I 

109TH CONGRESS 

2D SESSION H. R. 5043 

To amend United States trade laws to address more effectively import crises, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 29, 2006 

Mr. CARDIN (for himself and Mr. LEVIN) introduced the following bill; which 

was referred to the Committee on Ways and Means 

A BILL 

To amend United States trade laws to address more 

effectively import crises, 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 ‘‘Restoring America’s Competitiveness Act of 2006’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—IMPLEMENTING A 21ST CENTURY STRATEGIC TRADE 

POLICY FOR THE UNITED STATES 

Sec. 101. National Commission on International Economic Policy. 

Sec. 102. ITC reports on trade agreements. 


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Sec. 103. Negotiating objectives regarding trade remedy laws. 

Sec. 104. Consultations and assessments regarding trade Agreements. 

Sec. 105. Effective date. 

TITLE II—AMERICAN MANUFACTURING COMPETITIVENESS 

Sec. 201. Affirmation of negotiating objective on border taxes. 

Sec. 202. Presidential certification; application of U.S. countervailing duty law. 

TITLE III—DISPUTE SETTLEMENT 

Subtitle A—Congressional Advisory Commission on WTO Dispute Settlement 

Sec. 301. Congressional findings and purpose. 

Sec. 302. Establishment of Commission. 

Sec. 303. Duties of the Commission. 

Sec. 304. Powers of the Commission. 

Sec. 305. Definitions. 

Sec. 306. Effective date. 

Subtitle B—Participation in WTO Panel Proceedings 

Sec. 311. Participation in WTO panel proceedings. 

Sec. 312. Definitions. 

Subtitle C—Trade Dispute Functions 

Sec. 321. Responsibility of USTR. 

TITLE IV—SUBSIDIES 

Sec. 401. Application of countervailing duties to nonmarket economy countries. 

Sec. 402. Clarification to include exchange-rate manipulation as countervailable 

subsidy under title VII of the Tariff Act of 1930. 

Sec. 403. ITC study of subsidies by People’s Republic of China. 

TITLE V—STRENGTHENING U.S. UNFAIR TRADE LAWS 

Subtitle A—Determination of Dumping 

Sec. 501. Polling of industry support in antidumping cases. 

Sec. 502. New shipper bonding privilege. 

Sec. 503. Prevention of circumvention. 

Sec. 504. Absorption of antidumping duties. 

Sec. 505. Absorption of antidumping duties in sunset review. 

Sec. 506. Export price and constructed export price. 

Sec. 507. Nonmarket economy methodology. 

Sec. 508. Adjustment of constructed values for imputed credit costs. 

Sec. 509. Determinations on the basis of facts available. 

Subtitle B—Determination of Subsidization 

Sec. 521. Countervailable subsidy. 

Subtitle C—Determination of Material Injury 

Sec. 531. Period to determine material injury. 

Sec. 532. Captive production. 

Sec. 533. Price. 


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Sec. 534. Vulnerability of industry; cumulation. 

Sec. 535. Causal relationship between imports and injury. 

Sec. 536. Perishable agricultural products. 

Sec. 537. Antidumping cases against the European Union. 

Sec. 538. Verification by the commission. 

Subtitle D—General Provisions 

Sec. 541. Determination of cash deposit rates. 

Sec. 542. Exchange of information between and among agencies. 

Sec. 543. Liquidation of certain entries. 

Sec. 544. Assistant Attorney General for Trade Law Enforcement. 

Subtitle E—Effective Date 

Sec. 551. Effective date. 

TITLE VI—SAFEGUARD AMENDMENTS 

Subtitle A—Safeguards in General 

Sec. 601. Amendments to chapter 1 of title II of the Trade Act of 1974. 

Subtitle B—Fair Trade With China 

Sec. 611. Clarification of standard for Presidential action on ITC finding of 

market disruption. 

Subtitle C—Report on Doha Round 

Sec. 621. Report. 

TITLE VII—MISCELLANEOUS PROVISIONS 

Sec. 701. Construction. 

Sec. 702. Application to goods from Canada and Mexico. 

1 TITLE I—IMPLEMENTING A 21st 

2 CENTURY STRATEGIC TRADE 

3 POLICY FOR THE UNITED 

4 STATES 

5 SEC. 101. NATIONAL COMMISSION ON INTERNATIONAL 

6 ECONOMIC POLICY. 

7 (a) ESTABLISHMENT.—There is established a com8 mission to be known as the ‘‘National Commission on 

9 International Economic Policy’’ (in this section referred 

10 to as the ‘‘Commission’’). 


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1 (b) RESPONSIBILITIES.—The Commission shall pre2 pare and submit to the Congress, not later than 12 

3 months after the members of the Commission are first ap4 pointed, a report containing the Commission’s rec5 ommendations for a comprehensive trade negotiating 

6 strategy for the United States. In the report, the Commis7 sion shall address the following: 

8 (1) Burgeoning United States trade deficits and 

9 their consequences for the United States and global 

10 economies. 

11 (2) Historically unprecedented levels of foreign 

12 holdings of United States debt arising out of the 

13 deficits, and the consequences of those levels for the 

14 United States and global economies. 

15 (3) New evidence and reports that increased 

16 trade alone does not increase standards of living in 

17 the United States or around the world. 

18 (4) The causes and impact of badly stalled mul19 tilateral trade negotiations and options for moving 

20 the negotiations to closure speedily. 

21 (5) Disturbing data that most of the world’s 

22 poorest countries account for a smaller share of 

23 world trade in 2006 than they did a generation ago. 

24 (6) Challenges and new responsibilities facing 

25 more advanced developing countries. 


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1 (7) The impact of the People’s Republic of 

2 China on global trade flows. 

3 (8) The impact of unfair trade practices by the 

4 People’s Republic of China, including currency ma5 nipulation and subsidies. 

6 (9) The adequacy of existing international trade 

7 rules to address resurgent government industrial 

8 policies aborad, such as in the People’s Republic of 

9 China, the Russian Federation, and the European 

10 Union, and in sectors such as large commercial air11 craft and commercial aircraft engines. 

12 (10) The decline of the United States manufac13 turing sector in general and employment in the 

14 United States manufacturing sector in particular. 

15 (11) Outsourcing and temporary entry issues in 

16 the services sector. 

17 (c) MEMBERSHIP.— 

18 (1) APPOINTMENT.—The Commission shall be 

19 composed of 9 members, who shall be appointed as 

20 follows: 

21 (A) 2 members shall be appointed by the 

22 Speaker of the House of Representatives. 

23 (B) 2 members shall be appointed by the 

24 minority leader of the House of Representa25 tives. 


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1 (C) 2 members shall be appointed by the 

2 majority leader of the Senate. 

3 (D) 2 members shall be appointed by the 

4 minority leader of the Senate. 

5 (E) 1 member, who shall be the chair6 person of the Commission, shall be appointed 

7 by the other 8 members of the Commission. 

8 (2) QUALIFICATIONS.—Members of the Com9 mission shall be appointed from among persons who, 

10 because of their knowledge and experience, are lead11 ers in the field of international trade and finance, 

12 including leaders in the fields of labor, business, 

13 nongovernmental organizations, and academia. Mem14 bers shall be appointed without regard to political 

15 affiliation and solely on the basis of their fitness to 

16 perform the duties of the Commission. 

17 (3) DATE.—The appointments of the initial 

18 members of the Commission shall be made not later 

19 than 30 days after the date of the enactment of this 

20 Act. 

21 (4) PERIOD OF APPOINTMENT; VACANCIES.— 

22 (A) IN GENERAL.—Members of the Com23 mission shall each be appointed for the life of 

24 the Commission. 


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1 (B) VACANCIES.—Any vacancy on the 

2 Commission shall not affect its powers, but 

3 shall be filled in the same manner as the origi4 nal appointment was made and shall be subject 

5 to the same conditions as the original appoint6 ment. 

7 (d) INITIAL MEETING.—Not later than 30 days after 

8 the date on which all members of the Commission have 

9 been appointed, the Commission shall hold its first meet10 ing. 

11 (e) MEETINGS.—The Commission shall meet at the 

12 call of the Chairperson. 

13 (f) QUORUM.—A majority of the members of the 

14 Commission shall constitute a quorum, but a lesser num15 ber of members may hold hearings. 

16 (g) FUNDING.—Members of the Commission shall be 

17 allowed travel expenses, including per diem in lieu of sub18 sistence at rates authorized for employees of agencies 

19 under subchapter I of chapter 57 of title 5, United States 

20 Code, while away from their homes or regular places of 

21 business in the performance of services for the Commis22 sion. 

23 (h) INFORMATION FROM FEDERAL AGENCIES AND

24 DEPARTMENTS.— 


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1 (1) IN GENERAL.—The Commission may secure 

2 directly from any Federal department or agency 

3 such information as the Commission considers nec4 essary to carry out the provisions of this section. 

5 Upon the request of the chairperson of the Commis6 sion, the head of such department or agency shall 

7 furnish the information requested to the Commission 

8 in a timely manner. 

9 (2) CONFIDENTIALITY.—The Commission shall 

10 protect from disclosure any document or information 

11 submitted to it by a department or agency of the 

12 United States which the agency or department re13 quests be kept confidential. The Commission shall 

14 not be considered to be an agency for purposes of 

15 section 552 of title 5, United States Code. 

16 (i) HEARINGS.—The Commission may hold such 

17 hearings as the Commission considers necessary to carry 

18 out its functions. 

19 (j) TERMINATION OF COMMISSION.—The Commis20 sion shall terminate 30 days after the date on which it 

21 submits its report to the Congress under subsection (b). 

22 (k) AUTHORIZATION OF APPROPRIATIONS.—There 

23 are authorized to be appropriated such sums as may be 

24 necessary to carry out this section. 


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1 SEC. 102. ITC REPORTS ON TRADE AGREEMENTS. 

2 Section 2104 of the Bipartisan Trade Promotion Au3 thority Act of 2002 (19 U.S.C. 3804) is amended— 

4 (1) by redesignating subsection (f) as sub5 section (g); and 

6 (2) by inserting after subsection (e) the fol7 lowing new subsection: 

8 ‘‘(f) REPORTS BY ITC.— 

9 ‘‘(1) PRIOR TO NEGOTIATIONS.—At least 120 

10 days before initiating negotiations with respect to 

11 any agreement that is subject to the provisions of 

12 section 2103(b), the President shall notify the Inter13 national Trade Commission of the proposed negotia14 tions. The Commission shall, by not later than the 

15 end of that 120-day period, prepare and submit to 

16 the Congress a comprehensive report on the effects 

17 the proposed agreement may have on industries in 

18 the United States, both in terms of effects of in19 creased imports into the United States and benefits 

20 of potential increases in exports of products and 

21 services of the United States to foreign countries 

22 that would be parties to the agreement. 

23 ‘‘(2) SUBSEQUENT REPORTS.—The Inter24 national Trade Commission shall prepare and sub25 mit to the Congress reports on the effects of any 

26 agreement subject to the provisions of section 


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1 2103(b) that is entered into pursuant to the negotia2 tions on which a report is submitted under para3 graph (1), both in terms of effects of increased im4 ports into the United States and benefits of in5 creased exports of products and services of the 

6 United States to foreign countries that are parties 

7 to the agreement. Reports under this paragraph 

8 shall be submitted to the Congress not later than 1 

9 year, 3 years, 5 years, and 10 years after the agree10 ment is entered into.’’. 

11 SEC. 103. NEGOTIATING OBJECTIVES REGARDING TRADE 

12 REMEDY LAWS. 

13 Section 2102(b)(14) of the Trade Act of 2002 (19 

14 U.S.C. 3801(b)) is amended by adding at the end the fol15 lowing flush sentence: 

16 ‘‘In order to carry out subparagraph (A), the United 

17 States Trade Representative should not agree to any pro18 posal, whether in the context of a trade agreement entered 

19 into under the auspices of the World Trade Organization, 

20 or a free trade agreement with another country or group 

21 of countries, that would, either individually or in combina22 tion with other proposals, weaken existing United States 

23 trade remedy laws contained in title VII of the Tariff Act 

24 of 1930 or chapter 1 of title II of the Trade Act of 1974, 

25 including any proposal that would make obtaining relief 


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1 under those provisions more difficult, uncertain, or costly 

2 for domestic industries to achieve or maintain over time.’’. 

3 SEC. 104. CONSULTATIONS AND ASSESSMENTS REGARDING 

4 TRADE AGREEMENTS. 

5 Section 2104(d)(3)(A) of the Trade Act of 2002 (19 

6 U.S.C. 3804(d)(3)(A)) is amended— 

7 (1) in clause (i), by striking ‘‘and’’ after the 

8 semicolon; 

9 (2) in clause (ii), by striking the period and in10 serting a semicolon; and 

11 (3) by adding after clause (ii) the following: 

12 ‘‘(iii) with respect to each specific pro13 posal that could require amendments to 

14 title VII of the Tariff Act of 1930 or chap15 ter 1 of title II of the Trade Act of 1974, 

16 whether and to what extent the proposal 

17 would, either individually or in combination 

18 with other proposals, make obtaining relief 

19 under these provisions more difficult, un20 certain, or costly for domestic industries to 

21 achieve or maintain over time; and 

22 ‘‘(iv) for each specific proposal that 

23 the President reports would not (whether 

24 individually or in combination with other 

25 proposals) make obtaining relief under title 


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1 VII of the Tariff Act of 1930 or chapter 

2 1 of title II of the Trade Act of 1974 more 

3 difficult, uncertain, or costly for domestic 

4 industries to achieve or maintain over 

5 time, a detailed explanation providing the 

6 basis for this conclusion.’’. 

7 SEC. 105. EFFECTIVE DATE. 

8 The amendments made by this title take effect on the 

9 date of the enactment of this Act. 

10 TITLE II—AMERICAN MANUFAC11 TURING COMPETITIVENESS 

12 SEC. 201. AFFIRMATION OF NEGOTIATING OBJECTIVE ON 

13 BORDER TAXES. 

14 The Congress reaffirms the negotiating objective re15 lating to border taxes set forth in section 2102(b)(15) of 

16 the Trade Act of 2002 (19 U.S.C. 3802(b)(15). 

17 SEC. 202. PRESIDENTIAL CERTIFICATION; APPLICATION OF 

18 U.S. COUNTERVAILING DUTY LAW. 

19 (a) CERTIFICATION BY THE PRESIDENT.—If by Jan20 uary 1, 2008, the President does not certify to the Con21 gress that, under the Agreement on Subsidies and Coun22 tervailing Measures or subsequent agreement of the World 

23 Trade Organization, the full or partial exemption, remis24 sion, or deferral specifically related to exports of direct 

25 taxes is treated in the same manner as the full or partial 


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1 exemption, remission, or deferral specifically related to ex2 ports of indirect taxes, then as of January 1, 2008, the 

3 Secretary of Commerce, in any investigation conducted 

4 under subchapter A of title VII of the Tariff Act of 1930 

5 to determine whether a countervailable subsidy is being 

6 provided with respect to a product of a country that pro7 vides the full or partial exemption, remission, or deferral 

8 specifically related to exports of indirect taxes on products 

9 exported from that country, shall treat as a 

10 countervailable subsidy the full or partial exemption, re11 mission, or deferral specifically related to exports of indi12 rect taxes paid on that product. 

13 (b) DEFINITIONS.—In this section: 

14 (1) AGREEMENT ON SUBSIDIES AND COUNTER15 VAILING MEASURES.—The term ‘‘Agreement on Sub16 sidies and Countervailing Measures’’ means the 

17 agreement referred to in section 101(d)(12) of the 

18 Uruguay Round Agreements Act (19 U.S.C. 

19 3511(d)(12)). 

20 (2) DIRECT TAXES.—The term ‘‘direct taxes’’ 

21 means taxes on wages, profits, interest, rents, royal22 ties, and all other forms of income, and taxes on the 

23 ownership of real property. 


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1 (3) IMPORT CHARGES.—The term ‘‘import 

2 charges’’ means tariffs, duties, and other fiscal 

3 charges that are levied on imports. 

4 (4) INDIRECT TAXES.—The term ‘‘indirect 

5 taxes’’ means sales, excise, turnover, value added, 

6 franchise, stamp, transfer, inventory, and equipment 

7 taxes, border taxes, and all taxes other than direct 

8 taxes and import charges. 

9 (5) FULL OR PARTIAL EXEMPTION, REMISSION, 

10 OR DEFERRAL SPECIFICALLY RELATED TO EXPORTS

11 OF DIRECT TAXES.—The term ‘‘full or partial ex12 emption, remission, or deferral specifically related to 

13 exports of direct taxes’’ means direct taxes that are 

14 paid to the United States Government by a business 

15 concern and are fully or partially exempted, remit16 ted, or deferred by the Government by reason of the 

17 export by that business concern of its products from 

18 the United States. 

19 (6) FULL OR PARTIAL EXEMPTION, REMISSION, 

20 OR DEFERRAL SPECIFICALLY RELATED TO EXPORTS

21 OF INDIRECT TAXES.—The term ‘‘full or partial ex22 emption, remission, or deferral specifically related to 

23 exports of indirect taxes’’ means indirect taxes that 

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1 mitted, or deferred by that government by reason of 

2 the export by that business concern of its products 

3 from that country. 

4 (c) EFFECTIVE PERIOD.— 

5 (1) IN GENERAL.—Subsection (a) shall cease to 

6 be effective on the date on which the President 

7 makes a certification described in subsection (a). 

8 (2) TERMINATION OF CVD ORDERS.—Any coun9 tervailing duty order that is issued pursuant to an 

10 investigation conducted under subsection (a) and is 

11 still in effect on the date described in paragraph (1) 

12 shall terminate on that date. 

13 TITLE III—DISPUTE 

14 SETTLEMENT 

15 Subtitle A—Congressional Advisory 

16 Commission on WTO Dispute 

17 Settlement 

18 SEC. 301. CONGRESSIONAL FINDINGS AND PURPOSE. 

19 (a) FINDINGS.—The Congress finds the following: 

20 (1) The United States joined the World Trade 

21 Organization as an original member with the goal of 

22 creating an improved global trading system and pro23 viding expanded economic opportunities for United 

24 States workers, farmers, and businesses. 


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1 (2) The dispute settlement rules of the WTO 

2 were created to enhance the likelihood that govern3 ments will observe their WTO obligations. 

4 (3) These dispute settlement rules help ensure 

5 that the United States can reap the full benefits of 

6 its participation in the WTO. 

7 (4) Successful operation of the WTO dispute 

8 settlement system was critical to congressional ap9 proval of the Uruguay Round Agreements and is 

10 critical to continued support by the United States 

11 for the WTO. In particular, it is imperative that dis12 pute settlement panels and the Appellate Body— 

13 (A) operate with fairness and in an impar14 tial manner; 

15 (B) strictly observe the terms of reference 

16 and any applicable standard of review set forth 

17 in the Uruguay Round Agreements; and 

18 (C) not add to the obligations, or diminish 

19 the rights, of WTO members under the Uru20 guay Round Agreements in violation of Articles 

21 3.2 and 19.2 of the Dispute Settlement Under22 standing. 

23 (5) An increasing number of reports by dispute 

24 settlement panels and the Appellate Body have 

25 raised serious concerns within the Congress about 


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1 the ability of the WTO dispute settlement system to 

2 operate in accordance with paragraph (4). 

3 (6) In particular, several reports of dispute set4 tlement panels and the Appellate Body have added 

5 to the obligations and diminished the rights of WTO 

6 members, particularly under the Agreement on Im7 plementation of Article VI of the General Agreement 

8 on Tariffs and Trade 1994, the Agreement on Sub9 sidies and Countervailing Measures, and the Agree10 ment on Safeguards. 

11 (7) In order to come into compliance with re12 ports of dispute settlement panels and the Appellate 

13 Body that have been adopted by the Dispute Settle14 ment Body, the Congress may need to amend or re15 peal statutes of the United States. In such cases, the 

16 Congress must have a high degree of confidence that 

17 the reports are in accordance with paragraph (4). 

18 (8) The Congress needs impartial, objective, 

19 and juridical advice to determine the appropriate re20 sponse to reports of dispute settlement panels and 

21 the Appellate Body. 

22 (9) The United States remains committed to 

23 the multilateral, rules-based trading system. 

24 (b) PURPOSE.—It is the purpose of this subtitle to 

25 provide for the establishment of the Congressional AdviVerDate Aug 31 2005 21:30 Apr 11, 2006 Jkt 049196 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H5043.IH H5043

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1 sory Commission on WTO Dispute Settlement to provide 

2 objective and impartial advice to the Congress on the oper3 ation of the dispute settlement system of the World Trade 

4 Organization. 

5 SEC. 302. ESTABLISHMENT OF COMMISSION. 

6 (a) ESTABLISHMENT.—There is established a com7 mission to be known as the Congressional Advisory Com8 mission on WTO Dispute Settlement (in this subtitle re9 ferred to as the ‘‘Commission’’). 

10 (b) MEMBERSHIP.— 

11 (1) COMPOSITION.—The Commission shall be 

12 composed of 5 members, all of whom shall be judges 

13 or former judges of the Federal judicial circuits and 

14 shall be appointed by the Speaker of the House of 

15 Representatives and the President pro tempore of 

16 the Senate after considering the recommendations of 

17 the Chairman and ranking member of the Com18 mittee on Finance of the Senate and the Chairman 

19 and ranking member of the Committee on Ways and 

20 Means of the House of Representatives. Commis21 sioners shall be chosen without regard to political af22 filiation and solely on the basis of each Commis23 sioner’s fitness to perform the duties of a Commis24 sioner. 


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1 (2) DATE.—The appointments of the initial 

2 members of the Commission shall be made not later 

3 than 90 days after the date of the enactment of this 

4 Act. 

5 (c) PERIOD OF APPOINTMENT; VACANCIES.— 

6 (1) IN GENERAL.—Members of the Commission 

7 shall each be appointed for a term of 5 years, except 

8 that of the members first appointed, 3 members 

9 shall be appointed for terms of 3 years. 

10 (2) VACANCIES.— 

11 (A) IN GENERAL.—Any vacancy on the 

12 Commission shall not affect its powers, but 

13 shall be filled in the same manner as the origi14 nal appointment was made and shall be subject 

15 to the same conditions as the original appoint16 ment. 

17 (B) UNEXPIRED TERM.—An individual 

18 chosen to fill a vacancy shall be appointed for 

19 the unexpired term of the member replaced. 

20 (d) INITIAL MEETING.—Not later than 30 days after 

21 the date on which all members of the Commission have 

22 been appointed, the Commission shall hold its first meet23 ing. 

24 (e) MEETINGS.—The Commission shall meet at the 

25 call of the Chairperson. 


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1 (f) QUORUM.—A majority of the members of the 

2 Commission shall constitute a quorum, but a lesser num3 ber of members may hold hearings. 

4 (g) CHAIRPERSON AND VICE CHAIRPERSON.—The 

5 Commission shall select a Chairperson and Vice Chair6 person from among its members. 

7 (h) FUNDING.—Members of the Commission shall be 

8 allowed travel expenses, including per diem in lieu of sub9 sistence at rates authorized for employees of agencies 

10 under subchapter I of chapter 57 of title 5, United States 

11 Code, while away from their homes or regular places of 

12 business in the performance of services for the Commis13 sion. 

14 SEC. 303. DUTIES OF THE COMMISSION. 

15 (a) ADVISING CONGRESS ON THE OPERATION OF

16 THE WTO DISPUTE SETTLEMENT SYSTEM.— 

17 (1) IN GENERAL.—The Commission shall re18 view— 

19 (A) all adverse reports of dispute settle20 ment panels and the Appellate Body which 

21 are— 

22 (i) adopted by the Dispute Settlement 

23 Body; and 


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1 (ii) the result of a proceeding initiated 

2 against the United States by a WTO mem3 ber; and 

4 (B) upon the request of the Committee on 

5 Ways and Means of the House of Representa6 tives or the Committee on Finance of the Sen7 ate— 

8 (i) any adverse report of a dispute 

9 settlement panel or the Appellate Body— 

10 (I) which is adopted by the Dis11 pute Settlement Body; and 

12 (II) in which the United States is 

13 a complaining party; or 

14 (ii) any other finding which is con15 tained in a report of a dispute settlement 

16 panel or the Appellate Body that is adopt17 ed by the Dispute Settlement Body. 

18 (2) SCOPE OF REVIEW.—The Commission shall 

19 advise the Congress in connection with each adverse 

20 finding or other finding under paragraph (1) (B) 

21 only whether— 

22 (A) the dispute settlement panel or the Ap23 pellate Body, as the case may be— 

24 (i) exceeded its authority or its terms 

25 of reference; 


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1 (ii) added to the obligations, or dimin2 ished the rights, of the United States 

3 under the Uruguay Round Agreement 

4 which is the subject of the finding; 

5 (iii) acted arbitrarily or capriciously, 

6 engaged in misconduct, or demonstrably 

7 departed from the procedures specified for 

8 panels and the Appellate Body in the ap9 plicable Uruguay Round Agreement; and 

10 (iv) deviated from the applicable 

11 standard of review, including in anti12 dumping, countervailing duty, and other 

13 unfair trade remedy cases, the standard of 

14 review set forth in Article 17.6 of the 

15 Agreement on Implementation of Article 

16 VI of the General Agreement on Tariffs 

17 and Trade 1994; and 

18 (B) the finding is consistent with the origi19 nal understanding by the United States of the 

20 Uruguay Round Agreement that is the subject 

21 of the finding as explained in the statement of 

22 administrative action approved under section 

23 101(a) of the Uruguay Round Agreements Act 

24 (19 U.S.C. 3511(a)). 


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1 (3) NO DEFERENCE.—Applying the standards 

2 set forth in paragraph (2) requires that the Commis3 sion not accord deference to findings of law made by 

4 the dispute settlement panel or the Appellate Body, 

5 as the case may be. 

6 (b) DETERMINATION; REPORT.— 

7 (1) DETERMINATION.— 

8 (A) IN GENERAL.—Not later than 150 

9 days after the date on which the Commission 

10 receives notice of a report or request under sec11 tion 304(b), the Commission shall make a writ12 ten determination with respect to the matters 

13 described in paragraph (2) of subsection (a), in14 cluding a full analysis of the basis for its deter15 mination. A vote by a majority of the members 

16 of the Commission shall constitute a determina17 tion of the Commission, although the members 

18 need not agree on the basis for their vote. 

19 (B) DISSENTING OR CONCURRING OPIN20 IONS.—Any member of the Commission who 

21 disagrees with a determination of the Commis22 sion or who concurs in such a determination on 

23 a basis different from that of the Commission 

24 or other members of the Commission, may write 


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1 an opinion expressing such disagreement or 

2 concurrence, as the case may be. 

3 (2) REPORT.—The Commission shall promptly 

4 report the determinations described in paragraph 

5 (1)(A) to the Committee on Ways and Means of the 

6 House of Representatives and the Committee on Fi7 nance of the Senate. The Commission shall include 

8 with the report any opinions written under para9 graph (1)(B) with respect to the determination. 

10 (c) AVAILABILITY TO THE PUBLIC.—Each report of 

11 the Commission under subsection (b)(2), together with the 

12 opinions included with the report, shall be made available 

13 to the public. 

14 SEC. 304. POWERS OF THE COMMISSION. 

15 (a) HEARINGS.—The Commission may hold a public 

16 hearing to solicit views concerning a report of a dispute 

17 settlement panel or the Appellate Body described in sec18 tion 303(a)(1), if the Commission considers such hearing 

19 to be necessary to carry out the purpose of this subtitle. 

20 The Commission shall provide reasonable notice of a hear21 ing held pursuant to this subsection. 

22 (b) INFORMATION FROM INTERESTED PARTIES AND

23 FEDERAL AGENCIES.— 

24 (1) NOTICE TO COMMISSION.— 


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1 (A) UNDER SECTION 303(a)(1)(A).—The 

2 Trade Representative shall advise the Commis3 sion not later than 5 business days after the 

4 date the Dispute Settlement Body adopts a re5 port of a panel or the Appellate Body that is 

6 to be reviewed by the Commission under section 

7 303(a)(1)(A). 

8 (B) UNDER SECTION 303(a)(1)(B).—The 

9 Committee on Ways and Means or the Com10 mittee on Finance, as the case may be, may 

11 make and notify the Commission of a request 

12 under section 303(a)(1)(B) not later than 1 

13 year after the Dispute Settlement Body adopts 

14 the report that is the subject of the request. 

15 (C) REPORTS ADOPTED PRIOR TO AP16 POINTMENT OF COMMISSION.—With respect to 

17 any report to which section 303(a)(1)(B) ap18 plies and that is adopted before the date on 

19 which the first members of the Commission are 

20 appointed under section 302(b)(2), the Com21 mittee on Ways and Means or the Committee 

22 on Finance, as the case may be, may make and 

23 notify the Commission of a request under sec24 tion 303(a)(1)(B) with respect to that report 

25 not later than 1 year after the date on which 


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1 the first members of the Commission are ap2 pointed under section 302(b)(2). 

3 (2) SUBMISSIONS AND REQUESTS FOR INFOR4 MATION.— 

5 (A) IN GENERAL.—The Commission shall 

6 promptly publish in the Federal Register notice 

7 of the notice received under paragraph (1) from 

8 the Trade Representative, the Committee on 

9 Ways and Means, or the Committee on Fi10 nance, as the case may be, along with notice of 

11 an opportunity for interested parties to submit 

12 written comments to the Commission. The 

13 Commission shall make comments submitted 

14 pursuant to the preceding sentence available to 

15 the public. 

16 (B) INFORMATION FROM FEDERAL AGEN17 CIES AND DEPARTMENTS.—The Commission 

18 may also secure directly from any Federal de19 partment or agency such information as the 

20 Commission considers necessary to carry out 

21 the provisions of this subtitle. Upon the request 

22 of the chairperson of the Commission, the head 

23 of such department or agency shall furnish the 

24 information requested to the Commission in a 

25 timely manner. 


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1 (3) ACCESS TO PANEL AND APPELLATE BODY

2 DOCUMENTS.— 

3 (A) IN GENERAL.—The Trade Representa4 tive shall make available to the Commission all 

5 submissions and relevant documents relating to 

6 a report of a panel or the Appellate Body de7 scribed in section 303(a)(1), including any in8 formation contained in such submissions identi9 fied by the provider of the information as pro10 prietary information or information designated 

11 as confidential by a foreign government. 

12 (B) PUBLIC ACCESS.—Any document 

13 which the Trade Representative submits to the 

14 Commission shall be available to the public, ex15 cept information which is identified as propri16 etary or confidential or the disclosure of which 

17 would otherwise violate the rules of the WTO. 

18 (c) ASSISTANCE FROM FEDERAL AGENCIES; CON19 FIDENTIALITY.— 

20 (1) ADMINISTRATIVE ASSISTANCE.—Any agency 

21 or department of the United States that is des22 ignated by the President shall provide administrative 

23 services, funds, facilities, staff, or other support 

24 services to the Commission to assist the Commission 

25 with the performance of the Commission’s functions. 


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1 (2) CONFIDENTIALITY.—The Commission shall 

2 protect from disclosure any document or information 

3 submitted to it by a department or agency of the 

4 United States which the agency or department re5 quests be kept confidential. The Commission shall 

6 not be considered to be an agency for purposes of 

7 section 552 of title 5, United States Code. 

8 SEC. 305. DEFINITIONS. 

9 In this subtitle: 

10 (1) ADVERSE FINDING.—The term ‘‘adverse 

11 finding’’ means— 

12 (A) in a proceeding of a panel or the Ap13 pellate Body that is initiated against the United 

14 States, a finding by the panel or the Appellate 

15 Body that any law or regulation of, or applica16 tion thereof by, the United States, or any State, 

17 is inconsistent with the obligations of the 

18 United States under a Uruguay Round Agree19 ment (or nullifies or impairs benefits accruing 

20 to a WTO member under such an Agreement); 

21 or 

22 (B) in a proceeding of a panel or the Ap23 pellate Body in which the United States is a 

24 complaining party, any finding by the panel or 

25 the Appellate Body that a measure of the party 


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1 complained against is not inconsistent with that 

2 party’s obligations under a Uruguay Round 

3 Agreement (or does not nullify or impair bene4 fits accruing to the United States under such 

5 an Agreement). 

6 (2) APPELLATE BODY.—The term ‘‘Appellate 

7 Body’’ means the Appellate Body established by the 

8 Dispute Settlement Body pursuant to Article 17.1 of 

9 the Dispute Settlement Understanding. 

10 (3) DISPUTE SETTLEMENT BODY.—The term 

11 ‘‘Dispute Settlement Body’’ means the Dispute Set12 tlement Body established pursuant to the Dispute 

13 Settlement Understanding. 

14 (4) DISPUTE SETTLEMENT PANEL; PANEL.— 

15 The terms ‘‘dispute settlement panel’’ and ‘‘panel’’ 

16 mean a panel established pursuant to Article 6 of 

17 the Dispute Settlement Understanding. 

18 (5) DISPUTE SETTLEMENT UNDERSTANDING.— 

19 The term ‘‘Dispute Settlement Understanding’’ 

20 means the Understanding on Rules and Procedures 

21 Governing the Settlement of Disputes referred to in 

22 section 101(d)(16) of the Uruguay Round Agree23 ments Act (19 U.S.C. 3511(d)(16)). 


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1 (6) TERMS OF REFERENCE.—The term ‘‘terms 

2 of reference’’ has the meaning given that term in the 

3 Dispute Settlement Understanding. 

4 (7) TRADE REPRESENTATIVE.—The term 

5 ‘‘Trade Representative’’ means the United States 

6 Trade Representative. 

7 (8) URUGUAY ROUND AGREEMENT.—The term 

8 ‘‘Uruguay Round Agreement’’ means any of the 

9 Agreements described in section 101(d) of the Uru10 guay Round Agreements Act. 

11 (9) WORLD TRADE ORGANIZATION; WTO.—The 

12 terms ‘‘World Trade Organization’’ and ‘‘WTO’’ 

13 mean the organization established pursuant to the 

14 WTO Agreement. 

15 (10) WTO AGREEMENT.—The term ‘‘WTO 

16 Agreement’’ means the Agreement Establishing the 

17 World Trade Organization entered into on April 15, 

18 1994. 

19 (11) WTO MEMBER.—The term ‘‘WTO mem20 ber’’ has the meaning given that term in section 

21 2(10) of the Uruguay Round Agreements Act (19 

22 U.S.C. 3501(10)). 

23 SEC. 306. EFFECTIVE DATE. 

24 This subtitle shall take effect on the date of the en25 actment of this Act. 


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1 Subtitle B—Participation in WTO 

2 Panel Proceedings 

3 SEC. 311. PARTICIPATION IN WTO PANEL PROCEEDINGS. 

4 (a) IN GENERAL.—If the United States Trade Rep5 resentative, in proceedings before a dispute settlement 

6 panel or the Appellate Body of the WTO, seeks— 

7 (1) to enforce United States rights under a 

8 multilateral trade agreement, or 

9 (2) to defend a challenged action or determina10 tion of the United States Government, 

11 a private United States person that is supportive of the 

12 United States Government’s position before the panel or 

13 Appellate Body and that has a direct economic interest 

14 in the panel’s or Appellate Body’s resolution of the mat15 ters in dispute shall be permitted to participate in con16 sultations and panel proceedings. The Trade Representa17 tive shall issue regulations, consistent with subsections (b) 

18 and (c), ensuring full and effective participation by any 

19 such private person. 

20 (b) ACCESS TO INFORMATION.—The United States 

21 Trade Representative shall make available to persons de22 scribed in subsection (a) all information presented to or 

23 otherwise obtained by the Trade Representative in connec24 tion with a WTO dispute settlement proceeding. The 

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1 ulations implementing a protective order system to protect 

2 information designated by the submitting member as con3 fidential. 

4 (c) PARTICIPATION IN PANEL PROCESS.—Upon re5 quest from a person described in subsection (a), the 

6 United States Trade Representative shall— 

7 (1) consult in advance with such person regard8 ing the content of written submissions from the 

9 United States to the WTO panel concerned or to the 

10 other member countries involved; 

11 (2) include, if appropriate, such person or its 

12 appropriate representative as an advisory member of 

13 the delegation in sessions of the dispute settlement 

14 panel; 

15 (3) allow such special delegation member, if 

16 such member would bring special knowledge to the 

17 proceeding, to appear before the panel, directly or 

18 through counsel, under the supervision of responsible 

19 United States Government officials; and 

20 (4) in proceedings involving confidential infor21 mation, allow the appearance of such person only 

22 through counsel as a member of the special delega23 tion. 

24 SEC. 312. DEFINITIONS. 

25 In this subtitle: 


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1 (1) APPELLATE BODY.—The term ‘‘Appellate 

2 Body’’ means the Appellate Body established under 

3 Article 17.1 of the Dispute Settlement Under4 standing. 

5 (2) DISPUTE SETTLEMENT PANEL; PANEL.— 

6 The terms ‘‘dispute settlement panel’’ and ‘‘panel’’ 

7 mean a panel established pursuant to Article 6 of 

8 the Dispute Settlement Understanding. 

9 (3) DISPUTE SETTLEMENT UNDERSTANDING.— 

10 The term ‘‘Dispute Settlement Understanding’’ 

11 means the Understanding on Rules and Procedures 

12 Governing the Settlement of Disputes referred to in 

13 section 101(d)(16) of the Uruguay Round Agree14 ments Act. 

15 (4) UNITED STATES PERSON.—The term 

16 ‘‘United States person’’ means— 

17 (A) a United States citizen or an alien ad18 mitted for permanent residence into the United 

19 States; and 

20 (B) a corporation, partnership, or other 

21 legal entity organized under the laws of the 

22 United States or of any State, the District of 

23 Columbia, or any commonwealth, territory, or 

24 possession of the United States. 


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1 (5) WTO.—The term ‘‘WTO’’ means the orga2 nization established pursuant to the WTO Agree3 ment. 

4 (6) WTO AGREEMENT.—The term ‘‘WTO 

5 Agreement’’ means the Agreement Establishing the 

6 World Trade Organization entered into on April 15, 

7 1994. 

8 Subtitle C—Trade Dispute 

9 Functions 

10 SEC. 321. RESPONSIBILITY OF USTR. 

11 Section 141(c)(1)(C) of the Trade Act of 1974 (19 

12 U.S.C. 2171(c)(1)(C)) is amended— 

13 (1) by striking ‘‘(C)’’ and inserting ‘‘(C)(i)’’; 

14 and 

15 (2) by adding at the end the following: 

16 ‘‘(ii) have lead responsibility for investigating, 

17 and representing the United States in, disputes be18 fore the World Trade Organization and disputes 

19 arising under other trade agreements to which the 

20 United States is a party;’’. 

21 TITLE IV—SUBSIDIES 

22 SEC. 401. APPLICATION OF COUNTERVAILING DUTIES TO 

23 NONMARKET ECONOMY COUNTRIES. 

24 (a) IN GENERAL.—Section 701(a)(1) of the Tariff 

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1 ing ‘‘(including a nonmarket economy country)’’ after 

2 ‘‘country’’ each place it appears. 

3 (b) USE OF ALTERNATE METHODOLOGIES.—Section 

4 771(5)(E) of the Tariff Act of 1930 (19 U.S.C. 

5 1677(5)(E)) is amended by adding at the end the fol6 lowing: ‘‘If the administering authority, with respect to a 

7 nonmarket economy country, encounters special difficul8 ties in calculating the amount of a benefit under clause 

9 (i), (ii), (iii), or (iv), the administering authority may use 

10 methodologies for identifying and measuring the subsidy 

11 benefit which take into account the possibility that pre12 vailing terms and conditions in that country may not al13 ways be available as appropriate benchmarks.’’. 

14 (c) EFFECTIVE DATE.—The amendments made by 

15 subsections (a) and (b) apply to petitions filed under sec16 tion 702 of the Tariff Act of 1930 on or after the date 

17 of the enactment of this Act. 

18 (d) ANTIDUMPING PROVISIONS NOT AFFECTED.— 

19 The amendments made by subsections (a) and (b) shall 

20 not affect the status of a country as a nonmarket economy 

21 country for the purposes of any matter relating to anti22 dumping duties under the Tariff Act of 1930. 


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1 SEC. 402. CLARIFICATION TO INCLUDE EXCHANGE-RATE 

2 MANIPULATION AS COUNTERVAILABLE SUB3 SIDY UNDER TITLE VII OF THE TARIFF ACT 

4 OF 1930. 

5 (a) AMENDMENTS TO DEFINITION OF

6 COUNTERVAILABLE SUBSIDY.—Section 771(5)(D) of the 

7 Tariff Act of 1930 (19 U.S.C. 1677(5)(D)) is amended— 

8 (1) by striking ‘‘The term’’ and inserting ‘‘(i) 

9 The term’’; 

10 (2) by redesignating clauses (i) through (iv) as 

11 subclauses (I) through (IV), respectively; and 

12 (3) by adding at the end the following: 

13 ‘‘(ii) In addition to clause (i), the term 

14 ‘provides a financial contribution’ means to en15 gage in exchange-rate manipulation (as defined 

16 in paragraph (5C)).’’. 

17 (b) DEFINITION OF EXCHANGE-RATE MANIPULA18 TION.—Section 771 of the Tariff Act of 1930 (19 U.S.C. 

19 1677) is amended by inserting after paragraph (5B) the 

20 following new paragraph: 

21 ‘‘(5C) DEFINITION OF EXCHANGE-RATE MANIP22 ULATION.— 

23 ‘‘(A) IN GENERAL.—For purposes of para24 graphs (5) and (5A), the term ‘exchange-rate 

25 manipulation’ means protracted large-scale 

26 intervention by an authority to undervalue its 


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1 currency in the exchange market that prevents 

2 effective balance-of-payments adjustment or 

3 that gains an unfair competitive advantage over 

4 any other country. 

5 ‘‘(B) FACTORS.—In determining whether 

6 exchange-rate manipulation is occurring and a 

7 benefit thereby conferred, the administering au8 thority in each case— 

9 ‘‘(i) shall consider the exporting coun10 try’s— 

11 ‘‘(I) bilateral balance-of-trade 

12 surplus or deficit with the United 

13 States; 

14 ‘‘(II) balance-of-trade surplus or 

15 deficit with its other trading partners 

16 individually and in the aggregate; 

17 ‘‘(III) foreign direct investment 

18 in its territory; 

19 ‘‘(IV) currency-specific and ag20 gregate amounts of foreign currency 

21 reserves; and 

22 ‘‘(V) mechanisms employed to 

23 maintain its currency at a fixed ex24 change rate relative to another cur25 rency and, particularly, the nature, 


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1 duration, monetary expenditures, and 

2 potential monetary expenditures of 

3 those mechanisms; 

4 ‘‘(ii) may consider such other eco5 nomic factors as are relevant; and 

6 ‘‘(iii) shall measure the trade sur7 pluses or deficits described in subclauses 

8 (I) and (II) of clause (i) with reference to 

9 the trade data reported by the United 

10 States and the other trading partners of 

11 the exporting country, unless such trade 

12 data are not available or are demonstrably 

13 inaccurate, in which case the exporting 

14 country’s trade data may be relied upon if 

15 shown to be sufficiently accurate and 

16 trustworthy. 

17 ‘‘(C) TYPE OF ECONOMY.—An authority 

18 found to be engaged in exchange-rate manipula19 tion may have either a market economy or a 

20 nonmarket economy or a combination thereof.’’. 

21 SEC. 403. ITC STUDY OF SUBSIDIES BY PEOPLE’S REPUBLIC 

22 OF CHINA. 

23 (a) INVESTIGATION.—The United States Inter24 national Trade Commission shall conduct a study, under 

25 section 332 of the Tariff Act of 1930 (19 U.S.C. 1332), 


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1 regarding how the People’s Republic of China uses govern2 ment intervention to promote investment, employment, 

3 and exports. The study shall comprehensively catalog, and 

4 when possible quantify, the practices and policies that cen5 tral, provincial, and local government bodies in the Peo6 ple’s Republic of China use to support and to attempt to 

7 influence decisionmaking in China’s manufacturing enter8 prises and industries. Chapters of this study shall include, 

9 but not be limited to, the following: 

10 (1) Privatization and private ownership. 

11 (2) Nonperforming loans. 

12 (3) Price coordination. 

13 (4) Selection of industries for targeted assist14 ance. 

15 (5) Banking and finance. 

16 (6) Utility rates. 

17 (7) Infrastructure development. 

18 (8) Taxation. 

19 (9) Restraints on imports and exports. 

20 (10) Research and development. 

21 (11) Worker training and retraining. 

22 (12) Rationalization and closure of uneconomic 

23 enterprises. 

24 (b) TIMING OF REPORTS ON STUDY.—The Congress 

25 requests that— 


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1 (1) not later than 9 months after the date of 

2 the enactment of this Act, the International Trade 

3 Commission complete its study under subsection (a) 

4 and submit a report on the study to the Committee 

5 on Ways and Means of the House of Representatives 

6 and the Committee on Finance of the Senate; and 

7 (2) not later than 1 year after the report under 

8 paragraph (1) is submitted, and annually thereafter 

9 through 2016, the International Trade Commission 

10 prepare and submit to the committees referred to in 

11 paragraph (1) an update of the report. 

12 TITLE V—STRENGTHENING U.S. 

13 UNFAIR TRADE LAWS 

14 Subtitle A—Determination of 

15 Dumping 

16 SEC. 501. POLLING OF INDUSTRY SUPPORT IN ANTI17 DUMPING CASES. 

18 Section 732(c)(4)(D) of the Tariff Act of 1930 (19 

19 U.S.C. 1673a(c)(5)(D)) is amended by adding at the end 

20 the following flush sentences: 

21 ‘‘If a petitioner requests that polling be done 

22 because of the large number of producers, the 

23 administering authority shall obtain from rel24 evant Federal agencies lists of producers that 

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1 ports of the Census Bureau and the United 

2 States Department of Agriculture, to permit 

3 such polling. If the agencies are unable or un4 willing to supply such information because of 

5 privacy or other restrictions, the administering 

6 authority shall not poll the industry, but shall 

7 exercise its authority to initiate an investigation 

8 under subsection (a)(1) if the information in 

9 the petition otherwise warrants the initiation of 

10 such an investigation.’’. 

11 SEC. 502. NEW SHIPPER BONDING PRIVILEGE. 

12 Section 751(a)(2)(B) of the Tariff Act of 1930 (19 

13 U.S.C. 1675(a)(2)(B)) is amended— 

14 (1) by striking clause (iii); and 

15 (2) by redesignating clause (iv) as clause (iii). 

16 SEC. 503. PREVENTION OF CIRCUMVENTION. 

17 Section 781(c) of the Tariff Act of 1930 (19 U.S.C. 

18 1677j(c)) is amended by adding at the end the following 

19 new paragraph: 

20 ‘‘(3) SPECIAL RULE.—The administering au21 thority shall apply paragraph (1) with respect to al22 tered merchandise excluded from the merchandise 

23 description used in an outstanding order or finding, 

24 if such application is not inconsistent with the afVerDate Aug 31 2005 21:30 Apr 11, 2006 Jkt 049196 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\H5043.IH H5043

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1 firmative determination of the Commission on which 

2 the order or finding is based.’’. 

3 SEC. 504. ABSORPTION OF ANTIDUMPING DUTIES. 

4 Section 772(d)(1) of the Tariff Act of 1930 (19 

5 U.S.C. 1677a(d)(1)) is amended— 

6 (1) in subparagraph (C), by striking ‘‘and’’; 

7 (2) in subparagraph (D), by adding ‘‘and’’ after 

8 the semicolon; and 

9 (3) by adding at the end the following new sub10 paragraph: 

11 ‘‘(E) the amount of any antidumping duty 

12 determined to be due, unless evidence of record 

13 demonstrates that such duty will be paid by a 

14 purchaser not affiliated with the producer or 

15 exporter.’’. 

16 SEC. 505. ABSORPTION OF ANTIDUMPING DUTIES IN SUN17 SET REVIEW. 

18 Section 751(a)(4) of the Tariff Act of 1930 (19 

19 U.S.C. 1675(a)(4)) is amended to read as follows: 

20 ‘‘(4) ABSORPTION OF ANTIDUMPING DUTIES.— 

21 During any review under this subsection initiated— 

22 ‘‘(A) 2 years or 4 years after the publica23 tion of an antidumping duty order under sec24 tion 736(a), or 


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1 ‘‘(B) after publication of a determination 

2 under this section to continue an order or sus3 pension agreement, 

4 the administering authority, if requested, shall deter5 mine whether antidumping duties have been ab6 sorbed by a foreign producer or exporter subject to 

7 the order if the subject merchandise is sold in the 

8 United States through an importer who is affiliated 

9 with that foreign producer or exporter. The admin10 istering authority may make such a determination at 

11 its discretion, if requested, during a review initiated 

12 in any other year under this section. The admin13 istering authority shall notify the Commission of its 

14 findings regarding such duty absorption for the 

15 Commission to consider in conducting a review 

16 under subsection (c).’’. 

17 SEC. 506. EXPORT PRICE AND CONSTRUCTED EXPORT 

18 PRICE. 

19 Section 772(c)(2)(A) of the Tariff Act of 1930 (19 

20 U.S.C. 1677a(c)(2)(A)) is amended by inserting ‘‘(includ21 ing countervailing duties imposed under this title to offset 

22 any nonexport subsidies)’’ after ‘‘duties’’. 

23 SEC. 507. NONMARKET ECONOMY METHODOLOGY. 

24 Section 773(c)(4) of the Tariff Act of 1930 (19 

25 U.S.C. 1677b(c)(4)) is amended to read as follows: 


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1 ‘‘(4) VALUATION OF FACTORS OF PRODUC2 TION.— 

3 ‘‘(A) IN GENERAL.—The administering au4 thority, in valuing factors of production under 

5 paragraph (1), shall utilize, to the extent pos6 sible, the prices or costs of factors of production 

7 in one or more market economy countries that 

8 are— 

9 ‘‘(i) at a level of economic develop10 ment comparable to that of the nonmarket 

11 economy country; and 

12 ‘‘(ii) significant producers of com13 parable merchandise. 

14 In this paragraph, the term ‘surrogate’ refers to 

15 the values, calculations, and market economy 

16 countries used under this subparagraph. 

17 ‘‘(B) VALUING MATERIALS USED IN PRO18 DUCTION.—In determining the value of mate19 rials used in production under subparagraph 

20 (A), the following applies: 

21 ‘‘(i) The administering authority may 

22 use the value of inputs that are purchased 

23 from market economy suppliers and are 

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1 sidized, only for the quantity of such pur2 chases. 

3 ‘‘(ii) All materials purchased or other4 wise obtained from nonmarket economy 

5 countries shall be valued using surrogate 

6 values under subparagraph (A). 

7 ‘‘(iii) A purchased material shall be 

8 viewed as suspected of being subsidized if 

9 there are any affirmative findings by the 

10 United States or another WTO member of 

11 export subsidy programs in the supplying 

12 country. 

13 ‘‘(iv) A purchased material shall be 

14 viewed as suspected of being dumped if 

15 there are any affirmative findings by the 

16 United States or other WTO member of 

17 dumping in the general category of mer18 chandise, or if information supplied by the 

19 petitioner or otherwise of record suggests 

20 significant underpricing to the purchaser 

21 in the nonmarket economy country. 

22 ‘‘(v) Surrogate values for materials 

23 from a market economy country shall be 

24 disregarded as not reflective of prices in 

25 that surrogate market only if prices in that 


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1 market are viewed as aberrational, such as 

2 a case in which prices undersell or exceed 

3 any reported price in that surrogate mar4 ket by a large amount. 

5 ‘‘(vi) There shall be a presumption 

6 that the administering authority will in7 clude all market prices from a surrogate 

8 market. Prices that are high or low shall 

9 be excluded only when it is demonstrated 

10 that the prices are not reflective of prices 

11 in the surrogate country for the relevant 

12 category of merchandise. 

13 ‘‘(vii) If amounts pertaining to the 

14 cost of production of imports into a surro15 gate country from market economy sup16 pliers are used for valuing the materials 

17 used, such amounts shall be valued on the 

18 basis of CIF (cost, insurance, and freight), 

19 plus duties paid, to provide a proxy for 

20 prices in the surrogate country competing 

21 with locally produced goods. Such values 

22 shall not be reduced by the import duties. 

23 ‘‘(C) VALUING LABOR.— 

24 ‘‘(i) The administering authority may 

25 use an average of wage rates for market 


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1 economies, but shall ensure that labor 

2 rates used fully reflect all labor costs, in3 cluding benefits, health care, and pension 

4 costs. 

5 ‘‘(ii) Labor shall be the total labor 

6 employed by a nonmarket economy country 

7 producer or used by a nonmarket economy 

8 country producer in the overall business, 

9 with allocations to other merchandise pro10 duced or sold by that producer that is not 

11 subject merchandise. 

12 ‘‘(iii) Labor shall reflect the average 

13 labor for all other producers in the non14 market economy country that are pro15 ducing the particular merchandise subject 

16 to investigation or review, and shall not be 

17 limited to operations used for export. 

18 ‘‘(D) VALUING FACTORY OVERHEAD, GEN19 ERAL SELLING AND ADMINISTRATIVE EX20 PENSES, AND PROFIT.— 

21 ‘‘(i) IN GENERAL.—The administering 

22 authority shall use the best information 

23 available with respect to likely values of 

24 factory overhead, general selling and ad25 ministrative expenses, and profit from a 


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1 surrogate country. If the values determined 

2 under subparagraphs (B) and (C) for ma3 terials used and labor consumed result in 

4 amounts that are demonstrably larger or 

5 smaller than the amounts used in deter6 mining surrogate ratios from financial or 

7 other reports from a surrogate country, ad8 justments shall be made to the ratios to re9 flect fully the level of such costs and prof10 its in the surrogate country on a per item 

11 produced basis. 

12 ‘‘(ii) RATIO DEFINED.—For purposes 

13 of this subparagraph, the term ‘ratios’ 

14 means— 

15 ‘‘(I) the ratio of factory overhead 

16 to labor, materials, and energy; 

17 ‘‘(II) the ratio of general selling 

18 and administrative costs to factory 

19 overhead, labor, materials, and en20 ergy; and 

21 ‘‘(III) the ratio of profit to gen22 eral selling and administrative costs, 

23 factory overhead, labor, materials, and 

24 energy. 


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1 ‘‘(E) USE OF CONFIDENTIAL INFORMA2 TION FROM A DOMESTIC PRODUCER IN A SUR3 ROGATE COUNTRY.—The administering author4 ity shall generally use publicly available infor5 mation to value factors of production, except 

6 that, in a case in which any foreign producer in 

7 the surrogate country used by the administering 

8 authority is willing to provide information on 

9 factors of production to produce the same class 

10 of merchandise and such information is subject 

11 to verification, the administering authority shall 

12 accept and use such information. The relation13 ship of the foreign producer providing the infor14 mation to a party to the proceeding shall not be 

15 a basis for disqualification.’’. 

16 SEC. 508. ADJUSTMENT OF CONSTRUCTED VALUES FOR IM17 PUTED CREDIT COSTS. 

18 Section 773(a)(8) of the Tariff Act of 1930 (19 

19 U.S.C. 1677b(a)(8)) is amended by inserting the following 

20 before the period: ‘‘, except that constructed value may 

21 not be adjusted by deducting imputed credit expenses’’. 

22 SEC. 509. DETERMINATIONS ON THE BASIS OF FACTS 

23 AVAILABLE. 

24 Section 776(a)(2)(B) of the Tariff Act of 1930 (19 

25 U.S.C. 1677e(a)(2)(B) is amended to read as follows: 


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

2 the deadline for submission of the information 

3 or in the form and manner required, and in 

4 conformity with prior administering authority 

5 determinations in the proceeding and final judi6 cial decisions in the proceeding, subject to sub7 sections (c)(1) and (e) of section 782,’’. 

8 Subtitle B—Determination of 

9 Subsidization 

10 SEC. 521. COUNTERVAILABLE SUBSIDY. 

11 (a) DEFINITION OF COUNTERVAILABLE SUBSIDY.— 

12 Section 771(5)(E) of the Tariff Act of 1930 (19 U.S.C. 

13 1677(5)(E)), as amended by section 401(b) of this Act, 

14 is further amended by adding at the end the following: 

15 ‘‘If there is a reasonable indication that a financial con16 tribution by the provision of goods or services has dis17 torted prices for those goods or services in the country 

18 that is subject to the investigation or review, or if data 

19 regarding such prices are otherwise unavailable, then the 

20 administering authority shall measure adequacy of remu21 neration by reference to data regarding prices for the 

22 same or a similar good or service from outside the country 

23 that is subject to the investigation or review. The admin24 istering authority shall adjust such data to the extent 

25 practicable to reflect prevailing market conditions in that 


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1 country. If there is a reasonable indication that prices 

2 within a political subdivision, dependent territory, or pos3 session of a foreign country are distorted, or data are not 

4 available, then the administering authority shall measure 

5 adequacy of remuneration in that political subdivision, de6 pendent territory, or possession by reference to data from 

7 the most comparable area or region in which prices are 

8 not distorted, regardless of whether it is in the same coun9 try.’’. 

10 (b) EFFECTIVE DATE.—The amendment made by 

11 subsection (a) shall apply to any determination under sec12 tion 705 or 751 of the Tariff Act of 1930 (19 U.S.C. 

13 1671d, 1675) that is made on or after January 1, 2002, 

14 including published determinations for which judicial or 

15 binational panel review has been initiated or completed 

16 pursuant to section 516A of that Act (19 U.S.C. 1516a). 

17 To the extent that the amendment made by subsection (a) 

18 may be relevant to any such determination that has al19 ready been made, the administering authority shall amend 

20 the determination and associated countervailing duty 

21 order to bring them into compliance with the amendment 

22 made by subsection (a), and shall undertake new adminis23 trative proceedings, if necessary, to do so. 


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1 Subtitle C—Determination of 

2 Material Injury 

3 SEC. 531. PERIOD TO DETERMINE MATERIAL INJURY. 

4 Section 771(7)(A) of the Tariff Act of 1930 (19 

5 U.S.C. 1677(7)(A)) is amended by adding at the end 

6 thereof the following: ‘‘In cases other than critical cir7 cumstances, the Commission shall, in making its prelimi8 nary and final determinations of material injury under 

9 this title, select an appropriate period for evaluating the 

10 applicable statutory criteria up to the date on which the 

11 petition is filed or on which the administering authority 

12 initiates the investigation, as the case may be.’’. 

13 SEC. 532. CAPTIVE PRODUCTION. 

14 Section 771(7)(C)(iv) of the Tariff Act of 1930 (19 

15 U.S.C. 1677(7)(C)(iv)) is amended to read as follows: 

16 ‘‘(iv) CAPTIVE PRODUCTION.—If do17 mestic producers transfer internally, in18 cluding to affiliated persons as defined in 

19 paragraph (33), significant production of 

20 the domestic like product for the produc21 tion of a downstream article and sell sig22 nificant production of the domestic like 

23 product in the merchant market, then the 

24 Commission, in determining market share 

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1 ance set forth in clause (iii), shall focus 

2 primarily on the merchant market for the 

3 domestic like product.’’. 

4 SEC. 533. PRICE. 

5 Section 771(7)(C)(ii) of the Tariff Act of 1930 (19 

6 U.S.C. 1677(7)(C)(ii)) is amended by adding at the end 

7 the following flush sentence: 

8 ‘‘The Commission shall not conclude that 

9 imports of the subject merchandise do not 

10 have a significant effect on prices merely 

11 because of the volume of imports of the 

12 subject merchandise.’’. 

13 SEC. 534. VULNERABILITY OF INDUSTRY; CUMULATION. 

14 (a) Section 771(7)(C)(iii) of the Tariff Act of 1930 

15 (19 U.S.C. 1677(7)(C)(iii)) is amended in the last sen16 tence by striking the period at the end and inserting ‘‘, 

17 including whether the industry is vulnerable to the effects 

18 of imports of the subject merchandise.’’. 

19 (b) CUMULATION.—Section 771(7)(G)(i) of the Tar20 iff Act of 1930 (19 U.S.C. 1677(7)(G)(i)) is amended to 

21 read as follows: 

22 ‘‘(i) IN GENERAL.—For purposes of 

23 clauses (i) and (ii) of subparagraph (C), 

24 and subject to clause (ii), the Commission 

25 shall cumulatively assess the volume and 


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1 effect of imports of the subject merchan2 dise from all countries subject to petitions 

3 filed under section 702(b) or 732(b), or 

4 subject to investigations initiated under 

5 702(a) or 732(a), if such petitions were 

6 filed, or such investigations were initiated, 

7 within 90 days before the date on which 

8 the Commission is required to make its 

9 final injury determination, and if such im10 ports compete with each other and with 

11 the domestic like product in the United 

12 States market.’’. 

13 SEC. 535. CAUSAL RELATIONSHIP BETWEEN IMPORTS AND 

14 INJURY. 

15 Section 771(7)(E)(ii) of the Tariff Act of 1930 (19 

16 U.S.C. 1677(7)(E)(ii)) is amended by adding at the end 

17 the following: ‘‘The Commission need not determine the 

18 significance of imports of the subject merchandise relative 

19 to other economic factors.’’. 

20 SEC. 536. PERISHABLE AGRICULTURAL PRODUCTS. 

21 (a) DEFINITION OF INDUSTRIES.—Section 771(4)(A) 

22 of the Tariff Act of 1930 (19 U.S.C. 1677(4)(A)) is 

23 amended by adding at the end the following: ‘‘If the Com24 mission determines that an agricultural product has a 

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1 sion shall treat the producers of the product in a defined 

2 period or season as the domestic industry. If the sub3 heading under the Harmonized Tariff Schedule of the 

4 United States for an agricultural product has a 6- or 8- 

5 digit classification based on the period of time during the 

6 calendar year in which the product is harvested or im7 ported, such periods of time constitute a defined period 

8 or season for purposes of this paragraph.’’. 

9 (b) DETERMINATION OF INJURY.—Section 

10 771(7)(D) of the Tariff Act of 1930 (19 U.S.C. 

11 1677(7)(D)) is amended by adding at the end the fol12 lowing new clauses: 

13 ‘‘(iii) In the case of an agricultural in14 dustry involving a perishable product with 

15 a short shelf life, if a request for seasonal 

16 evaluation has been made by the peti17 tioners, the Commission shall consider the 

18 factors under subparagraph (C) on a sea19 sonal basis during the period identified as 

20 relevant. 

21 ‘‘(iv) In the case of agricultural prod22 ucts, partially picked or unpicked crops 

23 and abandoned acreage may be considered 

24 in lieu of other measures of capacity and 

25 capacity utilization. 


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1 ‘‘(v) The impact of other factors, such 

2 as weather, on agricultural production and 

3 producers shall not be weighed against the 

4 contribution of the imported subject mer5 chandise to the condition of the domestic 

6 industry.’’. 

7 SEC. 537. ANTIDUMPING CASES AGAINST THE EUROPEAN 

8 UNION. 

9 Section 771(3) of the Tariff Act of 1930 (19 U.S.C. 

10 1677(3)) is amended by adding ‘‘other than those involv11 ing the European Union’’ after ‘‘except for the purpose 

12 of antidumping proceedings’’. 

13 SEC. 538. VERIFICATION BY THE COMMISSION. 

14 (a) IN GENERAL.—Section 782 of the Tariff Act of 

15 1930 (19 U.S.C. 1677m) is amended by adding at the end 

16 the following: 

17 ‘‘(j) VERIFICATION BY THE COMMISSION.—The Com18 mission shall verify information submitted by any foreign 

19 producer relied upon in making— 

20 ‘‘(1) a final determination in an investigation, 

21 and 

22 ‘‘(2) a final determination in a review under 

23 section 751(c).’’. 

24 (b) EFFECTIVE DATE.—The amendment made by 

25 subsection (a) shall apply with respect to any investigation 


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1 or review that is pending on, or is commenced on or after, 

2 the date of the enactment of this Act. 

3 Subtitle D—General Provisions 

4 SEC. 541. DETERMINATION OF CASH DEPOSIT RATES. 

5 Section 751(a)(2)(C) of the Tariff Act of 1930 (19 

6 U.S.C. 1675(a)(2)(C)) is amended by adding at the end 

7 the following: ‘‘The ad valorem rate calculated for the as8 sessment of duties shall be used as the ad valorem rate 

9 for deposits of estimated duties.’’. 

10 SEC. 542. EXCHANGE OF INFORMATION BETWEEN AND 

11 AMONG AGENCIES. 

12 (a) PROPRIETARY INFORMATION.—Section 777(b) of 

13 the Tariff Act of 1930 (19 U.S.C. 1677f(b)) is amended 

14 by adding at the end the following: 

15 ‘‘(4) EXCHANGE OF INFORMATION BETWEEN

16 AND AMONG AGENCIES.—Notwithstanding any other 

17 provision of law, proprietary information submitted 

18 to the administering authority, the Commission, or 

19 the Bureau of Customs and Border Protection may 

20 be exchanged between and among those agencies 

21 upon their request or upon the request of an inter22 ested party, under the following circumstances: 

23 ‘‘(A) Proprietary information submitted to 

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1 sion may be exchanged between such agencies 

2 if— 

3 ‘‘(i) an interested party identifies pro4 prietary information submitted for the 

5 record at one agency that is inconsistent 

6 with information of record at the other 

7 agency; 

8 ‘‘(ii) an interested party identifies 

9 proprietary information submitted at one 

10 agency that is directly relevant to an issue 

11 presented in proceedings before the other 

12 agency; or 

13 ‘‘(iii) the administering authority or 

14 the Commission believes that the incorpo15 ration of proprietary information sub16 mitted at the other agency would be help17 ful in reaching its determination in the 

18 proceeding. 

19 ‘‘(B) Proprietary information submitted to 

20 the administering authority, the Commission, or 

21 the Bureau of Customs and Border Protection 

22 may be exchanged between and among such 

23 agencies at the request of the agency or the re24 quest of an interested party if such exchange 


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1 would facilitate the administration and enforce2 ment of the law. 

3 ‘‘(5) USE DURING PROCEEDINGS.—Proprietary 

4 as well as nonproprietary information of record sub5 mitted to or generated by the administering author6 ity or the Commission during any segment of a pro7 ceeding (including information from the Bureau of 

8 Customs and Border Protection) may be incor9 porated into the record of any other segment of the 

10 same proceeding and released by the administering 

11 authority under a protective order to qualified appli12 cants if— 

13 ‘‘(A) an interested party identifies propri14 etary information submitted during one seg15 ment of the proceeding that is inconsistent with 

16 information submitted in another segment of 

17 the proceeding; 

18 ‘‘(B) an interested party identifies propri19 etary information submitted during one seg20 ment of the proceeding that is directly relevant 

21 to an issue presented in another segment of the 

22 proceeding; or 

23 ‘‘(C) the administering authority or the 

24 Commission believes that the incorporation of a 

25 selected portion of the record from one segment 


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1 of the proceeding would be helpful in reaching 

2 its determination in another segment of the 

3 proceeding.’’. 

4 (b) LIMITED DISCLOSURE UNDER PROTECTIVE

5 ORDER.—Section 777(c)(1)(A) of the Tariff Act of 1930 

6 (19 U.S.C. 1677f(c)(1)(A)) is amended by adding at the 

7 end the following: ‘‘The proprietary information released 

8 pursuant to this subparagraph under a protective order 

9 shall include the records of the Bureau of Customs and 

10 Border Protection and the administering authority that 

11 are used by those agencies to liquidate entries and assess 

12 and collect antidumping and countervailing duties, includ13 ing the underlying entry documents.’’. 

14 (c) EFFECTIVE DATE.—The amendments made by 

15 this section shall apply with respect to any proceeding 

16 under title VII of the Tariff Act of 1930 that is pending 

17 on, or is commenced on or after, the date of the enactment 

18 of this Act. 

19 SEC. 543. LIQUIDATION OF CERTAIN ENTRIES. 

20 Section 504(d) of the Tariff Act of 1930 (19 U.S.C. 

21 1504(d)) is amended by adding at the end the following: 

22 ‘‘In the case of any entry that is subject to a antidumping 

23 or countervailing duty order, the preceding sentence shall 

24 not apply, and such entry shall be liquidated at the rate 


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1 finally determined by the administering authority or re2 viewing court.’’. 

3 SEC. 544. ASSISTANT ATTORNEY GENERAL FOR TRADE LAW 

4 ENFORCEMENT. 

5 (a) APPOINTMENT.—Subtitle D of title VII of the 

6 Tariff Act of 1930 (19 U.S.C. 1677 et seq.) is amended 

7 by adding at the end the following new section: 

8 ‘‘SEC. 784. ASSISTANT ATTORNEY GENERAL FOR TRADE 

9 LAW ENFORCEMENT. 

10 ‘‘The President shall appoint, by and with the advice 

11 and consent of the Senate, an Assistant Attorney General 

12 for Trade Law Enforcement. The Assistant Attorney Gen13 eral for Trade Law Enforcement shall be responsible for 

14 investigating and prosecuting fraud in any proceeding 

15 under this title.’’. 

16 (b) CONFORMING AMENDMENT.—The table of con17 tents for title VII of the Tariff Act of 1930 is amended 

18 by inserting after the item relating to section 783 the fol19 lowing new item: 

‘‘Sec. 784. Assistant Attorney General for Trade law Enforcement.’’. 

20 (c) COMPENSATION.—Section 5315 of title 5, United 

21 States Code, is amended by inserting after ‘‘Assistant At22 torneys General (10)’’ the following: 

23 ‘‘Assistant Attorney General for Trade Law 

24 Enforcement.’’. 


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1 Subtitle E—Effective Date 

2 SEC. 551. EFFECTIVE DATE. 

3 Except as provided in sections 521(b), 538(b), and 

4 542(c), the amendments made by this title shall apply with 

5 respect to determinations made under title VII of the Tar6 iff Act of 1930 that— 

7 (1) are made with respect to investigations ini8 tiated or petitions filed on or after the date of the 

9 enactment of this Act; or 

10 (2) have not become final as of such date of en11 actment. 

12 TITLE VI—SAFEGUARD 

13 AMENDMENTS 

14 Subtitle A—Safeguards in General 

15 SEC. 601. AMENDMENTS TO CHAPTER 1 OF TITLE II OF THE 

16 TRADE ACT OF 1974. 

17 (a) TEST FOR POSITIVE ADJUSTMENTS TO IMPORT

18 COMPETITION.—Section 201(a) of the Trade Act of 1974 

19 (19 U.S.C. 2251(a)) is amended by striking ‘‘be a sub20 stantial cause of serious injury, or the threat thereof,’’ and 

21 inserting ‘‘cause or threaten to cause serious injury’’. 

22 (b) INVESTIGATIONS AND DETERMINATIONS.—Sec23 tion 202 of such Act (19 U.S.C. 2252) is amended— 

24 (1) in subsection (b)(1)(A), by striking ‘‘be a 

25 substantial cause of serious injury, or the threat 


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1 thereof,’’ and inserting ‘‘cause or threaten to cause 

2 serious injury’’; 

3 (2) by amending subsection (b)(1)(B) to read 

4 as follows: 

5 ‘‘(B) For purposes of this section, the term 

6 ‘cause’ refers to a cause that contributes signifi7 cantly to serious injury, or the threat thereof, to the 

8 domestic industry but need not be equal to or great9 er than any other cause.’’; 

10 (3) in subsection (c)— 

11 (A) by amending paragraph (1)(A) to read 

12 as follows: 

13 ‘‘(A) with respect to serious injury— 

14 ‘‘(i) change in the level of sales, pro15 duction, productivity, capacity utilization, 

16 profits and losses, and employment; 

17 ‘‘(ii) the significant idling of produc18 tive facilities in the domestic industry; 

19 ‘‘(iii) the inability of a significant 

20 number of firms to carry out domestic pro21 duction operations at a reasonable level of 

22 profit; and 

23 ‘‘(iv) significant unemployment or 

24 underemployment within the domestic in25 dustry;’’; 


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1 (B) in paragraph (1)(B)— 

2 (i) in clause (iii) by striking ‘‘; and’’ 

3 and inserting ‘‘, and’’; and 

4 (ii) by inserting after clause (iii) the 

5 following: 

6 ‘‘(iv) foreign production capacity, for7 eign inventories, the level of demand in 

8 third country markets, and the availability 

9 of other export markets to absorb any ad10 ditional exports; and’’; 

11 (C) by amending paragraph (1)(C) to read 

12 as follows: 

13 ‘‘(C) with respect to cause— 

14 ‘‘(i) the rate, amount, and timing of 

15 the increase in imports of the product con16 cerned in absolute and relative terms, in17 cluding whether there has been a substan18 tial increase in imports over a short period 

19 of time; and 

20 ‘‘(ii) the share of the domestic market 

21 taken by increased imports.’’; 

22 (D) by redesignating paragraphs (3) 

23 through (6) as paragraphs (5) through (8), re24 spectively; 


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1 (E) by striking paragraph (2) and insert2 ing the following: 

3 ‘‘(2) In making determinations under subpara4 graphs (A) and (B) of paragraph (1), if domestic 

5 producers internally transfer, including to affiliated 

6 persons as defined in section 771(33) of the Tariff 

7 Act of 1930, significant production of the article like 

8 or directly competitive with the imported article for 

9 the production of a downstream article and sell sig10 nificant production of the article like or directly 

11 competitive with the imported article in the mer12 chant market, then the Commission, in determining 

13 market share and the factors affecting financial per14 formance set forth in subparagraphs (A) and (B) of 

15 paragraph (1), shall focus primarily on the merchant 

16 market for the article like or directly competitive 

17 with the imported article. 

18 ‘‘(3) In making determinations under sub19 section (b), the Commission shall— 

20 ‘‘(A) consider the condition of the domestic 

21 industry over the course of the relevant busi22 ness cycle, but may not aggregate the causes of 

23 declining demand associated with a recession or 

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1 omy into a single cause or threat of serious in2 jury; and 

3 ‘‘(B) examine factors other than imports 

4 which may cause or threaten to cause serious 

5 injury to the domestic industry. 

6 The Commission shall include the results of its ex7 amination under subparagraph (B) in the report 

8 submitted by the Commission to the President under 

9 subsection (e). 

10 ‘‘(4) In making determinations under sub11 section (b), the Commission shall consider whether 

12 any change in the volume of imports that has oc13 curred since a petition under subsection (a) was filed 

14 or a request under subsection (b) was made is re15 lated to the pendency of the investigation, and if so, 

16 the Commission may reduce the weight accorded to 

17 the data for the period after the petition under sub18 section (a) was filed or the request under subsection 

19 (b) was made in making its determination of serious 

20 injury, or the threat thereof.’’; and 

21 (F) in paragraph (5), as so 

22 predesignated— 

23 (i) by striking ‘‘and (B)’’ and insert24 ing ‘‘, (B), and (C)’’; and 


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1 (ii) by striking ‘‘be a substantial cause 

2 of serious injury, or the threat thereof,’’ 

3 and inserting ‘‘cause or threaten to cause 

4 serious injury’’; 

5 (4) in subsection (d)— 

6 (A) in paragraph (1)(A)(ii), by striking 

7 ‘‘be, or likely to be a substantial cause of seri8 ous injury, or the threat thereof,’’ and inserting 

9 ‘‘cause, or be likely to cause, or threaten to 

10 cause, or be likely to threaten to cause, serious 

11 injury’’; 

12 (B) in paragraph (1)(C), in the matter fol13 lowing clause (ii), by striking ‘‘a substantial 

14 cause of serious injury, or the threat thereof,’’ 

15 and inserting ‘‘causing or threatening to cause 

16 serious injury’’; 

17 (C) by amending paragraph (2)(A) to read 

18 as follows: 

19 ‘‘(2)(A) When a petition filed under subsection 

20 (a) or a request filed under subsection (b) alleges 

21 that critical circumstances exist and requests that 

22 provisional relief be provided under this subsection 

23 with respect to imports of the article identified in 

24 the petition or request, the Commission shall, not 

25 later than 45 days after the petition or request is 


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1 filed, determine, on the basis of available informa2 tion, whether— 

3 ‘‘(i) there is clear evidence that increased 

4 imports (either actual or relative to domestic 

5 production) of the article are causing or threat6 ening to cause serious injury to the domestic in7 dustry producing an article like or directly com8 petitive with the imported article; and 

9 ‘‘(ii) delay in taking action under this 

10 chapter would cause damage to that industry 

11 that would be difficult to repair. 

12 In making the evaluation under clause (ii), the Commis13 sion should consider, among other factors that it considers 

14 relevant, the timing and volume of the imports, including 

15 whether there has been a substantial increase in imports 

16 over a short period of time, and any other circumstances 

17 indicating that delay in taking action under this chapter 

18 would cause damage to the industry that would be difficult 

19 to repair.’’; and 

20 (D) in paragraph (2)(D), by striking ‘‘30’’ 

21 and inserting ‘‘20’’. 

22 (c) PRESIDENTIAL DETERMINATIONS.— 

23 (1) ACTION BY PRESIDENT.—Section 203(a) of 

24 the Trade Act of 1974 (19 U.S.C. 2253(a)) is 

25 amended— 


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1 (A) in paragraph (1)(A), by striking ‘‘and 

2 provide greater economic and social benefits 

3 than costs’’ and inserting ‘‘and will not have an 

4 adverse impact on the United States clearly 

5 greater than the benefits of such action’’; 

6 (B) in paragraph (2)(F)(ii), by striking 

7 ‘‘compensation;’’ and inserting the following: 

8 ‘‘compensation, except that the President shall 

9 give substantially greater weight to the factors 

10 set out in clause (i) than to those set out in 

11 clause (ii) and this clause;’’; and 

12 (C) by amending paragraph (2)(I) to read 

13 as follows: 

14 ‘‘(I) the potential for harm to the national 

15 security of the United States; and’’. 

16 (2) IMPLEMENTATION OF ACTION REC17 OMMENDED BY COMMISSION.—(A) Section 203(c) of 

18 the Trade Act of 1974 (19 U.S.C. 2253(c)) is 

19 amended by striking ‘‘90’’ and inserting ‘‘60’’. 

20 (B) Section 152(c)(1) of the Trade Act of 1974 

21 (19 U.S.C. 2192(c)(1)) is amended by striking ‘‘not 

22 counting any day which is excluded under section 

23 154(b),’’ and inserting ‘‘counting all calendar days 

24 in the case of a resolution described in subsection 

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1 cluded under section 154(b) in the case of a resolu2 tion described in subsection (a)(1)(B),’’. 

3 (d) CONFORMING AMENDMENTS.— 

4 (1) Section 203(e)(6)(B) of the Trade Act of 

5 1974 (19 U.S.C. 2253(e)(6)(B)) is amended by 

6 striking ‘‘substantially’’. 

7 (2) Section 264(c) of the Trade Act of 1974 

8 (19 U.S.C. 2354(c)) is amended by striking ‘‘a sub9 stantial cause of serious injury or threat thereof’’ 

10 and inserting ‘‘causing or threatening to cause seri11 ous injury’’. 

12 (3) Section 154(b) of the Trade Act of 1974 

13 (19 U.S.C. 2194(b)) is amended by striking the 

14 matter that precedes paragraph (1) and inserting 

15 the following: 

16 ‘‘(b) The 60-day period referred to in section 203(c) 

17 and the 90-day period referred to in section 407(c)(2) 

18 shall be computed by excluding—’’. 

19 Subtitle B—Fair Trade With China 

20 SEC. 611. CLARIFICATION OF STANDARD FOR PRESI21 DENTIAL ACTION ON ITC FINDING OF MAR22 KET DISRUPTION. 

23 (a) AMENDMENTS TO STANDARD FOR TRADE REP24 RESENTATIVE’S RECOMMENDATION TO THE PRESIVerDate Aug 31 2005 21:30 Apr 11, 2006 Jkt 049196 PO 00000 Frm 00070 Fmt 6652 Sfmt 6201 E:\BILLS\H5043.IH H5043

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1 DENT.—Section 421(h)(2) of the Trade Act of 1974 (19 

2 U.S.C. 2451(h)(2)) is amended— 

3 (1) by striking ‘‘(2) Within’’ and inserting 

4 ‘‘(2)(A) Within’’; and 

5 (2) by adding at the end the following: 

6 ‘‘(B) In making a recommendation to the President 

7 under subparagraph (A), the Trade Representative shall 

8 consider the facts found, or conclusions drawn, by the 

9 Commission as they are reported to the Trade Representa10 tive, and the Trade Representative may not conduct an 

11 additional review or reconsideration of the facts found or 

12 conclusions reached by the Commission. 

13 ‘‘(C) If the Commission in its report makes an af14 firmative finding of market disruption, the Trade Rep15 resentative shall apply a presumption in favor of relief to 

16 prevent or remedy the market disruption. 

17 ‘‘(D) The following factors may not be used as the 

18 basis of a recommendation by the Trade Representative 

19 to recommend denying relief under this section: 

20 ‘‘(i) The presence or absence (whether actual or 

21 potential) of third-country imports of the product 

22 under investigation. 

23 ‘‘(ii) Any results of the econometric model 

24 known as the Commercial Policy Analysis System 

25 (COMPAS) or equivalent model.’’. 


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1 (b) AMENDMENTS TO STANDARD FOR PRESIDENTIAL

2 ACTION.—Section 421(k) of the Trade Act of 1974 (19 

3 U.S.C. 2451(k)) is amended by adding at the end the fol4 lowing: 

5 ‘‘(3) The President’s determination shall be based on 

6 the facts found, or conclusions drawn, by the Commission 

7 as they are reported to the Trade Representative under 

8 subsection (g). 

9 ‘‘(4) If the Commission in its report makes an affirm10 ative finding of market disruption, the President shall 

11 apply a presumption in favor of relief to prevent or remedy 

12 the market disruption. 

13 ‘‘(5) Any determination by the President under para14 graph (1) that providing import relief is not in the na15 tional economic interest of the United States may not be 

16 based on the following factors: 

17 ‘‘(A) The presence or absence (whether actual 

18 or potential) of third-country imports of the product 

19 under investigation. 

20 ‘‘(B) Any results of the econometric model 

21 known as the Commercial Policy Analysis System 

22 (COMPAS) or equivalent model.’’. 


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1 Subtitle C—Report on Doha Round 

2 SEC. 621. REPORT. 

3 (a) IN GENERAL.—Not later than 6 months after the 

4 date of the enactment of this Act, the United States Trade 

5 Representative shall submit to the Congress a report ex6 plaining in detail how agreements resulting from negotia7 tions on the Doha Development Agenda of the World 

8 Trade Organization will implement the provisions of the 

9 Agreement on Antidumping, the Agreement of Subsidies 

10 and Countervailing Measures, and the Agreement on Safe11 guards, as such agreements were approved by the Con12 gress under section 101 of the Uruguay Round Agree13 ments Act (19 U.S.C. 3511), as those provisions relate 

14 to the following issues: 

15 (1) The standard of review in the application of 

16 the Agreement on Antidumping, the Agreement on 

17 Subsidies and Countervailing Measures (SCM), and 

18 the Agreement on Safeguards. 

19 (2) Analysis of injury causation nonattribution 

20 under the WTO in the agreements referred to in 

21 paragraph (1). 

22 (3) The use of threat of injury analysis under 

23 the agreements referred to in paragraph (1). 

24 (4) The use of advisory opinions under the 

25 agreements referred to in paragraph (1). 


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1 (5) Consideration of sunset review waivers 

2 under the Agreement on Antidumping and the 

3 Agreement on SCM. 

4 (6) The application of a facts available stand5 ard under the Agreement on Antidumping and the 

6 Agreement on SCM. 

7 (7) Analysis of subsidies in the context of a pri8 vatization under the Agreement on SCM. 

9 (8) The treatment of export restraints under 

10 the Agreement on SCM. 

11 (9) The use of benchmark prices under the 

12 Agreement on SCM. 

13 (10) The application of pass-through analysis 

14 under the Agreement on SCM. 

15 (11) The treatment of equity infusions under 

16 the Agreement on SCM. 

17 (12) The treatment of nonperforming loans 

18 under the Agreement on SCM 

19 (13) The absence of a requirement to inves20 tigate unforeseen developments in analyses under 

21 the Agreement on Safeguards. 

22 (14) The absence of a requirement to show sud23 den and sharp increases in imports in analyses 

24 under the Agreement on Safeguards. 


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1 (15) The use of multiple averaging periods 

2 under the Agreement on Antidumping. 

3 (16) The calculation of the all others rate under 

4 the Agreement on Antidumping. 

5 (17) Analysis of zeroing under the Agreement 

6 on Antidumping. 

7 (18) Analysis of selling, general and adminis8 trative expenses, and profit under article 2.2.2(ii) of 

9 the Agreement on Antidumping. 

10 (b) DEFINITIONS.—In this section: 

11 (1) AGREEMENT ON ANTIDUMPING.—The term 

12 ‘‘Agreement on Antidumping’’ means the Agreement 

13 on Implementation of Article VI of the General 

14 Agreement on Tariffs and Trade 1994 referred to in 

15 section 101(d)(7) of the Uruguay Round Agree16 ments Act (19 U.S.C. 3511(d)(7). 

17 (2) AGREEMENT ON SUBSIDIES AND COUNTER18 VAILING MEASURES; AGREEMENT ON SCM.—The 

19 terms ‘‘Agreement on Subsidies and Countervailing 

20 Measures’’ and ‘‘Agreement on SCM’’ means the 

21 Agreement on Subsidies and Countervailing Meas22 ures referred to in section 101(d)(12) of the Uru23 guay Round Agreements Act (19 U.S.C. 

24 3511(d)(12)). 


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1 (3) AGREEMENT ON SAFEGUARDS.—The term 

2 ‘‘Agreement on Safeguards’’ means the Agreement 

3 on Safeguards referred to in section 101(d)(13) of 

4 the Uruguay Round Agreements Act (19 U.S.C. 

5 3511(d)(13)). 

6 TITLE VII—MISCELLANEOUS 

7 PROVISIONS 

8 SEC. 701. CONSTRUCTION. 

9 The amendments made by this Act shall not be con10 strued to create any inference with respect to the interpre11 tation of the provisions of law amended by this Act as 

12 such provisions were in effect before the enactment of this 

13 Act. 

14 SEC. 702. APPLICATION TO GOODS FROM CANADA AND 

15 MEXICO. 

16 Pursuant to section 1902 of the North American 

17 Free Trade Agreement and section 408 of the North 

18 American Free Trade Agreement Implementation Act, the 

19 amendments made by this Act shall apply to goods from 

20 Canada and Mexico. 

Æ 


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