I

103D CONGRESS

2D SESSION H. R. 4206

To provide for the implementation of the Uruguay Round of the General

Agreement on Tariffs and Trade concerning specific code section, and

for other purposes.

IN THE HOUSE OF REPRESENTATIVES

APRIL 13, 1994

Mr. REGULA (for himself and Mr. MINETA) introduced the following bill;

which was referred jointly to the Committees on Ways and Means, Rules,

the Judiciary, and Foreign Affairs

A BILL

To provide for the implementation of the Uruguay Round

of the General Agreement on Tariffs and Trade concerning specific code section, and for other purposes.

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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘GATT Fair Trade Enforcement Act of 1994.’’.

6 (b) TABLE OF CONTENTS.—

Sec. 1. Short Title; Table of contents.

TITLE I—COUNTERVAILING AND ANTIDUMPING DUTY

AMENDMENTS

Sec. 101. Sales in home market for export to the United States.
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Sec. 102. Calculation of exporter’s sales price when value added after importation.

Sec. 103. Compensation awards.

Sec. 104. Diversionary input dumping.

Sec. 105. Upstream subsidies.

Sec. 106. Sales at less than cost of production.

Sec. 107. Prevention of circumvention.

Sec. 108. Standing.

Sec. 109. Selling, general and administrative expenses, and profit.

Sec. 110. Reviews upon information or request or passage of time.

Sec. 111. Currency conversion.

Sec. 112. Sampling and averaging.

Sec. 113. Market viability.

Sec. 114. Negligible imports.

Sec. 115. Captive production.

Sec. 116. Duty as a coast.

TITLE II—INTELLECTUAL PROPERTY AMENDMENTS

Sec. 201. International intellectual property protection objectives.

Sec. 202. Fast track authority for New Free Trade Agreements.

Sec. 203. Special 301.

Sec. 204. Amendment of section 337 of the Traffic Act of 1930.

Sec. 205. Generalized system of preferences.

Sec. 206. Model Intellectual Property Agreement.

Sec. 207. Efforts by United States Diplomats.

Sec. 208. Private sector involvement in international dispute settlement.

Sec. 209. Incentives to improve foreign intellectual property protection.

Sec. 210. Intellectual property rights border enforcement maintenance.

TITLE III—MARKET OPENING MEASURES

Sec. 301. Action by the President to open Foreign Markets.

Sec. 302. Amendments to section 301.

Sec. 303. Specialty steel product tariffs.

1 TITLE I—COUNTERVAILING AND ANTIDUMPING DUTY

2 AMENDMENTS

3 5SEC. 101. SALES IN HOME MARKET FOR EXPORT TO THE

4 UNITED STATES.

5 Section 485 of the Tariff Act of 1930, as amended

6 (19 U.S.C. 1485), is amended—

7 (1) by adding to the end of section (a) the fol8 lowing new paragraph:
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1 ‘‘(5) Whether the merchandise is subject to any

2 outstanding antidumping or countervailing duty

3 order, and whether the importer disclosed to the

4 manufacturer or producer of the merchandise in the

5 country of exportation that the destination of the

6 merchandise was the United States.’’; and

7 (2) by adding at the end of the section the fol8 lowing new paragraph:

9 ‘‘(h) DISCLOSURE IN ANTIDUMPING CASES.—Every

10 importer of record making entry under the provisions of

11 section 1484 of this title with respect to merchandise that

12 is subject to an antidumping duty order under the provi13 sions of section 1673 of this title, its agents or principals,

14 or any party related thereto within the meaning of section

15 1677(13) of this title, shall disclose to the manufacturer

16 or producer of such merchandise that the merchandise has

17 been purchased for exportation to the United States, un18 less, at the time of purchase, the importer of record, its

19 agents or principals, or any party related thereto within

20 the meaning of section 1677(13) of this title, did not in21 tend to export the merchandise to the United States, did

22 not import the merchandise for a period of at least six

23 months from the date of purchase, and does not regularly

24 or customarily engage in a pattern of importation of such

25 merchandise. Failure by an importer to disclose the fact
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1 that merchandise subject to an antidumping duty order

2 was purchased for exportation to the United States or to

3 provide the certification required under paragraph (a)(5)

4 of this section, shall be subject to prosecution under sec5 tion 592 of this title.’’.

6 SEC. 102. CALCULATION OF EXPORTER’S SALES PRICE

7 WHEN VALUE ADDED AFTER IMPORTATION.

8 Section 772 of the Tariff Act of 1930, as amended

9 (19 U.S.C. 1677a(c)), is amended by—

10 (1) by striking the period at the end of para11 graph (e)(3) and inserting in lieu thereof the follow12 ing: ‘‘, unless the administering authority determines

13 it is appropriate to use an alternate form of export14 er’s sales price pursuant to paragraph (f).’’; and

15 (2) by inserting at the end of paragraph (e), as

16 amended by this Act, the following:

17 ‘‘(f) ALTERNATE BASES FOR EXPORTER’S SALES

18 PRICE.—Whenever there is any increase in the value of

19 imported merchandise, resulting from a process of manu20 facture or assembly, after importation and before its sale

21 to a person who is not the exporter of the merchandise,

22 to the extent that the increase in value substantially ex23 ceeds the value of the imported merchandise when resold

24 without any additional manufacture or assembly, the ‘ex25 porter’s sales price’ shall be—
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1 ‘‘(1) the price at which such or similar mer2 chandise is sold or agreed to be sold in the United

3 States, before or after the time of importation, to a

4 person who is not the exporter of the merchandise,

5 with due allowance if merchandise described in para6 graph (B) or (C) of section 1677(16) of this title is

7 used in determining exporter’s sales price, and ad8 justed under paragraphs (d) and (e) of this sub9 section, or

10 ‘‘(2) the transaction value of the merchandise,

11 as determined under section 1401a(b) and adjusted

12 under paragraph (d) of this section, where the ad13 ministering authority is satisfied that such trans14 action value is less than or equal to the arm’s length

15 price to a person who is not the exporter of the mer16 chandise.’’.

17 SEC. 103. COMPENSATION AWARDS.

18 Section 736 of the Tariff Act of 1930 (19 U.S.C.

19 1673e) is amended by adding at the end thereof the fol20 lowing new section:

21 ‘‘SEC. 736A. COMPENSATION AWARDS.

22 ‘‘(a) DEFINITIONS.—For the purposes of this sec23 tion—

24 ‘‘(1) the term ‘affected domestic producer’

25 means any manufacturer, producer, or worker rep-
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1 resentative that was a petitioner or interested party

2 in support of the petition with respect to which an

3 affirmative injury determination was made in con4 nection with an antidumping duty finding or order

5 or countervailing duty order;

6 ‘‘(2) the term ‘antidumping order’ means an

7 antidumping duty order published under section 736

8 of the Tariff Act of 1930 or an antidumping finding

9 published under the Antidumping Act, 1921;

10 ‘‘(3) the term ‘countervailing duty order’ means

11 a countervailing duty order published under sections

12 303 or 706 of the Tariff Act of 1930;

13 ‘‘(4) the term ‘Commission’ means the United

14 States International Trade Commission;

15 ‘‘(5) the term ‘Commissioner’ means the Com16 missioner of the United States Customs Service;

17 ‘‘(6) the term ‘dumped merchandise’ means

18 merchandise with respect to which an antidumping

19 duty is imposed under an antidumping order or find20 ing; and

21 ‘‘(7) the term ‘subsidized merchandise’ means

22 merchandise with respect to which a countervailing

23 duty is imposed under a countervailing duty order.

24 ‘‘(b) APPLICATION PROCESS.—The Commissioner of

25 the Customs Service shall prescribe procedures governing
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1 when and the form and manner in which compensation

2 awards shall be made annually, at the latest within thirty

3 days of the release of the Annual Report on the Status

4 of the Antidumping / Countervailing Duty Program.

5 ‘‘(c) DETERMINATION OF COMPENSATION.—

6 ‘‘(1) The Commission shall forward to the Com7 missioner within sixty days of the effective date of

8 this section or within sixty days of the issuance of

9 an antidumping or countervailing duty order after

10 the effective date of this section a list of petitioners

11 and those companies that indicated support of the

12 petition by letter or through questionnaire response

13 as well as a confidential tabulation of the dollar

14 value of shipments for each petitioner or company in

15 support of the petition during the last year covered

16 by the original Commission investigation. The con17 fidentiality of the data submitted by the Commission

18 to the Commissioner shall be maintained. Where no

19 injury test was required, the Commissioner shall

20 within one hundred and eighty days of the publica21 tion of a countervailing duty order after the effective

22 date of this section obtain information from the

23 named petitioners for the most recent calendar year

24 shipment values.
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1 ‘‘(2) The Commissioner shall publish in the

2 Federal Register at least thirty days prior to the is3 suance of payments a notice of intention to distrib4 ute compensation and the list of companies eligible

5 based on the list obtained from the Commission.

6 ‘‘(3) The Commissioner shall distribute all

7 funds (including all interest earned) from assess8 ments received in the completed fiscal year, from the

9 appropriate special compensation account established

10 under subsection (d), to petitioners and those in

11 support according to the relative shipment values

12 supplied by the Commission pursuant to subpara13 graph (1).

14 Upon the date an antidumping duty order takes ef15 fect the Commissioner.

16 ‘‘(4) Compensation awards payable under this

17 section shall be provided to the affected domestic

18 producers to be used solely for the purpose of fund19 ing a pension plan, fund, or program maintained or

20 established for the purpose of providing—

21 ‘‘(A) medical, surgical, or hospital care

22 benefits;

23 ‘‘(B) benefits in the event of sickness, acci24 dent, disability, or death;
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1 ‘‘(C) benefits in the event of plant closure

2 or layoff; or

3 ‘‘(D) benefits from a nonqualified pension

4 plan that provides benefits in the event of a ter5 mination of a qualified pension plan;

6 up to an amount equal to the amount needed to

7 maintain sufficient cash and marketable securities in

8 the plan to pay projected benefits and reasonable

9 plan administration costs for twenty-four months

10 commencing from the date of receipt of the com11 pensation award. If sufficient cash and marketable

12 securities exist to fund the plan, fund, or program

13 as required under this section then the compensation

14 award may be used as deemed appropriate by the in15 dividual domestic producer.

16 ‘‘(5) If a compensation award payable under

17 paragraph (3) cannot be received by an eligible do18 mestic producer due to such pension plan, fund, or

19 program being already fully funded then such mon20 ies may be used by the domestic producer for re21 search and development expenses, as approved by

22 the Secretary.

23 ‘‘(d) SPECIAL COMPENSATION ACCOUNTS.—

24 ‘‘(1) Within fourteen days of the effective date

25 of this provision for outstanding antidumping duty
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1 orders and findings, or for outstanding countervail2 ing duty orders, or within fourteen days of the date

3 an antidumping or countervailing duty order takes

4 effect, the Secretary of the Treasury (hereafter re5 ferred to as the Secretary in this section) shall es6 tablish in the Treasury of the United States a spe7 cial compensation account with respect to the order.

8 ‘‘(2) The Secretary shall deposit into a special

9 compensation account all antidumping or counter10 vailing duties, including interest on such duties, that

11 are collected under the antidumping order or finding

12 or countervailing duty order with respect to which

13 the account was established.

14 ‘‘(3) The monies in a special compensation ac15 count shall be available for payment of compensation

16 awards issued under section (c) to the extent of ac17 tual assessments, including interest.

18 ‘‘(4) The Commissioner shall by regulation pre19 scribe the time and manner in which payment of

20 compensation awards from special compensation ac21 counts will be made.

22 ‘‘(5) The compensation awards and special com23 pensation accounts will remain in existence until all

24 duties relating to an order which has been termi25 nated are liquidated and all funds distributed to the
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1 domestic parties entitled to receipts of same under

2 this section. Any amounts unable to be distributed

3 within ninety days of the time of the final distribu4 tion of all duties of a terminated or shall be turned

5 over to the general Treasury.’’.

6 SEC. 104. DIVERSIONARY INPUT DUMPING.

7 (a) IN GENERAL.—Subtitle D of title VII of the Tar8 iff Act of 1930 (19 U.S.C. 1677 et seq.) is amended by

9 inserting after section 771B the following new section:

10 ‘‘SEC. 771C. DIVERSIONARY INPUT DUMPING.

11 ‘‘For purposes of this title, diversionary input dump12 ing occurs when—

13 ‘‘(1) a producer or manufacturer incorporates

14 into merchandise under investigation a component or

15 a material which is the subject of—

16 ‘‘(A) an antidumping duty order issued

17 under section 736,

18 ‘‘(B) a finding issued under the Antidump19 ing Act, 1921, or

20 ‘‘(C) an international arrangement or

21 agreement described in section 734, if such ar22 rangement or agreement was entered into after

23 an affirmative preliminary determination was

24 made under section 733(b), and
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1 ‘‘(2) the producer or manufacturer under inves2 tigation purchased the material or component at a

3 price which is less than the foreign market value

4 (determined under section 773(e)).’’.

5 (b) FOREIGN VALUE.—

6 (1) IN GENERAL.—Paragraph (2) of section

7 773(a) of such Act (19 U.S.C. 1677b(A)(2)) is

8 amended by inserting ‘‘(or, if the administering au9 thority finds there is a reasonable basis to believe

10 that diversionary input dumping is occurring which

11 has a significant effect on the cost of producing the

12 merchandise under investigation)’’ after paragraph

13 (1)(A).

14 (2) SPECIAL RULE FOR DIVERSIONARY INPUT

15 DUMPING.—Section 773(e) of such Act (19 U.S.C.

16 1677b(e)) is amended by adding at the end thereof

17 the following new paragraph:

18 ‘‘(5) DIVERSIONARY INPUT DUMPING.—If the

19 administering authority determines that diversionary

20 input dumping is occurring and has a significant ef21 fect on the cost of producing the merchandise under

22 investigation, the administering authority shall, in

23 calculating the cost of the material or component

24 under paragraph (1)(A), include the amount of the

25 diversionary input dumping determined to exist with
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1 respect to such material or component. For purposes

2 of the preceding sentence, the amount of the diver3 sionary input dumping is the difference, if any, by

4 which—

5 ‘‘(A) the foreign market value of the input

6 material or component involved, as calculated

7 under this title, exceeds

8 ‘‘(B) the purchase price of the input mate9 rial or component paid by the producer or man10 ufacturer of the merchandise under investiga11 tion.’’.

12 (c) PROCEDURES FOR INITIATING AN ANTIDUMPING

13 INVESTIGATION.—Section 732(a) of such Act (19 U.S.C.

14 1673a(A)) is amended by adding at the end thereof the

15 following new paragraph:

16 ‘‘(3) CASES INVOLVING DIVERSIONARY INPUT

17 DUMPING.—The administering authority shall com18 mence an antidumping investigation whenever it has

19 reasonable grounds to believe or suspect that—

20 ‘‘(A) diversionary input dumping (as de21 fined in section 771(c)) is occurring,

22 ‘‘(B) such diversionary input dumping has

23 a significant effect on the cost of producing the

24 merchandise under investigation, and
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1 ‘‘(C) subsequent to the imposition of an

2 antidumping duty order or entry into force of

3 an international agreement relating to imports

4 into the United States of the material or com5 ponent in question, shipments to the United

6 States of the merchandise under investigation

7 have increased (either in quantity or market

8 share).’’.

9 (d) TIMETABLE FOR PRELIMINARY DETERMINATION

10 BY ADMINISTERING AUTHORITY.—Section 733(b)(1) of

11 such Act (19 U.S.C. 1673b(b)(1)) is amended by adding

12 at the end thereof the following new subparagraph:

13 ‘‘(D) IF DIVERSIONARY INPUT DUMPING

14 INVOLVED.—If, as part of a petition filed under

15 section 732(b), or an investigation commenced

16 under section 732(a), the administering author17 ity has reasonable grounds to believe or suspect

18 that diversionary input dumping is occurring,

19 the administering authority may treat the inves20 tigation as an extraordinarily complicated case

21 under subsection (c) and may extend the period

22 of time for making a preliminary determination

23 accordingly.’’.

24 (e) CLERICAL AMENDMENT.—The table of contents

25 for subtitle VII of the Tariff Act of 1930 is amended by
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1 inserting after the item relating to section 771B the fol2 lowing new item:

‘‘Sec. 771C. Diversionary input dumping.’’.

3 SEC. 105. UPSTREAM SUBSIDIES.

4 (a) DEFINITION.—Section 771A(a) of the Tariff Act

5 of 1930 (19 U.S.C. 1677–1(a)) is amended in its last sen6 tence by inserting after ‘‘subsidy is provided’’ the words

7 ‘‘or authorized’’.

8 (b) DETERMINATION OF COMPETITIVE BENEFIT IN

9 UPSTREAM SUBSIDIES.—Section 771A(b)(1) of the Tariff

10 Act of 1930 (19 U.S.C. 1677–1(b)(1)) is amended—

11 (1) by striking ‘‘Except’’ and inserting ‘‘(A)

12 Except,’’

13 (2) by striking ‘‘another seller’’ and inserting

14 ‘‘an unsubsidized seller in subparagraph (A), as re15 designated by paragraph (1), and

16 (3) by adding at the end thereof the following

17 new paragraph—

18 ‘‘(B) For purposes of subparagraph (A),

19 the administering authority shall determine the

20 price that the manufacturer or producer would

21 otherwise pay for the input product in obtaining

22 it from an unsubsidized seller by applying the

23 first of the following factors that may apply—

24 ‘‘(i) the price paid (including any de25 livery fees) by the manufacturer or pro-
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1 ducer to an unsubsidized seller located in

2 the same country as the seller of the input

3 product,

4 ‘‘(ii) the price paid (including any de5 livery fees) by the manufacturer or pro6 ducer to an unsubsidized seller located in

7 a country other than the country of the

8 seller of the input product,

9 ‘‘(iii) information on prices (including

10 all delivery fees) from an unsubsidized sell11 er of the input product located in the same

12 country as the subsidized seller of the

13 input product, or

14 ‘‘(iv) information on prices (including

15 all delivery fees) from an unsubsidized sell16 er of the input product located in a coun17 try other than the country of the sub18 sidized seller of the input product.’’.

19 SEC. 106. SALES AT LESS THAN COST OF PRODUCTION.

20 Section 773(b) of the Tariff Act of 1930 (19 U.S.C.

21 1677b(b)) is amended by striking all that follows ‘‘made

22 at less than the cost of producing the merchandise.’’ and

23 inserting in lieu thereof the following: ‘‘In the determina24 tion of foreign market value, the administering authority

25 shall disregard sales made at less than cost of production
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1 if such sales have been made in substantial quantities over

2 the period of investigation or review and at prices which

3 do not permit the recovery of all costs within a reasonable

4 period of time in the ordinary course of trade. Whenever

5 sales are disregarded by virtue of being made at less than

6 the cost of production and the remaining sales, made at

7 not less than the cost of productions, constitute less than

8 30 percent of the volume of sales of the merchandise under

9 consideration the administering authority shall employ the

10 constructed value of the merchandise to determine its for11 eign market value. For purposes of this subsection the fol12 lowing provisions shall apply:

13 ‘‘(1) Sales below cost shall be deemed by the

14 administering authority to have been made in sub15 stantial quantities if—

16 ‘‘(A) the weighted average selling price for

17 the period of investigation is less than the

18 weighted average cost of production for the

19 merchandise in question for the period, or

20 ‘‘(B) the volume of sales found to be below

21 cost represents not less than 20 percent of the

22 volume of such merchandise sold.

23 ‘‘(2) In investigations under section 1673, the

24 administering authority shall calculate the cost of
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1 producing the merchandise for the period of inves2 tigation.

3 ‘‘(3) In administrative reviews under section

4 1675, the administering authority shall calculate the

5 cost of producing the merchandise based on the

6 weighted average cost for the period or periods dur7 ing the review that the administering authority de8 termines to be reasonable for comparison to prices.

9 ‘‘(4) Prices determined to be below cost at the

10 time of sale shall not be considered to provide for

11 the recovery of costs within the reasonable period of

12 time (not to exceed the period of investigation or re13 view), unless the administering authority determines

14 that such prices are above cost for the period for

15 which costs were calculated for purposes of subpara16 graphs (2) and (3) of this section.

17 ‘‘(5) For the purposes of determining cost of

18 productions and constructed value, the administering

19 authority shall examine the allocation of non-recur20 ring costs to current and future production. As long

21 as the allocations are reasonably reflective of the

22 costs associated with the production and sale of the

23 product under consideration, any allocations consist24 ent with the generally accepted accounting principles

25 of the exporting country will normally be accepted.
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1 The administering authority shall confirm that all

2 non-recurring costs from the period prior to the pe3 riod of investigation that benefit current production

4 have been appropriately allocated to current and fu5 ture production.

6 ‘‘(6) For the purposes of determining cost of

7 production and constructed value, unless already re8 flected in the cost allocations, appropriate adjust9 ments shall be made for circumstances in which cer10 tain non-recurring costs during the period of inves11 tigation are affected by start-up operations. The ad12 justment made for start-up operations shall reflect

13 the per unit costs of labor and overhead. For pur14 poses of this paragraph the term ‘start-up period’

15 shall mean the period prior to the commencement of

16 commercial production (as defined in the normal

17 course of business by the industry in question in the

18 exporting country) of a new general category of mer19 chandise.’’

20 SEC. 107. PREVENTION OF EVASION OF ANTIDUMPING AND

21 COUNTERVAILING DUTY ORDERS.

22 (a) MERCHANDISE COMPLETED OR ASSEMBLED IN

23 THE UNITED STATES.—Section 781(a) of the Tariff Act

24 of 1930 (19 U.S.C. 1677j(a)) is amended to read as

25 follows:
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1 ‘‘(a) MERCHANDISE COMPLETED OR ASSEMBLED IN

2 THE UNITED STATES.—

3 ‘‘(1) IN GENERAL.—In determining whether im4 ported materials or components are circumventing

5 an antidumping or countervailing duty order or find6 ing and whether to include such materials or compo7 nents in that order or finding, the administering au8 thority shall consider—

9 ‘‘(A) the pattern of trade,

10 ‘‘(B) the value and sources of supply of

11 materials or components historically used in

12 completion or assembly of the merchandise sub13 ject to an antidumping or countervailing duty

14 order,

15 ‘‘(C) whether the manufacturer or exporter

16 of the materials or components is related to the

17 person who assembles or completes the mer18 chandise sold in the United States from the ma19 terials or components produced in the foreign

20 country with respect to which the order or find21 ing described in paragraph (2) applies, and

22 ‘‘(D) whether imports into the United

23 States of the materials or components produced

24 in such foreign country have increased after the

25 issuance of such order or finding.
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1 ‘‘(2) MERCHANDISE THAT MAY BE INCLUDED

2 IN ORDER OR FINDING.—If—

3 ‘‘(A) merchandise sold in the United

4 States is of the same class or kind as any other

5 merchandise that is the subject of—

6 ‘‘(i) an antidumping duty order issued

7 under section 736,

8 ‘‘(ii) a finding issued under the Anti9 dumping Act of 1921, or

10 ‘‘(iii) a countervailing duty order is11 sued under section 706 or 303;

12 ‘‘(B) such merchandise sold in the United

13 States is completed or assembled in the United

14 States from materials or components supplied

15 by the exporter or producer with respect to

16 which such order of finding applies, from sup17 pliers that have historically supplied the mate18 rials or components to that exporter or pro19 ducer, or from any party supplying materials or

20 components on behalf of such an exporter or

21 producer;

22 ‘‘(C) the value of the imported materials

23 and components referred to in subparagraph

24 (B), whether considered individually or collec25 tively, is significant in relation to the total value
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1 of all materials and components used in the as2 sembly or completion operation, excluding pack3 aging, of the imported merchandise covered by

4 the order or finding; and

5 ‘‘(D) consideration of the factors set forth

6 in paragraph (1) otherwise establishes a pattern

7 of circumvention with the effect of evading an

8 antidumping or countervailing duty order or

9 finding;

10 the administering authority, after taking into ac11 count any advice provided by the Commission under

12 subsection (e), may include within the scope of such

13 order or finding the imported materials or compo14 nents referred to in subparagraphs (B) and (C) that

15 are used in the completion or assembly of the mer16 chandise in the United States at any time such

17 order or finding is in effect.’’.

18 (b) MERCHANDISE COMPLETED OR ASSEMBLED IN

19 OTHER FOREIGN COUNTRIES.—Section 781(b) of the

20 Tariff Act of 1930 (19 U.S.C. 1677j(b)) is amended to

21 read as follows:

22 ‘‘(b) MERCHANDISE COMPLETED OR ASSEMBLED IN

23 OTHER FOREIGN COUNTRIES.—

24 ‘‘(1) IN GENERAL.—In determining whether

25 merchandise complete or assembled in a foreign
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1 country is circumventing an antidumping or counter2 vailing duty order or finding and whether to include

3 such merchandise in that order or finding, the ad4 ministering authority shall consider—

5 ‘‘(A) the pattern of trade,

6 ‘‘(B) the value and sources of supply of

7 materials or components historically used in

8 completion or assembly of the merchandise sub9 ject to an antidumping or countervailing duty

10 order,

11 ‘‘(C) whether the manufacturer or exporter

12 of the merchandise described in paragraph

13 (2)(B) is related to the person who used the

14 merchandise described in subparagraph (2)(B)

15 to assemble or complete in the foreign country

16 the merchandise that is subsequently imported

17 into the United States, and

18 ‘‘(D) whether imports into the foreign

19 country of the merchandise described in sub20 paragraph (2)(B) have increased after the issu21 ance of such order or findings.

22 ‘‘(2) MERCHANDISE THAT MAY BE INCLUDED

23 IN ORDER OR FINDING.—If—

24 ‘‘(A) merchandise imported into the United

25 States is either of the same class or kind or in-
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1 corporates an essential component that is of the

2 same class or kind as merchandise produced in

3 a foreign country that is the subject of—

4 ‘‘(i) an antidumping duty order issued

5 under section 736,

6 ‘‘(ii) a finding issued under the Anti7 dumping Act, 1921, or

8 ‘‘(iii) a countervailing duty order is9 sued under section 706 or section 303; and

10 ‘‘(B)(i) before importation into the United

11 States, such imported merchandise is completed

12 or assembled in another foreign country from

13 merchandise which is subject to such order or

14 finding, is produced in the foreign country with

15 respect to which such order of finding applies,

16 or is supplied by the exporter or producer with

17 respect to which such order of finding applies

18 or by suppliers that have historically supplied

19 the materials or components to that exporter or

20 producer, and such merchandise which is used

21 in the assembly or completion or the imported

22 merchandise has a value that is significant in

23 relation to the total value of all materials or

24 components used in the assembly or completion

25 operation, excluding packaging; or
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1 ‘‘(ii) consideration of the factors set forth

2 in paragraph (1) otherwise establishes a pattern

3 of circumvention with the effect of evading a

4 countervailing or antidumping duty order or

5 findings; and

6 ‘‘(C) the administering authority deter7 mines that action is appropriate under this

8 paragraph to prevent evasion of such order of

9 findings,

10 the administering authority, after taking into ac11 count any advice provide by the Commission under

12 subjection (e), may include such imported merchan13 dise within the scope of such order or finding at any

14 time such order of finding is in effect.’’.

15 (c) CONSTRUCTION PROVISION.—Section 781 of the

16 Tariff Act of 1930 (19 U.S.C. 1677j) is amended by add17 ing at the end thereof the following new subsection:

18 ‘‘(f) CONSTRUCTION PROVISION.—Nothing in this

19 title shall be deemed to limit the authority of the admin20 istering authority to include provisions in any final order

21 issued pursuant to—

22 ‘‘(1) an antidumping order issued under section

23 736,

24 ‘‘(2) a finding issued under the Antidumping

25 Act of 1921, or
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1 ‘‘(3) a countervailing duty order issued under

2 section 706 or section 303,

3 the purpose of which is to prevent the evasion of any rem4 edy provided for in such finding or order or to otherwise

5 safeguard the integrity of such finding or order.’’.

6 (d) CIRCUMVENTION TIMELINES AND PROCEDURAL

7 REQUIREMENTS.—Section 781(a) of the Tariff Act of

8 1930 (19 U.S.C. 1677j(a)), as amended by this Act, is

9 amended by adding at the end thereof the following:

10 ‘‘(3) CIRCUMVENTION TIMELINES AND PROCE11 DURAL REQUIREMENTS.—

12 ‘‘(A) Upon the filing of a petition contain13 ing allegations of circumvention of antidumping

14 and countervailing duty orders, the administer15 ing authority will determine within twenty days

16 whether to initiate an investigation.

17 ‘‘(B) Within one hundred-eighty days of

18 the initiation of an investigation, the admin19 istering authorities will make a preliminary af20 firmative or negative determination.

21 ‘‘(C) The administering authority will give

22 the parties the opportunity to file briefs and

23 participate in a hearing after the preliminary

24 determination.
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1 ‘‘(D) The administering authority will

2 issue a final determination within seventy-five

3 days after the preliminary determination.

4 ‘‘(E) The administering authority will give

5 interested parties the opportunity to obtain con6 fidential information under the administering

7 authority’s administrative protective order pro8 cedures.’’.

9 SEC. 108. STANDING.

10 Section 732(b) of the Tariff Act of 1930 (19 U.S.C.

11 1673a(b), as amended by this Act, is amended by adding

12 the following at the end thereof:

13 ‘‘(4) STANDING.—

14 ‘‘(A) Upon examination of a petition that

15 is filed, accompanied by supporting evidence, al16 leging that the petitioning members of the do17 mestic industry account for 25 percent or more

18 of the total production of the like product pro19 duced by the domestic industry, the administer20 ing authority shall not be required to further

21 investigate the standing of petitioners unless a

22 written objection to initiation is filed by a mem23 ber of the domestic industry.

24 ‘‘(B) Where a petition is filed without al25 leging the support of at least 25 percent of the
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1 total domestic production of the like product,

2 the administering authority shall—

3 ‘‘(i) request an expression of support

4 or opposition from members of the domes5 tic industry within five days after the date

6 of filing; and

7 ‘‘(ii) initiate the investigation if other

8 requirements are met, and the petition is

9 supported by members of the domestic in10 dustry whose collective output constitutes

11 25 percent or more of production of the

12 like product or supported by members of

13 the domestic industry whose collective out14 put constitutes more than 50 percent of

15 the total production of the like product

16 produced by that portion of the domestic

17 industry expressing an opinion or, in cases

18 of fragmented industries involving a large

19 number of producers, where sampling of

20 opinion determines that the petition is sup21 ported by a proportion of members of the

22 domestic industry whose collective output,

23 as applied to the industry as a whole,

24 would constitute more than 50 percent of

25 the total production of the like product.
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1 ‘‘(C) If there is a written objection by a

2 member of the domestic industry within five

3 days after publication of the notice of initiation,

4 the administering authority shall poll members

5 of the domestic industry and an affirmative

6 final determination under 1673d(a) of this title

7 shall not be issued unless the petition is sup8 ported by members of the domestic industry

9 whose collective output constitutes more than

10 50 percent of the total production of the like

11 product produced by that portion of the domes12 tic industry expressing support or opposition to

13 the petition or, in cases of fragmented indus14 tries involving a large number of producers,

15 where sampling of opinion determines that the

16 petition is supported by a proportion of mem17 bers of the domestic industry whose collective

18 output, as applied to the industry as a whole,

19 constitutes more than 50 percent of the total

20 production of the like product. At least 25 per21 cent of the domestic industry must support the

22 petition.

23 ‘‘(D) Expressions of opposition to initi24 ation or continuation of an investigation under

25 this title shall be disregarded if such opposition
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1 is made by a producer that is related to the ex2 porters or importers, or that is itself an im3 porter of the allegedly dumped merchandise.

4 ‘‘(E) An affirmative statement of support

5 by a union or other worker group in any com6 pany shall constitute support for the petition

7 from that company.

8 ‘‘(F) Nothing in this section shall preclude

9 self-initiation of an investigation, and the provi10 sions of this section shall not apply in the case

11 of self-initiation.

12 ‘‘(G) These provisions shall not apply to

13 reviews of orders conducted pursuant to section

14 1675 of title 19, United States Code.

15 ‘‘(H) In investigations of regional indus16 tries, pursuant to section 1677(4)(C) of title

17 19, United States Code, the domestic industry’s

18 production shall be limited, for purposes of this

19 section, to domestic production in the region or

20 regions as defined in the petition.’’.

21 SEC. 109. SELLING, GENERAL AND ADMINISTRATIVE EX22 PENSES, AND PROFIT.

23 (a) Section 771 of the Tariff Act of 1930, as amend24 ed (19 U.S.C. 1677), is amended by adding the following

25 new paragraph:
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1 ‘‘(21) SAME GENERAL CATEGORY OF MERCHAN2 DISE.—The term ‘same general category of mer3 chandise’ means the most discrete general grouping

4 of products in terms of physical characteristics and

5 uses which contains the class or kind of merchandise

6 subject to investigation.’’.

7 (b) Section 773(e)(1) of the Tariff Act of 1930, as

8 amended (19 U.S.C. 1677b(e)(1)), is amended by striking

9 paragraph (B) and inserting in lieu thereof the following:

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

11 administrative expenses equal to that incurred

12 on sales of merchandise of the same class or

13 kind as the merchandise under consideration

14 which are made by the exporter or producer

15 under investigation, in the usual commercial

16 quantities and in the ordinary course of trade,

17 expressed as a percentage of cost as defined in

18 subparagraph (A), except that when such

19 amounts cannot be determined on this basis,

20 they shall be based on any other evidence that

21 the administering authority determines to be

22 reasonably representative of such selling, gen23 eral and administrative expenses for the same

24 class or kind of merchandise or the same gen-
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1 eral category of merchandise, which shall be

2 based on the greatest of—

3 ‘‘(i) the actual expenses incurred by

4 the exporter or producer in question on

5 production and sales in the domestic mar6 ket of the country of origin of the same

7 general category of merchandise;

8 ‘‘(ii) the weighted average of the ac9 tual expenses incurred or realized by other

10 exporters or producers subject to investiga11 tion on production and sales of the same

12 class or kind of merchandise in the domes13 tic market of the country or origin;

14 ‘‘(iii) the weighted average of the ac15 tual expenses incurred by other exporters

16 or producers subject to investigation on

17 production and sales of the same general

18 category of merchandise in the domestic

19 market of the country of origin; and

20 ‘‘(iv) evidence of selling, general and

21 administrative expenses of producers in the

22 United States of the same like product or

23 same general category of merchandise,

24 where the administering authority deter25 mines that information on such expense for
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1 the same class of kind or same general cat2 egory of merchandise in the domestic mar3 ket of the country of origin is not available

4 or is not representative.’’.

5 (c) Section 773(e)(1) of the Tariff Act of 1930, as

6 amended (19 U.S.C. 1677b(e)(1)), is amended by striking

7 paragraph (C) as (E) and inserting the following new sub8 paragraphs:

9 ‘‘(C) an amount for profit equal to that ac10 tually earned by the exporter or producer on

11 sales in the country of exportation of such or

12 similar merchandise, in the usual commercial

13 quantities and in the ordinary course of trade,

14 subject to the requirements of subsections

15 1677b(b) of this section and excluding any sales

16 between related parties that are not at arm’s

17 length prices, except that when such amounts

18 are not sufficient to recover a reasonable cost of

19 capital in the country of exportation or other20 wise cannot be determined on this basis, they

21 shall be based on the greatest of—

22 ‘‘(i) the actual profits realized by the

23 exporter or producer in question on sales

24 in the country of exportation of the same

25 general category of merchandise, excluding
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1 sales of the class or kind of merchandise in

2 that market;

3 ‘‘(ii) the weighted average of the ac4 tual profits earned by other exporters or

5 producers subject to investigation on sales

6 of the same class or kind of merchandise

7 in the country of exportation;

8 ‘‘(iii) the weighted average of the ac9 tual profits earned by other exporters or

10 producers subject to investigation on sales

11 in the country of exportation of the same

12 general category of merchandise, excluding

13 sales of the class or kind of merchandise in

14 that market;

15 ‘‘(iv) the actual profits earned by the

16 exporter or producer in question on sales

17 during the most recent period outside the

18 period of investigation or review in the

19 country of exportation of the same class or

20 kind of merchandise, in the usual commer21 cial quantities and in the ordinary course

22 of trade; or

23 ‘‘(v) any other evidence that the ad24 ministering authority determines to be rea25 sonably probative of the amount of profit
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1 not less than an amount sufficient to re2 cover the cost of capital in the country of

3 exportation,

4 provided that the amount for profit so estab5 lished under this subsection shall not exceed the

6 amount determined under subsection (iii), if

7 any.

8 SEC. 110. REVIEWS UPON INFORMATION OR REQUEST OR

9 PASSAGE OF TIME.

10 Section 751(b) of the Tariff Act of 1930 (19 U.S.C.

11 1675) is amended to read as follows:

12 ‘‘(b) REVIEWS UPON INFORMATION OR REQUEST OR

13 PASSAGE OF TIME.—

14 ‘‘(1) IN GENERAL.—Whenever the administer15 ing authority or the Commission receives informa16 tion concerning, or a request by an interested party

17 within the meaning of section 1677(9) of this title

18 for the review of, an agreement accepted under sec19 tion 1671c or 1673c of this title or an antidumping

20 or countervailing duty order under this title or an

21 antidumping finding under the Antidumping Act of

22 1921, which shows changed circumstances sufficient

23 to warrant a review of such determination, finding

24 or order, it shall conduct such a review after pub25 lishing notice of the review in the Federal Register.
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1 In reviewing its determination under section

2 1671c(h)(2) of this title, the Commission shall con3 sider whether, in the changed circumstances, an

4 agreement accepted under section 1671c or 1673c(c)

5 of this title continues to eliminate completely the in6 jurious effects of imports of the merchandise.

7 ‘‘(2) LIMITATION OF PERIOD OF REVIEW.—In

8 the absence of good cause shown—

9 ‘‘(A) the Commission may not review a de10 termination under 1671d(b) or 1673d(b) of this

11 title; and

12 ‘‘(B) the administering authority may not

13 review a finding of dumping or subsidies under

14 this title or section 1303 of title 19, United

15 States Code, or of dumping under the Anti16 dumping Act of 1921,

17 less than twenty-four months after the date of publi18 cation of notice of the order, finding, determination

19 or suspension agreement.

20 ‘‘(3) FIVE YEAR REVIEW.—Notwithstanding

21 subparagraphs (1) and (2), the administering au22 thority shall initiate once each five years a review to

23 determine whether the expiry of a suspension agree24 ment under section 1671c or 1673c, an antidumping

25 or countervailing duty order under this title, or an
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1 antidumping finding under the Antidumping Act of

2 1921, would be likely to lead to continuation or re3 currence of dumping and injury whenever—

4 ‘‘(A) an administrative review conducted

5 under section 1675(a) of this title has been

6 completed within the prior twelve months or is

7 ongoing at a time thirty days prior to the rel8 evant five year deadline or the existing cash de9 posit rate for any exporter is 10 percent ad va10 lorem or more at a time thirty days prior to the

11 relevant five year deadline; or

12 ‘‘(B) a request is made by or on behalf of

13 the domestic industry at least ninety days prior

14 to the five year deadline identified in this sub15 section.

16 The five year period will be measured from the date

17 of an antidumping finding or order, a countervailing

18 duty order or a suspension agreement (as modified

19 by subsection (b)(4)) or from the date of the Federal

20 Register notice of the completion of a review under

21 subsection (b)(3) or a review under subsection

22 (b)(1). Notice of the commencement of the review

23 shall be promptly published in the Federal Register.

24 However, where the requirements of (A) or (B) are

25 satisfied, the review shall be deemed initiated on or
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1 before the expiry of the five year deadline regardless

2 of whether notice is published prior to such date.

3 ‘‘(4) DATES FOR EXISTING ORDERS, FINDINGS

4 OR SUSPENSION AGREEMENTS FOR PURPOSE OF

5 SUBSECTION (b)(3).—All existing antidumping and

6 countervailing duty orders or suspension agreements

7 under this title or antidumping findings under the

8 Antidumping Act of 1921 shall be deemed for pur9 poses of subsection (b)(3) to be imposed on the date

10 of entry into force for the Untied States of the

11 agreement establishing the World Trade Organiza12 tion, July 1, 1995.

13 ‘‘(5) In conducting reviews under subsections

14 (b) (3) and (4), the administering authority may

15 elect to treat an ongoing review under 1675(a) as a

16 review for purposes of determining whether dumping

17 will likely continue or recur; evidence that dumping

18 has occurred in the ongoing or immediately preced19 ing review shall create a presumption that dumping

20 is likely to continue or recur.

21 ‘‘(6) For purposes of subsection (b)(4) the

22 Commission:

23 ‘‘(A) May consolidate reviews from various

24 countries for the same class or kind and may

25 consolidate related classes or kinds of merchan-
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1 dise based on either simultaneous consideration

2 of the product classes in the original injury in3 vestigation or on the similarity in domestic in4 terested parties.

5 ‘‘(B) May commence reviews as early as

6 July 1, 1999, to distribute the administrative

7 burden, and should normally complete reviews

8 within twelve months (except that the counter9 vailing duty order, antidumping order, or anti10 dumping finding under review may not be re11 voked, in whole or in part, prior to July 1,

12 2000).

13 ‘‘(i) Where the complexity of the re14 view or the number of reviews being con15 sidered warrant, the Commission may ex16 tend completion of the reviews beyond

17 twelve months to the extent necessary.

18 ‘‘(ii) Prior to commencing reviews, the

19 Commission may forward sample question20 naire forms and likely information needs to

21 potential interested parties as long as re22 sponses to such informational requests are

23 not due prior to the commencement of a

24 review and such requests are not transmit25 ted more than twelve months before the
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1 likely commencement date. The exercise of

2 this subsection shall not trigger commence3 ment of the twelve month time limitation

4 on a review as required by paragraph (B).

5 ‘‘(C) Imports of the same class or kind of

6 merchandise from all outstanding antidumping

7 and countervailing duty orders, findings, or sus8 pension agreements may be cumulatively as9 sessed where cumulative assessment would sup10 port a finding of continuation or recurrence of

11 dumping and injury. This section is applicable

12 whether one or more of the findings, orders or

13 suspension agreements involves a regional in14 dustry subject to the provisions of (b)(9).

15 ‘‘(7) BASIS FOR REVIEWS.—In conducting re16 views under subsection (b)(4), such reviews shall not

17 be commenced earlier than July 1, 1999. This para18 graph shall not be applied to reviews initiated under

19 paragraph (3)(B).

20 ‘‘(8) FACTUAL SITUATIONS.—For purposes of

21 subsection (b), the administering authority and

22 Commission shall, based on the underlying factual

23 information, consider the following factual situations

24 and those consequences that would normally be ex-
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1 pected to result from the revocation of an antidump2 ing order, or finding, or countervailing duty order—

3 ‘‘(A) that dumping or subsidies will con4 tinue or recur where dumping or subsidy mar5 gins were found in the last completed adminis6 trative review or are found in an ongoing review

7 under 1675(a);

8 ‘‘(B) that dumping will continue or recur

9 where dumping margins have been eliminated in

10 the last review period when import volumes

11 have also declined;

12 ‘‘(C) that subsidies will be reconferred

13 where the subsidy program continues but a par14 ticular industry has been excluded from its ben15 efits;

16 ‘‘(D) that price depression or suppression

17 will continue or recur where dumping or sub18 sidy margins continue to be found;

19 ‘‘(E) that import volumes will increase

20 where dumping margins continue to be found;

21 ‘‘(F) that import volumes will increase

22 where antidumping duty or countervailing duty

23 orders or suspension agreements or safeguard

24 or other import programs will continue in other

25 countries;
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1 ‘‘(G) that import volumes will increase

2 where unutilized capacity exists or capacity ex3 pansions are in progress;

4 ‘‘(H) that the like product for purposes of

5 the review will be the same as in the original

6 investigation and will specifically include all

7 products found through scope inquiries or no8 tices of clarification to be covered by the find9 ing, order or suspension agreement;

10 ‘‘(I) that import volumes will increase

11 where offshore inventories, as a ratio to con12 sumption within the United States of a like

13 product, are at levels equal to, or grater than,

14 such volumes at the time of the original inves15 tigation; and

16 ‘‘(J) that import volumes will increase

17 where there is the presence of related parties or

18 distribution systems within the United States.

19 ‘‘(9) VERIFICATION.—All information relied on

20 by the administering authority or Commission shall

21 be verified, when considered appropriate, particularly

22 information pertaining to the likely conduct of for23 eign producers and, or, importers if an order, find24 ing or suspension agreement were to be revoked or

25 terminated.
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1 ‘‘(10) REGIONAL DOMESTIC INDUSTRIES.—In

2 the case of a countervailing duty or antidumping

3 duty order imposed as a result of an investigation

4 involving a regional domestic industry, the Commis5 sion shall determine whether expiration of the order

6 would be likely to lead to continuation or recurrence

7 of material injury or threat of material injury to the

8 regional industry as defined by the Commission in

9 the original investigation, notwithstanding any

10 changes in regional market isolation or regional im11 port concentration since the original investigation, or

12 to a different regional industry satisfying the criteria

13 of section 1677(4)(C) of title 19, United States

14 Code, as of the time of the review.

15 ‘‘(11) CHANGED CIRCUMSTANCES.—A party

16 previously excluded from an antidumping or counter17 vailing duty order, having been determined by the

18 administering authority in its original investigation

19 not to be dumping or countervailably subsidized,

20 may be made subject to that order if later found

21 under this subsection to be dumping or receiving

22 countervailable subsidies above a de minimis level.

23 ‘‘(12) STANDARD OF REVIEW.—

24 ‘‘(A) The test of whether revocation of an

25 order or finding or the termination of a suspen-
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1 sion agreement would be likely to lead to con2 tinuation or recurrence of injury is necessarily

3 predictive and shall be satisfied where such an4 ticipated injury is not inconsequential, immate5 rial or unimportant within the meaning of

6 1677(7)(A). In making this determination the

7 Commission shall take into account the factual

8 situations set forth in subsection (8).

9 ‘‘(B) An affirmative determination under

10 this section can be premised upon any one of

11 six independent standards—

12 ‘‘(i) whether the expiry of the duty

13 would be likely to lead to continuation of

14 material injury by reason of dumped or

15 subsidized imports;

16 ‘‘(ii) whether the expiry of the duty

17 would be likely to lead to continuation of

18 the threat of material injury by reasons of

19 dumped or subsidized imports;

20 ‘‘(iii) whether the expiry of the duty

21 would be likely to lead to continuation of

22 material retardation of the establishment

23 of a domestic industry by reason of

24 dumped or subsidized imports;
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1 ‘‘(iv) whether the expiry of the duty

2 would be likely to lead to recurrence of ma3 terial injury by reason of dumped or sub4 sidized imports;

5 ‘‘(v) whether the expiry of the duty

6 would be likely to lead to recurrence of the

7 threat of material injury by reason of

8 dumped or subsidized imports; and

9 ‘‘(vi) whether the expiry of the duty

10 would be likely to lead to recurrence of ma11 terial retardation of the establishment of a

12 domestic industry by reason of dumped or

13 subsidized imports.

14 ‘‘(c) REVOCATION OF COUNTERVAILING DUTY

15 ORDER, ANTIDUMPING ORDER, OR ANTIDUMPING FIND16 ING; TERMINATION OF SUSPENDED INVESTIGATION.—

17 ‘‘(1) The administering authority may revoke,

18 in whole or in part, a countervailing duty order,

19 antidumping order or antidumping finding, or termi20 nate a suspended investigation, after review under

21 subsection (a) of this section.

22 ‘‘(2) The administering authority shall revoke,

23 in whole or in part, an antidumping order or finding

24 or a countervailing duty order or shall terminate a

25 suspended investigation if the Commission deter-
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1 mines under subsection (b) that injury would not be

2 likely to continue or recur if the order, finding or

3 suspension agreement were revoked or terminated or

4 where the administering authority determines that

5 dumping or subsidies would not be likely to continue

6 or recur under (b)(3).

7 ‘‘(3) Any order, finding or suspended investiga8 tion for which a review under subsection (b)(3) has

9 not been commenced within five years of the anni10 versary date of the order, finding or suspended in11 vestigation, as those dates are modified by (b)(4),

12 shall be revoked or terminated upon publication of

13 a notice from the administering authority in the

14 Federal Register that no review has been or will be

15 conducted under (b)(3).

16 ‘‘(4) Any revocation or termination under sub17 section (b) shall apply with respect to unliquidated

18 entries of merchandise entered, or withdrawn from

19 warehouse, for consumption on and after the date of

20 publication of the notice of revocation or termination

21 in the Federal Register. Other revocations or termi22 nations under section 1675 shall apply with respect

23 to unliquidated entries of merchandise entered, or

24 withdrawn from warehouse, for consumption on and
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1 after a date determined by the administering

2 authority.

3 ‘‘(d) HEARINGS.—Whenever the administering au4 thority or the Commission conducts a review under this

5 section it shall, upon the request of any interested party,

6 hold a hearing in accordance with section 1677c(b) of this

7 title in connection with that review.’’.

8 SEC. 111. CURRENCY CONVERSION.

9 Section 773(a)(4)(C) of the Tariff Act of 1930, as

10 amended (19 U.S.C. 1677(a)(4)(C)), is amended by in11 serting the following new sections:

12 ‘‘(D) the effects of fluctuations in ex13 change rates where dumping margins otherwise

14 would be created solely by such fluctuations;

15 ‘‘(E) the effects of sustained changes in

16 exchange rates for sixty days prior to the time

17 such merchandise is first sold within the mean18 ing of paragraph (a)(1) of this section, but only

19 in the context of antidumping investigations

20 pursuant to part II of this title and only where

21 the producer or exporter has changed its prices

22 in order to account for such changes in ex23 change rates; or
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1 ‘‘(F) the purchase of foreign currency on

2 forward markets directly linked to the sale of

3 imported merchandise;’’.

4 SEC. 112. SAMPLING AND AVERAGING.

5 Section 777A(a) of the Tariff Act of 1930, as amend6 ed (19 U.S.C. 1677f–1(a)), is amended by—

7 (1) striking ‘‘IN GENERAL.—’’ from paragraph

8 (a), striking subparagraph (2), and redesignating

9 paragraph (a) as subparagraph (1) and redesignat10 ing subparagraph (1) as (A);

11 (2) inserting paragraph ‘‘(a) IN GENERAL.—’’

12 before the newly designated subparagraph (1);

13 (3) adding at the end of subparagraph (1)(A)

14 the following:

15 ‘‘(B) shall decline to take into account ad16 justments that amount to less than 1 percent of

17 the unadjusted United States price or

18 unadjusted foreign market price, as appro19 priate.’’.

20 (4) adding at the end of subparagraph (1) the

21 following new subparagraph:

22 ‘‘(2) For the purpose of comparing United

23 States price with foreign market value under Section

24 1675 of this title, the administering authority shall

25 normally compare the United States price of each
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1 entry or each sale with a foreign market value based

2 upon weighted average or preponderant prices deter3 mined under section 1677b(a) of this title, or upon

4 constructed value.’’.

5 (5) adding at the end of paragraph (b) the fol6 lowing: ‘‘For purposes of investigations under part

7 II of this title, where a significant number of pro8 ducers and exporters or a significant number of dif9 ferent products are involved, the administering au10 thority may sample producers and exporters or prod11 ucts, based upon statistically valid sample tech12 niques, after seeking and taking account of the views

13 of all interest parties. The administering authority

14 in such cases shall, to the extent practically possible

15 within the time constraints of the investigation or

16 review, determine estimated duty deposits and as17 sessment rates for each producer or exporter that so

18 requests and that provides adequate information in

19 a timely manner. Alternatively, the administering

20 authority may determine United States price or for21 eign market value upon those sales which account

22 for the largest percentage of the volume of subject

23 imports which can reasonably be investigated (nor24 mally 60 percent or more of the total volume of im25 ports). However, for good cause shown, upon request
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1 of petitioner, the administering authority shall inves2 tigate producers and exporters accounting for a

3 higher percentage of the volume of subject im4 ports.’’.

5 (6) adding at the end of paragraph (b) the fol6 lowing new paragraphs:

7 ‘‘(c) SPECIAL RULE.—For the purpose of carrying

8 out an investigation under part II of this title, the admin9 istering authority shall collect individual transaction prices

10 for United States price and foreign market value (includ11 ing information on purchasers, regions, and time period),

12 and shall—

13 ‘‘(1) utilize individual transaction prices for the

14 determination of United States price and for com15 parison to fair value whenever individual transaction

16 prices are used for the determination of fair value;

17 and

18 ‘‘(2) utilize weighted average prices for the de19 termination of United States price and for compari20 son to fair value whenever weighted average prices

21 are used for the determination of fair value;

22 except that United States price shall be determined for

23 each entry or transaction and compared to a weighted av24 erage fair value whenever there is satisfactory evidence

25 that United States prices vary significantly among dif-
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1 ferent purchasers, regions, or by time period over 20 per2 cent or more of the quantity sold during the period of in3 vestigation.

4 ‘‘(d) CALCULATION OF ADJUSTMENTS, SPECIAL

5 RULE.—Notwithstanding paragraph (b), the administer6 ing authority shall average expenses or income only across

7 those sales to which such expenses or income are attrib8 utable for purposes of calculating adjustments to United

9 States price or foreign market value under 1677a and

10 1677b.’’.

11 SEC. 113. MARKET VIABILITY.

12 (a) Section 773(a)(1)(B) of the Tariff Act of 1930,

13 as amended (19 U.S.C. 1677b(a)(1)(B)), is amended as

14 follows:

15 ‘‘(B) if not sold or offered for sale for

16 home consumption, or if the administering au17 thority determines that the quantity sold for

18 home consumption is so small in relation to the

19 quantity sold for exportation to the United

20 States as to form an inadequate basis for com21 parison, then the price at which so sold or of22 fered for sale for exportation to countries other

23 than the United States, provided that the ad24 ministering authority does not determine that
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1 the foreign market value should be determined

2 on the basis of constructed value,’’.

3 (b) Section 773(a)(1) of the Tariff Act of 1930, as

4 amended (19 U.S.C. 1677b(a)(1)) is amended by adding

5 to the end thereof the following: ‘‘In determining whether

6 the quantity sold for home consumption is so small in rela7 tion to the quantity sold for exportation to the United

8 States to form an adequate basis for comparison, the ad9 ministering authority may exclude, in appropriate cir10 cumstances, home market sales to related parties (as de11 fined in 19 U.S.C. 1677b(e)(4)) or home market sales to

12 companies directly or indirectly owning, controlling or

13 holding with the power to vote, 5 percent or more of the

14 outstanding voting stock or shares of a related party.’’

15 (c) Section 773(d) of the Tariff Act of 1930, as

16 amended (19 U.S.C. 1677b(d)), is amended by adding at

17 the end thereof the following: ‘‘Sales in the home market

18 will not be used as the basis for comparison when the

19 number of sales is so small in relation to the quantity sold

20 for exportation to the United States as to form an inad21 equate basis for comparison. In determining whether the

22 quantity sold for home consumption is so small in relation

23 to the quantity sold for exportation to the United States

24 to form an adequate basis for comparison, the administer25 ing authority may exclude, in appropriate circumstances,
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1 home market sales to related parties (as defined in 19

2 U.S.C. 1677b(e)(4)) or home market sales to companies

3 directly or indirectly owning, controlling or holding with

4 the power to vote, 5 percent or more of the outstanding

5 voting stock or shares of a related party.’’.

6 SEC. 114. NEGLIGIBLE IMPORTS.

7 Section 771(7)(C)(v) of the Tariff Act of 1930, as

8 amended (19 U.S.C. 1677(7)(C)(v)), is amended by strik9 ing the subparagraph and inserting in lieu thereof the

10 following:

11 ‘‘(v) TREATMENT OF NEGLIGIBLE IM12 PORTS.—The Commission shall imme13 diately terminate its investigation where,

14 during its investigation for purposes of

15 making a preliminary determination, or

16 final determination, pursuant to section

17 1671b of title 19, United State Code, the

18 Commission determines that the volume of

19 imports (or sale for importation) from a

20 particular country of the merchandise

21 which is subject to investigation accounts

22 for less than 3 percent of imports of such

23 merchandise, unless countries which indi24 vidually account for less than 3 percent of

25 the imports of such merchandise collec-
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1 tively account for more than 7 percent of

2 imports of the merchandise. Notwithstand3 ing the foregoing, the Commission shall

4 not terminate its investigation pursuant to

5 this subsection with regard to imports

6 from a particular country where the value

7 of imports or merchandise subject to inves8 tigation, based on the actual sales of those

9 imports, from that country during the four

10 most recent quarterly periods for which the

11 Commission has data exceeds an amount

12 which bears the same ratio to $5,000,000

13 as the average gross national product of

14 the United States for that period, as deter15 mined by the Department of Commerce,

16 bears to the average gross national product

17 of the United States for the four quarters

18 of calendar year 1994.

19 ‘‘(I) For purposes of this sub20 section, the share of imports from a

21 particular country of the merchandise

22 which is subject to investigation shall

23 be assessed during the most recent

24 twelve month period for which the

25 Commission has data.
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1 ‘‘(II) In cases where the Commis2 sion determines circumstances appro3 priate to make its determination on

4 the basis of a regional industry, pur5 suant to section 1677(4)(C) of title

6 19, United States Code, the percent7 age of import volume calculated for

8 purposes of this subsection shall be

9 based upon imports to that region,

10 where practicable.’’.

11 SEC. 115. CAPTIVE PRODUCTION.

12 Section 771(4) of the Tariff Act of 1930 (19 U.S.C.

13 1677(4)) is amended by adding at the end thereof the fol14 lowing new subparagraph:

15 ‘‘(F) CAPTIVE PRODUCTION.—In any in16 vestigation involving production that domestic

17 producers both sell in the merchant market and

18 further process into another distinct product,

19 the Commission shall not include the semi-fin20 ished production within the definition of the fin21 ished like product destined for the merchant

22 market, unless the Commission determines both

23 that semi-finished production by the industry

24 competes to a significant degree with all pro25 duction of the finished product, and that such
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1 semi-finished production competes to a signifi2 cant degree with the imports of the finished

3 products subject to investigation.’’.

4 SEC. 116. DUTY AS A COST.

5 (a) Section 772(e)(2) of the Tariff Act of 1930, as

6 amended (19 U.S.C. 1677a(e)(2)) is amended by striking

7 ‘‘and’’ at the end thereof.

8 (b) Section 772(e) of the Tariff Act of 1930, as

9 amended (19 U.S.C. 1677a(e)), is amended by renumber10 ing paragraph (3) as paragraph (4), and inserting the fol11 lowing after paragraph (2):

12 ‘‘(3) any deposits of estimated antidumping du13 ties made with respect to the merchandise, unless—

14 ‘‘(A) the administering authority deter15 mines that the resulting exporter’s sales price

16 without adjustment for such duties is equal to

17 or greater than the foreign market value of the

18 merchandise, and

19 ‘‘(B) the exporter has filed a written cer20 tification with the administering authority and

21 the United States Customs Service that—

22 ‘‘(i) the transaction price for purposes

23 of subsection (c) of this section included

24 the full amount of the estimated antidump-
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1 ing duty deposited with respect to such

2 merchandise, and

3 ‘‘(ii) the exporter did not directly or

4 indirectly reimburse or otherwise com5 pensate the purchaser for such deposits;

6 and

7 the administering authority is satisfied that the

8 conditions of subsection (A) and (B) have been

9 fulfilled with respect to such merchandise;

10 and’’.

11 (c) Section 751(a) of the Tariff Act of 1930, as

12 amended (19 U.S.C. 1675(a)), is amended by adding to

13 the end thereof the following:

14 ‘‘(3) SPECIAL RULE.—For purposes of the as15 sessments of antidumping duties and the deposits of

16 estimated antidumping duties to be based upon the

17 results of the determination of antidumping duties

18 referred to in subsection (a)(2), where the importer

19 of the merchandise is the exporter as defined in sec20 tion 771(13), the determination under subsection

21 (a)(2) shall be deemed to be a determination of

22 nominal antidumping duties in that such duties may

23 be subject to further adjustment to reflect the extent

24 to which the duties are absorbed by the exporter.

25 Therefore, in such instances where the importer is
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1 the exporter, the administering authority shall in2 struct the United States Customs Service to assess

3 antidumping duties in the amount of the nominal

4 antidumping duties determined, provided that, prior

5 to liquidation, the exporter—

6 ‘‘(A) provides written certification that—

7 ‘‘(i) the full amount of an assessment

8 on the merchandise based upon the

9 amount of the nominal antidumping duties

10 shall be passed on by the exporter to this

11 unrelated purchaser of the merchandise;

12 and

13 ‘‘(ii) the exporter shall not directly or

14 indirectly reimburse or otherwise com15 pensate its unrelated purchaser for such

16 assessment; and

17 ‘‘(B) within six months following liquida18 tion, furnishes affirmative and verifiable evi19 dence that such assessment in fact has been

20 passed on to and paid by such purchaser.

21 If the exporter fails to certify and furnish the other

22 evidence indicating that the full amount of nominal

23 antidumping duties is passed on by the exporter to

24 its unrelated purchaser, the assessments of anti25 dumping duties shall be based upon the full amount
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1 of the nominal antidumping duties plus the amount

2 thereof not shown to be passed on to the unrelated

3 purchaser.’’.

4 TITLE II—INTELLECTUAL PROPERTY

5 AMENDMENTS

6 SEC. 201. INTERNATIONAL INTELLECTUAL PROPERTY

7 PROTECTION OBJECTIVES.

8 Section 1101(b)(10) of the Omnibus Trade and Com9 petitiveness Act of 1988, as amended (19 U.S.C.

10 2901(b)(10)), is amended to provide—

11 ‘‘(10) INTELLECTUAL PROPERTY.—The prin12 cipal objectives of the United States regarding inter13 national intellectual property protection are—

14 ‘‘(A) to accelerate the full implementation

15 of parts I, II, and III of the Uruguay Round

16 Agreement on Trade-Related Aspects of Intel17 lectual Property Rights;

18 ‘‘(B) to seek enactment and effective im19 plementation by foreign countries of standards

20 for protection and enforcement of intellectual

21 property rights that supplement and strengthen

22 the standards and obligations contained in the

23 Uruguay Round Agreement on Trade-Related

24 Aspects of Intellectual Property Rights and the
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1 North American Free Trade Agreement, includ2 ing, but not limited to—

3 ‘‘(i) supplementing and strengthening

4 such standards and obligations through bi5 lateral and multilateral agreements, in par6 ticular, to cover new and emerging tech7 nologies, and new methods of transmission,

8 distribution, and uses; and

9 ‘‘(ii) eliminating discrimination, un10 reasonable exceptions, or preconditions to

11 the protection, enforcement, or commercial

12 enjoyment of the full economic benefits

13 arising from any use or exploitation of in14 tellectual property rights;

15 ‘‘(C) to secure fair, equitable, and non-dis16 criminatory market access opportunities for

17 United States persons holding intellectual prop18 erty rights, including rights now, or hereafter,

19 granted by a foreign country to its own nation20 als under domestic laws and regulations in re21 spect of any use or exploitation of protected

22 works, fixations, or products embodying pro23 tected rights;
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1 ‘‘(D) to take an active role in the develop2 ment of the intellectual property regime under

3 the World Trade Organization (WTO);

4 ‘‘(E) to take an active role in the World

5 Intellectual Property Organization (WIPO) and

6 ensure that the WIPO and the WTO work to7 gether in a mutually supportive fashion; and

8 ‘‘(F) to ensure that all international agree9 ments entered into by the United States sup10 port the high level of protection of intellectual

11 property rights set forth in the Model Intellec12 tual Property Agreement established under sec13 tion 205 of the GATT Fair Trade Enforcement

14 Act of 1994.

15 In addition, the United States Trade Representative,

16 in consultation with the appropriate United States

17 Government agencies, the relevant congressional

18 committees, and the private sector, shall develop

19 other international intellectual property-related ob20 jectives as necessary or appropriate.’’.

21 SEC. 202. FAST TRACK AUTHORITY FOR NEW FREE TRADE

22 AGREEMENTS.

23 (a) Section 1102 of the Omnibus Trade and Competi24 tiveness Act of 1988 (19 U.S.C. 2902) is amended by—
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1 (1) in paragraph (b)(1), replacing ‘‘1993’’ with

2 ‘‘year’’;

3 (2) in subsection (b), renumbering paragraph

4 (2) as (3);

5 (3) inserting a new paragraph (b)(2) to pro6 vide—

7 ‘‘(2) The President may not enter into any ne8 gotiation of a new free trade agreement with a for9 eign country under this paragraph, unless he first

10 determines that such country—

11 ‘‘(A) has substantially implemented parts

12 I, II, and III of the Uruguay Round Agreement

13 on Trade-Related Aspects of Intellectual Prop14 erty Rights, and

15 ‘‘(B) expresses willingness to negotiate an

16 agreement with the United States under which

17 it will provide intellectual property protection

18 equivalent to that set forth in the Model Intel19 lectual Property Agreement established under

20 section 205 of the GATT Fair Trade Enforce21 ment Act of 1994.’’;

22 (4) in paragraph (c)(1), replacing ‘‘1993’’ with

23 ‘‘year’’;
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1 (5) in subsection (c), renumbering paragraphs

2 (2), (3), (4), and (5) as (3), (4), (5), and (6), re3 spectively;

4 (6) inserting a new paragraph (c)(2) to pro5 vide—

6 ‘‘(2) The President may not enter into any ne7 gotiation of a new free trade agreement, including a

8 free trade agreement, with a foreign country under

9 this paragraph, unless he first determines that such

10 country—

11 ‘‘(A) has fully implemented parts I, II, and

12 III of the Uruguay Round Agreement on

13 Trade-Related Aspects of Intellectual Property

14 Rights, and

15 ‘‘(B) expresses willingness to reach an

16 agreement with the United States under which

17 it will provide intellectual property protection

18 equivalent to that set forth in the Model Intel19 lectual Property Agreement established under

20 section 205 of the GATT Fair Trade Enforce21 ment Act of 1994.’’;

22 (7) inserting a new paragraph (c)(7) to pro23 vide—

24 ‘‘(7) Upon signing any free trade agreement

25 that contains intellectual property-related provisions
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1 that supplement and strengthen the standards and

2 obligations contained in already-existing free trade

3 agreements, the President shall seek to bring all

4 United States free trade agreements to this higher

5 level of intellectual property protection, in so far as

6 possible.’’; and

7 (8) amending renumbered subparagraph

8 (c)(4)(C)(i) to provide—

9 ‘‘(i) provides written notice of such

10 negotiations, including his determination

11 under paragraph (c)(2), to the Committee

12 on Finance of the Senate and the Commit13 tee on Ways and Means of the House of

14 Representatives, and’’.

15 (b) Section 1103(c) of the Omnibus Trade and Com16 petitiveness Act of 1988 (19 U.S.C. 2903(c)) is amended

17 by inserting a new paragraph (3) to provide—

18 ‘‘(3) The fast track procedures shall not apply

19 to any implementing bill that contains a provision

20 approving of any trade agreement that is entered

21 into under section 1102(c), if the requirements of

22 section 1102(c)(2) (as renumbered by the Act) are

23 not met.’’.
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1 SEC. 203. SPECIAL 301.

2 Section 182 of the Trade Act of 1974, as amended

3 (19 U.S.C. 2242), is amended by—

4 (1) in paragraph (a)(1)—

5 (A) deleting the word ‘‘or’’ at the end of

6 subparagraph (a)(1)(A);

7 (B) replacing the word ‘‘and’’ at the end of

8 subparagraph (a)(1)(B) with the word ‘‘or’’,

9 and

10 (C) adding a new subparagraph (a)(1)(C)

11 to provide—

12 ‘‘(C) deny non-discriminatory market ac13 cess opportunities for United States persons, in14 cluding access related to any exploitation or en15 joyment of commercial benefits from exercising

16 rights in protected works, fixations, or products

17 embodying protected works, and’’;

18 (2) inserting a new paragraph (a)(3) to pro19 vide—

20 ‘‘(3) In making the identifications required

21 under paragraphs (1) and (2), the Trade Represent22 ative shall take into account—

23 ‘‘(A) the history of intellectual property

24 laws and practices of foreign countries, includ25 ing any past identifications under these para26 graphs, and
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1 ‘‘(B) the history of the efforts of the Unit2 ed States, and the responses to the foreign

3 country, to achieve adequate and effective pro4 tection of intellectual property rights.’’; and

5 (3) amending subsection (d) by—

6 (A) changing the initial paragraph of para7 graph d(2) to provide—

8 ‘‘(2) A foreign country denies adequate and ef9 fective protection of intellectual property rights if

10 the country—

11 ‘‘(A) has not fully implemented parts I, II,

12 and III of the Uruguay Round Agreement on

13 Trade-Related Aspects of Intellectual Property

14 Rights, or

15 ‘‘(B) denies adequate and effective means

16 under the laws of the foreign country for per17 sons who are not citizens or nationals of such

18 foreign country to secure, exercise, enjoy full

19 commercial benefits, and enforce rights relating

20 to patients, process patents, registered trade21 marks, copyrights and related rights, trade se22 crets, and mask works, notwithstanding that

23 the foreign country may have fully implemented

24 parts I, II, and III of the Uruguay Round

25 Agreement on Trade-Related Aspects of Intel-
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1 lectual Property Rights, or the obligations of

2 any other bilateral, regional, or multilateral

3 agreement.’’;

4 (B) changing the initial paragraph of para5 graph (d)(3) to provide—

6 ‘‘(3) A foreign country denies fair and equitable

7 market access if the foreign country effectively de8 nies access to a market for a product protected by

9 a copyright or related right, mask work, registered

10 trademark, trade secret, patent, or process patent

11 through the use of laws, procedures, or regulations

12 which—’’; and

13 (C) adding a new paragraph (d)(4) to pro14 vide—

15 ‘‘(4) A foreign country denies non-discrimina16 tory market access opportunities for United States

17 persons in respect of establishing business oper18 ations or any use, benefit, or exploitation of pro19 tected works, fixations, or products embodying pro20 tected rights, when it grants access to methods of

21 distribution, collection of revenues generated from

22 the use or fixation of a product embodying protected

23 rights, or any other benefit in relation to such

24 works, fixations, or products embodying protected
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1 rights, on terms more advantageous to its own na2 tionals than to those nationals of another country.’’.

3 SEC. 204. AMENDMENT OF SECTION 337 OF THE TARIFF ACT

4 OF 1930.

5 (a) Section 337 of the Tariff Act of 1930, as amend6 ed (19 U.S.C. 1337), is amended by adding at the end

7 thereof the following new section—

8 ‘‘SEC. 337A. UNFAIR PRACTICES IN DOMESTIC TRADE.

9 ‘‘(a) UNLAWFUL ACTIVITIES; COVERED INDUSTRIES;

10 DEFINITIONS.—

11 ‘‘(1) Subject to paragraph (2), the following are

12 unlawful, and when found by the Secretary of Com13 merce (hereafter referred to as the Secretary) to

14 exist shall be dealt with, in addition to any other

15 provision of law, as provided in this section:

16 ‘‘(A) The sale of articles in the United

17 States by the owner, distributor, or consignee,

18 of articles that—

19 ‘‘(i) infringe a valid and enforceable

20 United States patent or a valid and en21 forceable United States copyright reg22 istered under title 17; or

23 ‘‘(ii) are made, produced, processed,

24 or mined under, or by means of, a process
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1 covered by the claims of a valid and en2 forceable United States patent.

3 ‘‘(B) The sale of articles in the United

4 States by the owner, distributor, or consignee,

5 of articles that infringe a valid and enforceable

6 United States trademark registered under the

7 Trademark Act of 1946.

8 ‘‘(C) The sale of articles in the United

9 States by the owner, distributor, or consignee,

10 of a semiconductor chip product in a manner

11 that constitutes infringement of a mask work

12 registered under chapter 9 of title 17.

13 ‘‘(2) For purposes of this section, the phrase

14 ‘owner, distributor, or consignee’ includes any agent

15 of the owner, distributor, or consignee.

16 ‘‘(b) INVESTIGATIONS OF VIOLATIONS BY THE SEC17 RETARY OF COMMERCE.—

18 ‘‘(1) The Secretary of Commerce shall inves19 tigate any alleged violation of this section on com20 plaint under oath or upon its initiative, except as

21 provided in subsection (3). Upon commencing any

22 such investigation, the Secretary shall publish notice

23 thereof in the Federal Register. The Secretary shall

24 conclude any such investigation, and make its deter25 mination under this section, at the earliest prac-
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1 ticable time, but not later than one year (eighteen

2 months in more complicated cases) after the date of

3 publication of notice of such investigation. The Sec4 retary shall publish in the Federal Register its rea5 sons for designating any investigation as a more

6 complicated investigation. For purposes of the one

7 year and eighteen month period prescribed by this

8 subsection, there shall be excluded any period of

9 time during which such investigation is suspended

10 because of proceedings in a court or agency of the

11 United States involving similar questions concerning

12 the subject matter of such investigations.

13 ‘‘(2) During the course of each investigation

14 under this section, the Secretary shall consult with,

15 and seek advice and information from the Depart16 ment of Health and Human Services, the Depart17 ment of Justice, the Federal Trade Commission, and

18 such other departments and agencies as it considers

19 appropriate.

20 ‘‘(3) The Secretary shall not investigate any al21 leged violation of this section where the articles sold

22 in the United States have been or are being inves23 tigated under section 1337 of this title. If, upon in24 vestigation of an alleged violation of this section on

25 complaint or upon its own initiative, the Secretary
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1 determines that the articles alleged to violate this

2 section are imported or are sold for importation or

3 are sold after importation by the owner, importer, or

4 consignee, then the investigation by the Secretary

5 shall be terminated and the matter referred to the

6 International Trade Commission under section 1337

7 of this title.

8 ‘‘(c) DETERMINATIONS; REVIEW.—The Secretary

9 shall determine, with respect to each investigation con10 ducted by it under this section, whether or not there is

11 a violation of this section, except that the Secretary may,

12 by issuing a consent order or on the basis of a settlement

13 agreement, terminate any such investigation, in whole or

14 in part, without making such a determination. Each deter15 mination under subsection (c), (d), (e), (f), (g), or (h) of

16 this section shall be made on the record after notice and

17 opportunity for a hearing in conformity with the provi18 sions of subchapter II of chapter 5 of title 5. All legal

19 and equitable defenses may be presented in all cases. Any

20 person adversely affected by a final determination of the

21 Secretary under subsection (c), (d), (e), (f), (g), or (h)

22 of this section may appeal such determination, within sixty

23 days after the determination becomes final, to the United

24 States Court of Appeals for the Federal Circuit for review

25 in accordance with chapter 7 of title 5. Notwithstanding
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1 the foregoing provisions of this subsection, determination

2 by the Secretary under subsection (c), (d), (e), (f), (g),

3 or (h) of this section with respect to its findings on the

4 public health and welfare, competitive conditions in the

5 United States economy, the production of like or directly

6 competitive articles in the United States and United

7 States consumers, or the appropriate remedy shall be

8 reviewable in accordance with section 706 of title 5.

9 ‘‘(d) PRELIMINARY INJUNCTION DURING INVESTIGA10 TION; PROCEDURES APPLICABLE.—

11 ‘‘(1) If during the course of an investigation

12 under this section, the Secretary determines that

13 there is reason to believe that there is a violation of

14 this section, it may issue a preliminary injunction,

15 enjoining the person from selling like or directly

16 competitive articles in the United States. An Admin17 istrative Law Judge shall issue a preliminary injunc18 tion directing the person not to sell or offer for sale

19 the like or directly competitive articles in the United

20 States.

21 ‘‘(2) A complainant may petition the Secretary

22 for the issuance of a preliminary injunction under

23 this subsection. The Secretary shall make a deter24 mination with regard to such petition by no later

25 than the ninetieth day after the date on which the
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1 Secretary’s notice of investigation is published in the

2 Federal Register. The Secretary may extend the

3 ninety day period for an additional sixty days in a

4 case it designates as a more complicated case. The

5 Secretary shall publish in the Federal Register its

6 reasons why it designated the case as being more

7 complicated. The Secretary may require the com8 plainant to post a bond as a prerequisite to the issu9 ance of an order under this subsection.

10 ‘‘(3) The Secretary may grant preliminary relief

11 under this subsection or subsection (e) of this sec12 tion to the same extent as preliminary injunctions

13 and temporary restraining orders may be granted

14 under the Federal Rules of Civil Procedure.

15 ‘‘(e) CEASE AND DESIST ORDERS; CIVIL PENALTY

16 FOR VIOLATIONS OF ORDERS.—

17 ‘‘(1) The Secretary shall issue and cause to be

18 served on any person violating this section, or be19 lieved to be violating this section, as the case may

20 be, an order directing such person to cease and de21 sist from engaging in the unfair methods or acts in22 volved, unless after considering the effect of such

23 order upon the public health and welfare, competi24 tive conditions in the United States economy, the

25 production of like or directly competitive articles in
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1 the United States, and United States consumers, if

2 finds that such order should not be issued. The Sec3 retary may at any time, upon such notice and in

4 such manner as it deems proper, modify or revoke

5 any such order.

6 ‘‘(2) Any persons who violates an order issued

7 by the Secretary under paragraph (1) after it has

8 become final shall forfeit and pay to the United

9 States a civil penalty for each day on which the vio10 lation occurs of not more than the greater of

11 $100,000 or twice the value of the articles sold on

12 such day in violation of the order. Such penalty shall

13 accrue to the United States and may be recovered

14 for the United States in a civil action brought by

15 Commerce in the Federal District Court for the Dis16 trict of Columbia or for the district in which the vio17 lation occurs. In such actions, the United States dis18 trict courts may issue mandatory injunctions incor19 porating the relief sought by the Secretary as they

20 deem appropriate in the enforcement of such final

21 orders.

22 ‘‘(f) CEASE AND DESIST ORDER; CONDITIONS AND

23 PROCEDURES APPLICABLE.—If—

24 ‘‘(1) a complaint is filed against a person under

25 this section;
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1 ‘‘(2) the complaint and a notice of investigation

2 are served on the person;

3 ‘‘(3) the person fails to respond to the com4 plaint and notice or otherwise fails to appear to an5 swer the complaint and notice;

6 ‘‘(4) the person fails to show good cause why

7 the person should not be found in default; and

8 ‘‘(5) the complainant seeks relief limited solely

9 to that person;

10 the Secretary shall presume the facts alleged in the

11 complaint to be true and shall, upon request, issue

12 a preliminary injunction or a cease and desist order,

13 or both, limited to that person unless, after consider14 ing the effect of such exclusion or order upon the

15 public health and welfare, competitive conditions in

16 the United States economy, and the United States

17 consumers, the Secretary finds that such exclusion

18 or order should not be issued.

19 ‘‘(g) SANCTIONS FOR ABUSE OF DISCOVERY AND

20 ABUSE OF PROCESS.—The Secretary may by rule pre21 scribe sanctions for abuse of discovery and abuse of proc22 ess to the extent authorized by rule 11 and rule 37 of

23 the Federal Rules of Civil Procedure.

24 ‘‘(h) FORFEITURE.—
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1 ‘‘(1) In addition to taking action under sub2 section (e) or (f) of this section, the Secretary may

3 issue an order providing that any article sold in the

4 United States or offered for sale in violation of the

5 provisions of this section be seized and forfeited to

6 the United States if—

7 ‘‘(A) the owner, distributor, or consignee

8 of the article previously attempted to sell the

9 article in the United States; and

10 ‘‘(B) the Secretary provide the owner, dis11 tributor, or consignee of the articles written no12 tice of—

13 ‘‘(i) such order, and

14 ‘‘(ii) the seizure and forfeiture that

15 would result from any further violations of

16 the order.

17 ‘‘(2) Any forfeiture order issued by the Sec18 retary under paragraph (1) may be enforced for the

19 United States in a civil action brought by Commerce

20 in the Federal District Court for the District of Co21 lumbia or for the district in which the violation oc22 curs. In such actions, the United States district

23 courts may issue mandatory injunctions incorporat24 ing the relief sought by the Secretary as they deem

25 appropriate in the enforcement of such orders.
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1 ‘‘(i) REFERRAL TO PRESIDENT.—

2 ‘‘(1) If the Secretary determines that there is a

3 violation of this section, or that, for purposes of sub4 section (d), (e), (f), (g), or (h) of this section, there

5 is reason to believe that there is such a violation, if

6 shall—

7 ‘‘(A) published such determination in the

8 Federal Register, and

9 ‘‘(B) transmit to the President a copy of

10 such determination and the action taken under

11 subsection (d), (e), (f), (g), or (h) of this sec12 tion, with respect thereto, together with the

13 record upon which such determination is based.

14 ‘‘(2) If, before, the close of the sixty day period

15 beginning on the day after the day on which he re16 ceives a copy of such determination, the President,

17 for policy reasons, disapproves such determination

18 and notifies the Secretary of his disapproval, the, ef19 fective on the date of such notice, such determina20 tion and the action taken under subsections (d), (e),

21 (f), (g), or (h) of this section with respect thereto

22 shall have no force or effect.

23 ‘‘(3) Subject to the provisions of paragraph (2),

24 such determination shall be effective upon publica25 tion thereof in the Federal Register.
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1 ‘‘(4) The President does not disapprove such

2 determination within such sixty day period, or if he

3 notifies the Secretary before the close of such period

4 that he approves such determination, then, for pur5 poses of paragraph (3) and subsection (d) of this

6 section such determination shall become final on the

7 day after the close of such period on the day on

8 which the President notifies the Secretary of his ap9 proval, as the case may be.

10 ‘‘(j) PERIOD OF EFFECTIVENESS.—

11 ‘‘(1) Any enforcement provisions invoked, in12 cluding cease and desist orders pursuant to sub13 section (e) or (f), shall continue in effect until the

14 Secretary finds the conditions which lead to such

15 findings no longer exist.

16 ‘‘(2) If any persons or company who has pre17 viously been found by the Secretary to be in viola18 tion of this section petitions the Secretary for a de19 termination that the petitioner is no longer in viola20 tion of this section or for a modification or recission

21 of an order—

22 ‘‘(A) the burden of proof in any proceeding

23 before the Secretary regarding such petition

24 shall be on the petitioner; and
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1 ‘‘(B) relief may be granted by the Sec2 retary with respect to such petition—

3 ‘‘(i) on the basis of new evidence or

4 evidence that could not have been pre5 sented at the prior proceeding, or

6 ‘‘(ii) on grounds which would permit

7 relief from a judgment or order under the

8 Federal Rules of Civil Procedure.

9 ‘‘(k) DEFINITION OF UNITED STATES.—For pur10 poses of this section and sections 1338 and 1340 of this

11 title, the term ‘United States’ means the customs territory

12 of the United States as defined in general note 2 of the

13 Harmonized Tariff Schedule of the United States.

14 ‘‘(l) DISCLOSURE OF CONFIDENTIAL INFORMA15 TION.—

16 ‘‘(1) Information submitted to the Secretary or

17 exchanged among the parties in connection with pro18 ceedings under this section which is properly des19 ignated as confidential pursuant to rules promul20 gated by the Secretary may not be disclosed (except

21 under a protective order issued under regulation

22 which authorizes limited disclosure of such informa23 tion) to any person (other than a person described

24 in paragraph (2)) without the consent of the person

25 submitting it.
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1 ‘‘(2) Notwithstanding the prohibition contained

2 in paragraph (1), information referred to in that

3 paragraph may be disclosed to—

4 ‘‘(A) an officer or employee of the Depart5 ment of Commerce who is directly concerned

6 with carrying out the investigation in connec7 tion with which the information is submitted, or

8 ‘‘(B) an officer or employee of the United

9 States Government who is directly involved in

10 the review under subsection (i) of this section.’’.

11 SEC. 205. GENERALIZED SYSTEM OF PREFERENCES.

12 Section 502 of the Trade Act of 1974, as amended

13 (19 U.S.C. 2462), is amended by—

14 (1) redesignating subsections (c), (d), and (e)

15 as (d), (e), and (f), respectively; and

16 (2) inserting a new subsection (c) to provide—

17 ‘‘(c)(1) Effective one year after the entry into force

18 of the Uruguay Round Agreement establishing the World

19 Trade Organization, the President shall not designate any

20 country a beneficiary developing country under this sec21 tion if such country has not fully implemented parts I,

22 II, and III of the Uruguay Round Agreement on Trade23 Related Aspects of Intellectual Property Rights.
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1 ‘‘(2) If a country is a least developed country, the

2 President may designate such country a beneficiary devel3 oping country for four additional years.

4 ‘‘(3) If the President certifies to Congress that a non

5 least developed country is making timely, overall, and sig6 nificant progress toward full implementation of parts I,

7 II, and III of the Uruguay Round Agreement on Trade8 Related Aspects of Intellectual Property Rights, the Presi9 dent may designate such country a beneficiary developing

10 country for one additional year.’’;

11 (3) deleting redesignated paragraph (d)(5), and

12 renumbering redesignated paragraphs (d)(6) and

13 (d)(7) as paragraphs (d)(5) and (d)(6), respectively;

14 and

15 (4) adding a new subsection (g) to provide—

16 ‘‘(g) The President shall review annually whether

17 each country that has been designated under this section

18 as a beneficiary developing country, and has fully imple19 mented parts I, II, and III of the Uruguay Round Agree20 ment on Trade-Related Aspects of Intellectual Property

21 Rights, continues to fully implement that agreement.’’.

22 SEC. 206. MODEL INTELLECTUAL PROPERTY AGREEMENT.

23 (a) The United States Trade Representative, in con24 sultation with other appropriate United States Govern25 ment agencies and the private sector, shall maintain a
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1 Model Intellectual Property Agreement embodying provi2 sions for intellectual property protection that supplement

3 and strengthen the standards and obligations contained

4 in the Uruguay Round Agreement on Trade-Related As5 pects of Intellectual Property Rights and the North Amer6 ican Free Trade Agreement.

7 (b) In all international negotiations involving intellec8 tual property protection, the Model Intellectual Property

9 Agreement shall represent United States negotiating ob10 jectives.

11 (c) The United States Trade Representative, in con12 sultation with other appropriate United States govern13 ment agencies and the private sector, shall review periodi14 cally the Model Intellectual property Agreement to ensure

15 that it reflects new and emerging developments in intellec16 tual property protection and new and emerging tech17 nologies.

18 SEC. 207. EFFORTS BY UNITED STATES DIPLOMATS.

19 The Secretary of State shall instruct all heads of

20 United States diplomatic missions abroad to include intel21 lectual property protection as a priority objective of the

22 mission.
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1 SEC. 208. PRIVATE SECTOR INVOLVEMENT IN INTER2 NATIONAL DISPUTE SETTLEMENT.

3 The United States Trade Representative shall de4 velop and maintain a procedure to ensure the exchange

5 of information between interested United States private

6 sector representatives and the United States Trade Rep7 resentative in preparation for international intellectual

8 property-related dispute settlement proceedings to which

9 the United States is a party.

10 SEC. 209. INCENTIVES TO IMPROVE FOREIGN INTELLEC11 TUAL PROPERTY PROTECTION.

12 (a) Notwithstanding any other provision of United

13 States law, the President is authorized to undertake the

14 following actions, where appropriate, with respect to devel15 oping countries to encourage and help those countries to

16 improve their protection of intellectual property—

17 (1) provide Overseas Private Investment Cor18 poration insurance for intellectual property assets;

19 (2) require United States foreign assistance

20 programs to provide support for development of na21 tional intellectual property laws and regulations, as

22 well as for development of the infrastructure nec23 essary for protection of intellectual property;

24 (3) establish technical cooperation committees

25 on intellectual property standards within regional or-
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1 ganizations, such as the Sai Pacific Economic Co2 operation group; and

3 (4) establish, as a joint effort between the

4 United States government and the United States

5 private sector, a council to facilitate and provide in6 tellectual property-related technical assistance,

7 through the United States Agency for International

8 Development.

9 (b) Notwithstanding any other provision of United

10 States law, the President is authorized, where appropriate,

11 to require United States representatives to multilateral

12 lending institutions to seek establishment of programs

13 within these institutions to support strong intellectual

14 property protection in recipient countries that have fully

15 implemented parts I, II, and III of the Uruguay Round

16 Agreement on Trade-Related Aspects of Intellectual Prop17 erty Rights.

18 SEC. 210. INTELLECTUAL PROPERTY RIGHTS BORDER EN19 FORCEMENT MAINTENANCE.

20 (a) The prima facie requirements of articles 51–60

21 of the Uruguay Round Agreement on Trade-Related As22 pects of Intellectual Property regarding Border Measures

23 shall not unduly burden current intellectual property

24 rights owners and shall not be implemented in any way

25 to decrease the level of protection presently available.
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1 (b) The United States Trade Representative should

2 seek to negotiate through bilateral and multilateral agree3 ments, the earliest possible full implementation of the bor4 der enforcement provisions against the importations of in5 fringing goods enumerated in parts I, II, and III of the

6 Uruguay Round Agreement on Trade-Related Aspects of

7 Intellectual Property Rights, and if warranted, require of

8 foreign trading partners which chronically violate Intellec9 tual Property Rights, the establishment of an export con10 trol monitoring system. The decision to include an export

11 monitoring requirement is to be made by the United

12 States Trade Representative and should be based upon

13 evidence which includes, but is not limited to—

14 (1) United States customs Service seizure sta15 tistics demonstrating that sufficient numbers of

16 shipments were sized for Intellectual Property

17 Rights violations to indicate that an export problem

18 exists; and

19 (2) evidence provided by Intellectual Property

20 Rights owners demonstrating that the export of in21 fringing goods is a significant threat to the market22 ing, distribution or sale of authorized merchandise.
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1 TITLE III—MARKET OPENING MEASURES

2 SEC. 301. ACTION BY THE PRESIDENT TO OPEN FOREIGN

3 MARKETS.

4 (a) A new section 311 of the Trade Act of 1974 is

5 created as follows:

6 ‘‘SEC. 311. ACTION BY THE PRESIDENT TO OPEN FOREIGN

7 MARKETS.

8 ‘‘(a) The President shall have the authority to impose

9 civil penalties on foreign or domestic persons that engage

10 in restrictive business practices, including price-fixing,

11 bid-rigging, joint restraint of output, market allocation,

12 boycotts, tying arrangements, or similar activities, when

13 such practices foreclose United States exports or otherwise

14 burden or restrict United States foreign commerce.

15 ‘‘(b) The President in consultations with the United

16 States Trade Representative, may initiate an investigation

17 to determine whether action is appropriate under para18 graph (a) upon the filing of a petition by an interested

19 party or on the President’s own motion.

20 ‘‘(c) During the course of an investigation initiated

21 under paragraph (b), the President may require the post22 ing of bond or cash deposits, or take other provisional

23 measures, to secure the full cooperation of the parties to

24 the investigation.
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1 ‘‘(d) The President may negotiate settlement agree2 ments with the parties to an investigation or their govern3 ment under paragraph (b) which result in the elimi4 nation—

5 ‘‘(1) of the practice under investigation; or

6 ‘‘(2) of the restriction on United States exports

7 or other burden or restriction on United States com8 merce.

9 ‘‘(e) Civil penalties imposed by the President pursu10 ant to this section shall be levied against the United States

11 business operations of foreign or domestic persons found

12 to have engaged in restrictive business practices under this

13 section and shall be commensurate with the degree of fi14 nancial injury arising out of the foreclosure of United

15 States exports or other burden or restriction on United

16 States commerce.

17 ‘‘(f) The president shall prescribe by Executive Order

18 appropriate rules and procedures of implementing this sec19 tion.

20 ‘‘(g) The President shall negotiate bilateral and mul21 tilateral agreements to secure the elimination of restrictive

22 business practices in international commerce which have

23 the effect of foreclosing United States exports or otherwise

24 burdening or restricting United States commerce.’’.
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1 SEC. 302. AMENDMENTS TO SECTION 301.

2 (a) Section 301 of the Trade Act of 1974, as amend3 ed (19 U.S.C. 2411), is amended by—

4 (1) in paragraph (a)(1), deleting the phrase

5 ‘‘within the power of the President’’ and replacing it

6 with the phrase ‘‘notwithstanding and other provi7 sion of United States law’’;

8 (2) in paragraph (b)(2), deleting phrase ‘‘within

9 the power of the President’’ and replacing it with

10 the phrase ‘‘notwithstanding any other provision of

11 United States Law’’;

12 (3) in subsection (c),

13 (A) deleting paragraph (5),

14 (B) renumbering paragraph (3) and (4) as

15 (4) and (5), respectively,

16 (C) inserting a new paragraph (3) to pro17 vide—

18 ‘‘(3) For purposes of carrying out the provi19 sions of subsection (a) or (b), the President is au20 thorized, notwithstanding any other provision of

21 United States law, to take actions with respect to

22 any area pertinent to relations with the foreign

23 country that is the target of the action, including

24 but not limited to, trade in any goods or services.’’,
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1 (D) in renumbered paragraph (4), replac2 ing ‘‘Trade Representative’’ with ‘‘President or

3 the Trade Representative’’, and

4 (E) in paragraph (6), replacing ‘‘Trade

5 Representative’’ with ‘‘President or the Trade

6 Representative’’; and

7 (4) in subsection (d), amending clause

8 (d)(3)(B)(i)(II) to provide—

9 ‘‘(II) provision of adequate and effec10 tive protection of intellectual property

11 rights, notwithstanding that the country

12 may have fully implemented parts I, II,

13 and III of the Uruguay Round Agreement

14 on Trade-Related Intellectual Property

15 Rights or the obligations of any other bi16 lateral, regional, or multilateral agreement,

17 or’’.

18 (b) Section 302(a)(2) of the Trade Act of 1974, as

19 amended (19 U.S.C. 2412(a)(2)), is amended by adding

20 a second sentence to provide: ‘‘If the petition alleges that

21 a foreign country fails to provide adequate and effective

22 protection of intellectual property rights, alleges the ele23 ments necessary for action under section 301(a) or (b),

24 and provides information reasonably available to the peti-
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1 tioner in support of such allegations, the Trade Represent2 ative shall initiate an investigation.’’.

3 SEC. 303. SPECIALTY STEEL PRODUCT TARIFFS.

4 It is the sense of Congress that every effort be taken

5 by the United States Government to conclude the Multilat6 eral Steel Agreement prior to the effective date of the leg7 islation enacted to implement the Uruguay Round of the

8 General Agreement on Tariffs and Trade. A principal ne9 gotiating objective of the United States in the Multilateral

10 Steel Agreement, with respect to unfair trade practices,

11 shall be to obtain rules ensuring the elimination of all inju12 rious subsidies. In this regard, prior to implementation of

13 the Uruguay Round of the General Agreement on Tariffs

14 and Trade consideration shall be given by United States

15 negotiators to the potential impact the elimination of tar16 iffs on specialty steel products would have on the specialty

17 steel industry absent a successful conclusion of the MSA.

18 The term ‘‘specialty steel product’’ shall be defined as any

19 product classified under the following item numbers of the

20 Harmonized Tariff Schedules of United States: 7218–

21 7223, 7224.10.0045, 7224.90.0015–7224.90.0035,

22 7225.10–7225.20, 7225.30.10, 7225.30.50, 7225.40.10,

23 7225.40.50, 7225.50.10, 7226.10–7226.20, 7226.91.05–

24 7226.91.25, 7226.92.10–7226.92.30, 7227.10,

25 7227.90.10–7227.90.20, 7228.10, 7228.30.20–
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1 7228.30.60, 7228.50.10, 7228.60.10, 7229.10, 7304.41–

2 7304.49, and 7306.40.

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