Calendar No. 293

105TH CONGRESS

1ST SESSION S. 1216

[Report No. 105–84]

[Report No. 105–154]

A BILL

To approve and implement the OECD Shipbuilding

N

Trade Agreement.

OVEMBER 10, 1997

Reported with amendments
II

Calendar No. 293

105TH CONGRESS

1ST SESSION S. 1216

[Report No. 105–84]

[Report No. 105–154]

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

NOVEMBER 9, 1997

Ordered referred to the Committee on Commerce, Science, and Transportation

for consideration of matters within its jurisdiction for not to exceed 10

calendar days

NOVEMBER 10, 1997

Reported by Mr. MCCAIN, with amendments

[Omit the part struck through and insert the part printed in italic]

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,
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1 SECTION 1. SHORT TITLE; PURPOSES; TABLE OF CON2 TENTS.

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

4 ‘‘OECD Shipbuilding Trade Agreement Act’’.

5 (b) PURPOSES.—The purposes of this Act are—

6 (1) to enhance the competitiveness of United

7 States shipbuilders which has been diminished as a

8 result of foreign subsidies and predatory pricing

9 practices;

10 (2) to ensure that United States ownership,

11 manning, registry, and construction requirements for

12 coastwise trade vessels, which have provided the De13 partment of Defense with mariners and assets in

14 time of national emergency, cannot be compromised

15 by the Shipbuilding Agreement; and

16 (3) to strengthen the United States shipbuild17 ing industrial base to ensure that its full capabilities

18 are available in time of national emergency.

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

20 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
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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.

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.
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1 SEC. 102. INJURIOUS PRICING AND COUNTERMEASURES

2 RELATING TO SHIPBUILDING.

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

4 end the following new title:

5 ‘‘TITLE VIII—INJURIOUS PRIC6 ING AND COUNTERMEASURES

7 RELATING TO SHIPBUILDING

‘‘Subtitle A—Imposition of Injurious Pricing Charge and Countermeasures

‘‘Sec. 801. Injurious pricing charge.

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

‘‘Sec. 803. Preliminary determinations.

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

‘‘Sec. 805. Final determinations.

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

‘‘Sec. 807. Imposition of countermeasures.

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

‘‘Sec. 809. Third country 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.

8 ‘‘Subtitle A—Imposition of Injuri9 ous Pricing Charge and Coun10 termeasures

11 ‘‘SEC. 801. INJURIOUS PRICING CHARGE.

12 ‘‘(a) BASIS FOR CHARGE.—If—
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1 ‘‘(1) the administering authority determines

2 that a foreign vessel has been sold directly or indi3 rectly to one or more United States buyers at less

4 than its fair value, and

5 ‘‘(2) the Commission determines that—

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 such vessel, then there shall

15 be imposed upon the foreign producer of the subject

16 vessel an injurious pricing charge, in an amount

17 equal to the amount by which the normal value ex18 ceeds the export price for the vessel. For purposes

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

20 to the sale of a foreign vessel includes the creation

21 or transfer of an ownership interest in the vessel, ex22 cept for an ownership interest created or acquired

23 solely for the purpose of providing security for a

24 normal commercial loan.
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1 ‘‘(b) FOREIGN VESSELS NOT MERCHANDISE.—No

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

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

4 of title VII.

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

6 PRICING INVESTIGATION.

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

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

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

10 investigation shall be initiated whenever the admin11 istering authority determines, from information

12 available to it, that a formal investigation is war13 ranted into the question of whether the elements

14 necessary for the imposition of a charge under sec15 tion 801(a) exist, and whether a producer described

16 in section 861(17)(C) would meet the criteria of sub17 section (b)(1)(B) for a petitioner.

18 ‘‘(2) TIME FOR INITIATION BY ADMINISTERING

19 AUTHORITY.—An investigation may only be initiated

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

21 the administering authority first knew or should

22 have known of the sale of the vessel. Any period dur23 ing which an investigation is initiated and pending

24 as described in subsection (d)(6)(A) shall not be in25 cluded in calculating that 6-month period.
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1 ‘‘(b) INITIATION BY PETITION.—

2 ‘‘(1) PETITION REQUIREMENTS.—

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

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

5 pricing proceeding shall be initiated whenever

6 an interested party, as defined in subparagraph

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

8 a petition with the administering authority, on

9 behalf of an industry, which alleges the ele10 ments necessary for the imposition of an injuri11 ous pricing charge under section 801(a) and the

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

13 (D), or (E) of this paragraph, and which is ac14 companied by information reasonably available

15 to the petitioner supporting those allegations

16 and identifying the transaction concerned.

17 ‘‘(B) PETITIONERS DESCRIBED IN SEC18 TION 861(17)(C).—

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

20 a producer described in section

21 861(17)(C), and—

22 ‘‘(I) if the vessel was sold

23 through a broad multiple bid, the peti24 tion shall include information indicat25 ing that the petitioner was invited to
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1 tender a bid on the contract at issue,

2 the petitioner actually did so, and the

3 bid of the petitioner substantially met

4 the delivery date and technical re5 quirements of the bid,

6 ‘‘(II) if the vessel was sold

7 through any bidding process other

8 than a broad multiple bid and the pe9 titioner was invited to tender a bid on

10 the contract at issue, the petition

11 shall include information indicating

12 that the petitioner actually did so and

13 the bid of the petitioner substantially

14 met the delivery date and technical re15 quirements of the bid, or

16 ‘‘(III) except in a case in which

17 the vessel was sold through a broad

18 multiple bid, if there is no invitation

19 to tender a bid, the petition shall in20 clude information indicating that the

21 petitioner was capable of building the

22 vessel concerned and, if the petitioner

23 knew or should have known of the

24 proposed purchase, it made demon25 strable efforts to conclude a sale with
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1 the United States buyer consistent

2 with the delivery date and technical

3 requirements of the buyer.

4 ‘‘(ii) REBUTTABLE PRESUMPTION RE5 GARDING KNOWLEDGE OF PROPOSED PUR6 CHASE.—For purposes of clause (i)(III),

7 there is a rebuttable presumption that the

8 petitioner knew or should have known of

9 the proposed purchase if it is demonstrated

10 that—

11 ‘‘(I) the majority of the produc12 ers in the industry have made efforts

13 with the United States buyer to con14 clude a sale of the subject vessel, or

15 ‘‘(II) general information on the

16 sale was available from brokers, fin17 anciers, classification societies,

18 charterers, trade associations, or other

19 entities normally involved in shipbuild20 ing transactions with whom the peti21 tioner had regular contacts or deal22 ings.

23 ‘‘(C) PETITIONERS DESCRIBED IN SECTION

24 861(17)(D).—If the petitioner is an interested

25 party described in section 861(17)(D), the peti-
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1 tion shall include information indicating that

2 members of the union or group of workers de3 scribed in that section are employed by a pro4 ducer that meets the requirements of subpara5 graph (B) of this paragraph.

6 ‘‘(D) PETITIONERS DESCRIBED IN SEC7 TION 861(17)(E).—If the petitioner is an inter8 ested party described in section 861(17)(E), the

9 petition shall include information indicating

10 that a member of the association described in

11 that section is a producer that meets the re12 quirements of subparagraph (B) of this para13 graph.

14 ‘‘(E) PETITIONERS DESCRIBED IN SECTION

15 861(17)(F).—If the petitioner is an interested

16 party described in section 861(17)(F), the peti17 tion shall include information indicating that a

18 member of the association described in that sec19 tion meets the requirements of subparagraph

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

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

22 amended at such time, and upon such condi23 tions, as the administering authority and the

24 Commission may permit.
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1 ‘‘(2) SIMULTANEOUS FILING WITH COMMIS2 SION.—The petitioner shall file a copy of the peti3 tion with the Commission on the same day as it is

4 filed with the administering authority.

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

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

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

8 the petition no later than the earlier of—

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

10 petitioner first knew or should have known

11 of the sale of the subject vessel, or

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

13 subject vessel.

14 ‘‘(ii) A petitioner to which paragraph

15 (1)(B)(i)(III) applies shall—

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

17 earlier of 9 months after the time that the

18 petitioner first knew or should have known

19 of the sale of the subject vessel, or 6

20 months after delivery of the subject vessel,

21 and

22 ‘‘(II) submit to the administering au23 thority a notice of intent to file a petition

24 no later than 6 months after the time that

25 the petitioner first knew or should have
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1 known of the sale (unless the petition itself

2 is filed within that 6-month period).

3 ‘‘(B) PRESUMPTION OF KNOWLEDGE.—

4 For purposes of this paragraph, if the existence

5 of the sale, together with general information

6 concerning the vessel, is published in the inter7 national trade press, there is a rebuttable pre8 sumption that the petitioner knew or should

9 have known of the sale of the vessel from the

10 date of that publication.

11 ‘‘(c) ACTIONS BEFORE INITIATING INVESTIGA12 TIONS.—

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

14 initiating an investigation under either subsection

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

16 the government of the exporting country of the in17 vestigation. In the case of the initiation of an inves18 tigation under subsection (b), such notification shall

19 include a public version of the petition.

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

21 administering authority shall not accept any unsolic22 ited oral or written communication from any person

23 other than an interested party described in section

24 861(17) (C), (D), (E), or (F) before the administer25 ing authority makes its decision whether to initiate
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1 an investigation pursuant to a petition, except for

2 inquiries regarding the status of the administering

3 authority’s consideration of the petition or a request

4 for consultation by the government of the exporting

5 country.

6 ‘‘(3) NONDISCLOSURE OF CERTAIN INFORMA7 TION.—The administering authority and the Com8 mission shall not disclose information with regard to

9 any draft petition submitted for review and comment

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

11 ‘‘(d) PETITION DETERMINATION.—

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

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

14 the date on which a petition is filed under sub15 section (b), the administering authority shall,

16 after examining, on the basis of sources readily

17 available to the administering authority, the ac18 curacy and adequacy of the evidence provided in

19 the petition, determine whether the petition—

20 ‘‘(i) alleges the elements necessary for

21 the imposition of an injurious pricing

22 charge under section 801(a) and the ele23 ments required under subsection (b)(1)

24 (B), (C), (D), or (E), and contains infor-
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1 mation reasonably available to the peti2 tioner supporting the allegations; and

3 ‘‘(ii) determine if the petition has

4 been filed by or on behalf of the industry.

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

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

7 shall not be included in calculating the 45-day

8 period described in subparagraph (A).

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

10 determinations under clauses (i) and (ii) of para11 graph (1)(A) are affirmative, the administering au12 thority shall initiate an investigation to determine

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

14 unless paragraph (6) applies.

15 ‘‘(3) NEGATIVE DETERMINATIONS.—If—

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

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

18 ‘‘(B) paragraph (6)(B) applies,

19 the administering authority shall dismiss the peti20 tion, terminate the proceeding, and notify the peti21 tioner in writing of the reasons for the determina22 tion.

23 ‘‘(4) DETERMINATION OF INDUSTRY SUP24 PORT.—
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1 ‘‘(A) GENERAL RULE.—For purposes of

2 this subsection, the administering authority

3 shall determine that the petition has been filed

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

5 ‘‘(i) the domestic producers or work6 ers who support the petition collectively ac7 count for at least 25 percent of the total

8 capacity of domestic producers capable of

9 producing a like vessel, and

10 ‘‘(ii) the domestic producers or work11 ers who support the petition collectively ac12 count for more than 50 percent of the total

13 capacity to produce a like vessel of that

14 portion of the domestic industry expressing

15 support for or opposition to the petition.

16 ‘‘(B) CERTAIN POSITIONS DIS17 REGARDED.—In determining industry support

18 under subparagraph (A), the administering au19 thority shall disregard the position of domestic

20 producers who oppose the petition, if such pro21 ducers are related to the foreign producer or

22 United States buyer of the subject vessel, or the

23 domestic producer is itself the United States

24 buyer, unless such domestic producers dem25 onstrate that their interests as domestic pro-
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1 ducers would be adversely affected by the impo2 sition of an injurious pricing charge.

3 ‘‘(C) POLLING THE INDUSTRY.—If the pe4 tition does not establish support of domestic

5 producers or workers accounting for more than

6 50 percent of the total capacity to produce a

7 like vessel—

8 ‘‘(i) the administering authority shall

9 poll the industry or rely on other informa10 tion in order to determine if there is sup11 port for the petition as required by sub12 paragraph (A), or

13 ‘‘(ii) if there is a large number of pro14 ducers in the industry, the administering

15 authority may determine industry support

16 for the petition by using any statistically

17 valid sampling method to poll the industry.

18 ‘‘(D) COMMENTS BY INTERESTED PAR19 TIES.—Before the administering authority

20 makes a determination with respect to initiating

21 an investigation, any person who would qualify

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

23 an investigation were initiated, may submit

24 comments or information on the issue of indus25 try support. After the administering authority
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1 makes a determination with respect to initiating

2 an investigation, the determination regarding

3 industry support shall not be reconsidered.

4 ‘‘(5) DEFINITION OF DOMESTIC PRODUCERS OR

5 WORKERS.—For purposes of this subsection, the

6 term ‘domestic producers or workers’ means inter7 ested parties as defined in section 861(17) (C), (D),

8 (E), or (F).

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

10 administering authority shall not initiate an inves11 tigation under this section if, with respect to the ves12 sel sale at issue, an antidumping proceeding con13 ducted by a WTO member who is not a Shipbuilding

14 Agreement Party—

15 ‘‘(A) has been initiated and has been pend16 ing for not more than one year, or

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

18 the imposition of antidumping measures or a

19 negative determination with respect to whether

20 the sale was at less than fair value or with re21 spect to injury.

22 ‘‘(e) NOTIFICATION TO COMMISSION OF DETERMINA23 TION.—The administering authority shall—
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1 ‘‘(1) notify the Commission immediately of any

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

3 and

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

5 available to the Commission such information as it

6 may have relating to the matter under investigation,

7 under such procedures as the administering author8 ity and the Commission may establish to prevent

9 disclosure, other than with the consent of the party

10 providing it or under protective order, of any infor11 mation to which confidential treatment has been

12 given by the administering authority.

13 ‘‘SEC. 803. PRELIMINARY DETERMINATIONS.

14 ‘‘(a) DETERMINATION BY COMMISSION OF REASON15 ABLE INDICATION OF INJURY.—

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

17 petition dismissed by the administering authority

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

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

20 based on the information available to it at the time

21 of the determination, whether there is a reasonable

22 indication that—

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

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

25 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 the subject vessel. If the

7 Commission makes a negative determination under

8 this paragraph, the investigation shall be termi9 nated.

10 ‘‘(2) TIME FOR COMMISSION DETERMINA11 TION.—The Commission shall make the determina12 tion described in paragraph (1) within 90 days after

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

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

15 within 90 days after the date on which the Commis16 sion receives notice from the administering authority

17 that the investigation has been initiated under such

18 section.

19 ‘‘(b) PRELIMINARY DETERMINATION BY ADMIN20 ISTERING AUTHORITY.—

21 ‘‘(1) PERIOD OF INJURIOUS PRICING INVES22 TIGATION.—

23 ‘‘(A) IN GENERAL.—The administering au24 thority shall make a determination, based upon

25 the information available to it at the time of the
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1 determination, of whether there is a reasonable

2 basis to believe or suspect that the subject ves3 sel was sold at less than fair value.

4 ‘‘(B) COST DATA USED FOR NORMAL

5 VALUE.—If cost data is required to determine

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

7 like vessel that has not been delivered on or be8 fore the date on which the administering au9 thority initiates the investigation, the admin10 istering authority shall make its determination

11 within 160 days after the date of delivery of the

12 foreign like vessel.

13 ‘‘(C) NORMAL VALUE BASED ON CON14 STRUCTED VALUE.—If normal value is to be de15 termined on the basis of constructed value, the

16 administering authority shall make its deter17 mination within 160 days after the date of de18 livery of the subject vessel.

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

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

21 administering authority shall make its deter22 mination within 160 days after the date on

23 which the administering authority initiates the

24 investigation under section 802.
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1 ‘‘(E) AFFIRMATIVE DETERMINATION BY

2 COMMISSION REQUIRED.—In no event shall the

3 administering authority make its determination

4 before an affirmative determination is made by

5 the Commission under subsection (a).

6 ‘‘(2) DE MINIMIS INJURIOUS PRICING MAR7 GIN.—In making a determination under this sub8 section, the administering authority shall disregard

9 any injurious pricing margin that is de minimis. For

10 purposes of the preceding sentence, an injurious

11 pricing margin is de minimis if the administering

12 authority determines that the injurious pricing mar13 gin is less than 2 percent of the export price.

14 ‘‘(c) EXTENSION OF PERIOD IN EXTRAORDINARILY

15 COMPLICATED CASES OR FOR GOOD CAUSE.—

16 ‘‘(1) IN GENERAL.—If—

17 ‘‘(A) the administering authority concludes

18 that the parties concerned are cooperating and

19 determines that—

20 ‘‘(i) the case is extraordinarily com21 plicated by reason of—

22 ‘‘(I) the novelty of the issues pre23 sented, or

24 ‘‘(II) the nature and extent of

25 the information required, and
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1 ‘‘(ii) additional time is necessary to

2 make the preliminary determination, or

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

4 an extension and demonstrates good cause for

5 the extension,

6 then the administering authority may postpone the

7 time for making its preliminary determination.

8 ‘‘(2) LENGTH OF POSTPONEMENT.—The pre9 liminary determination may be postponed under

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

11 190th day after—

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

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

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

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

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

17 authority initiates an investigation under sec18 tion 802, in a case in which subsection

19 (b)(1)(D) applies.

20 ‘‘(3) NOTICE OF POSTPONEMENT.—The admin21 istering authority shall notify the parties to the in22 vestigation, not later than 20 days before the date

23 on which the preliminary determination would other24 wise be required under subsection (b)(1), if it in25 tends to postpone making the preliminary deter-
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1 mination under paragraph (1). The notification shall

2 include an explanation of the reasons for the post3 ponement, and notice of the postponement shall be

4 published in the Federal Register.

5 ‘‘(d) EFFECT OF DETERMINATION BY THE ADMIN6 ISTERING AUTHORITY.—If the preliminary determination

7 of the administering authority under subsection (b) is af8 firmative, the administering authority shall—

9 ‘‘(1) determine an estimated injurious pricing

10 margin, and

11 ‘‘(2) make available to the Commission all in12 formation upon which its determination was based

13 and which the Commission considers relevant to its

14 injury determination, under such procedures as the

15 administering authority and the Commission may es16 tablish to prevent disclosure, other than with the

17 consent of the party providing it or under protective

18 order, of any information to which confidential treat19 ment has been given by the administering authority.

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

21 Commission or the administering authority makes a deter22 mination under this section, the Commission or the admin23 istering authority, as the case may be, shall notify the pe24 titioner, and other parties to the investigation, and the

25 Commission or the administering authority (whichever is
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1 appropriate) of its determination. The administering au2 thority shall include with such notification the facts and

3 conclusions on which its determination is based. Not later

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

5 required to be made under subsection (a)(2), the Commis6 sion shall transmit to the administering authority the facts

7 and conclusions on which its determination is based.

8 ‘‘SEC. 804. TERMINATION OR SUSPENSION OF INVESTIGA9 TION.

10 ‘‘(a) TERMINATION OF INVESTIGATION UPON WITH11 DRAWAL OF PETITION.—

12 ‘‘(1) IN GENERAL.—Except as provided in para13 graph (2), an investigation under this subtitle may

14 be terminated by either the administering authority

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

16 investigation, upon withdrawal of the petition by the

17 petitioner.

18 ‘‘(2) LIMITATION ON TERMINATION BY COMMIS19 SION.—The Commission may not terminate an in20 vestigation under paragraph (1) before a preliminary

21 determination is made by the administering author22 ity under section 803(b).

23 ‘‘(b) TERMINATION OF INVESTIGATIONS INITIATED

24 BY ADMINISTERING AUTHORITY.—The administering au25 thority may terminate any investigation initiated by the
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1 administering authority under section 802(a) after provid2 ing notice of such termination to all parties to the inves3 tigation.

4 ‘‘(c) ALTERNATE EQUIVALENT REMEDY.—The cri5 teria set forth in subparagraphs (A) through (D) of sec6 tion 806(e)(1) shall apply to any agreement that forms

7 the basis for termination of an investigation under sub8 section (a) or (b).

9 ‘‘(d) PROCEEDINGS BY WTO MEMBERS.—

10 ‘‘(1) SUSPENSION OF INVESTIGATION.—The ad11 ministering authority and the Commission shall sus12 pend an investigation under this section if a WTO

13 member that is not a Shipbuilding Agreement Party

14 initiates an antidumping proceeding described in sec15 tion 861(30)(A) with respect to the sale of the sub16 ject vessel.

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

18 antidumping proceeding described in paragraph (1)

19 is concluded by—

20 ‘‘(A) the imposition of antidumping meas21 ures, or

22 ‘‘(B) a negative determination with respect

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

24 with respect to injury,
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1 the administering authority and the Commission

2 shall terminate the investigation under this section.

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

4 If such a proceeding—

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

6 result described in paragraph (2), or

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

8 the date of the initiation of the proceeding,

9 then the administering authority and the Commis10 sion shall terminate the suspension and continue the

11 investigation. The period in which the investigation

12 was suspended shall not be included in calculating

13 deadlines applicable with respect to the investigation.

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

15 the proceeding is concluded by a result described in

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

17 the Commission shall terminate the investigation

18 under this section.

19 ‘‘SEC. 805. FINAL DETERMINATIONS.

20 ‘‘(a) DETERMINATIONS BY ADMINISTERING AUTHOR21 ITY.—

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

23 date of its preliminary determination under section

24 803(b), the administering authority shall make a

25 final determination of whether the vessel which is
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1 the subject of the investigation has been sold in the

2 United States at less than its fair value.

3 ‘‘(2) EXTENSION OF PERIOD FOR DETERMINA4 TION.—

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

6 authority may postpone making the final deter7 mination under paragraph (1) until not later

8 than 290 days after—

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

10 like vessel, in an investigation to which

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

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

13 vessel, in an investigation to which section

14 803(b)(1)(C) applies, or

15 ‘‘(iii) the date on which the admin16 istering authority initiates the investigation

17 under section 802, in an investigation to

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

19 ‘‘(B) REQUEST REQUIRED.—The admin20 istering authority may apply subparagraph (A)

21 if a request in writing is made by—

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

23 in a proceeding in which the preliminary

24 determination by the administering author-
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1 ity under section 803(b) was affirmative,

2 or

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

4 which the preliminary determination by the

5 administering authority under section

6 803(b) was negative.

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

10 any injurious pricing margin that is de minimis as

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

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

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

14 make a final determination of whether—

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

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

17 or

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

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

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

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

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

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

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

6 Commission shall make the determination required

7 by paragraph (1) before the later of—

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

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

11 803(b), or

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

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

15 ‘‘(3) PERIOD FOR INJURY DETERMINATION

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

21 the final determination by the Commission under

22 this subsection shall be made within 75 days after

23 the date of that affirmative final determination.

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

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

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

7 information upon which such determination was

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

11 Commission may establish to prevent disclosure,

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

15 given by the administering authority, and

16 ‘‘(B) calculate an injurious pricing charge

17 in an amount equal to the amount by which the

18 normal value exceeds the export price of the

19 subject vessel.

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

22 administering authority and the Commission under

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

24 the administering authority shall issue an injurious

25 pricing order under section 806. If either of such de-
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1 terminations is negative, the investigation shall be

2 terminated upon the publication of notice of that

3 negative determination.

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

6 Commission makes a determination under this section, it

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

9 facts and conclusions of law upon which the determination

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

11 in the Federal Register.

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

13 administering authority shall establish procedures for the

14 correction of ministerial errors in final determinations

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

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

22 and any other type of unintentional error which the ad23 ministering authority considers ministerial.
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1 ‘‘SEC. 806. IMPOSITION AND COLLECTION OF INJURIOUS

2 PRICING CHARGE.

3 ‘‘(a) IN GENERAL.—Within 7 days after being noti4 fied by the Commission of an affirmative determination

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

6 publish an order imposing an injurious pricing charge on

7 the foreign producer of the subject vessel which—

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

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

10 the designee of the Secretary, within 180 days from

11 the date of publication of the order, an injurious

12 pricing charge in an amount equal to the amount by

13 which the normal value exceeds the export price of

14 the subject vessel,

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

16 foreign producer and a description of the subject

17 vessel, in such detail as the administering authority

18 deems necessary, and

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

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

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

23 producer under section 807,

24 ‘‘(B) payment made after the deadline de25 scribed in paragraph (1) shall be subject to in-
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1 terest charges at the Commercial Interest Ref2 erence Rate (CIRR), and

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

4 extension of the due date for payment under

5 subsection (b).

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

7 EXTRAORDINARY CIRCUMSTANCES.—

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

12 date of publication of the order, if the administering

13 authority determines that full payment in 180 days

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

17 for a series of partial payments, the administering

18 authority shall specify the circumstances under

19 which default on one or more payments will result

20 in the imposition of countermeasures.

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

22 granted under paragraph (1), payments made after

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

24 order shall be subject to interest charges at the

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

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

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

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

7 authority—

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

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

11 produce a domestic like vessel have expressed a lack

12 of interest in the order, and

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

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

15 subject of the injurious pricing determination is

16 voided,

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

18 in full, including any interest accrued for late

19 payment,

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

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

24 was at issue in the investigation that resulted

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

2 is not a Shipbuilding Agreement Party has been

3 completed and resulted in the imposition of

4 antidumping measures.

5 ‘‘(e) ALTERNATIVE EQUIVALENT REMEDY.—

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

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

10 subject to the order on an alternative equivalent

11 remedy, that the administering authority deter12 mines—

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

14 the injurious pricing charge,

15 ‘‘(B) is in the public interest,

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

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

20 United States.

21 ‘‘(2) PRIOR CONSULTATIONS AND SUBMISSION

22 OF COMMENTS.—Before entering into an agreement

23 under paragraph (1), the administering authority

24 shall consult with the industry, and provide for the
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1 submission of comments by interested parties, with

2 respect to the agreement.

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

4 If the injurious pricing order has been suspended

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

7 has materially violated the terms of the agreement

8 under paragraph (1), the administering authority

9 shall terminate the suspension.

10 ‘‘SEC. 807. IMPOSITION OF COUNTERMEASURES.

11 ‘‘(a) GENERAL RULE.—

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

15 administering authority shall issue an order impos16 ing countermeasures.

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

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

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

25 806, and
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1 ‘‘(B) specify the scope and duration of the

2 prohibition on the issuance of a permit to lade

3 or unlade passengers or merchandise.

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

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

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

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

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

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

18 passengers or merchandise may not be issued

19 with respect to any vessel—

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

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

24 period of 4 consecutive years beginning on

25 the date that is 30 days after publication
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1 in the Federal Register of the notice of in2 tent described in paragraph (1).

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

5 or unlade passengers or merchandise may not

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

7 of delivery of the vessel.

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

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

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

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

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

18 Federal Register. The administering authority shall

19 publish the determination, and the order described

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

21 days after issuing the final determination, and shall

22 provide a copy of the determination and order to the

23 Customs Service.

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

25 the determination imposing countermeasures, the
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1 administering authority shall determine whether, in

2 light of all of the circumstances, an interested party

3 has demonstrated that the scope or duration of the

4 countermeasures described in subsection (b)(2)

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

7 countermeasures.

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

9 determination, the administering authority shall

10 issue an order imposing countermeasures, consistent

11 with its determination under paragraph (1).

12 ‘‘(d) ADMINISTRATIVE REVIEW OF DETERMINATION

13 TO IMPOSE COUNTERMEASURES.—

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

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

17 administering authority shall publish in the Federal

18 Register a notice providing that interested parties

19 may request—

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

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

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

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

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

5 in the Federal Register not later than 15 days

6 after the end of the anniversary month of the

7 issuance of the order imposing counter8 measures, and

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

11 or duration of the countermeasures is excessive

12 in light of all of the circumstances.

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

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

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

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

19 order accordingly. The administering authority shall

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

22 provide a copy of any amended order to the Customs

23 Service. In extraordinary circumstances, the admin24 istering authority may extend the time for its deter25 mination under paragraph (2)(B) to not later than
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1 150 days after the date on which the notice of initi2 ation of the review is published.

3 ‘‘(e) EXTENSION OF COUNTERMEASURES.—

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

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

6 may file with the administering authority a request

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

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

11 ‘‘(A) REQUEST FOR EXTENSION BEYOND 4

12 YEARS.—If the request seeks an extension that

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

15 extensions, the request for extension under

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

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

18 date that is 12 months, before the date that

19 marks the end of the period that specifies the

20 vessels that fall within the scope of the order by

21 virtue of the establishment of material terms of

22 sale within that period.

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

24 seeks an extension under paragraph (1) other

25 than one described in subparagraph (A), the re-
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1 quest shall be filed not earlier than the date

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

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

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

5 ‘‘(3) DETERMINATION.—

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

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

11 later than 15 days after the applicable deadline

12 in paragraph (2) for requesting the extension.

13 ‘‘(B) PROCEDURES.—

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

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

21 administering authority shall determine,

22 within 90 days after the date on which the

23 notice of initiation of the proceeding is

24 published, whether the requesting party

25 has demonstrated that the scope or dura-
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1 tion of the countermeasures is inadequate

2 in light of all of the circumstances. If the

3 administering authority determines that an

4 extension is warranted, it shall amend the

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

8 to the order in the Federal Register, and

9 shall provide a copy of any amended order

10 to the Customs Service.

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

17 the purpose of seeking authorization to extend the

18 scope or duration of countermeasures for a period in

19 excess of 4 years.

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

21 based on consultations under paragraph (4), the

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

24 inform the party requesting the extension of the

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

2 review.

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

6 under the Shipbuilding Agreement to authorize an

7 extension of the period of countermeasures, and the

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

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

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

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

16 each 12-month period beginning on the anniversary

17 date of a determination to impose countermeasures

18 under this section, the administering authority shall

19 publish in the Federal Register a list of all delivered

20 vessels subject to countermeasures under the deter21 mination.

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

24 each vessel, to the extent the information is avail25 able:
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1 ‘‘(A) The name and general description of

2 the vessel.

3 ‘‘(B) The vessel identification number.

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

5 constructed.

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

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

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

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

12 ‘‘(H) Any other identifying information

13 available.

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

15 authority may amend the list from time to time to

16 reflect new information that comes to its attention

17 and shall publish any amendments in the Federal

18 Register.

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

20 ‘‘(A) SERVICE OF LIST.—The administer21 ing authority shall serve a copy of the list de22 scribed in paragraph (1) on—

23 ‘‘(i) the petitioner under section

24 802(b),
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1 ‘‘(ii) the United States Customs Serv2 ice,

3 ‘‘(iii) the Secretariat of the Organiza4 tion for Economic Cooperation and Devel5 opment,

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

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

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

9 which a shipyard on the list is located.

10 ‘‘(B) SERVICE OF AMENDMENTS.—The ad11 ministering authority shall serve a copy of any

12 amendments to the list under paragraph (3) or

13 subsection (g)(3) on—

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

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

16 ‘‘(ii) if the amendment affects their

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

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

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

20 SUBJECT TO COUNTERMEASURES.—

21 ‘‘(1) REQUEST FOR REVIEW.—

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

23 may request in writing a review of the list de24 scribed in subsection (f)(1), including any

25 amendments thereto, to determine whether—
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1 ‘‘(i) a vessel included in the list does

2 not fall within the scope of the applicable

3 countermeasure order and should be de4 leted, or

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

6 falls within the scope of the applicable

7 countermeasure order and should be

8 added.

9 ‘‘(B) TIME FOR MAKING REQUEST.—Any

10 request seeking a determination described in

11 subparagraph (A)(i) shall be made within 90

12 days after the date of publication of the appli13 cable list.

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

15 has been received, the administering authority

16 shall—

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

18 in the Federal Register—

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

20 request is received, or

21 ‘‘(ii) if the request seeks a determina22 tion described in paragraph (1)(A)(i), not

23 later than 15 days after the deadline de24 scribed in paragraph (1)(B), and
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1 ‘‘(B) review and determine whether the re2 questing party has demonstrated that—

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

4 not qualify for such inclusion, or

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

6 qualifies for inclusion.

7 ‘‘(3) TIME FOR DETERMINATION.—The admin8 istering authority shall make its determination under

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

10 which the notice of initiation of such review is pub11 lished. If the administering authority determines

12 that a vessel should be added or deleted from the

13 list, the administering authority shall amend the list

14 accordingly. The administering authority shall

15 promptly publish in the Federal Register the deter16 mination and any such amendment to the list.

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

18 expiration of a countermeasure order imposed under this

19 section, the administering authority shall promptly publish

20 a notice of the expiration in the Federal Register.

21 ‘‘(i) SUSPENSION OR TERMINATION OF PROCEED22 INGS OR COUNTERMEASURES; TEMPORARY REDUCTION

23 OF COUNTERMEASURES.—

24 ‘‘(1) IF INJURIOUS PRICING ORDER REVOKED

25 OR SUSPENDED.—If an injurious pricing order has
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1 been revoked or suspended under section 806 (d) or

2 (e), the administering authority shall, as appro3 priate, suspend or terminate proceedings under this

4 section with respect to that order, or suspend or re5 voke a countermeasure order issued with respect to

6 that injurious pricing order.

7 ‘‘(2) IF PAYMENT DATE AMENDED.—

8 ‘‘(A) SUSPENSION OR MODIFICATION OF

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

10 the payment date under an injurious pricing

11 order is amended under section 845, the admin12 istering authority shall, as appropriate, suspend

13 proceedings or modify deadlines under this sec14 tion, or suspend or amend a countermeasure

15 order issued with respect to that injurious pric16 ing order.

17 ‘‘(B) DATE FOR APPLICATION OF COUN18 TERMEASURE.—In taking action under sub19 paragraph (A), the administering authority

20 shall ensure that countermeasures are not ap21 plied before the date that is 30 days after publi22 cation in the Federal Register of the amended

23 payment date.

24 ‘‘(C) REINSTITUTION OF PROCEEDINGS.—

25 If—
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1 ‘‘(i) a countermeasure order is issued

2 under subsection (c) before an amendment

3 is made under section 845 to the payment

4 date of the injurious pricing order to which

5 the countermeasure order applies, and

6 ‘‘(ii) the administering authority de7 termines that the period of time between

8 the original payment date and the amend9 ed payment date is significant for purposes

10 of determining the appropriate scope or

11 duration of countermeasures,

12 the administering authority may, in lieu of act13 ing under subparagraph (A), reinstitute pro14 ceedings under subsection (c) for purposes of is15 suing a new determination under that sub16 section.

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

18 proceeding under subsection (c), (d), (e), or (g), the ad19 ministering authority—

20 ‘‘(1) shall solicit comments from interested par21 ties, and

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

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

24 shall hold a hearing in accordance with section

25 841(b) in connection with that proceeding, or
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1 ‘‘(B) in a proceeding under subsection (g), upon

2 the request of an interested party, may hold a hear3 ing in accordance with section 841(b) in connection

4 with that proceeding.

5 ‘‘SEC. 808. INJURIOUS PRICING PETITIONS BY THIRD COUN6 TRIES.

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

8 Shipbuilding Agreement Party may file with the Trade

9 Representative a petition requesting that an investigation

10 be conducted to determine if—

11 ‘‘(1) a vessel from another Shipbuilding Agree12 ment Party has been sold directly or indirectly to

13 one or more United States buyers at less than fair

14 value, and

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

16 producing or capable of producing a like vessel is

17 materially injured by reason of such sale.

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

19 consultation with the administering authority and the

20 Commission and obtaining the approval of the Parties

21 Group under the Shipbuilding Agreement, shall determine

22 whether to initiate an investigation described in subsection

23 (a).

24 ‘‘(c) DETERMINATIONS.—Upon initiation of an inves25 tigation under subsection (a), the Trade Representative
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1 shall request the following determinations be made in ac2 cordance with substantive and procedural requirements

3 specified by the Trade Representative, notwithstanding

4 any other provision of this title:

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

6 administering authority shall determine whether the

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

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

9 shall determine whether an industry in the petition10 ing country is or has been materially injured by rea11 son of the sale of the subject vessel in the United

12 States.

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

14 comment shall be provided, as appropriate—

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

16 the determinations required by subsection (b), and

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

18 Commission, in making the determinations required

19 by subsection (c).

20 ‘‘(e) ISSUANCE OF ORDER.—If the administering au21 thority makes an affirmative determination under para22 graph (1) of subsection (c), and the Commission makes

23 an affirmative determination under paragraph (2) of sub24 section (c), the administering authority shall—
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1 ‘‘(1) order an injurious pricing charge in ac2 cordance with section 806, and

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

4 other actions as are required by sections 806 and

5 807, as if affirmative determinations had been made

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

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

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

9 subsection (e)—

10 ‘‘(1) the final determinations of the administer11 ing authority and the Commission under subsection

12 (c) shall be treated as final determinations made

13 under section 805, and

14 ‘‘(2) determinations of the administering au15 thority under subsection (e)(2) shall be treated as

16 determinations made under section 806 or 807, as

17 the case may be.

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

19 apply to investigations under this section, to the extent

20 specified by the Trade Representative, after consultation

21 with the administering authority and the Commission.

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

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

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

25 buyer in a Shipbuilding Agreement Party, any inter-
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1 ested party who would be eligible to file a petition

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

3 it had been to a United States buyer, if it has rea4 son to believe that—

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

6 fair value, and

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

8 has been materially injured, or is threatened

9 with material injury by reason of the sale of the

10 vessel,

11 may submit a petition to the Trade Representative

12 that alleges the elements referred to in subpara13 graphs (A) and (B) and requests the Trade Rep14 resentative to take action under subsection (b) of

15 this section on behalf of the domestic industry.

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

17 shall contain such detailed information as the Trade

18 Representative may require in support of the allega19 tions in the petition.

20 ‘‘(b) APPLICATION FOR INJURIOUS PRICING ACTION

21 ON BEHALF OF THE DOMESTIC INDUSTRY.—

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

23 of the information contained in a petition submitted

24 under subsection (a), determines that there is a rea25 sonable basis for the allegations in the petition, the
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1 Trade Representative shall submit to the appro2 priate authority of the Shipbuilding Agreement

3 Party where the alleged injurious pricing is occur4 ring an application pursuant to Article 10 of Annex

5 III of the Shipbuilding Agreement. The application

6 shall request that appropriate injurious pricing ac7 tion be taken on behalf of the United States with re8 spect to the sale of the vessel under the law of the

9 country of that Party consistent with the terms of

10 the Shipbuilding Agreement.

11 ‘‘(2) At the request of the Trade Representa12 tive, the appropriate officers of the Department of

13 Commerce and the United States International

14 Trade Commission shall assist the Trade Represent15 ative in preparing the application under paragraph

16 (1).

17 ‘‘(c) CONSULTATION AFTER SUBMISSION OF APPLI18 CATION.—After submitting an application under sub19 section (b)(1), the Trade Representative shall seek con20 sultations with the appropriate authority of the Shipbuild21 ing Agreement Party regarding the request for injurious

22 pricing action.

23 ‘‘(d) ACTION UPON REFUSAL OF SHIPBUILDING

24 AGREEMENT PARTY TO ACT.—If the appropriate author25 ity of the Shipbuilding Agreement Party refuses to under-
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1 take injurious pricing measures in response to a request

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

3 the Trade Representative promptly shall consult with the

4 domestic industry on whether action under any other law

5 of the United States is appropriate.

6 ‘‘Subtitle B—Special Rules

7 ‘‘SEC. 821. EXPORT PRICE.

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

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

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

11 account of the foreign producer of the subject vessel to

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

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

14 producer’ includes any transfer of an ownership interest,

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

16 in conjunction with the original transfer from the pro17 ducer, either directly or indirectly, to a United States

18 buyer.

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

20 used to establish export price shall be—

21 ‘‘(1) increased by the amount of any import du22 ties imposed by the country of exportation which

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

24 by reason of the exportation of the subject vessel,

25 and
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1 ‘‘(2) reduced by—

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

3 price, attributable to any additional costs,

4 charges, or expenses which are incident to

5 bringing the subject vessel from the shipyard in

6 the exporting country to the place of delivery,

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

8 of any export tax, duty, or other charge im9 posed by the exporting country on the expor10 tation of the subject vessel, and

11 ‘‘(C) all other expenses incidental to plac12 ing the vessel in condition for delivery to the

13 buyer.

14 ‘‘SEC. 822. NORMAL VALUE.

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

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

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

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

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

20 normal value shall be determined as follows:

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

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

23 the subject vessel shall be the price described in

24 subparagraph (B), at a time reasonably cor-
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1 responding to the time of the sale used to deter2 mine the export price under section 821(a).

3 ‘‘(B) PRICE.—The price referred to in sub4 paragraph (A) is—

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

6 vessel is first sold in the exporting country,

7 in the ordinary course of trade and, to the

8 extent practicable, at the same level of

9 trade, or

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

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

12 like vessel is so sold for consumption in a

13 country other than the exporting country

14 or the United States, if—

15 ‘‘(I) such price is representative,

16 and

17 ‘‘(II) the administering authority

18 does not determine that the particular

19 market situation in such other coun20 try prevents a proper comparison with

21 the export price.

22 ‘‘(C) THIRD COUNTRY SALES.—This sub23 paragraph applies when—
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1 ‘‘(i) a foreign like vessel is not sold in

2 the exporting country as described in sub3 paragraph (B)(i), or

4 ‘‘(ii) the particular market situation

5 in the exporting country does not permit a

6 proper comparison with the export price.

7 ‘‘(D) CONTEMPORANEOUS SALE.—For

8 purposes of subparagraph (A), ‘a time reason9 ably corresponding to the time of the sale’

10 means within 3 months before or after the sale

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

12 sales, such longer period as the administering

13 authority determines would be appropriate.

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

15 sale, and no sale intended to establish a fictitious

16 market, shall be taken into account in determining

17 normal value.

18 ‘‘(3) USE OF CONSTRUCTED VALUE.—If the ad19 ministering authority determines that the normal

20 value of the subject vessel cannot be determined

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

22 value of the subject vessel shall be the constructed

23 value of that vessel, as determined under subsection

24 (e).
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1 ‘‘(4) INDIRECT SALES.—If a foreign like vessel

2 is sold through an affiliated party, the price at

3 which the foreign like vessel is sold by such affiliated

4 party may be used in determining normal value.

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

6 paragraph (1)(B) shall be—

7 ‘‘(A) reduced by—

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

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

10 attributable to any costs, charges, and ex11 penses incident to bringing the foreign like

12 vessel from the shipyard to the place of de13 livery to the purchaser,

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

15 directly upon the foreign like vessel or

16 components thereof which have been re17 bated, or which have not been collected, on

18 the subject vessel, but only to the extent

19 that such taxes are added to or included in

20 the price of the foreign like vessel, and

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

22 incidental to placing the foreign like vessel

23 in condition for delivery to the buyer, and

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

25 of any difference (or lack thereof) between the
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1 export price and the price described in para2 graph (1)(B) (other than a difference for which

3 allowance is otherwise provided under this sec4 tion) that is established to the satisfaction of

5 the administering authority to be wholly or

6 partly due to—

7 ‘‘(i) physical differences between the

8 subject vessel and the vessel used in deter9 mining normal value, or

10 ‘‘(ii) other differences in the cir11 cumstances of sale.

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

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

14 be increased or decreased to make due allowance for

15 any difference (or lack thereof) between the export

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

17 (other than a difference for which allowance is oth18 erwise made under this section) that is shown to be

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

20 between the export price and normal value, if the

21 difference in level of trade—

22 ‘‘(A) involves the performance of different

23 selling activities, and

24 ‘‘(B) is demonstrated to affect price com25 parability, based on a pattern of consistent
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1 price differences between sales at different lev2 els of trade in the country in which normal

3 value is determined.

4 In a case described in the preceding sentence, the

5 amount of the adjustment shall be based on the

6 price differences between the two levels of trade in

7 the country in which normal value is determined.

8 ‘‘(7) ADJUSTMENTS TO CONSTRUCTED

9 VALUE.—Constructed value as determined under

10 subsection (e) may be adjusted, as appropriate, pur11 suant to this subsection.

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

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

14 Whenever the administering authority has reason15 able grounds to believe or suspect that the sale of

16 the foreign like vessel under consideration for the

17 determination of normal value has been made at a

18 price which represents less than the cost of produc19 tion of the foreign like vessel, the administering au20 thority shall determine whether, in fact, such sale

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

22 administering authority determines that the sale was

23 made at less than the cost of production and was

24 not at a price which permits recovery of all costs

25 within 5 years, such sale may be disregarded in the
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1 determination of normal value. Whenever such a sale

2 is disregarded, normal value shall be based on an3 other sale of a foreign like vessel in the ordinary

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

5 course of trade remain, the normal value shall be

6 based on the constructed value of the subject vessel.

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

8 purposes of this subsection:

9 ‘‘(A) REASONABLE GROUNDS TO BELIEVE

10 OR SUSPECT.—There are reasonable grounds to

11 believe or suspect that the sale of a foreign like

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

13 cost of production of the vessel, if an interested

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

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

16 based upon observed prices or constructed

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

18 vessel under consideration for the determination

19 of normal value has been made at a price which

20 represents less than the cost of production of

21 the vessel.

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

23 below the cost of production at the time of sale

24 but is above the weighted average cost of pro25 duction for the period of investigation, such
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1 price shall be considered to provide for recovery

2 of costs within 5 years.

3 ‘‘(3) CALCULATION OF COST OF PRODUC4 TION.—For purposes of this section, the cost of pro5 duction shall be an amount equal to the sum of—

6 ‘‘(A) the cost of materials and of fabrica7 tion or other processing of any kind employed

8 in producing the foreign like vessel, during a

9 period which would ordinarily permit the pro10 duction of that vessel in the ordinary course of

11 business, and

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

13 administrative expenses based on actual data

14 pertaining to the production and sale of the for15 eign like vessel by the producer in question.

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

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

18 sold in a country other than the exporting country,

19 the cost of materials shall be determined without re20 gard to any internal tax in the exporting country im21 posed on such materials or on their disposition

22 which are remitted or refunded upon exportation.

23 ‘‘(c) NONMARKET ECONOMY COUNTRIES.—

24 ‘‘(1) IN GENERAL.—If—
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1 ‘‘(A) the subject vessel is produced in a

2 nonmarket economy country, and

3 ‘‘(B) the administering authority finds that

4 available information does not permit the nor5 mal value of the subject vessel to be determined

6 under subsection (a), the administering author7 ity shall determine the normal value of the sub8 ject vessel on the basis of the value of the fac9 tors of production utilized in producing the ves10 sel and to which shall be added an amount for

11 general expenses and profit plus the cost of ex12 penses incidental to placing the vessel in a con13 dition for delivery to the buyer. Except as pro14 vided in paragraph (2), the valuation of the fac15 tors of production shall be based on the best

16 available information regarding the values of

17 such factors in a market economy country or

18 countries considered to be appropriate by the

19 administering authority.

20 ‘‘(2) EXCEPTION.—If the administering author21 ity finds that the available information is inadequate

22 for purposes of determining the normal value of the

23 subject vessel under paragraph (1), the administer24 ing authority shall determine the normal value on

25 the basis of the price at which a vessel that is—
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1 ‘‘(A) comparable to the subject vessel, and

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

3 economy countries that are at a level of eco4 nomic development comparable to that of the

5 nonmarket economy country,

6 is sold in other countries, including the United

7 States.

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

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

10 in producing the vessel include, but are not limited

11 to—

12 ‘‘(A) hours of labor required,

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

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

15 consumed, and

16 ‘‘(D) representative capital cost, including

17 depreciation.

18 ‘‘(4) VALUATION OF FACTORS OF PRODUC19 TION.—The administering authority, in valuing fac20 tors of production under paragraph (1), shall utilize,

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

22 of production in one or more market economy coun23 tries that are—
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1 ‘‘(A) at a level of economic development

2 comparable to that of the nonmarket economy

3 country, and

4 ‘‘(B) significant producers of comparable

5 vessels.

6 ‘‘(d) SPECIAL RULE FOR CERTAIN MULTINATIONAL

7 CORPORATIONS.—Whenever, in the course of an investiga8 tion under this title, the administering authority deter9 mines that—

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

11 which are owned or controlled, directly or indirectly,

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

13 controls, directly or indirectly, other facilities for the

14 production of a foreign like vessel which are located

15 in another country or countries,

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

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

18 produced in one or more of the facilities outside the

19 exporting country is higher than the normal value of

20 the foreign like vessel produced in the facilities lo21 cated in the exporting country,

22 the administering authority shall determine the normal

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

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

25 facilities outside the exporting country. The administering
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1 authority, in making any determination under this sub2 section, shall make adjustments for the difference between

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

4 and overhead) of the foreign like vessel produced in facili5 ties outside the exporting country and costs of production

6 of the foreign like vessel produced in facilities in the ex7 porting country, if such differences are demonstrated to

8 its satisfaction.

9 ‘‘(e) CONSTRUCTED VALUE.—

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

11 the constructed value of a subject vessel shall be an

12 amount equal to the sum of—

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

14 or other processing of any kind employed in

15 producing the subject vessel, during a period

16 which would ordinarily permit the production of

17 the vessel in the ordinary course of business,

18 and

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

20 realized by the foreign producer of the subject

21 vessel for selling, general, and administrative

22 expenses, and for profits, in connection with the

23 production and sale of a foreign like vessel, in

24 the ordinary course of trade, in the domestic
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1 market of the country of origin of the subject

2 vessel, or

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

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

5 then—

6 ‘‘(I) the actual amounts incurred and

7 realized by the foreign producer of the sub8 ject vessel for selling, general, and admin9 istrative expenses, and for profits, in con10 nection with the production and sale of the

11 same general category of vessel in the do12 mestic market of the country of origin of

13 the subject vessel,

14 ‘‘(II) the weighted average of the ac15 tual amounts incurred and realized by pro16 ducers in the country of origin of the sub17 ject vessel (other than the producer of the

18 subject vessel) for selling, general, and ad19 ministrative expenses, and for profits, in

20 connection with the production and sale of

21 a foreign like vessel, in the ordinary course

22 of trade, in the domestic market, or

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

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

25 and realized for selling, general, and ad-
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1 ministrative expenses, and for profits,

2 based on any other reasonable method, ex3 cept that the amount allowed for profit

4 may not exceed the amount normally real5 ized by foreign producers (other than the

6 producer of the subject vessel) in connec7 tion with the sale of vessels in the same

8 general category of vessel as the subject

9 vessel in the domestic market of the coun10 try of origin of the subject vessel.

11 For purposes of this paragraph, the profit shall be

12 based on the average profit realized over a reason13 able period of time before and after the sale of the

14 subject vessel and shall reflect a reasonable profit

15 at the time of such sale. For purposes of the preced16 ing sentence, a ‘reasonable period of time’ shall not,

17 except where otherwise appropriate, exceed 6 months

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

19 vessel. In calculating profit under this paragraph,

20 any distortion which would result in other than a

21 profit which is reasonable at the time of the sale

22 shall be eliminated.

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

24 REASONABLE METHODS.—When costs and profits

25 are determined under paragraph (1)(B)(ii)(III), such
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1 determination shall, except where otherwise appro2 priate, be based on appropriate export sales by the

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

4 to export sales by other producers of a foreign like

5 vessel or the same general category of vessel as the

6 subject vessel in the country of origin of the subject

7 vessel.

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

9 paragraph (1)(A), the cost of materials shall be de10 termined without regard to any internal tax in the

11 exporting country imposed on such materials or their

12 disposition which are remitted or refunded upon ex13 portation of the subject vessel produced from such

14 materials.

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

16 PRODUCTION AND FOR CALCULATION OF CONSTRUCTED

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

18 ‘‘(1) COSTS.—

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

20 be calculated based on the records of the for21 eign producer of the subject vessel, if such

22 records are kept in accordance with the gen23 erally accepted accounting principles of the ex24 porting country and reasonably reflect the costs

25 associated with the production and sale of the
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1 vessel. The administering authority shall con2 sider all available evidence on the proper alloca3 tion of costs, including that which is made

4 available by the foreign producer on a timely

5 basis, if such allocations have been historically

6 used by the foreign producer, in particular for

7 establishing appropriate amortization and de8 preciation periods, and allowances for capital

9 expenditures and other development costs.

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

11 be adjusted appropriately for those non12 recurring costs that benefit current or future

13 production, or both.

14 ‘‘(C) STARTUP COSTS.—

15 ‘‘(i) IN GENERAL.—Costs shall be ad16 justed appropriately for circumstances in

17 which costs incurred during the time pe18 riod covered by the investigation are af19 fected by startup operations.

20 ‘‘(ii) STARTUP OPERATIONS.—Adjust21 ments shall be made for startup operations

22 only where—

23 ‘‘(I) a producer is using new pro24 duction facilities or producing a new
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1 type of vessel that requires substantial

2 additional investment, and

3 ‘‘(II) production levels are limited

4 by technical factors associated with

5 the initial phase of commercial pro6 duction.

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

8 of commercial production ends at the end of the

9 startup period. In determining whether com10 mercial production levels have been achieved,

11 the administering authority shall consider fac12 tors unrelated to startup operations that might

13 affect the volume of production processed, such

14 as demand, seasonality, or business cycles.

15 ‘‘(iii) ADJUSTMENT FOR STARTUP OP16 ERATIONS.—The adjustment for startup

17 operations shall be made by substituting

18 the unit production costs incurred with re19 spect to the vessel at the end of the start20 up period for the unit production costs in21 curred during the startup period. If the

22 startup period extends beyond the period

23 of the investigation under this title, the ad24 ministering authority shall use the most

25 recent cost of production data that it rea-
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1 sonably can obtain, analyze, and verify

2 without delaying the timely completion of

3 the investigation.

4 For purposes of this subparagraph, the startup

5 period ends at the point at which the level of

6 commercial production that is characteristic of

7 the vessel, the producer, or the industry is

8 achieved.

9 ‘‘(D) COSTS DUE TO EXTRAORDINARY CIR10 CUMSTANCES NOT INCLUDED.—Costs shall not

11 include actual costs which are due to extraor12 dinary circumstances (including, but not limited

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

14 and which are significantly over the cost in15 crease which the shipbuilder could have reason16 ably anticipated and taken into account at the

17 time of sale.

18 ‘‘(2) TRANSACTIONS DISREGARDED.—A trans19 action directly or indirectly between affiliated per20 sons may be disregarded if, in the case of any ele21 ment of value required to be considered, the amount

22 representing that element does not fairly reflect the

23 amount usually reflected in sales of a like vessel in

24 the market under consideration. If a transaction is

25 disregarded under the preceding sentence and no
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1 other transactions are available for consideration,

2 the determination of the amount shall be based on

3 the information available as to what the amount

4 would have been if the transaction had occurred be5 tween persons who are not affiliated.

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

7 transaction between affiliated persons involving the

8 production by one of such persons of a major input

9 to the subject vessel, the administering authority has

10 reasonable grounds to believe or suspect that an

11 amount represented as the value of such input is

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

13 the administering authority may determine the value

14 of the major input on the basis of the information

15 available regarding such cost of production, if such

16 cost is greater than the amount that would be deter17 mined for such input under paragraph (2).

18 ‘‘SEC. 823. CURRENCY CONVERSION.

19 ‘‘(a) IN GENERAL.—In an injurious pricing proceed20 ing under this title, the administering authority shall con21 vert foreign currencies into United States dollars using the

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

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

24 transaction on forward markets is directly linked to a sale

25 under consideration, the exchange rate specified with re-
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1 spect to such foreign currency in the forward sale agree2 ment shall be used to convert the foreign currency.

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

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

5 where appropriate, the date on which the material terms

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

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

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

9 change in the date of sale, the administering authority

10 shall make appropriate adjustments to take into account

11 any unreasonable effect on the injurious pricing margin

12 due only to fluctuations in the exchange rate between the

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

14 ‘‘Subtitle C—Procedures

15 ‘‘SEC. 841. HEARINGS.

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

17 and the Commission shall each hold a hearing in the

18 course of an investigation under this title, upon the re19 quest of any party to the investigation, before making a

20 final determination under section 805.

21 ‘‘(b) PROCEDURES.—Any hearing required or per22 mitted under this title shall be conducted after notice pub23 lished in the Federal Register, and a transcript of the

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

25 The hearing shall not be subject to the provisions of sub-
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1 chapter II of chapter 5 of title 5, United States Code, or

2 to section 702 of such title.

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

4 AVAILABLE.

5 ‘‘(a) IN GENERAL.—If—

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

7 the record, or

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

9 ‘‘(A) withholds information that has been

10 requested by the administering authority or the

11 Commission under this title,

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

13 the deadlines for the submission of the informa14 tion or in the form and manner requested, sub15 ject to subsections (b)(1) and (d) of section

16 844,

17 ‘‘(C) significantly impedes a proceeding

18 under this title, or

19 ‘‘(D) provides such information but the in20 formation cannot be verified as provided in sec21 tion 844(g), the administering authority and

22 the Commission shall, subject to section 844(c),

23 use the facts otherwise available in reaching the

24 applicable determination under this title.
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1 ‘‘(b) ADVERSE INFERENCES.—If the administering

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

3 that an interested party has failed to cooperate by not act4 ing to the best of its ability to comply with a request for

5 information from the administering authority or the Com6 mission, the administering authority or the Commission

7 (as the case may be), in reaching the applicable determina8 tion under this title, may use an inference that is adverse

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

10 facts otherwise available. Such adverse inference may in11 clude reliance on information derived from—

12 ‘‘(1) the petition, or

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

14 record.

15 ‘‘(c) CORROBORATION OF SECONDARY INFORMA16 TION.—When the administering authority or the Commis17 sion relies on secondary information rather than on infor18 mation obtained in the course of an investigation under

19 this title, the administering authority and the Commis20 sion, as the case may be, shall, to the extent practicable,

21 corroborate that information from independent sources

22 that are reasonably at their disposal.

23 ‘‘SEC. 843. ACCESS TO INFORMATION.

24 ‘‘(a) INFORMATION GENERALLY MADE AVAIL25 ABLE.—
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1 ‘‘(1) PROGRESS OF INVESTIGATION REPORTS.—

2 The administering authority and the Commission

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

4 parties to an investigation under this title of the

5 progress of that investigation.

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

7 authority and the Commission shall maintain a

8 record of any ex parte meeting between—

9 ‘‘(A) interested parties or other persons

10 providing factual information in connection with

11 a proceeding under this title, and

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

13 determination, or any person charged with mak14 ing a final recommendation to that person, in

15 connection with that proceeding,

16 if information relating to that proceeding was pre17 sented or discussed at such meeting. The record of

18 such an ex parte meeting shall include the identity

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

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

21 the matters discussed or submitted. The record of

22 the ex parte meeting shall be included in the record

23 of the proceeding.
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1 ‘‘(3) SUMMARIES; NONPROPRIETARY SUBMIS2 SIONS.—The administering authority and the Com3 mission shall disclose—

4 ‘‘(A) any proprietary information received

5 in the course of a proceeding under this title if

6 it is disclosed in a form which cannot be associ7 ated with, or otherwise be used to identify, op8 erations of a particular person, and

9 ‘‘(B) any information submitted in connec10 tion with a proceeding which is not designated

11 as proprietary by the person submitting it.

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

13 administering authority and the Commission shall

14 maintain and make available for public inspection

15 and copying a record of all information which is ob16 tained by the administering authority or the Com17 mission, as the case may be, in a proceeding under

18 this title to the extent that public disclosure of the

19 information is not prohibited under this chapter or

20 exempt from disclosure under section 552 of title 5,

21 United States Code.

22 ‘‘(b) PROPRIETARY INFORMATION.—

23 ‘‘(1) PROPRIETARY STATUS MAINTAINED.—

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

25 subsection (a)(4) and subsection (c), informa-
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1 tion submitted to the administering authority or

2 the Commission which is designated as propri3 etary by the person submitting the information

4 shall not be disclosed to any person without the

5 consent of the person submitting the informa6 tion, other than—

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

8 administering authority or the Commission

9 who is directly concerned with carrying out

10 the investigation in connection with which

11 the information is submitted or any other

12 proceeding under this title covering the

13 same subject vessel, or

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

15 United States Customs Service who is di16 rectly involved in conducting an investiga17 tion regarding fraud under this title.

18 ‘‘(B) ADDITIONAL REQUIREMENTS.—The

19 administering authority and the Commission

20 shall require that information for which propri21 etary treatment is requested be accompanied

22 by—

23 ‘‘(i) either—

24 ‘‘(I) a nonproprietary summary

25 in sufficient detail to permit a reason-
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1 able understanding of the substance

2 of the information submitted in con3 fidence, or

4 ‘‘(II) a statement that the infor5 mation is not susceptible to summary,

6 accompanied by a statement of the

7 reasons in support of the contention,

8 and

9 ‘‘(ii) either—

10 ‘‘(I) a statement which permits

11 the administering authority or the

12 Commission to release under adminis13 trative protective order, in accordance

14 with subsection (c), the information

15 submitted in confidence, or

16 ‘‘(II) a statement to the admin17 istering authority or the Commission

18 that the business proprietary informa19 tion is of a type that should not be re20 leased under administrative protective

21 order.

22 ‘‘(2) UNWARRANTED DESIGNATION.—If the ad23 ministering authority or the Commission determines,

24 on the basis of the nature and extent of the informa25 tion or its availability from public sources, that des-
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1 ignation of any information as proprietary is unwar2 ranted, then it shall notify the person who submitted

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

4 designation. Unless that person persuades the ad5 ministering authority or the Commission that the

6 designation is warranted, or withdraws the designa7 tion, the administering authority or the Commission,

8 as the case may be, shall return it to the party sub9 mitting it. In a case in which the administering au10 thority or the Commission returns the information

11 to the person submitting it, the person may there12 after submit other material concerning the subject

13 matter of the returned information if the submission

14 is made within the time otherwise provided for sub15 mitting such material.

16 ‘‘(c) LIMITED DISCLOSURE OF CERTAIN PROPRI17 ETARY INFORMATION UNDER PROTECTIVE ORDER.—

18 ‘‘(1) DISCLOSURE BY ADMINISTERING AUTHOR19 ITY OR COMMISSION.—

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

21 application (before or after receipt of the infor22 mation requested) which describes in general

23 terms the information requested and sets forth

24 the reasons for the request, the administering

25 authority or the Commission shall make all
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1 business proprietary information presented to,

2 or obtained by it, during a proceeding under

3 this title (except privileged information, classi4 fied information, and specific information of a

5 type for which there is a clear and compelling

6 need to withhold from disclosure) available to

7 all interested parties who are parties to the pro8 ceeding under a protective order described in

9 subparagraph (B), regardless of when the infor10 mation is submitted during the proceeding.

11 Customer names (other than the name of the

12 United States buyer of the subject vessel) ob13 tained during any investigation which requires

14 a determination under section 805(b) may not

15 be disclosed by the administering authority

16 under protective order until either an order is

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

18 the investigation or the investigation is sus19 pended or terminated. The Commission may

20 delay disclosure of customer names (other than

21 the name of the United States buyer of the sub22 ject vessel) under protective order during any

23 such investigation until a reasonable time be24 fore any hearing provided under section 841 is

25 held.
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1 ‘‘(B) PROTECTIVE ORDER.—The protective

2 order under which information is made avail3 able shall contain such requirements as the ad4 ministering authority or the Commission may

5 determine by regulation to be appropriate. The

6 administering authority and the Commission

7 shall provide by regulation for such sanctions as

8 the administering authority and the Commis9 sion determine to be appropriate, including dis10 barment from practice before the agency.

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

13 Commission, as the case may be, shall deter14 mine whether to make information available

15 under this paragraph—

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

17 the submission pertains to a proceeding

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

19 which the information is submitted, or

20 ‘‘(ii) if—

21 ‘‘(I) the person that submitted

22 the information raises objection to its

23 release, or

24 ‘‘(II) the information is unusu25 ally voluminous or complex, not later
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1 than 30 days (10 days if the submis2 sion pertains to a proceeding under

3 section 803(a)) after the date on

4 which the information is submitted.

5 ‘‘(D) AVAILABILITY AFTER DETERMINA6 TION.—If the determination under subpara7 graph (C) is affirmative, then—

8 ‘‘(i) the business proprietary informa9 tion submitted to the administering au10 thority or the Commission on or before the

11 date of the determination shall be made

12 available, subject to the terms and condi13 tions of the protective order, on such date,

14 and

15 ‘‘(ii) the business proprietary informa16 tion submitted to the administering au17 thority or the Commission after the date of

18 the determination shall be served as re19 quired by subsection (d).

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

21 submitting information to the administering au22 thority refuses to disclose business proprietary

23 information which the administering authority

24 determines should be released under a protec25 tive order described in subparagraph (B), the
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1 administering authority shall return the infor2 mation, and any nonconfidential summary

3 thereof, to the person submitting the informa4 tion and summary and shall not consider either.

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

6 the administering authority or the Commission de7 nies a request for information under paragraph (1),

8 then application may be made to the United States

9 Court of International Trade for an order directing

10 the administering authority or the Commission, as

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

12 After notification of all parties to the investigation

13 and after an opportunity for a hearing on the

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

15 conditions as the court deems appropriate, which

16 shall not have the effect of stopping or suspending

17 the investigation, directing the administering author18 ity or the Commission to make all or a portion of

19 the requested information described in the preceding

20 sentence available under a protective order and set21 ting forth sanctions for violation of such order if the

22 court finds that, under the standards applicable in

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

24 and that—
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1 ‘‘(A) the administering authority or the

2 Commission has denied access to the informa3 tion under subsection (b)(1),

4 ‘‘(B) the person on whose behalf the infor5 mation is requested is an interested party who

6 is a party to the investigation in connection

7 with which the information was obtained or de8 veloped, and

9 ‘‘(C) the party which submitted the infor10 mation to which the request relates has been

11 notified, in advance of the hearing, of the re12 quest made under this section and of its right

13 to appear and be heard.

14 ‘‘(d) SERVICE.—Any party submitting written infor15 mation, including business proprietary information, to the

16 administering authority or the Commission during a pro17 ceeding shall, at the same time, serve the information

18 upon all interested parties who are parties to the proceed19 ing, if the information is covered by a protective order.

20 The administering authority or the Commission shall not

21 accept any such information that is not accompanied by

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

23 version of the document containing the information. Busi24 ness proprietary information shall only be served upon in25 terested parties who are parties to the proceeding that are
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1 subject to protective order, except that a nonconfidential

2 summary thereof shall be served upon all other interested

3 parties who are parties to the proceeding.

4 ‘‘(e) INFORMATION RELATING TO VIOLATIONS OF

5 PROTECTIVE ORDERS AND SANCTIONS.—The administer6 ing authority and the Commission may withhold from dis7 closure any correspondence, private letters of reprimand,

8 settlement agreements, and documents and files compiled

9 in relation to investigations and actions involving a viola10 tion or possible violation of a protective order issued under

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

12 information described in section 552(b)(3) of title 5, Unit13 ed States Code.

14 ‘‘(f) OPPORTUNITY FOR COMMENT BY VESSEL BUY15 ERS.—The administering authority and the Commission

16 shall provide an opportunity for buyers of subject vessels

17 to submit relevant information to the administering au18 thority concerning a sale at less than fair value or counter19 measures, and to the Commission concerning material in20 jury by reason of the sale of a vessel at less than fair

21 value.

22 ‘‘(g) PUBLICATION OF DETERMINATIONS; REQUIRE23 MENTS FOR FINAL DETERMINATIONS.—

24 ‘‘(1) IN GENERAL.—Whenever the administer25 ing authority makes a determination under section
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1 802 whether to initiate an investigation, or the ad2 ministering authority or the Commission makes a

3 preliminary determination under section 803, a final

4 determination under section 805, a determination

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

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

7 investigation under this title, the administering au8 thority or the Commission, as the case may be, shall

9 publish the facts and conclusions supporting that de10 termination, and shall publish notice of that deter11 mination in the Federal Register.

12 ‘‘(2) CONTENTS OF NOTICE OR DETERMINA13 TION.—The notice or determination published under

14 paragraph (1) shall include, to the extent applica15 ble—

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

17 administering authority—

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

19 buyer and the foreign producer, and the

20 country of origin of the subject vessel,

21 ‘‘(ii) a description sufficient to iden22 tify the subject vessel (including type, pur23 pose, and size),

24 ‘‘(iii) with respect to an injurious pric25 ing charge, the injurious pricing margin
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1 established and a full explanation of the

2 methodology used in establishing such

3 margin,

4 ‘‘(iv) with respect to countermeasures,

5 the scope and duration of countermeasures

6 and, if applicable, any changes thereto,

7 and

8 ‘‘(v) the primary reasons for the de9 termination, and

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

11 Commission—

12 ‘‘(i) considerations relevant to the de13 termination of injury, and

14 ‘‘(ii) the primary reasons for the de15 termination.

16 ‘‘(3) ADDITIONAL REQUIREMENTS FOR FINAL

17 DETERMINATIONS.—In addition to the requirements

18 set forth in paragraph (2)—

19 ‘‘(A) the administering authority shall in20 clude in a final determination under section 805

21 or 807(c) an explanation of the basis for its de22 termination that addresses relevant arguments,

23 made by interested parties who are parties to

24 the investigation, concerning the establishment
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1 of the injurious pricing charge with respect to

2 which the determination is made, and

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

4 final determination of injury an explanation of

5 the basis for its determination that addresses

6 relevant arguments that are made by interested

7 parties who are parties to the investigation con8 cerning the effects and impact on the industry

9 of the sale of the subject vessel.

10 ‘‘SEC. 844. CONDUCT OF INVESTIGATIONS.

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

12 providing factual information to the administering author13 ity or the Commission in connection with a proceeding

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

15 interested party shall certify that such information is ac16 curate and complete to the best of that person’s knowl17 edge.

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

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

20 If an interested party, promptly after receiving a re21 quest from the administering authority or the Com22 mission for information, notifies the administering

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

24 that such party is unable to submit the information

25 requested in the requested form and manner, to-
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1 gether with a full explanation and suggested alter2 native forms in which such party is able to submit

3 the information, the administering authority or the

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

5 ability of the interested party to submit the informa6 tion in the requested form and manner and may

7 modify such requirements to the extent necessary to

8 avoid imposing an unreasonable burden on that

9 party.

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

11 The administering authority and the Commission

12 shall take into account any difficulties experienced

13 by interested parties, particularly small companies,

14 in supplying information requested by the admin15 istering authority or the Commission in connection

16 with investigations under this title, and shall provide

17 to such interested parties any assistance that is

18 practicable in supplying such information.

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

20 authority or the Commission determines that a response

21 to a request for information under this title does not com22 ply with the request, the administering authority or the

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

24 the person submitting the response of the nature of the

25 deficiency and shall, to the extent practicable, provide that
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1 person with an opportunity to remedy or explain the defi2 ciency in light of the time limits established for the com3 pletion of investigations or reviews under this title. If that

4 person submits further information in response to such

5 deficiency and either—

6 ‘‘(1) the administering authority or the Com7 mission (as the case may be) finds that such re8 sponse is not satisfactory, or

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

10 applicable time limits, then the administering au11 thority or the Commission (as the case may be) may,

12 subject to subsection (d), disregard all or part of the

13 original and subsequent responses.

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

15 a determination under section 803, 805, or 807, the ad16 ministering authority and the Commission shall not de17 cline to consider information that is submitted by an inter18 ested party and is necessary to the determination but does

19 not meet all the applicable requirements established by the

20 administering authority or the Commission if—

21 ‘‘(1) the information is submitted by the dead22 line established for its submission,

23 ‘‘(2) the information can be verified,
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1 ‘‘(3) the information is not so incomplete that

2 it cannot serve as a reliable basis for reaching the

3 applicable determination,

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

5 it acted to the best of its ability in providing the in6 formation and meeting the requirements established

7 by the administering authority or the Commission

8 with respect to the information, and

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

10 difficulties.

11 ‘‘(e) NONACCEPTANCE OF SUBMISSIONS.—If the ad12 ministering authority or the Commission declines to accept

13 into the record any information submitted in an investiga14 tion under this title, it shall, to the extent practicable, pro15 vide to the person submitting the information a written

16 explanation of the reasons for not accepting the informa17 tion.

18 ‘‘(f) PUBLIC COMMENT ON INFORMATION.—Informa19 tion that is submitted on a timely basis to the administer20 ing authority or the Commission during the course of a

21 proceeding under this title shall be subject to comment

22 by other parties to the proceeding within such reasonable

23 time as the administering authority or the Commission

24 shall provide. The administering authority and the Com25 mission, before making a final determination under section
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1 805 or 807, shall cease collecting information and shall

2 provide the parties with a final opportunity to comment

3 on the information obtained by the administering author4 ity or the Commission (as the case may be) upon which

5 the parties have not previously had an opportunity to com6 ment. Comments containing new factual information shall

7 be disregarded.

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

9 shall verify all information relied upon in making a final

10 determination under section 805.

11 ‘‘SEC. 845. ADMINISTRATIVE ACTION FOLLOWING SHIP12 BUILDING AGREEMENT PANEL REPORTS.

13 ‘‘(a) ACTION BY UNITED STATES INTERNATIONAL

14 TRADE COMMISSION.—

15 ‘‘(1) ADVISORY REPORT.—If a dispute settle16 ment panel under the Shipbuilding Agreement finds

17 in a report that an action by the Commission in con18 nection with a particular proceeding under this title

19 is not in conformity with the obligations of the Unit20 ed States under the Shipbuilding Agreement, the

21 Trade Representative may request the Commission

22 to issue an advisory report on whether this title per23 mits the Commission to take steps in connection

24 with the particular proceeding that would render its

25 action not inconsistent with the findings of the panel
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1 concerning those obligations. The Trade Representa2 tive shall notify the Committee on Ways and Means

3 of the House of Representatives and the Committee

4 on Finance of the Senate of such request.

5 ‘‘(2) TIME LIMITS FOR REPORT.—The Commis6 sion shall transmit its report under paragraph (1) to

7 the Trade Representative within 30 calendar days

8 after the Trade Representative requests the report.

9 ‘‘(3) CONSULTATIONS ON REQUEST FOR COM10 MISSION DETERMINATION.—If a majority of the

11 Commissioners issues an affirmative report under

12 paragraph (1), the Trade Representatives shall con13 sult with the congressional committees listed in

14 paragraph (1) concerning the matter.

15 ‘‘(4) COMMISSION DETERMINATION.—Notwith16 standing any other provision of this title, if a major17 ity of the Commissioners issues an affirmative report

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

19 written request of the Trade Representative, shall

20 issue a determination in connection with the particu21 lar proceeding that would render the Commission’s

22 action described in paragraph (1) not inconsistent

23 with the findings of the panel. The Commission shall

24 issue its determination not later than 120 calendar
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1 days after the request from the Trade Representa2 tive is made.

3 ‘‘(5) CONSULTATIONS ON IMPLEMENTATION OF

4 COMMISSION DETERMINATION.—The Trade Rep5 resentative shall consult with the congressional com6 mittees listed in paragraph (1) before the Commis7 sion’s determination under paragraph (4) is imple8 mented.

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

10 the Commission’s determination under paragraph

11 (4), an injurious pricing order is no longer sup12 ported by an affirmative Commission determination

13 under this title, the Trade Representative may, after

14 consulting with the congressional committees under

15 paragraph (5), direct the administering authority to

16 revoke the injurious pricing order.

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

18 ‘‘(1) CONSULTATIONS WITH ADMINISTERING

19 AUTHORITY AND CONGRESSIONAL COMMITTEES.—

20 Promptly after a report or other determination by a

21 dispute settlement panel under the Shipbuilding

22 Agreement is issued that contains findings that—

23 ‘‘(A) an action by the administering au24 thority in a proceeding under this title is not in
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1 conformity with the obligations of the United

2 States under the Shipbuilding Agreement,

3 ‘‘(B) the due date for payment of an inju4 rious pricing charge contained in an order is5 sued under section 806 should be amended,

6 ‘‘(C) countermeasures provided for in an

7 order issued under section 807 should be provi8 sionally suspended or reduced pending the final

9 decision of the panel, or

10 ‘‘(D) the scope or duration of counter11 measures imposed under section 807 should be

12 narrowed or shortened,

13 the Trade Representative shall consult with the ad14 ministering authority and the congressional commit15 tees listed in subsection (a)(1) on the matter.

16 ‘‘(2) DETERMINATION BY ADMINISTERING AU17 THORITY.—Notwithstanding any other provision of

18 this title, the administering authority shall, in re19 sponse to a written request from the Trade Rep20 resentative, issue a determination, or an amendment

21 to or suspension of an injurious pricing or counter22 measure order, as the case may be, in connection

23 with the particular proceeding that would render the

24 administering authority’s action described in para-
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1 graph (1) not inconsistent with the findings of the

2 panel.

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

4 administering authority shall issue its determination,

5 amendment, or suspension under paragraph (2)—

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

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

8 calendar days after the request from the Trade

9 Representative is made, and

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

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

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

13 from the Trade Representative is made.

14 ‘‘(4) CONSULTATIONS BEFORE IMPLEMENTA15 TION.—Before the administering authority imple16 ments any determination, amendment, or suspension

17 under paragraph (2), the Trade Representative shall

18 consult with the administering authority and the

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

20 with respect to such determination, amendment, or

21 suspension.

22 ‘‘(5) IMPLEMENTATION OF DETERMINATION.—

23 The Trade Representative may, after consulting with

24 the administering authority and the congressional

25 committees under paragraph (4), direct the admin-
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1 istering authority to implement, in whole or in part,

2 the determination, amendment, or suspension made

3 under paragraph (2). The administering authority

4 shall publish notice of such implementation in the

5 Federal Register.

6 ‘‘(c) OPPORTUNITY FOR COMMENT BY INTERESTED

7 PARTIES.—Before issuing a determination, amendment,

8 or suspension, the administering authority, in a matter de9 scribed in subsection (b)(1)(A), or the Commission, in a

10 matter described in subsection (a)(1), as the case may be,

11 shall provide interested parties with an opportunity to sub12 mit written comments and, in appropriate cases, may hold

13 a hearing, with respect to the determination.

14 ‘‘Subtitle D—Definitions

15 ‘‘SEC. 861. DEFINITIONS.

16 ‘‘In this title:

17 ‘‘(1) ADMINISTERING AUTHORITY.—The term

18 ‘administering authority’ means the Secretary of

19 Commerce, or any other officer of the United States

20 to whom the responsibility for carrying out the du21 ties of the administering authority under this title

22 are transferred by law.

23 ‘‘(2) COMMISSION.—The term ‘Commission’

24 means the United States International Trade Com25 mission.
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1 ‘‘(3) COUNTRY.—The term ‘country’ means a

2 foreign country, a political subdivision, dependent

3 territory, or possession of a foreign country and, ex4 cept as provided in paragraph (16)(E)(iii), may not

5 include an association of 2 or more foreign coun6 tries, political subdivisions, dependent territories, or

7 possessions of countries into a customs union out8 side the United States.

9 ‘‘(4) INDUSTRY.—

10 ‘‘(A) IN GENERAL.—Except as used in sec11 tion 808, the term ‘industry’ means the produc12 ers as a whole of a domestic like vessel, or those

13 producers whose collective capability to produce

14 a domestic like vessel constitutes a major pro15 portion of the total domestic capability to

16 produce a domestic like vessel.

17 ‘‘(B) PRODUCER.—A ‘producer’ of a do18 mestic like vessel includes an entity that is pro19 ducing the domestic like vessel and an entity

20 with the capability to produce the domestic like

21 vessel.

22 ‘‘(C) CAPABILITY TO PRODUCE A DOMES23 TIC LIKE VESSEL.—A producer has the ‘capa24 bility to produce a domestic like vessel’ if it is

25 capable of producing a domestic like vessel with
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1 its present facilities or could adapt its facilities

2 in a timely manner to produce a domestic like

3 vessel.

4 ‘‘(D) RELATED PARTIES.—(i) In an inves5 tigation under this title, if a producer of a do6 mestic like vessel and the foreign producer, sell7 er (other than the foreign producer), or United

8 States buyer of the subject vessel are related

9 parties, or if a producer of a domestic like ves10 sel is also a United States buyer of the subject

11 vessel, the domestic producer may, in appro12 priate circumstances, be excluded from the in13 dustry.

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

15 producer and the foreign producer, seller, or

16 United States buyer shall be considered to be

17 related parties, if—

18 ‘‘(I) the domestic producer directly or

19 indirectly controls the foreign producer,

20 seller, or United States buyer,

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

22 United States buyer directly or indirectly

23 controls the domestic producer,

24 ‘‘(III) a third party directly or indi25 rectly controls the domestic producer and
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1 the foreign producer, seller, or United

2 States buyer, or

3 ‘‘(IV) the domestic producer and the

4 foreign producer, seller, or United States

5 buyer directly or indirectly control a third

6 party and there is reason to believe that

7 the relationship causes the domestic pro8 ducer to act differently than a nonrelated

9 producer.

10 For purposes of this subparagraph, a party

11 shall be considered to directly or indirectly con12 trol another party if the party is legally or oper13 ationally in a position to exercise restraint or

14 direction over the other party.

15 ‘‘(E) PRODUCT LINES.—In an investiga16 tion under this title, the effect of the sale of the

17 subject vessel shall be assessed in relation to

18 the United States production (or production ca19 pability) of a domestic like vessel if available

20 data permit the separate identification of pro21 duction (or production capability) in terms of

22 such criteria as the production process or the

23 producer’s profits. If the domestic production

24 (or production capability) of a domestic like

25 vessel has no separate identity in terms of such
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1 criteria, then the effect of the sale of the sub2 ject vessel shall be assessed by the examination

3 of the production (or production capability) of

4 the narrowest group or range of vessels, which

5 includes a domestic like vessel, for which the

6 necessary information can be provided.

7 ‘‘(5) BUYER.—The term ‘buyer’ means any per8 son who acquires an ownership interest in a vessel,

9 including by way of lease or long-term bareboat

10 charter, in conjunction with the original transfer

11 from the producer, either directly or indirectly, in12 cluding an individual or company which owns or con13 trols a buyer. There may be more than one buyer of

14 any one vessel.

15 ‘‘(6) UNITED STATES BUYER.—The term ‘Unit16 ed States buyer’ means a buyer that is any of the

17 following:

18 ‘‘(A) A United States citizen.

19 ‘‘(B) A juridical entity, including any cor20 poration, company, association, or other organi21 zation, that is legally constituted under the laws

22 and regulations of the United States or a politi23 cal subdivision thereof, regardless of whether

24 the entity is organized for pecuniary gain, pri-
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1 vately or government owned, or organized with

2 limited or unlimited liability.

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

4 controlled by nationals or entities described in

5 subparagraphs (A) and (B). For the purposes

6 of this subparagraph—

7 ‘‘(i) the term ‘own’ means having

8 more than a 50 percent interest, and

9 ‘‘(ii) the term ‘control’ means the ac10 tual ability to have substantial influence on

11 corporate behavior, and control is pre12 sumed to exist where there is at least a 25

13 percent interest.

14 If ownership of a company is established under

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

16 unless it is otherwise established.

17 ‘‘(7) OWNERSHIP INTEREST.—An ‘ownership

18 interest’ in a vessel includes any contractual or pro19 prietary interest which allows the beneficiary or

20 beneficiaries of such interest to take advantage of

21 the operation of the vessel in a manner substantially

22 comparable to the way in which an owner may bene23 fit from the operation of the vessel. In determining

24 whether such substantial comparability exists, the

25 administering authority shall consider—
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1 ‘‘(A) the terms and circumstances of the

2 transaction which conveys the interest,

3 ‘‘(B) commercial practice within the indus4 try,

5 ‘‘(C) whether the vessel subject to the

6 transaction is integrated into the operations of

7 the beneficiary or beneficiaries, and

8 ‘‘(D) whether in practice there is a likeli9 hood that the beneficiary or beneficiaries of

10 such interests will take advantage of and the

11 risk for the operation of the vessel for a signifi12 cant part of the life-time of the vessel.

13 ‘‘(8) VESSEL.—

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

15 specifically provided under international agree16 ments, the term ‘vessel’ means—

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

18 100 gross tons or more used for transpor19 tation of goods or persons or for perform20 ance of a specialized service (including, but

21 not limited to, ice breakers and dredges),

22 or

23 ‘‘(ii) a tug of 365 kilowatts or more,
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1 that is produced in a Shipbuilding Agreement

2 Party or a country that is not a Shipbuilding

3 Agreement Party and not a WTO member.

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

5 not include—

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

7 fishing fleet of the country in which the

8 vessel is built,

9 ‘‘(ii) any military vessel or any mili10 tary reserve vessel, and

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

12 that the Shipbuilding Agreement enters

13 into force with respect to the United

14 States, except that any vessel sold after

15 December 21, 1994, for delivery more than

16 5 years after the date of the contract of

17 sale shall be a ‘vessel’ for purposes of this

18 title unless the shipbuilder demonstrates to

19 the administering authority that the ex20 tended delivery date was for normal com21 mercial reasons and not to avoid applica22 bility of this title.

23 ‘‘(C) SELF-PROPELLED SEAGOING VES24 SEL.—A vessel is ‘self-propelled seagoing’ if its

25 permanent propulsion and steering provide it all
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1 the characteristics of self-navigability in the

2 high seas.

3 ‘‘(D) MILITARY VESSEL.—A ‘military ves4 sel’ is a vessel that, according to its basic struc5 tural characteristics and ability, is intended to

6 be used exclusively for military purposes.

7 ‘‘(E) MILITARY RESERVE VESSEL.—A

8 ‘military reserve vessel’ is a vessel that has been

9 constructed with national defense features and

10 characteristics required by the Secretary of De11 fense for the purpose of supporting the United

12 States Armed Forces in a contingency, if the

13 vessel (without regard to such features and

14 characteristics) is otherwise subject to the

15 terms and conditions of the Shipbuilding Agree16 ment.

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

18 means a vessel of the same type, same purpose, and

19 approximate size as the subject vessel and possessing

20 characteristics closely resembling those of the sub21 ject vessel.

22 ‘‘(10) DOMESTIC LIKE VESSEL.—The term ‘do23 mestic like vessel’ means a like vessel produced in

24 the United States.
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1 ‘‘(11) FOREIGN LIKE VESSEL.—Except as used

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

3 vessel’ means a like vessel produced by the foreign

4 producer of the subject vessel for sale in the produc5 er’s domestic market or in a third country.

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

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

8 vessel of the same type and purpose as the subject

9 vessel, but of a significantly different size.

10 ‘‘(13) SUBJECT VESSEL.—The term ‘subject

11 vessel’ means a vessel subject to an investigation or

12 an injurious pricing order under this title.

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

14 producer’ means the producer or producers of the

15 subject vessel.

16 ‘‘(15) EXPORTING COUNTRY.—The term ‘ex17 porting country’ means the country in which the

18 subject vessel was built.

19 ‘‘(16) MATERIAL INJURY.—

20 ‘‘(A) IN GENERAL.—The term ‘material in21 jury’ means harm which is not inconsequential,

22 immaterial, or unimportant.

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

24 making determinations under sections 803(a)

25 and 805(b), the Commission in each case—
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1 ‘‘(i) shall consider—

2 ‘‘(I) the sale of the subject vessel,

3 ‘‘(II) the effect of the sale of the

4 subject vessel on prices in the United

5 States for a domestic like vessel, and

6 ‘‘(III) the impact of the sale of

7 the subject vessel on domestic produc8 ers of a domestic like vessel, but only

9 in the context of production oper10 ations within the United States, and

11 ‘‘(ii) may consider such other eco12 nomic factors as are relevant to the deter13 mination regarding whether there is or has

14 been material injury by reason of the sale

15 of the subject vessel.

16 In the notification required under section

17 805(d), the Commission shall explain its analy18 sis of each factor considered under clause (i),

19 and identify each factor considered under clause

20 (ii) and explain in full its relevance to the deter21 mination.

22 ‘‘(C) EVALUATION OF RELEVANT FAC23 TORS.—For purposes of subparagraph (B)—

24 ‘‘(i) SALE OF THE SUBJECT VES25 SEL.—In evaluating the sale of the subject
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1 vessel, the Commission shall consider

2 whether the sale, either in absolute terms

3 or relative to production or demand in the

4 United States, in terms of either volume or

5 value, is or has been significant.

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

7 of the sale of the subject vessel on prices,

8 the Commission shall consider whether—

9 ‘‘(I) there has been significant

10 price underselling of the subject vessel

11 as compared with the price of a do12 mestic like vessel, and

13 ‘‘(II) the effect of the sale of the

14 subject vessel otherwise depresses or

15 has depressed prices to a significant

16 degree or prevents or has prevented

17 price increases, which otherwise would

18 have occurred, to a significant degree.

19 ‘‘(iii) IMPACT ON AFFECTED DOMES20 TIC INDUSTRY.—In examining the impact

21 required to be considered under subpara22 graph (B)(i)(III), the Commission shall

23 evaluate all relevant economic factors

24 which have a bearing on the state of the
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1 industry in the United States, including,

2 but not limited to—

3 ‘‘(I) actual and potential decline

4 in output, sales, market share, profits,

5 productivity, return on investments,

6 and utilization of capacity,

7 ‘‘(II) factors affecting domestic

8 prices, including with regard to sales,

9 ‘‘(III) actual and potential nega10 tive effects on cash flow, employment,

11 wages, growth, ability to raise capital,

12 and investment,

13 ‘‘(IV) actual and potential nega14 tive effects on the existing develop15 ment and production efforts of the do16 mestic industry, including efforts to

17 develop a derivative or more advanced

18 version of a domestic like vessel, and

19 ‘‘(V) the magnitude of the injuri20 ous pricing margin.

21 The Commission shall evaluate all relevant

22 economic factors described in this clause

23 within the context of the business cycle

24 and conditions of competition that are dis25 tinctive to the affected industry.
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1 ‘‘(D) STANDARD FOR DETERMINATION.—

2 The presence or absence of any factor which the

3 Commission is required to evaluate under sub4 paragraph (C) shall not necessarily give decisive

5 guidance with respect to the determination by

6 the Commission of material injury.

7 ‘‘(E) THREAT OF MATERIAL INJURY.—

8 ‘‘(i) IN GENERAL.—In determining

9 whether an industry in the United States

10 is threatened with material injury by rea11 son of the sale of the subject vessel, the

12 Commission shall consider, among other

13 relevant economic factors—

14 ‘‘(I) any existing unused produc15 tion capacity or imminent, substantial

16 increase in production capacity in the

17 exporting country indicating the likeli18 hood of substantially increased sales

19 of a foreign like vessel to United

20 States buyers, taking into account the

21 availability of other export markets to

22 absorb any additional exports,

23 ‘‘(II) whether the sale of a for24 eign like vessel or other factors indi-
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1 cate the likelihood of significant addi2 tional sales to United States buyers,

3 ‘‘(III) whether sale of the subject

4 vessel or sale of a foreign like vessel

5 by the foreign producer are at prices

6 that are likely to have a significant

7 depressing or suppressing effect on

8 domestic prices, and are likely to in9 crease demand for further sales,

10 ‘‘(IV) the potential for product11 shifting if production facilities in the

12 exporting country, which can pres13 ently be used to produce a foreign like

14 vessel or could be adapted in a timely

15 manner to produce a foreign like ves16 sel, are currently being used to

17 produce other types of vessels,

18 ‘‘(V) the actual and potential

19 negative effects on the existing devel20 opment and production efforts of the

21 domestic industry, including efforts to

22 develop a derivative or more advanced

23 version of a domestic like vessel, and

24 ‘‘(VI) any other demonstrable ad25 verse trends that indicate the prob-
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1 ability that there is likely to be mate2 rial injury by reason of the sale of the

3 subject vessel.

4 ‘‘(ii) BASIS FOR DETERMINATION.—

5 The Commission shall consider the factors

6 set forth in clause (i) as a whole. The pres7 ence or absence of any factor which the

8 Commission is required to consider under

9 clause (i) shall not necessarily give decisive

10 guidance with respect to the determination.

11 Such a determination may not be made on

12 the basis of mere conjecture or suppo13 sition.

14 ‘‘(iii) EFFECT OF INJURIOUS PRICING

15 IN THIRD-COUNTRY MARKETS.—

16 ‘‘(I) IN GENERAL.—The Commis17 sion shall consider whether injurious

18 pricing in the markets of foreign

19 countries (as evidenced by injurious

20 pricing findings or injurious pricing

21 remedies of other Shipbuilding Agree22 ment Parties, or antidumping deter23 minations of, or measures imposed by,

24 other countries, against a like vessel

25 produced by the producer under inves-
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1 tigation) suggests a threat of material

2 injury to the domestic industry. In the

3 course of its investigation, the Com4 mission shall request information

5 from the foreign producer or United

6 States buyer concerning this issue.

7 ‘‘(II) EUROPEAN COMMU8 NITIES.—For purposes of this clause,

9 the European Communities as a whole

10 shall be treated as a single foreign

11 country.

12 ‘‘(F) CUMULATION FOR DETERMINING MA13 TERIAL INJURY.—

14 ‘‘(i) IN GENERAL.—For purposes of

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

16 and subject to clause (ii) of this subpara17 graph, the Commission shall cumulatively

18 assess the effects of sales of foreign like

19 vessels from all foreign producers with re20 spect to which—

21 ‘‘(I) petitions were filed under

22 section 802(b) on the same day,

23 ‘‘(II) investigations were initiated

24 under section 802(a) on the same day,

25 or
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1 ‘‘(III) petitions were filed under

2 section 802(b) and investigations were

3 initiated under section 802(a) on the

4 same day,

5 if, with respect to such vessels, the foreign

6 producers compete with each other and

7 with producers of a domestic like vessel in

8 the United States market.

9 ‘‘(ii) EXCEPTIONS.—The Commission

10 shall not cumulatively assess the effects of

11 sales under clause (i)—

12 ‘‘(I) with respect to which the ad13 ministering authority has made a pre14 liminary negative determination, un15 less the administering authority sub16 sequently made a final affirmative de17 termination with respect to those sales

18 before the Commission’s final deter19 mination is made, or

20 ‘‘(II) from any producer with re21 spect to which the investigation has

22 been terminated.

23 ‘‘(iii) RECORDS IN FINAL INVESTIGA24 TIONS.—In each final determination in

25 which it cumulatively assesses the effects
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1 of sales under clause (i), the Commission

2 may make its determinations based on the

3 record compiled in the first investigation in

4 which it makes a final determination, ex5 cept that when the administering authority

6 issues its final determination in a subse7 quently completed investigation, the Com8 mission shall permit the parties in the sub9 sequent investigation to submit comments

10 concerning the significance of the admin11 istering authority’s final determination,

12 and shall include such comments and the

13 administering authority’s final determina14 tion in the record for the subsequent inves15 tigation.

16 ‘‘(G) CUMULATION FOR DETERMINING

17 THREAT OF MATERIAL INJURY.—To the extent

18 practicable and subject to subparagraph (F)(ii),

19 for purposes of clause (i) (II) and (III) of sub20 paragraph (E), the Commission may cumula21 tively assess the effects of sales of like vessels

22 from all countries with respect to which—

23 ‘‘(i) petitions were filed under section

24 802(b) on the same day,
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1 ‘‘(ii) investigations were initiated

2 under section 802(a) on the same day, or

3 ‘‘(iii) petitions were filed under sec4 tion 802(b) and investigations were initi5 ated under section 802(a) on the same

6 day,

7 if, with respect to such vessels, the foreign pro8 ducers compete with each other and with pro9 ducers of a domestic like vessel in the United

10 States market.

11 ‘‘(17) INTERESTED PARTY.—The term ‘inter12 ested party’ means, in a proceeding under this

13 title—

14 ‘‘(A)(i) the foreign producer, seller (other

15 than the foreign producer), and the United

16 States buyer of the subject vessel, or

17 ‘‘(ii) a trade or business association a ma18 jority of the members of which are the foreign

19 producer, seller, or United States buyer of the

20 subject vessel,

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

22 which the subject vessel is produced or manu23 factured,

24 ‘‘(C) a producer that is a member of an in25 dustry,
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1 ‘‘(D) a certified union or recognized union

2 or group of workers which is representative of

3 an industry,

4 ‘‘(E) a trade or business association a ma5 jority of whose members are producers in an in6 dustry,

7 ‘‘(F) an association, a majority of whose

8 members is composed of interested parties de9 scribed in subparagraph (C), (D), or (E), and

10 ‘‘(G) for purposes of section 807, a pur11 chaser who, after the effective date of an order

12 issued under that section, entered into a con13 tract of sale with the foreign producer that is

14 subject to the order.

15 ‘‘(18) AFFIRMATIVE DETERMINATIONS BY DI16 VIDED COMMISSION.—If the Commissioners voting

17 on a determination by the Commission are evenly di18 vided as to whether the determination should be af19 firmative or negative, the Commission shall be

20 deemed to have made an affirmative determination.

21 For the purpose of applying this paragraph when

22 the issue before the Commission is to determine

23 whether there is or has been—

24 ‘‘(A) material injury to an industry in the

25 United States,
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1 ‘‘(B) threat of material injury to such an

2 industry, or

3 ‘‘(C) material retardation of the establish4 ment of an industry in the United States,

5 by reason of the sale of the subject vessel, an affirm6 ative vote on any of the issues shall be treated as

7 a vote that the determination should be affirmative.

8 ‘‘(19) ORDINARY COURSE OF TRADE.—The

9 term ‘ordinary course of trade’ means the conditions

10 and practices which, for a reasonable time before the

11 sale of the subject vessel, have been normal in the

12 shipbuilding industry with respect to a like vessel.

13 The administering authority shall consider the fol14 lowing sales and transactions, among others, to be

15 outside the ordinary course of trade:

16 ‘‘(A) Sales disregarded under section

17 822(b)(1).

18 ‘‘(B) Transactions disregarded under sec19 tion 822(f)(2).

20 ‘‘(20) NONMARKET ECONOMY COUNTRY.—

21 ‘‘(A) IN GENERAL.—The term ‘nonmarket

22 economy country’ means any foreign country

23 that the administering authority determines

24 does not operate on market principles of cost or

25 pricing structures, so that sales of vessels in
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1 such country do not reflect the fair value of the

2 vessels.

3 ‘‘(B) FACTORS TO BE CONSIDERED.—In

4 making determinations under subparagraph (A)

5 the administering authority shall take into ac6 count—

7 ‘‘(i) the extent to which the currency

8 of the foreign country is convertible into

9 the currency of other countries,

10 ‘‘(ii) the extent to which wage rates in

11 the foreign country are determined by free

12 bargaining between labor and manage13 ment,

14 ‘‘(iii) the extent to which joint ven15 tures or other investments by firms of

16 other foreign countries are permitted in

17 the foreign country,

18 ‘‘(iv) the extent of government owner19 ship or control of the means of production,

20 ‘‘(v) the extent of government control

21 over the allocation of resources and over

22 the price and output decisions of enter23 prises, and

24 ‘‘(vi) such other factors as the admin25 istering authority considers appropriate.
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1 ‘‘(C) DETERMINATION IN EFFECT.—

2 ‘‘(i) Any determination that a foreign

3 country is a nonmarket economy country

4 shall remain in effect until revoked by the

5 administering authority.

6 ‘‘(ii) The administering authority may

7 make a determination under subparagraph

8 (A) with respect to any foreign country at

9 any time.

10 ‘‘(D) DETERMINATIONS NOT IN ISSUE.—

11 Notwithstanding any other provision of law, any

12 determination made by the administering au13 thority under subparagraph (A) shall not be

14 subject to judicial review in any investigation

15 conducted under subtitle A.

16 ‘‘(21) SHIPBUILDING AGREEMENT.—The term

17 ‘Shipbuilding Agreement’ means The Agreement Re18 specting Normal Competitive Conditions in the Com19 mercial Shipbuilding and Repair Industry, resulting

20 from negotiations under the auspices of the Organi21 zation for Economic Cooperation and Development,

22 and entered into on December 21, 1994.

23 ‘‘(22) SHIPBUILDING AGREEMENT PARTY.—The

24 term ‘Shipbuilding Agreement Party’ means a state

25 or separate customs territory that is a Party to the
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1 Shipbuilding Agreement, and with respect to which

2 the United States applies the Shipbuilding Agree3 ment.

4 ‘‘(23) WTO AGREEMENT.—The term ‘WTO

5 Agreement’ means the Agreement defined in section

6 2(9) of the Uruguay Round Agreements Act.

7 ‘‘(24) WTO MEMBER.—The term ‘WTO mem8 ber’ means a state, or separate customs territory

9 (within the meaning of Article XII of the WTO

10 Agreement), with respect to which the United States

11 applies the WTO Agreement.

12 ‘‘(25) TRADE REPRESENTATIVE.—The term

13 ‘Trade Representative’ means the United States

14 Trade Representative.

15 ‘‘(26) AFFILIATED PERSONS.—The following

16 persons shall be considered to be ‘affiliated’ or ‘af17 filiated persons’:

18 ‘‘(A) Members of a family, including broth19 ers and sisters (whether by the whole or half

20 blood), spouse, ancestors, and lineal descend21 ants.

22 ‘‘(B) Any officer or director of an organi23 zation and such organization.

24 ‘‘(C) Partners.

25 ‘‘(D) Employer and employee.
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1 ‘‘(E) Any person directly or indirectly own2 ing, controlling, or holding with power to vote,

3 5 percent or more of the outstanding voting

4 stock or shares of any organization, and such

5 organization.

6 ‘‘(F) Two or more persons directly or indi7 rectly controlling, controlled by, or under com8 mon control with, any person.

9 ‘‘(G) Any person who controls any other

10 person, and such other person.

11 For purposes of this paragraph, a person shall be

12 considered to control another person if the person is

13 legally or operationally in a position to exercise re14 straint or direction over the other person.

15 ‘‘(27) INJURIOUS PRICING.—The term ‘injuri16 ous pricing’ refers to the sale of a vessel at less than

17 fair value.

18 ‘‘(28) INJURIOUS PRICING MARGIN.—

19 ‘‘(A) IN GENERAL.—The term ‘injurious

20 pricing margin’ means the amount by which the

21 normal value exceeds the export price of the

22 subject vessel.

23 ‘‘(B) MAGNITUDE OF THE INJURIOUS

24 PRICING MARGIN.—The magnitude of the inju-
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1 rious pricing margin used by the Commission

2 shall be—

3 ‘‘(i) in making a preliminary deter4 mination under section 803(a) in an inves5 tigation (including any investigation in

6 which the Commission cumulatively as7 sesses the effect of sales under paragraph

8 (16)(F)(i)), the injurious pricing margin or

9 margins published by the administering

10 authority in its notice of initiation of the

11 investigation; and

12 ‘‘(ii) in making a final determination

13 under section 805(b), the injurious pricing

14 margin or margins most recently published

15 by the administering authority before the

16 closing of the Commission’s administrative

17 record.

18 ‘‘(29) COMMERCIAL INTEREST REFERENCE

19 RATE.—The term ‘Commercial Interest Reference

20 Rate’ or ‘CIRR’ means an interest rate that the ad21 ministering authority determines to be consistent

22 with Annex III, and appendices and notes thereto, of

23 the Understanding on Export Credits for Ships, re24 sulting from negotiations under the auspices of the
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1 Organization for Economic Cooperation, and entered

2 into on December 21, 1994.

3 ‘‘(30) ANTIDUMPING.—

4 ‘‘(A) WTO MEMBERS.—In the case of a

5 WTO member, the term ‘antidumping’ refers to

6 action taken pursuant to the Agreement on Im7 plementation of Article VI of the General

8 Agreement on Tariffs and Trade 1994.

9 ‘‘(B) OTHER CASES.—In the case of any

10 country that is not a WTO member, the term

11 ‘antidumping’ refers to action taken by the

12 country against the sale of a vessel at less than

13 fair value that is comparable to action described

14 in subparagraph (A).

15 ‘‘(31) BROAD MULTIPLE BID.—The term ‘broad

16 multiple bid’ means a bid in which the proposed

17 buyer extends an invitation to bid to at least all the

18 producers in the industry known by the buyer to be

19 capable of building the subject vessel.’’.

20 SEC. 103. ENFORCEMENT OF COUNTERMEASURES.

21 Part II of title IV of the Tariff Act of 1930 is amend22 ed by adding at the end the following:
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1 ‘‘SEC. 468. SHIPBUILDING AGREEMENT COUNTER2 MEASURES.

3 ‘‘(a) IN GENERAL.—Notwithstanding any other pro4 vision of law, upon receiving from the Secretary of Com5 merce a list of vessels subject to countermeasures under

6 section 807, the Customs Service shall deny any request

7 for a permit to lade or unlade passengers, merchandise,

8 or baggage from or onto those vessels so listed.

9 ‘‘(b) EXCEPTIONS.—Subsection (a) shall not be ap10 plied to deny a permit for the following:

11 ‘‘(1) To unlade any United States citizen or

12 permanent legal resident alien from a vessel included

13 in the list described in subsection (a), or to unlade

14 any refugee or any alien who would otherwise be eli15 gible to apply for asylum and withholding of depor16 tation under the Immigration and Nationality Act.

17 ‘‘(2) To lade or unlade any crewmember of such

18 vessel.

19 ‘‘(3) To lade or unlade coal and other fuel sup20 plies (for the operation of the listed vessel), ships’

21 stores, sea stores, and the legitimate equipment of

22 such vessel.

23 ‘‘(4) To lade or unlade supplies for the use or

24 sale on such vessel.

25 ‘‘(5) To lade or unlade such other merchandise,

26 baggage, or passenger as the Customs Service shall
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1 determine necessary to protect the immediate health,

2 safety, or welfare of a human being.

3 ‘‘(c) CORRECTION OF MINISTERIAL OR CLERICAL

4 ERRORS.—

5 ‘‘(1) PETITION FOR CORRECTION.—If the mas6 ter of any vessel whose application for a permit to

7 lade or unlade has been denied under this section be8 lieves that such denial resulted from a ministerial or

9 clerical error, not amounting to a mistake of law,

10 committed by any Customs officer, the master may

11 petition the Customs Service for correction of such

12 error, as provided by regulation.

13 ‘‘(2) INAPPLICABILITY OF SECTIONS 514 AND

14 520.—Notwithstanding paragraph (1), imposition of

15 countermeasures under this section shall not be

16 deemed an exclusion or other protestable decision

17 under section 514, and shall not be subject to cor18 rection under section 520.

19 ‘‘(3) PETITIONS SEEKING ADMINISTRATIVE RE20 VIEW.—Any petition seeking administrative review

21 of any matter regarding the Secretary of Com22 merce’s decision to list a vessel under section 807

23 must be brought under that section.

24 ‘‘(d) PENALTIES.—In addition to any other provision

25 of law, the Customs Service may impose a civil penalty
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1 of not to exceed $10,000 against the master of any ves2 sel—

3 ‘‘(1) who submits false information in request4 ing any permit to lade or unlade; or

5 ‘‘(2) who attempts to, or actually does, lade or

6 unlade in violation of any denial of such permit

7 under this section.’’.

8 SEC. 104. JUDICIAL REVIEW IN INJURIOUS PRICING AND

9 COUNTERMEASURE PROCEEDINGS.

10 (a) JUDICIAL REVIEW.—Part III of title IV of the

11 Tariff Act of 1930 is amended by inserting after section

12 516A the following:

13 ‘‘SEC. 516B. JUDICIAL REVIEW IN INJURIOUS PRICING AND

14 COUNTERMEASURE PROCEEDINGS.

15 ‘‘(a) REVIEW OF DETERMINATION.—

16 ‘‘(1) IN GENERAL.—Within 30 days after the

17 date of publication in the Federal Register of—

18 ‘‘(A)(i) a determination by the administer19 ing authority under section 802(c) not to initi20 ate an investigation,

21 ‘‘(ii) a negative determination by the Com22 mission under section 803(a) as to whether

23 there is or has been reasonable indication of

24 material injury, threat of material injury, or

25 material retardation,
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1 ‘‘(iii) a determination by the administering

2 authority to suspend or revoke an injurious

3 pricing order under section 806 (d) or (e),

4 ‘‘(iv) a determination by the administering

5 authority under section 807(c),

6 ‘‘(v) a determination by the administering

7 authority in a review under section 807(d),

8 ‘‘(vi) a determination by the administering

9 authority concerning whether to extend the

10 scope or duration of a countermeasure order

11 under section 807(e)(3)(B)(ii),

12 ‘‘(vii) a determination by the administering

13 authority to amend a countermeasure order

14 under section 807(e)(6),

15 ‘‘(viii) a determination by the administer16 ing authority in a review under section 807(g),

17 ‘‘(ix) a determination by the administering

18 authority under section 807(i) to terminate pro19 ceedings, or to amend or revoke a counter20 measure order,

21 ‘‘(x) a determination by the administering

22 authority under section 845(b), with respect to

23 a matter described in paragraph (1)(D) of that

24 section, or
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1 ‘‘(B)(i) an injurious pricing order based on

2 a determination described in subparagraph (A)

3 of paragraph (2),

4 ‘‘(ii) notice of a determination described in

5 subparagraph (B) of paragraph (2),

6 ‘‘(iii) notice of implementation of a deter7 mination described in subparagraph (C) of

8 paragraph (2), or

9 ‘‘(iv) notice of revocation of an injurious

10 pricing order based on a determination de11 scribed in subparagraph (D) of paragraph (2),

12 an interested party who is a party to the pro13 ceeding in connection with which the matter

14 arises may commence an action in the United

15 States Court of International Trade by filing

16 concurrently a summons and complaint, each

17 with the content and in the form, manner, and

18 style prescribed by the rules of that court, con19 testing any factual findings or legal conclusions

20 upon which the determination is based.

21 ‘‘(2) REVIEWABLE DETERMINATIONS.—The de22 terminations referred to in paragraph (1)(B) are—

23 ‘‘(A) a final affirmative determination by

24 the administering authority or by the Commis25 sion under section 805, including any negative
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1 part of such a determination (other than a part

2 referred to in subparagraph (B)),

3 ‘‘(B) a final negative determination by the

4 administering authority or the Commission

5 under section 805,

6 ‘‘(C) a determination by the administering

7 authority under section 845(b), with respect to

8 a matter described in paragraph (1)(A) of that

9 section, and

10 ‘‘(D) a determination by the Commission

11 under section 845(a) that results in the revoca12 tion of an injurious pricing order.

13 ‘‘(3) EXCEPTION.—Notwithstanding the 30-day

14 limitation imposed by paragraph (1) with regard to

15 an order described in paragraph (1)(B)(i), a final af16 firmative determination by the administering author17 ity under section 805 may be contested by commenc18 ing an action, in accordance with the provisions of

19 paragraph (1), within 30 days after the date of pub20 lication in the Federal Register of a final negative

21 determination by the Commission under section 805.

22 ‘‘(4) PROCEDURES AND FEES.—The procedures

23 and fees set forth in chapter 169 of title 28, United

24 States Code, apply to an action under this section.

25 ‘‘(b) STANDARDS OF REVIEW.—
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1 ‘‘(1) REMEDY.—The court shall hold unlawful

2 any determination, finding, or conclusion found—

3 ‘‘(A) in an action brought under subpara4 graph (A) of subsection (a)(1), to be arbitrary,

5 capricious, an abuse of discretion, or otherwise

6 not in accordance with law, or

7 ‘‘(B) in an action brought under subpara8 graph (B) of subsection (a)(1), to be unsup9 ported by substantial evidence on the record, or

10 otherwise not in accordance with law.

11 ‘‘(2) RECORD FOR REVIEW.—

12 ‘‘(A) IN GENERAL.—For purposes of this

13 subsection, the record, unless otherwise stipu14 lated by the parties, shall consist of—

15 ‘‘(i) a copy of all information pre16 sented to or obtained by the administering

17 authority or the Commission during the

18 course of the administrative proceeding, in19 cluding all governmental memoranda per20 taining to the case and the record of ex

21 parte meetings required to be kept by sec22 tion 843(a)(2); and

23 ‘‘(ii) a copy of the determination, all

24 transcripts or records of conferences or
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1 hearings, and all notices published in the

2 Federal Register.

3 ‘‘(B) CONFIDENTIAL OR PRIVILEGED MA4 TERIAL.—The confidential or privileged status

5 accorded to any documents, comments, or infor6 mation shall be preserved in any action under

7 this section. Notwithstanding the preceding sen8 tence, the court may examine, in camera, the

9 confidential or privileged material, and may dis10 close such material under such terms and con11 ditions as it may order.

12 ‘‘(c) STANDING.—Any interested party who was a

13 party to the proceeding under title VIII shall have the

14 right to appear and be heard as a party in interest before

15 the United States Court of International Trade in an ac16 tion under this section. The party filing the action shall

17 notify all such interested parties of the filing of an action

18 under this section, in the form, manner, and within the

19 time prescribed by rules of the court.

20 ‘‘(d) DEFINITIONS.—For purposes of this section:

21 ‘‘(1) ADMINISTERING AUTHORITY.—The term

22 ‘administering authority’ has the meaning given that

23 term in section 861(1).
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1 ‘‘(2) COMMISSION.—The term ‘Commission’

2 means the United States International Trade Com3 mission.

4 ‘‘(3) INTERESTED PARTY.—The term ‘inter5 ested party’ means any person described in section

6 861(17).’’.

7 (b) CONFORMING AMENDMENTS.—

8 (1) JURISDICTION OF THE COURT.—Section

9 1581(c) of title 28, United States Code, is amended

10 by inserting ‘‘or 516B’’ after ‘‘section 516A’’.

11 (2) RELIEF.—Section 2643 of title 28, United

12 States Code, is amended—

13 (A) in subsection (c)(1) by striking ‘‘and

14 (5)’’ and inserting ‘‘(5), and (6)’’; and

15 (B) in subsection (c) by adding at the end

16 the following new paragraph:

17 ‘‘(6) In any civil action under section 516B of the

18 Tariff Act of 1930, the Court of International Trade may

19 not issue injunctions or any other form of equitable relief,

20 except with regard to implementation of a countermeasure

21 order under section 468 of that Act, upon a proper show22 ing that such relief is warranted.’’.
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1 Subtitle B—Other Provisions

2 SEC. 111. EQUIPMENT AND REPAIR OF VESSELS.

3 (a) IN GENERAL.—Section 466 of the Tariff Act of

4 1930 (19 U.S.C. 1466), is amended by adding at the end

5 the following new subsection:

6 ‘‘(i) EXCEPTION TO IMPOSITION OF DUTY.—

7 ‘‘(1) IN GENERAL.—The duty imposed by sub8 section (a) shall not apply with respect to activities

9 occurring in a Shipbuilding Agreement Party, as de10 fined in section 861(22), with respect to—

11 ‘‘(A) self-propelled seagoing vessels of 100

12 gross tons or more that are used for transpor13 tation of goods or persons or for performance

14 of a specialized service (including, but not lim15 ited to, ice breakers and dredges);

16 ‘‘(B) tugs of 365 kilowatts or more; and

17 ‘‘(C) integrated tug-barges or tug-barge

18 combinations.

19 ‘‘(2) SELF-PROPELLED SEAGOING; INTEGRATED

20 TUG-BARGE.—

21 ‘‘(A) SELF-PROPELLED SEAGOING.—A ves22 sel shall be considered ‘self-propelled seagoing’

23 if its permanent propulsion and steering provide

24 it all the characteristics of self-navigability in

25 the high seas.
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1 ‘‘(B) INTEGRATED TUG-BARGE.—An inte2 grated tug-barge or tug-barge combination

3 means a vessel that is designed to operate to4 gether in either the push mode or pull mode, if

5 the barge is of 100 gross tons or more and the

6 tug is of 365 kilowatts or more.’’.

7 SEC. 112. EFFECT OF SHIPBUILDING TRADE AGREEMENT

8 WITH RESPECT TO PRIVATE REMEDIES.

9 No person other than the United States—

10 (1) shall have any cause of action or defense

11 under the Shipbuilding Agreement or by virtue of

12 congressional approval of the Shipbuilding Agree13 ment, or

14 (2) may challenge, in any action brought under

15 any provision of law, any action or inaction by any

16 department, agency, or other instrumentality of the

17 United States, the District of Columbia, any State,

18 any political subdivision of a State, or any territory

19 or possession of the United States on the ground

20 that such action or inaction is inconsistent with such

21 Shipbuilding Agreement.

22 SEC. 113. IMPLEMENTING REGULATIONS.

23 After the date of the enactment of this title, the heads

24 of agencies with functions under this title and the amend25 ments made by this title may issue such regulations as
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1 may be necessary to ensure that this title is appropriately

2 implemented on the date the Shipbuilding Agreement en3 ters into force with respect to the United States.

4 SEC. 114. AMENDMENTS TO THE MERCHANT MARINE ACT,

5 1936.

6 The Merchant Marine Act, 1936, is amended as fol7 lows:

8 (1) Section 511(a)(2) (46 App. U.S.C.

9 1161(a)(2)) is amended by inserting after ‘‘1939,’’

10 the following: ‘‘or, if the vessel is a Shipbuilding

11 Agreement vessel, constructed in a Shipbuilding

12 Agreement Party, but only with regard to moneys

13 deposited, on or after the date on which the OECD

14 Shipbuilding Trade Agreement Act takes effect, into

15 a construction reserve fund established under sub16 section (b)’’.

17 (2) Section 601(a) (46 App. U.S.C. 1171(a)) is

18 amended by striking ‘‘, and that such vessel or ves19 sels were built in the United States, or have been

20 documented under the laws of the United States not

21 later than February 1, 1928, or actually ordered and

22 under construction for the account of citizens of the

23 United States prior to such date;’’ and inserting

24 ‘‘and that such vessel or vessels were built in the

25 United States, or, if the vessel or vessels are Ship-
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1 building Agreement vessels, in a Shipbuilding Agree2 ment Party;’’.

3 (3) Section 606(6) (46 App. U.S.C. 1176(6)) is

4 amended by inserting ‘‘or, if the vessel is a Ship5 building Agreement vessel, in a Shipbuilding Agree6 ment Party or in the United States,’’ before ‘‘, ex7 cept in an emergency.’’.

8 (4) Section 607 (46 App. U.S.C. 1177) is

9 amended as follows:

10 (A) Subsection (a) is amended by inserting

11 ‘‘or, if the vessel is a Shipbuilding Agreement

12 vessel, in a Shipbuilding Agreement Party,’’

13 after ‘‘built in the United States’’.

14 (B) Subsection (k) is amended as follows:

15 (i) Paragraph (1) is amended by

16 striking subparagraph (A) and inserting

17 the following:

18 ‘‘(A)(i) constructed in the United States

19 and, if reconstructed, reconstructed in the Unit20 ed States or in a Shipbuilding Agreement

21 Party, or

22 ‘‘(ii) that is a Shipbuilding Agreement ves23 sel and is constructed in a Shipbuilding Agree24 ment Party and, if reconstructed, is recon-
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1 structed in a Shipbuilding Agreement Party or

2 in the United States,’’.

3 (ii) Paragraph (2)(A) is amended to

4 read as follows:

5 ‘‘(A)(i) constructed in the United States

6 and, if reconstructed, reconstructed in the Unit7 ed States or in a Shipbuilding Agreement

8 Party, or

9 ‘‘(ii) that is a Shipbuilding Agreement ves10 sel and is constructed in a Shipbuilding Agree11 ment Party and, if reconstructed, is recon12 structed in a Shipbuilding Agreement Party or

13 in the United States, but only with regard to

14 moneys deposited into the fund on or after the

15 date on which the OECD Shipbuilding Trade

16 Agreement Act takes effect,’’.

17 (5) Section 610 (46 App. U.S.C. 1180) is

18 amended by striking ‘‘shall be built in a domestic

19 yard or shall have been documented under the laws

20 of the United States not later than February 1,

21 1928, or actually ordered and under construction for

22 the account of citizens of the United States prior to

23 such date,’’ and inserting ‘‘shall be built in the Unit24 ed States or, if the vessel is a Shipbuilding Agree25 ment vessel, in a Shipbuilding Agreement Party,’’.
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1 (6) Section 901(b)(1) (46 App. U.S.C.

2 1241(b)(1)) is amended by striking the third sen3 tence and inserting the following: ‘‘For purposes of

4 this section, the term ‘privately owned United

5 States-flag commercial vessels’ shall be deemed to

6 include—

7 ‘‘(A) any privately owned United States8 flag commercial vessel constructed in the Unit9 ed States, and if rebuilt, rebuilt in the United

10 States or in a Shipbuilding Agreement Party on

11 or after the date on which the OECD Ship12 building Trade Agreement Act takes effect, and

13 ‘‘(B) any privately owned vessel con14 structed in a Shipbuilding Agreement Party on

15 or after the date on which the OECD Ship16 building Trade Agreement Act takes effect, and

17 if rebuilt, rebuilt in a Shipbuilding Agreement

18 Party or in the United States, that is docu19 mented pursuant to chapter 121 of title 46,

20 United States Code.

21 The term ‘privately owned United States-flag com22 mercial vessels’ shall also be deemed to include any

23 cargo vessel that so qualified pursuant to section

24 615 of this Act or this paragraph before the date

25 on which the OECD Shipbuilding Trade Agreement
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1 Act takes effect. The term ‘privately owned United

2 States-flag commercial vessels’ shall not be deemed

3 to include any liquid bulk cargo vessel that does not

4 meet the requirements of section 3703a of title 46,

5 United States Code.’’.

6 (7) Section 905 (46 App. U.S.C. 1244) is

7 amended by adding at the end the following:

8 ‘‘(h) The term ‘Shipbuilding Agreement’ means the

9 Agreement Respecting Normal Competitive Conditions in

10 the Commercial Shipbuilding and Repair Industry, which

11 resulted from negotiations under the auspices of the Orga12 nization for Economic Cooperation and Development, and

13 was entered into on December 21, 1994.

14 ‘‘(i) The term ‘Shipbuilding Agreement Party’ means

15 a state or separate customs territory that is a Party to

16 the Shipbuilding Agreement, and with respect to which the

17 United States applies the Shipbuilding Agreement.

18 ‘‘(j) The term ‘Shipbuilding Agreement vessel’ means

19 a vessel to which the Secretary determines Article 2.1 of

20 the Shipbuilding Agreement applies.

21 ‘‘(k) The term ‘Export Credit Understanding’ means

22 the Understanding on Export Credits for Ships which re23 sulted from negotiations under the auspices of the Organi24 zation for Economic Cooperation and Development and

25 was entered into on December 21, 1994.
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1 ‘‘(l) The term ‘Export Credit Understanding vessel’

2 means a vessel to which the Secretary determines the Ex3 port Credit Understanding applies.

4 ‘‘(m) The term ‘integrated tug-barge’ has the mean5 ing given such term in section 466(i) of the Tariff Act

6 of 1930 (19 U.S.C. 1466(i)).’’.

7 (8) Section 1104A (46 App. U.S.C. 1274) is

8 amended—

9 (A) in subsection (b), by amending para10 graph (5) to read as follows:

11 ‘‘(5) shall bear interest (exclusive of charges for

12 the guarantee and service charges, if any) at rates

13 not to exceed such percent per annum on the unpaid

14 principal as the Secretary determines to be reason15 able, taking into account the range of interest rates

16 prevailing in the private market for similar loans

17 and the risks assumed by the Secretary, except that,

18 with respect to Export Credit Understanding vessels,

19 and Shipbuilding Agreement vessels, the obligations

20 shall bear interest at a rate the Secretary determines

21 to be consistent with obligations of the United

22 States under the Export Credit Understanding or

23 the Shipbuilding Agreement, as the case may be;’’;

24 (B) by amending subsection (i) to read as

25 follows:
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1 ‘‘(i)(1) Except as provided in paragraph (2), the Sec2 retary may not, with respect to—

3 ‘‘(A) the general 75 percent or less limitation

4 contained in subsection (b)(2),

‘‘(B) the 871 5 ⁄2 percent or less limitation con6 tained in the 1st, 2nd, 4th, or 5th proviso to sub7 section (b)(2) or in section 1112(b), or

8 ‘‘(C) the 80 percent or less limitation in the 3rd

9 proviso to subsection (b)(2),

10 establish by rule, regulation, or procedure any percentage

11 within any such limitation that is, or is intended to be,

12 applied uniformly to all guarantees or commitments to

13 guarantee made under this section that are subject to the

14 limitation.

15 ‘‘(2) With respect to Export Credit Understanding

16 vessels and Shipbuilding Agreement vessels, the Secretary

17 may establish by rule, regulation, or procedure a uniform

18 percentage that the Secretary determines to be consistent

19 with obligations of the United States under the Export

20 Credit Understanding or the Shipbuilding Agreement, as

21 the case may be.’’; and

22 (C) by adding at the end the following new

23 subsection:

24 ‘‘(k) The Secretary shall establish by rule, regulation,

25 or procedure a uniform percentage with respect to inte-
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1 grated tug-barges that the Secretary determines to be con2 sistent with the percentages applied with respect to Export

3 Credit Understanding vessels and Shipbuilding Agreement

4 vessels under subsections (b)(5) and (i)(2).’’.

5 (9) Section 1104B(b) (46 App. U.S.C.

6 1274a(b)) is amended by striking the period at the

7 end and inserting the following: ‘‘, except that, with

8 respect to Export Credit Understanding vessels and

9 Shipbuilding Agreement vessels, the Secretary may

10 establish by rule, regulation, or procedure a uniform

11 percentage that the Secretary determines to be con12 sistent with obligations of the United States under

13 the Export Credit Understanding or the Shipbuild14 ing Agreement, as the case may be. With respect to

15 integrated tug-barges, the Secretary shall establish

16 by rule, regulation, or procedure a uniform percent17 age that the Secretary determines to be consistent

18 with the percentages applied with respect to Export

19 Credit Understanding vessels and Shipbuilding

20 Agreement vessels pursuant to the preceding sen21 tence.’’.

22 SEC. 115. APPLICABILITY OF TITLE XI AMENDMENTS.

23 (a) EFFECTIVE DATE.—

24 (1) IN GENERAL.—Notwithstanding any provi25 sion of the Shipbuilding Agreement or the Export
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1 Credit Understanding, the amendments made by

2 paragraphs (9) and (10) (8) and (9) of section 114

3 shall not apply with respect to any commitment to

4 guarantee made under title XI of the Merchant Ma5 rine Act, 1936, before January 1, 2000, January 1,

6 2001, with respect to a vessel delivered—

7 (A) before January 1, 2003, January 1,

8 2004, or

9 (B) in the case of unusual circumstances

10 (as described in paragraph (2)), as soon after

11 December 31, 2002, December 31, 2003, as

12 practicable.

13 (2) UNUSUAL CIRCUMSTANCES DESCRIBED.—

14 As used in this subsection, the term ‘‘unusual cir15 cumstances’’ means an act of God (other than ordi16 nary storms or inclement weather conditions) labor

17 strikes, acts of sabotage, explosions, fires, or vandal18 ism, and similar circumstances beyond the control of

19 the parties concerned which prevent the delivery of

20 a vessel before January 1, 2003. January 1, 2004.

21 (b) MATCHING COMPETITION BY NONMEMBERS.—

22 Section 114 shall not prevent the Secretary of Transpor23 tation from exercising the Secretary’s full discretion and

24 authority under title XI of the Merchant Marine Act,

25 1936, consistent with clause 8 and Annex III of the Ex-
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1 port Credit Understanding, to assist United States ship2 yards in meeting unfairly subsidized bids by foreign yards

3 in countries not covered by the Shipbuilding Agreement.

4 SEC. 116. MONITORING AND ENFORCEMENT.

5 (a) IN GENERAL.—The United States Trade Rep6 resentative shall establish a program to monitor the com7 pliance of Shipbuilding Agreement Parties with their obli8 gations under the Shipbuilding Agreement. The program

9 shall include—

10 (1) the establishment of a task force composed

11 of representatives of the Departments of Commerce,

12 Labor, State, Transportation, and other appropriate

13 agencies;

14 (2) coordination of gathering and analysis of

15 relevant information;

16 (3) consultation with United States embassies

17 located in countries that are Shipbuilding Agreement

18 Parties to assist in obtaining information that is

19 publicly available on the policies and practices in

20 those countries;

21 (4) regular consultations with representatives of

22 industry, labor, and other interested parties regard23 ing policies and practices of Shipbuilding Agreement

24 Parties and of other countries with significant com25 mercial shipbuilding industries;
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1 (5) annual publication of a notice in the Fed2 eral Register affording an opportunity for interested

3 parties to comment on the implementation of the

4 Shipbuilding Agreement; and

5 (6) taking of any other appropriate action to

6 monitor compliance of Shipbuilding Agreement Par7 ties.

8 (b) REPORT TO CONGRESS.—Before the end of each

9 12-month period in which the United States is a Party

10 to the Shipbuilding Agreement, the United States Trade

11 Representative shall report to Congress on—

12 (1) the activities undertaken as part of its mon13 itoring program;

14 (2) the results of its consultations under sub15 section (a)(4); and

16 (3) compliance with the provisions of the Ship17 building Agreement.

18 (c) ACTION IF VIOLATION.—If the United States

19 Trade Representative receives information, including in20 formation provided by representatives of industry, labor,

21 and other interested parties, indicating that a Shipbuild22 ing Agreement Party is in material violation of the Ship23 building Agreement in a manner that is detrimental to the

24 interests of the United States, the United States Trade

25 Representative should use vigorously the consultation pro-
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1 cedures under the Shipbuilding Agreement. If the matter

2 is not otherwise resolved, the United States Trade Rep3 resentative should use the dispute settlement procedures

4 under the Shipbuilding Agreement to redress the situa5 tion.

6 SEC. 117. JONES ACT AND RELATED LAWS NOT AFFECTED.

7 (a) IN GENERAL.—Nothing in the Shipbuilding

8 Agreement shall be construed to amend, alter, or modify

9 in any manner the Merchant Marine Act, 1920 (46 App.

10 U.S.C. 861 et seq.), the Act of June 19, 1886 (46 App.

11 U.S.C. 289), or any other provision of law set forth in

12 Accompanying Note 2 to Annex II of the Shipbuilding

13 Agreement. Nor shall the Shipbuilding Agreement be in14 terpreted to undermine the operation or administration of

15 any of the foregoing provisions of law or impede the objec16 tives of such laws.

17 (b) RELATION TO GATT 1994.—Nothing in the

18 Shipbuilding Agreement shall be construed to provide a

19 mechanism for withdrawal of concessions under GATT

20 1994 or any World Trade Organization Agreement because

21 of the construction of vessels by United States ship22 builders for operation in the coastwise trade of the United

23 States.

24 (c) ANNUAL REVIEW; NOTIFICATION.—As part of the

25 annual review of all trade agreements conducted under
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1 section 163 of the Trade Act of 1974, the United States

2 Trade Representative shall—

3 (1) review the impact, if any, of the Shipbuild4 ing Agreement on the operation or implementation

5 of any of the provisions of law listed in subsection

6 (a);

7 (2) in conducting the review, consult with the

8 Secretary of Transportation, the Secretary of De9 fense, United States industry, labor groups, and

10 other interested parties; and

11 (3) report the results of the review to the Presi12 dent and the appropriate committees.

13 SEC. 118. WITHDRAWAL FROM SHIPBUILDING AGREEMENT.

14 (a) WITHDRAWAL BY PRESIDENT.—

15 (1) NOTICE.—The President shall give notice,

16 under Article 14 of the Shipbuilding Agreement, of

17 intent of the United States to withdraw from the

18 Shipbuilding Agreement, as soon as is practicable

19 after one or more Shipbuilding Agreement Parties

20 gives notice, under such Article, of intent to with21 draw from the Shipbuilding Agreement, if the cir22 cumstances described in paragraph (2) apply.

23 (2) TONNAGE OF NEW CONSTRUCTION IN WITH24 DRAWING PARTIES.—The circumstances described in
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1 this paragraph are that the combined gross tonnage

2 of Shipbuilding Agreement vessels that—

3 (A) were constructed in all Shipbuilding

4 Agreement Parties who have given notice to

5 withdraw from the Shipbuilding Agreement,

6 and

7 (B) were delivered in the calendar year

8 preceding the calendar year in which the notice

9 is given,

10 is 15 percent or more of the gross tonnage of Ship11 building Agreement vessels that were constructed in

12 all Shipbuilding Agreement Parties and were deliv13 ered in the calendar year preceding the calendar

14 year in which the notice is given.

15 (3) TERMINATION OF WITHDRAWAL.—If a

16 Shipbuilding Agreement Party described in para17 graph (2) takes action to terminate its withdrawal

18 from the Shipbuilding Agreement, so that paragraph

19 (2) would not apply if that Party had not given the

20 notice to withdraw, the President may take the nec21 essary steps to terminate the notice of withdrawal of

22 the United States from the Shipbuilding Agreement.

23 (b) CONGRESSIONAL RESOLUTION WITHDRAWING

24 APPROVAL OF THE SHIPBUILDING AGREEMENT.—
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1 (1) NOTIFICATION BY THE PRESIDENT.—The

2 President shall notify the appropriate committees as

3 soon as is practicable of any decision by a Shipbuild4 ing Agreement Party to apply responsive measures

5 under the provisions of paragraph 2.e of Annex II

6 B of the Shipbuilding Agreement against the United

7 States and the applicable date of such measures.

8 (2) CONGRESSIONAL ACTION.—If Congress re9 ceives a notification described in paragraph (1), the

10 approval of Congress, provided under section 101 of

11 this Act, shall cease to be effective if, and only if,

12 a joint resolution is enacted into law pursuant to the

13 provisions of paragraphs (3) and (4).

14 (3) PROCEDURAL PROVISIONS.—

15 (A) IN GENERAL.—The requirements of

16 this paragraph are met if a joint resolution is

17 adopted under paragraph (4), and—

18 (i) Congress transmits the joint reso19 lution to the President before the end of

20 the 90-day period, beginning on the appli21 cable date referred to in paragraph (1),

22 and

23 (ii) if the President vetoes the joint

24 resolution, each House of Congress votes
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1 to override that veto on or before the later

2 of—

3 (I) the last day of the 90-day pe4 riod referred to in clause (i), or

5 (II) the last day of the 15-day

6 period beginning on the date on which

7 Congress receives the veto message

8 from the President.

9 (B) INTRODUCTION.—A joint resolution to

10 which this subsection applies may be introduced

11 at any time on or after the applicable date re12 ferred to in paragraph (1).

13 (4) JOINT RESOLUTION.—

14 (A) JOINT RESOLUTION.—For purposes of

15 this subsection, the term ‘‘joint resolution’’

16 means only a joint resolution of the 2 Houses

17 of Congress, the matter after the resolving

18 clause of which is as follows: ‘‘That Congress

19 withdraws its approval, provided under section

20 101 of the OECD Shipbuilding Trade Agree21 ment Act, of the Shipbuilding Agreement de22 scribed in section 101 of that Act.’’.

23 (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 Nothing in the Shipbuilding Agreement shall be con17 strued to prevent the United States from taking any action

18 which the United States considers necessary for the protec19 tion of the essential security interests of the United States,

20 including invoking its sovereign authority to define, for

21 purposes of exclusion from coverage under the Shipbuilding

22 Agreement and from any dispute or challenge based on

23 Annex I to the Shipbuilding Agreement, ‘‘military vessel’’,

24 ‘‘military reserve vessel’’, and ‘‘essential security interest’’,

25 on a case-by-case basis, as determined by the Secretary of

26 Defense.
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1 SEC. 121. DEFINITIONS.

2 In this subtitle:

3 (1) COMMITTEE OF EITHER HOUSE TO WHICH A

4 JOINT RESOLUTION HAS BEEN REFERRED.—The term

5 ‘‘a committee of either House to which a joint resolu6 tion has been referred’’ means the Senate Committee

7 on Commerce, Science, and Transportation, the Sen8 ate Committee on Finance, the House Committee on

9 National Security, or the House Committee on Ways

10 and Means.

11 (1) (2) APPROPRIATE COMMITTEES.—The term

12 ‘‘appropriate committees’’ means the Committees on

13 Finance and Commerce, Science, and Transpor14 tation of the Senate, and the Committees on Ways

15 and Means and National Security of the House of

16 Representatives.

17 (2) (3) SHIPBUILDING AGREEMENT, ETC.—The

18 terms ‘‘Shipbuilding Agreement’’, ‘‘Shipbuilding

19 Agreement Party’’, ‘‘Shipbuilding Agreement ves20 sels’’, and ‘‘Export Credit Understanding’’ have the

21 meanings given those terms in subsections (h), (i),

22 (j), and (k), respectively, of section 905 of the Mer23 chant Marine Act, 1936, as added by section 114(8)

24 114(7) of this Act.
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1 (3) (4) GATT 1994.—The term ‘‘GATT 1994’’

2 has the meaning given that term in section 2 of the

3 Uruguay Round Agreements Act (19 U.S.C. 3501).

4 (4) (5) MILITARY VESSEL.—The term ‘‘military

5 vessel’’ means a vessel that, according to its basic

6 structural characteristics and ability, is intended to

7 be used exclusively for military purposes.

8 (5) (6) MILITARY RESERVE VESSEL.—The term

9 ‘‘military reserve vessel’’ means a vessel that has

10 been constructed with national defense features and

11 characteristics required by the Secretary of Defense

12 for the purpose of supporting the United States

13 Armed Forces in a contingency, if the vessel (with14 out regard to such features and characteristics) is

15 otherwise subject to the terms and conditions of the

16 Shipbuilding Agreement.

17 SEC. 122. CAPITAL CONSTRUCTION FUND CONFORMING

18 AMENDMENT.

19 Subsection (i) of section 7518 of the Internal Reve20 nue Code of 1986 is amended by inserting before the pe21 riod the following: ‘‘, except that in the case of the terms

22 ‘eligible vessel’ and ‘qualified vessel’, the amendments to

23 such section by the OECD Shipbuilding Trade Agreement

24 Act shall be taken into account’’.
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1 Subtitle C—Effective Date

2 SEC. 131. EFFECTIVE DATE.

3 (a) IN GENERAL.—Except as otherwise provided in

4 this title, this title and the amendments made by this title

5 take effect on the date that the Shipbuilding Agreement

6 enters into force with respect to the United States.

7 (b) TERMINATION OF TITLE AND AMENDMENTS.—

8 This title and the amendments made by this title shall

9 cease to be effective on the date the withdrawal of the

10 United States from the Shipbuilding Agreement becomes

11 effective.

12 TITLE II—INTERNATIONAL

13 SHIPPING INCOME DISCLOSURE

14 SEC. 201. PENALTIES FOR FAILURE TO DISCLOSE POSITION

15 THAT CERTAIN INTERNATIONAL SHIPPING

16 INCOME IS NOT INCLUDIBLE IN GROSS IN17 COME.

18 (a) IN GENERAL.—Section 883 of the Internal Reve19 nue Code of 1986 is amended by adding at the end the

20 following new subsection:

21 ‘‘(d) PENALTIES FOR FAILURE TO DISCLOSE POSI22 TION THAT CERTAIN INTERNATIONAL SHIPPING INCOME

23 IS NOT INCLUDIBLE IN GROSS INCOME.—

24 ‘‘(1) IN GENERAL.—A taxpayer who, with re25 spect to any tax imposed by this title, takes the posi-
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1 tion that any of its gross income derived from the

2 international operation of a ship or ships is not in3 cludible in gross income by reason of subsection

4 (a)(1) or section 872(b)(1) (or by reason of any ap5 plicable treaty) shall be entitled to such treatment

6 only if such position is disclosed (in such manner as

7 the Secretary may prescribe) on the return of tax for

8 such tax (or any statement attached to such return).

9 ‘‘(2) ADDITIONAL PENALTIES FOR FAILING TO

10 DISCLOSE POSITION.—If a taxpayer fails to meet the

11 requirement of paragraph (1) with respect to any

12 taxable year—

13 ‘‘(A) the amount of the income from the

14 international operation of a ship or ships—

15 ‘‘(i) which is from sources without the

16 United States, and

17 ‘‘(ii) which is attributable to a fixed

18 place of business in the United States,

19 shall be treated for purposes of this title as ef20 fectively connected with the conduct of a trade

21 or business within the United States, and

22 ‘‘(B) no deductions or credits shall be al23 lowed which are attributable to income from the

24 international operation of a ship or ships.
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1 ‘‘(3) REASONABLE CAUSE EXCEPTION.—This

2 subsection shall not apply to a failure to disclose a

3 position if it is shown that such failure is due to rea4 sonable cause and not due to willful neglect.’’

5 (b) CONFORMING AMENDMENTS.—

6 (1) Paragraph (1) of section 872(b) of such

7 Code is amended by striking ‘‘Gross income’’ and in8 serting ‘‘Except as provided in section 883(d), gross

9 income’’.

10 (2) Paragraph (1) of section 883(a) of such

11 Code is amended by striking ‘‘Gross income’’ and in12 serting ‘‘Except as provided in subsection (d), gross

13 income’’.

14 (c) EFFECTIVE DATE.—

15 (1) IN GENERAL.—The amendments made by

16 this section shall apply to taxable years beginning

17 after December 31, 1997.

18 (2) COORDINATION WITH TREATIES.—The

19 amendments made by this section shall not apply in

20 any case where their application would be contrary

21 to any treaty obligation of the United States.

22 (d) INFORMATION TO BE PROVIDED BY CUSTOMS

23 SERVICE.—The United States Custom Service shall pro24 vide the Secretary of the Treasury or his delegate with

25 such information as may be specified by such Secretary
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1 in order to enable such Secretary to determine whether

2 ships which are not registered in the United States are

3 engaged in transportation to or from the United States.