‘‘(ii) the particular market situation
in the exporting country does not permit a
proper comparison with the export price.
‘‘(D) 
CONTEMPORANEOUS
SALE.—For
purposes of subparagraph (A), ‘a time reason-
ably corresponding to the time of the sale’
means within 3 months before or after the sale
of the subject vessel or, in the absence of such
sales, such longer period as the administering
authority determines would be appropriate.
‘‘(2) FICTITIOUS
MARKETS.—No pretended
sale, and no sale intended to establish a fictitious
market, shall be taken into account in determining
normal value.
‘‘(3) USE OF CONSTRUCTED VALUE.—If the ad-
ministering authority determines that the normal
value of the subject vessel cannot be determined
under paragraph (1)(B) or (1)(C), then the normal
value of the subject vessel shall be the constructed
value of that vessel, as determined under subsection
(e).
‘‘(4) INDIRECT SALES.—If a foreign like vessel
is sold through an affiliated party, the price at
which the foreign like vessel is sold by such affiliated
party may be used in determining normal value.
‘‘(5) ADJUSTMENTS.—The price described in
paragraph (1)(B) shall be—
‘‘(A) reduced by—
‘‘(i) the amount, if any, included in
the price described in paragraph (1)(B),
attributable to any costs, charges, and ex-
penses incident to bringing the foreign like
vessel from the shipyard to the place of de-
livery to the purchaser,
‘‘(ii) the amount of any taxes imposed
directly upon the foreign like vessel or
components thereof which have been re-
bated, or which have not been collected, on
the subject vessel, but only to the extent
that such taxes are added to or included in
the price of the foreign like vessel, and
‘‘(iii) the amount of all other expenses
incidental to placing the foreign like vessel
in condition for delivery to the buyer, and
‘‘(B) increased or decreased by the amount
of any difference (or lack thereof) between the
export price and the price described in para-
graph (1)(B) (other than a difference for which
allowance is otherwise provided under this sec-
tion) that is established to the satisfaction of
the administering authority to be wholly or
partly due to—
‘‘(i) physical differences between the
subject vessel and the vessel used in deter-
mining normal value, or
‘‘(ii) other differences in the cir-
cumstances of sale.
‘‘(6) ADJUSTMENTS FOR LEVEL OF TRADE.—
The price described in paragraph (1)(B) shall also
be increased or decreased to make due allowance for
any difference (or lack thereof) between the export
price and the price described in paragraph (1)(B)
(other than a difference for which allowance is oth-
erwise made under this section) that is shown to be
wholly or partly due to a difference in level of trade
between the export price and normal value, if the
difference in level of trade—
‘‘(A) involves the performance of different
selling activities, and
‘‘(B) is demonstrated to affect price com-
parability, based on a pattern of consistent
price differences between sales at different lev-
els of trade in the country in which normal
value is determined.
In a case described in the preceding sentence, the
amount of the adjustment shall be based on the
price differences between the two levels of trade in
the country in which normal value is determined.
‘‘(7) 
ADJUSTMENTS
TO
CONSTRUCTED
VALUE.—Constructed value as determined under
subsection (d) may be adjusted, as appropriate, pur-
suant to this subsection.
‘‘(b) SALES AT LESS THAN COST OF PRODUCTION.—
‘‘(1) DETERMINATION; SALES DISREGARDED.—
Whenever the administering authority has reason-
able grounds to believe or suspect that the sale of
the foreign like vessel under consideration for the
determination of normal value has been made at a
price which represents less than the cost of produc-
tion of the foreign like vessel, the administering au-
thority shall determine whether, in fact, such sale
was made at less than the cost of production. If the
administering authority determines that the sale was
made at less than the cost of production and was
not at a price which permits recovery of all costs
within 5 years, such sale may be disregarded in the
determination of normal value. Whenever such a sale
is disregarded, normal value shall be based on an-
other sale of a foreign like vessel in the ordinary
course of trade. If no sales made in the ordinary
course of trade remain, the normal value shall be
based on the constructed value of the subject vessel.
‘‘(2) DEFINITIONS AND SPECIAL RULES.—For
purposes of this subsection:
‘‘(A) REASONABLE GROUNDS TO BELIEVE
OR SUSPECT.—There are reasonable grounds to
believe or suspect that the sale of a foreign like
vessel was made at a price that is less than the
cost of production of the vessel, if an interested
party described in subparagraph (C), (D), (E),
or (F) of section 861(17) provides information,
based upon observed prices or constructed
prices or costs, that the sale of the foreign like
vessel under consideration for the determination
of normal value has been made at a price which
represents less than the cost of production of
the vessel.
‘‘(B) RECOVERY OF COSTS.—If the price is
below the cost of production at the time of sale
but is above the weighted average cost of pro-
duction for the period of investigation, such
price shall be considered to provide for recovery
of costs within 5 years.
‘‘(3) CALCULATION
OF
COST
OF
PRODUC-
TION.—For purposes of this section, the cost of pro-
duction shall be an amount equal to the sum of—
‘‘(A) the cost of materials and of fabrica-
tion or other processing of any kind employed
in producing the foreign like vessel, during a
period which would ordinarily permit the pro-
duction of that vessel in the ordinary course of
business, and
‘‘(B) an amount for selling, general, and
administrative expenses based on actual data
pertaining to the production and sale of the for-
eign like vessel by the producer in question.
For purposes of subparagraph (A), if the normal
value is based on the price of the foreign like vessel
sold in a country other than the exporting country,
the cost of materials shall be determined without re-
gard to any internal tax in the exporting country im-
posed on such materials or on their disposition
which are remitted or refunded upon exportation.
‘‘(c) NONMARKET ECONOMY COUNTRIES.—
‘‘(1) IN GENERAL.—If—
‘‘(A) the subject vessel is produced in a
nonmarket economy country, and
‘‘(B) the administering authority finds that
available information does not permit the nor-
mal value of the subject vessel to be determined
under subsection (a),
the administering authority shall determine the nor-
mal value of the subject vessel on the basis of the
value of the factors of production utilized in produc-
ing the vessel and to which shall be added an
amount for general expenses and profit plus the cost
of expenses incidental to placing the vessel in a con-
dition for delivery to the buyer. Except as provided
in paragraph (2), the valuation of the factors of pro-
duction shall be based on the best available informa-
tion regarding the values of such factors in a market
economy country or countries considered to be ap-
propriate by the administering authority.
‘‘(2) EXCEPTION.—If the administering author-
ity finds that the available information is inadequate
for purposes of determining the normal value of the
subject vessel under paragraph (1), the administer-
ing authority shall determine the normal value on
the basis of the price at which a vessel that is—
‘‘(A) comparable to the subject vessel, and
‘‘(B) produced in one or more market
economy countries that are at a level of eco-
nomic development comparable to that of the
nonmarket economy country,
is sold in other countries, including the United
States.
‘‘(3) FACTORS OF PRODUCTION.—For purposes
of paragraph (1), the factors of production utilized
in producing the vessel include, but are not limited
to—
‘‘(A) hours of labor required,
‘‘(B) quantities of raw materials employed,
‘‘(C) amounts of energy and other utilities
consumed, and
‘‘(D) representative capital cost, including
depreciation.
‘‘(4) VALUATION
OF
FACTORS
OF
PRODUC-
TION.—The administering authority, in valuing fac-
tors of production under paragraph (1), shall utilize,
to the extent possible, the prices or costs of factors
of production in one or more market economy coun-
tries that are—
‘‘(A) at a level of economic development
comparable to that of the nonmarket economy
country, and
‘‘(B) significant producers of comparable
vessels.
‘‘(d) SPECIAL RULE FOR CERTAIN MULTINATIONAL
CORPORATIONS.—Whenever, in the course of an investiga-
tion under this title, the administering authority deter-
mines that—
‘‘(1) the subject vessel was produced in facilities
which are owned or controlled, directly or indirectly,
by a person, firm, or corporation which also owns or
controls, directly or indirectly, other facilities for the
production of a foreign like vessel which are located
in another country or countries,
‘‘(2) subsection (a)(1)(C) applies, and
‘‘(3) the normal value of a foreign like vessel
produced in one or more of the facilities outside the
exporting country is higher than the normal value of
the foreign like vessel produced in the facilities lo-
cated in the exporting country,
the administering authority shall determine the normal
value of the subject vessel by reference to the normal value
at which a foreign like vessel is sold from one or more
facilities outside the exporting country. The administering
authority, in making any determination under this sub-
section, shall make adjustments for the difference between
the costs of production (including taxes, labor, materials,
and overhead) of the foreign like vessel produced in facili-
ties outside the exporting country and costs of production
of the foreign like vessel produced in facilities in the ex-
porting country, if such differences are demonstrated to
its satisfaction.
‘‘(e) CONSTRUCTED VALUE.—
‘‘(1) IN GENERAL.—For purposes of this title,
the constructed value of a subject vessel shall be an
amount equal to the sum of—
‘‘(A) the cost of materials and fabrication
or other processing of any kind employed in
producing the subject vessel, during a period
which would ordinarily permit the production of
the vessel in the ordinary course of business,
and
‘‘(B)(i) the actual amounts incurred and
realized by the foreign producer of the subject
vessel 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 of the country of origin of the subject
vessel, or
‘‘(ii) if actual data are not available with
respect to the amounts described in clause (i),
then—
‘‘(I) the actual amounts incurred and
realized by the foreign producer of the sub-
ject vessel for selling, general, and admin-
istrative expenses, and for profits, in con-
nection 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 ac-
tual amounts incurred and realized by pro-
ducers in the country of origin of the sub-
ject vessel (other than the producer of the
subject vessel) for selling, general, and ad-
ministrative 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 is 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, ex-
cept that the amount allowed for profit
may not exceed the amount normally real-
ized by foreign producers (other than 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 de-
termined without regard to any internal tax in the
exporting country imposed on such materials or their
disposition which are remitted or refunded upon ex-
portation of the subject vessel produced from such
materials.
‘‘(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 for-
eign producer of the subject vessel, if such
records are kept in accordance with the gen-
erally accepted accounting principles of the ex-
porting country and reasonably reflect the costs
associated with the production and sale of the
vessel. The administering authority shall con-
sider all available evidence on proper allocation
of costs, including that which is made available
by the foreign producer on a timely basis, if
such allocations have been historically used by
the foreign producer, in particular for establish-
ing appropriate amortization and depreciation
periods, and allowances for capital expenditures
and other development costs.
‘‘(B) NONRECURRING COSTS.—Costs shall
be adjusted appropriately for those non-
recurring 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 pe-
riod covered by the investigation are af-
fected 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 pro-
duction.
For purposes of subclause (II), the initial
phase of commercial production ends at
the end of the startup period. In determin-
ing whether commercial production levels
have been achieved, the administering au-
thority 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
operations shall be made by substituting
the unit production costs incurred with re-
spect to the vessel at the end of the start-
up period for the unit production costs in-
curred during the startup period. If the
startup period extends beyond the period
of the investigation under this title, the ad-
ministering authority shall use the most
recent cost of production data that it rea-
sonably can obtain, analyze, and verify
without delaying the timely completion of
the investigation. For purposes of this sub-
paragraph, the startup period ends at the
point at which the level of commercial pro-
duction 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 per-
sons may be disregarded if, in the case of any ele-
ment of value required to be considered, the amount
representing 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 transactions are available for consideration,
the determination of the amount shall be based on
the information available as to what the amount
would have been if the transaction had occurred be-
tween 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 administering 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 deter-
mined 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
vessel, except that if it is established that a currency
transaction on forward markets is directly linked to a sale
under consideration, the exchange rate specified with re-
spect to such foreign currency in the forward sale agree-
ment 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 appropriate adjustments to take into account
any unreasonable effect on the injurious pricing margin
due only to fluctuations 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 re-
quest of any party to the investigation, before making a
final determination 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
hearing shall be prepared and made available to the public.
The hearing shall not be subject to the provisions of sub-
chapter 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 other-
wise available in reaching the applicable determina-
tion under this title.
‘‘(b) ADVERSE INFERENCES.—If the administering
authority or the Commission (as the case may be) finds
that an interested party has failed to cooperate by not act-
ing to the best of its ability to comply with a request for
information from the administering authority or the Com-
mission, the administering authority or the Commission
(as the case may be), in reaching the applicable determina-
tion 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 in-
clude reliance 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 Commis-
sion, as the case may be, shall, to the extent practicable,
corroborate that information from independent sources
that are reasonably at their disposal.
‘‘SEC. 843. ACCESS TO INFORMATION.
‘‘(a) INFORMATION
GENERALLY
MADE
AVAIL-
ABLE.—
‘‘(1) PROGRESS OF INVESTIGATION REPORTS.—
The administering authority and the Commission
shall, from time to time upon request, inform the
parties 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
providing 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 proceeding.
‘‘(3) SUMMARIES; NON-PROPRIETARY
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, op-
erations 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 Com-
mission, as the case may be, in a proceeding under
this title to the extent that public disclosure of the
information 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), informa-
tion submitted to the administering authority or
the Commission which is designated as propri-
etary by the person submitting the information
shall not be disclosed to any person without the
consent of the person submitting the informa-
tion, other than—
‘‘(i) to an officer or employee of the
administering 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
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
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
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
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-
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-
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
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.
‘‘(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.
‘‘(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
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
‘‘(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
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-
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.
‘‘(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
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
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-
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.—
‘‘(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-
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)
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.
‘‘(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-
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-
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
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.
‘‘(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.
100
‘‘(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—
‘‘(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
101
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
‘‘(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
102
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, and
‘‘(iii) 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.
103
‘‘(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.
‘‘(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
104
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 or 808.
‘‘(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-
105
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-
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.
106
‘‘(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
‘‘(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,
107
‘‘(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 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.
108
‘‘(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
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
109
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-
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
110
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 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.
111
‘‘(II) 
EUROPEAN
COMMU-
NITIES.—For purposes of this clause,
the European 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
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
112
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 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-
113
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,
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,
114
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.
‘‘(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,
115
‘‘(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
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,
116
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
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)
117
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 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
118
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
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.