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‘‘(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
reasons 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
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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 ad-
ministering authority or the Commission that the
designation is warranted, or withdraws the designa-
tion, the administering authority or the Commission,
as the case may be, shall return it to the party sub-
mitting it. In a case in which the administering au-
thority or the Commission returns the information
to the person submitting it, the person may there-
after submit other material concerning the subject
matter of the returned information if the submission
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is made within the time otherwise provided for sub-
mitting such material.
‘‘(c) LIMITED DISCLOSURE
OF CERTAIN PROPRI-
ETARY INFORMATION UNDER PROTECTIVE ORDER.—
‘‘(1) DISCLOSURE BY ADMINISTERING AUTHOR-
ITY OR COMMISSION.—
‘‘(A) IN
GENERAL.—Upon receipt of an
application (before or after receipt of the infor-
mation requested) which describes in general
terms the information requested and sets forth
the reasons for the request, the administering
authority or the Commission shall make all
business proprietary information presented to,
or obtained by it, during a proceeding under
this title (except privileged information, classi-
fied information, and specific information of a
type for which there is a clear and compelling
need to withhold from disclosure) available to
all interested parties who are parties to the pro-
ceeding under a protective order described in
subparagraph (B), regardless of when the infor-
mation is submitted during the proceeding.
Customer names (other than the name of the
United States buyer of the subject vessel) ob-
tained during any investigation which requires
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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 result of
the investigation or the investigation is sus-
pended 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 be-
fore any hearing provided under section 841 is
held.
‘‘(B) PROTECTIVE ORDER.—The protective
order under which information is made avail-
able shall contain such requirements as the ad-
ministering authority or the Commission may
determine by regulation to be appropriate. The
administering authority and the Commission
shall provide by regulation for such sanctions as
the administering authority and the Commis-
sion determine to be appropriate, including dis-
barment from practice before the agency.
‘‘(C) TIME LIMITATIONS ON DETERMINA-
TIONS.—The administering authority or the
Commission, as the case may be, shall deter-
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mine whether to make information available
under this paragraph—
‘‘(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 submitting the
information raises objection to its re-
lease, or
‘‘(II) the information is unusu-
ally 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
information is submitted.
‘‘(D) AVAILABILITY
AFTER
DETERMINA-
TION.—If the determination under subpara-
graph (C) is affirmative, then—
‘‘(i) the business proprietary informa-
tion submitted to the administering au-
thority or the Commission on or before the
date of the determination shall be made
available, subject to the terms and condi-
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tions of the protective order, on such date,
and
‘‘(ii) the business proprietary informa-
tion submitted to the administering au-
thority or the Commission after the date of
the determination shall be served as re-
quired 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 protec-
tive order described in subparagraph (B), the
administering authority shall return the infor-
mation, and any nonconfidential summary
thereof, to the person submitting the informa-
tion and summary and shall not consider either.
‘‘(2) DISCLOSURE
UNDER
COURT
ORDER.—If
the administering authority or the Commission de-
nies 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 administering authority or the Commission, as
the case may be, to make the information available.
After notification of all parties to the investigation
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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 effect of stopping or suspending
the investigation, directing the administering author-
ity or the Commission to make all or a portion of
the requested information described in the preceding
sentence available under a protective order and set-
ting 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 informa-
tion 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 de-
veloped, and
‘‘(C) the party which submitted the infor-
mation to which the request relates has been
notified, in advance of the hearing, of the re-
quest made under this section and of its right
to appear and be heard.
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‘‘(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 proceed-
ing, if the information is covered by a protective order.
The administering authority or the Commission shall not
accept any such information that is not accompanied by
a certificate of service and a copy of the protective order
version of the document containing the information. Busi-
ness proprietary information shall only be served upon in-
terested 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
PROTECTIVE ORDERS AND SANCTIONS.—The administer-
ing authority and the Commission may withhold from dis-
closure any correspondence, private letters of reprimand,
settlement agreements, and documents and files compiled
in relation to investigations and actions involving a viola-
tion or possible 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, Unit-
ed States Code.
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‘‘(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 au-
thority concerning a sale at less than fair value or counter-
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 administer-
ing authority makes a determination under section
802 whether to initiate an investigation, or the ad-
ministering authority or the Commission makes a
preliminary determination under section 803, a final
determination under section 805, a determination
under subsection (b), (c), (d), (e)(3)(B)(ii), (g), or
(i) of section 807, or a determination to suspend an
investigation under this title, the administering au-
thority or the Commission, as the case may be, shall
publish the facts and conclusions supporting that de-
termination, and shall publish notice of that deter-
mination in the Federal Register.
‘‘(2) CONTENTS
OF
NOTICE
OR
DETERMINA-
TION.—The notice or determination published under
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paragraph (1) shall include, to the extent applica-
ble—
‘‘(A) in the case of a determination of the
administering authority—
‘‘(i) the names of the foreign producer
and the country of origin of the subject
vessel,
‘‘(ii) a description sufficient to iden-
tify the subject vessel,
‘‘(iii) with respect to an injurious pric-
ing charge, the injurious pricing margin
established and a full explanation of the
methodology used in establishing such
margin,
‘‘(iv) with respect to countermeasures,
the scope and duration of countermeasures
and, if applicable, any changes thereto,
and
‘‘(v) the primary reasons for the de-
termination, and
‘‘(B) in the case of a determination of the
Commission—
‘‘(i) considerations relevant to the de-
termination of injury, and
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‘‘(ii) the primary reasons for the de-
termination.
‘‘(3) ADDITIONAL REQUIREMENTS FOR FINAL
DETERMINATIONS.—In addition to the requirements
set forth in paragraph (2)—
‘‘(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
relevant 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
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interested party shall certify that such information is ac-
curate and complete to the best of that person’s knowl-
edge.
‘‘(b) DIFFICULTIES IN MEETING REQUIREMENTS.—
‘‘(1) NOTIFICATION BY INTERESTED PARTY.—
If an interested party, promptly after receiving a re-
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, to-
gether with a full explanation and suggested alter-
native forms in which such party is able to submit
the information, the administering authority or the
Commission (as the case may be) shall consider the
ability of the interested party to submit the informa-
tion in the requested form and manner and may
modify such requirements 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 admin-
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istering authority or the Commission in connection
with investigations 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 com-
ply with the request, the administering authority or the
Commission (as the case may be) shall promptly inform
the person 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 defi-
ciency in light of the time limits established for the com-
pletion of investigations or reviews under this title. If that
person submits further information in response to such
deficiency and either—
‘‘(1) the administering authority or the Com-
mission (as the case may be) finds that such re-
sponse 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.
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‘‘(d) USE OF CERTAIN INFORMATION.—In reaching
a determination under section 803, 805, or 807, the ad-
ministering authority and the Commission shall not de-
cline to consider information that is submitted by an inter-
ested party and is necessary to the determination but does
not meet all the applicable requirements established by the
administering authority or the Commission if—
‘‘(1) the information is submitted by the dead-
line established for its submission,
‘‘(2) the information can be verified,
‘‘(3) the information is not so incomplete that
it cannot serve as a reliable basis for reaching the
applicable 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
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explanation of the reasons for not accepting the informa-
tion.
‘‘(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
proceeding under this title shall be subject to comment
by other parties within such reasonable time as the admin-
istering authority or the Commission shall provide. The
administering authority and the Commission, before mak-
ing a final determination under section 805 or 807, shall
cease collecting information and shall provide the parties
with a final opportunity to comment on the information
obtained by the administering authority or the Commis-
sion (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 settle-
ment panel under the Shipbuilding Agreement finds
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in a report that an action by the Commission in con-
nection with a particular proceeding under this title
is not in conformity with the obligations of the Unit-
ed States under the Shipbuilding Agreement, the
Trade Representative may request the Commission
to issue an advisory report on whether this title per-
mits the Commission to take steps in connection
with the particular proceeding that would render its
action not inconsistent with the findings of the panel
concerning those obligations. The Trade Representa-
tive shall notify 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 COM-
MISSION
DETERMINATION.—If a majority of the
Commissioners issues an affirmative report under
paragraph (1), the Trade Representatives shall con-
sult with the congressional committees listed in
paragraph (1) concerning the matter.
‘‘(4) COMMISSION
DETERMINATION.—Notwith-
standing any other provision of this title, if a major-
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ity of the Commissioners issues an affirmative report
under paragraph (1), the Commission, upon the
written request of the Trade Representative, shall
issue a determination in connection with the particu-
lar proceeding 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 Representa-
tive is made.
‘‘(5) CONSULTATIONS ON IMPLEMENTATION OF
COMMISSION
DETERMINATION.—The Trade Rep-
resentative shall consult with the congressional com-
mittees listed in paragraph (1) before the Commis-
sion’s determination under paragraph (4) is imple-
mented.
‘‘(6) REVOCATION OF ORDER.—If, by virtue of
the Commission’s determination under paragraph
(4), an injurious pricing order is no longer sup-
ported 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.—
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‘‘(1) CONSULTATIONS
WITH
ADMINISTERING
AUTHORITY
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,
‘‘(B) the due date for payment of an inju-
rious pricing charge contained in an order is-
sued 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-
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sponse to a written request from the Trade Rep-
resentative, issue a determination, or an amendment
to or suspension of an injurious pricing or counter-
measure order, as the case may be, in connection
with the particular proceeding that would render the
administering authority’s action described in para-
graph (1) not inconsistent with the findings of the
panel.
‘‘(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
congressional committees listed in subsection (a)(1)
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with respect to such determination, amendment, or
suspension.
‘‘(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
under paragraph (2).
‘‘(6) IMPLEMENTATION
OF
DETERMINATION;
NOTICE
OF
IMPLEMENTATION.—The administering
authority shall implement the determination, amend-
ment, or suspension under paragraph (2)—
‘‘(A) with respect to a matter described in
subparagraph (A) of paragraph (1), only if the
injurious pricing margin determined under
paragraph (2) differs from the injurious pricing
margin in the determination reviewed by the
panel, and
‘‘(B) with respect to a matter described in
subparagraph (B), (C), or (D) of paragraph
(1), upon issuance of the determination, amend-
ment, or suspension under paragraph (2).
The administering authority shall publish notice of
such implementation in the Federal Register.
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‘‘(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 du-
ties 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
foreign country, a political subdivision, dependent
territory, or possession of a foreign country and, ex-
cept as provided in paragraph (16)(E)(iii), may not
include an association of 2 or more foreign coun-
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tries, political subdivisions, dependent territories, or
possessions of countries into a customs union out-
side 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 pro-
portion of the total domestic capability to
produce a domestic like vessel.
‘‘(B) PRODUCER.—A ‘producer’ of a do-
mestic like vessel includes an entity that is pro-
ducing the domestic like vessel and an entity
with the capability to produce the domestic like
vessel.
‘‘(C) CAPABILITY TO PRODUCE A DOMES-
TIC LIKE VESSEL.—A producer has the ‘capa-
bility 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.
‘‘(D) RELATED PARTIES.—(i) In an inves-
tigation under this title, if a producer of a do-
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mestic like vessel and the foreign producer, sell-
er (other than the foreign producer), or United
States buyer of the subject vessel are related
parties, or if a producer of a domestic like ves-
sel is also a United States buyer of the subject
vessel, the domestic producer may, in appro-
priate circumstances, be excluded from the in-
dustry.
‘‘(ii) For purposes of clause (i), a domestic
producer and the foreign producer, seller, or
United States buyer shall be considered to be
related parties, if—
‘‘(I) the domestic producer directly or
indirectly controls the foreign producer,
seller 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
buyer directly or indirectly control a third
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party and there is reason to believe that
the relationship causes the producer to act
differently than a nonrelated producer.
For purposes of this subparagraph, a party
shall be considered to directly or indirectly con-
trol another party if the party is legally or oper-
ationally in a position to exercise restraint or
direction over the other party.
‘‘(E) PRODUCT
LINES.—In an investiga-
tion under this title, the effect of the sale of the
subject vessel shall be assessed in relation to
the United States production (or production ca-
pability) of a domestic like vessel if available
data permit the separate identification of pro-
duction (or production capability) in terms of
such criteria as the production process or the
producer’s profits. If the domestic production
(or production capability) of a domestic like
vessel has no separate identity in terms of such
criteria, then the effect of the sale shall be as-
sessed by the examination of the production (or
production capability) of the narrowest group or
range of vessels, which includes a domestic like
vessel, for which the necessary information can
be provided.
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‘‘(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
charter, in conjunction with the original transfer
from the producer, either directly or indirectly, in-
cluding an individual or company which owns or con-
trols a buyer. There may be more than one buyer of
any one vessel.
‘‘(6) UNITED STATES BUYER.—The term ‘Unit-
ed States buyer’ means a buyer that is any of the
following:
‘‘(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, pri-
vately 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
subparagraphs (A) and (B). For the purposes
of this subparagraph—
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‘‘(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 pre-
sumed 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
interest’ in a vessel includes any contractual or pro-
prietary interest which allows the beneficiary or
beneficiaries of such interest to take advantage of
the operation of the vessel in a manner substantially
comparable to the way in which an owner may bene-
fit from the operation of the vessel. In determining
whether such substantial comparability exists, the
administering authority shall consider—
‘‘(A) the terms and circumstances of the
transaction which conveys the interest,
‘‘(B) commercial practice,
‘‘(C) whether the vessel subject to the
transaction is integrated into the operations of
the beneficiary or beneficiaries, and
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‘‘(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 signifi-
cant 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—
‘‘(i) any fishing vessel destined for the
fishing fleet of the country in which the
vessel is built,
‘‘(ii) any military vessel,
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‘‘(iii) a military reserve vessel, and
‘‘(iv) any vessel sold before the date
that the Shipbuilding Agreement enters
into force with respect to the United
States, except 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 administering authority that the ex-
tended delivery date was for normal com-
mercial reasons and not to avoid applica-
bility 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
structural characteristics and ability, is in-
tended to be used exclusively for military pur-
poses.
‘‘(E) 
MILITARY
RESERVE
VESSEL.—A
‘military reserve vessel’ is a vessel that has been
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constructed with national defense features and
characteristics required by the Secretary of De-
fense for the purpose of supporting the United
States Armed Forces in a contingency.
‘‘(9) LIKE
VESSEL.—The term ‘like vessel’
means a vessel of the same type, same purpose, and
approximate size as the subject vessel and possessing
characteristics closely resembling those of the sub-
ject 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 produc-
er’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
vessel, but of a significantly different size.
‘‘(13) SUBJECT
VESSEL.—The term ‘subject
vessel’ means a vessel subject to investigation under
section 801, 808, or 809.
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‘‘(14) FOREIGN PRODUCER.—The term ‘foreign
producer’ means the producer or producers of the
subject vessel.
‘‘(15) EXPORTING
COUNTRY.—The term ‘ex-
porting country’ means the country in which the
subject vessel was built.
‘‘(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 produc-
ers of the domestic like vessel, but
only in the context of production oper-
ations within the United States, and
‘‘(ii) may consider such other eco-
nomic factors as are relevant to the deter-
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mination regarding whether there is or has
been material injury by reason of the sale
of the subject vessel.
In the notification required under section
805(d), the Commission shall explain its analy-
sis of each factor considered under clause (i),
and identify each factor considered under clause
(ii) and explain in full its relevance to the deter-
mination.
‘‘(C) EVALUATION
OF
RELEVANT
FAC-
TORS.—For purposes of subparagraph (B)—
‘‘(i) SALE
OF
THE
SUBJECT
VES-
SEL.—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 do-
mestic like vessel, and
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‘‘(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 increases, which otherwise would
have occurred, to a significant degree.
‘‘(iii) IMPACT ON AFFECTED DOMES-
TIC INDUSTRY.—In examining the impact
required to be considered under subpara-
graph (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,
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‘‘(IV) actual and potential nega-
tive effects on the existing develop-
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
‘‘(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 dis-
tinctive 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 rea-
son of the sale of the subject vessel, the
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Commission 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 a foreign like vessel to United
States buyers, taking into account the
availability of other export markets to
absorb any additional exports,
‘‘(II) whether the sale of a for-
eign like vessel or other factors indi-
cate the likelihood of significant addi-
tional 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
depressing or suppressing effect on
domestic prices, and are likely to in-
crease demand for further sales,
‘‘(IV) the potential for product-
shifting if production facilities in the
exporting country, which can pres-
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ently be used to produce a foreign like
vessel or could be adapted in a timely
manner to produce a foreign like ves-
sel, are currently being used to
produce other types of vessels,
‘‘(V) the actual and potential
negative effects on the existing devel-
opment and production efforts of the
domestic 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
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the basis of mere conjecture or suppo-
sition.
‘‘(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
countries (as evidenced by injurious
pricing findings or injurious pricing
remedies of other Shipbuilding Agree-
ment Parties, or antidumping deter-
minations of, or measures imposed by,
other countries, against a like vessel
produced by the producer under inves-
tigation) suggests a threat of material
injury to the domestic industry. In the
course of its investigation, the Com-
mission 
shall 
request 
information
from the foreign producer or United
States buyer concerning this issue.
‘‘(II) 
EUROPEAN
COMMU-
NITIES.—For purposes of this clause,
the European Communities as a whole
shall be treated as a single foreign
country.
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‘‘(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
vessels from all foreign producers with re-
spect 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
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)—
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‘‘(I) with respect to which the ad-
ministering authority has made a pre-
liminary negative determination, un-
less the administering authority sub-
sequently made a final affirmative de-
termination with respect to those sales
before the Commission’s final deter-
mination is made, or
‘‘(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, ex-
cept that when the administering authority
issues its final determination in a subse-
quently completed investigation, the Com-
mission shall permit the parties in the sub-
sequent investigation to submit comments
concerning the significance of the admin-
istering authority’s final determination,
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and shall include such comments and the
administering authority’s final determina-
tion in the record for the subsequent inves-
tigation.
‘‘(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-
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 sec-
tion 802(b) and investigations were initi-
ated under section 802(a) on the same
day,
if, with respect to such vessels, the foreign pro-
ducers compete with each other and with pro-
ducers of a domestic like vessel in the United
States market.
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‘‘(17) INTERESTED PARTY.—The term ‘inter-
ested 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 manu-
factured,
‘‘(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
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‘‘(G) for purposes of section 807, a pur-
chaser who, after the effective date of an order
issued under that section, entered into a con-
tract 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—
‘‘(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 affirm-
ative 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
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and practices which, for a reasonable time before the
sale of the subject vessel, have been normal in the
shipbuilding industry with respect to a like vessel.
The administering authority shall consider the fol-
lowing 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 not operate on market principles of cost or
pricing 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,
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‘‘(ii) the extent to which wage rates in
the foreign country are determined by free
bargaining between labor and manage-
ment,
‘‘(iii) the extent to which joint ven-
tures or other investments by firms of
other foreign 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 enter-
prises, and
‘‘(vi) such other factors as the admin-
istering authority considers appropriate.
‘‘(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.
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‘‘(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
subject to judicial review in any investigation
conducted 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 Organi-
zation 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
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 mem-
ber’ means a state, or separate customs territory
(within the meaning of Article XII of the WTO
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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
persons shall be considered to be ‘affiliated’ or ‘af-
filiated persons’:
‘‘(A) Members of a family, including broth-
ers and sisters (whether by the whole or half
blood), spouse, ancestors, and lineal descend-
ants.
‘‘(B) Any officer or director of an organi-
zation and such organization.
‘‘(C) Partners.
‘‘(D) Employer and employee.
‘‘(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
organization.
‘‘(F) Two or more persons directly or indi-
rectly controlling, controlled by, or under com-
mon control with, any person.
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‘‘(G) Any person who controls any other
person, and such other person.
For purposes of this paragraph, a person shall be
considered to control another person if the person is
legally or operationally in a position to exercise re-
straint or direction over the other person.
‘‘(27) INJURIOUS PRICING.—The term ‘injuri-
ous 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
subject vessel.
‘‘(B) MAGNITUDE
OF
THE
INJURIOUS
PRICING MARGIN.—The magnitude of the inju-
rious 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 as-
sesses the effect of sales under paragraph
(16)(F)(i)), the injurious pricing margin or
margins published by the administering
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authority in its notice of initiation of the
investigation; 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, re-
sulting from negotiations under the auspices of the
Organization 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
Agreement on Tariffs and Trade 1994.
‘‘(B) OTHER CASES.—In the case of any
country that is not a WTO member, the term
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‘antidumping’ refers to action taken by the
country 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 at least all the pro-
ducers in the industry known by the buyer to be ca-
pable of building the subject vessel.’’.
SEC. 102. ENFORCEMENT OF COUNTERMEASURES.
Part II of title IV of the Tariff Act of 1930 is amend-
ed by adding at the end the following:
‘‘SEC. 
468. 
SHIPBUILDING 
AGREEMENT 
COUNTER-
MEASURES.
‘‘(a) IN GENERAL.—Notwithstanding any other pro-
vision of law, upon receiving from the Secretary of Com-
merce a list of vessels subject to countermeasures under
section 807, the Customs Service shall deny any request
for a permit to lade or unlade passengers, merchandise,
or baggage from or onto those vessels so listed.
‘‘(b) EXCEPTIONS.—Subsection (a) shall not be ap-
plied to deny a permit for the following:
‘‘(1) To unlade any United States citizen or
permanent legal resident alien from a vessel included
in the list described in subsection (a), or to unlade
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any refugee or any alien who would otherwise be eli-
gible to apply for asylum and withholding of depor-
tation 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
determine necessary to protect the immediate health,
safety, or welfare of a human being.
‘‘(c) CORRECTION
OF MINISTERIAL
OR CLERICAL
ERRORS.—
‘‘(1) PETITION FOR CORRECTION.—If the mas-
ter of any vessel whose application for a permit to
lade or unlade has been denied under this section be-
lieves that such denial resulted from a ministerial or
clerical error, not amounting to a mistake of law,
committed by any Customs officer, the master may
petition the Customs Service for correction of such
error, as provided by regulation.
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‘‘(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 cor-
rection under section 520.
‘‘(3) PETITIONS SEEKING ADMINISTRATIVE RE-
VIEW.—Any petition seeking administrative review
of any matter regarding the Secretary of Com-
merce’s decision to list a vessel under section 807
must be brought under that section.
‘‘(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 ves-
sel—
‘‘(1) who submits false information in request-
ing 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. 103. JUDICIAL REVIEW IN INJURIOUS PRICING AND
COUNTERMEASURE PROCEEDINGS.
(a) JUDICIAL REVIEW.—Part III of title IV of the
Tariff Act of 1930 is amended by inserting after section
516A the following:
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‘‘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 initi-
ate 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 injury, threat of material injury, or
material retardation,
‘‘(iii) a determination by the administering
authority to suspend or revoke an injurious
pricing 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 section 807(e)(3)(B)(ii),
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‘‘(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 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
paragraph (2), or
‘‘(iv) notice of revocation of an injurious
pricing order based on a determination de-
scribed in subparagraph (D) of paragraph (2),
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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
conclusions upon which the determination is based.
‘‘(2) REVIEWABLE DETERMINATIONS.—The de-
terminations referred to in paragraph (1)(B) are—
‘‘(A) a final affirmative determination by
the administering authority or by the Commis-
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
section, and
‘‘(D) a determination by the Commission
under section 845(a) that results in the revoca-
tion of an injurious pricing order.
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‘‘(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 pub-
lication in the Federal Register of a final negative
determination 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.
‘‘(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 unsup-
ported by substantial evidence on the record, or
otherwise not in accordance with law.
‘‘(2) RECORD FOR REVIEW.—
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‘‘(A) IN GENERAL.—For purposes of this
subsection, the record, unless otherwise stipu-
lated 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
hearings, and all notices published in the
Federal Register.
‘‘(B) CONFIDENTIAL OR PRIVILEGED MA-
TERIAL.—The confidential or privileged status
accorded to any documents, comments, or infor-
mation shall be preserved in any action under
this section. Notwithstanding the preceding sen-
tence, the court may examine, in camera, the
confidential or privileged material, and may dis-
close such material under such terms and con-
ditions as it may order.
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‘‘(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 ac-
tion 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 prescribed 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).
‘‘(2) COMMISSION.—The term ‘Commission’
means the United States International Trade Com-
mission.
‘‘(3) INTERESTED
PARTY.—The term ‘inter-
ested 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—
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(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
Tariff Act of 1930, the Court of International Trade may
not issue injunctions or any other form of equitable relief,
except with regard to implementation of a countermeasure
order under section 468 of that Act, upon a proper show-
ing that such relief is warranted.’’.
TITLE II—OTHER PROVISIONS
SEC. 201. 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
subsection:
‘‘(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.
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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. 202. 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
(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. 203. IMPLEMENTING REGULATIONS.
After the date of the enactment of this Act, the heads
of agencies with functions under this Act and the amend-
ments made by this Act may issue such regulations as may
be necessary to ensure that this Act is appropriately im-
plemented on the date the Shipbuilding Agreement enters
into force with respect to the United States.
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SEC. 204. 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
Agreement vessel, constructed in a Shipbuilding
Agreement Party, but only with regard to moneys
deposited, on or after the date on which the Ship-
building Trade Agreement Act takes effect, into a
construction reserve fund established under sub-
section (b)’’.
(2) Section 601(a) (46 App. U.S.C. 1171(a)) is
amended by striking ‘‘, and that such vessel or ves-
sels were built in the United States, or have been
documented 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 Ship-
building Agreement vessels, in a Shipbuilding Agree-
ment Party’’.
(3) Section 606(6) (46 App. U.S.C. 1176(6)) is
amended by inserting ‘‘or, if the vessel is a Ship-
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building Agreement vessel, in a Shipbuilding Agree-
ment Party or in the United States’’ before ‘‘, except
in an emergency.’’.
(4) Section 607 (46 App. U.S.C. 1177) is
amended 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:
(i) Paragraph (1) is amended by
striking subparagraph (A) and inserting
the following:
‘‘(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 vessel
and is constructed in a Shipbuilding Agreement
Party and, if reconstructed, is reconstructed in a
Shipbuilding Agreement Party or in the United
States,’’.
(ii) Paragraph (2)(A) is amended to
read as follows:
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‘‘(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 vessel
and is constructed in a Shipbuilding Agreement
Party and, if reconstructed, is reconstructed 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 Ship-
building Trade Agreement Act takes effect,’’.
(5) Section 610 (46 App. U.S.C. 1180) is
amended 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 actually ordered and under construction for
the account of citizens of the United States prior to
such date,’’ and inserting ‘‘shall be built in the Unit-
ed States or, if the vessel is a Shipbuilding Agree-
ment 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 sen-
tence and inserting the following:
‘‘For purposes of this section, the term ‘privately owned
United States-flag commercial vessels’ shall be deemed to
include—
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‘‘(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 effect, 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 effect, and if rebuilt, rebuilt in a Shipbuilding
Agreement Party or in the United States, that is
documented 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 paragraph before the date on which the Shipbuilding
Trade Agreement Act takes effect. The term ‘privately
owned United States-flag commercial vessels’ shall not be
deemed to include 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
amended by adding at the end the following:
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‘‘(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 Orga-
nization 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.
‘‘(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 Organi-
zation 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 Ex-
port 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:
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‘‘(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
to be consistent with obligations of the United
States under the Export Credit Understanding or
the Shipbuilding Agreement, as the case may be;’’.
(B) Subsection (i) is amended to read as
follows:
‘‘(i)(1) Except as provided in paragraph (2), the Sec-
retary may not, with respect to—
‘‘(A) the general 75 percent or less limitation
contained in subsection (b)(2),
‘‘(B) the 871⁄2 percent or less limitation con-
tained in the 1st, 2nd, 4th, or 5th proviso to sub-
section (b)(2) or in section 1112(b), or
‘‘(C) the 80 percent or less limitation in the 3rd
proviso to such subsection,
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establish by rule, regulation, or procedure any percentage
within any such limitation that is, or is intended to be,
applied uniformly to all guarantees or commitments to
guarantee made under this section that are subject to the
limitation.
‘‘(2) With respect to Export Credit Understanding
vessels and Shipbuilding Agreement vessels, the Secretary
may establish by rule, regulation, or procedure a uniform
percentage that the Secretary determines to be consistent
with obligations of the United States under the Export
Credit Understanding or the Shipbuilding Agreement, as
the case may be.’’.
(C) Section 1104B(b) (46 App. U.S.C.
1274a(b)) is amended by striking the period at
the end and inserting the following:
‘‘, except that, with respect to Export Credit Understand-
ing vessels and Shipbuilding Agreement vessels, the Sec-
retary may establish by rule, regulation, or procedure a
uniform percentage that the Secretary determines to be
consistent with obligations of the United States under the
Export Credit Understanding or the Shipbuilding Agree-
ment, as the case may be.’’.
SEC. 205. WITHDRAWAL FROM THE AGREEMENT.
(a) WITHDRAWAL.—
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(1) NOTICE.—The President shall give notice,
under Article 14 of the Shipbuilding Agreement, of
intent of the United States to withdraw from the
Shipbuilding Agreement, as soon as is practicable
after one or more Shipbuilding Agreement Parties
give notice, under such article, of intent to withdraw
from the Shipbuilding Agreement, if paragraph (2)
applies.
(2) TONNAGE OF NEW CONSTRUCTION IN WITH-
DRAWING PARTIES.—This paragraph applies if the
combined gross tonnage of new Shipbuilding Agree-
ment vessels constructed in all Shipbuilding Agree-
ment Parties who have given notice to withdraw
from the Shipbuilding Agreement, which were deliv-
ered in the calendar year preceding the calendar
year in which the notice is given, is 15 percent or
more of the gross tonnage of new Shipbuilding
Agreement vessels that were constructed in all Ship-
building Agreement Parties and were delivered in
the calendar year preceding the calendar year in
which the notice is given.
(3) TERMINATION
OF
WITHDRAWAL.—If a
Shipbuilding Agreement Party described in para-
graph (2) takes action to terminate its withdrawal
from the Shipbuilding Agreement, so that paragraph
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(2) would not apply if that Party had not given the
notice to withdraw, the President may take the nec-
essary steps to terminate the notice of withdrawal of
the United States from the Shipbuilding Agreement.
(b) REINSTATEMENT
OF
LAWS.—If the United
States withdraws from the Shipbuilding Agreement, on
the date on which such withdrawal becomes effective, the
amendments made by section 204 shall be deemed not to
have been made, and the provisions of law amended by
section 204 shall, on and after such date, be effective as
if this Act had not been enacted.
SEC. 206. APPLICABILITY OF TITLE XI AMENDMENTS.
(a) EFFECTIVE DATE.—
(1) IN GENERAL.—Notwithstanding any provi-
sion of the Shipbuilding Agreement or the Export
Credit Understanding, the amendments made by
paragraph (8) of section 204 shall not apply with re-
spect to any commitment to guarantee made under
title XI of the Merchant Marine Act, 1936, before
January 1, 1999, with respect to a vessel deliv-
ered—
(A) before January 1, 2002, or
(B) in the case of unusual circumstances
to which paragraph (2) applies, as soon after
January 1, 2002, as is practicable.
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(2) UNUSUAL
CIRCUMSTANCES.—This para-
graph applies in a case in which unusual cir-
cumstances beyond the control of the parties con-
cerned prevent the delivery of a vessel by January
1, 2002. As used in this paragraph, the term ‘‘un-
usual circumstances’’ means acts of God (other than
ordinary storms or inclement weather conditions),
labor strikes, acts of sabotage, explosions, fires, or
vandalism, and similar circumstances.
SEC. 207. OTHER LAWS NOT AFFECTED.
The Shipbuilding Agreement shall not affect, directly
or indirectly, the Merchant Marine Act, 1920, the Act of
June 19, 1886 (46 U.S.C. App. 289), or any other provi-
sion of law set forth in Accompanying Note 2 to Annex
II to the Shipbuilding Agreement, and shall not provide
any mechanism to subject any producer of vessels in the
United States to financial penalties, duties, bid restric-
tions, unfavorable bid preferences, or withdrawal of con-
cessions under the GATT 1994 or other Uruguay Round
Agreements, in the competition for international commer-
cial vessel construction or reconstruction orders because
of construction of vessels by United States shipbuilders
for operation in the coastwise trade of the United States.
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SEC. 208. PROTECTION OF UNITED STATES INTERESTS.
Nothing in the Shipbuilding Agreement shall be con-
strued to prevent the United States from taking any ac-
tion which it considers necessary for the protection of es-
sential security interests or from invoking its sovereign au-
thority to define, for purposes of exclusion from coverage
under the Shipbuilding Agreement and from any dispute
or challenge based on Annex I to the Shipbuilding Agree-
ment, ‘‘military vessel’’, ‘‘military reserve vessel’’, or ‘‘es-
sential security interest’’ on a case by case basis, as deter-
mined by the Secretary of Defense.
SEC. 209. DEFINITIONS.
As used in this title—
(1) 
the 
terms 
‘‘Shipbuilding 
Agreement’’,
‘‘Shipbuilding Agreement Party’’, ‘‘Shipbuilding
Agreement vessel’’, and ‘‘Export Credit Understand-
ing’’ have the meanings given those terms in sub-
sections (h), (i), (j), and (k), respectively, of section
905 of the Merchant Marine Act, 1936, as added by
section 204(7) of this Act; and
(2) the terms ‘‘GATT 1994’’ and ‘‘Uruguay
Round Agreements’’ have the meanings given those
terms in section 2 of the Uruguay Round Agree-
ments Act.
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TITLE III—REVENUE OFFSET
SEC. 301. PENALTIES FOR FAILURE TO DISCLOSE POSITION
THAT CERTAIN INTERNATIONAL SHIPPING
INCOME IS NOT INCLUDIBLE IN GROSS IN-
COME.
(a) IN GENERAL.—Section 883 of the Internal Reve-
nue Code of 1986 is amended by adding at the end the
following new subsection:
‘‘(d) PENALTIES FOR FAILURE TO DISCLOSE POSI-
TION THAT CERTAIN INTERNATIONAL SHIPPING INCOME
IS NOT INCLUDIBLE IN GROSS INCOME.—
‘‘(1) IN GENERAL.—A taxpayer who, with re-
spect to any tax imposed by this title, takes the posi-
tion that any of its gross income derived from the
international operation of a ship or ships is not in-
cludible in gross income by reason of subsection
(a)(1) or section 872(b)(1) shall be entitled to such
treatment only if such position is disclosed (in such
manner as the Secretary may prescribe) on the re-
turn of tax for such tax (or any statement attached
to such return).
‘‘(2) ADDITIONAL PENALTIES FOR FAILING TO
DISCLOSE POSITION.—If a taxpayer fails to meet the
requirement of paragraph (1) with respect to any
taxable year—
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‘‘(A) the amount of the income from the
international operation of a ship or ships—
‘‘(i) which is from sources without the
United States, and
‘‘(ii) which is attributable to a fixed
place of business in the United States,
shall be treated for purposes of this title as ef-
fectively connected with the conduct of a trade
or business within the United States, and
‘‘(B) no deductions or credits shall be al-
lowed which are attributable to income from the
international operation of a ship or ships.
‘‘(3) REASONABLE
CAUSE
EXCEPTION.—This
subsection shall not apply to a failure to disclose a
position if it is shown that such failure is due to rea-
sonable cause and not due to willful neglect.’’
(b) CONFORMING AMENDMENTS.—
(1) Paragraph (1) of section 872(b) of such
Code is amended by striking ‘‘Gross income’’ and in-
serting ‘‘Except as provided in section 883(d), gross
income’’.
(2) Paragraph (1) of section 883(a) of such
Code is amended by striking ‘‘Gross income’’ and in-
serting ‘‘Except as provided in subsection (d), gross
income’’.
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(c) EFFECTIVE DATE.—
(1) IN GENERAL.—Notwithstanding section 3,
the amendments made by this section shall apply to
taxable years beginning after the later of—
(A) December 31, 1996, or
(B) the date that the Shipbuilding Agree-
ment enters into force with respect to the Unit-
ed States.
(2) 
COORDINATION
WITH
TREATIES.—The
amendments made by this section shall not apply in
any case where their application would be contrary
to any treaty obligation of the United States.
(d) INFORMATION TO BE PROVIDED BY CUSTOMS
SERVICE.—The United States Custom Service shall pro-
vide the Secretary of the Treasury or his delegate with
such information as may be specified by such Secretary
in order to enable such Secretary to determine whether
ships which are not registered in the United States are
engaged in transportation to or from the United States.
Passed the House of Representatives June 13, 1996.
Attest:
ROBIN H. CARLE,
Clerk.
By LINDA NAVE,
Deputy Clerk.