C. 1171(a)) is

17 amended by striking ‘‘, and that such vessel or ves18 sels were built in the United States, or have been

19 documented under the laws of the United States not

20 later than February 1, 1928, or actually ordered and

21 under construction for the account of citizens of the

22 United States prior to such date,’’ and inserting

23 ‘‘and that such vessel or vessels were built in the

24 United States, or, if the vessel or vessels are Ship-
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1 building Agreement vessels, in a Shipbuilding Agree2 ment Party’’.

3 (3) Section 606(6) (46 App. U.S.C. 1176(6)) is

4 amended by inserting ‘‘or, if the vessel is a Ship5 building Agreement vessel, in a Shipbuilding Agree6 ment Party or in the United States, before ‘‘, except

7 in an emergency.’’.

8 (4) Section 607 (46 App. U.S.C. 1177) is

9 amended as follows:

10 (A) Subsection (a) is amended by inserting

11 ‘‘or, if the vessel is a Shipbuilding Agreement

12 vessel, in a Shipbuilding Agreement Party,’’

13 after ‘‘built in the United States’’.

14 (B) Subsection (k) is amended as follows:

15 (i) Paragraph (1) is amended by

16 striking subparagraph (A) and inserting

17 the following:

18 ‘‘(A)(i) constructed in the United States

19 and, if reconstructed, reconstructed in the

20 United States or in a Shipbuilding Agreement

21 Party, or

22 ‘‘(ii) that is a Shipbuilding Agreement ves23 sel and is constructed in a Shipbuilding Agree24 ment Party and, if reconstructed, is recon-
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1 structed in a Shipbuilding Agreement Party or

2 in the United States,’’.

3 (ii) Paragraph (2)(A) is amended to

4 read as follows:

5 ‘‘(A)(i) constructed in the United States

6 and, if reconstructed, reconstructed in the Unit7 ed States or in a Shipbuilding Agreement

8 Party, or

9 ‘‘(ii) that is a Shipbuilding Agreement ves10 sel and is constructed in a Shipbuilding Agree11 ment Party and, if reconstructed, is recon12 structed in a Shipbuilding Agreement Party or

13 in the United States, but only with regard to

14 moneys deposited into the fund on or after the

15 date on which the Shipbuilding Trade Agree16 ment Act takes effect.’’.

17 (5) Section 610 (46 App. U.S.C. 1180) is

18 amended by striking ‘‘shall be built in a domestic

19 yard or shall have been documented under the laws

20 of the United States not later than February 1,

21 1928, or actually ordered and under construction for

22 the account of citizens of the United States prior to

23 such date,’’ and inserting ‘‘shall be built in the Unit24 ed States or, if the vessel is a Shipbuilding Agree25 ment vessel, in a Shipbuilding Agreement Party,’’.
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1 (6) Section 901(b)(1) (46 App. U.S.C.

2 1241(b)(1)) is amended by striking the third sen3 tence and inserting the following:

4 ‘‘For purposes of this section, the term ‘privately owned

5 United States-flag commercial vessels’ shall be deemed to

6 include—

7 ‘‘(A) any privately owned United States-flag

8 commercial vessel constructed in the United States,

9 and if rebuilt, rebuilt in the United States or in a

10 Shipbuilding Agreement Party on or after the date

11 on which the Shipbuilding Trade Agreement Act

12 takes effect, and

13 ‘‘(B) any privately owned vessel constructed in

14 a Shipbuilding Agreement Party on or after the date

15 on which the Shipbuilding Trade Agreement Act

16 takes effect, and if rebuilt, rebuilt in a Shipbuilding

17 Agreement Party or in the United States, that is

18 documented pursuant to chapter 121 of title 46,

19 United States Code.

20 The term ‘privately owned United States-flag commercial

21 vessels’ shall also be deemed to include any cargo vessel

22 that so qualified pursuant to section 615 of this Act or

23 this paragraph before the date on which the Shipbuilding

24 Trade Agreement Act takes effect. The term ‘privately

25 owned United States-flag commercial vessels’ shall not be
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1 deemed to include any liquid bulk cargo vessel that does

2 not meet the requirements of section 3703a of title 46,

3 United States Code.’’.

4 (7) Section 905 (46 App. U.S.C. 1244) is

5 amended by adding at the end the following:

6 ‘‘(h) The term ‘Shipbuilding Agreement’ means the

7 Agreement Respecting Normal Competitive Conditions in

8 the Commercial Shipbuilding and Repair Industry, which

9 resulted from negotiations under the auspices of the Orga10 nization for Economic Cooperation and Development, and

11 was entered into on December 21, 1994.

12 ‘‘(i) The term ‘Shipbuilding Agreement Party’ means

13 a state or separate customs territory that is a Party to

14 the Shipbuilding Agreement, and with respect to which the

15 United States applies the Shipbuilding Agreement.

16 ‘‘(j) The term ‘Shipbuilding Agreement vessel’ means

17 a vessel to which the Secretary determines Article 2.1 of

18 the Shipbuilding Agreement applies.

19 ‘‘(k) The term ‘Export Credit Understanding’ means

20 the Understanding on Export Credits for Ships which re21 sulted from negotiations under the auspices of the Organi22 zation for Economic Cooperation and Development and

23 was entered into on December 21, 1994.
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1 ‘‘(l) The term ‘Export Credit Understanding vessel’

2 means a vessel to which the Secretary determines the Ex3 port Credit Understanding applies.’’.

4 (8) Section 1104A (46 App. U.S.C. 1274) is

5 amended as follows:

6 (A) Paragraph (5) of subsection (b) is

7 amended to read as follows:

8 ‘‘(5) shall bear interest (exclusive of charges for

9 the guarantee and service charges, if any) at rates

10 not to exceed such percent per annum on the unpaid

11 principal as the Secretary determines to be reason12 able, taking into account the range of interest rates

13 prevailing in the private market for similar loans

14 and the risks assumed by the Secretary, except that,

15 with respect to Export Credit Understanding vessels,

16 and Shipbuilding Agreement vessels, the obligations

17 shall bear interest at a rate the Secretary determines

18 to be consistent with obligations of the United

19 States under the Export Credit Understanding or

20 the Shipbuilding Agreement, as the case may be;’’.

21 (B) Subsection (i) is amended to read as

22 follows:

23 ‘‘(i)(1) Except as provided in paragraph (2), the Sec24 retary may not, with respect to—
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1 ‘‘(A) the general 75 percent or less limitation

2 contained in subsection (b)(2),

‘‘(B) the 871 3 ⁄2 percent or less limitation con4 tained in the 1st, 2nd, 4th, or 5th proviso to sub5 section (b)(2) or in section 1112(b), or

6 ‘‘(C) the 80 percent or less limitation in the 3rd

7 proviso to such subsection,

8 establish by rule, regulation, or procedure any percentage

9 within any such limitation that is, or is intended to be,

10 applied uniformly to all guarantees or commitments to

11 guarantee made under this section that are subject to the

12 limitation.

13 ‘‘(2) With respect to Export Credit Understanding

14 vessels and Shipbuilding Agreement vessels, the Secretary

15 may establish by rule, regulation, or procedure a uniform

16 percentage that the Secretary determines to be consistent

17 with obligations of the United States under the Export

18 Credit Understanding or the Shipbuilding Agreement, as

19 the case may be.’’.

20 (C) Section 1104B(b) (46 App. U.S.C.

21 1274a(b)) is amended by striking the period at

22 the end and inserting the following:

23 ‘‘, except that, with respect to Export Credit Understand24 ing vessels and Shipbuilding Agreement vessels, the Sec25 retary may establish by rule, regulation, or procedure a
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1 uniform percentage that the Secretary determines to be

2 consistent with obligations of the United States under the

3 Export Credit Understanding or the Shipbuilding Agree4 ment, as the case may be.’’.

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