Calendar No. 178

105TH CONGRESS

1ST SESSION S. 1216

[Report No. 105–84]

A BILL

To approve and implement the OECD Shipbuilding

Trade Agreement.

SEPTEMBER 24, 1997

Read twice and placed on the calendar
II

Calendar No. 178

105TH CONGRESS

1ST SESSION S. 1216

[Report No. 105–84]

To approve and implement the OECD Shipbuilding Trade Agreement.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 24, 1997

Mr. ROTH, from the Committee on Finance, reported the following original

bill; which was read twice and placed on the calendar

A BILL

To approve and implement the OECD Shipbuilding Trade

Agreement.

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

3 SECTION 1. SHORT TITLE; PURPOSES; TABLE OF CON4 TENTS.

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

6 ‘‘OECD Shipbuilding Trade Agreement Act’’.

7 (b) PURPOSES.—The purposes of this Act are—
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1 (1) to enhance the competitiveness of United

2 States shipbuilders which has been diminished as a

3 result of foreign subsidies and predatory pricing

4 practices;

5 (2) to ensure that United States ownership,

6 manning, registry, and construction requirements for

7 coastwise trade vessels, which have provided the De8 partment of Defense with mariners and assets in

9 time of national emergency, cannot be compromised

10 by the Shipbuilding Agreement; and

11 (3) to strengthen the United States shipbuild12 ing industrial base to ensure that its full capabilities

13 are available in time of national emergency.

14 (c) TABLE OF CONTENTS.—The table of contents for

15 this Act is as follows:

Sec. 1. Short title; purposes; table of contents.

TITLE I—APPROVAL AND IMPLEMENTATION OF OECD

SHIPBUILDING AGREEMENT

Subtitle A—General Provisions

Sec. 101. Approval of the Shipbuilding Agreement.

Sec. 102. Injurious pricing and countermeasures relating to shipbuilding.

Sec. 103. Enforcement of countermeasures.

Sec. 104. Judicial review in injurious pricing and countermeasure proceedings.

Subtitle B—Other Provisions

Sec. 111. Equipment and repair of vessels.

Sec. 112. Effect of Shipbuilding Trade Agreement with respect to private remedies.

Sec. 113. Implementing regulations.

Sec. 114. Amendments to the Merchant Marine Act, 1936.

Sec. 115. Applicability of title XI amendments.

Sec. 116. Monitoring and enforcement.

Sec. 117. Jones Act and related laws not affected.

Sec. 118. Withdrawal from Shipbuilding Agreement.

Sec. 119. Expanding membership in the Shipbuilding Agreement.
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Sec. 120. Protection of United States security interests.

Sec. 121. Definitions.

Sec. 122. Capital construction fund conforming amendment.

Subtitle C—Effective Date

Sec. 131. Effective date.

TITLE II—INTERNATIONAL SHIPPING INCOME DISCLOSURE

Sec. 201. Penalties for failure to disclose position that certain international

shipping income is not includible in gross income.

1 TITLE I—APPROVAL AND IMPLE2 MENTATION OF OECD SHIP3 BUILDING AGREEMENT

4 Subtitle A—General Provisions

5 SEC. 101. APPROVAL OF THE SHIPBUILDING AGREEMENT.

6 The Congress approves The Agreement Respecting

7 Normal Competitive Conditions in the Commercial Ship8 building and Repair Industry (referred to in this Act as

9 the ‘‘Shipbuilding Agreement’’), a reciprocal trade agree10 ment which resulted from negotiations under the auspices

11 of the Organization for Economic Cooperation and Devel12 opment, and was entered into on December 21, 1994.

13 SEC. 102. INJURIOUS PRICING AND COUNTERMEASURES

14 RELATING TO SHIPBUILDING.

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

16 end the following new title:

17 ‘‘TITLE VIII—INJURIOUS PRIC18 ING AND COUNTERMEASURES

19 RELATING TO SHIPBUILDING

‘‘Subtitle A—Imposition of Injurious Pricing Charge and Countermeasures
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‘‘Sec. 801. Injurious pricing charge.

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

‘‘Sec. 803. Preliminary determinations.

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

‘‘Sec. 805. Final determinations.

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

‘‘Sec. 807. Imposition of countermeasures.

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

‘‘Sec. 809. Third country injurious pricing.

‘‘Subtitle B—Special Rules

‘‘Sec. 821. Export price.

‘‘Sec. 822. Normal value.

‘‘Sec. 823. Currency conversion.

‘‘Subtitle C—Procedures

‘‘Sec. 841. Hearings.

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

‘‘Sec. 843. Access to information.

‘‘Sec. 844. Conduct of investigations.

‘‘Sec. 845. Administrative action following Shipbuilding Agreement panel reports.

‘‘Subtitle D—Definitions

‘‘Sec. 861. Definitions.

1 ‘‘Subtitle A—Imposition of Injuri2 ous Pricing Charge and Coun3 termeasures

4 ‘‘SEC. 801. INJURIOUS PRICING CHARGE.

5 ‘‘(a) BASIS FOR CHARGE.—If—

6 ‘‘(1) the administering authority determines

7 that a foreign vessel has been sold directly or indi8 rectly to one or more United States buyers at less

9 than its fair value, and

10 ‘‘(2) the Commission determines that—

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

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

13 or
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1 ‘‘(ii) is threatened with material in2 jury, or

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

4 the United States is or has been materially re5 tarded,

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

7 be imposed upon the foreign producer of the subject

8 vessel an injurious pricing charge, in an amount

9 equal to the amount by which the normal value ex10 ceeds the export price for the vessel. For purposes

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

12 to the sale of a foreign vessel includes the creation

13 or transfer of an ownership interest in the vessel, ex14 cept for an ownership interest created or acquired

15 solely for the purpose of providing security for a

16 normal commercial loan.

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

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

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

20 of title VII.

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

22 PRICING INVESTIGATION.

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

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

25 which subsection (d)(6) applies, an injurious pricing
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1 investigation shall be initiated whenever the admin2 istering authority determines, from information

3 available to it, that a formal investigation is war4 ranted into the question of whether the elements

5 necessary for the imposition of a charge under sec6 tion 801(a) exist, and whether a producer described

7 in section 861(17)(C) would meet the criteria of sub8 section (b)(1)(B) for a petitioner.

9 ‘‘(2) TIME FOR INITIATION BY ADMINISTERING

10 AUTHORITY.—An investigation may only be initiated

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

12 the administering authority first knew or should

13 have known of the sale of the vessel. Any period dur14 ing which an investigation is initiated and pending

15 as described in subsection (d)(6)(A) shall not be in16 cluded in calculating that 6-month period.

17 ‘‘(b) INITIATION BY PETITION.—

18 ‘‘(1) PETITION REQUIREMENTS.—

19 ‘‘(A) IN GENERAL.—Except in a case in

20 which subsection (d)(6) applies, an injurious

21 pricing proceeding shall be initiated whenever

22 an interested party, as defined in subparagraph

23 (C), (D), (E), or (F) of section 861(17), files

24 a petition with the administering authority, on

25 behalf of an industry, which alleges the ele-
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1 ments necessary for the imposition of an injuri2 ous pricing charge under section 801(a) and the

3 elements required under subparagraph (B), (C),

4 (D), or (E) of this paragraph, and which is ac5 companied by information reasonably available

6 to the petitioner supporting those allegations

7 and identifying the transaction concerned.

8 ‘‘(B) PETITIONERS DESCRIBED IN SEC9 TION 861(17)(C).—

10 ‘‘(i) IN GENERAL.—If the petitioner is

11 a producer described in section

12 861(17)(C), and—

13 ‘‘(I) if the vessel was sold

14 through a broad multiple bid, the peti15 tion shall include information indicat16 ing that the petitioner was invited to

17 tender a bid on the contract at issue,

18 the petitioner actually did so, and the

19 bid of the petitioner substantially met

20 the delivery date and technical re21 quirements of the bid,

22 ‘‘(II) if the vessel was sold

23 through any bidding process other

24 than a broad multiple bid and the pe25 titioner was invited to tender a bid on
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1 the contract at issue, the petition

2 shall include information indicating

3 that the petitioner actually did so and

4 the bid of the petitioner substantially

5 met the delivery date and technical re6 quirements of the bid, or

7 ‘‘(III) except in a case in which

8 the vessel was sold through a broad

9 multiple bid, if there is no invitation

10 to tender a bid, the petition shall in11 clude information indicating that the

12 petitioner was capable of building the

13 vessel concerned and, if the petitioner

14 knew or should have known of the

15 proposed purchase, it made demon16 strable efforts to conclude a sale with

17 the United States buyer consistent

18 with the delivery date and technical

19 requirements of the buyer.

20 ‘‘(ii) REBUTTABLE PRESUMPTION RE21 GARDING KNOWLEDGE OF PROPOSED PUR22 CHASE.—For purposes of clause (i)(III),

23 there is a rebuttable presumption that the

24 petitioner knew or should have known of
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1 the proposed purchase if it is demonstrated

2 that—

3 ‘‘(I) the majority of the produc4 ers in the industry have made efforts

5 with the United States buyer to con6 clude a sale of the subject vessel, or

7 ‘‘(II) general information on the

8 sale was available from brokers, fin9 anciers, classification societies,

10 charterers, trade associations, or other

11 entities normally involved in shipbuild12 ing transactions with whom the peti13 tioner had regular contacts or deal14 ings.

15 ‘‘(C) PETITIONERS DESCRIBED IN SECTION

16 861(17)(D).—If the petitioner is an interested

17 party described in section 861(17)(D), the peti18 tion shall include information indicating that

19 members of the union or group of workers de20 scribed in that section are employed by a pro21 ducer that meets the requirements of subpara22 graph (B) of this paragraph.

23 ‘‘(D) PETITIONERS DESCRIBED IN SEC24 TION 861(17)(E).—If the petitioner is an inter25 ested party described in section 861(17)(E), the
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1 petition shall include information indicating

2 that a member of the association described in

3 that section is a producer that meets the re4 quirements of subparagraph (B) of this para5 graph.

6 ‘‘(E) PETITIONERS DESCRIBED IN SECTION

7 861(17)(F).—If the petitioner is an interested

8 party described in section 861(17)(F), the peti9 tion shall include information indicating that a

10 member of the association described in that sec11 tion meets the requirements of subparagraph

12 (C) or (D) of this paragraph.

13 ‘‘(F) AMENDMENTS.—The petition may be

14 amended at such time, and upon such condi15 tions, as the administering authority and the

16 Commission may permit.

17 ‘‘(2) SIMULTANEOUS FILING WITH COMMIS18 SION.—The petitioner shall file a copy of the peti19 tion with the Commission on the same day as it is

20 filed with the administering authority.

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

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

23 paragraph (1)(B)(i) (I) or (II) applies shall file

24 the petition no later than the earlier of—
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1 ‘‘(I) 6 months after the time that the

2 petitioner first knew or should have known

3 of the sale of the subject vessel, or

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

5 subject vessel.

6 ‘‘(ii) A petitioner to which paragraph

7 (1)(B)(i)(III) applies shall—

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

9 earlier of 9 months after the time that the

10 petitioner first knew or should have known

11 of the sale of the subject vessel, or 6

12 months after delivery of the subject vessel,

13 and

14 ‘‘(II) submit to the administering au15 thority a notice of intent to file a petition

16 no later than 6 months after the time that

17 the petitioner first knew or should have

18 known of the sale (unless the petition itself

19 is filed within that 6-month period).

20 ‘‘(B) PRESUMPTION OF KNOWLEDGE.—

21 For purposes of this paragraph, if the existence

22 of the sale, together with general information

23 concerning the vessel, is published in the inter24 national trade press, there is a rebuttable pre25 sumption that the petitioner knew or should
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1 have known of the sale of the vessel from the

2 date of that publication.

3 ‘‘(c) ACTIONS BEFORE INITIATING INVESTIGA4 TIONS.—

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

6 initiating an investigation under either subsection

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

8 the government of the exporting country of the in9 vestigation. In the case of the initiation of an inves10 tigation under subsection (b), such notification shall

11 include a public version of the petition.

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

13 administering authority shall not accept any unsolic14 ited oral or written communication from any person

15 other than an interested party described in section

16 861(17) (C), (D), (E), or (F) before the administer17 ing authority makes its decision whether to initiate

18 an investigation pursuant to a petition, except for

19 inquiries regarding the status of the administering

20 authority’s consideration of the petition or a request

21 for consultation by the government of the exporting

22 country.

23 ‘‘(3) NONDISCLOSURE OF CERTAIN INFORMA24 TION.—The administering authority and the Com25 mission shall not disclose information with regard to
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1 any draft petition submitted for review and comment

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

3 ‘‘(d) PETITION DETERMINATION.—

4 ‘‘(1) TIME FOR INITIAL DETERMINATION.—

5 ‘‘(A) IN GENERAL.—Within 45 days after

6 the date on which a petition is filed under sub7 section (b), the administering authority shall,

8 after examining, on the basis of sources readily

9 available to the administering authority, the ac10 curacy and adequacy of the evidence provided in

11 the petition, determine whether the petition—

12 ‘‘(i) alleges the elements necessary for

13 the imposition of an injurious pricing

14 charge under section 801(a) and the ele15 ments required under subsection (b)(1)

16 (B), (C), (D), or (E), and contains infor17 mation reasonably available to the peti18 tioner supporting the allegations; and

19 ‘‘(ii) determine if the petition has

20 been filed by or on behalf of the industry.

21 ‘‘(B) CALCULATION OF 45-DAY PERIOD.—

22 Any period in which paragraph (6)(A) applies

23 shall not be included in calculating the 45-day

24 period described in subparagraph (A).
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1 ‘‘(2) AFFIRMATIVE DETERMINATIONS.—If the

2 determinations under clauses (i) and (ii) of para3 graph (1)(A) are affirmative, the administering au4 thority shall initiate an investigation to determine

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

6 unless paragraph (6) applies.

7 ‘‘(3) NEGATIVE DETERMINATIONS.—If—

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

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

10 ‘‘(B) paragraph (6)(B) applies,

11 the administering authority shall dismiss the peti12 tion, terminate the proceeding, and notify the peti13 tioner in writing of the reasons for the determina14 tion.

15 ‘‘(4) DETERMINATION OF INDUSTRY SUP16 PORT.—

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

18 this subsection, the administering authority

19 shall determine that the petition has been filed

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

21 ‘‘(i) the domestic producers or work22 ers who support the petition collectively ac23 count for at least 25 percent of the total

24 capacity of domestic producers capable of

25 producing a like vessel, and
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1 ‘‘(ii) the domestic producers or work2 ers who support the petition collectively ac3 count for more than 50 percent of the total

4 capacity to produce a like vessel of that

5 portion of the domestic industry expressing

6 support for or opposition to the petition.

7 ‘‘(B) CERTAIN POSITIONS DIS8 REGARDED.—In determining industry support

9 under subparagraph (A), the administering au10 thority shall disregard the position of domestic

11 producers who oppose the petition, if such pro12 ducers are related to the foreign producer or

13 United States buyer of the subject vessel, or the

14 domestic producer is itself the United States

15 buyer, unless such domestic producers dem16 onstrate that their interests as domestic pro17 ducers would be adversely affected by the impo18 sition of an injurious pricing charge.

19 ‘‘(C) POLLING THE INDUSTRY.—If the pe20 tition does not establish support of domestic

21 producers or workers accounting for more than

22 50 percent of the total capacity to produce a

23 like vessel—

24 ‘‘(i) the administering authority shall

25 poll the industry or rely on other informa-
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1 tion in order to determine if there is sup2 port for the petition as required by sub3 paragraph (A), or

4 ‘‘(ii) if there is a large number of pro5 ducers in the industry, the administering

6 authority may determine industry support

7 for the petition by using any statistically

8 valid sampling method to poll the industry.

9 ‘‘(D) COMMENTS BY INTERESTED PAR10 TIES.—Before the administering authority

11 makes a determination with respect to initiating

12 an investigation, any person who would qualify

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

14 an investigation were initiated, may submit

15 comments or information on the issue of indus16 try support. After the administering authority

17 makes a determination with respect to initiating

18 an investigation, the determination regarding

19 industry support shall not be reconsidered.

20 ‘‘(5) DEFINITION OF DOMESTIC PRODUCERS OR

21 WORKERS.—For purposes of this subsection, the

22 term ‘domestic producers or workers’ means inter23 ested parties as defined in section 861(17) (C), (D),

24 (E), or (F).
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1 ‘‘(6) PROCEEDINGS BY WTO MEMBERS.—The

2 administering authority shall not initiate an inves3 tigation under this section if, with respect to the ves4 sel sale at issue, an antidumping proceeding con5 ducted by a WTO member who is not a Shipbuilding

6 Agreement Party—

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

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

10 the imposition of antidumping measures or a

11 negative determination with respect to whether

12 the sale was at less than fair value or with re13 spect to injury.

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

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

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

18 and

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

20 available to the Commission such information as it

21 may have relating to the matter under investigation,

22 under such procedures as the administering author23 ity and the Commission may establish to prevent

24 disclosure, other than with the consent of the party

25 providing it or under protective order, of any infor-
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1 mation to which confidential treatment has been

2 given by the administering authority.

3 ‘‘SEC. 803. PRELIMINARY DETERMINATIONS.

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

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

7 petition dismissed by the administering authority

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

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

10 based on the information available to it at the time

11 of the determination, whether there is a reasonable

12 indication that—

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

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

15 or

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

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

19 the United States is or has been materially re20 tarded,

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

22 Commission makes a negative determination under

23 this paragraph, the investigation shall be termi24 nated.
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1 ‘‘(2) TIME FOR COMMISSION DETERMINA2 TION.—The Commission shall make the determina3 tion described in paragraph (1) within 90 days after

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

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

6 within 90 days after the date on which the Commis7 sion receives notice from the administering authority

8 that the investigation has been initiated under such

9 section.

10 ‘‘(b) PRELIMINARY DETERMINATION BY ADMIN11 ISTERING AUTHORITY.—

12 ‘‘(1) PERIOD OF INJURIOUS PRICING INVES13 TIGATION.—

14 ‘‘(A) IN GENERAL.—The administering au15 thority shall make a determination, based upon

16 the information available to it at the time of the

17 determination, of whether there is a reasonable

18 basis to believe or suspect that the subject ves19 sel was sold at less than fair value.

20 ‘‘(B) COST DATA USED FOR NORMAL

21 VALUE.—If cost data is required to determine

22 normal value on the basis of a sale of a foreign

23 like vessel that has not been delivered on or be24 fore the date on which the administering au25 thority initiates the investigation, the admin-
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1 istering authority shall make its determination

2 within 160 days after the date of delivery of the

3 foreign like vessel.

4 ‘‘(C) NORMAL VALUE BASED ON CON5 STRUCTED VALUE.—If normal value is to be de6 termined on the basis of constructed value, the

7 administering authority shall make its deter8 mination within 160 days after the date of de9 livery of the subject vessel.

10 ‘‘(D) OTHER CASES.—In cases in which

11 subparagraph (B) or (C) does not apply, the

12 administering authority shall make its deter13 mination within 160 days after the date on

14 which the administering authority initiates the

15 investigation under section 802.

16 ‘‘(E) AFFIRMATIVE DETERMINATION BY

17 COMMISSION REQUIRED.—In no event shall the

18 administering authority make its determination

19 before an affirmative determination is made by

20 the Commission under subsection (a).

21 ‘‘(2) DE MINIMIS INJURIOUS PRICING MAR22 GIN.—In making a determination under this sub23 section, the administering authority shall disregard

24 any injurious pricing margin that is de minimis. For

25 purposes of the preceding sentence, an injurious
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1 pricing margin is de minimis if the administering

2 authority determines that the injurious pricing mar3 gin is less than 2 percent of the export price.

4 ‘‘(c) EXTENSION OF PERIOD IN EXTRAORDINARILY

5 COMPLICATED CASES OR FOR GOOD CAUSE.—

6 ‘‘(1) IN GENERAL.—If—

7 ‘‘(A) the administering authority concludes

8 that the parties concerned are cooperating and

9 determines that—

10 ‘‘(i) the case is extraordinarily com11 plicated by reason of—

12 ‘‘(I) the novelty of the issues pre13 sented, or

14 ‘‘(II) the nature and extent of

15 the information required, and

16 ‘‘(ii) additional time is necessary to

17 make the preliminary determination, or

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

19 an extension and demonstrates good cause for

20 the extension,

21 then the administering authority may postpone the

22 time for making its preliminary determination.

23 ‘‘(2) LENGTH OF POSTPONEMENT.—The pre24 liminary determination may be postponed under
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1 paragraph (1) (A) or (B) until not later than the

2 190th day after—

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

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

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

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

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

8 authority initiates an investigation under sec9 tion 802, in a case in which subsection

10 (b)(1)(D) applies.

11 ‘‘(3) NOTICE OF POSTPONEMENT.—The admin12 istering authority shall notify the parties to the in13 vestigation, not later than 20 days before the date

14 on which the preliminary determination would other15 wise be required under subsection (b)(1), if it in16 tends to postpone making the preliminary deter17 mination under paragraph (1). The notification shall

18 include an explanation of the reasons for the post19 ponement, and notice of the postponement shall be

20 published in the Federal Register.

21 ‘‘(d) EFFECT OF DETERMINATION BY THE ADMIN22 ISTERING AUTHORITY.—If the preliminary determination

23 of the administering authority under subsection (b) is af24 firmative, the administering authority shall—
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1 ‘‘(1) determine an estimated injurious pricing

2 margin, and

3 ‘‘(2) make available to the Commission all in4 formation upon which its determination was based

5 and which the Commission considers relevant to its

6 injury determination, under such procedures as the

7 administering authority and the Commission may es8 tablish to prevent disclosure, other than with the

9 consent of the party providing it or under protective

10 order, of any information to which confidential treat11 ment has been given by the administering authority.

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

13 Commission or the administering authority makes a deter14 mination under this section, the Commission or the admin15 istering authority, as the case may be, shall notify the pe16 titioner, and other parties to the investigation, and the

17 Commission or the administering authority (whichever is

18 appropriate) of its determination. The administering au19 thority shall include with such notification the facts and

20 conclusions on which its determination is based. Not later

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

22 required to be made under subsection (a)(2), the Commis23 sion shall transmit to the administering authority the facts

24 and conclusions on which its determination is based.
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1 ‘‘SEC. 804. TERMINATION OR SUSPENSION OF INVESTIGA2 TION.

3 ‘‘(a) TERMINATION OF INVESTIGATION UPON WITH4 DRAWAL OF PETITION.—

5 ‘‘(1) IN GENERAL.—Except as provided in para6 graph (2), an investigation under this subtitle may

7 be terminated by either the administering authority

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

9 investigation, upon withdrawal of the petition by the

10 petitioner.

11 ‘‘(2) LIMITATION ON TERMINATION BY COMMIS12 SION.—The Commission may not terminate an in13 vestigation under paragraph (1) before a preliminary

14 determination is made by the administering author15 ity under section 803(b).

16 ‘‘(b) TERMINATION OF INVESTIGATIONS INITIATED

17 BY ADMINISTERING AUTHORITY.—The administering au18 thority may terminate any investigation initiated by the

19 administering authority under section 802(a) after provid20 ing notice of such termination to all parties to the inves21 tigation.

22 ‘‘(c) ALTERNATE EQUIVALENT REMEDY.—The cri23 teria set forth in subparagraphs (A) through (D) of sec24 tion 806(e)(1) shall apply to any agreement that forms

25 the basis for termination of an investigation under sub26 section (a) or (b).
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1 ‘‘(d) PROCEEDINGS BY WTO MEMBERS.—

2 ‘‘(1) SUSPENSION OF INVESTIGATION.—The ad3 ministering authority and the Commission shall sus4 pend an investigation under this section if a WTO

5 member that is not a Shipbuilding Agreement Party

6 initiates an antidumping proceeding described in sec7 tion 861(30)(A) with respect to the sale of the sub8 ject vessel.

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

10 antidumping proceeding described in paragraph (1)

11 is concluded by—

12 ‘‘(A) the imposition of antidumping meas13 ures, or

14 ‘‘(B) a negative determination with respect

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

16 with respect to injury,

17 the administering authority and the Commission

18 shall terminate the investigation under this section.

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

20 If such a proceeding—

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

22 result described in paragraph (2), or

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

24 the date of the initiation of the proceeding,
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1 then the administering authority and the Commis2 sion shall terminate the suspension and continue the

3 investigation. The period in which the investigation

4 was suspended shall not be included in calculating

5 deadlines applicable with respect to the investigation.

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

7 the proceeding is concluded by a result described in

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

9 the Commission shall terminate the investigation

10 under this section.

11 ‘‘SEC. 805. FINAL DETERMINATIONS.

12 ‘‘(a) DETERMINATIONS BY ADMINISTERING AUTHOR13 ITY.—

14 ‘‘(1) IN GENERAL.—Within 75 days after the

15 date of its preliminary determination under section

16 803(b), the administering authority shall make a

17 final determination of whether the vessel which is

18 the subject of the investigation has been sold in the

19 United States at less than its fair value.

20 ‘‘(2) EXTENSION OF PERIOD FOR DETERMINA21 TION.—

22 ‘‘(A) GENERAL RULE.—The administering

23 authority may postpone making the final deter24 mination under paragraph (1) until not later

25 than 290 days after—
27

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1 ‘‘(i) the date of delivery of the foreign

2 like vessel, in an investigation to which

3 section 803(b)(1)(B) applies,

4 ‘‘(ii) the date of delivery of the subject

5 vessel, in an investigation to which section

6 803(b)(1)(C) applies, or

7 ‘‘(iii) the date on which the admin8 istering authority initiates the investigation

9 under section 802, in an investigation to

10 which section 803(b)(1)(D) applies.

11 ‘‘(B) REQUEST REQUIRED.—The admin12 istering authority may apply subparagraph (A)

13 if a request in writing is made by—

14 ‘‘(i) the producer of the subject vessel,

15 in a proceeding in which the preliminary

16 determination by the administering author17 ity under section 803(b) was affirmative,

18 or

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

20 which the preliminary determination by the

21 administering authority under section

22 803(b) was negative.

23 ‘‘(3) DE MINIMIS INJURIOUS PRICING MAR24 GIN.—In making a determination under this sub25 section, the administering authority shall disregard
28

•S 1216 PCS

1 any injurious pricing margin that is de minimis as

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

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

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

5 make a final determination of whether—

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

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

8 or

9 ‘‘(ii) is threatened with material in10 jury, or

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

12 the United States is or has been materially re13 tarded,

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

15 which the administering authority has made an af16 firmative determination under subsection (a)(1).

17 ‘‘(2) PERIOD FOR INJURY DETERMINATION

18 FOLLOWING AFFIRMATIVE PRELIMINARY DETER19 MINATION BY ADMINISTERING AUTHORITY.—If the

20 preliminary determination by the administering au21 thority under section 803(b) is affirmative, then the

22 Commission shall make the determination required

23 by paragraph (1) before the later of—

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

25 the administering authority makes its affirma-
29

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1 tive preliminary determination under section

2 803(b), or

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

4 the administering authority makes its affirma5 tive final determination under subsection (a).

6 ‘‘(3) PERIOD FOR INJURY DETERMINATION

7 FOLLOWING NEGATIVE PRELIMINARY DETERMINA8 TION BY ADMINISTERING AUTHORITY.—If the pre9 liminary determination by the administering author10 ity under section 803(b) is negative, and its final de11 termination under subsection (a) is affirmative, then

12 the final determination by the Commission under

13 this subsection shall be made within 75 days after

14 the date of that affirmative final determination.

15 ‘‘(c) EFFECT OF FINAL DETERMINATIONS.—

16 ‘‘(1) EFFECT OF AFFIRMATIVE DETERMINATION

17 BY THE ADMINISTERING AUTHORITY.—If the deter18 mination of the administering authority under sub19 section (a) is affirmative, then the administering au20 thority shall—

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

22 information upon which such determination was

23 based and which the Commission considers rel24 evant to its determination, under such proce25 dures as the administering authority and the
30

•S 1216 PCS

1 Commission may establish to prevent disclosure,

2 other than with the consent of the party provid3 ing it or under protective order, of any informa4 tion as to which confidential treatment has been

5 given by the administering authority, and

6 ‘‘(B) calculate an injurious pricing charge

7 in an amount equal to the amount by which the

8 normal value exceeds the export price of the

9 subject vessel.

10 ‘‘(2) ISSUANCE OF ORDER; EFFECT OF NEGA11 TIVE DETERMINATION.—If the determinations of the

12 administering authority and the Commission under

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

14 the administering authority shall issue an injurious

15 pricing order under section 806. If either of such de16 terminations is negative, the investigation shall be

17 terminated upon the publication of notice of that

18 negative determination.

19 ‘‘(d) PUBLICATION OF NOTICE OF DETERMINA20 TIONS.—Whenever the administering authority or the

21 Commission makes a determination under this section, it

22 shall notify the petitioner, other parties to the investiga23 tion, and the other agency of its determination and of the

24 facts and conclusions of law upon which the determination
31

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

2 in the Federal Register.

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

4 administering authority shall establish procedures for the

5 correction of ministerial errors in final determinations

6 within a reasonable time after the determinations are is7 sued under this section. Such procedures shall ensure op8 portunity for interested parties to present their views re9 garding any such errors. As used in this subsection, the

10 term ‘ministerial error’ includes errors in addition, sub11 traction, or other arithmetic function, clerical errors re12 sulting from inaccurate copying, duplication, or the like,

13 and any other type of unintentional error which the ad14 ministering authority considers ministerial.

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

16 PRICING CHARGE.

17 ‘‘(a) IN GENERAL.—Within 7 days after being noti18 fied by the Commission of an affirmative determination

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

20 publish an order imposing an injurious pricing charge on

21 the foreign producer of the subject vessel which—

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

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

24 the designee of the Secretary, within 180 days from

25 the date of publication of the order, an injurious
32

•S 1216 PCS

1 pricing charge in an amount equal to the amount by

2 which the normal value exceeds the export price of

3 the subject vessel,

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

5 foreign producer and a description of the subject

6 vessel, in such detail as the administering authority

7 deems necessary, and

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

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

10 charge in a timely fashion may result in the im11 position of countermeasures with respect to that

12 producer under section 807,

13 ‘‘(B) payment made after the deadline de14 scribed in paragraph (1) shall be subject to in15 terest charges at the Commercial Interest Ref16 erence Rate (CIRR), and

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

18 extension of the due date for payment under

19 subsection (b).

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

21 EXTRAORDINARY CIRCUMSTANCES.—

22 ‘‘(1) EXTENSION.—Upon request, the admin23 istering authority may amend the order under sub24 section (a) to set a due date for payment or pay25 ments later than the date that is 180 days from the
33

•S 1216 PCS

1 date of publication of the order, if the administering

2 authority determines that full payment in 180 days

3 would render the producer insolvent or would be in4 compatible with a judicially supervised reorganiza5 tion. When an extended payment schedule provides

6 for a series of partial payments, the administering

7 authority shall specify the circumstances under

8 which default on one or more payments will result

9 in the imposition of countermeasures.

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

11 granted under paragraph (1), payments made after

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

13 order shall be subject to interest charges at the

14 CIRR.

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

16 authority shall deliver a copy of the order requesting pay17 ment to the foreign producer of the subject vessel and to

18 an appropriate representative of the government of the ex19 porting country.

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

21 authority—

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

23 the administering authority determines that produc24 ers accounting for substantially all of the capacity to
34

•S 1216 PCS

1 produce a domestic like vessel have expressed a lack

2 of interest in the order, and

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

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

5 subject of the injurious pricing determination is

6 voided,

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

8 in full, including any interest accrued for late

9 payment,

10 ‘‘(C) upon full implementation of an alter11 native equivalent remedy described in sub12 section (e), or

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

14 was at issue in the investigation that resulted

15 in the injurious pricing order, an antidumping

16 proceeding conducted by a WTO member who

17 is not a Shipbuilding Agreement Party has been

18 completed and resulted in the imposition of

19 antidumping measures.

20 ‘‘(e) ALTERNATIVE EQUIVALENT REMEDY.—

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

22 The administering authority may suspend an injuri23 ous pricing order if the administering authority en24 ters into an agreement with the foreign producer

25 subject to the order on an alternative equivalent
35

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1 remedy, that the administering authority deter2 mines—

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

4 the injurious pricing charge,

5 ‘‘(B) is in the public interest,

6 ‘‘(C) can be effectively monitored and en7 forced, and

8 ‘‘(D) is otherwise consistent with the do9 mestic law and international obligations of the

10 United States.

11 ‘‘(2) PRIOR CONSULTATIONS AND SUBMISSION

12 OF COMMENTS.—Before entering into an agreement

13 under paragraph (1), the administering authority

14 shall consult with the industry, and provide for the

15 submission of comments by interested parties, with

16 respect to the agreement.

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

18 If the injurious pricing order has been suspended

19 under paragraph (1), and the administering author20 ity determines that the foreign producer concerned

21 has materially violated the terms of the agreement

22 under paragraph (1), the administering authority

23 shall terminate the suspension.

24 ‘‘SEC. 807. IMPOSITION OF COUNTERMEASURES.

25 ‘‘(a) GENERAL RULE.—
36

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1 ‘‘(1) ISSUANCE OF ORDER IMPOSING COUNTER2 MEASURES.—Unless an injurious pricing order is re3 voked or suspended under section 806 (d) or (e), the

4 administering authority shall issue an order impos5 ing countermeasures.

6 ‘‘(2) CONTENTS OF ORDER.—The counter7 measure order shall—

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

9 a permit to lade or unlade passengers or mer10 chandise may not be issued with respect to ves11 sels contracted to be built by the foreign pro12 ducer of the vessel with respect to which an in13 jurious pricing order was issued under section

14 806, and

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

16 prohibition on the issuance of a permit to lade

17 or unlade passengers or merchandise.

18 ‘‘(b) NOTICE OF INTENT TO IMPOSE COUNTER19 MEASURES.—

20 ‘‘(1) GENERAL RULE.—The administering au21 thority shall issue a notice of intent to impose coun22 termeasures not later than 30 days before the expi23 ration of the time for payment specified in the inju24 rious pricing order (or extended payment provided

25 for under section 806(b)), and shall publish the no-
37

•S 1216 PCS

1 tice in the Federal Register within 7 days after issu2 ing the notice.

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

4 The notice of intent shall contain at least the follow5 ing elements:

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

7 passengers or merchandise may not be issued

8 with respect to any vessel—

9 ‘‘(i) built by the foreign producer sub10 ject to the proposed countermeasures, and

11 ‘‘(ii) with respect to which the mate12 rial terms of sale are established within a

13 period of 4 consecutive years beginning on

14 the date that is 30 days after publication

15 in the Federal Register of the notice of in16 tent described in paragraph (1).

17 ‘‘(B) DURATION.—For each vessel de18 scribed in subparagraph (A), a permit to lade

19 or unlade passengers or merchandise may not

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

21 of delivery of the vessel.

22 ‘‘(c) DETERMINATION TO IMPOSE COUNTER23 MEASURES; ORDER.—

24 ‘‘(1) GENERAL RULE.—The administering au25 thority shall, within the time specified in paragraph
38

•S 1216 PCS

1 (2), issue a determination and order imposing coun2 termeasures.

3 ‘‘(2) TIME FOR DETERMINATION.—The deter4 mination shall be issued within 90 days after the

5 date on which the notice of intent to impose counter6 measures under subsection (b) is published in the

7 Federal Register. The administering authority shall

8 publish the determination, and the order described

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

10 days after issuing the final determination, and shall

11 provide a copy of the determination and order to the

12 Customs Service.

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

14 the determination imposing countermeasures, the

15 administering authority shall determine whether, in

16 light of all of the circumstances, an interested party

17 has demonstrated that the scope or duration of the

18 countermeasures described in subsection (b)(2)

19 should be narrower or shorter than the scope or du20 ration set forth in the notice of intent to impose

21 countermeasures.

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

23 determination, the administering authority shall

24 issue an order imposing countermeasures, consistent

25 with its determination under paragraph (1).
39

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1 ‘‘(d) ADMINISTRATIVE REVIEW OF DETERMINATION

2 TO IMPOSE COUNTERMEASURES.—

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

4 anniversary month of the issuance of the order im5 posing countermeasures under subsection (c), the

6 administering authority shall publish in the Federal

7 Register a notice providing that interested parties

8 may request—

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

10 the countermeasures determined under sub11 section (c)(3), and

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

13 review.

14 ‘‘(2) REVIEW.—If a proper request has been re15 ceived under paragraph (1), the administering au16 thority shall—

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

18 in the Federal Register not later than 15 days

19 after the end of the anniversary month of the

20 issuance of the order imposing counter21 measures, and

22 ‘‘(B) review and determine whether the re23 questing party has demonstrated that the scope

24 or duration of the countermeasures is excessive

25 in light of all of the circumstances.
40

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

2 authority shall make its determination under para3 graph (2)(B) within 90 days after the date on which

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

5 the determination under paragraph (2)(B) is affirm6 ative, the administering authority shall amend the

7 order accordingly. The administering authority shall

8 promptly publish the determination and any amend9 ment to the order in the Federal Register, and shall

10 provide a copy of any amended order to the Customs

11 Service. In extraordinary circumstances, the admin12 istering authority may extend the time for its deter13 mination under paragraph (2)(B) to not later than

14 150 days after the date on which the notice of initi15 ation of the review is published.

16 ‘‘(e) EXTENSION OF COUNTERMEASURES.—

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

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

19 may file with the administering authority a request

20 that the scope or duration of countermeasures be ex21 tended.

22 ‘‘(2) DEADLINE FOR REQUEST FOR EXTEN23 SION.—

24 ‘‘(A) REQUEST FOR EXTENSION BEYOND 4

25 YEARS.—If the request seeks an extension that
41

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1 would cause the scope or duration of counter2 measures to exceed 4 years, including any prior

3 extensions, the request for extension under

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

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

6 date that is 12 months, before the date that

7 marks the end of the period that specifies the

8 vessels that fall within the scope of the order by

9 virtue of the establishment of material terms of

10 sale within that period.

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

12 seeks an extension under paragraph (1) other

13 than one described in subparagraph (A), the re14 quest shall be filed not earlier than the date

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

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

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

18 ‘‘(3) DETERMINATION.—

19 ‘‘(A) NOTICE OF REQUEST FOR EXTEN20 SION.—If a proper request has been received

21 under paragraph (1), the administering author22 ity shall publish notice of initiation of an exten23 sion proceeding in the Federal Register not

24 later than 15 days after the applicable deadline

25 in paragraph (2) for requesting the extension.
42

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1 ‘‘(B) PROCEDURES.—

2 ‘‘(i) REQUESTS FOR EXTENSION BE3 YOND 4 YEARS.—If paragraph (2)(A) ap4 plies to the request, the administering au5 thority shall consult with the Trade Rep6 resentative under paragraph (4).

7 ‘‘(ii) OTHER REQUESTS.—If para8 graph (2)(B) applies to the request, the

9 administering authority shall determine,

10 within 90 days after the date on which the

11 notice of initiation of the proceeding is

12 published, whether the requesting party

13 has demonstrated that the scope or dura14 tion of the countermeasures is inadequate

15 in light of all of the circumstances. If the

16 administering authority determines that an

17 extension is warranted, it shall amend the

18 countermeasure order accordingly. The ad19 ministering authority shall promptly pub20 lish the determination and any amendment

21 to the order in the Federal Register, and

22 shall provide a copy of any amended order

23 to the Customs Service.

24 ‘‘(4) CONSULTATION WITH TRADE REPRESENT25 ATIVE.—If paragraph (3)(B)(i) applies, the admin-
43

•S 1216 PCS

1 istering authority shall consult with the Trade Rep2 resentative concerning whether it would be appro3 priate to request establishment of a dispute settle4 ment panel under the Shipbuilding Agreement for

5 the purpose of seeking authorization to extend the

6 scope or duration of countermeasures for a period in

7 excess of 4 years.

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

9 based on consultations under paragraph (4), the

10 Trade Representative decides not to request estab11 lishment of a panel, the Trade Representative shall

12 inform the party requesting the extension of the

13 countermeasures of the reasons for its decision in

14 writing. The decision shall not be subject to judicial

15 review.

16 ‘‘(6) PANEL PROCEEDINGS.—If, based on con17 sultations under paragraph (4), the Trade Rep18 resentative requests the establishment of a panel

19 under the Shipbuilding Agreement to authorize an

20 extension of the period of countermeasures, and the

21 panel authorizes such an extension, the administer22 ing authority shall promptly amend the counter23 measure order. The administering authority shall

24 publish notice of the amendment in the Federal Reg25 ister.
44

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1 ‘‘(f) LIST OF VESSELS SUBJECT TO COUNTER2 MEASURES.—

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

4 each 12-month period beginning on the anniversary

5 date of a determination to impose countermeasures

6 under this section, the administering authority shall

7 publish in the Federal Register a list of all delivered

8 vessels subject to countermeasures under the deter9 mination.

10 ‘‘(2) CONTENT OF LIST.—The list under para11 graph (1) shall include the following information for

12 each vessel, to the extent the information is avail13 able:

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

15 the vessel.

16 ‘‘(B) The vessel identification number.

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

18 constructed.

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

20 ‘‘(E) The name and address of the last21 known owner of the vessel.

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

23 ‘‘(G) The remaining duration of counter24 measures on the vessel.
45

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1 ‘‘(H) Any other identifying information

2 available.

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

4 authority may amend the list from time to time to

5 reflect new information that comes to its attention

6 and shall publish any amendments in the Federal

7 Register.

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

9 ‘‘(A) SERVICE OF LIST.—The administer10 ing authority shall serve a copy of the list de11 scribed in paragraph (1) on—

12 ‘‘(i) the petitioner under section

13 802(b),

14 ‘‘(ii) the United States Customs Serv15 ice,

16 ‘‘(iii) the Secretariat of the Organiza17 tion for Economic Cooperation and Devel18 opment,

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

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

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

22 which a shipyard on the list is located.

23 ‘‘(B) SERVICE OF AMENDMENTS.—The ad24 ministering authority shall serve a copy of any
46

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1 amendments to the list under paragraph (3) or

2 subsection (g)(3) on—

3 ‘‘(i) the parties listed in clauses (i),

4 (ii), and (iii) of subparagraph (A), and

5 ‘‘(ii) if the amendment affects their

6 interests, the parties listed in clauses (iv),

7 (v), and (vi) of subparagraph (A).

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

9 SUBJECT TO COUNTERMEASURES.—

10 ‘‘(1) REQUEST FOR REVIEW.—

11 ‘‘(A) IN GENERAL.—An interested party

12 may request in writing a review of the list de13 scribed in subsection (f)(1), including any

14 amendments thereto, to determine whether—

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

16 not fall within the scope of the applicable

17 countermeasure order and should be de18 leted, or

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

20 falls within the scope of the applicable

21 countermeasure order and should be

22 added.

23 ‘‘(B) TIME FOR MAKING REQUEST.—Any

24 request seeking a determination described in

25 subparagraph (A)(i) shall be made within 90
47

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1 days after the date of publication of the appli2 cable list.

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

4 has been received, the administering authority

5 shall—

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

7 in the Federal Register—

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

9 request is received, or

10 ‘‘(ii) if the request seeks a determina11 tion described in paragraph (1)(A)(i), not

12 later than 15 days after the deadline de13 scribed in paragraph (1)(B), and

14 ‘‘(B) review and determine whether the re15 questing party has demonstrated that—

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

17 not qualify for such inclusion, or

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

19 qualifies for inclusion.

20 ‘‘(3) TIME FOR DETERMINATION.—The admin21 istering authority shall make its determination under

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

23 which the notice of initiation of such review is pub24 lished. If the administering authority determines

25 that a vessel should be added or deleted from the
48

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1 list, the administering authority shall amend the list

2 accordingly. The administering authority shall

3 promptly publish in the Federal Register the deter4 mination and any such amendment to the list.

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

6 expiration of a countermeasure order imposed under this

7 section, the administering authority shall promptly publish

8 a notice of the expiration in the Federal Register.

9 ‘‘(i) SUSPENSION OR TERMINATION OF PROCEED10 INGS OR COUNTERMEASURES; TEMPORARY REDUCTION

11 OF COUNTERMEASURES.—

12 ‘‘(1) IF INJURIOUS PRICING ORDER REVOKED

13 OR SUSPENDED.—If an injurious pricing order has

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

15 (e), the administering authority shall, as appro16 priate, suspend or terminate proceedings under this

17 section with respect to that order, or suspend or re18 voke a countermeasure order issued with respect to

19 that injurious pricing order.

20 ‘‘(2) IF PAYMENT DATE AMENDED.—

21 ‘‘(A) SUSPENSION OR MODIFICATION OF

22 DEADLINE.—Subject to subparagraph (C), if

23 the payment date under an injurious pricing

24 order is amended under section 845, the admin25 istering authority shall, as appropriate, suspend
49

•S 1216 PCS

1 proceedings or modify deadlines under this sec2 tion, or suspend or amend a countermeasure

3 order issued with respect to that injurious pric4 ing order.

5 ‘‘(B) DATE FOR APPLICATION OF COUN6 TERMEASURE.—In taking action under sub7 paragraph (A), the administering authority

8 shall ensure that countermeasures are not ap9 plied before the date that is 30 days after publi10 cation in the Federal Register of the amended

11 payment date.

12 ‘‘(C) REINSTITUTION OF PROCEEDINGS.—

13 If—

14 ‘‘(i) a countermeasure order is issued

15 under subsection (c) before an amendment

16 is made under section 845 to the payment

17 date of the injurious pricing order to which

18 the countermeasure order applies, and

19 ‘‘(ii) the administering authority de20 termines that the period of time between

21 the original payment date and the amend22 ed payment date is significant for purposes

23 of determining the appropriate scope or

24 duration of countermeasures,
50

•S 1216 PCS

1 the administering authority may, in lieu of act2 ing under subparagraph (A), reinstitute pro3 ceedings under subsection (c) for purposes of is4 suing a new determination under that sub5 section.

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

7 proceeding under subsection (c), (d), (e), or (g), the ad8 ministering authority—

9 ‘‘(1) shall solicit comments from interested par10 ties, and

11 ‘‘(2)(A) in a proceeding under subsection (c),

12 (d), or (e), upon the request of an interested party,

13 shall hold a hearing in accordance with section

14 841(b) in connection with that proceeding, or

15 ‘‘(B) in a proceeding under subsection (g), upon

16 the request of an interested party, may hold a hear17 ing in accordance with section 841(b) in connection

18 with that proceeding.

19 ‘‘SEC. 808. INJURIOUS PRICING PETITIONS BY THIRD COUN20 TRIES.

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

22 Shipbuilding Agreement Party may file with the Trade

23 Representative a petition requesting that an investigation

24 be conducted to determine if—
51

•S 1216 PCS

1 ‘‘(1) a vessel from another Shipbuilding Agree2 ment Party has been sold directly or indirectly to

3 one or more United States buyers at less than fair

4 value, and

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

6 producing or capable of producing a like vessel is

7 materially injured by reason of such sale.

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

9 consultation with the administering authority and the

10 Commission and obtaining the approval of the Parties

11 Group under the Shipbuilding Agreement, shall determine

12 whether to initiate an investigation described in subsection

13 (a).

14 ‘‘(c) DETERMINATIONS.—Upon initiation of an inves15 tigation under subsection (a), the Trade Representative

16 shall request the following determinations be made in ac17 cordance with substantive and procedural requirements

18 specified by the Trade Representative, notwithstanding

19 any other provision of this title:

20 ‘‘(1) SALE AT LESS THAN FAIR VALUE.—The

21 administering authority shall determine whether the

22 subject vessel has been sold at less than fair value.

23 ‘‘(2) INJURY TO INDUSTRY.—The Commission

24 shall determine whether an industry in the petition25 ing country is or has been materially injured by rea-
52

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1 son of the sale of the subject vessel in the United

2 States.

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

4 comment shall be provided, as appropriate—

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

6 the determinations required by subsection (b), and

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

8 Commission, in making the determinations required

9 by subsection (c).

10 ‘‘(e) ISSUANCE OF ORDER.—If the administering au11 thority makes an affirmative determination under para12 graph (1) of subsection (c), and the Commission makes

13 an affirmative determination under paragraph (2) of sub14 section (c), the administering authority shall—

15 ‘‘(1) order an injurious pricing charge in ac16 cordance with section 806, and

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

18 other actions as are required by sections 806 and

19 807, as if affirmative determinations had been made

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

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

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

23 subsection (e)—

24 ‘‘(1) the final determinations of the administer25 ing authority and the Commission under subsection
53

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1 (c) shall be treated as final determinations made

2 under section 805, and

3 ‘‘(2) determinations of the administering au4 thority under subsection (e)(2) shall be treated as

5 determinations made under section 806 or 807, as

6 the case may be.

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

8 apply to investigations under this section, to the extent

9 specified by the Trade Representative, after consultation

10 with the administering authority and the Commission.

11 ‘‘SEC. 809. THIRD COUNTRY INJURIOUS PRICING.

12 ‘‘(a) PETITION BY DOMESTIC INDUSTRY.—

13 ‘‘(1) With respect to the sale of a vessel to a

14 buyer in a Shipbuilding Agreement Party, any inter15 ested party who would be eligible to file a petition

16 under section 802(b)(1) with respect to the sale if

17 it had been to a United States buyer, if it has rea18 son to believe that—

19 ‘‘(A) the vessel has been sold at less than

20 fair value, and

21 ‘‘(B) an industry in the United States is or

22 has been materially injured, or is threatened

23 with material injury by reason of the sale of the

24 vessel,
54

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1 may submit a petition to the Trade Representative

2 that alleges the elements referred to in subpara3 graphs (A) and (B) and requests the Trade Rep4 resentative to take action under subsection (b) of

5 this section on behalf of the domestic industry.

6 ‘‘(2) A petition submitted under paragraph (1)

7 shall contain such detailed information as the Trade

8 Representative may require in support of the allega9 tions in the petition.

10 ‘‘(b) APPLICATION FOR INJURIOUS PRICING ACTION

11 ON BEHALF OF THE DOMESTIC INDUSTRY.—

12 ‘‘(1) If the Trade Representative, on the basis

13 of the information contained in a petition submitted

14 under subsection (a), determines that there is a rea15 sonable basis for the allegations in the petition, the

16 Trade Representative shall submit to the appro17 priate authority of the Shipbuilding Agreement

18 Party where the alleged injurious pricing is occur19 ring an application pursuant to Article 10 of Annex

20 III of the Shipbuilding Agreement. The application

21 shall request that appropriate injurious pricing ac22 tion be taken on behalf of the United States with re23 spect to the sale of the vessel under the law of the

24 country of that Party consistent with the terms of

25 the Shipbuilding Agreement.
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1 ‘‘(2) At the request of the Trade Representa2 tive, the appropriate officers of the Department of

3 Commerce and the United States International

4 Trade Commission shall assist the Trade Represent5 ative in preparing the application under paragraph

6 (1).

7 ‘‘(c) CONSULTATION AFTER SUBMISSION OF APPLI8 CATION.—After submitting an application under sub9 section (b)(1), the Trade Representative shall seek con10 sultations with the appropriate authority of the Shipbuild11 ing Agreement Party regarding the request for injurious

12 pricing action.

13 ‘‘(d) ACTION UPON REFUSAL OF SHIPBUILDING

14 AGREEMENT PARTY TO ACT.—If the appropriate author15 ity of the Shipbuilding Agreement Party refuses to under16 take injurious pricing measures in response to a request

17 made by the Trade Representative under subsection (b),

18 the Trade Representative promptly shall consult with the

19 domestic industry on whether action under any other law

20 of the United States is appropriate.

21 ‘‘Subtitle B—Special Rules

22 ‘‘SEC. 821. EXPORT PRICE.

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

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

25 vessel is first sold (or agreed to be sold) by or for the
56

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1 account of the foreign producer of the subject vessel to

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

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

4 producer’ includes any transfer of an ownership interest,

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

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

8 buyer.

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

10 used to establish export price shall be—

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

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

14 by reason of the exportation of the subject vessel,

15 and

16 ‘‘(2) reduced by—

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

18 price, attributable to any additional costs,

19 charges, or expenses which are incident to

20 bringing the subject vessel from the shipyard in

21 the exporting country to the place of delivery,

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

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

3 buyer.

4 ‘‘SEC. 822. NORMAL VALUE.

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

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

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

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

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

10 normal value shall be determined as follows:

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

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

13 the subject vessel shall be the price described in

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

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

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

20 vessel is first sold in the exporting country,

21 in the ordinary course of trade and, to the

22 extent practicable, at the same level of

23 trade, or

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

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

2 country other than the exporting country

3 or the United States, if—

4 ‘‘(I) such price is representative,

5 and

6 ‘‘(II) the administering authority

7 does not determine that the particular

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

10 the export price.

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

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

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

16 ‘‘(ii) the particular market situation

17 in the exporting country does not permit a

18 proper comparison with the export price.

19 ‘‘(D) CONTEMPORANEOUS SALE.—For

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

22 means within 3 months before or after the sale

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

24 sales, such longer period as the administering

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

2 sale, and no sale intended to establish a fictitious

3 market, shall be taken into account in determining

4 normal value.

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

7 value of the subject vessel cannot be determined

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

9 value of the subject vessel shall be the constructed

10 value of that vessel, as determined under subsection

11 (e).

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

13 is sold through an affiliated party, the price at

14 which the foreign like vessel is sold by such affiliated

15 party may be used in determining normal value.

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

17 paragraph (1)(B) shall be—

18 ‘‘(A) reduced by—

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

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

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

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

2 directly upon the foreign like vessel or

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

5 the subject vessel, but only to the extent

6 that such taxes are added to or included in

7 the price of the foreign like vessel, and

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

9 incidental to placing the foreign like vessel

10 in condition for delivery to the buyer, and

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

12 of any difference (or lack thereof) between the

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

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

17 the administering authority to be wholly or

18 partly due to—

19 ‘‘(i) physical differences between the

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

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

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

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

2 any difference (or lack thereof) between the export

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

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

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

7 between the export price and normal value, if the

8 difference in level of trade—

9 ‘‘(A) involves the performance of different

10 selling activities, and

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

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

15 value is determined.

16 In a case described in the preceding sentence, the

17 amount of the adjustment shall be based on the

18 price differences between the two levels of trade in

19 the country in which normal value is determined.

20 ‘‘(7) ADJUSTMENTS TO CONSTRUCTED

21 VALUE.—Constructed value as determined under

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

24 ‘‘(b) SALES AT LESS THAN COST OF PRODUCTION.—
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•S 1216 PCS

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

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

4 the foreign like vessel under consideration for the

5 determination of normal value has been made at a

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

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

10 administering authority determines that the sale was

11 made at less than the cost of production and was

12 not at a price which permits recovery of all costs

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

14 determination of normal value. Whenever such a sale

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

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

18 course of trade remain, the normal value shall be

19 based on the constructed value of the subject vessel.

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

21 purposes of this subsection:

22 ‘‘(A) REASONABLE GROUNDS TO BELIEVE

23 OR SUSPECT.—There are reasonable grounds to

24 believe or suspect that the sale of a foreign like

25 vessel was made at a price that is less than the
63

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1 cost of production of the vessel, if an interested

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

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

4 based upon observed prices or constructed

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

6 vessel under consideration for the determination

7 of normal value has been made at a price which

8 represents less than the cost of production of

9 the vessel.

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

11 below the cost of production at the time of sale

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

14 price shall be considered to provide for recovery

15 of costs within 5 years.

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

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

21 in producing the foreign like vessel, during a

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

24 business, and
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•S 1216 PCS

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

2 administrative expenses based on actual data

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

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

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

7 sold in a country other than the exporting country,

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

11 which are remitted or refunded upon exportation.

12 ‘‘(c) NONMARKET ECONOMY COUNTRIES.—

13 ‘‘(1) IN GENERAL.—If—

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

15 nonmarket economy country, and

16 ‘‘(B) the administering authority finds that

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

19 under subsection (a), the administering author20 ity shall determine the normal value of the sub21 ject vessel on the basis of the value of the fac22 tors of production utilized in producing the ves23 sel and to which shall be added an amount for

24 general expenses and profit plus the cost of ex25 penses incidental to placing the vessel in a con-
65

•S 1216 PCS

1 dition for delivery to the buyer. Except as pro2 vided in paragraph (2), the valuation of the fac3 tors of production shall be based on the best

4 available information regarding the values of

5 such factors in a market economy country or

6 countries considered to be appropriate by the

7 administering authority.

8 ‘‘(2) EXCEPTION.—If the administering author9 ity finds that the available information is inadequate

10 for purposes of determining the normal value of the

11 subject vessel under paragraph (1), the administer12 ing authority shall determine the normal value on

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

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

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

16 economy countries that are at a level of eco17 nomic development comparable to that of the

18 nonmarket economy country,

19 is sold in other countries, including the United

20 States.

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

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

23 in producing the vessel include, but are not limited

24 to—

25 ‘‘(A) hours of labor required,
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1 ‘‘(B) quantities of raw materials employed,

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

3 consumed, and

4 ‘‘(D) representative capital cost, including

5 depreciation.

6 ‘‘(4) VALUATION OF FACTORS OF PRODUC7 TION.—The administering authority, in valuing fac8 tors of production under paragraph (1), shall utilize,

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

10 of production in one or more market economy coun11 tries that are—

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

13 comparable to that of the nonmarket economy

14 country, and

15 ‘‘(B) significant producers of comparable

16 vessels.

17 ‘‘(d) SPECIAL RULE FOR CERTAIN MULTINATIONAL

18 CORPORATIONS.—Whenever, in the course of an investiga19 tion under this title, the administering authority deter20 mines that—

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

22 which are owned or controlled, directly or indirectly,

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

24 controls, directly or indirectly, other facilities for the
67

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1 production of a foreign like vessel which are located

2 in another country or countries,

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

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

5 produced in one or more of the facilities outside the

6 exporting country is higher than the normal value of

7 the foreign like vessel produced in the facilities lo8 cated in the exporting country,

9 the administering authority shall determine the normal

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

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

12 facilities outside the exporting country. The administering

13 authority, in making any determination under this sub14 section, shall make adjustments for the difference between

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

16 and overhead) of the foreign like vessel produced in facili17 ties outside the exporting country and costs of production

18 of the foreign like vessel produced in facilities in the ex19 porting country, if such differences are demonstrated to

20 its satisfaction.

21 ‘‘(e) CONSTRUCTED VALUE.—

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

23 the constructed value of a subject vessel shall be an

24 amount equal to the sum of—
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1 ‘‘(A) the cost of materials and fabrication

2 or other processing of any kind employed in

3 producing the subject vessel, during a period

4 which would ordinarily permit the production of

5 the vessel in the ordinary course of business,

6 and

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

8 realized by the foreign producer of the subject

9 vessel for selling, general, and administrative

10 expenses, and for profits, in connection with the

11 production and sale of a foreign like vessel, in

12 the ordinary course of trade, in the domestic

13 market of the country of origin of the subject

14 vessel, or

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

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

17 then—

18 ‘‘(I) the actual amounts incurred and

19 realized by the foreign producer of the sub20 ject vessel for selling, general, and admin21 istrative expenses, and for profits, in con22 nection with the production and sale of the

23 same general category of vessel in the do24 mestic market of the country of origin of

25 the subject vessel,
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•S 1216 PCS

1 ‘‘(II) the weighted average of the ac2 tual amounts incurred and realized by pro3 ducers in the country of origin of the sub4 ject vessel (other than the producer of the

5 subject vessel) for selling, general, and ad6 ministrative expenses, and for profits, in

7 connection with the production and sale of

8 a foreign like vessel, in the ordinary course

9 of trade, in the domestic market, or

10 ‘‘(III) if data are not available under

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

12 and realized for selling, general, and ad13 ministrative expenses, and for profits,

14 based on any other reasonable method, ex15 cept that the amount allowed for profit

16 may not exceed the amount normally real17 ized by foreign producers (other than the

18 producer of the subject vessel) in connec19 tion with the sale of vessels in the same

20 general category of vessel as the subject

21 vessel in the domestic market of the coun22 try of origin of the subject vessel.

23 For purposes of this paragraph, the profit shall be

24 based on the average profit realized over a reason25 able period of time before and after the sale of the
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•S 1216 PCS

1 subject vessel and shall reflect a reasonable profit

2 at the time of such sale. For purposes of the preced3 ing sentence, a ‘reasonable period of time’ shall not,

4 except where otherwise appropriate, exceed 6 months

5 before, or 6 months after, the sale of the subject

6 vessel. In calculating profit under this paragraph,

7 any distortion which would result in other than a

8 profit which is reasonable at the time of the sale

9 shall be eliminated.

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

11 REASONABLE METHODS.—When costs and profits

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

13 determination shall, except where otherwise appro14 priate, be based on appropriate export sales by the

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

16 to export sales by other producers of a foreign like

17 vessel or the same general category of vessel as the

18 subject vessel in the country of origin of the subject

19 vessel.

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

21 paragraph (1)(A), the cost of materials shall be de22 termined without regard to any internal tax in the

23 exporting country imposed on such materials or their

24 disposition which are remitted or refunded upon ex-
71

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1 portation of the subject vessel produced from such

2 materials.

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

4 PRODUCTION AND FOR CALCULATION OF CONSTRUCTED

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

6 ‘‘(1) COSTS.—

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

8 be calculated based on the records of the for9 eign producer of the subject vessel, if such

10 records are kept in accordance with the gen11 erally accepted accounting principles of the ex12 porting country and reasonably reflect the costs

13 associated with the production and sale of the

14 vessel. The administering authority shall con15 sider all available evidence on the proper alloca16 tion of costs, including that which is made

17 available by the foreign producer on a timely

18 basis, if such allocations have been historically

19 used by the foreign producer, in particular for

20 establishing appropriate amortization and de21 preciation periods, and allowances for capital

22 expenditures and other development costs.

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

24 be adjusted appropriately for those non-
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1 recurring costs that benefit current or future

2 production, or both.

3 ‘‘(C) STARTUP COSTS.—

4 ‘‘(i) IN GENERAL.—Costs shall be ad5 justed appropriately for circumstances in

6 which costs incurred during the time pe7 riod covered by the investigation are af8 fected by startup operations.

9 ‘‘(ii) STARTUP OPERATIONS.—Adjust10 ments shall be made for startup operations

11 only where—

12 ‘‘(I) a producer is using new pro13 duction facilities or producing a new

14 type of vessel that requires substantial

15 additional investment, and

16 ‘‘(II) production levels are limited

17 by technical factors associated with

18 the initial phase of commercial pro19 duction.

20 For purposes of subclause (II), the initial phase

21 of commercial production ends at the end of the

22 startup period. In determining whether com23 mercial production levels have been achieved,

24 the administering authority shall consider fac25 tors unrelated to startup operations that might
73

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1 affect the volume of production processed, such

2 as demand, seasonality, or business cycles.

3 ‘‘(iii) ADJUSTMENT FOR STARTUP OP4 ERATIONS.—The adjustment for startup

5 operations shall be made by substituting

6 the unit production costs incurred with re7 spect to the vessel at the end of the start8 up period for the unit production costs in9 curred during the startup period. If the

10 startup period extends beyond the period

11 of the investigation under this title, the ad12 ministering authority shall use the most

13 recent cost of production data that it rea14 sonably can obtain, analyze, and verify

15 without delaying the timely completion of

16 the investigation.

17 For purposes of this subparagraph, the startup

18 period ends at the point at which the level of

19 commercial production that is characteristic of

20 the vessel, the producer, or the industry is

21 achieved.

22 ‘‘(D) COSTS DUE TO EXTRAORDINARY CIR23 CUMSTANCES NOT INCLUDED.—Costs shall not

24 include actual costs which are due to extraor25 dinary circumstances (including, but not limited
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1 to, labor disputes, fire, and natural disasters)

2 and which are significantly over the cost in3 crease which the shipbuilder could have reason4 ably anticipated and taken into account at the

5 time of sale.

6 ‘‘(2) TRANSACTIONS DISREGARDED.—A trans7 action directly or indirectly between affiliated per8 sons may be disregarded if, in the case of any ele9 ment of value required to be considered, the amount

10 representing that element does not fairly reflect the

11 amount usually reflected in sales of a like vessel in

12 the market under consideration. If a transaction is

13 disregarded under the preceding sentence and no

14 other transactions are available for consideration,

15 the determination of the amount shall be based on

16 the information available as to what the amount

17 would have been if the transaction had occurred be18 tween persons who are not affiliated.

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

20 transaction between affiliated persons involving the

21 production by one of such persons of a major input

22 to the subject vessel, the administering authority has

23 reasonable grounds to believe or suspect that an

24 amount represented as the value of such input is

25 less than the cost of production of such input, then
75

•S 1216 PCS

1 the administering authority may determine the value

2 of the major input on the basis of the information

3 available regarding such cost of production, if such

4 cost is greater than the amount that would be deter5 mined for such input under paragraph (2).

6 ‘‘SEC. 823. CURRENCY CONVERSION.

7 ‘‘(a) IN GENERAL.—In an injurious pricing proceed8 ing under this title, the administering authority shall con9 vert foreign currencies into United States dollars using the

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

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

12 transaction on forward markets is directly linked to a sale

13 under consideration, the exchange rate specified with re14 spect to such foreign currency in the forward sale agree15 ment shall be used to convert the foreign currency.

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

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

18 where appropriate, the date on which the material terms

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

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

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

22 change in the date of sale, the administering authority

23 shall make appropriate adjustments to take into account

24 any unreasonable effect on the injurious pricing margin
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1 due only to fluctuations in the exchange rate between the

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

3 ‘‘Subtitle C—Procedures

4 ‘‘SEC. 841. HEARINGS.

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

6 and the Commission shall each hold a hearing in the

7 course of an investigation under this title, upon the re8 quest of any party to the investigation, before making a

9 final determination under section 805.

10 ‘‘(b) PROCEDURES.—Any hearing required or per11 mitted under this title shall be conducted after notice pub12 lished in the Federal Register, and a transcript of the

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

14 The hearing shall not be subject to the provisions of sub15 chapter II of chapter 5 of title 5, United States Code, or

16 to section 702 of such title.

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

18 AVAILABLE.

19 ‘‘(a) IN GENERAL.—If—

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

21 the record, or

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

23 ‘‘(A) withholds information that has been

24 requested by the administering authority or the

25 Commission under this title,
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1 ‘‘(B) fails to provide such information by

2 the deadlines for the submission of the informa3 tion or in the form and manner requested, sub4 ject to subsections (b)(1) and (d) of section

5 844,

6 ‘‘(C) significantly impedes a proceeding

7 under this title, or

8 ‘‘(D) provides such information but the in9 formation cannot be verified as provided in sec10 tion 844(g),the administering authority and the

11 Commission shall, subject to section 844(c), use

12 the facts otherwise available in reaching the ap13 plicable determination under this title.

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

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

16 that an interested party has failed to cooperate by not act17 ing to the best of its ability to comply with a request for

18 information from the administering authority or the Com19 mission, the administering authority or the Commission

20 (as the case may be), in reaching the applicable determina21 tion under this title, may use an inference that is adverse

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

23 facts otherwise available. Such adverse inference may in24 clude reliance on information derived from—

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

2 record.

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

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

9 corroborate that information from independent sources

10 that are reasonably at their disposal.

11 ‘‘SEC. 843. ACCESS TO INFORMATION.

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

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

15 The administering authority and the Commission

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

17 parties to an investigation under this title of the

18 progress of that investigation.

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

20 authority and the Commission shall maintain a

21 record of any ex parte meeting between—

22 ‘‘(A) interested parties or other persons

23 providing factual information in connection with

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

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

4 connection with that proceeding,

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

7 such an ex parte meeting shall include the identity

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

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

10 the matters discussed or submitted. The record of

11 the ex parte meeting shall be included in the record

12 of the proceeding.

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

16 ‘‘(A) any proprietary information received

17 in the course of a proceeding under this title if

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

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

23 as proprietary by the person submitting it.

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

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

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

5 this title to the extent that public disclosure of the

6 information is not prohibited under this chapter or

7 exempt from disclosure under section 552 of title 5,

8 United States Code.

9 ‘‘(b) PROPRIETARY INFORMATION.—

10 ‘‘(1) PROPRIETARY STATUS MAINTAINED.—

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

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

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

16 shall not be disclosed to any person without the

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

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

20 administering authority or the Commission

21 who is directly concerned with carrying out

22 the investigation in connection with which

23 the information is submitted or any other

24 proceeding under this title covering the

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

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

5 ‘‘(B) ADDITIONAL REQUIREMENTS.—The

6 administering authority and the Commission

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

9 by—

10 ‘‘(i) either—

11 ‘‘(I) a nonproprietary summary

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

14 of the information submitted in con15 fidence, or

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

18 accompanied by a statement of the

19 reasons in support of the contention,

20 and

21 ‘‘(ii) either—

22 ‘‘(I) a statement which permits

23 the administering authority or the

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

2 submitted in confidence, or

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

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

8 order.

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

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

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

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

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

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

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

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

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

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

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

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

10 terms the information requested and sets forth

11 the reasons for the request, the administering

12 authority or the Commission shall make all

13 business proprietary information presented to,

14 or obtained by it, during a proceeding under

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

17 type for which there is a clear and compelling

18 need to withhold from disclosure) available to

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

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

23 Customer names (other than the name of the

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

2 be disclosed by the administering authority

3 under protective order until either an order is

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

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

7 delay disclosure of customer names (other than

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

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

12 held.

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

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

17 determine by regulation to be appropriate. The

18 administering authority and the Commission

19 shall provide by regulation for such sanctions as

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

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

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

2 under this paragraph—

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

4 the submission pertains to a proceeding

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

6 which the information is submitted, or

7 ‘‘(ii) if—

8 ‘‘(I) the person that submitted

9 the information raises objection to its

10 release, or

11 ‘‘(II) the information is unusu12 ally voluminous or complex, not later

13 than 30 days (10 days if the submis14 sion pertains to a proceeding under

15 section 803(a)) after the date on

16 which the information is submitted.

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

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

23 date of the determination shall be made

24 available, subject to the terms and condi-
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•S 1216 PCS

1 tions of the protective order, on such date,

2 and

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

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

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

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

11 information which the administering authority

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

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

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

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

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

21 then application may be made to the United States

22 Court of International Trade for an order directing

23 the administering authority or the Commission, as

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

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

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

3 conditions as the court deems appropriate, which

4 shall not have the effect of stopping or suspending

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

7 the requested information described in the preceding

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

10 court finds that, under the standards applicable in

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

12 and that—

13 ‘‘(A) the administering authority or the

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

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

18 is a party to the investigation in connection

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

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

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

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

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

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

7 The administering authority or the Commission shall not

8 accept any such information that is not accompanied by

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

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

13 subject to protective order, except that a nonconfidential

14 summary thereof shall be served upon all other interested

15 parties who are parties to the proceeding.

16 ‘‘(e) INFORMATION RELATING TO VIOLATIONS OF

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

20 settlement agreements, and documents and files compiled

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

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

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

3 shall provide an opportunity for buyers of subject vessels

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

8 value.

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

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

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

15 preliminary determination under section 803, a final

16 determination under section 805, a determination

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

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

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

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

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

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

4 administering authority—

5 ‘‘(i) the names of the United States

6 buyer and the foreign producer, and the

7 country of origin of the subject vessel,

8 ‘‘(ii) a description sufficient to iden9 tify the subject vessel (including type, pur10 pose, and size),

11 ‘‘(iii) with respect to an injurious pric12 ing charge, the injurious pricing margin

13 established and a full explanation of the

14 methodology used in establishing such

15 margin,

16 ‘‘(iv) with respect to countermeasures,

17 the scope and duration of countermeasures

18 and, if applicable, any changes thereto,

19 and

20 ‘‘(v) the primary reasons for the de21 termination, and

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

23 Commission—

24 ‘‘(i) considerations relevant to the de25 termination of injury, and
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1 ‘‘(ii) the primary reasons for the de2 termination.

3 ‘‘(3) ADDITIONAL REQUIREMENTS FOR FINAL

4 DETERMINATIONS.—In addition to the requirements

5 set forth in paragraph (2)—

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

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

10 made by interested parties who are parties to

11 the investigation, concerning the establishment

12 of the injurious pricing charge with respect to

13 which the determination is made, and

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

15 final determination of injury an explanation of

16 the basis for its determination that addresses

17 relevant arguments that are made by interested

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

20 of the sale of the subject vessel.

21 ‘‘SEC. 844. CONDUCT OF INVESTIGATIONS.

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

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

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

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

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

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

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

10 that such party is unable to submit the information

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

14 the information, the administering authority or the

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

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

18 modify such requirements to the extent necessary to

19 avoid imposing an unreasonable burden on that

20 party.

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

22 The administering authority and the Commission

23 shall take into account any difficulties experienced

24 by interested parties, particularly small companies,

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

2 with investigations under this title, and shall provide

3 to such interested parties any assistance that is

4 practicable in supplying such information.

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

6 authority or the Commission determines that a response

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

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

10 the person submitting the response of the nature of the

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

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

15 person submits further information in response to such

16 deficiency and either—

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

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

21 applicable time limits, then the administering au22 thority or the Commission (as the case may be) may,

23 subject to subsection (d), disregard all or part of the

24 original and subsequent responses.
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1 ‘‘(d) USE OF CERTAIN INFORMATION.—In reaching

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

6 not meet all the applicable requirements established by the

7 administering authority or the Commission if—

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

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

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

12 it cannot serve as a reliable basis for reaching the

13 applicable determination,

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

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

17 by the administering authority or the Commission

18 with respect to the information, and

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

20 difficulties.

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

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

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

6 proceeding under this title shall be subject to comment

7 by other parties to the proceeding within such reasonable

8 time as the administering authority or the Commission

9 shall provide. The administering authority and the Com10 mission, before making a final determination under section

11 805 or 807, shall cease collecting information and shall

12 provide the parties with a final opportunity to comment

13 on the information obtained by the administering author14 ity or the Commission (as the case may be) upon which

15 the parties have not previously had an opportunity to com16 ment. Comments containing new factual information shall

17 be disregarded.

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

19 shall verify all information relied upon in making a final

20 determination under section 805.

21 ‘‘SEC. 845. ADMINISTRATIVE ACTION FOLLOWING SHIP22 BUILDING AGREEMENT PANEL REPORTS.

23 ‘‘(a) ACTION BY UNITED STATES INTERNATIONAL

24 TRADE COMMISSION.—
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1 ‘‘(1) ADVISORY REPORT.—If a dispute settle2 ment panel under the Shipbuilding Agreement finds

3 in a report that an action by the Commission in con4 nection with a particular proceeding under this title

5 is not in conformity with the obligations of the Unit6 ed States under the Shipbuilding Agreement, the

7 Trade Representative may request the Commission

8 to issue an advisory report on whether this title per9 mits the Commission to take steps in connection

10 with the particular proceeding that would render its

11 action not inconsistent with the findings of the panel

12 concerning those obligations. The Trade Representa13 tive shall notify the Committee on Ways and Means

14 of the House of Representatives and the Committee

15 on Finance of the Senate of such request.

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

18 the Trade Representative within 30 calendar days

19 after the Trade Representative requests the report.

20 ‘‘(3) CONSULTATIONS ON REQUEST FOR COM21 MISSION DETERMINATION.—If a majority of the

22 Commissioners issues an affirmative report under

23 paragraph (1), the Trade Representatives shall con24 sult with the congressional committees listed in

25 paragraph (1) concerning the matter.
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1 ‘‘(4) COMMISSION DETERMINATION.—Notwith2 standing any other provision of this title, if a major3 ity of the Commissioners issues an affirmative report

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

5 written request of the Trade Representative, shall

6 issue a determination in connection with the particu7 lar proceeding that would render the Commission’s

8 action described in paragraph (1) not inconsistent

9 with the findings of the panel. The Commission shall

10 issue its determination not later than 120 calendar

11 days after the request from the Trade Representa12 tive is made.

13 ‘‘(5) CONSULTATIONS ON IMPLEMENTATION OF

14 COMMISSION DETERMINATION.—The Trade Rep15 resentative shall consult with the congressional com16 mittees listed in paragraph (1) before the Commis17 sion’s determination under paragraph (4) is imple18 mented.

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

20 the Commission’s determination under paragraph

21 (4), an injurious pricing order is no longer sup22 ported by an affirmative Commission determination

23 under this title, the Trade Representative may, after

24 consulting with the congressional committees under
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1 paragraph (5), direct the administering authority to

2 revoke the injurious pricing order.

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

4 ‘‘(1) CONSULTATIONS WITH ADMINISTERING

5 AUTHORITY AND CONGRESSIONAL COMMITTEES.—

6 Promptly after a report or other determination by a

7 dispute settlement panel under the Shipbuilding

8 Agreement is issued that contains findings that—

9 ‘‘(A) an action by the administering au10 thority in a proceeding under this title is not in

11 conformity with the obligations of the United

12 States under the Shipbuilding Agreement,

13 ‘‘(B) the due date for payment of an inju14 rious pricing charge contained in an order is15 sued under section 806 should be amended,

16 ‘‘(C) countermeasures provided for in an

17 order issued under section 807 should be provi18 sionally suspended or reduced pending the final

19 decision of the panel, or

20 ‘‘(D) the scope or duration of counter21 measures imposed under section 807 should be

22 narrowed or shortened,

23 the Trade Representative shall consult with the ad24 ministering authority and the congressional commit25 tees listed in subsection (a)(1) on the matter.
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1 ‘‘(2) DETERMINATION BY ADMINISTERING AU2 THORITY.—Notwithstanding any other provision of

3 this title, the administering authority shall, in re4 sponse to a written request from the Trade Rep5 resentative, issue a determination, or an amendment

6 to or suspension of an injurious pricing or counter7 measure order, as the case may be, in connection

8 with the particular proceeding that would render the

9 administering authority’s action described in para10 graph (1) not inconsistent with the findings of the

11 panel.

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

13 administering authority shall issue its determination,

14 amendment, or suspension under paragraph (2)—

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

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

17 calendar days after the request from the Trade

18 Representative is made, and

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

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

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

22 from the Trade Representative is made.

23 ‘‘(4) CONSULTATIONS BEFORE IMPLEMENTA24 TION.—Before the administering authority imple25 ments any determination, amendment, or suspension
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1 under paragraph (2), the Trade Representative shall

2 consult with the administering authority and the

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

4 with respect to such determination, amendment, or

5 suspension.

6 ‘‘(5) IMPLEMENTATION OF DETERMINATION.—

7 The Trade Representative may, after consulting with

8 the administering authority and the congressional

9 committees under paragraph (4), direct the admin10 istering authority to implement, in whole or in part,

11 the determination, amendment, or suspension made

12 under paragraph (2). The administering authority

13 shall publish notice of such implementation in the

14 Federal Register.

15 ‘‘(c) OPPORTUNITY FOR COMMENT BY INTERESTED

16 PARTIES.—Before issuing a determination, amendment,

17 or suspension, the administering authority, in a matter de18 scribed in subsection (b)(1)(A), or the Commission, in a

19 matter described in subsection (a)(1), as the case may be,

20 shall provide interested parties with an opportunity to sub21 mit written comments and, in appropriate cases, may hold

22 a hearing, with respect to the determination.

23 ‘‘Subtitle D—Definitions

24 ‘‘SEC. 861. DEFINITIONS.

25 ‘‘In this title:
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1 ‘‘(1) ADMINISTERING AUTHORITY.—The term

2 ‘administering authority’ means the Secretary of

3 Commerce, or any other officer of the United States

4 to whom the responsibility for carrying out the du5 ties of the administering authority under this title

6 are transferred by law.

7 ‘‘(2) COMMISSION.—The term ‘Commission’

8 means the United States International Trade Com9 mission.

10 ‘‘(3) COUNTRY.—The term ‘country’ means a

11 foreign country, a political subdivision, dependent

12 territory, or possession of a foreign country and, ex13 cept as provided in paragraph (16)(E)(iii), may not

14 include an association of 2 or more foreign coun15 tries, political subdivisions, dependent territories, or

16 possessions of countries into a customs union out17 side the United States.

18 ‘‘(4) INDUSTRY.—

19 ‘‘(A) IN GENERAL.—Except as used in sec20 tion 808, the term ‘industry’ means the produc21 ers as a whole of a domestic like vessel, or those

22 producers whose collective capability to produce

23 a domestic like vessel constitutes a major pro24 portion of the total domestic capability to

25 produce a domestic like vessel.
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1 ‘‘(B) PRODUCER.—A ‘producer’ of a do2 mestic like vessel includes an entity that is pro3 ducing the domestic like vessel and an entity

4 with the capability to produce the domestic like

5 vessel.

6 ‘‘(C) CAPABILITY TO PRODUCE A DOMES7 TIC LIKE VESSEL.—A producer has the ‘capa8 bility to produce a domestic like vessel’ if it is

9 capable of producing a domestic like vessel with

10 its present facilities or could adapt its facilities

11 in a timely manner to produce a domestic like

12 vessel.

13 ‘‘(D) RELATED PARTIES.—(i) In an inves14 tigation under this title, if a producer of a do15 mestic like vessel and the foreign producer, sell16 er (other than the foreign producer), or United

17 States buyer of the subject vessel are related

18 parties, or if a producer of a domestic like ves19 sel is also a United States buyer of the subject

20 vessel, the domestic producer may, in appro21 priate circumstances, be excluded from the in22 dustry.

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

24 producer and the foreign producer, seller, or
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1 United States buyer shall be considered to be

2 related parties, if—

3 ‘‘(I) the domestic producer directly or

4 indirectly controls the foreign producer,

5 seller, or United States buyer,

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

7 United States buyer directly or indirectly

8 controls the domestic producer,

9 ‘‘(III) a third party directly or indi10 rectly controls the domestic producer and

11 the foreign producer, seller, or United

12 States buyer, or

13 ‘‘(IV) the domestic producer and the

14 foreign producer, seller, or United States

15 buyer directly or indirectly control a third

16 party and there is reason to believe that

17 the relationship causes the domestic pro18 ducer to act differently than a nonrelated

19 producer.

20 For purposes of this subparagraph, a party

21 shall be considered to directly or indirectly con22 trol another party if the party is legally or oper23 ationally in a position to exercise restraint or

24 direction over the other party.
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1 ‘‘(E) PRODUCT LINES.—In an investiga2 tion under this title, the effect of the sale of the

3 subject vessel shall be assessed in relation to

4 the United States production (or production ca5 pability) of a domestic like vessel if available

6 data permit the separate identification of pro7 duction (or production capability) in terms of

8 such criteria as the production process or the

9 producer’s profits. If the domestic production

10 (or production capability) of a domestic like

11 vessel has no separate identity in terms of such

12 criteria, then the effect of the sale of the sub13 ject vessel shall be assessed by the examination

14 of the production (or production capability) of

15 the narrowest group or range of vessels, which

16 includes a domestic like vessel, for which the

17 necessary information can be provided.

18 ‘‘(5) BUYER.—The term ‘buyer’ means any per19 son who acquires an ownership interest in a vessel,

20 including by way of lease or long-term bareboat

21 charter, in conjunction with the original transfer

22 from the producer, either directly or indirectly, in23 cluding an individual or company which owns or con24 trols a buyer. There may be more than one buyer of

25 any one vessel.
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1 ‘‘(6) UNITED STATES BUYER.—The term ‘Unit2 ed States buyer’ means a buyer that is any of the

3 following:

4 ‘‘(A) A United States citizen.

5 ‘‘(B) A juridical entity, including any cor6 poration, company, association, or other organi7 zation, that is legally constituted under the laws

8 and regulations of the United States or a politi9 cal subdivision thereof, regardless of whether

10 the entity is organized for pecuniary gain, pri11 vately or government owned, or organized with

12 limited or unlimited liability.

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

14 controlled by nationals or entities described in

15 subparagraphs (A) and (B). For the purposes

16 of this subparagraph—

17 ‘‘(i) the term ‘own’ means having

18 more than a 50 percent interest, and

19 ‘‘(ii) the term ‘control’ means the ac20 tual ability to have substantial influence on

21 corporate behavior, and control is pre22 sumed to exist where there is at least a 25

23 percent interest.
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1 If ownership of a company is established under

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

3 unless it is otherwise established.

4 ‘‘(7) OWNERSHIP INTEREST.—An ‘ownership

5 interest’ in a vessel includes any contractual or pro6 prietary interest which allows the beneficiary or

7 beneficiaries of such interest to take advantage of

8 the operation of the vessel in a manner substantially

9 comparable to the way in which an owner may bene10 fit from the operation of the vessel. In determining

11 whether such substantial comparability exists, the

12 administering authority shall consider—

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

14 transaction which conveys the interest,

15 ‘‘(B) commercial practice within the indus16 try,

17 ‘‘(C) whether the vessel subject to the

18 transaction is integrated into the operations of

19 the beneficiary or beneficiaries, and

20 ‘‘(D) whether in practice there is a likeli21 hood that the beneficiary or beneficiaries of

22 such interests will take advantage of and the

23 risk for the operation of the vessel for a signifi24 cant part of the life-time of the vessel.

25 ‘‘(8) VESSEL.—
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1 ‘‘(A) IN GENERAL.—Except as otherwise

2 specifically provided under international agree3 ments, the term ‘vessel’ means—

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

5 100 gross tons or more used for transpor6 tation of goods or persons or for perform7 ance of a specialized service (including, but

8 not limited to, ice breakers and dredges),

9 or

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

11 that is produced in a Shipbuilding Agreement

12 Party or a country that is not a Shipbuilding

13 Agreement Party and not a WTO member.

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

15 not include—

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

17 fishing fleet of the country in which the

18 vessel is built,

19 ‘‘(ii) any military vessel or any mili20 tary reserve vessel, and

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

22 that the Shipbuilding Agreement enters

23 into force with respect to the United

24 States, except that any vessel sold after

25 December 21, 1994, for delivery more than
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•S 1216 PCS

1 5 years after the date of the contract of

2 sale shall be a ‘vessel’ for purposes of this

3 title unless the shipbuilder demonstrates to

4 the administering authority that the ex5 tended delivery date was for normal com6 mercial reasons and not to avoid applica7 bility of this title.

8 ‘‘(C) SELF-PROPELLED SEAGOING VES9 SEL.—A vessel is ‘self-propelled seagoing’ if its

10 permanent propulsion and steering provide it all

11 the characteristics of self-navigability in the

12 high seas.

13 ‘‘(D) MILITARY VESSEL.—A ‘military ves14 sel’ is a vessel that, according to its basic struc15 tural characteristics and ability, is intended to

16 be used exclusively for military purposes.

17 ‘‘(E) MILITARY RESERVE VESSEL.—A

18 ‘military reserve vessel’ is a vessel that has been

19 constructed with national defense features and

20 characteristics required by the Secretary of De21 fense for the purpose of supporting the United

22 States Armed Forces in a contingency, if the

23 vessel (without regard to such features and

24 characteristics) is otherwise subject to the
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•S 1216 PCS

1 terms and conditions of the Shipbuilding Agree2 ment.

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

4 means a vessel of the same type, same purpose, and

5 approximate size as the subject vessel and possessing

6 characteristics closely resembling those of the sub7 ject vessel.

8 ‘‘(10) DOMESTIC LIKE VESSEL.—The term ‘do9 mestic like vessel’ means a like vessel produced in

10 the United States.

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

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

13 vessel’ means a like vessel produced by the foreign

14 producer of the subject vessel for sale in the produc15 er’s domestic market or in a third country.

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

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

18 vessel of the same type and purpose as the subject

19 vessel, but of a significantly different size.

20 ‘‘(13) SUBJECT VESSEL.—The term ‘subject

21 vessel’ means a vessel subject to an investigation or

22 an injurious pricing order under this title.

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

24 producer’ means the producer or producers of the

25 subject vessel.
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•S 1216 PCS

1 ‘‘(15) EXPORTING COUNTRY.—The term ‘ex2 porting country’ means the country in which the

3 subject vessel was built.

4 ‘‘(16) MATERIAL INJURY.—

5 ‘‘(A) IN GENERAL.—The term ‘material in6 jury’ means harm which is not inconsequential,

7 immaterial, or unimportant.

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

9 making determinations under sections 803(a)

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

11 ‘‘(i) shall consider—

12 ‘‘(I) the sale of the subject vessel,

13 ‘‘(II) the effect of the sale of the

14 subject vessel on prices in the United

15 States for a domestic like vessel, and

16 ‘‘(III) the impact of the sale of

17 the subject vessel on domestic produc18 ers of a domestic like vessel, but only

19 in the context of production oper20 ations within the United States, and

21 ‘‘(ii) may consider such other eco22 nomic factors as are relevant to the deter23 mination regarding whether there is or has

24 been material injury by reason of the sale

25 of the subject vessel.
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•S 1216 PCS

1 In the notification required under section

2 805(d), the Commission shall explain its analy3 sis of each factor considered under clause (i),

4 and identify each factor considered under clause

5 (ii) and explain in full its relevance to the deter6 mination.

7 ‘‘(C) EVALUATION OF RELEVANT FAC8 TORS.—For purposes of subparagraph (B)—

9 ‘‘(i) SALE OF THE SUBJECT VES10 SEL.—In evaluating the sale of the subject

11 vessel, the Commission shall consider

12 whether the sale, either in absolute terms

13 or relative to production or demand in the

14 United States, in terms of either volume or

15 value, is or has been significant.

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

17 of the sale of the subject vessel on prices,

18 the Commission shall consider whether—

19 ‘‘(I) there has been significant

20 price underselling of the subject vessel

21 as compared with the price of a do22 mestic like vessel, and

23 ‘‘(II) the effect of the sale of the

24 subject vessel otherwise depresses or

25 has depressed prices to a significant
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•S 1216 PCS

1 degree or prevents or has prevented

2 price increases, which otherwise would

3 have occurred, to a significant degree.

4 ‘‘(iii) IMPACT ON AFFECTED DOMES5 TIC INDUSTRY.—In examining the impact

6 required to be considered under subpara7 graph (B)(i)(III), the Commission shall

8 evaluate all relevant economic factors

9 which have a bearing on the state of the

10 industry in the United States, including,

11 but not limited to—

12 ‘‘(I) actual and potential decline

13 in output, sales, market share, profits,

14 productivity, return on investments,

15 and utilization of capacity,

16 ‘‘(II) factors affecting domestic

17 prices, including with regard to sales,

18 ‘‘(III) actual and potential nega19 tive effects on cash flow, employment,

20 wages, growth, ability to raise capital,

21 and investment,

22 ‘‘(IV) actual and potential nega23 tive effects on the existing develop24 ment and production efforts of the do25 mestic industry, including efforts to
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•S 1216 PCS

1 develop a derivative or more advanced

2 version of a domestic like vessel, and

3 ‘‘(V) the magnitude of the injuri4 ous pricing margin.

5 The Commission shall evaluate all relevant

6 economic factors described in this clause

7 within the context of the business cycle

8 and conditions of competition that are dis9 tinctive to the affected industry.

10 ‘‘(D) STANDARD FOR DETERMINATION.—

11 The presence or absence of any factor which the

12 Commission is required to evaluate under sub13 paragraph (C) shall not necessarily give decisive

14 guidance with respect to the determination by

15 the Commission of material injury.

16 ‘‘(E) THREAT OF MATERIAL INJURY.—

17 ‘‘(i) IN GENERAL.—In determining

18 whether an industry in the United States

19 is threatened with material injury by rea20 son of the sale of the subject vessel, the

21 Commission shall consider, among other

22 relevant economic factors—

23 ‘‘(I) any existing unused produc24 tion capacity or imminent, substantial

25 increase in production capacity in the
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•S 1216 PCS

1 exporting country indicating the likeli2 hood of substantially increased sales

3 of a foreign like vessel to United

4 States buyers, taking into account the

5 availability of other export markets to

6 absorb any additional exports,

7 ‘‘(II) whether the sale of a for8 eign like vessel or other factors indi9 cate the likelihood of significant addi10 tional sales to United States buyers,

11 ‘‘(III) whether sale of the subject

12 vessel or sale of a foreign like vessel

13 by the foreign producer are at prices

14 that are likely to have a significant

15 depressing or suppressing effect on

16 domestic prices, and are likely to in17 crease demand for further sales,

18 ‘‘(IV) the potential for product19 shifting if production facilities in the

20 exporting country, which can pres21 ently be used to produce a foreign like

22 vessel or could be adapted in a timely

23 manner to produce a foreign like ves24 sel, are currently being used to

25 produce other types of vessels,
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•S 1216 PCS

1 ‘‘(V) the actual and potential

2 negative effects on the existing devel3 opment and production efforts of the

4 domestic industry, including efforts to

5 develop a derivative or more advanced

6 version of a domestic like vessel, and

7 ‘‘(VI) any other demonstrable ad8 verse trends that indicate the prob9 ability that there is likely to be mate10 rial injury by reason of the sale of the

11 subject vessel.

12 ‘‘(ii) BASIS FOR DETERMINATION.—

13 The Commission shall consider the factors

14 set forth in clause (i) as a whole. The pres15 ence or absence of any factor which the

16 Commission is required to consider under

17 clause (i) shall not necessarily give decisive

18 guidance with respect to the determination.

19 Such a determination may not be made on

20 the basis of mere conjecture or suppo21 sition.

22 ‘‘(iii) EFFECT OF INJURIOUS PRICING

23 IN THIRD-COUNTRY MARKETS.—

24 ‘‘(I) IN GENERAL.—The Commis25 sion shall consider whether injurious
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•S 1216 PCS

1 pricing in the markets of foreign

2 countries (as evidenced by injurious

3 pricing findings or injurious pricing

4 remedies of other Shipbuilding Agree5 ment Parties, or antidumping deter6 minations of, or measures imposed by,

7 other countries, against a like vessel

8 produced by the producer under inves9 tigation) suggests a threat of material

10 injury to the domestic industry. In the

11 course of its investigation, the Com12 mission shall request information

13 from the foreign producer or United

14 States buyer concerning this issue.

15 ‘‘(II) EUROPEAN COMMU16 NITIES.—For purposes of this clause,

17 the European Communities as a whole

18 shall be treated as a single foreign

19 country.

20 ‘‘(F) CUMULATION FOR DETERMINING MA21 TERIAL INJURY.—

22 ‘‘(i) IN GENERAL.—For purposes of

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

24 and subject to clause (ii) of this subpara25 graph, the Commission shall cumulatively
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•S 1216 PCS

1 assess the effects of sales of foreign like

2 vessels from all foreign producers with re3 spect to which—

4 ‘‘(I) petitions were filed under

5 section 802(b) on the same day,

6 ‘‘(II) investigations were initiated

7 under section 802(a) on the same day,

8 or

9 ‘‘(III) petitions were filed under

10 section 802(b) and investigations were

11 initiated under section 802(a) on the

12 same day,

13 if, with respect to such vessels, the foreign

14 producers compete with each other and

15 with producers of a domestic like vessel in

16 the United States market.

17 ‘‘(ii) EXCEPTIONS.—The Commission

18 shall not cumulatively assess the effects of

19 sales under clause (i)—

20 ‘‘(I) with respect to which the ad21 ministering authority has made a pre22 liminary negative determination, un23 less the administering authority sub24 sequently made a final affirmative de25 termination with respect to those sales
118

•S 1216 PCS

1 before the Commission’s final deter2 mination is made, or

3 ‘‘(II) from any producer with re4 spect to which the investigation has

5 been terminated.

6 ‘‘(iii) RECORDS IN FINAL INVESTIGA7 TIONS.—In each final determination in

8 which it cumulatively assesses the effects

9 of sales under clause (i), the Commission

10 may make its determinations based on the

11 record compiled in the first investigation in

12 which it makes a final determination, ex13 cept that when the administering authority

14 issues its final determination in a subse15 quently completed investigation, the Com16 mission shall permit the parties in the sub17 sequent investigation to submit comments

18 concerning the significance of the admin19 istering authority’s final determination,

20 and shall include such comments and the

21 administering authority’s final determina22 tion in the record for the subsequent inves23 tigation.

24 ‘‘(G) CUMULATION FOR DETERMINING

25 THREAT OF MATERIAL INJURY.—To the extent
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•S 1216 PCS

1 practicable and subject to subparagraph (F)(ii),

2 for purposes of clause (i) (II) and (III) of sub3 paragraph (E), the Commission may cumula4 tively assess the effects of sales of like vessels

5 from all countries with respect to which—

6 ‘‘(i) petitions were filed under section

7 802(b) on the same day,

8 ‘‘(ii) investigations were initiated

9 under section 802(a) on the same day, or

10 ‘‘(iii) petitions were filed under sec11 tion 802(b) and investigations were initi12 ated under section 802(a) on the same

13 day,

14 if, with respect to such vessels, the foreign pro15 ducers compete with each other and with pro16 ducers of a domestic like vessel in the United

17 States market.

18 ‘‘(17) INTERESTED PARTY.—The term ‘inter19 ested party’ means, in a proceeding under this

20 title—

21 ‘‘(A)(i) the foreign producer, seller (other

22 than the foreign producer), and the United

23 States buyer of the subject vessel, or

24 ‘‘(ii) a trade or business association a ma25 jority of the members of which are the foreign
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•S 1216 PCS

1 producer, seller, or United States buyer of the

2 subject vessel,

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

4 which the subject vessel is produced or manu5 factured,

6 ‘‘(C) a producer that is a member of an in7 dustry,

8 ‘‘(D) a certified union or recognized union

9 or group of workers which is representative of

10 an industry,

11 ‘‘(E) a trade or business association a ma12 jority of whose members are producers in an in13 dustry,

14 ‘‘(F) an association, a majority of whose

15 members is composed of interested parties de16 scribed in subparagraph (C), (D), or (E), and

17 ‘‘(G) for purposes of section 807, a pur18 chaser who, after the effective date of an order

19 issued under that section, entered into a con20 tract of sale with the foreign producer that is

21 subject to the order.

22 ‘‘(18) AFFIRMATIVE DETERMINATIONS BY DI23 VIDED COMMISSION.—If the Commissioners voting

24 on a determination by the Commission are evenly di25 vided as to whether the determination should be af-
121

•S 1216 PCS

1 firmative or negative, the Commission shall be

2 deemed to have made an affirmative determination.

3 For the purpose of applying this paragraph when

4 the issue before the Commission is to determine

5 whether there is or has been—

6 ‘‘(A) material injury to an industry in the

7 United States,

8 ‘‘(B) threat of material injury to such an

9 industry, or

10 ‘‘(C) material retardation of the establish11 ment of an industry in the United States,

12 by reason of the sale of the subject vessel, an affirm13 ative vote on any of the issues shall be treated as

14 a vote that the determination should be affirmative.

15 ‘‘(19) ORDINARY COURSE OF TRADE.—The

16 term ‘ordinary course of trade’ means the conditions

17 and practices which, for a reasonable time before the

18 sale of the subject vessel, have been normal in the

19 shipbuilding industry with respect to a like vessel.

20 The administering authority shall consider the fol21 lowing sales and transactions, among others, to be

22 outside the ordinary course of trade:

23 ‘‘(A) Sales disregarded under section

24 822(b)(1).
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•S 1216 PCS

1 ‘‘(B) Transactions disregarded under sec2 tion 822(f)(2).

3 ‘‘(20) NONMARKET ECONOMY COUNTRY.—

4 ‘‘(A) IN GENERAL.—The term ‘nonmarket

5 economy country’ means any foreign country

6 that the administering authority determines

7 does not operate on market principles of cost or

8 pricing structures, so that sales of vessels in

9 such country do not reflect the fair value of the

10 vessels.

11 ‘‘(B) FACTORS TO BE CONSIDERED.—In

12 making determinations under subparagraph (A)

13 the administering authority shall take into ac14 count—

15 ‘‘(i) the extent to which the currency

16 of the foreign country is convertible into

17 the currency of other countries,

18 ‘‘(ii) the extent to which wage rates in

19 the foreign country are determined by free

20 bargaining between labor and manage21 ment,

22 ‘‘(iii) the extent to which joint ven23 tures or other investments by firms of

24 other foreign countries are permitted in

25 the foreign country,
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•S 1216 PCS

1 ‘‘(iv) the extent of government owner2 ship or control of the means of production,

3 ‘‘(v) the extent of government control

4 over the allocation of resources and over

5 the price and output decisions of enter6 prises, and

7 ‘‘(vi) such other factors as the admin8 istering authority considers appropriate.

9 ‘‘(C) DETERMINATION IN EFFECT.—

10 ‘‘(i) Any determination that a foreign

11 country is a nonmarket economy country

12 shall remain in effect until revoked by the

13 administering authority.

14 ‘‘(ii) The administering authority may

15 make a determination under subparagraph

16 (A) with respect to any foreign country at

17 any time.

18 ‘‘(D) DETERMINATIONS NOT IN ISSUE.—

19 Notwithstanding any other provision of law, any

20 determination made by the administering au21 thority under subparagraph (A) shall not be

22 subject to judicial review in any investigation

23 conducted under subtitle A.

24 ‘‘(21) SHIPBUILDING AGREEMENT.—The term

25 ‘Shipbuilding Agreement’ means The Agreement Re-
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•S 1216 PCS

1 specting Normal Competitive Conditions in the Com2 mercial Shipbuilding and Repair Industry, resulting

3 from negotiations under the auspices of the Organi4 zation for Economic Cooperation and Development,

5 and entered into on December 21, 1994.

6 ‘‘(22) SHIPBUILDING AGREEMENT PARTY.—The

7 term ‘Shipbuilding Agreement Party’ means a state

8 or separate customs territory that is a Party to the

9 Shipbuilding Agreement, and with respect to which

10 the United States applies the Shipbuilding Agree11 ment.

12 ‘‘(23) WTO AGREEMENT.—The term ‘WTO

13 Agreement’ means the Agreement defined in section

14 2(9) of the Uruguay Round Agreements Act.

15 ‘‘(24) WTO MEMBER.—The term ‘WTO mem16 ber’ means a state, or separate customs territory

17 (within the meaning of Article XII of the WTO

18 Agreement), with respect to which the United States

19 applies the WTO Agreement.

20 ‘‘(25) TRADE REPRESENTATIVE.—The term

21 ‘Trade Representative’ means the United States

22 Trade Representative.

23 ‘‘(26) AFFILIATED PERSONS.—The following

24 persons shall be considered to be ‘affiliated’ or ‘af25 filiated persons’:
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•S 1216 PCS

1 ‘‘(A) Members of a family, including broth2 ers and sisters (whether by the whole or half

3 blood), spouse, ancestors, and lineal descend4 ants.

5 ‘‘(B) Any officer or director of an organi6 zation and such organization.

7 ‘‘(C) Partners.

8 ‘‘(D) Employer and employee.

9 ‘‘(E) Any person directly or indirectly own10 ing, controlling, or holding with power to vote,

11 5 percent or more of the outstanding voting

12 stock or shares of any organization, and such

13 organization.

14 ‘‘(F) Two or more persons directly or indi15 rectly controlling, controlled by, or under com16 mon control with, any person.

17 ‘‘(G) Any person who controls any other

18 person, and such other person.

19 For purposes of this paragraph, a person shall be

20 considered to control another person if the person is

21 legally or operationally in a position to exercise re22 straint or direction over the other person.

23 ‘‘(27) INJURIOUS PRICING.—The term ‘injuri24 ous pricing’ refers to the sale of a vessel at less than

25 fair value.
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•S 1216 PCS

1 ‘‘(28) INJURIOUS PRICING MARGIN.—

2 ‘‘(A) IN GENERAL.—The term ‘injurious

3 pricing margin’ means the amount by which the

4 normal value exceeds the export price of the

5 subject vessel.

6 ‘‘(B) MAGNITUDE OF THE INJURIOUS

7 PRICING MARGIN.—The magnitude of the inju8 rious pricing margin used by the Commission

9 shall be—

10 ‘‘(i) in making a preliminary deter11 mination under section 803(a) in an inves12 tigation (including any investigation in

13 which the Commission cumulatively as14 sesses the effect of sales under paragraph

15 (16)(F)(i)), the injurious pricing margin or

16 margins published by the administering

17 authority in its notice of initiation of the

18 investigation; and

19 ‘‘(ii) in making a final determination

20 under section 805(b), the injurious pricing

21 margin or margins most recently published

22 by the administering authority before the

23 closing of the Commission’s administrative

24 record.
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1 ‘‘(29) COMMERCIAL INTEREST REFERENCE

2 RATE.—The term ‘Commercial Interest Reference

3 Rate’ or ‘CIRR’ means an interest rate that the ad4 ministering authority determines to be consistent

5 with Annex III, and appendices and notes thereto, of

6 the Understanding on Export Credits for Ships, re7 sulting from negotiations under the auspices of the

8 Organization for Economic Cooperation, and entered

9 into on December 21, 1994.

10 ‘‘(30) ANTIDUMPING.—

11 ‘‘(A) WTO MEMBERS.—In the case of a

12 WTO member, the term ‘antidumping’ refers to

13 action taken pursuant to the Agreement on Im14 plementation of Article VI of the General

15 Agreement on Tariffs and Trade 1994.

16 ‘‘(B) OTHER CASES.—In the case of any

17 country that is not a WTO member, the term

18 ‘antidumping’ refers to action taken by the

19 country against the sale of a vessel at less than

20 fair value that is comparable to action described

21 in subparagraph (A).

22 ‘‘(31) BROAD MULTIPLE BID.—The term ‘broad

23 multiple bid’ means a bid in which the proposed

24 buyer extends an invitation to bid to at least all the
128

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1 producers in the industry known by the buyer to be

2 capable of building the subject vessel.’’.

3 SEC. 103. ENFORCEMENT OF COUNTERMEASURES.

4 Part II of title IV of the Tariff Act of 1930 is amend5 ed by adding at the end the following:

6 ‘‘SEC. 468. SHIPBUILDING AGREEMENT COUNTER7 MEASURES.

8 ‘‘(a) IN GENERAL.—Notwithstanding any other pro9 vision of law, upon receiving from the Secretary of Com10 merce a list of vessels subject to countermeasures under

11 section 807, the Customs Service shall deny any request

12 for a permit to lade or unlade passengers, merchandise,

13 or baggage from or onto those vessels so listed.

14 ‘‘(b) EXCEPTIONS.—Subsection (a) shall not be ap15 plied to deny a permit for the following:

16 ‘‘(1) To unlade any United States citizen or

17 permanent legal resident alien from a vessel included

18 in the list described in subsection (a), or to unlade

19 any refugee or any alien who would otherwise be eli20 gible to apply for asylum and withholding of depor21 tation under the Immigration and Nationality Act.

22 ‘‘(2) To lade or unlade any crewmember of such

23 vessel.

24 ‘‘(3) To lade or unlade coal and other fuel sup25 plies (for the operation of the listed vessel), ships’
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•S 1216 PCS

1 stores, sea stores, and the legitimate equipment of

2 such vessel.

3 ‘‘(4) To lade or unlade supplies for the use or

4 sale on such vessel.

5 ‘‘(5) To lade or unlade such other merchandise,

6 baggage, or passenger as the Customs Service shall

7 determine necessary to protect the immediate health,

8 safety, or welfare of a human being.

9 ‘‘(c) CORRECTION OF MINISTERIAL OR CLERICAL

10 ERRORS.—

11 ‘‘(1) PETITION FOR CORRECTION.—If the mas12 ter of any vessel whose application for a permit to

13 lade or unlade has been denied under this section be14 lieves that such denial resulted from a ministerial or

15 clerical error, not amounting to a mistake of law,

16 committed by any Customs officer, the master may

17 petition the Customs Service for correction of such

18 error, as provided by regulation.

19 ‘‘(2) INAPPLICABILITY OF SECTIONS 514 AND

20 520.—Notwithstanding paragraph (1), imposition of

21 countermeasures under this section shall not be

22 deemed an exclusion or other protestable decision

23 under section 514, and shall not be subject to cor24 rection under section 520.
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•S 1216 PCS

1 ‘‘(3) PETITIONS SEEKING ADMINISTRATIVE RE2 VIEW.—Any petition seeking administrative review

3 of any matter regarding the Secretary of Com4 merce’s decision to list a vessel under section 807

5 must be brought under that section.

6 ‘‘(d) PENALTIES.—In addition to any other provision

7 of law, the Customs Service may impose a civil penalty

8 of not to exceed $10,000 against the master of any ves9 sel—

10 ‘‘(1) who submits false information in request11 ing any permit to lade or unlade; or

12 ‘‘(2) who attempts to, or actually does, lade or

13 unlade in violation of any denial of such permit

14 under this section.’’.

15 SEC. 104. JUDICIAL REVIEW IN INJURIOUS PRICING AND

16 COUNTERMEASURE PROCEEDINGS.

17 (a) JUDICIAL REVIEW.—Part III of title IV of the

18 Tariff Act of 1930 is amended by inserting after section

19 516A the following:

20 ‘‘SEC. 516B. JUDICIAL REVIEW IN INJURIOUS PRICING AND

21 COUNTERMEASURE PROCEEDINGS.

22 ‘‘(a) REVIEW OF DETERMINATION.—

23 ‘‘(1) IN GENERAL.—Within 30 days after the

24 date of publication in the Federal Register of—
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1 ‘‘(A)(i) a determination by the administer2 ing authority under section 802(c) not to initi3 ate an investigation,

4 ‘‘(ii) a negative determination by the Com5 mission under section 803(a) as to whether

6 there is or has been reasonable indication of

7 material injury, threat of material injury, or

8 material retardation,

9 ‘‘(iii) a determination by the administering

10 authority to suspend or revoke an injurious

11 pricing order under section 806 (d) or (e),

12 ‘‘(iv) a determination by the administering

13 authority under section 807(c),

14 ‘‘(v) a determination by the administering

15 authority in a review under section 807(d),

16 ‘‘(vi) a determination by the administering

17 authority concerning whether to extend the

18 scope or duration of a countermeasure order

19 under section 807(e)(3)(B)(ii),

20 ‘‘(vii) a determination by the administering

21 authority to amend a countermeasure order

22 under section 807(e)(6),

23 ‘‘(viii) a determination by the administer24 ing authority in a review under section 807(g),
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•S 1216 PCS

1 ‘‘(ix) a determination by the administering

2 authority under section 807(i) to terminate pro3 ceedings, or to amend or revoke a counter4 measure order,

5 ‘‘(x) a determination by the administering

6 authority under section 845(b), with respect to

7 a matter described in paragraph (1)(D) of that

8 section, or

9 ‘‘(B)(i) an injurious pricing order based on

10 a determination described in subparagraph (A)

11 of paragraph (2),

12 ‘‘(ii) notice of a determination described in

13 subparagraph (B) of paragraph (2),

14 ‘‘(iii) notice of implementation of a deter15 mination described in subparagraph (C) of

16 paragraph (2), or

17 ‘‘(iv) notice of revocation of an injurious

18 pricing order based on a determination de19 scribed in subparagraph (D) of paragraph (2),

20 an interested party who is a party to the pro21 ceeding in connection with which the matter

22 arises may commence an action in the United

23 States Court of International Trade by filing

24 concurrently a summons and complaint, each

25 with the content and in the form, manner, and
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1 style prescribed by the rules of that court, con2 testing any factual findings or legal conclusions

3 upon which the determination is based.

4 ‘‘(2) REVIEWABLE DETERMINATIONS.—The de5 terminations referred to in paragraph (1)(B) are—

6 ‘‘(A) a final affirmative determination by

7 the administering authority or by the Commis8 sion under section 805, including any negative

9 part of such a determination (other than a part

10 referred to in subparagraph (B)),

11 ‘‘(B) a final negative determination by the

12 administering authority or the Commission

13 under section 805,

14 ‘‘(C) a determination by the administering

15 authority under section 845(b), with respect to

16 a matter described in paragraph (1)(A) of that

17 section, and

18 ‘‘(D) a determination by the Commission

19 under section 845(a) that results in the revoca20 tion of an injurious pricing order.

21 ‘‘(3) EXCEPTION.—Notwithstanding the 30-day

22 limitation imposed by paragraph (1) with regard to

23 an order described in paragraph (1)(B)(i), a final af24 firmative determination by the administering author25 ity under section 805 may be contested by commenc-
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1 ing an action, in accordance with the provisions of

2 paragraph (1), within 30 days after the date of pub3 lication in the Federal Register of a final negative

4 determination by the Commission under section 805.

5 ‘‘(4) PROCEDURES AND FEES.—The procedures

6 and fees set forth in chapter 169 of title 28, United

7 States Code, apply to an action under this section.

8 ‘‘(b) STANDARDS OF REVIEW.—

9 ‘‘(1) REMEDY.—The court shall hold unlawful

10 any determination, finding, or conclusion found—

11 ‘‘(A) in an action brought under subpara12 graph (A) of subsection (a)(1), to be arbitrary,

13 capricious, an abuse of discretion, or otherwise

14 not in accordance with law, or

15 ‘‘(B) in an action brought under subpara16 graph (B) of subsection (a)(1), to be unsup17 ported by substantial evidence on the record, or

18 otherwise not in accordance with law.

19 ‘‘(2) RECORD FOR REVIEW.—

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

21 subsection, the record, unless otherwise stipu22 lated by the parties, shall consist of—

23 ‘‘(i) a copy of all information pre24 sented to or obtained by the administering

25 authority or the Commission during the
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1 course of the administrative proceeding, in2 cluding all governmental memoranda per3 taining to the case and the record of ex

4 parte meetings required to be kept by sec5 tion 843(a)(2); and

6 ‘‘(ii) a copy of the determination, all

7 transcripts or records of conferences or

8 hearings, and all notices published in the

9 Federal Register.

10 ‘‘(B) CONFIDENTIAL OR PRIVILEGED MA11 TERIAL.—The confidential or privileged status

12 accorded to any documents, comments, or infor13 mation shall be preserved in any action under

14 this section. Notwithstanding the preceding sen15 tence, the court may examine, in camera, the

16 confidential or privileged material, and may dis17 close such material under such terms and con18 ditions as it may order.

19 ‘‘(c) STANDING.—Any interested party who was a

20 party to the proceeding under title VIII shall have the

21 right to appear and be heard as a party in interest before

22 the United States Court of International Trade in an ac23 tion under this section. The party filing the action shall

24 notify all such interested parties of the filing of an action
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1 under this section, in the form, manner, and within the

2 time prescribed by rules of the court.

3 ‘‘(d) DEFINITIONS.—For purposes of this section:

4 ‘‘(1) ADMINISTERING AUTHORITY.—The term

5 ‘administering authority’ has the meaning given that

6 term in section 861(1).

7 ‘‘(2) COMMISSION.—The term ‘Commission’

8 means the United States International Trade Com9 mission.

10 ‘‘(3) INTERESTED PARTY.—The term ‘inter11 ested party’ means any person described in section

12 861(17).’’.

13 (b) CONFORMING AMENDMENTS.—

14 (1) JURISDICTION OF THE COURT.—Section

15 1581(c) of title 28, United States Code, is amended

16 by inserting ‘‘or 516B’’ after ‘‘section 516A’’.

17 (2) RELIEF.—Section 2643 of title 28, United

18 States Code, is amended—

19 (A) in subsection (c)(1) by striking ‘‘and

20 (5)’’ and inserting ‘‘(5), and (6)’’; and

21 (B) in subsection (c) by adding at the end

22 the following new paragraph:

23 ‘‘(6) In any civil action under section 516B of the

24 Tariff Act of 1930, the Court of International Trade may

25 not issue injunctions or any other form of equitable relief,
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1 except with regard to implementation of a countermeasure

2 order under section 468 of that Act, upon a proper show3 ing that such relief is warranted.’’.

4 Subtitle B—Other Provisions

5 SEC. 111. EQUIPMENT AND REPAIR OF VESSELS.

6 (a) IN GENERAL.—Section 466 of the Tariff Act of

7 1930 (19 U.S.C. 1466), is amended by adding at the end

8 the following new subsection:

9 ‘‘(i) EXCEPTION TO IMPOSITION OF DUTY.—

10 ‘‘(1) IN GENERAL.—The duty imposed by sub11 section (a) shall not apply with respect to activities

12 occurring in a Shipbuilding Agreement Party, as de13 fined in section 861(22), with respect to—

14 ‘‘(A) self-propelled seagoing vessels of 100

15 gross tons or more that are used for transpor16 tation of goods or persons or for performance

17 of a specialized service (including, but not lim18 ited to, ice breakers and dredges);

19 ‘‘(B) tugs of 365 kilowatts or more; and

20 ‘‘(C) integrated tug-barges or tug-barge

21 combinations.

22 ‘‘(2) SELF-PROPELLED SEAGOING; INTEGRATED

23 TUG-BARGE.—

24 ‘‘(A) SELF-PROPELLED SEAGOING.—A ves25 sel shall be considered ‘self-propelled seagoing’
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1 if its permanent propulsion and steering provide

2 it all the characteristics of self-navigability in

3 the high seas.

4 ‘‘(B) INTEGRATED TUG-BARGE.—An inte5 grated tug-barge or tug-barge combination

6 means a vessel that is designed to operate to7 gether in either the push mode or pull mode, if

8 the barge is of 100 gross tons or more and the

9 tug is of 365 kilowatts or more.’’.

10 SEC. 112. EFFECT OF SHIPBUILDING TRADE AGREEMENT

11 WITH RESPECT TO PRIVATE REMEDIES.

12 No person other than the United States—

13 (1) shall have any cause of action or defense

14 under the Shipbuilding Agreement or by virtue of

15 congressional approval of the Shipbuilding Agree16 ment, or

17 (2) may challenge, in any action brought under

18 any provision of law, any action or inaction by any

19 department, agency, or other instrumentality of the

20 United States, the District of Columbia, any State,

21 any political subdivision of a State, or any territory

22 or possession of the United States on the ground

23 that such action or inaction is inconsistent with such

24 Shipbuilding Agreement.
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1 SEC. 113. IMPLEMENTING REGULATIONS.

2 After the date of the enactment of this title, the heads

3 of agencies with functions under this title and the amend4 ments made by this title may issue such regulations as

5 may be necessary to ensure that this title is appropriately

6 implemented on the date the Shipbuilding Agreement en7 ters into force with respect to the United States.

8 SEC. 114. AMENDMENTS TO THE MERCHANT MARINE ACT,

9 1936.

10 The Merchant Marine Act, 1936, is amended as fol11 lows:

12 (1) Section 511(a)(2) (46 App. U.S.C.

13 1161(a)(2)) is amended by inserting after ‘‘1939,’’

14 the following: ‘‘or, if the vessel is a Shipbuilding

15 Agreement vessel, constructed in a Shipbuilding

16 Agreement Party, but only with regard to moneys

17 deposited, on or after the date on which the OECD

18 Shipbuilding Trade Agreement Act takes effect, into

19 a construction reserve fund established under sub20 section (b)’’.

21 (2) Section 601(a) (46 App. U.S.C. 1171(a)) is

22 amended by striking ‘‘, and that such vessel or ves23 sels were built in the United States, or have been

24 documented under the laws of the United States not

25 later than February 1, 1928, or actually ordered and

26 under construction for the account of citizens of the
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1 United States prior to such date;’’ and inserting

2 ‘‘and that such vessel or vessels were built in the

3 United States, or, if the vessel or vessels are Ship4 building Agreement vessels, in a Shipbuilding Agree5 ment Party;’’.

6 (3) Section 606(6) (46 App. U.S.C. 1176(6)) is

7 amended by inserting ‘‘or, if the vessel is a Ship8 building Agreement vessel, in a Shipbuilding Agree9 ment Party or in the United States,’’ before ‘‘, ex10 cept in an emergency.’’.

11 (4) Section 607 (46 App. U.S.C. 1177) is

12 amended as follows:

13 (A) Subsection (a) is amended by inserting

14 ‘‘or, if the vessel is a Shipbuilding Agreement

15 vessel, in a Shipbuilding Agreement Party,’’

16 after ‘‘built in the United States’’.

17 (B) Subsection (k) is amended as follows:

18 (i) Paragraph (1) is amended by

19 striking subparagraph (A) and inserting

20 the following:

21 ‘‘(A)(i) constructed in the United States

22 and, if reconstructed, reconstructed in the Unit23 ed States or in a Shipbuilding Agreement

24 Party, or
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1 ‘‘(ii) that is a Shipbuilding Agreement ves2 sel and is constructed in a Shipbuilding Agree3 ment Party and, if reconstructed, is recon4 structed in a Shipbuilding Agreement Party or

5 in the United States,’’.

6 (ii) Paragraph (2)(A) is amended to

7 read as follows:

8 ‘‘(A)(i) constructed in the United States

9 and, if reconstructed, reconstructed in the Unit10 ed States or in a Shipbuilding Agreement

11 Party, or

12 ‘‘(ii) that is a Shipbuilding Agreement ves13 sel and is constructed in a Shipbuilding Agree14 ment Party and, if reconstructed, is recon15 structed in a Shipbuilding Agreement Party or

16 in the United States, but only with regard to

17 moneys deposited into the fund on or after the

18 date on which the OECD Shipbuilding Trade

19 Agreement Act takes effect,’’.

20 (5) Section 610 (46 App. U.S.C. 1180) is

21 amended by striking ‘‘shall be built in a domestic

22 yard or shall have been documented under the laws

23 of the United States not later than February 1,

24 1928, or actually ordered and under construction for

25 the account of citizens of the United States prior to
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1 such date,’’ and inserting ‘‘shall be built in the Unit2 ed States or, if the vessel is a Shipbuilding Agree3 ment vessel, in a Shipbuilding Agreement Party,’’.

4 (6) Section 901(b)(1) (46 App. U.S.C.

5 1241(b)(1)) is amended by striking the third sen6 tence and inserting the following: ‘‘For purposes of

7 this section, the term ‘privately owned United

8 States-flag commercial vessels’ shall be deemed to

9 include—

10 ‘‘(A) any privately owned United States11 flag commercial vessel constructed in the Unit12 ed States, and if rebuilt, rebuilt in the United

13 States or in a Shipbuilding Agreement Party on

14 or after the date on which the OECD Ship15 building Trade Agreement Act takes effect, and

16 ‘‘(B) any privately owned vessel con17 structed in a Shipbuilding Agreement Party on

18 or after the date on which the OECD Ship19 building Trade Agreement Act takes effect, and

20 if rebuilt, rebuilt in a Shipbuilding Agreement

21 Party or in the United States, that is docu22 mented pursuant to chapter 121 of title 46,

23 United States Code.

24 The term ‘privately owned United States-flag com25 mercial vessels’ shall also be deemed to include any
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1 cargo vessel that so qualified pursuant to section

2 615 of this Act or this paragraph before the date

3 on which the OECD Shipbuilding Trade Agreement

4 Act takes effect. The term ‘privately owned United

5 States-flag commercial vessels’ shall not be deemed

6 to include any liquid bulk cargo vessel that does not

7 meet the requirements of section 3703a of title 46,

8 United States Code.’’.

9 (7) Section 905 (46 App. U.S.C. 1244) is

10 amended by adding at the end the following:

11 ‘‘(h) The term ‘Shipbuilding Agreement’ means the

12 Agreement Respecting Normal Competitive Conditions in

13 the Commercial Shipbuilding and Repair Industry, which

14 resulted from negotiations under the auspices of the Orga15 nization for Economic Cooperation and Development, and

16 was entered into on December 21, 1994.

17 ‘‘(i) The term ‘Shipbuilding Agreement Party’ means

18 a state or separate customs territory that is a Party to

19 the Shipbuilding Agreement, and with respect to which the

20 United States applies the Shipbuilding Agreement.

21 ‘‘(j) The term ‘Shipbuilding Agreement vessel’ means

22 a vessel to which the Secretary determines Article 2.1 of

23 the Shipbuilding Agreement applies.

24 ‘‘(k) The term ‘Export Credit Understanding’ means

25 the Understanding on Export Credits for Ships which re-
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1 sulted from negotiations under the auspices of the Organi2 zation for Economic Cooperation and Development and

3 was entered into on December 21, 1994.

4 ‘‘(l) The term ‘Export Credit Understanding vessel’

5 means a vessel to which the Secretary determines the Ex6 port Credit Understanding applies.

7 ‘‘(m) The term ‘integrated tug-barge’ has the mean8 ing given such term in section 466(i) of the Tariff Act

9 of 1930 (19 U.S.C. 1466(i)).’’.

10 (8) Section 1104A (46 App. U.S.C. 1274) is

11 amended—

12 (A) in subsection (b), by amending para13 graph (5) to read as follows:

14 ‘‘(5) shall bear interest (exclusive of charges for

15 the guarantee and service charges, if any) at rates

16 not to exceed such percent per annum on the unpaid

17 principal as the Secretary determines to be reason18 able, taking into account the range of interest rates

19 prevailing in the private market for similar loans

20 and the risks assumed by the Secretary, except that,

21 with respect to Export Credit Understanding vessels,

22 and Shipbuilding Agreement vessels, the obligations

23 shall bear interest at a rate the Secretary determines

24 to be consistent with obligations of the United
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1 States under the Export Credit Understanding or

2 the Shipbuilding Agreement, as the case may be;’’;

3 (B) by amending subsection (i) to read as

4 follows:

5 ‘‘(i)(1) Except as provided in paragraph (2), the Sec6 retary may not, with respect to—

7 ‘‘(A) the general 75 percent or less limitation

8 contained in subsection (b)(2),

‘‘(B) the 871 9 ⁄2 percent or less limitation con10 tained in the 1st, 2nd, 4th, or 5th proviso to sub11 section (b)(2) or in section 1112(b), or

12 ‘‘(C) the 80 percent or less limitation in the 3rd

13 proviso to subsection (b)(2),

14 establish by rule, regulation, or procedure any percentage

15 within any such limitation that is, or is intended to be,

16 applied uniformly to all guarantees or commitments to

17 guarantee made under this section that are subject to the

18 limitation.

19 ‘‘(2) With respect to Export Credit Understanding

20 vessels and Shipbuilding Agreement vessels, the Secretary

21 may establish by rule, regulation, or procedure a uniform

22 percentage that the Secretary determines to be consistent

23 with obligations of the United States under the Export

24 Credit Understanding or the Shipbuilding Agreement, as

25 the case may be.’’; and
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1 (C) by adding at the end the following new

2 subsection:

3 ‘‘(k) The Secretary shall establish by rule, regulation,

4 or procedure a uniform percentage with respect to inte5 grated tug-barges that the Secretary determines to be con6 sistent with the percentages applied with respect to Export

7 Credit Understanding vessels and Shipbuilding Agreement

8 vessels under subsections (b)(5) and (i)(2).’’.

9 (9) Section 1104B(b) (46 App. U.S.C.

10 1274a(b)) is amended by striking the period at the

11 end and inserting the following: ‘‘, except that, with

12 respect to Export Credit Understanding vessels and

13 Shipbuilding Agreement vessels, the Secretary may

14 establish by rule, regulation, or procedure a uniform

15 percentage that the Secretary determines to be con16 sistent with obligations of the United States under

17 the Export Credit Understanding or the Shipbuild18 ing Agreement, as the case may be. With respect to

19 integrated tug-barges, the Secretary shall establish

20 by rule, regulation, or procedure a uniform percent21 age that the Secretary determines to be consistent

22 with the percentages applied with respect to Export

23 Credit Understanding vessels and Shipbuilding

24 Agreement vessels pursuant to the preceding sen25 tence.’’.
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1 SEC. 115. APPLICABILITY OF TITLE XI AMENDMENTS.

2 (a) EFFECTIVE DATE.—

3 (1) IN GENERAL.—Notwithstanding any provi4 sion of the Shipbuilding Agreement or the Export

5 Credit Understanding, the amendments made by

6 paragraphs (9) and (10) of section 114 shall not

7 apply with respect to any commitment to guarantee

8 made under title XI of the Merchant Marine Act,

9 1936, before January 1, 2000, with respect to a ves10 sel delivered—

11 (A) before January 1, 2003, or

12 (B) in the case of unusual circumstances

13 (as described in paragraph (2)), as soon after

14 December 31, 2002, as practicable.

15 (2) UNUSUAL CIRCUMSTANCES DESCRIBED.—

16 As used in this subsection, the term ‘‘unusual cir17 cumstances’’ means an act of God (other than ordi18 nary storms or inclement weather conditions) labor

19 strikes, acts of sabotage, explosions, fires, or vandal20 ism, and similar circumstances beyond the control of

21 the parties concerned which prevent the delivery of

22 a vessel before January 1, 2003.

23 (b) MATCHING COMPETITION BY NONMEMBERS.—

24 Section 114 shall not prevent the Secretary of Transpor25 tation from exercising the Secretary’s full discretion and

26 authority under title XI of the Merchant Marine Act,
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1 1936, consistent with clause 8 and Annex III of the Ex2 port Credit Understanding, to assist United States ship3 yards in meeting unfairly subsidized bids by foreign yards

4 in countries not covered by the Shipbuilding Agreement.

5 SEC. 116. MONITORING AND ENFORCEMENT.

6 (a) IN GENERAL.—The United States Trade Rep7 resentative shall establish a program to monitor the com8 pliance of Shipbuilding Agreement Parties with their obli9 gations under the Shipbuilding Agreement. The program

10 shall include—

11 (1) the establishment of a task force composed

12 of representatives of the Departments of Commerce,

13 Labor, State, Transportation, and other appropriate

14 agencies;

15 (2) coordination of gathering and analysis of

16 relevant information;

17 (3) consultation with United States embassies

18 located in countries that are Shipbuilding Agreement

19 Parties to assist in obtaining information that is

20 publicly available on the policies and practices in

21 those countries;

22 (4) regular consultations with representatives of

23 industry, labor, and other interested parties regard24 ing policies and practices of Shipbuilding Agreement
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1 Parties and of other countries with significant com2 mercial shipbuilding industries;

3 (5) annual publication of a notice in the Fed4 eral Register affording an opportunity for interested

5 parties to comment on the implementation of the

6 Shipbuilding Agreement; and

7 (6) taking of any other appropriate action to

8 monitor compliance of Shipbuilding Agreement Par9 ties.

10 (b) REPORT TO CONGRESS.—Before the end of each

11 12-month period in which the United States is a Party

12 to the Shipbuilding Agreement, the United States Trade

13 Representative shall report to Congress on—

14 (1) the activities undertaken as part of its mon15 itoring program;

16 (2) the results of its consultations under sub17 section (a)(4); and

18 (3) compliance with the provisions of the Ship19 building Agreement.

20 (c) ACTION IF VIOLATION.—If the United States

21 Trade Representative receives information, including in22 formation provided by representatives of industry, labor,

23 and other interested parties, indicating that a Shipbuild24 ing Agreement Party is in material violation of the Ship25 building Agreement in a manner that is detrimental to the
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1 interests of the United States, the United States Trade

2 Representative should use vigorously the consultation pro3 cedures under the Shipbuilding Agreement. If the matter

4 is not otherwise resolved, the United States Trade Rep5 resentative should use the dispute settlement procedures

6 under the Shipbuilding Agreement to redress the situa7 tion.

8 SEC. 117. JONES ACT AND RELATED LAWS NOT AFFECTED.

9 (a) IN GENERAL.—Nothing in the Shipbuilding

10 Agreement shall be construed to amend, alter, or modify

11 in any manner the Merchant Marine Act, 1920 (46 App.

12 U.S.C. 861 et seq.), the Act of June 19, 1886 (46 App.

13 U.S.C. 289), or any other provision of law set forth in

14 Accompanying Note 2 to Annex II of the Shipbuilding

15 Agreement. Nor shall the Shipbuilding Agreement be in16 terpreted to undermine the operation or administration of

17 any of the foregoing provisions of law or impede the objec18 tives of such laws.

19 (b) RELATION TO GATT 1994.—Nothing in the

20 Shipbuilding Agreement shall be construed to provide a

21 mechanism for withdrawal of concessions under GATT

22 1994 because of the construction of vessels by United

23 States shipbuilders for operation in the coastwise trade of

24 the United States.
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1 (c) ANNUAL REVIEW; NOTIFICATION.—As part of the

2 annual review of all trade agreements conducted under

3 section 163 of the Trade Act of 1974, the United States

4 Trade Representative shall—

5 (1) review the impact, if any, of the Shipbuild6 ing Agreement on the operation or implementation

7 of any of the provisions of law listed in subsection

8 (a);

9 (2) in conducting the review, consult with the

10 Secretary of Transportation, the Secretary of De11 fense, United States industry, labor groups, and

12 other interested parties; and

13 (3) report the results of the review to the Presi14 dent and the appropriate committees.

15 SEC. 118. WITHDRAWAL FROM SHIPBUILDING AGREEMENT.

16 (a) WITHDRAWAL BY PRESIDENT.—

17 (1) NOTICE.—The President shall give notice,

18 under Article 14 of the Shipbuilding Agreement, of

19 intent of the United States to withdraw from the

20 Shipbuilding Agreement, as soon as is practicable

21 after one or more Shipbuilding Agreement Parties

22 gives notice, under such Article, of intent to with23 draw from the Shipbuilding Agreement, if the cir24 cumstances described in paragraph (2) apply.
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1 (2) TONNAGE OF NEW CONSTRUCTION IN WITH2 DRAWING PARTIES.—The circumstances described in

3 this paragraph are that the combined gross tonnage

4 of Shipbuilding Agreement vessels that—

5 (A) were constructed in all Shipbuilding

6 Agreement Parties who have given notice to

7 withdraw from the Shipbuilding Agreement,

8 and

9 (B) were delivered in the calendar year

10 preceding the calendar year in which the notice

11 is given,

12 is 15 percent or more of the gross tonnage of Ship13 building Agreement vessels that were constructed in

14 all Shipbuilding Agreement Parties and were deliv15 ered in the calendar year preceding the calendar

16 year in which the notice is given.

17 (3) TERMINATION OF WITHDRAWAL.—If a

18 Shipbuilding Agreement Party described in para19 graph (2) takes action to terminate its withdrawal

20 from the Shipbuilding Agreement, so that paragraph

21 (2) would not apply if that Party had not given the

22 notice to withdraw, the President may take the nec23 essary steps to terminate the notice of withdrawal of

24 the United States from the Shipbuilding Agreement.
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1 (b) CONGRESSIONAL RESOLUTION WITHDRAWING

2 APPROVAL OF THE SHIPBUILDING AGREEMENT.—

3 (1) NOTIFICATION BY THE PRESIDENT.—The

4 President shall notify the appropriate committees as

5 soon as is practicable of any decision by a Shipbuild6 ing Agreement Party to apply responsive measures

7 under the provisions of paragraph 2.e of Annex II

8 B of the Shipbuilding Agreement against the United

9 States and the applicable date of such measures.

10 (2) CONGRESSIONAL ACTION.—If Congress re11 ceives a notification described in paragraph (1), the

12 approval of Congress, provided under section 101 of

13 this Act, shall cease to be effective if, and only if,

14 a joint resolution is enacted into law pursuant to the

15 provisions of paragraphs (3) and (4).

16 (3) PROCEDURAL PROVISIONS.—

17 (A) IN GENERAL.—The requirements of

18 this paragraph are met if a joint resolution is

19 adopted under paragraph (4), and—

20 (i) Congress transmits the joint reso21 lution to the President before the end of

22 the 90-day period, beginning on the appli23 cable date referred to in paragraph (1),

24 and
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1 (ii) if the President vetoes the joint

2 resolution, each House of Congress votes

3 to override that veto on or before the later

4 of—

5 (I) the last day of the 90-day pe6 riod referred to in clause (i), or

7 (II) the last day of the 15-day

8 period beginning on the date on which

9 Congress receives the veto message

10 from the President.

11 (B) INTRODUCTION.—A joint resolution to

12 which this subsection applies may be introduced

13 at any time on or after the applicable date re14 ferred to in paragraph (1).

15 (4) JOINT RESOLUTION.—

16 (A) JOINT RESOLUTION.—For purposes of

17 this subsection, the term ‘‘joint resolution’’

18 means only a joint resolution of the 2 Houses

19 of Congress, the matter after the resolving

20 clause of which is as follows: ‘‘That Congress

21 withdraws its approval, provided under section

22 101 of the OECD Shipbuilding Trade Agree23 ment Act, of the Shipbuilding Agreement de24 scribed in section 101 of that Act.’’.

25 (B) PROCEDURES.—
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1 (i) IN GENERAL.—Joint resolutions

2 may be introduced in either House of Con3 gress by any Member of such House.

4 (ii) APPLICATION OF SECTION 152 OF

5 THE TRADE ACT OF 1974.—Subject to the

6 provisions of this subsection, the provisions

7 of subsections (b), (d), (e), and (f) of sec8 tion 152 of the Trade Act of 1974 (19

9 U.S.C. 2192 (b), (d), (e), and (f)) apply to

10 joint resolutions to the same extent as

11 such provisions apply to resolutions under

12 such section.

13 (iii) DISCHARGE OF COMMITTEE.—If

14 a committee of either House to which a

15 joint resolution has been referred has not

16 reported it by the close of the 45th day

17 after its introduction, such committee shall

18 be automatically discharged from further

19 consideration of the joint resolution and it

20 shall be placed on the appropriate cal21 endar.

22 (iv) FLOOR CONSIDERATION.—It is

23 not in order for—

24 (I) the Senate to consider any

25 joint resolution unless it has been re-
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1 ported by the Committee on Finance

2 or the committee has been discharged

3 under clause (iii);

4 (II) the House of Representatives

5 to consider any joint resolution unless

6 it has been reported by the Committee

7 on Ways and Means or the committee

8 has been discharged under clause (iii);

9 or

10 (III) either House to consider

11 any joint resolution or take any action

12 under paragraph (3)(A) (i) or (ii), if

13 the President has notified the appro14 priate committees that the decision to

15 apply responsive measures described

16 in paragraph (1) has been withdrawn

17 and the responsive measures have not

18 actually been applied.

19 (v) CONSIDERATION IN THE HOUSE.—

20 A motion in the House of Representatives

21 to proceed to the consideration of a joint

22 resolution may only be made on the second

23 legislative day after the calendar day on

24 which the Member making the motion an25 nounces his or her intention to do so.
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1 (C) CONSIDERATION OF SECOND RESOLU2 TION NOT IN ORDER.—It shall not be in order

3 in either the House of Representatives or the

4 Senate to consider another joint resolution

5 under this subsection (other than a joint resolu6 tion received from the other House), if that

7 House has previously voted on a joint resolution

8 under this subsection with respect to the same

9 Presidential notification described in paragraph

10 (1).

11 (5) DEFINITION AND SPECIAL RULE.—

12 (A) APPLICABLE DATE.—For purposes of

13 this subsection, the term ‘‘applicable date’’

14 means the date on which the responsive meas15 ures described in paragraph (1) are first sched16 uled to be applied by the Shipbuilding Agree17 ment Party.

18 (B) COMPUTATION OF TIME PERIODS.—

19 For purposes of paragraph (3)(A) (i) and (ii)

20 and paragraph (4)(B)(iii), the 90-day period,

21 the 15-day period, and the 45 days referred to

22 in such paragraphs shall be computed by ex23 cluding—

24 (i) the days on which either House is

25 not in session because of an adjournment
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1 of more than 3 days to a day certain or an

2 adjournment of the Congress sine die, and

3 (ii) any Saturday and Sunday, not ex4 cluded under clause (i), when either House

5 is not in session.

6 (6) RULES OF HOUSE OF REPRESENTATIVES

7 AND SENATE.—This subsection is enacted by Con8 gress—

9 (A) as an exercise of the rulemaking power

10 of the House of Representatives and the Sen11 ate, respectively, and such procedures supersede

12 other rules only to the extent that such proce13 dures are inconsistent with such other rules;

14 and

15 (B) with the full recognition of the con16 stitutional right of either House to change the

17 rules (so far as relating to the procedures of

18 that House) at any time, in the same manner,

19 and to the same extent as any other rule of that

20 House.

21 SEC. 119. EXPANDING MEMBERSHIP IN THE SHIPBUILDING

22 AGREEMENT.

23 (a) MONITORING.—The United States Trade Rep24 resentative shall monitor the impact of the policies and

25 practices pursued by countries that are not Shipbuilding
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1 Agreement Parties, and shall seek the prompt accession

2 to the Shipbuilding Agreement of countries that have sig3 nificant commercial shipbuilding and repair industries, in4 cluding, but not limited to, Australia, Brazil, India, the

5 People’s Republic of China, Poland, Romania, the Russian

6 Federation, Singapore, and Ukraine.

7 (b) REPORT.—The United States Trade Representa8 tive shall report to Congress annually on the results of

9 efforts to expand the membership of the Shipbuilding

10 Agreement. If it is determined that the continuing failure

11 of a country to adopt the disciplines of the Shipbuilding

12 Agreement is undermining the effectiveness of the Ship13 building Agreement and placing United States shipyards

14 at a competitive disadvantage, the United States Trade

15 Representative shall take vigorous action to redress the

16 situation by—

17 (1) using mechanisms available under United

18 States trade laws,

19 (2) seeking consultations with the country in20 volved, and

21 (3) initiating dispute settlement under applica22 ble international agreements.

23 The United States Trade Representative may also take ac24 tion with other Shipbuilding Agreement Parties.
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1 SEC. 120. PROTECTION OF UNITED STATES SECURITY IN2 TERESTS.

3 Nothing in the Shipbuilding Agreement shall be con4 strued to prevent the United States from taking any ac5 tion which the United States considers necessary for the

6 protection of the essential security interests of the United

7 States as determined by the President, including invoking

8 its sovereign authority to exclude ‘‘military vessels’’ and

9 ‘‘military reserve vessels’’ from coverage under the Ship10 building Agreement and from any dispute or challenge

11 based on Annex I to the Shipbuilding Agreement. If the

12 United States takes action under the preceding sentence,

13 the Secretary of Defense shall designate the ‘‘military ves14 sels’’ and ‘‘military reserve vessels’’ to be excluded on a

15 case-by-case basis.

16 SEC. 121. DEFINITIONS.

17 In this subtitle:

18 (1) APPROPRIATE COMMITTEES.—The term

19 ‘‘appropriate committees’’ means the Committees on

20 Finance and Commerce, Science, and Transpor21 tation of the Senate, and the Committees on Ways

22 and Means and National Security of the House of

23 Representatives.

24 (2) SHIPBUILDING AGREEMENT, ETC.—The

25 terms ‘‘Shipbuilding Agreement’’, ‘‘Shipbuilding

26 Agreement Party’’, ‘‘Shipbuilding Agreement ves-
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1 sels’’, and ‘‘Export Credit Understanding’’ have the

2 meanings given those terms in subsections (h), (i),

3 (j), and (k), respectively, of section 905 of the Mer4 chant Marine Act, 1936, as added by section 114(8)

5 of this Act.

6 (3) GATT 1994.—The term ‘‘GATT 1994’’ has

7 the meaning given that term in section 2 of the Uru8 guay Round Agreements Act (19 U.S.C. 3501).

9 (4) MILITARY VESSEL.—The term ‘‘military

10 vessel’’ means a vessel that, according to its basic

11 structural characteristics and ability, is intended to

12 be used exclusively for military purposes.

13 (5) MILITARY RESERVE VESSEL.—The term

14 ‘‘military reserve vessel’’ means a vessel that has

15 been constructed with national defense features and

16 characteristics required by the Secretary of Defense

17 for the purpose of supporting the United States

18 Armed Forces in a contingency, if the vessel (with19 out regard to such features and characteristics) is

20 otherwise subject to the terms and conditions of the

21 Shipbuilding Agreement.

22 SEC. 122. CAPITAL CONSTRUCTION FUND CONFORMING

23 AMENDMENT.

24 Subsection (i) of section 7518 of the Internal Reve25 nue Code of 1986 is amended by inserting before the pe-
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1 riod the following: ‘‘, except that in the case of the terms

2 ‘eligible vessel’ and ‘qualified vessel’, the amendments to

3 such section by the OECD Shipbuilding Trade Agreement

4 Act shall be taken into account’’.

5 Subtitle C—Effective Date

6 SEC. 131. EFFECTIVE DATE.

7 (a) IN GENERAL.—Except as otherwise provided in

8 this title, this title and the amendments made by this title

9 take effect on the date that the Shipbuilding Agreement

10 enters into force with respect to the United States.

11 (b) TERMINATION OF TITLE AND AMENDMENTS.—

12 This title and the amendments made by this title shall

13 cease to be effective on the date the withdrawal of the

14 United States from the Shipbuilding Agreement becomes

15 effective.

16 TITLE II—INTERNATIONAL

17 SHIPPING INCOME DISCLOSURE

18 SEC. 201. PENALTIES FOR FAILURE TO DISCLOSE POSITION

19 THAT CERTAIN INTERNATIONAL SHIPPING

20 INCOME IS NOT INCLUDIBLE IN GROSS IN21 COME.

22 (a) IN GENERAL.—Section 883 of the Internal Reve23 nue Code of 1986 is amended by adding at the end the

24 following new subsection:
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1 ‘‘(d) PENALTIES FOR FAILURE TO DISCLOSE POSI2 TION THAT CERTAIN INTERNATIONAL SHIPPING INCOME

3 IS NOT INCLUDIBLE IN GROSS INCOME.—

4 ‘‘(1) IN GENERAL.—A taxpayer who, with re5 spect to any tax imposed by this title, takes the posi6 tion that any of its gross income derived from the

7 international operation of a ship or ships is not in8 cludible in gross income by reason of subsection

9 (a)(1) or section 872(b)(1) (or by reason of any ap10 plicable treaty) shall be entitled to such treatment

11 only if such position is disclosed (in such manner as

12 the Secretary may prescribe) on the return of tax for

13 such tax (or any statement attached to such return).

14 ‘‘(2) ADDITIONAL PENALTIES FOR FAILING TO

15 DISCLOSE POSITION.—If a taxpayer fails to meet the

16 requirement of paragraph (1) with respect to any

17 taxable year—

18 ‘‘(A) the amount of the income from the

19 international operation of a ship or ships—

20 ‘‘(i) which is from sources without the

21 United States, and

22 ‘‘(ii) which is attributable to a fixed

23 place of business in the United States,
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1 shall be treated for purposes of this title as ef2 fectively connected with the conduct of a trade

3 or business within the United States, and

4 ‘‘(B) no deductions or credits shall be al5 lowed which are attributable to income from the

6 international operation of a ship or ships.

7 ‘‘(3) REASONABLE CAUSE EXCEPTION.—This

8 subsection shall not apply to a failure to disclose a

9 position if it is shown that such failure is due to rea10 sonable cause and not due to willful neglect.’’

11 (b) CONFORMING AMENDMENTS.—

12 (1) Paragraph (1) of section 872(b) of such

13 Code is amended by striking ‘‘Gross income’’ and in14 serting ‘‘Except as provided in section 883(d), gross

15 income’’.

16 (2) Paragraph (1) of section 883(a) of such

17 Code is amended by striking ‘‘Gross income’’ and in18 serting ‘‘Except as provided in subsection (d), gross

19 income’’.

20 (c) EFFECTIVE DATE.—

21 (1) IN GENERAL.—The amendments made by

22 this section shall apply to taxable years beginning

23 after December 31, 1997.

24 (2) COORDINATION WITH TREATIES.—The

25 amendments made by this section shall not apply in
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1 any case where their application would be contrary

2 to any treaty obligation of the United States.

3 (d) INFORMATION TO BE PROVIDED BY CUSTOMS

4 SERVICE.—The United States Custom Service shall pro5 vide the Secretary of the Treasury or his delegate with

6 such information as may be specified by such Secretary

7 in order to enable such Secretary to determine whether

8 ships which are not registered in the United States are

9 engaged in transportation to or from the United States.