ject vessel for selling, general, and adminis-
trative expenses, and for profits, in connec-
tion with the production and sale of the
same general category of vessel in the do-
mestic market of the country of origin of the
subject vessel,
‘‘(II) the weighted average of the actual
amounts incurred and realized by producers
in the country of origin of the subject vessel
(other than the producer of the subject ves-
sel) for selling, general, and administrative
expenses, and for profits, in connection with
the production and sale of a foreign like
vessel, in the ordinary course of trade, in
the domestic market, or
‘‘(III) if data are not available under
subclause (I) or (II), the amounts incurred
and realized for selling, general, and ad-
ministrative expenses, and for profits, based
on any other reasonable method, except that
the amount allowed for profit may not ex-
ceed the amount normally realized by for-
eign producers (other than the producer of
the subject vessel) in connection with the
sale of vessels in the same general category
of vessel as the subject vessel in the domestic
market of the country of origin of the sub-
ject vessel.
For purposes of this paragraph, the profit shall be
based on the average profit realized over a reasonable
period of time before and after the sale of the subject
vessel and shall reflect a reasonable profit at the time
of such sale. For purposes of the preceding sentence,
a ‘reasonable period of time’ shall not, except where
otherwise appropriate, exceed 6 months before, or 6
months after, the sale of the subject vessel. In calculat-
ing profit under this paragraph, any distortion which
would result in other than a profit which is reason-
able at the time of the sale shall be eliminated.
‘‘(2) COSTS AND PROFITS BASED ON OTHER REA-
SONABLE METHODS.—When costs and profits are de-
termined under paragraph (1)(B)(ii)(III), such deter-
mination shall, except where otherwise appropriate,
be based on appropriate export sales by the producer
of the subject vessel or, absent such sales, to export
sales by other producers of a foreign like vessel or the
same general category of vessel as the subject vessel in
the country of origin of the subject vessel.
‘‘(3) COSTS
OF
MATERIALS.—For purposes of
paragraph (1)(A), the cost of materials shall be deter-
mined without regard to any internal tax in the ex-
porting country imposed on such materials or their
disposition which are remitted or refunded upon ex-
portation of the subject vessel produced from such ma-
terials.
‘‘(f) SPECIAL RULES FOR CALCULATION OF COST OF
PRODUCTION
AND
FOR CALCULATION
OF CONSTRUCTED
VALUE.—For purposes of subsections (b) and (e)—
‘‘(1) COSTS.—
‘‘(A) IN GENERAL.—Costs shall normally be
calculated based on the records of the foreign
producer of the subject vessel, if such records are
kept in accordance with the generally accepted
accounting principles of the exporting country
and reasonably reflect the costs associated with
the production and sale of the vessel. The admin-
istering authority shall consider all available
evidence on the proper allocation of costs, includ-
ing that which is made available by the foreign
producer on a timely basis, if such allocations
have been historically used by the foreign pro-
ducer, in particular for establishing appropriate
amortization and depreciation periods, and al-
lowances for capital expenditures and other de-
velopment costs.
‘‘(B) NONRECURRING COSTS.—Costs shall be
adjusted appropriately for those nonrecurring
costs that benefit current or future production, or
both.
‘‘(C) STARTUP COSTS.—
‘‘(i) IN GENERAL.—Costs shall be ad-
justed appropriately for circumstances in
which costs incurred during the time period
covered by the investigation are affected by
startup operations.
‘‘(ii) STARTUP
OPERATIONS.—Adjust-
ments shall be made for startup operations
only where—
‘‘(I) a producer is using new pro-
duction facilities or producing a new
type of vessel that requires substantial
additional investment, and
‘‘(II) production levels are limited
by technical factors associated with the
initial phase of commercial produc-
tion.
For purposes of subclause (II), the initial
phase of commercial production ends at the
end of the startup period. In determining
whether commercial production levels have
been achieved, the administering authority
shall consider factors unrelated to startup
operations that might affect the volume of
production processed, such as demand,
seasonality, or business cycles.
‘‘(iii) ADJUSTMENT FOR STARTUP OP-
ERATIONS.—The adjustment for startup op-
erations shall be made by substituting the
unit production costs incurred with respect
to the vessel at the end of the startup period
for the unit production costs incurred dur-
ing the startup period. If the startup period
extends beyond the period of the investiga-
tion under this title, the administering au-
thority shall use the most recent cost of pro-
duction data that it reasonably can obtain,
analyze, and verify without delaying the
timely completion of the investigation.
For purposes of this subparagraph, the startup
period ends at the point at which the level of
commercial production that is characteristic of
the vessel, the producer, or the industry is
achieved.
‘‘(D) COSTS DUE TO EXTRAORDINARY CIR-
CUMSTANCES
NOT
INCLUDED.—Costs shall not
include actual costs which are due to extraor-
dinary circumstances (including, but not limited
to, labor disputes, fire, and natural disasters)
and which are significantly over the cost in-
crease which the shipbuilder could have reason-
ably anticipated and taken into account at the
time of sale.
‘‘(2) TRANSACTIONS
DISREGARDED.—A trans-
action directly or indirectly between affiliated persons
may be disregarded if, in the case of any element of
value required to be considered, the amount represent-
ing that element does not fairly reflect the amount
usually reflected in sales of a like vessel in the market
under consideration. If a transaction is disregarded
under the preceding sentence and no other trans-
actions are available for consideration, the determina-
tion of the amount shall be based on the information
available as to what the amount would have been if
the transaction had occurred between persons who are
not affiliated.
‘‘(3) MAJOR INPUT RULE.—If, in the case of a
transaction between affiliated persons involving the
production by one of such persons of a major input
to the subject vessel, the administering authority has
reasonable grounds to believe or suspect that an
amount represented as the value of such input is less
than the cost of production of such input, then the ad-
ministering authority may determine the value of the
major input on the basis of the information available
regarding such cost of production, if such cost is
greater than the amount that would be determined for
such input under paragraph (2).
‘‘SEC. 823. CURRENCY CONVERSION.
‘‘(a) IN GENERAL.—In an injurious pricing proceed-
ing under this title, the administering authority shall con-
vert foreign currencies into United States dollars using the
exchange rate in effect on the date of sale of the subject ves-
sel, except that if it is established that a currency trans-
action on forward markets is directly linked to a sale under
consideration, the exchange rate specified with respect to
such foreign currency in the forward sale agreement shall
be used to convert the foreign currency.
‘‘(b) DATE OF SALE.—For purposes of this section,
‘date of sale’ means the date of the contract of sale or, where
appropriate, the date on which the material terms of sale
are otherwise established. If the material terms of sale are
significantly changed after such date, the date of sale is the
date of such change. In the case of such a change in the
date of sale, the administering authority shall make appro-
priate adjustments to take into account any unreasonable
effect on the injurious pricing margin due only to fluctua-
tions in the exchange rate between the original date of sale
and the new date of sale.
‘‘Subtitle C—Procedures
‘‘SEC. 841. HEARINGS.
‘‘(a) UPON REQUEST.—The administering authority
and the Commission shall each hold a hearing in the course
of an investigation under this title, upon the request of any
party to the investigation, before making a final determina-
tion under section 805.
‘‘(b) PROCEDURES.—Any hearing required or per-
mitted under this title shall be conducted after notice pub-
lished in the Federal Register, and a transcript of the hear-
ing shall be prepared and made available to the public. The
hearing shall not be subject to the provisions of subchapter
II of chapter 5 of title 5, United States Code, or to section
702 of such title.
‘‘SEC. 842. DETERMINATIONS ON THE BASIS OF THE FACTS
AVAILABLE.
‘‘(a) IN GENERAL.—If—
‘‘(1) necessary information is not available on
the record, or
‘‘(2) an interested party or any other person—
‘‘(A) withholds information that has been
requested by the administering authority or the
Commission under this title,
‘‘(B) fails to provide such information by
the deadlines for the submission of the informa-
tion or in the form and manner requested, sub-
ject to subsections (b)(1) and (d) of section 844,
‘‘(C) significantly impedes a proceeding
under this title, or
‘‘(D) provides such information but the in-
formation cannot be verified as provided in sec-
tion 844(g),
the administering authority and the Commission
shall, subject to section 844(c), use the facts otherwise
available in reaching the applicable determination
under this title.
‘‘(b) ADVERSE INFERENCES.—If the administering au-
thority or the Commission (as the case may be) finds that
an interested party has failed to cooperate by not acting
to the best of its ability to comply with a request for infor-
mation from the administering authority or the Commis-
sion, the administering authority or the Commission (as
the case may be), in reaching the applicable determination
under this title, may use an inference that is adverse to
the interests of that party in selecting from among the facts
otherwise available. Such adverse inference may include re-
liance on information derived from—
‘‘(1) the petition, or
‘‘(2) any other information placed on the record.
‘‘(c) CORROBORATION
OF
SECONDARY
INFORMA-
TION.—When the administering authority or the Commis-
sion relies on secondary information rather than on infor-
mation obtained in the course of an investigation under this
title, the administering authority and the Commission, as
the case may be, shall, to the extent practicable, corroborate
that information from independent sources that are reason-
ably at their disposal.
‘‘SEC. 843. ACCESS TO INFORMATION.
‘‘(a) INFORMATION GENERALLY MADE AVAILABLE.—
‘‘(1) PROGRESS OF INVESTIGATION REPORTS.—
The administering authority and the Commission
shall, from time to time upon request, inform the par-
ties to an investigation under this title of the progress
of that investigation.
‘‘(2) EX PARTE MEETINGS.—The administering
authority and the Commission shall maintain a
record of any ex parte meeting between—
‘‘(A) interested parties or other persons pro-
viding factual information in connection with a
proceeding under this title, and
‘‘(B) the person charged with making the
determination, or any person charged with mak-
ing a final recommendation to that person, in
connection with that proceeding,
if information relating to that proceeding was pre-
sented or discussed at such meeting. The record of
such an ex parte meeting shall include the identity of
the persons present at the meeting, the date, time, and
place of the meeting, and a summary of the matters
discussed or submitted. The record of the ex parte
meeting shall be included in the record of the proceed-
ing.
‘‘(3) SUMMARIES; 
NONPROPRIETARY
SUBMIS-
SIONS.—The administering authority and the Com-
mission shall disclose—
‘‘(A) any proprietary information received
in the course of a proceeding under this title if
it is disclosed in a form which cannot be associ-
ated with, or otherwise be used to identify, oper-
ations of a particular person, and
‘‘(B) any information submitted in connec-
tion with a proceeding which is not designated
as proprietary by the person submitting it.
‘‘(4) MAINTENANCE
OF
PUBLIC
RECORD.—The
administering authority and the Commission shall
maintain and make available for public inspection
and copying a record of all information which is ob-
tained by the administering authority or the Commis-
sion, as the case may be, in a proceeding under this
title to the extent that public disclosure of the infor-
mation is not prohibited under this chapter or exempt
from disclosure under section 552 of title 5, United
States Code.
‘‘(b) PROPRIETARY INFORMATION.—
‘‘(1) PROPRIETARY STATUS MAINTAINED.—
‘‘(A) IN GENERAL.—Except as provided in
subsection (a)(4) and subsection (c), information
submitted to the administering authority or the
Commission which is designated as proprietary
by the person submitting the information shall
not be disclosed to any person without the con-
sent of the person submitting the information,
other than—
‘‘(i) to an officer or employee of the ad-
ministering authority or the Commission
who is directly concerned with carrying out
the investigation in connection with which
the information is submitted or any other
proceeding under this title covering the
same subject vessel, or
‘‘(ii) to an officer or employee of the
United States Customs Service who is di-
rectly involved in conducting an investiga-
tion regarding fraud under this title.
‘‘(B) 
ADDITIONAL
REQUIREMENTS.—The
administering authority and the Commission
shall require that information for which propri-
etary treatment is requested be accompanied
by—
‘‘(i) either—
‘‘(I) a nonproprietary summary
in sufficient detail to permit a reason-
able understanding of the substance of
the information submitted in con-
fidence, or
‘‘(II) a statement that the infor-
mation is not susceptible to summary,
accompanied by a statement of the rea-
sons in support of the contention, and
‘‘(ii) either—
‘‘(I) a statement which permits
the administering authority or the
Commission to release under adminis-
trative protective order, in accordance
with subsection (c), the information
submitted in confidence, or
‘‘(II) a statement to the admin-
istering authority or the Commission
that the business proprietary informa-
tion is of a type that should not be re-
leased under administrative protective
order.
‘‘(2) UNWARRANTED DESIGNATION.—If the ad-
ministering authority or the Commission determines,
on the basis of the nature and extent of the informa-
tion or its availability from public sources, that des-
ignation of any information as proprietary is unwar-
ranted, then it shall notify the person who submitted
it and ask for an explanation of the reasons for the
designation. Unless that person persuades the admin-
istering authority or the Commission that the des-
ignation is warranted, or withdraws the designation,
the administering authority or the Commission, as
the case may be, shall return it to the party submit-
ting it. In a case in which the administering author-
ity or the Commission returns the information to the
person submitting it, the person may thereafter sub-
mit other material concerning the subject matter of
the returned information if the submission is made
within the time otherwise provided for submitting
such material.
‘‘(c) LIMITED DISCLOSURE OF CERTAIN PROPRIETARY
INFORMATION UNDER PROTECTIVE ORDER.—
‘‘(1) DISCLOSURE BY ADMINISTERING AUTHOR-
ITY OR COMMISSION.—
‘‘(A) IN GENERAL.—Upon receipt of an ap-
plication (before or after receipt of the informa-
tion requested) which describes in general terms
the information requested and sets forth the rea-
sons for the request, the administering authority
or the Commission shall make all business pro-
prietary information presented to, or obtained by
it, during a proceeding under this title (except
privileged information, classified information,
and specific information of a type for which
there is a clear and compelling need to withhold
from disclosure) available to all interested par-
ties who are parties to the proceeding under a
protective order described in subparagraph (B),
regardless of when the information is submitted
during the proceeding. Customer names (other
than the name of the United States buyer of the
subject vessel) obtained during any investigation
which requires a determination under section
805(b) may not be disclosed by the administering
authority under protective order until either an
order is published under section 806(a) as a re-
sult of the investigation or the investigation is
suspended or terminated. The Commission may
delay disclosure of customer names (other than
the name of the United States buyer of the sub-
ject vessel) under protective order during any
such investigation until a reasonable time before
any hearing provided under section 841 is held.
‘‘(B) PROTECTIVE ORDER.—The protective
order under which information is made available
shall contain such requirements as the admin-
istering authority or the Commission may deter-
mine by regulation to be appropriate. The ad-
ministering authority and the Commission shall
provide by regulation for such sanctions as the
administering authority and the Commission de-
termine to be appropriate, including disbarment
from practice before the agency.
‘‘(C) TIME
LIMITATIONS
ON
DETERMINA-
TIONS.—The administering authority or the
Commission, as the case may be, shall determine
whether to make information available under
this paragraph—
100
‘‘(i) not later than 14 days (7 days if
the submission pertains to a proceeding
under section 803(a)) after the date on
which the information is submitted, or
‘‘(ii) if—
‘‘(I) the person that submitted the
information raises objection to its re-
lease, or
‘‘(II) the information is unusually
voluminous or complex,
not later than 30 days (10 days if the sub-
mission pertains to a proceeding under sec-
tion 803(a)) after the date on which the in-
formation is submitted.
‘‘(D) AVAILABILITY
AFTER
DETERMINA-
TION.—If the determination under subparagraph
(C) is affirmative, then—
‘‘(i) the business proprietary informa-
tion submitted to the administering author-
ity or the Commission on or before the date
of the determination shall be made avail-
able, subject to the terms and conditions of
the protective order, on such date, and
‘‘(ii) the business proprietary informa-
tion submitted to the administering author-
101
ity or the Commission after the date of the
determination shall be served as required by
subsection (d).
‘‘(E) FAILURE TO DISCLOSE.—If a person
submitting information to the administering au-
thority refuses to disclose business proprietary
information which the administering authority
determines should be released under a protective
order described in subparagraph (B), the admin-
istering authority shall return the information,
and any nonconfidential summary thereof, to the
person submitting the information and summary
and shall not consider either.
‘‘(2) DISCLOSURE UNDER COURT ORDER.—If the
administering authority or the Commission denies a
request for information under paragraph (1), then
application may be made to the United States Court
of International Trade for an order directing the ad-
ministering authority or the Commission, as the case
may be, to make the information available. After no-
tification of all parties to the investigation and after
an opportunity for a hearing on the record, the court
may issue an order, under such conditions as the
court deems appropriate, which shall not have the ef-
fect of stopping or suspending the investigation, di-
102
recting the administering authority or the Commis-
sion to make all or a portion of the requested infor-
mation described in the preceding sentence available
under a protective order and setting forth sanctions
for violation of such order if the court finds that,
under the standards applicable in proceedings of the
court, such an order is warranted, and that—
‘‘(A) the administering authority or the
Commission has denied access to the information
under subsection (b)(1),
‘‘(B) the person on whose behalf the infor-
mation is requested is an interested party who is
a party to the investigation in connection with
which the information was obtained or devel-
oped, and
‘‘(C) the party which submitted the infor-
mation to which the request relates has been no-
tified, in advance of the hearing, of the request
made under this section and of its right to ap-
pear and be heard.
‘‘(d) SERVICE.—Any party submitting written infor-
mation, including business proprietary information, to the
administering authority or the Commission during a pro-
ceeding shall, at the same time, serve the information upon
all interested parties who are parties to the proceeding, if
103
the information is covered by a protective order. The ad-
ministering authority or the Commission shall not accept
any such information that is not accompanied by a certifi-
cate of service and a copy of the protective order version
of the document containing the information. Business pro-
prietary information shall only be served upon interested
parties who are parties to the proceeding that are subject
to protective order, except that a nonconfidential summary
thereof shall be served upon all other interested parties who
are parties to the proceeding.
‘‘(e) INFORMATION RELATING TO VIOLATIONS OF PRO-
TECTIVE ORDERS AND SANCTIONS.—The administering au-
thority and the Commission may withhold from disclosure
any correspondence, private letters of reprimand, settlement
agreements, and documents and files compiled in relation
to investigations and actions involving a violation or pos-
sible violation of a protective order issued under subsection
(c), and such information shall be treated as information
described in section 552(b)(3) of title 5, United States Code.
‘‘(f) OPPORTUNITY FOR COMMENT BY VESSEL BUY-
ERS.—The administering authority and the Commission
shall provide an opportunity for buyers of subject vessels
to submit relevant information to the administering author-
ity concerning a sale at less than fair value or counter-
104
measures, and to the Commission concerning material in-
jury by reason of the sale of a vessel at less than fair value.
‘‘(g) PUBLICATION OF DETERMINATIONS; REQUIRE-
MENTS FOR FINAL DETERMINATIONS.—
‘‘(1) IN GENERAL.—Whenever the administering
authority makes a determination under section 802
whether to initiate an investigation, or the admin-
istering authority or the Commission makes a pre-
liminary determination under section 803, a final de-
termination under section 805, a determination under
subsection (b), (c), (d), (e)(3)(B)(ii), (g), or (i) of sec-
tion 807, or a determination to suspend an investiga-
tion under this title, the administering authority or
the Commission, as the case may be, shall publish the
facts and conclusions supporting that determination,
and shall publish notice of that determination in the
Federal Register.
‘‘(2) CONTENTS
OF
NOTICE
OR
DETERMINA-
TION.—The notice or determination published under
paragraph (1) shall include, to the extent applica-
ble—
‘‘(A) in the case of a determination of the
administering authority—
105
‘‘(i) the names of the United States
buyer and the foreign producer, and the
country of origin of the subject vessel,
‘‘(ii) a description sufficient to identify
the subject vessel (including type, purpose,
and size),
‘‘(iii) with respect to an injurious
pricing charge, the injurious pricing mar-
gin established and a full explanation of the
methodology used in establishing such mar-
gin,
‘‘(iv) with respect to countermeasures,
the scope and duration of countermeasures
and, if applicable, any changes thereto, and
‘‘(v) the primary reasons for the deter-
mination, and
‘‘(B) in the case of a determination of the
Commission—
‘‘(i) considerations relevant to the de-
termination of injury, and
‘‘(ii) the primary reasons for the deter-
mination.
‘‘(3) ADDITIONAL REQUIREMENTS FOR FINAL DE-
TERMINATIONS.—In addition to the requirements set
forth in paragraph (2)—
106
‘‘(A) the administering authority shall in-
clude in a final determination under section 805
or 807(c) an explanation of the basis for its de-
termination that addresses relevant arguments,
made by interested parties who are parties to the
investigation, concerning the establishment of the
injurious pricing charge with respect to which
the determination is made, and
‘‘(B) the Commission shall include in a
final determination of injury an explanation of
the basis for its determination that addresses rel-
evant arguments that are made by interested
parties who are parties to the investigation con-
cerning the effects and impact on the industry of
the sale of the subject vessel.
‘‘SEC. 844. CONDUCT OF INVESTIGATIONS.
‘‘(a) CERTIFICATION OF SUBMISSIONS.—Any person
providing factual information to the administering author-
ity or the Commission in connection with a proceeding
under this title on behalf of the petitioner or any other in-
terested party shall certify that such information is accu-
rate and complete to the best of that person’s knowledge.
‘‘(b) DIFFICULTIES IN MEETING REQUIREMENTS.—
‘‘(1) NOTIFICATION BY INTERESTED PARTY.—If
an interested party, promptly after receiving a re-
107
quest from the administering authority or the Com-
mission for information, notifies the administering
authority or the Commission (as the case may be)
that such party is unable to submit the information
requested in the requested form and manner, together
with a full explanation and suggested alternative
forms in which such party is able to submit the infor-
mation, the administering authority or the Commis-
sion (as the case may be) shall consider the ability of
the interested party to submit the information in the
requested form and manner and may modify such re-
quirements to the extent necessary to avoid imposing
an unreasonable burden on that party.
‘‘(2) ASSISTANCE
TO
INTERESTED
PARTIES.—
The administering authority and the Commission
shall take into account any difficulties experienced by
interested parties, particularly small companies, in
supplying information requested by the administering
authority or the Commission in connection with in-
vestigations under this title, and shall provide to such
interested parties any assistance that is practicable in
supplying such information.
‘‘(c) DEFICIENT SUBMISSIONS.—If the administering
authority or the Commission determines that a response to
a request for information under this title does not comply
108
with the request, the administering authority or the Com-
mission (as the case may be) shall promptly inform the per-
son submitting the response of the nature of the deficiency
and shall, to the extent practicable, provide that person with
an opportunity to remedy or explain the deficiency in light
of the time limits established for the completion of investiga-
tions or reviews under this title. If that person submits fur-
ther information in response to such deficiency and either—
‘‘(1) the administering authority or the Commis-
sion (as the case may be) finds that such response is
not satisfactory, or
‘‘(2) such response is not submitted within the
applicable time limits,
then the administering authority or the Commission (as the
case may be) may, subject to subsection (d), disregard all
or part of the original and subsequent responses.
‘‘(d) USE OF CERTAIN INFORMATION.—In reaching a
determination under section 803, 805, or 807, the admin-
istering authority and the Commission shall not decline to
consider information that is submitted by an interested
party and is necessary to the determination but does not
meet all the applicable requirements established by the ad-
ministering authority or the Commission if—
‘‘(1) the information is submitted by the deadline
established for its submission,
109
‘‘(2) the information can be verified,
‘‘(3) the information is not so incomplete that it
cannot serve as a reliable basis for reaching the appli-
cable determination,
‘‘(4) the interested party has demonstrated that
it acted to the best of its ability in providing the in-
formation and meeting the requirements established
by the administering authority or the Commission
with respect to the information, and
‘‘(5) the information can be used without undue
difficulties.
‘‘(e) NONACCEPTANCE OF SUBMISSIONS.—If the ad-
ministering authority or the Commission declines to accept
into the record any information submitted in an investiga-
tion under this title, it shall, to the extent practicable, pro-
vide to the person submitting the information a written ex-
planation of the reasons for not accepting the information.
‘‘(f) PUBLIC COMMENT ON INFORMATION.—Informa-
tion that is submitted on a timely basis to the administer-
ing authority or the Commission during the course of a pro-
ceeding under this title shall be subject to comment by other
parties to the proceeding within such reasonable time as
the administering authority or the Commission shall pro-
vide. The administering authority and the Commission, be-
fore making a final determination under section 805 or 807,
110
shall cease collecting information and shall provide the par-
ties with a final opportunity to comment on the informa-
tion obtained by the administering authority or the Com-
mission (as the case may be) upon which the parties have
not previously had an opportunity to comment. Comments
containing new factual information shall be disregarded.
‘‘(g) VERIFICATION.—The administering authority
shall verify all information relied upon in making a final
determination under section 805.
‘‘SEC. 845. ADMINISTRATIVE ACTION FOLLOWING SHIP-
BUILDING AGREEMENT PANEL REPORTS.
‘‘(a) ACTION
BY UNITED STATES INTERNATIONAL
TRADE COMMISSION.—
‘‘(1) ADVISORY REPORT.—If a dispute settlement
panel under the Shipbuilding Agreement finds in a
report that an action by the Commission in connec-
tion with a particular proceeding under this title is
not in conformity with the obligations of the United
States under the Shipbuilding Agreement, the Trade
Representative may request the Commission to issue
an advisory report on whether this title permits the
Commission to take steps in connection with the par-
ticular proceeding that would render its action not
inconsistent with the findings of the panel concerning
those obligations. The Trade Representative shall no-
111
tify the Committee on Ways and Means of the House
of Representatives and the Committee on Finance of
the Senate of such request.
‘‘(2) TIME LIMITS FOR REPORT.—The Commis-
sion shall transmit its report under paragraph (1) to
the Trade Representative within 30 calendar days
after the Trade Representative requests the report.
‘‘(3) CONSULTATIONS ON REQUEST FOR COMMIS-
SION DETERMINATION.—If a majority of the Commis-
sioners issues an affirmative report under paragraph
(1), the Trade Representatives shall consult with the
congressional committees listed in paragraph (1) con-
cerning the matter.
‘‘(4) COMMISSION
DETERMINATION.—Notwith-
standing any other provision of this title, if a major-
ity of the Commissioners issues an affirmative report
under paragraph (1), the Commission, upon the writ-
ten request of the Trade Representative, shall issue a
determination in connection with the particular pro-
ceeding that would render the Commission’s action
described in paragraph (1) not inconsistent with the
findings of the panel. The Commission shall issue its
determination not later than 120 calendar days after
the request from the Trade Representative is made.
112
‘‘(5) CONSULTATIONS
ON
IMPLEMENTATION
OF
COMMISSION DETERMINATION.—The Trade Represent-
ative shall consult with the congressional committees
listed in paragraph (1) before the Commission’s deter-
mination under paragraph (4) is implemented.
‘‘(6) REVOCATION OF ORDER.—If, by virtue of
the Commission’s determination under paragraph (4),
an injurious pricing order is no longer supported by
an affirmative Commission determination under this
title, the Trade Representative may, after consulting
with the congressional committees under paragraph
(5), direct the administering authority to revoke the
injurious pricing order.
‘‘(b) ACTION BY ADMINISTERING AUTHORITY.—
‘‘(1) CONSULTATIONS WITH ADMINISTERING AU-
THORITY
AND
CONGRESSIONAL
COMMITTEES.—
Promptly after a report or other determination by a
dispute settlement panel under the Shipbuilding
Agreement is issued that contains findings that—
‘‘(A) an action by the administering au-
thority in a proceeding under this title is not in
conformity with the obligations of the United
States under the Shipbuilding Agreement,
113
‘‘(B) the due date for payment of an injuri-
ous pricing charge contained in an order issued
under section 806 should be amended,
‘‘(C) countermeasures provided for in an
order issued under section 807 should be provi-
sionally suspended or reduced pending the final
decision of the panel, or
‘‘(D) the scope or duration of counter-
measures imposed under section 807 should be
narrowed or shortened,
the Trade Representative shall consult with the ad-
ministering authority and the congressional commit-
tees listed in subsection (a)(1) on the matter.
‘‘(2) DETERMINATION
BY
ADMINISTERING
AU-
THORITY.—Notwithstanding any other provision of
this title, the administering authority shall, in re-
sponse to a written request from the Trade Represent-
ative, issue a determination, or an amendment to or
suspension of an injurious pricing or countermeasure
order, as the case may be, in connection with the par-
ticular proceeding that would render the administer-
ing authority’s action described in paragraph (1) not
inconsistent with the findings of the panel.
114
‘‘(3) TIME LIMITS FOR DETERMINATIONS.—The
administering authority shall issue its determination,
amendment, or suspension under paragraph (2)—
‘‘(A) with respect to a matter described in
subparagraph (A) of paragraph (1), within 180
calendar days after the request from the Trade
Representative is made, and
‘‘(B) with respect to a matter described in
subparagraph (B), (C), or (D) of paragraph (1),
within 15 calendar days after the request from
the Trade Representative is made.
‘‘(4) CONSULTATIONS
BEFORE
IMPLEMENTA-
TION.—Before the administering authority imple-
ments any determination, amendment, or suspension
under paragraph (2), the Trade Representative shall
consult with the administering authority and the con-
gressional committees listed in subsection (a)(1) with
respect to such determination, amendment, or suspen-
sion.
‘‘(5) IMPLEMENTATION
OF
DETERMINATION.—
The Trade Representative may, after consulting with
the administering authority and the congressional
committees under paragraph (4), direct the admin-
istering authority to implement, in whole or in part,
the determination, amendment, or suspension made
115
under paragraph (2). The administering authority
shall publish notice of such implementation in the
Federal Register.
‘‘(c) OPPORTUNITY FOR COMMENT BY INTERESTED
PARTIES.—Before issuing a determination, amendment, or
suspension, the administering authority, in a matter de-
scribed in subsection (b)(1)(A), or the Commission, in a
matter described in subsection (a)(1), as the case may be,
shall provide interested parties with an opportunity to sub-
mit written comments and, in appropriate cases, may hold
a hearing, with respect to the determination.
‘‘Subtitle D—Definitions
‘‘SEC. 861. DEFINITIONS.
‘‘For purposes of this title:
‘‘(1) ADMINISTERING
AUTHORITY.—The term
‘administering authority’ means the Secretary of
Commerce, or any other officer of the United States
to whom the responsibility for carrying out the duties
of the administering authority under this title are
transferred by law.
‘‘(2) 
COMMISSION.—The 
term 
‘Commission’
means the United States International Trade Com-
mission.
‘‘(3) COUNTRY.—The term ‘country’ means a for-
eign country, a political subdivision, dependent terri-
116
tory, or possession of a foreign country and, except as
provided in paragraph (16)(E)(iii), may not include
an association of 2 or more foreign countries, politi-
cal subdivisions, dependent territories, or possessions
of countries into a customs union outside the United
States.
‘‘(4) INDUSTRY.—
‘‘(A) IN GENERAL.—Except as used in sec-
tion 808, the term ‘industry’ means the produc-
ers as a whole of a domestic like vessel, or those
producers whose collective capability to produce
a domestic like vessel constitutes a major propor-
tion of the total domestic capability to produce
a domestic like vessel.
‘‘(B) PRODUCER.—A ‘producer’ of a domes-
tic like vessel includes an entity that is produc-
ing the domestic like vessel and an entity with
the capability to produce the domestic like vessel.
‘‘(C) CAPABILITY TO PRODUCE A DOMESTIC
LIKE VESSEL.—A producer has the ‘capability to
produce a domestic like vessel’ if it is capable of
producing a domestic like vessel with its present
facilities or could adapt its facilities in a timely
manner to produce a domestic like vessel.
117
‘‘(D) RELATED PARTIES.—(i) In an inves-
tigation under this title, if a producer of a do-
mestic like vessel and the foreign producer, seller
(other than the foreign producer), or United
States buyer of the subject vessel are related par-
ties, or if a producer of a domestic like vessel is
also a United States buyer of the subject vessel,
the domestic producer may, in appropriate cir-
cumstances, be excluded from the industry.
‘‘(ii) For purposes of clause (i), a domestic
producer and the foreign producer, seller, or
United States buyer shall be considered to be re-
lated parties, if—
‘‘(I) the domestic producer directly or
indirectly controls the foreign producer, sell-
er, or United States buyer,
‘‘(II) the foreign producer, seller, or
United States buyer directly or indirectly
controls the domestic producer,
‘‘(III) a third party directly or indi-
rectly controls the domestic producer and
the foreign producer, seller, or United States
buyer, or
‘‘(IV) the domestic producer and the
foreign producer, seller, or United States
118
buyer directly or indirectly control a third
party and there is reason to believe that the
relationship causes the domestic producer to
act differently than a nonrelated producer.
For purposes of this subparagraph, a party shall
be considered to directly or indirectly control an-
other party if the party is legally or operation-
ally in a position to exercise restraint or direc-
tion over the other party.
‘‘(E) PRODUCT LINES.—In an investigation
under this title, the effect of the sale of the subject
vessel shall be assessed in relation to the United
States production (or production capability) of a
domestic like vessel if available data permit the
separate identification of production (or produc-
tion capability) in terms of such criteria as the
production process or the producer’s profits. If
the domestic production (or production capabil-
ity) of a domestic like vessel has no separate
identity in terms of such criteria, then the effect
of the sale of the subject vessel shall be assessed
by the examination of the production (or produc-
tion capability) of the narrowest group or range
of vessels, which includes a domestic like vessel,
119
for which the necessary information can be pro-
vided.
‘‘(5) BUYER.—The term ‘buyer’ means any per-
son who acquires an ownership interest in a vessel,
including by way of lease or long-term bareboat char-
ter, in conjunction with the original transfer from the
producer, either directly or indirectly, including an
individual or company which owns or controls a
buyer. There may be more than one buyer of any one
vessel.
‘‘(6) UNITED STATES BUYER.—The term ‘United
States buyer’ means a buyer that is any of the follow-
ing:
‘‘(A) A United States citizen.
‘‘(B) A juridical entity, including any cor-
poration, company, association, or other organi-
zation, that is legally constituted under the laws
and regulations of the United States or a politi-
cal subdivision thereof, regardless of whether the
entity is organized for pecuniary gain, privately
or government owned, or organized with limited
or unlimited liability.
‘‘(C) A juridical entity that is owned or
controlled by nationals or entities described in
120
subparagraphs (A) and (B). For the purposes of
this subparagraph—
‘‘(i) the term ‘own’ means having more
than a 50 percent interest, and
‘‘(ii) the term ‘control’ means the ac-
tual ability to have substantial influence on
corporate behavior, and control is presumed
to exist where there is at least a 25 percent
interest.
If ownership of a company is established under
clause (i), other control is presumed not to exist
unless it is otherwise established.
‘‘(7) OWNERSHIP INTEREST.—An ‘ownership in-
terest’ in a vessel includes any contractual or propri-
etary interest which allows the beneficiary or bene-
ficiaries of such interest to take advantage of the oper-
ation of the vessel in a manner substantially com-
parable to the way in which an owner may benefit
from the operation of the vessel. In determining
whether such substantial comparability exists, the ad-
ministering authority shall consider—
‘‘(A) the terms and circumstances of the
transaction which conveys the interest,
‘‘(B) commercial practice within the indus-
try,
121
‘‘(C) whether the vessel subject to the trans-
action is integrated into the operations of the
beneficiary or beneficiaries, and
‘‘(D) whether in practice there is a likeli-
hood that the beneficiary or beneficiaries of such
interests will take advantage of and the risk for
the operation of the vessel for a significant part
of the life-time of the vessel.
‘‘(8) VESSEL.—
‘‘(A) IN
GENERAL.—Except as otherwise
specifically provided under international agree-
ments, the term ‘vessel’ means—
‘‘(i) a self-propelled seagoing vessel of
100 gross tons or more used for transpor-
tation of goods or persons or for perform-
ance of a specialized service (including, but
not limited to, ice breakers and dredgers),
and
‘‘(ii) a tug of 365 kilowatts or more,
that is produced in a Shipbuilding Agreement
Party or a country that is not a Shipbuilding
Agreement Party and not a WTO member.
‘‘(B) EXCLUSIONS.—The term ‘vessel’ does
not include—
122
‘‘(i) any fishing vessel destined for the
fishing fleet of the country in which the ves-
sel is built,
‘‘(ii) any military vessel, and
‘‘(iii) any vessel sold before the date
that the Shipbuilding Agreement enters into
force with respect to the United States, ex-
cept that any vessel sold after December 21,
1994, for delivery more than 5 years after
the date of the contract of sale shall be a
‘vessel’ for purposes of this title unless the
shipbuilder demonstrates to the administer-
ing authority that the extended delivery
date was for normal commercial reasons
and not to avoid applicability of this title.
‘‘(C) 
SELF-PROPELLED
SEAGOING
VES-
SEL.—A vessel is ‘self-propelled seagoing’ if its
permanent propulsion and steering provide it all
the characteristics of self-navigability in the high
seas.
‘‘(D) MILITARY VESSEL.—A ‘military ves-
sel’ is a vessel which, according to its basic struc-
tural characteristics and ability, is intended to
be used exclusively for military purposes.
123
‘‘(9) LIKE VESSEL.—The term ‘like vessel’ means
a vessel of the same type, same purpose, and approxi-
mate size as the subject vessel and possessing charac-
teristics closely resembling those of the subject vessel.
‘‘(10) DOMESTIC LIKE VESSEL.—The term ‘do-
mestic like vessel’ means a like vessel produced in the
United States.
‘‘(11) FOREIGN LIKE VESSEL.—Except as used
in section 822(e)(1)(B)(ii)(II), the term ‘foreign like
vessel’ means a like vessel produced by the foreign
producer of the subject vessel for sale in the producer’s
domestic market or in a third country.
‘‘(12) SAME GENERAL CATEGORY OF VESSEL.—
The term ‘same general category of vessel’ means a
vessel of the same type and purpose as the subject ves-
sel, but of a significantly different size.
‘‘(13) SUBJECT VESSEL.—The term ‘subject ves-
sel’ means a vessel subject to investigation under sec-
tion 801 or 808.
‘‘(14) FOREIGN PRODUCER.—The term ‘foreign
producer’ means the producer or producers of the sub-
ject vessel.
‘‘(15) EXPORTING COUNTRY.—The term ‘export-
ing country’ means the country in which the subject
vessel was built.
124
‘‘(16) MATERIAL INJURY.—
‘‘(A) IN GENERAL.—The term ‘material in-
jury’ means harm which is not inconsequential,
immaterial, or unimportant.
‘‘(B) SALE AND CONSEQUENT IMPACT.—In
making determinations under sections 803(a)
and 805(b), the Commission in each case—
‘‘(i) shall consider—
‘‘(I) the sale of the subject vessel,
‘‘(II) the effect of the sale of the
subject vessel on prices in the United
States for a domestic like vessel, and
‘‘(III) the impact of the sale of the
subject vessel on domestic producers of
a domestic like vessel, but only in the
context of production operations within
the United States, and
‘‘(ii) may consider such other economic
factors as are relevant to the determination
regarding whether there is or has been ma-
terial injury by reason of the sale of the
subject vessel.
In the notification required under section 805(d),
the Commission shall explain its analysis of each
factor considered under clause (i), and identify
125
each factor considered under clause (ii) and ex-
plain in full its relevance to the determination.
‘‘(C) EVALUATION
OF
RELEVANT
FAC-
TORS.—For purposes of subparagraph (B)—
‘‘(i) SALE OF THE SUBJECT VESSEL.—
In evaluating the sale of the subject vessel,
the Commission shall consider whether the
sale, either in absolute terms or relative to
production or demand in the United States,
in terms of either volume or value, is or has
been significant.
‘‘(ii) PRICE.—In evaluating the effect
of the sale of the subject vessel on prices, the
Commission shall consider whether—
‘‘(I) there has been significant
price underselling of the subject vessel
as compared with the price of a domes-
tic like vessel, and
‘‘(II) the effect of the sale of the
subject vessel otherwise depresses or has
depressed prices to a significant degree
or prevents or has prevented price in-
creases, which otherwise would have oc-
curred, to a significant degree.
126
‘‘(iii) IMPACT ON AFFECTED DOMESTIC
INDUSTRY.—In examining the impact re-
quired to be considered under subparagraph
(B)(i)(III), the Commission shall evaluate
all relevant economic factors which have a
bearing on the state of the industry in the
United States, including, but not limited
to—
‘‘(I) actual and potential decline
in output, sales, market share, profits,
productivity, return on investments,
and utilization of capacity,
‘‘(II) factors affecting domestic
prices, including with regard to sales,
‘‘(III) actual and potential nega-
tive effects on cash flow, employment,
wages, growth, ability to raise capital,
and investment,
‘‘(IV) actual and potential nega-
tive effects on the existing development
and production efforts of the domestic
industry, including efforts to develop a
derivative or more advanced version of
a domestic like vessel, and
127
‘‘(V) the magnitude of the injuri-
ous pricing margin.
The Commission shall evaluate all relevant
economic factors described in this clause
within the context of the business cycle and
conditions of competition that are distinc-
tive to the affected industry.
‘‘(D) STANDARD
FOR
DETERMINATION.—
The presence or absence of any factor which the
Commission is required to evaluate under sub-
paragraph (C) shall not necessarily give decisive
guidance with respect to the determination by
the Commission of material injury.
‘‘(E) THREAT OF MATERIAL INJURY.—
‘‘(i) IN
GENERAL.—In determining
whether an industry in the United States is
threatened with material injury by reason
of the sale of the subject vessel, the Commis-
sion shall consider, among other relevant
economic factors—
‘‘(I) any existing unused produc-
tion capacity or imminent, substantial
increase in production capacity in the
exporting country indicating the likeli-
hood of substantially increased sales of
128
a foreign like vessel to United States
buyers, taking into account the avail-
ability of other export markets to ab-
sorb any additional exports,
‘‘(II) whether the sale of a foreign
like vessel or other factors indicate the
likelihood of significant additional
sales to United States buyers,
‘‘(III) whether sale of the subject
vessel or sale of a foreign like vessel by
the foreign producer are at prices that
are likely to have a significant depress-
ing or suppressing effect on domestic
prices, and are likely to increase de-
mand for further sales,
‘‘(IV) the potential for product-
shifting if production facilities in the
exporting country, which can presently
be used to produce a foreign like vessel
or could be adapted in a timely man-
ner to produce a foreign like vessel, are
currently being used to produce other
types of vessels,
‘‘(V) the actual and potential neg-
ative effects on the existing develop-
129
ment and production efforts of the do-
mestic industry, including efforts to
develop a derivative or more advanced
version of a domestic like vessel, and
‘‘(VI) any other demonstrable ad-
verse trends that indicate the prob-
ability that there is likely to be mate-
rial injury by reason of the sale of the
subject vessel.
‘‘(ii) BASIS
FOR
DETERMINATION.—
The Commission shall consider the factors
set forth in clause (i) as a whole. The pres-
ence or absence of any factor which the
Commission is required to consider under
clause (i) shall not necessarily give decisive
guidance with respect to the determination.
Such a determination may not be made on
the basis of mere conjecture or supposition.
‘‘(iii) EFFECT OF INJURIOUS PRICING
IN THIRD-COUNTRY MARKETS.—
‘‘(I) IN GENERAL.—The Commis-
sion shall consider whether injurious
pricing in the markets of foreign coun-
tries (as evidenced by injurious pricing
findings or injurious pricing remedies
130
of other Shipbuilding Agreement Par-
ties, or antidumping determinations of,
or measures imposed by, other coun-
tries, against a like vessel produced by
the producer under investigation) sug-
gests a threat of material injury to the
domestic industry. In the course of its
investigation, the Commission shall re-
quest information from the foreign pro-
ducer or United States buyer concern-
ing this issue.
‘‘(II) EUROPEAN COMMUNITIES.—
For purposes of this clause, the Euro-
pean Communities as a whole shall be
treated as a single foreign country.
‘‘(F) CUMULATION FOR DETERMINING MA-
TERIAL INJURY.—
‘‘(i) IN
GENERAL.—For purposes of
clauses (i) and (ii) of subparagraph (C),
and subject to clause (ii) of this subpara-
graph, the Commission shall cumulatively
assess the effects of sales of foreign like ves-
sels from all foreign producers with respect
to which—
131
‘‘(I) petitions were filed under sec-
tion 802(b) on the same day,
‘‘(II) investigations were initiated
under section 802(a) on the same day,
or
‘‘(III) petitions were filed under
section 802(b) and investigations were
initiated under section 802(a) on the
same day,
if, with respect to such vessels, the foreign
producers compete with each other and with
producers of a domestic like vessel in the
United States market.
‘‘(ii) EXCEPTIONS.—The Commission
shall not cumulatively assess the effects of
sales under clause (i)—
‘‘(I) with respect to which the ad-
ministering authority has made a pre-
liminary negative determination, un-
less the administering authority subse-
quently made a final affirmative deter-
mination with respect to those sales be-
fore the Commission’s final determina-
tion is made, or
132
‘‘(II) from any producer with re-
spect to which the investigation has
been terminated.
‘‘(iii) RECORDS IN FINAL INVESTIGA-
TIONS.—In each final determination in
which it cumulatively assesses the effects of
sales under clause (i), the Commission may
make its determinations based on the record
compiled in the first investigation in which
it makes a final determination, except that
when the administering authority issues its
final determination in a subsequently com-
pleted investigation, the Commission shall
permit the parties in the subsequent inves-
tigation to submit comments concerning the
significance of the administering authority’s
final determination, and shall include such
comments and the administering authority’s
final determination in the record for the
subsequent investigation.
‘‘(G) 
CUMULATION
FOR
DETERMINING
THREAT OF MATERIAL INJURY.—To the extent
practicable and subject to subparagraph (F)(ii),
for purposes of clause (i) (II) and (III) of sub-
paragraph (E), the Commission may cumula-
133
tively assess the effects of sales of like vessels from
all countries with respect to which—
‘‘(i) petitions were filed under section
802(b) on the same day,
‘‘(ii) 
investigations 
were 
initiated
under section 802(a) on the same day, or
‘‘(iii) petitions were filed under section
802(b) and investigations were initiated
under section 802(a) on the same day,
if, with respect to such vessels, the foreign pro-
ducers compete with each other and with produc-
ers of a domestic like vessel in the United States
market.
‘‘(17) INTERESTED PARTY.—The term ‘interested
party’ means, in a proceeding under this title—
‘‘(A)(i) the foreign producer, seller (other
than the foreign producer), and the United
States buyer of the subject vessel, or
‘‘(ii) a trade or business association a ma-
jority of the members of which are the foreign
producer, seller, or United States buyer of the
subject vessel,
‘‘(B) the government of the country in
which the subject vessel is produced or manufac-
tured,
134
‘‘(C) a producer that is a member of an in-
dustry,
‘‘(D) a certified union or recognized union
or group of workers which is representative of an
industry,
‘‘(E) a trade or business association a ma-
jority of whose members are producers in an in-
dustry,
‘‘(F) an association, a majority of whose
members is composed of interested parties de-
scribed in subparagraph (C), (D), or (E), and
‘‘(G) for purposes of section 807, a pur-
chaser who, after the effective date of an order is-
sued under that section, entered into a contract
of sale with the foreign producer that is subject
to the order.
‘‘(18) AFFIRMATIVE
DETERMINATIONS
BY
DI-
VIDED COMMISSION.—If the Commissioners voting on
a determination by the Commission are evenly di-
vided as to whether the determination should be af-
firmative or negative, the Commission shall be deemed
to have made an affirmative determination. For the
purpose of applying this paragraph when the issue
before the Commission is to determine whether there
is or has been—
135
‘‘(A) material injury to an industry in the
United States,
‘‘(B) threat of material injury to such an
industry, or
‘‘(C) material retardation of the establish-
ment of an industry in the United States,
by reason of the sale of the subject vessel, an affirma-
tive vote on any of the issues shall be treated as a vote
that the determination should be affirmative.
‘‘(19) ORDINARY COURSE OF TRADE.—The term
‘ordinary course of trade’ means the conditions and
practices which, for a reasonable time before the sale
of the subject vessel, have been normal in the ship-
building industry with respect to a like vessel. The
administering authority shall consider the following
sales and transactions, among others, to be outside the
ordinary course of trade:
‘‘(A) 
Sales 
disregarded 
under 
section
822(b)(1).
‘‘(B) Transactions disregarded under sec-
tion 822(f)(2).
‘‘(20) NONMARKET ECONOMY COUNTRY.—
‘‘(A) IN GENERAL.—The term ‘nonmarket
economy country’ means any foreign country
that the administering authority determines does
136
not operate on market principles of cost or pric-
ing structures, so that sales of vessels in such
country do not reflect the fair value of the vessels.
‘‘(B) FACTORS
TO
BE
CONSIDERED.—In
making determinations under subparagraph (A)
the administering authority shall take into ac-
count—
‘‘(i) the extent to which the currency of
the foreign country is convertible into the
currency of other countries,
‘‘(ii) the extent to which wage rates in
the foreign country are determined by free
bargaining between labor and management,
‘‘(iii) the extent to which joint ventures
or other investments by firms of other for-
eign countries are permitted in the foreign
country,
‘‘(iv) the extent of government owner-
ship or control of the means of production,
‘‘(v) the extent of government control
over the allocation of resources and over the
price and output decisions of enterprises,
and
‘‘(vi) such other factors as the admin-
istering authority considers appropriate.
137
‘‘(C) DETERMINATION IN EFFECT.—
‘‘(i) Any determination that a foreign
country is a nonmarket economy country
shall remain in effect until revoked by the
administering authority.
‘‘(ii) The administering authority may
make a determination under subparagraph
(A) with respect to any foreign country at
any time.
‘‘(D) DETERMINATIONS
NOT
IN
ISSUE.—
Notwithstanding any other provision of law, any
determination made by the administering au-
thority under subparagraph (A) shall not be sub-
ject to judicial review in any investigation con-
ducted under subtitle A.
‘‘(21) SHIPBUILDING
AGREEMENT.—The term
‘Shipbuilding Agreement’ means The Agreement Re-
specting Normal Competitive Conditions in the Com-
mercial Shipbuilding and Repair Industry, resulting
from negotiations under the auspices of the Organiza-
tion for Economic Cooperation and Development, and
entered into on December 21, 1994.
‘‘(22) SHIPBUILDING AGREEMENT PARTY.—The
term ‘Shipbuilding Agreement Party’ means a state
or separate customs territory that is a Party to the
138
Shipbuilding Agreement, and with respect to which
the United States applies the Shipbuilding Agree-
ment.
‘‘(23) WTO 
AGREEMENT.—The term ‘WTO
Agreement’ means the Agreement defined in section
2(9) of the Uruguay Round Agreements Act.
‘‘(24) WTO MEMBER.—The term ‘WTO member’
means a state, or separate customs territory (within
the meaning of Article XII of the WTO Agreement),
with respect to which the United States applies the
WTO Agreement.
‘‘(25) 
TRADE
REPRESENTATIVE.—The 
term
‘Trade Representative’ means the United States Trade
Representative.
‘‘(26) AFFILIATED PERSONS.—The following per-
sons shall be considered to be ‘affiliated’ or ‘affiliated
persons’:
‘‘(A) Members of a family, including broth-
ers and sisters (whether by the whole or half
blood), spouse, ancestors, and lineal descendants.
‘‘(B) Any officer or director of an organiza-
tion and such organization.
‘‘(C) Partners.
‘‘(D) Employer and employee.
139
‘‘(E) Any person directly or indirectly own-
ing, controlling, or holding with power to vote,
5 percent or more of the outstanding voting stock
or shares of any organization, and such organi-
zation.
‘‘(F) Two or more persons directly or indi-
rectly controlling, controlled by, or under com-
mon control with, any person.
‘‘(G) Any person who controls any other
person, and such other person.
For purposes of this paragraph, a person shall be con-
sidered to control another person if the person is le-
gally or operationally in a position to exercise re-
straint or direction over the other person.
‘‘(27) INJURIOUS PRICING.—The term ‘injurious
pricing’ refers to the sale of a vessel at less than fair
value.
‘‘(28) INJURIOUS PRICING MARGIN.—
‘‘(A) IN
GENERAL.—The term ‘injurious
pricing margin’ means the amount by which the
normal value exceeds the export price of the sub-
ject vessel.
‘‘(B) MAGNITUDE OF THE INJURIOUS PRIC-
ING MARGIN.—The magnitude of the injurious
140
pricing margin used by the Commission shall
be—
‘‘(i) in making a preliminary deter-
mination under section 803(a) in an inves-
tigation (including any investigation in
which the Commission cumulatively assesses
the 
effect 
of 
sales 
under 
paragraph
(16)(F)(i)), the injurious pricing margin or
margins published by the administering au-
thority in its notice of initiation of the in-
vestigation; and
‘‘(ii) in making a final determination
under section 805(b), the injurious pricing
margin or margins most recently published
by the administering authority before the
closing of the Commission’s administrative
record.
‘‘(29) 
COMMERCIAL
INTEREST
REFERENCE
RATE.—The term ‘Commercial Interest Reference
Rate’ or ‘CIRR’ means an interest rate that the ad-
ministering authority determines to be consistent with
Annex III, and appendices and notes thereto, of the
Understanding on Export Credits for Ships, resulting
from negotiations under the auspices of the Organiza-
141
tion for Economic Cooperation, and entered into on
December 21, 1994.
‘‘(30) ANTIDUMPING.—
‘‘(A) WTO MEMBERS.—In the case of a
WTO member, the term ‘antidumping’ refers to
action taken pursuant to the Agreement on Im-
plementation of Article VI of the General Agree-
ment on Tariffs and Trade 1994.
‘‘(B) OTHER CASES.—In the case of any
country that is not a WTO member, the term
‘antidumping’ refers to action taken by the coun-
try against the sale of a vessel at less than fair
value that is comparable to action described in
subparagraph (A).
‘‘(31) BROAD MULTIPLE BID.—The term ‘broad
multiple bid’ means a bid in which the proposed
buyer extends an invitation to bid to at least all the
producers in the industry known by the buyer to be
capable of building the subject vessel.’’.
SEC. 204. ENFORCEMENT OF COUNTERMEASURES.
Part II of title IV of the Tariff Act of 1930 is amended
by adding at the end the following:
142
‘‘SEC. 
468. 
SHIPBUILDING 
AGREEMENT 
COUNTER-
MEASURES.
‘‘(a) IN GENERAL.—Notwithstanding any other provi-
sion of law, upon receiving from the Secretary of Commerce
a list of vessels subject to countermeasures under section
807, the Customs Service shall deny any request for a per-
mit to lade or unlade passengers, merchandise, or baggage
from or onto those vessels so listed.
‘‘(b) EXCEPTIONS.—Subsection (a) shall not be applied
to deny a permit for the following:
‘‘(1) To unlade any United States citizen or per-
manent legal resident alien from a vessel included in
the list described in subsection (a), or to unlade any
refugee or any alien who would otherwise be eligible
to apply for asylum and withholding of deportation
under the Immigration and Nationality Act.
‘‘(2) To lade or unlade any crewmember of such
vessel.
‘‘(3) To lade or unlade coal and other fuel sup-
plies (for the operation of the listed vessel), ships’
stores, sea stores, and the legitimate equipment of
such vessel.
‘‘(4) To lade or unlade supplies for the use or
sale on such vessel.
‘‘(5) To lade or unlade such other merchandise,
baggage, or passenger as the Customs Service shall de-
143
termine necessary to protect the immediate health,
safety, or welfare of a human being.
‘‘(c) CORRECTION OF MINISTERIAL OR CLERICAL ER-
RORS.—
‘‘(1) PETITION FOR CORRECTION.—If the master
of any vessel whose application for a permit to lade
or unlade has been denied under this section believes
that such denial resulted from a ministerial or cleri-
cal error, not amounting to a mistake of law, commit-
ted by any Customs officer, the master may petition
the Customs Service for correction of such error, as
provided by regulation.
‘‘(2) INAPPLICABILITY
OF
SECTIONS
514
AND
520.—Notwithstanding paragraph (1), imposition of
countermeasures under this section shall not be
deemed an exclusion or other protestable decision
under section 514, and shall not be subject to correc-
tion under section 520.
‘‘(3) PETITIONS SEEKING ADMINISTRATIVE RE-
VIEW.—Any petition seeking administrative review of
any matter regarding the Secretary of Commerce’s de-
cision to list a vessel under section 807 must be
brought under that section.
144
‘‘(d) PENALTIES.—In addition to any other provision
of law, the Customs Service may impose a civil penalty of
not to exceed $10,000 against the master of any vessel—
‘‘(1) who submits false information in requesting
any permit to lade or unlade; or
‘‘(2) who attempts to, or actually does, lade or
unlade in violation of any denial of such permit
under this section.’’.
SEC. 205. JUDICIAL REVIEW IN INJURIOUS PRICING AND
COUNTERMEASURE PROCEEDINGS.
(a) JUDICIAL REVIEW.—Part III of title IV of the Tar-
iff Act of 1930 is amended by inserting after section 516A
the following:
‘‘SEC. 516B. JUDICIAL REVIEW IN INJURIOUS PRICING AND
COUNTERMEASURE PROCEEDINGS.
‘‘(a) REVIEW OF DETERMINATION.—
‘‘(1) IN
GENERAL.—Within 30 days after the
date of publication in the Federal Register of—
‘‘(A)(i) a determination by the administer-
ing authority under section 802(c) not to initiate
an investigation,
‘‘(ii) a negative determination by the Com-
mission under section 803(a) as to whether there
is or has been reasonable indication of material
145
injury, threat of material injury, or material re-
tardation,
‘‘(iii) a determination by the administering
authority to suspend or revoke an injurious pric-
ing order under section 806 (d) or (e),
‘‘(iv) a determination by the administering
authority under section 807(c),
‘‘(v) a determination by the administering
authority in a review under section 807(d),
‘‘(vi) a determination by the administering
authority concerning whether to extend the scope
or duration of a countermeasure order under sec-
tion 807(e)(3)(B)(ii),
‘‘(vii) a determination by the administering
authority to amend a countermeasure order
under section 807(e)(6),
‘‘(viii) a determination by the administer-
ing authority in a review under section 807(g),
‘‘(ix) a determination by the administering
authority under section 807(i) to terminate pro-
ceedings, or to amend or revoke a counter-
measure order,
‘‘(x) a determination by the administering
authority under section 845(b), with respect to a
146
matter described in paragraph (1)(D) of that
section, or
‘‘(B)(i) an injurious pricing order based on
a determination described in subparagraph (A)
of paragraph (2),
‘‘(ii) notice of a determination described in
subparagraph (B) of paragraph (2),
‘‘(iii) notice of implementation of a deter-
mination described in subparagraph (C) of para-
graph (2), or
‘‘(iv) notice of revocation of an injurious
pricing order based on a determination described
in subparagraph (D) of paragraph (2),
an interested party who is a party to the proceeding
in connection with which the matter arises may com-
mence an action in the United States Court of Inter-
national Trade by filing concurrently a summons and
complaint, each with the content and in the form,
manner, and style prescribed by the rules of that
court, contesting any factual findings or legal conclu-
sions upon which the determination is based.
‘‘(2) REVIEWABLE DETERMINATIONS.—The deter-
minations referred to in paragraph (1)(B) are—
‘‘(A) a final affirmative determination by
the administering authority or by the Commis-
147
sion under section 805, including any negative
part of such a determination (other than a part
referred to in subparagraph (B)),
‘‘(B) a final negative determination by the
administering authority or the Commission
under section 805,
‘‘(C) a determination by the administering
authority under section 845(b), with respect to a
matter described in paragraph (1)(A) of that sec-
tion, and
‘‘(D) a determination by the Commission
under section 845(a) that results in the revoca-
tion of an injurious pricing order.
‘‘(3) EXCEPTION.—Notwithstanding the 30-day
limitation imposed by paragraph (1) with regard to
an order described in paragraph (1)(B)(i), a final af-
firmative determination by the administering author-
ity under section 805 may be contested by commenc-
ing an action, in accordance with the provisions of
paragraph (1), within 30 days after the date of publi-
cation in the Federal Register of a final negative de-
termination by the Commission under section 805.
‘‘(4) PROCEDURES AND FEES.—The procedures
and fees set forth in chapter 169 of title 28, United
States Code, apply to an action under this section.
148
‘‘(b) STANDARDS OF REVIEW.—
‘‘(1) REMEDY.—The court shall hold unlawful
any determination, finding, or conclusion found—
‘‘(A) in an action brought under subpara-
graph (A) of subsection (a)(1), to be arbitrary,
capricious, an abuse of discretion, or otherwise
not in accordance with law, or
‘‘(B) in an action brought under subpara-
graph (B) of subsection (a)(1), to be unsupported
by substantial evidence on the record, or other-
wise not in accordance with law.
‘‘(2) RECORD FOR REVIEW.—
‘‘(A) IN
GENERAL.—For purposes of this
subsection, the record, unless otherwise stipulated
by the parties, shall consist of—
‘‘(i) a copy of all information pre-
sented to or obtained by the administering
authority or the Commission during the
course of the administrative proceeding, in-
cluding all governmental memoranda per-
taining to the case and the record of ex
parte meetings required to be kept by sec-
tion 843(a)(2); and
‘‘(ii) a copy of the determination, all
transcripts or records of conferences or hear-
149
ings, and all notices published in the Fed-
eral Register.
‘‘(B) CONFIDENTIAL OR PRIVILEGED MATE-
RIAL.—The confidential or privileged status ac-
corded to any documents, comments, or informa-
tion shall be preserved in any action under this
section. Notwithstanding the preceding sentence,
the court may examine, in camera, the confiden-
tial or privileged material, and may disclose
such material under such terms and conditions
as it may order.
‘‘(c) STANDING.—Any interested party who was a
party to the proceeding under title VIII shall have the right
to appear and be heard as a party in interest before the
United States Court of International Trade in an action
under this section. The party filing the action shall notify
all such interested parties of the filing of an action under
this section, in the form, manner, and within the time pre-
scribed by rules of the court.
‘‘(d) DEFINITIONS.—For purposes of this section:
‘‘(1) ADMINISTERING
AUTHORITY.—The term
‘administering authority’ has the meaning given that
term in section 861(1).
150
‘‘(2) 
COMMISSION.—The 
term 
‘Commission’
means the United States International Trade Com-
mission.
‘‘(3) INTERESTED PARTY.—The term ‘interested
party’ means any person described in section
861(17).’’.
(b) CONFORMING AMENDMENTS.—
(1) JURISDICTION
OF
THE
COURT.—Section
1581(c) of title 28, United States Code, is amended by
inserting ‘‘or 516B’’ after ‘‘section 516A’’.
(2) RELIEF.—Section 2643 of title 28, United
States Code, is amended—
(A) in subsection (c)(1) by striking ‘‘and
(5)’’ and inserting ‘‘(5), and (6)’’; and
(B) in subsection (c) by adding at the end
the following new paragraph:
‘‘(6) In any civil action under section 516B of the Tar-
iff Act of 1930, the Court of International Trade may not
issue injunctions or any other form of equitable relief, ex-
cept with regard to implementation of a countermeasure
order under section 468 of that Act, upon a proper showing
that such relief is warranted.’’.
151
Subtitle B—Other Provisions
SEC. 211. EQUIPMENT AND REPAIR OF VESSELS.
Section 466 of the Tariff Act of 1930 (19 U.S.C. 1466),
is amended by adding at the end the following new sub-
section:
‘‘(i) The duty imposed by subsection (a) shall not
apply with respect to activities occurring in a Shipbuilding
Agreement Party, as defined in section 861(22), with re-
spect to—
‘‘(1) self-propelled seagoing vessels of 100 gross
tons or more that are used for transportation of goods
or persons or for performance of a specialized service
(including, but not limited to, ice breakers and
dredges), and
‘‘(2) tugs of 365 kilowatts or more.
A vessel shall be considered ‘self-propelled seagoing’ if its
permanent propulsion and steering provide it all the char-
acteristics of self-navigability in the high seas.’’.
SEC. 212. EFFECT OF AGREEMENT WITH RESPECT TO PRI-
VATE REMEDIES.
No person other than the United States—
(1) shall have any cause of action or defense
under the Shipbuilding Agreement or by virtue of
congressional approval of the agreement, or
152
(2) may challenge, in any action brought under
any provision of law, any action or inaction by any
department, agency, or other instrumentality of the
United States, the District of Columbia, any State,
any political subdivision of a State, or any territory
or possession of the United States on the ground that
such action or inaction is inconsistent with such
agreement.
SEC. 213. IMPLEMENTING REGULATIONS.
After the date of the enactment of this title, the heads
of agencies with functions under this title and the amend-
ments made by this title may issue such regulations as may
be necessary to ensure that this title is appropriately imple-
mented on the date the Shipbuilding Agreement enters into
force with respect to the United States.
SEC. 214. AMENDMENTS TO THE MERCHANT MARINE ACT,
1936.
The Merchant Marine Act, 1936, is amended as fol-
lows:
(1) 
Section 
511(a)(2) 
(46 
App. 
U.S.C.
1161(a)(2)) is amended by inserting after ‘‘1939,’’ the
following: ‘‘or, if the vessel is a Shipbuilding Agree-
ment vessel, constructed in a Shipbuilding Agreement
Party, but only with regard to moneys deposited, on
or after the date on which the Shipbuilding Trade
153
Agreement Act takes effect, into a construction reserve
fund established under subsection (b)’’.
(2) Section 601(a) (46 App. U.S.C. 1171(a)) is
amended by striking ‘‘, and that such vessel or vessels
were built in the United States, or have been docu-
mented under the laws of the United States not later
than February 1, 1928, or actually ordered and under
construction for the account of citizens of the United
States prior to such date;’’ and inserting ‘‘and that
such vessel or vessels were built in the United States,
or, if the vessel or vessels are Shipbuilding Agreement
vessels, in a Shipbuilding Agreement Party;’’.
(3) Section 606(6) (46 App. U.S.C. 1176(6)) is
amended by inserting ‘‘or, if the vessel is a Shipbuild-
ing Agreement vessel, in a Shipbuilding Agreement
Party or in the United States,’’ before ‘‘, except in an
emergency.’’.
(4) Section 607 (46 App. U.S.C. 1177) is amend-
ed as follows:
(A) Subsection (a) is amended by inserting
‘‘or, if the vessel is a Shipbuilding Agreement
vessel, in a Shipbuilding Agreement Party,’’
after ‘‘built in the United States’’.
(B) Subsection (k) is amended as follows:
154
(i) Paragraph (1) is amended by strik-
ing subparagraph (A) and inserting the fol-
lowing:
‘‘(A)(i) constructed in the United States
and, if reconstructed, reconstructed in the United
States or in a Shipbuilding Agreement Party, or
‘‘(ii) that is a Shipbuilding Agreement ves-
sel and is constructed in a Shipbuilding Agree-
ment Party and, if reconstructed, is recon-
structed in a Shipbuilding Agreement Party or
in the United States,’’.
(ii) Paragraph (2)(A) is amended to
read as follows:
‘‘(A)(i) constructed in the United States
and, if reconstructed, reconstructed in the United
States or in a Shipbuilding Agreement Party, or
‘‘(ii) that is a Shipbuilding Agreement ves-
sel and is constructed in a Shipbuilding Agree-
ment Party and, if reconstructed, is recon-
structed in a Shipbuilding Agreement Party or
in the United States, but only with regard to
moneys deposited into the fund on or after the
date on which the Shipbuilding Trade Agreement
Act takes effect.’’.
155
(5) Section 610 (46 App. U.S.C. 1180) is amend-
ed by striking ‘‘shall be built in a domestic yard or
shall have been documented under the laws of the
United States not later than February 1, 1928, or ac-
tually ordered and under construction for the account
of citizens of the United States prior to such date,’’
and inserting ‘‘shall be built in the United States or,
if the vessel is a Shipbuilding Agreement vessel, in a
Shipbuilding Agreement Party,’’.
(6) 
Section 
901(b)(1) 
(46 
App. 
U.S.C.
1241(b)(1)) is amended by striking the third sentence
and inserting the following:
‘‘For purposes of this section, the term ‘privately owned
United States-flag commercial vessels’ shall be deemed to
include—
‘‘(A) any privately owned United States-flag
commercial vessel constructed in the United States,
and if rebuilt, rebuilt in the United States or in a
Shipbuilding Agreement Party on or after the date on
which the Shipbuilding Trade Agreement Act takes ef-
fect, and
‘‘(B) any privately owned vessel constructed in a
Shipbuilding Agreement Party on or after the date on
which the Shipbuilding Trade Agreement Act takes ef-
fect, and if rebuilt, rebuilt in a Shipbuilding Agree-
156
ment Party or in the United States, that is docu-
mented pursuant to chapter 121 of title 46, United
States Code.
The term ‘privately owned United States-flag commercial
vessels’ shall also be deemed to include any cargo vessel that
so qualified pursuant to section 615 of this Act or this para-
graph before the date on which the Shipbuilding Trade
Agreement Act takes effect. The term ‘privately owned Unit-
ed States-flag commercial vessels’ shall not be deemed to in-
clude any liquid bulk cargo vessel that does not meet the
requirements of section 3703a of title 46, United States
Code.’’.
(7) Section 905 (46 App. U.S.C. 1244) is amend-
ed by adding at the end the following:
‘‘(h) The term ‘Shipbuilding Agreement’ means the
Agreement Respecting Normal Competitive Conditions in
the Commercial Shipbuilding and Repair Industry, which
resulted from negotiations under the auspices of the Organi-
zation for Economic Cooperation and Development, and
was entered into on December 21, 1994.
‘‘(i) The term ‘Shipbuilding Agreement Party’ means
a state or separate customs territory that is a Party to the
Shipbuilding Agreement, and with respect to which the
United States applies the Shipbuilding Agreement.
157
‘‘(j) The term ‘Shipbuilding Agreement vessel’ means
a vessel to which the Secretary determines Article 2.1 of
the Shipbuilding Agreement applies.
‘‘(k) The term ‘Export Credit Understanding’ means
the Understanding on Export Credits for Ships which re-
sulted from negotiations under the auspices of the Organiza-
tion for Economic Cooperation and Development and was
entered into on December 21, 1994.
‘‘(l) The term ‘Export Credit Understanding vessel’
means a vessel to which the Secretary determines the Export
Credit Understanding applies.’’.
(8) Section 1104A (46 App. U.S.C. 1274) is
amended as follows:
(A) Paragraph (5) of subsection (b) is
amended to read as follows:
‘‘(5) shall bear interest (exclusive of charges for
the guarantee and service charges, if any) at rates not
to exceed such percent per annum on the unpaid
principal as the Secretary determines to be reason-
able, taking into account the range of interest rates
prevailing in the private market for similar loans
and the risks assumed by the Secretary, except that,
with respect to Export Credit Understanding vessels,
and Shipbuilding Agreement vessels, the obligations
shall bear interest at a rate the Secretary determines
161
‘‘(1) BENEFICIARY
DEVELOPING
COUNTRIES.—
The President is authorized to designate countries as
beneficiary developing countries for purposes of this
title.
‘‘(2) LEAST-DEVELOPED BENEFICIARY DEVELOP-
ING COUNTRIES.—The President is authorized to des-
ignate any beneficiary developing country as a least-
developed beneficiary developing country for purposes
of this title, based on the considerations in section 501
and subsection (c) of this section.
‘‘(b) COUNTRIES INELIGIBLE FOR DESIGNATION.—
‘‘(1) SPECIFIC COUNTRIES.—The following coun-
tries may not be designated as beneficiary developing
countries for purposes of this title:
‘‘(A) Australia.
‘‘(B) Canada.
‘‘(C) European Union member states.
‘‘(D) Iceland.
‘‘(E) Japan.
‘‘(F) Monaco.
‘‘(G) New Zealand.
‘‘(H) Norway.
‘‘(I) Switzerland.
‘‘(2) OTHER
BASES
FOR
INELIGIBILITY.—The
President shall not designate any country a bene-
162
ficiary developing country under this title if any of
the following applies:
‘‘(A) Such country is a Communist country,
unless—
‘‘(i) the products of such country re-
ceive nondiscriminatory treatment,
‘‘(ii) such country is a WTO Member
(as such term is defined in section 2(10) of
the Uruguay Round Agreements Act) (19
U.S.C. 3501(10)) and a member of the
International Monetary Fund, and
‘‘(iii) such country is not dominated or
controlled by international communism.
‘‘(B) Such country is a party to an ar-
rangement of countries and participates in any
action pursuant to such arrangement, the effect
of which is—
‘‘(i) to withhold supplies of vital com-
modity resources from international trade
or to raise the price of such commodities to
an unreasonable level, and
‘‘(ii) to cause serious disruption of the
world economy.
‘‘(C) Such country affords preferential
treatment to the products of a developed country,
163
other than the United States, which has, or is
likely to have, a significant adverse effect on
United States commerce.
‘‘(D)(i) Such country—
‘‘(I) has nationalized, expropriated, or
otherwise seized ownership or control of
property, including patents, trademarks, or
copyrights, owned by a United States citi-
zen or by a corporation, partnership, or as-
sociation which is 50 percent or more bene-
ficially owned by United States citizens,
‘‘(II) has taken steps to repudiate or
nullify an existing contract or agreement
with a United States citizen or a corpora-
tion, partnership, or association which is 50
percent or more beneficially owned by Unit-
ed States citizens, the effect of which is to
nationalize, expropriate, or otherwise seize
ownership or control of property, including
patents, trademarks, or copyrights, so
owned, or
‘‘(III) has imposed or enforced taxes or
other exactions, restrictive maintenance or
operational conditions, or other measures
with respect to property, including patents,
164
trademarks, or copyrights, so owned, the ef-
fect of which is to nationalize, expropriate,
or otherwise seize ownership or control of
such property,
unless clause (ii) applies.
‘‘(ii) This clause applies if the President de-
termines that—
‘‘(I) prompt, adequate, and effective
compensation has been or is being made to
the citizen, corporation, partnership, or as-
sociation referred to in clause (i),
‘‘(II) good faith negotiations to provide
prompt, adequate, and effective compensa-
tion under the applicable provisions of
international law are in progress, or the
country described in clause (i) is otherwise
taking steps to discharge its obligations
under international law with respect to
such citizen, corporation, partnership, or
association, or
‘‘(III) a dispute involving such citizen,
corporation, partnership, or association
over compensation for such a seizure has
been submitted to arbitration under the pro-
visions of the Convention for the Settlement
165
of Investment Disputes, or in another mutu-
ally agreed upon forum,
and the President promptly furnishes a copy of
such determination to the Senate and House of
Representatives.
‘‘(E) Such country fails to act in good faith
in recognizing as binding or in enforcing arbi-
tral awards in favor of United States citizens or
a corporation, partnership, or association which
is 50 percent or more beneficially owned by
United States citizens, which have been made by
arbitrators appointed for each case or by perma-
nent arbitral bodies to which the parties involved
have submitted their dispute.
‘‘(F) Such country aids or abets, by grant-
ing sanctuary from prosecution to, any individ-
ual or group which has committed an act of
international terrorism.
‘‘(G) Such country has not taken or is not
taking steps to afford internationally recognized
worker rights to workers in the country (includ-
ing any designated zone in that country).
Subparagraphs (D), (E), (F), and (G) shall not pre-
vent the designation of any country as a beneficiary
developing country under this title if the President
166
determines that such designation will be in the na-
tional economic interest of the United States and re-
ports such determination to the Congress with the rea-
sons therefor.
‘‘(c) FACTORS AFFECTING COUNTRY DESIGNATION.—
In determining whether to designate any country as a bene-
ficiary developing country under this title, the President
shall take into account—
‘‘(1) an expression by such country of its desire
to be so designated;
‘‘(2) the level of economic development of such
country, including its per capita gross national prod-
uct, the living standards of its inhabitants, and any
other economic factors which the President deems ap-
propriate;
‘‘(3) whether or not other major developed coun-
tries are extending generalized preferential tariff
treatment to such country;
‘‘(4) the extent to which such country has as-
sured the United States that it will provide equitable
and reasonable access to the markets and basic com-
modity resources of such country and the extent to
which such country has assured the United States
that it will refrain from engaging in unreasonable ex-
port practices;
167
‘‘(5) the extent to which such country is provid-
ing adequate and effective protection of intellectual
property rights;
‘‘(6) the extent to which such country has taken
action to—
‘‘(A) reduce trade distorting investment
practices and policies (including export perform-
ance requirements); and
‘‘(B) reduce or eliminate barriers to trade
in services; and
‘‘(7) whether or not such country has taken or is
taking steps to afford to workers in that country (in-
cluding any designated zone in that country) inter-
nationally recognized worker rights.
‘‘(d) WITHDRAWAL, SUSPENSION, OR LIMITATION OF
COUNTRY DESIGNATION.—
‘‘(1) IN
GENERAL.—The President may with-
draw, suspend, or limit the application of the duty-
free treatment accorded under this title with respect
to any country. In taking any action under this sub-
section, the President shall consider the factors set
forth in section 501 and subsection (c) of this section.
‘‘(2) CHANGED CIRCUMSTANCES.—The President
shall, after complying with the requirements of sub-
section (f)(2), withdraw or suspend the designation of
168
any country as a beneficiary developing country if,
after such designation, the President determines that
as the result of changed circumstances such country
would be barred from designation as a beneficiary de-
veloping country under subsection (b)(2). Such coun-
try shall cease to be a beneficiary developing country
on the day on which the President issues an Executive
order or Presidential proclamation revoking the des-
ignation of such country under this title.
‘‘(3) ADVICE
TO
CONGRESS.—The President
shall, as necessary, advise the Congress on the appli-
cation of section 501 and subsection (c) of this sec-
tion, and the actions the President has taken to with-
draw, to suspend, or to limit the application of duty-
free treatment with respect to any country which has
failed to adequately take the actions described in sub-
section (c).
‘‘(e) MANDATORY GRADUATION OF BENEFICIARY DE-
VELOPING COUNTRIES.—If the President determines that a
beneficiary developing country has become a ‘high income’
country, as defined by the official statistics of the Inter-
national Bank for Reconstruction and Development, then
the President shall terminate the designation of such coun-
try as a beneficiary developing country for purposes of this
169
title, effective on January 1 of the second year following
the year in which such determination is made.
‘‘(f) CONGRESSIONAL NOTIFICATION.—
‘‘(1) NOTIFICATION OF DESIGNATION.—
‘‘(A) IN
GENERAL.—Before the President
designates any country as a beneficiary develop-
ing country under this title, the President shall
notify the Congress of the President’s intention to
make such designation, together with the consid-
erations entering into such decision.
‘‘(B) DESIGNATION
AS
LEAST-DEVELOPED
BENEFICIARY
DEVELOPING
COUNTRY.—At least
60 days before the President designates any
country as a least-developed beneficiary develop-
ing country, the President shall notify the Con-
gress of the President’s intention to make such
designation.
‘‘(2) NOTIFICATION
OF
TERMINATION.—If the
President has designated any country as a beneficiary
developing country under this title, the President
shall not terminate such designation unless, at least
60 days before such termination, the President has
notified the Congress and has notified such country of
the President’s intention to terminate such designa-
170
tion, together with the considerations entering into
such decision.
‘‘SEC. 503. DESIGNATION OF ELIGIBLE ARTICLES.
‘‘(a) ELIGIBLE ARTICLES.—
‘‘(1) DESIGNATION.—
‘‘(A) IN GENERAL.—Except as provided in
subsection (b), the President is authorized to des-
ignate articles as eligible articles from all bene-
ficiary developing countries for purposes of this
title by Executive order or Presidential procla-
mation after receiving the advice of the Inter-
national Trade Commission in accordance with
subsection (e).
‘‘(B) LEAST-DEVELOPED BENEFICIARY DE-
VELOPING COUNTRIES.—Except for articles de-
scribed in subparagraphs (A), (B), and (E) of
subsection (b)(1) and articles described in para-
graphs (2) and (3) of subsection (b), the Presi-
dent may, in carrying out section 502(d)(1) and
subsection (c)(1) of this section, designate articles
as eligible articles only for countries designated
as least-developed beneficiary developing coun-
tries under section 502(a)(2) if, after receiving
the advice of the International Trade Commis-
sion in accordance with subsection (e) of this sec-
171
tion, the President determines that such articles
are not import-sensitive in the context of imports
from least-developed beneficiary developing coun-
tries.
‘‘(C) THREE-YEAR RULE.—If, after receiv-
ing the advice of the International Trade Com-
mission under subsection (e), an article has been
formally considered for designation as an eligible
article under this title and denied such designa-
tion, such article may not be reconsidered for
such designation for a period of 3 years after
such denial.
‘‘(2) RULE OF ORIGIN.—
‘‘(A) GENERAL RULE.—The duty-free treat-
ment provided under this title shall apply to any
eligible article which is the growth, product, or
manufacture of a beneficiary developing country
if—
‘‘(i) that article is imported directly
from a beneficiary developing country into
the customs territory of the United States;
and
‘‘(ii) the sum of—
‘‘(I) the cost or value of the mate-
rials produced in the beneficiary devel-
172
oping country or any two or more such
countries that are members of the same
association of countries and are treated
as one country under section 507(2),
plus
‘‘(II) the direct costs of processing
operations performed in such bene-
ficiary developing country or such
member countries,
is not less than 35 percent of the appraised
value of such article at the time it is en-
tered.
‘‘(B) EXCLUSIONS.—An article shall not be
treated as the growth, product, or manufacture of
a beneficiary developing country by virtue of
having merely undergone—
‘‘(i) simple combining or packaging
operations, or
‘‘(ii) mere dilution with water or mere
dilution with another substance that does
not materially alter the characteristics of
the article.
‘‘(3) REGULATIONS.—The Secretary of the Treas-
ury, after consulting with the United States Trade
Representative, shall prescribe such regulations as
173
may be necessary to carry out paragraph (2), includ-
ing, but not limited to, regulations providing that,
in order to be eligible for duty-free treatment under
this title, an article—
‘‘(A) must be wholly the growth, product, or
manufacture of a beneficiary developing country,
or
‘‘(B) must be a new or different article of
commerce which has been grown, produced, or
manufactured in the beneficiary developing
country.
‘‘(b) ARTICLES THAT MAY NOT BE DESIGNATED AS
ELIGIBLE ARTICLES.—
‘‘(1) IMPORT SENSITIVE ARTICLES.—The Presi-
dent may not designate any article as an eligible ar-
ticle under subsection (a) if such article is within one
of the following categories of import-sensitive articles:
‘‘(A) Textile and apparel articles which
were not eligible articles for purposes of this title
on January 1, 1994, as this title was in effect
on such date.
‘‘(B) Watches, except those watches entered
after June 30, 1989, that the President specifi-
cally determines, after public notice and com-
ment, will not cause material injury to watch or
174
watch band, strap, or bracelet manufacturing
and assembly operations in the United States or
the United States insular possessions.
‘‘(C) Import-sensitive electronic articles.
‘‘(D) Import-sensitive steel articles.
‘‘(E) Footwear, handbags, luggage, flat
goods, work gloves, and leather wearing apparel
which were not eligible articles for purposes of
this title on January 1, 1995, as this title was
in effect on such date.
‘‘(F) 
Import-sensitive 
semimanufactured
and manufactured glass products.
‘‘(G) Any other articles which the President
determines to be import-sensitive in the context
of the Generalized System of Preferences.
‘‘(2) ARTICLES AGAINST WHICH OTHER ACTIONS
TAKEN.—An article shall not be an eligible article for
purposes of this title for any period during which
such article is the subject of any action proclaimed
pursuant to section 203 of this Act (19 U.S.C. 2253)
or section 232 or 351 of the Trade Expansion Act of
1962 (19 U.S.C. 1862, 1981).
‘‘(3) AGRICULTURAL PRODUCTS.—No quantity of
an agricultural product subject to a tariff-rate quota
175
that exceeds the in-quota quantity shall be eligible for
duty-free treatment under this title.
‘‘(c) WITHDRAWAL, SUSPENSION, OR LIMITATION OF
DUTY-FREE TREATMENT; COMPETITIVE NEED LIMITA-
TION.—
‘‘(1) IN
GENERAL.—The President may with-
draw, suspend, or limit the application of the duty-
free treatment accorded under this title with respect
to any article, except that no rate of duty may be es-
tablished with respect to any article pursuant to this
subsection other than the rate which would apply but
for this title. In taking any action under this sub-
section, the President shall consider the factors set
forth in sections 501 and 502(c).
‘‘(2) COMPETITIVE NEED LIMITATION.—
‘‘(A) BASIS
FOR
WITHDRAWAL
OF
DUTY-
FREE TREATMENT.—
‘‘(i) IN GENERAL.—Except as provided
in clause (ii) and subject to subsection (d),
whenever the President determines that a
beneficiary developing country has exported
(directly or indirectly) to the United States
during any calendar year beginning after
December 31, 1995—
176
‘‘(I) a quantity of an eligible arti-
cle having an appraised value in excess
of the applicable amount for the cal-
endar year, or
‘‘(II) a quantity of an eligible ar-
ticle equal to or exceeding 50 percent of
the appraised value of the total im-
ports of that article into the United
States during any calendar year,
the President shall, not later than July 1 of
the next calendar year, terminate the duty-
free treatment for that article from that
beneficiary developing country.
‘‘(ii) ANNUAL ADJUSTMENT OF APPLI-
CABLE AMOUNT.—For purposes of applying
clause (i), the applicable amount is—
‘‘(I) for 1996, $75,000,000, and
‘‘(II) for each calendar year there-
after, an amount equal to the applica-
ble amount in effect for the preceding
calendar year plus $5,000,000.
‘‘(B) COUNTRY DEFINED.—For purposes of
this paragraph, the term ‘country’ does not in-
clude an association of countries which is treated
as one country under section 507(2), but does in-
177
clude a country which is a member of any such
association.
‘‘(C) REDESIGNATIONS.—A country which
is no longer treated as a beneficiary developing
country with respect to an eligible article by rea-
son of subparagraph (A) may, subject to the con-
siderations set forth in sections 501 and 502, be
redesignated a beneficiary developing country
with respect to such article if imports of such ar-
ticle from such country did not exceed the limita-
tions in subparagraph (A) during the preceding
calendar year.
‘‘(D) LEAST-DEVELOPED BENEFICIARY DE-
VELOPING COUNTRIES.—Subparagraph (A) shall
not apply to any least-developed beneficiary de-
veloping country.
‘‘(E) ARTICLES
NOT
PRODUCED
IN
THE
UNITED
STATES
EXCLUDED.—Subparagraph
(A)(i)(II) shall not apply with respect to any eli-
gible article if a like or directly competitive arti-
cle was not produced in the United States on
January 1, 1995.
‘‘(F) DE MINIMIS WAIVERS.—
‘‘(i) IN GENERAL.—The President may
disregard subparagraph (A)(i)(II) with re-