Union Calendar No. 299
104TH CONGRESS
2D SESSION
H. R. 2754
[Report No. 104–524, Parts I and II]
A BILL
To approve and implement the OECD Shipbuilding
Trade Agreement.
MAY 30, 1996
Reported from the Committee on National Security with
an amendment, committed to the Committee of the
Whole House on the State of the Union, and ordered
to be printed
for the purpose of providing security for a normal
commercial loan.
‘‘(b) FOREIGN VESSELS NOT MERCHANDISE.—No for-
eign vessel may be considered to be, or to be part of, a class
or kind of merchandise for purposes of subtitle B of title
VII.
‘‘SEC. 802. PROCEDURES FOR INITIATING AN INJURIOUS
PRICING INVESTIGATION.
‘‘(a) INITIATION BY ADMINISTERING AUTHORITY.—
‘‘(1) GENERAL
RULE.—Except in the case in
which subsection (d)(6) applies, an injurious pricing
investigation shall be initiated whenever the admin-
istering authority determines, from information
available to it, that a formal investigation is war-
ranted into the question of whether the elements nec-
essary for the imposition of a charge under section
801(a) exist, and whether a producer described in sec-
tion 861(17)(C) would meet the criteria of subsection
(b)(1)(B) for a petitioner.
‘‘(2) TIME FOR INITIATION BY ADMINISTERING
AUTHORITY.—An investigation may only be initiated
under paragraph (1) within 6 months after the time
the administering authority first knew or should have
known of the sale of the vessel. Any period in which
subsection (d)(6)(A) applies shall not be included in
calculating that 6-month period.
‘‘(b) INITIATION BY PETITION.—
‘‘(1) PETITION REQUIREMENTS.—(A) Except in
a case in which subsection (d)(6) applies, an injuri-
ous pricing proceeding shall be initiated whenever an
interested party, as defined in subparagraph (C), (D),
(E), or (F) of section 861(17), files a petition with the
administering authority, on behalf of an industry,
which alleges the elements necessary for the imposi-
tion of an injurious pricing charge under section
801(a) and the elements required under subparagraph
(B), (C), (D), or (E) of this paragraph, and which is
accompanied by information reasonably available to
the petitioner supporting those allegations and identi-
fying the transaction concerned.
‘‘(B)(i) If the petitioner is a producer described
in section 861(17)(C), and—
‘‘(I) if the vessel was sold through a broad
multiple bid, the petition shall include informa-
tion indicating that the petitioner was invited to
tender a bid on the contract at issue, the peti-
tioner actually did so, and the bid of the peti-
tioner substantially met the delivery date and
technical requirements of the bid,
‘‘(II) if the vessel was sold through any bid-
ding process other than a broad multiple bid and
the petitioner was invited to tender a bid on the
contract at issue, the petition shall include infor-
mation indicating that the petitioner actually
did so and the bid of the petitioner substantially
met the delivery date and technical requirements
of the bid, or
‘‘(III) except in a case in which the vessel
was sold through a broad multiple bid, if there
is no invitation to tender a bid, the petition
shall include information indicating that the pe-
titioner was capable of building the vessel con-
cerned and, if the petitioner knew or should have
known of the proposed purchase, it made demon-
strable efforts to conclude a sale with the United
States buyer consistent with the delivery date
and technical requirements of the buyer.
‘‘(ii) For purposes of clause (i)(III), there is a
rebuttable presumption that the petitioner knew or
should have known of the proposed purchase if it is
demonstrated that—
‘‘(I) the majority of the producers in the in-
dustry have made efforts with the United States
buyer to conclude a sale of the subject vessel, or
‘‘(II) general information on the sale was
available from brokers, financiers, classification
societies, charterers, trade associations, or other
entities normally involved in shipbuilding trans-
actions with whom the petitioner had regular
contacts or dealings.
‘‘(C) If the petitioner is an interested party de-
scribed in section 861(17)(D), the petition shall in-
clude information indicating that members of the
union or group of workers described in that section
are employed by a producer that meets the require-
ments of subparagraph (B) of this paragraph.
‘‘(D) If the petitioner is an interested party de-
scribed in section 861(17)(E), the petition shall in-
clude information indicating that a member of the as-
sociation described in that section is a producer that
meets the requirements of subparagraph (B) of this
paragraph.
‘‘(E) If the petitioner is an interested party de-
scribed in section 861(17)(F), the petition shall in-
clude information indicating that a member of the as-
sociation described in that section meets the require-
ments of subparagraph (C) or (D) of this paragraph.
‘‘(F) The petition may be amended at such time,
and upon such conditions, as the administering au-
thority and the Commission may permit.
‘‘(2) SIMULTANEOUS
FILING
WITH
COMMIS-
SION.—The petitioner shall file a copy of the petition
with the Commission on the same day as it is filed
with the administering authority.
‘‘(3) DEADLINE FOR FILING PETITION.—
‘‘(A) DEADLINE.—(i) A petitioner to which
paragraph (1)(B) (i) or (ii) applies shall file the
petition no later than the earlier of—
‘‘(I) 6 months after the time that the
petitioner first knew or should have known
of the sale of the subject vessel, or
‘‘(II) 6 months after delivery of the
subject vessel.
‘‘(ii) A petitioner to which paragraph
(1)(B)(iii) applies shall—
‘‘(I) file the petition no later than the
earlier of 9 months after the time that the
petitioner first knew or should have known
of the sale of the subject vessel, or 6 months
after delivery of the subject vessel, and
‘‘(II) submit to the administering au-
thority a notice of intent to file a petition
no later than 6 months after the time that
the petitioner first knew or should have
known of the sale (unless the petition itself
is filed within that 6-month period).
‘‘(B) PRESUMPTION OF KNOWLEDGE.—For
purposes of this paragraph, if the existence of the
sale, together with general information concern-
ing the vessel, is published in the international
trade press, there is a rebuttable presumption
that the petitioner knew or should have known of
the sale of the vessel from the date of that publi-
cation.
‘‘(c) ACTIONS BEFORE INITIATING INVESTIGATIONS.—
‘‘(1) NOTIFICATION
OF
GOVERNMENTS.—Before
initiating an investigation under either subsection (a)
or (b), the administering authority shall notify the
government of the exporting country of the investiga-
tion. In the case of the initiation of an investigation
under subsection (b), such notification shall include a
public version of the petition.
‘‘(2) ACCEPTANCE
OF
COMMUNICATIONS.—The
administering authority shall not accept any unsolic-
ited oral or written communication from any person
other than an interested party described in section
861(17)(C), (D), (E), or (F) before the administering
authority makes its decision whether to initiate an
investigation pursuant to a petition, except for in-
quiries regarding the status of the administering
authority’s consideration of the petition or a request
for consultation by the government of the exporting
country.
‘‘(3) NONDISCLOSURE
OF
CERTAIN
INFORMA-
TION.—The administering authority and the Commis-
sion shall not disclose information with regard to any
draft petition submitted for review and comment be-
fore it is filed under subsection (b)(1).
‘‘(d) PETITION DETERMINATION.—
‘‘(1) TIME
FOR
INITIAL
DETERMINATION.—(A)
Within 45 days after the date on which a petition is
filed under subsection (b), the administering author-
ity shall, after examining, on the basis of sources
readily available to the administering authority, the
accuracy and adequacy of the evidence provided in
the petition, determine whether the petition—
‘‘(i) alleges the elements necessary for the
imposition of an injurious pricing charge under
section 801(a) and the elements required under
subsection (b)(1)(B), (C), (D), or (E), and con-
tains information reasonably available to the pe-
titioner supporting the allegations; and
‘‘(ii) determine if the petition has been filed
by or on behalf of the industry.
‘‘(B) Any period in which paragraph (6)(A) ap-
plies shall not be included in calculating the 45-day
period described in subparagraph (A).
‘‘(2) AFFIRMATIVE DETERMINATIONS.—If the de-
terminations under clauses (i) and (ii) of paragraph
(1)(A) are affirmative, the administering authority
shall initiate an investigation to determine whether
the vessel was sold at less than fair value, unless
paragraph (6) applies.
‘‘(3) NEGATIVE DETERMINATIONS.—If—
‘‘(A) the determination under clause (i) or
(ii) of paragraph (1)(A) is negative, or
‘‘(B) paragraph (6)(B) applies,
the administering authority shall dismiss the petition,
terminate the proceeding, and notify the petitioner in
writing of the reasons for the determination.
‘‘(4) DETERMINATION OF INDUSTRY SUPPORT.—
‘‘(A) GENERAL RULE.—For purposes of this
subsection, the administering authority shall de-
termine that the petition has been filed by or on
behalf of the domestic industry, if—
‘‘(i) the domestic producers or workers
who support the petition collectively account
for at least 25 percent of the total capacity
of domestic producers capable of producing
a like vessel, and
‘‘(ii) the domestic producers or workers
who support the petition collectively account
for more than 50 percent of the total capac-
ity to produce a like vessel of that portion
of the domestic industry expressing support
for or opposition to the petition.
‘‘(B) CERTAIN POSITIONS DISREGARDED.—
In determining industry support under subpara-
graph (A), the administering authority shall dis-
regard the position of domestic producers who
oppose the petition, if such producers are related
to the foreign producer or United States buyer of
the subject vessel, or the domestic producer is it-
self the United States buyer, unless such domestic
producers demonstrate that their interests as do-
mestic producers would be adversely affected by
the imposition of an injurious pricing charge.
‘‘(C) POLLING THE INDUSTRY.—If the peti-
tion does not establish support of domestic pro-
ducers or workers accounting for more than 50
percent of the total capacity to produce a like
vessel—
‘‘(i) the administering authority shall
poll the industry or rely on other informa-
tion in order to determine if there is sup-
port for the petition as required by sub-
paragraph (A), or
‘‘(ii) if there is a large number of pro-
ducers in the industry, the administering
authority may determine industry support
for the petition by using any statistically
valid sampling method to poll the industry.
‘‘(D) COMMENTS
BY
INTERESTED
PAR-
TIES.—Before the administering authority makes
a determination with respect to initiating an in-
vestigation, any person who would qualify as an
interested party under section 861(17) if an in-
vestigation were initiated, may submit comments
or information on the issue of industry support.
After the administering authority makes a deter-
mination with respect to initiating an investiga-
tion, the determination regarding industry sup-
port shall not be reconsidered.
‘‘(5) DEFINITION OF DOMESTIC PRODUCERS OR
WORKERS.—For purposes of this subsection, the term
‘domestic producers or workers’ means interested par-
ties as defined in section 861(17)(C), (D), (E), or (F).
‘‘(6) PROCEEDINGS BY WTO MEMBERS.—The ad-
ministering authority shall not initiate an investiga-
tion under this section if, with respect to the vessel
sale at issue, an antidumping proceeding conducted
by a WTO member who is not a Shipbuilding Agree-
ment Party—
‘‘(A) has been initiated and has been pend-
ing for not more than one year, or
‘‘(B) has been completed and resulted in the
imposition of antidumping measures or a nega-
tive determination with respect to whether the
sale was at less than fair value or with respect
to injury.
‘‘(e) NOTIFICATION TO COMMISSION OF DETERMINA-
TION.—The administering authority shall—
‘‘(1) notify the Commission immediately of any
determination it makes under subsection (a) or (d),
and
‘‘(2) if the determination is affirmative, make
available to the Commission such information as it
may have relating to the matter under investigation,
under such procedures as the administering authority
and the Commission may establish to prevent disclo-
sure, other than with the consent of the party provid-
ing it or under protective order, of any information
to which confidential treatment has been given by the
administering authority.
‘‘SEC. 803. PRELIMINARY DETERMINATIONS.
‘‘(a) DETERMINATION BY COMMISSION OF REASON-
ABLE INDICATION OF INJURY.—
‘‘(1) GENERAL RULE.—Except in the case of a
petition dismissed by the administering authority
under section 802(d)(3), the Commission, within the
time specified in paragraph (2), shall determine,
based on the information available to it at the time
of the determination, whether there is a reasonable in-
dication that—
‘‘(A) an industry in the United States—
‘‘(i) is or has been materially injured,
or
‘‘(ii) is threatened with material in-
jury, or
‘‘(B) the establishment of an industry in the
United States is or has been materially retarded,
by reason of the sale of the subject vessel. If the Com-
mission makes a negative determination under this
paragraph, the investigation shall be terminated.
‘‘(2) TIME FOR COMMISSION DETERMINATION.—
The Commission shall make the determination de-
scribed in paragraph (1) within 90 days after the
‘‘(D) In cases in which subparagraph (B) or (C)
does not apply, the administering authority shall
make its determination within 160 days after the
date on which the administering authority initiates
the investigation under section 802.
‘‘(E) In no event shall the administering author-
ity make its determination before an affirmative de-
termination is made by the Commission under sub-
section (a).
‘‘(2) DE MINIMIS INJURIOUS PRICING MARGIN.—
In making a determination under this subsection, the
administering authority shall disregard any injurious
pricing margin that is de minimis. For purposes of
the preceding sentence, an injurious pricing margin
is de minimis if the administering authority deter-
mines that the margin is less than 2 percent of the
export price.
‘‘(c) EXTENSION
OF PERIOD
IN EXTRAORDINARILY
COMPLICATED CASES OR FOR GOOD CAUSE.—
‘‘(1) IN GENERAL.—If—
‘‘(A) the administering authority concludes
that the parties concerned are cooperating and
determines that—
‘‘(i) the case is extraordinarily com-
plicated by reason of—
‘‘(I) the novelty of the issues pre-
sented, or
‘‘(II) the nature and extent of the
information required, and
‘‘(ii) additional time is necessary to
make the preliminary determination, or
‘‘(B) a party to the investigation requests
an extension and demonstrates good cause for the
extension,
then the administering authority may postpone the
time for making its preliminary determination.
‘‘(2) LENGTH OF POSTPONEMENT.—The prelimi-
nary determination may be postponed under para-
graph (1)(A) or (B) until not later than the 190th
day after—
‘‘(A) the date of delivery of the foreign like
vessel, if subsection (b)(1)(B) applies,
‘‘(B) the date of delivery of the subject ves-
sel, if subsection (b)(1)(C) applies, or
‘‘(C) the date on which the administering
authority initiates an investigation under sec-
tion 802, in a case in which subsection (b)(1)(D)
applies.
‘‘(3) NOTICE OF POSTPONEMENT.—The admin-
istering authority shall notify the parties to the inves-
tigation, not later than 20 days before the date on
which the preliminary determination would otherwise
be required under subsection (b)(1), if it intends to
postpone making the preliminary determination
under paragraph (1). The notification shall include
an explanation of the reasons for the postponement,
and notice of the postponement shall be published in
the Federal Register.
‘‘(d) EFFECT OF DETERMINATION BY THE ADMIN-
ISTERING AUTHORITY.—If the preliminary determination
of the administering authority under subsection (b) is af-
firmative, the administering authority shall—
‘‘(1) determine an estimated injurious pricing
margin, and
‘‘(2) make available to the Commission all infor-
mation upon which its determination was based and
which the Commission considers relevant to its injury
determination, under such procedures as the admin-
istering authority and the Commission may establish
to prevent disclosure, other than with the consent of
the party providing it or under protective order, of
any information to which confidential treatment has
been given by the administering authority.
‘‘(e) NOTICE
OF
DETERMINATION.—Whenever the
Commission or the administering authority makes a deter-
mination under this section, the Commission or the admin-
istering authority, as the case may be, shall notify the peti-
tioner, and other parties to the investigation, and the Com-
mission or the administering authority (whichever is ap-
propriate) of its determination. The administering author-
ity shall include with such notification the facts and conclu-
sions on which its determination is based. Not later than
5 days after the date on which the determination is required
to be made under subsection (a)(2), the Commission shall
transmit to the administering authority the facts and con-
clusions on which its determination is based.
‘‘SEC. 804. TERMINATION OR SUSPENSION OF INVESTIGA-
TION.
‘‘(a) TERMINATION OF INVESTIGATION UPON WITH-
DRAWAL OF PETITION.—
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), an investigation under this subtitle may be
terminated by either the administering authority or
the Commission, after notice to all parties to the in-
vestigation, upon withdrawal of the petition by the
petitioner.
‘‘(2) LIMITATION ON TERMINATION BY COMMIS-
SION.—The Commission may not terminate an inves-
tigation under paragraph (1) before a preliminary
determination is made by the administering author-
ity under section 803(b).
‘‘(b) TERMINATION OF INVESTIGATIONS INITIATED BY
ADMINISTERING AUTHORITY.—The administering author-
ity may terminate any investigation initiated by the ad-
ministering authority under section 802(a) after providing
notice of such termination to all parties to the investigation.
‘‘(c) ALTERNATE EQUIVALENT REMEDY.—The criteria
set forth in subparagraphs (A) through (D) of section
806(e)(1) shall apply to any agreement that forms the basis
for termination of an investigation under subsection (a) or
(b).
‘‘(d) PROCEEDINGS BY WTO MEMBERS.—
‘‘(1) SUSPENSION OF INVESTIGATION.—The ad-
ministering authority and the Commission shall sus-
pend an investigation under this section if a WTO
member that is not a Shipbuilding Agreement Party
initiates an antidumping proceeding described in sec-
tion 861(29)(A) with respect to the sale of the subject
vessel.
‘‘(2) TERMINATION
OF
INVESTIGATION.—If an
antidumping proceeding described in paragraph (1)
is concluded by—
‘‘(A) the imposition of antidumping meas-
ures, or
‘‘(B) a negative determination with respect
to whether the sale is at less than fair value or
with respect to injury,
the administering authority and the Commission
shall terminate the investigation under this section.
‘‘(3) CONTINUATION OF INVESTIGATION.—(A) If
such a proceeding—
‘‘(i) is concluded by a result other than a
result described in paragraph (2), or
‘‘(ii) is not concluded within one year from
the date of the initiation of the proceeding,
then the administering authority and the Commission
shall terminate the suspension and continue the inves-
tigation. The period in which the investigation was
suspended shall not be included in calculating dead-
lines applicable with respect to the investigation.
‘‘(B) Notwithstanding subparagraph (A)(ii), if
the proceeding is concluded by a result described in
paragraph (2)(A), the administering authority and
the Commission shall terminate the investigation
under this section.
‘‘SEC. 805. FINAL DETERMINATIONS.
‘‘(a) DETERMINATIONS BY ADMINISTERING AUTHOR-
ITY.—
‘‘(1) IN
GENERAL.—Within 75 days after the
date of its preliminary determination under section
803(b), the administering authority shall make a
final determination of whether the vessel which is the
subject of the investigation has been sold in the Unit-
ed States at less than its fair value.
‘‘(2) EXTENSION OF PERIOD FOR DETERMINA-
TION.—(A) The administering authority may post-
pone making the final determination under para-
graph (1) until not later than 290 days after—
‘‘(i) the date of delivery of the foreign like
vessel, in an investigation to which section
803(b)(1)(B) applies,
‘‘(ii) the date of delivery of the subject ves-
sel, in an investigation to which section
803(b)(1)(C) applies, or
‘‘(iii) the date on which the administering
authority initiates the investigation under sec-
tion 802, in an investigation to which section
803(b)(1)(D) applies.
‘‘(B) The administering authority may apply
subparagraph (A) if a request in writing is made
by—
‘‘(i) the producer of the subject vessel, in a
proceeding in which the preliminary determina-
tion by the administering authority under sec-
tion 803(b) was affirmative, or
‘‘(ii) the petitioner, in a proceeding in
which the preliminary determination by the ad-
ministering authority under section 803(b) was
negative.
‘‘(3) DE MINIMIS INJURIOUS PRICING MARGIN.—
In making a determination under this subsection, the
administering authority shall disregard any injurious
pricing margin that is de minimis as defined in sec-
tion 803(b)(2).
‘‘(b) FINAL DETERMINATION BY COMMISSION.—
‘‘(1) IN GENERAL.—The Commission shall make
a final determination of whether—
‘‘(A) an industry in the United States—
‘‘(i) is or has been materially injured,
or
‘‘(ii) is threatened with material in-
jury, or
‘‘(B) the establishment of an industry in the
United States is or has been materially retarded,
by reason of the sale of the vessel with respect to
which the administering authority has made an af-
firmative determination under subsection (a)(1).
‘‘(2) PERIOD FOR INJURY DETERMINATION FOL-
LOWING AFFIRMATIVE PRELIMINARY DETERMINATION
BY ADMINISTERING AUTHORITY.—If the preliminary
determination by the administering authority under
section 803(b) is affirmative, then the Commission
shall make the determination required by paragraph
(1) before the later of—
‘‘(A) the 120th day after the day on which
the administering authority makes its affirma-
tive preliminary determination under section
803(b), or
‘‘(B) the 45th day after the day on which
the administering authority makes its affirma-
tive final determination under subsection (a).
‘‘(3) PERIOD FOR INJURY DETERMINATION FOL-
LOWING NEGATIVE PRELIMINARY DETERMINATION BY
ADMINISTERING AUTHORITY.—If the preliminary de-
termination by the administering authority under
section 803(b) is negative, and its final determination
under subsection (a) is affirmative, then the final de-
termination by the Commission under this subsection
shall be made within 75 days after the date of that
affirmative final determination.
‘‘(c) EFFECT OF FINAL DETERMINATIONS.—
‘‘(1) EFFECT OF AFFIRMATIVE DETERMINATION
BY THE ADMINISTERING AUTHORITY.—If the deter-
mination of the administering authority under sub-
section (a) is affirmative, then the administering au-
thority shall—
‘‘(A) make available to the Commission all
information upon which such determination was
based and which the Commission considers rel-
evant to its determination, under such proce-
dures as the administering authority and the
Commission may establish to prevent disclosure,
other than with the consent of the party provid-
ing it or under protective order, of any informa-
tion to which confidential treatment has been
given by the administering authority, and
‘‘(B) calculate an injurious pricing charge
in an amount equal to the amount by which the
normal value exceeds the export price of the sub-
ject vessel.
‘‘(2) ISSUANCE OF ORDER; EFFECT OF NEGATIVE
DETERMINATION.—If the determinations of the ad-
ministering authority and the Commission under sub-
sections (a)(1) and (b)(1) are affirmative, then the
administering authority shall issue an injurious pric-
ing order under section 806. If either of such deter-
minations is negative, the investigation shall be ter-
minated upon the publication of notice of that nega-
tive determination.
‘‘(d) PUBLICATION OF NOTICE OF DETERMINATIONS.—
Whenever the administering authority or the Commission
makes a determination under this section, it shall notify
the petitioner, other parties to the investigation, and the
other agency of its determination and of the facts and con-
clusions of law upon which the determination is based, and
it shall publish notice of its determination in the Federal
Register.
‘‘(e) CORRECTION OF MINISTERIAL ERRORS.—The ad-
ministering authority shall establish procedures for the cor-
rection of ministerial errors in final determinations within
a reasonable time after the determinations are issued under
this section. Such procedures shall ensure opportunity for
interested parties to present their views regarding any such
errors. As used in this subsection, the term ‘ministerial
error’ includes errors in addition, subtraction, or other
arithmetic function, clerical errors resulting from inac-
curate copying, duplication, or the like, and any other type
of unintentional error which the administering authority
considers ministerial.
‘‘SEC. 806. IMPOSITION AND COLLECTION OF INJURIOUS
PRICING CHARGE.
‘‘(a) IN GENERAL.—Within 10 days after being noti-
fied by the Commission of an affirmative determination
under section 805(b), the administering authority shall
publish an order imposing an injurious pricing charge on
the foreign producer of the subject vessel which—
‘‘(1) directs the foreign producer of the subject
vessel to pay to the Secretary of the Treasury, or the
designee of the Secretary, within 180 days from the
date of publication of the order, an injurious pricing
charge in an amount equal to the amount by which
the normal value exceeds the export price of the sub-
ject vessel,
‘‘(2) includes the identity and location of the for-
eign producer and a description of the subject vessel,
in such detail as the administering authority deems
necessary, and
‘‘(3) informs the foreign producer that—
‘‘(A) failure to pay the injurious pricing
charge in a timely fashion may result in the im-
position of countermeasures with respect to that
producer under section 807,
‘‘(B) payment made after the deadline de-
scribed in paragraph (1) shall be subject to inter-
est charges at the Commercial Interest Reference
Rate (CIRR), and
‘‘(C) the foreign producer may request an
extension of the due date for payment under sub-
section (b).
‘‘(b) EXTENSION OF DUE DATE FOR PAYMENT IN EX-
TRAORDINARY CIRCUMSTANCES.—
‘‘(1) EXTENSION.—Upon request, the administer-
ing authority may amend the order under subsection
(a) to set a due date for payment or payments later
than the date that is 180 days from the date of publi-
cation of the order, if the administering authority de-
termines that full payment in 180 days would render
the producer insolvent or would be incompatible with
a judicially supervised reorganization. When an ex-
tended payment schedule provides for a series of par-
tial payments, the administering authority shall
specify the circumstances under which default on one
or more payments will result in the imposition of
countermeasures.
‘‘(2) INTEREST CHARGES.—If a request is grant-
ed under paragraph (1), payments made after the
date that is 180 days from the publication of the
order shall be subject to interest charges at the CIRR.
‘‘(c) NOTIFICATION OF ORDER.—The administering
authority shall deliver a copy of the order requesting pay-
ment to the foreign producer of the subject vessel and to
an appropriate representative of the government of the ex-
porting country.
‘‘(d) REVOCATION OF ORDER.—The administering au-
thority—
‘‘(1) may revoke an injurious pricing order if the
administering authority determines that producers
accounting for substantially all of the capacity to
produce a domestic like vessel have expressed a lack
of interest in the order, and
‘‘(2) shall revoke an injurious pricing order—
‘‘(A) if the sale of the vessel that was the
subject of the injurious pricing determination is
voided,
‘‘(B) if the injurious pricing charge is paid
in full, including any interest accrued for late
payment,
‘‘(C) upon full implementation of an alter-
native equivalent remedy described in subsection
(e), or
‘‘(D) if, with respect to the vessel sale that
was at issue in the investigation that resulted in
the injurious pricing order, an antidumping
proceeding conducted by a WTO member who is
not a Shipbuilding Agreement Party has been
completed and resulted in the imposition of anti-
dumping measures.
‘‘(e) ALTERNATIVE EQUIVALENT REMEDY.—
‘‘(1) AGREEMENT
FOR
ALTERNATE
REMEDY.—
The administering authority may suspend an injuri-
ous pricing order if the administering authority en-
ters into an agreement with the foreign producer sub-
ject to the order on an alternative equivalent remedy,
that the administering authority determines—
‘‘(A) is at least as effective a remedy as the
injurious pricing charge,
‘‘(B) is in the public interest,
‘‘(C) can be effectively monitored and en-
forced, and
‘‘(D) is otherwise consistent with the domes-
tic law and international obligations of the
United States.
‘‘(2) PRIOR CONSULTATIONS AND SUBMISSION OF
COMMENTS.—Before entering into an agreement
under paragraph (1), the administering authority
shall consult with the industry, and provide for the
submission of comments by interested parties, with re-
spect to the agreement.
‘‘(3) MATERIAL VIOLATIONS OF AGREEMENT.—If
the injurious pricing order has been suspended under
paragraph (1), and the administering authority de-
termines that the foreign producer concerned has ma-
terially violated the terms of the agreement under
paragraph (1), the administering authority shall ter-
minate the suspension.
‘‘SEC. 807. IMPOSITION OF COUNTERMEASURES.
‘‘(a) GENERAL RULE.—
‘‘(1) ISSUANCE OF ORDER IMPOSING COUNTER-
MEASURES.—Unless an injurious pricing order is re-
voked or suspended under section 806 (d) or (e), the
administering authority shall issue an order impos-
ing countermeasures.
‘‘(2) CONTENTS OF ORDER.—The countermeasure
order shall—
‘‘(A) state that, as provided in section 468,
a permit to lade or unlade passengers or mer-
chandise may not be issued with respect to ves-
sels contracted to be built by the foreign producer
of the vessel with respect to which an injurious
pricing order was issued under section 806, and
‘‘(B) specify the scope and duration of the
prohibition on the issuance of a permit to lade
or unlade passengers or merchandise.
‘‘(b) NOTICE
OF
INTENT
TO
IMPOSE
COUNTER-
MEASURES.—
‘‘(1) GENERAL
RULE.—The administering au-
thority shall issue a notice of intent to impose coun-
termeasures not later than 30 days before the expira-
tion of the time for payment specified in the injurious
pricing order (or extended payment provided for
under section 806(b)), and shall publish the notice in
the Federal Register within 7 days after issuing the
notice.
‘‘(2) ELEMENTS OF THE NOTICE OF INTENT.—
The notice of intent shall contain at least the follow-
ing elements:
‘‘(A) SCOPE.—A permit to lade or unlade
passengers or merchandise may not be issued
with respect to any vessel—
‘‘(i) built by the foreign producer sub-
ject to the proposed countermeasures, and
‘‘(ii) with respect to which the material
terms of sale are established within a period
of 4 consecutive years beginning on the date
that is 30 days after publication in the
Fedeal Register of the notice of intent de-
scribed in paragraph (1).
‘‘(B) DURATION.—For each vessel described
in subparagraph (A), a permit to lade or unlade
passengers or merchandise may not be issued for
a period of 4 years after the date of delivery of
the vessel.
‘‘(c) DETERMINATION TO IMPOSE COUNTERMEASURES;
ORDER.—
‘‘(1) GENERAL
RULE.—The administering au-
thority shall, within the time specified in paragraph
(2), issue a determination and order imposing coun-
termeasures.
‘‘(2) TIME
FOR
DETERMINATION.—The deter-
mination shall be issued within 90 days after the date
on which the notice of intent to impose counter-
measures under subsection (b) is published in the
Federal Register. The administering authority shall
publish the determination, and the order described in
paragraph (4), in the Federal Register within 7 days
after issuing the final determination, and shall pro-
vide a copy of the determination and order to the
Customs Service.
‘‘(3) CONTENT OF THE DETERMINATION.—In the
determination imposing countermeasures, the admin-
istering authority shall determine whether, in light of
all of the circumstances, an interested party has dem-
onstrated that the scope or duration of the counter-
measures described in subsection (b)(2) should be nar-
rower or shorter than the scope or duration set forth
in the notice of intent to impose countermeasures.
‘‘(4) ORDER.—At the same time it issues its de-
termination, the administering authority shall issue
an order imposing countermeasures, consistent with
its determination.
‘‘(d) ADMINISTRATIVE REVIEW OF DETERMINATION TO
IMPOSE COUNTERMEASURES.—
‘‘(1) REQUEST FOR REVIEW.—Each year, in the
anniversary month of the issuance of the order impos-
ing countermeasures under subsection (c), the admin-
istering authority shall publish in the Federal Reg-
ister a notice providing that interested parties may
request—
‘‘(A) a review of the scope or duration of the
countermeasures determined under subsection
(c)(3), and
‘‘(B) a hearing in connection with such a
review.
‘‘(2) REVIEW.—If a proper request has been re-
ceived under paragraph (1), the administering au-
thority shall—
‘‘(A) publish notice of initiation of a review
in the Federal Register not later than 15 days
after the end of the anniversary month of the is-
suance of the order imposing countermeasures,
and
‘‘(B) review and determine whether the re-
questing party has demonstrated that the scope
or duration of the countermeasures is excessive
in light of all of the circumstances.
‘‘(3) TIME FOR REVIEW.—The administering au-
thority shall make its determination under paragraph
(2)(B) within 90 days after the date on which the no-
tice of initiation of the review is published. If the de-
termination under paragraph (2)(B) is affirmative,
the administering authority shall amend the order ac-
cordingly. The administering authority shall prompt-
ly publish the determination and any amendment to
the order in the Federal Register, and shall provide
a copy of any amended order to the Customs Service.
In extraordinary circumstances, the administering
authority may extend the time for its determination
under paragraph (2)(B) to not later than 150 days
after the date on which the notice of initiation of the
review is published.
‘‘(e) EXTENSION OF COUNTERMEASURES.—
‘‘(1) REQUEST
FOR
EXTENSION.—Within the
time described in paragraph (2), an interested party
may file with the administering authority a request
that the scope or duration of countermeasures be ex-
tended.
‘‘(2) DEADLINE
FOR
REQUEST
FOR
EXTEN-
SION.—
‘‘(A) REQUEST FOR EXTENSION BEYOND 4
YEARS.—If the request seeks an extension that
would cause the scope or duration of counter-
measures to exceed 4 years, including any prior
extensions, the request for extension under para-
graph (1) shall be filed not earlier than the date
that is 15 months, and not later than the date
that is 12 months, before the date that marks the
end of the period that specifies the vessels that
fall within the scope of the order by virtue of the
establishment of material terms of sale within
that period.
‘‘(B) OTHER
REQUESTS.—If the request
seeks an extension under paragraph (1) other
than one described in subparagraph (A), the re-
quest shall be filed not earlier than the date that
is 6 months, and not later than a date that is
3 months, before the date that marks the end of
the period referred to in subparagraph (A).
‘‘(3) DETERMINATION.—
‘‘(A) NOTICE
OF
REQUEST
FOR
EXTEN-
SION.—If a proper request has been received
under paragraph (1), the administering author-
ity shall publish notice of initiation of an exten-
sion proceeding in the Federal Register not later
than 15 days after the applicable deadline in
paragraph (2) for requesting the extension.
‘‘(B) PROCEDURES.—
‘‘(i) REQUESTS
FOR
EXTENSION
BE-
YOND 4 YEARS.—If paragraph (2)(A) ap-
plies to the request, the administering au-
thority shall consult with the Trade Rep-
resentative under paragraph (4).
‘‘(ii) OTHER
REQUESTS.—If para-
graph (2)(B) applies to the request, the ad-
ministering authority shall determine, with-
in 90 days after the date on which the no-
tice of initiation of the proceeding is pub-
lished, whether the requesting party has
demonstrated that the scope or duration of
the countermeasures is inadequate in light
of all of the circumstances. If the admin-
istering authority determines that an exten-
sion is warranted, it shall amend the coun-
termeasure order accordingly. The admin-
istering authority shall promptly publish
the determination and any amendment to
the order in the Federal Register, and shall
provide a copy of any amended order to the
Customs Service.
‘‘(4) CONSULTATION WITH TRADE REPRESENTA-
TIVE.—If paragraph (3)(B)(i) applies, the admin-
istering authority shall consult with the Trade Rep-
resentative concerning whether it would be appro-
priate to request establishment of a dispute settlement
panel under the Shipbuilding Agreement for the pur-
pose of seeking authorization to extend the scope or
duration of countermeasures for a period in excess of
4 years.
‘‘(5) DECISION
NOT
TO
REQUEST
PANEL.—If,
based on consultations under paragraph (4), the
Trade Representative decides not to request establish-
ment of a panel, the Trade Representative shall in-
form the party requesting the extension of the counter-
measures of the reasons for its decision in writing.
The decision shall not be subject to judicial review.
‘‘(6) PANEL
PROCEEDINGS.—If, based on con-
sultations under paragraph (4), the Trade Represent-
ative requests the establishment of a panel under the
Shipbuilding Agreement to authorize an extension of
the period of countermeasures, and the panel author-
izes such an extension, the administering authority
shall promptly amend the countermeasure order. The
administering authority shall publish notice of the
amendment in the Federal Register.
‘‘(f) LIST
OF
VESSELS
SUBJECT
TO
COUNTER-
MEASURES.—
‘‘(1) GENERAL RULE.—At least once during each
12-month period beginning on the anniversary date of
a determination to impose countermeasures under
this section, the administering authority shall publish
in the Federal Register a list of all delivered vessels
subject to countermeasures under the determination.
‘‘(2) CONTENT OF LIST.—The list under para-
graph (1) shall include the following information for
each vessel, to the extent the information is available:
‘‘(A) The name and general description of
the vessel.
‘‘(B) The vessel identification number.
‘‘(C) The shipyard where the vessel was con-
structed.
‘‘(D) The last-known registry of the vessel.
‘‘(E) The name and address of the last-
known owner of the vessel.
‘‘(F) The delivery date of the vessel.
‘‘(G) The remaining duration of counter-
measures on the vessel.
‘‘(H) Any other identifying information
available.
‘‘(3) AMENDMENT OF LIST.—-The administering
authority may amend the list from time to time to re-
flect new information that comes to its attention and
shall publish any amendments in the Federal Reg-
ister.
‘‘(4) SERVICE OF LIST AND AMENDMENTS.—(A)
The administering authority shall serve a copy of the
list described in paragraph (1) on—
‘‘(i) the petitioner under section 802(b),
‘‘(ii) the United States Customs Service,
‘‘(iii) the Secretariat of the Organization
for Economic Cooperation and Development,
‘‘(iv) the owners of vessels on the list,
‘‘(v) the shipyards on the list, and
‘‘(vi) the government of the country in
which a shipyard on the list is located.
‘‘(B) The administering authority shall serve a
copy of any amendments to the list under paragraph
(3) or subsection (g)(3) on—
‘‘(i) the parties listed in clauses (i), (ii),
and (iii) of subparagraph (A), and,
‘‘(ii) if the amendment affects their inter-
ests, the parties listed in clauses (iv), (v), and
(vi) of subparagraph (A).
‘‘(g) ADMINISTRATIVE REVIEW OF LIST OF VESSELS
SUBJECT TO COUNTERMEASURES.—
‘‘(1) REQUEST FOR REVIEW.—(A) An interested
party may request in writing a review of the list de-
scribed in subsection (f)(1), including any amend-
ments thereto, to determine whether—
‘‘(i) a vessel included in the list does not
fall within the scope of the applicable counter-
measure order and should be deleted, or
‘‘(ii) a vessel not included in the list falls
within the scope of the applicable counter-
measure order and should be added.
‘‘(B) Any request seeking a determination de-
scribed in subparagraph (A)(i) shall be made within
90 days after the date of publication of the applicable
list.
‘‘(2) REVIEW.—If a proper request for review has
been received, the administering authority shall—
‘‘(A) publish notice of initiation of a review
in the Federal Register—
‘‘(i) not later than 15 days after the re-
quest is received, or
‘‘(ii) if the request seeks a determina-
tion described in paragraph (1)(A)(i), not
later than 15 days after the deadline de-
scribed in paragraph (1)(B), and
‘‘(B) review and determine whether the re-
questing party has demonstrated that—
‘‘(i) a vessel included in the list does
not qualify for such inclusion, or
‘‘(ii) a vessel not included in the list
qualifies for inclusion.
‘‘(3) TIME FOR DETERMINATION.—The admin-
istering authority shall make its determination under
paragraph (2)(B) within 90 days after the date on
which the notice of initiation of such review is pub-
lished. If the administering authority determines that
a vessel should be added or deleted from the list, the
administering authority shall amend the list accord-
ingly. The administering authority shall promptly
publish in the Federal Register the determination and
any such amendment to the list.
‘‘(h) EXPIRATION OF COUNTERMEASURES.—Upon ex-
piration of a countermeasure order imposed under this sec-
tion, the administering authority shall promptly publish a
notice of the expiration in the Federal Register.
‘‘(i) SUSPENSION OR TERMINATION OF PROCEEDINGS
OR
COUNTERMEASURES; TEMPORARY
REDUCTION
OF
COUNTERMEASURES.—
‘‘(1) IF INJURIOUS PRICING ORDER REVOKED OR
SUSPENDED.—If an injurious pricing order has been
revoked or suspended under section 806(d) or (e), the
administering authority shall, as appropriate, sus-
pend or terminate proceedings under this section with
respect to that order, or suspend or revoke a counter-
measure order issued with respect to that injurious
pricing order.
‘‘(2) IF PAYMENT DATE AMENDED.—(A) Subject
to subparagraph (C), if the payment date under an
injurious pricing order is amended under section 845,
the administering authority shall, as appropriate,
suspend proceedings or modify deadlines under this
section, or suspend or amend a countermeasure order
issued with respect to that injurious pricing order.
‘‘(B) In taking action under subparagraph (A),
the administering authority shall ensure that counter-
measures are not applied before the date that is 30
days after publication in the Federal Register of the
amended payment date.
‘‘(C) If—
‘‘(i) a countermeasure order is issued under
subsection (c) before an amendment is made
under section 845 to the payment date of the in-
jurious pricing order to which the counter-
measure order applies, and
‘‘(ii) the administering authority deter-
mines that the period of time between the origi-
nal payment date and the amended payment
date is significant for purposes of determining
the appropriate scope or duration of counter-
measures,
the administering authority may, in lieu of acting
under subparagraph (A), reinstitute proceedings
under subsection (c) for purposes of issuing a new de-
termination under that subsection.
‘‘(j) COMMENT AND HEARING.—In the course of any
proceeding under subsection (c), (d), (e), or (g), the admin-
istering authority—
‘‘(1) shall solicit comments from interested par-
ties, and
‘‘(2)(A) in a proceeding under subsection (c) or
(d), upon the request of an interested party, shall hold
a hearing in accordance with section 841(b) in con-
nection with that proceeding, or
‘‘(B) in a proceeding under subsection (e) or (g),
upon the request of an interested party, may hold a
hearing in accordance with section 841(b) in connec-
tion with that proceeding.
‘‘SEC. 808. INJURIOUS PRICING PETITIONS BY THIRD COUN-
TRIES.
‘‘(a) FILING
OF PETITION.—The government of a
Shipbuilding Agreement Party may file with the Trade
Representative a petition requesting that an investigation
be conducted to determine if—
‘‘(1) a vessel from another Shipbuilding Agree-
ment Party has been sold in the United States at less
than fair value, and
‘‘(2) an industry, in the petitioning country,
producing or capable of producing a like vessel is ma-
terially injured by reason of such sale.
‘‘(b) INITIATION.—The Trade Representative, after
consultation with the administering authority and the
Commission and obtaining the approval of the Parties
Group under the Shipbuilding Agreement, shall determine
whether to initiate an investigation described in subsection
(a).
‘‘(c) DETERMINATIONS.—Upon initiation of an inves-
tigation under subsection (a), the Trade Representative
shall request the following determinations be made in ac-
cordance with substantive and procedural requirements
specified by the Trade Representative, notwithstanding any
other provision of this title:
‘‘(1) The administering authority shall deter-
mine whether the subject vessel has been sold at less
than fair value.
‘‘(2) The Commission shall determine whether an
industry in the petitioning country is materially in-
jured by reason of the sale of the subject vessel in the
United States.
‘‘(d) PUBLIC COMMENT.—An opportunity for public
comment shall be provided, as appropriate—
‘‘(1) by the Trade Representative, in making the
determinations required by subsection (b), and
‘‘(2) by the administering authority and the
Commission, in making the determinations required
by subsection (c).
‘‘(e) ISSUANCE OF ORDER.—If the administering au-
thority makes an affirmative determination under para-
graph (1) of subsection (c), and the Commission makes an
affirmative determination under paragraph (2) of sub-
section (c), the administering authority shall—
‘‘(1) order an injurious pricing charge in accord-
ance with section 806, and
‘‘(2) make such determinations and take such
other actions as are required by sections 806 and 807,
as if affirmative determinations had been made under
subsections (a) and (b) of section 805.
‘‘(f) REVIEWS OF DETERMINATIONS.—For purposes of
review under section 516B, if an order is issued under sub-
section (e)—
‘‘(1) the final determinations of the administer-
ing authority and the Commission under subsection
(c) shall be treated as final determinations made
under section 805, and
‘‘(2) determinations of the administering author-
ity under subsection (e)(2) shall be treated as deter-
minations made under section 806 or 807, as the case
may be.
‘‘(g) ACCESS
TO INFORMATION.—Section 843 shall
apply to investigations under this section, to the extent
specified by the Trade Representative, after consultation
with the administering authority and the Commission.
‘‘Subtitle B—Special Rules
‘‘SEC. 821. EXPORT PRICE.
‘‘(a) EXPORT PRICE.—For purposes of this title, the
term ‘export price’ means the price at which the subject ves-
sel is first sold (or agreed to be sold) by or for the account
of the foreign producer of the subject vessel to an unaffili-
ated United States buyer. The term ‘sold (or agreed to be
sold) by or for the account of the foreign producer’ includes
any transfer of an ownership interest, including by way
of lease or long-term bareboat charter, in conjunction with
the original transfer from the producer, either directly or
indirectly, to a United States buyer.
‘‘(b) ADJUSTMENTS TO EXPORT PRICE.—The price
used to establish export price shall be—
‘‘(1) increased by the amount of any import du-
ties imposed by the country of exportation which have
been rebated, or which have not been collected, by rea-
son of the exportation of the subject vessel, and
‘‘(2) reduced by—
‘‘(A) the amount, if any, included in such
price, attributable to any additional costs,
charges, or expenses which are incident to bring-
ing the subject vessel from the shipyard in the ex-
porting country to the place of delivery,
‘‘(B) the amount, if included in such price,
of any export tax, duty, or other charge imposed
by the exporting country on the exportation of
the subject vessel, and
‘‘(C) all other expenses incidental to placing
the vessel in condition for delivery to the buyer.
‘‘SEC. 822. NORMAL VALUE.
‘‘(a) DETERMINATION.—In determining under this
title whether a subject vessel has been sold at less than fair
value, a fair comparison shall be made between the export
price and normal value of the subject vessel. In order to
achieve a fair comparison with the export price, normal
value shall be determined as follows:
‘‘(1) DETERMINATION OF NORMAL VALUE.—
‘‘(A) IN GENERAL.—The normal value of the
subject vessel shall be the price described in sub-
paragraph (B), at a time reasonably correspond-
ing to the time of the sale used to determine the
export price under section 821(a).
‘‘(B) PRICE.—The price referred to in sub-
paragraph (A) is—
‘‘(i) the price at which a foreign like
vessel is first sold in the exporting country,
in the ordinary course of trade and, to the
extent practicable, at the same level of
trade, or
‘‘(ii) in a case to which subparagraph
(C) applies, the price at which a foreign
like vessel is so sold for consumption in a
country other than the exporting country or
the United States, if—
‘‘(I) such price is representative,
and
‘‘(II) the administering authority
does not determine that the particular
market situation in such other country
prevents a proper comparison with the
export price.
‘‘(C) THIRD
COUNTRY
SALES.—This sub-
paragraph applies when—
‘‘(i) a foreign like vessel is not sold in
the exporting country as described in sub-
paragraph (B)(i), or
‘‘(ii) the particular market situation
in the exporting country does not permit a
proper comparison with the export price.
‘‘(D) CONTEMPORANEOUS SALE.—For pur-
poses of subparagraph (A), ‘a time reasonably
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 author-
ity 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), at-
tributable 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 com-
ponents thereof which have been rebated, 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 ex-
port price and the price described in paragraph
(1)(B) (other than a difference for which allow-
ance is otherwise provided under this section)
that is established to the satisfaction of the ad-
ministering 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 in-
creased 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 otherwise
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 levels 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 coun-
try in which normal value is determined.
‘‘(7) ADJUSTMENTS TO CONSTRUCTED VALUE.—
Constructed value as determined under subsection (d)
may be adjusted, as appropriate, pursuant to this
subsection.
‘‘(b) SALES AT LESS THAN COST OF PRODUCTION.—
‘‘(1) DETERMINATION; SALES
DISREGARDED.—
Whenever the administering authority has reasonable
grounds to believe or suspect that the sale of the for-
eign like vessel under consideration for the determina-
tion of normal value has been made at a price which
represents less than the cost of production of the for-
eign like vessel, the administering authority shall de-
termine whether, in fact, such sale was made at less
than the cost of production. If the administering au-
thority 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 another sale of a foreign like
vessel in the ordinary course of trade. If no sales
made in the ordinary course of trade remain, the nor-
mal 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 nor-
mal value has been made at a price which rep-
resents less than the cost of production of the ves-
sel.
‘‘(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 produc-
tion for the period of investigation, such price
shall be considered to provide for recovery of
costs within 5 years.
‘‘(3) CALCULATION OF COST OF PRODUCTION.—
For purposes of this section, the cost of production
shall be an amount equal to the sum of—
‘‘(A) the cost of materials and of fabrication
or other processing of any kind employed in pro-
ducing the foreign like vessel, during a period
which would ordinarily permit the production 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 non-
market 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 producing the
vessel and to which shall be added an amount for gen-
eral expenses and profit plus the cost of expenses inci-
dental to placing the vessel in a condition for delivery
to the buyer. Except as provided in paragraph (2),
the valuation of the factors of production shall be
based on the best available information regarding the
values of such factors in a market economy country
or countries considered to be appropriate by the ad-
ministering 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 administering
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 econ-
omy countries that are at a level of economic de-
velopment 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 PRODUCTION.—
The administering authority, in valuing factors of
production under paragraph (1), shall utilize, to the
extent possible, the prices or costs of factors of produc-
tion in one or more market economy countries 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 pro-
duced in one or more of the facilities outside the ex-
porting country is higher than the normal value of
the foreign like vessel produced in the facilities located
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 facili-
ties outside the exporting country. The administering au-
thority, 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 facilities
outside the exporting country and costs of production of the
foreign like vessel produced in facilities in the exporting
country, if such differences are demonstrated to its satisfac-
tion.
‘‘(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 pro-
ducing 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 re-
alized by the foreign producer of the subject ves-
sel for selling, general, and administrative ex-
penses, 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 ves-
sel, 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 adminis-
trative expenses, and for profits, in connec-
tion with the production and sale of the
same general category of vessel in the do-
mestic market of the country of origin of the
subject vessel,
‘‘(II) the weighted average of the actual
amounts incurred and realized by producers
in the country of origin of the subject vessel
(other than the producer of the subject ves-
sel) for selling, general, and administrative
expenses, and for profits, in connection with
the production and sale of a foreign like
vessel, in the ordinary course of trade, in
the domestic market, or
‘‘(III) if data 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, except that
the amount allowed for profit may not ex-
ceed the amount normally realized by for-
eign producers (other than the producer of
the subject vessel) in connection with the
sale of vessels in the same general category
of vessel as the subject vessel in the domestic
market of the country of origin of the sub-
ject vessel.
The profit shall, for purposes of this paragraph, be
based on the average profit realized over a reasonable
period of time before and after the sale of the subject
vessel and shall reflect a reasonable profit at the time
of such sale. For purposes of the preceding sentence,
a ‘reasonable period of time’ shall not, except where
otherwise appropriate, exceed 6 months before, or 6
months after, the sale of the subject vessel. In calculat-
ing profit under this paragraph, any distortion which
would result in other than a profit which is reason-
able at the time of the sale shall be eliminated.
‘‘(2) COSTS AND PROFITS BASED ON OTHER REA-
SONABLE METHODS.—When costs and profits are de-
termined under paragraph (1)(B)(ii)(III), such deter-
mination shall, except where otherwise appropriate,
be based on appropriate export sales by the producer
of the subject vessel or, absent such sales, to export
sales by other producers of a foreign like vessel or the
same general category of vessel as the subject vessel in
the country of origin of the subject vessel.
‘‘(3) COSTS
OF
MATERIALS.—For purposes of
paragraph (1)(A), the cost of materials shall be deter-
mined without regard to any internal tax in the ex-
porting country imposed on such materials or their
disposition which are remitted or refunded upon ex-
portation of the subject vessel produced from such ma-
terials.
‘‘(f) SPECIAL RULES FOR CALCULATION OF COST OF
PRODUCTION
AND
FOR CALCULATION
OF CONSTRUCTED
VALUE.—For purposes of subsections (b) and (e)—
‘‘(1) COSTS.—
‘‘(A) IN GENERAL.—Costs shall normally be
calculated based on the records of the foreign
producer of the subject vessel, if such records are
kept in accordance with the generally accepted
accounting principles of the exporting country
and reasonably reflect the costs associated with
the production and sale of the vessel. The admin-
istering authority shall consider all available
evidence on proper allocation of costs, including
that which is made available by the foreign pro-
ducer on a timely basis, if such allocations have
been historically used by the foreign producer, in
particular for establishing appropriate amortiza-
tion and depreciation periods, and allowances
for capital expenditures and other development
costs.
‘‘(B) NONRECURRING COSTS.—Costs shall be
adjusted appropriately for those nonrecurring
costs that benefit current or future production, or
both.
‘‘(C) STARTUP COSTS.—
‘‘(i) IN GENERAL.—Costs shall be ad-
justed appropriately for circumstances in
which costs incurred during the time period
covered by the investigation are affected by
startup operations.
‘‘(ii) STARTUP
OPERATIONS.—Adjust-
ments shall be made for startup operations
only where—
‘‘(I) a producer is using new pro-
duction facilities or producing a new
type of vessel that requires substantial
additional investment, and
‘‘(II) production levels are limited
by technical factors associated with the
initial phase of commercial produc-
tion.
For purposes of subclause (II), the initial
phase of commercial production ends at the
end of the startup period. In determining
whether commercial production levels have
been achieved, the administering authority
shall consider factors unrelated to startup
operations that might affect the volume of
production processed, such as demand,
seasonality, or business cycles.
‘‘(iii) ADJUSTMENT FOR STARTUP OP-
ERATIONS.—The adjustment for startup op-
erations shall be made by substituting the
unit production costs incurred with respect
to the vessel at the end of the startup period
for the unit production costs incurred dur-
ing the startup period. If the startup period
extends beyond the period of the investiga-
tion under this title, the administering au-
thority shall use the most recent cost of pro-
duction data that it reasonably can obtain,
analyze, and verify without delaying the
timely completion of the investigation. For
purposes of this subparagraph, the startup
period ends at the point at which the level
of commercial production that is char-
acteristic of the vessel, the producer, or the
industry is achieved.
‘‘(D) COSTS DUE TO EXTRAORDINARY CIR-
CUMSTANCES
NOT
INCLUDED.—Costs shall not
include actual costs which are due to extraor-
dinary circumstances (including, but not limited
to, labor disputes, fire, and natural disasters)
and which are significantly over the cost in-
crease which the shipbuilder could have reason-
ably anticipated and taken into account at the
time of sale.
‘‘(2) TRANSACTIONS
DISREGARDED.—A trans-
action directly or indirectly between affiliated persons
may be disregarded if, in the case of any element of
value required to be considered, the amount represent-
ing that element does not fairly reflect the amount
usually reflected in sales of a like vessel in the market
under consideration. If a transaction is disregarded
under the preceding sentence and no other trans-
actions are available for consideration, the determina-
tion of the amount shall be based on the information
available as to what the amount would have been if
the transaction had occurred between persons who are
not affiliated.
‘‘(3) MAJOR INPUT RULE.—If, in the case of a
transaction between affiliated persons involving the
production by one of such persons of a major input
to the subject vessel, the administering authority has
reasonable grounds to believe or suspect that an
amount represented as the value of such input is less
than the cost of production of such input, then the ad-
ministering authority may determine the value of the
major input on the basis of the information available
regarding such cost of production, if such cost is
greater than the amount that would be determined for
such input under paragraph (2).
‘‘SEC. 823. CURRENCY CONVERSION.
‘‘(a) IN GENERAL.—In an injurious pricing proceed-
ing under this title, the administering authority shall con-
vert foreign currencies into United States dollars using the
exchange rate in effect on the date of sale of the subject ves-
sel, except that if it is established that a currency trans-
action on forward markets is directly linked to a sale under
consideration, the exchange rate specified with respect to
such foreign currency in the forward sale agreement shall
be used to convert the foreign currency.
‘‘(b) DATE OF SALE.—For purposes of this section,
‘date of sale’ means the date of the contract of sale or, where
appropriate, the date on which the material terms of sale
are otherwise established. If the material terms of sale are
significantly changed after such date, the date of sale is the
date of such change. In the case of such a change in the
date of sale, the administering authority shall make appro-
priate adjustments to take into account any unreasonable
effect on the injurious pricing margin due only to fluctua-
tions in the exchange rate between the original date of sale
and the new date of sale.
‘‘Subtitle C—Procedures
‘‘SEC. 841. HEARINGS.
‘‘(a) UPON REQUEST.—The administering authority
and the Commission shall each hold a hearing in the course
of an investigation under this title, upon the request of any
party to the investigation, before making a final determina-
tion under section 805.
‘‘(b) PROCEDURES.—Any hearing required or per-
mitted under this title shall be conducted after notice pub-
lished in the Federal Register, and a transcript of the hear-
ing shall be prepared and made available to the public. The
hearing shall not be subject to the provisions of subchapter
II of chapter 5 of title 5, United States Code, or to section
702 of such title.
‘‘SEC. 842. DETERMINATIONS ON THE BASIS OF THE FACTS
AVAILABLE.
‘‘(a) IN GENERAL.—If—
‘‘(1) necessary information is not available on
the record, or
‘‘(2) an interested party or any other person—
‘‘(A) withholds information that has been
requested by the administering authority or the
Commission under this title,
‘‘(B) fails to provide such information by
the deadlines for the submission of the informa-
tion or in the form and manner requested, sub-
ject to subsections (b)(1) and (d) of section 844,
‘‘(C) significantly impedes a proceeding
under this title, or
‘‘(D) provides such information but the in-
formation cannot be verified as provided in sec-
tion 844(g),
the administering authority and the Commission
shall, subject to section 844(c), use the facts otherwise
available in reaching the applicable determination
under this title.
‘‘(b) ADVERSE INFERENCES.—If the administering au-
thority or the Commission (as the case may be) finds that
an interested party has failed to cooperate by not acting
to the best of its ability to comply with a request for infor-
mation from the administering authority or the Commis-
sion, the administering authority or the Commission (as
the case may be), in reaching the applicable determination
under this title, may use an inference that is adverse to
the interests of that party in selecting from among the facts
otherwise available. Such adverse inference may include re-
liance on information derived from—
‘‘(1) the petition, or
‘‘(2) any other information placed on the record.
‘‘(c) CORROBORATION
OF
SECONDARY
INFORMA-
TION.—When the administering authority or the Commis-
sion relies on secondary information rather than on infor-
mation obtained in the course of an investigation under this
title, the administering authority and the Commission, as
the case may be, shall, to the extent practicable, corroborate
that information from independent sources that are reason-
ably at their disposal.
‘‘SEC. 843. ACCESS TO INFORMATION.
‘‘(a) INFORMATION GENERALLY MADE AVAILABLE.—
‘‘(1) PROGRESS OF INVESTIGATION REPORTS.—
The administering authority and the Commission
shall, from time to time upon request, inform the par-
ties to an investigation under this title of the progress
of that investigation.
‘‘(2) EX PARTE MEETINGS.—The administering
authority and the Commission shall maintain a
record of any ex parte meeting between—
‘‘(A) interested parties or other persons pro-
viding factual information in connection with a
proceeding under this title, and
‘‘(B) the person charged with making the
determination, or any person charged with mak-
ing a final recommendation to that person, in
connection with that proceeding,
if information relating to that proceeding was pre-
sented or discussed at such meeting. The record of
such an ex parte meeting shall include the identity of
the persons present at the meeting, the date, time, and
place of the meeting, and a summary of the matters
discussed or submitted. The record of the ex parte
meeting shall be included in the record of the proceed-
ing.
‘‘(3) SUMMARIES; 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, oper-
ations of a particular person, and
‘‘(B) any information submitted in connec-
tion with a proceeding which is not designated
as proprietary by the person submitting it.
‘‘(4) MAINTENANCE
OF
PUBLIC
RECORD.—The
administering authority and the Commission shall
maintain and make available for public inspection
and copying a record of all information which is ob-
tained by the administering authority or the Commis-
sion, as the case may be, in a proceeding under this
title to the extent that public disclosure of the infor-
mation is not prohibited under this chapter or exempt
from disclosure under section 552 of title 5, United
States Code.
‘‘(b) PROPRIETARY INFORMATION.—
‘‘(1) PROPRIETARY STATUS MAINTAINED.—
‘‘(A) IN GENERAL.—Except as provided in
subsection (a)(4) and subsection (c), information
submitted to the administering authority or the
Commission which is designated as proprietary
by the person submitting the information shall
not be disclosed to any person without the con-
sent of the person submitting the information,
other than—
‘‘(i) to an officer or employee of the ad-
ministering authority or the Commission
who is directly concerned with carrying out
the investigation in connection with which
the information is submitted or any other
proceeding under this title covering the
same subject vessel, or
‘‘(ii) to an officer or employee of the
United States Customs Service who is di-
rectly involved in conducting an investiga-
tion regarding fraud under this title.
‘‘(B) 
ADDITIONAL
REQUIREMENTS.—The
administering authority and the Commission
shall require that information for which propri-
etary treatment is requested be accompanied
by—
‘‘(i) either—
‘‘(I) a nonproprietary summary
in sufficient detail to permit a reason-
able understanding of the substance of
the information submitted in con-
fidence, or
‘‘(II) a statement that the infor-
mation is not susceptible to summary,
accompanied by a statement of the rea-
sons in support of the contention, and
‘‘(ii) either—
‘‘(I) a statement which permits
the administering authority or the
Commission to release under adminis-
trative protective order, in accordance
with subsection (c), the information
submitted in confidence, or
‘‘(II) a statement to the admin-
istering authority or the Commission
that the business proprietary informa-
tion is of a type that should not be re-
leased under administrative protective
order.
‘‘(2) UNWARRANTED DESIGNATION.—If the ad-
ministering authority or the Commission determines,
on the basis of the nature and extent of the informa-
tion or its availability from public sources, that des-
ignation of any information as proprietary is unwar-
ranted, then it shall notify the person who submitted
it and ask for an explanation of the reasons for the
designation. Unless that person persuades the admin-
istering authority or the Commission that the des-
ignation is warranted, or withdraws the designation,
the administering authority or the Commission, as
the case may be, shall return it to the party submit-
ting it. In a case in which the administering author-
ity or the Commission returns the information to the
person submitting it, the person may thereafter sub-
mit other material concerning the subject matter of
the returned information if the submission is made
within the time otherwise provided for submitting
such material.
‘‘(c) LIMITED DISCLOSURE OF CERTAIN PROPRIETARY
INFORMATION UNDER PROTECTIVE ORDER.—
‘‘(1) DISCLOSURE BY ADMINISTERING AUTHOR-
ITY OR COMMISSION.—
‘‘(A) IN GENERAL.—Upon receipt of an ap-
plication (before or after receipt of the informa-
tion requested) which describes in general terms
the information requested and sets forth the rea-
sons for the request, the administering authority
or the Commission shall make all business pro-
prietary information presented to, or obtained by
it, during a proceeding under this title (except
privileged information, classified information,
and specific information of a type for which
there is a clear and compelling need to withhold
from disclosure) available to all interested par-
ties who are parties to the proceeding under a
protective order described in subparagraph (B),
regardless of when the information is submitted
during the proceeding. Customer names (other
than the name of the United States buyer of the
subject vessel) obtained during any investigation
which requires a determination under section
805(b) may not be disclosed by the administering
authority under protective order until either an
order is published under section 806(a) as a re-
sult of the investigation or the investigation is
suspended or terminated. The Commission may
delay disclosure of customer names (other than
the name of the United States buyer of the sub-
ject vessel) under protective order during any
such investigation until a reasonable time before
any hearing provided under section 841 is held.
‘‘(B) PROTECTIVE ORDER.—The protective
order under which information is made available
shall contain such requirements as the admin-
istering authority or the Commission may deter-
mine by regulation to be appropriate. The ad-
ministering authority and the Commission shall
provide by regulation for such sanctions as the
administering authority and the Commission de-
termine to be appropriate, including disbarment
from practice before the agency.
‘‘(C) TIME
LIMITATIONS
ON
DETERMINA-
TIONS.—The administering authority or the
Commission, as the case may be, shall determine
whether to make information available under
this paragraph—
‘‘(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 in-
formation raises objection to its release,
or
‘‘(II) the information is unusually
voluminous or complex,
not later than 30 days (10 days if the sub-
mission pertains to a proceeding under sec-
tion 803(a)) after the date on which the in-
formation is submitted.
‘‘(D) AVAILABILITY
AFTER
DETERMINA-
TION.—If the determination under subparagraph
(C) is affirmative, then—
‘‘(i) the business proprietary informa-
tion submitted to the administering author-
ity or the Commission on or before the date
of the determination shall be made avail-
able, subject to the terms and conditions of
the protective order, on such date, and
‘‘(ii) the business proprietary informa-
tion submitted to the administering author-
ity or the Commission after the date of the
determination shall be served as required by
subsection (d).
‘‘(E) FAILURE TO DISCLOSE.—If a person
submitting information to the administering au-
thority refuses to disclose business proprietary
information which the administering authority
determines should be released under a protective
order described in subparagraph (B), the admin-
istering authority shall return the information,
and any nonconfidential summary thereof, to the
person submitting the information and summary
and shall not consider either.
‘‘(2) DISCLOSURE UNDER COURT ORDER.—If the
administering authority or the Commission denies a
request for information under paragraph (1), then
application may be made to the United States Court
of International Trade for an order directing the ad-
ministering authority or the Commission, as the case
may be, to make the information available. After no-
tification of all parties to the investigation and after
an opportunity for a hearing on the record, the court
may issue an order, under such conditions as the
court deems appropriate, which shall not have the ef-
fect of stopping or suspending the investigation, di-
recting the administering authority or the Commis-
sion to make all or a portion of the requested infor-
mation described in the preceding sentence available
under a protective order and setting forth sanctions
for violation of such order if the court finds that,
under the standards applicable in proceedings of the
court, such an order is warranted, and that—
‘‘(A) the administering authority or the
Commission has denied access to the information
under subsection (b)(1),
‘‘(B) the person on whose behalf the infor-
mation is requested is an interested party who is
a party to the investigation in connection with
which the information was obtained or devel-
oped, and
‘‘(C) the party which submitted the infor-
mation to which the request relates has been no-
tified, in advance of the hearing, of the request
made under this section and of its right to ap-
pear and be heard.
‘‘(d) SERVICE.—Any party submitting written infor-
mation, including business proprietary information, to the
administering authority or the Commission during a pro-
ceeding shall, at the same time, serve the information upon
all interested parties who are parties to the proceeding, if
the information is covered by a protective order. The ad-
ministering authority or the Commission shall not accept
any such information that is not accompanied by a certifi-
cate of service and a copy of the protective order version
of the document containing the information. Business pro-
prietary information shall only be served upon interested
parties who are parties to the proceeding that are subject
to protective order, except that a nonconfidential summary
thereof shall be served upon all other interested parties who
are parties to the proceeding.
‘‘(e) INFORMATION RELATING TO VIOLATIONS OF PRO-
TECTIVE ORDERS AND SANCTIONS.—The administering au-
thority and the Commission may withhold from disclosure
any correspondence, private letters of reprimand, settlement
agreements, and documents and files compiled in relation
to investigations and actions involving a violation or pos-
sible violation of a protective order issued under subsection
(c), and such information shall be treated as information
described in section 552(b)(3) of title 5, United States Code.
‘‘(f) OPPORTUNITY FOR COMMENT BY VESSEL BUY-
ERS.—The administering authority and the Commission
shall provide an opportunity for buyers of subject vessels
to submit relevant information to the administering author-
ity concerning a sale at less than fair value or counter-
measures, and to the Commission concerning material in-
jury by reason of the sale of a vessel at less than fair value.
‘‘(g) PUBLICATION OF DETERMINATIONS; REQUIRE-
MENTS FOR FINAL DETERMINATIONS.—
‘‘(1) IN GENERAL.—Whenever the administering
authority makes a determination under section 802
whether to initiate an investigation, or the admin-
istering authority or the Commission makes a pre-
liminary determination under section 803, a final de-
termination under section 805, a determination under
subsection (b), (c), (d), (e)(3)(B)(ii), (g), or (i) of sec-
tion 807, or a determination to suspend an investiga-
tion under this title, the administering authority or
the Commission, as the case may be, shall publish the
facts and conclusions supporting that determination,
and shall publish notice of that determination in the
Federal Register.
‘‘(2) CONTENTS
OF
NOTICE
OR
DETERMINA-
TION.—The notice or determination published under
paragraph (1) shall include, to the extent applica-
ble—
‘‘(A) in the case of a determination of the
administering authority—
‘‘(i) the names of the foreign producer
and the country of origin of the subject ves-
sel,
‘‘(ii) a description sufficient to identify
the subject vessel,
‘‘(iii) with respect to an injurious
pricing charge, the injurious pricing mar-
gin established and a full explanation of the
methodology used in establishing such mar-
gin,
‘‘(iv) with respect to countermeasures,
the scope and duration of countermeasures
and, if applicable, any changes thereto, and
‘‘(v) the primary reasons for the deter-
mination, and
‘‘(B) in the case of a determination of the
Commission—
‘‘(i) considerations relevant to the de-
termination of injury, and
‘‘(ii) the primary reasons for the deter-
mination.
‘‘(3) ADDITIONAL REQUIREMENTS FOR FINAL DE-
TERMINATIONS.—In addition to the requirements set
forth in paragraph (2)—
‘‘(A) the administering authority shall in-
clude in a final determination under section 805
or 807(c) an explanation of the basis for its de-
termination that addresses relevant arguments,
made by interested parties who are parties to the
investigation, concerning the establishment of the
injurious pricing charge with respect to which
the determination is made, and
‘‘(B) the Commission shall include in a
final determination of injury an explanation of
the basis for its determination that addresses rel-
evant arguments that are made by interested
parties who are parties to the investigation con-
cerning the effects and impact on the industry of
the sale of the subject vessel.
‘‘SEC. 844. CONDUCT OF INVESTIGATIONS.
‘‘(a) CERTIFICATION OF SUBMISSIONS.—Any person
providing factual information to the administering author-
ity or the Commission in connection with a proceeding
under this title on behalf of the petitioner or any other in-
terested party shall certify that such information is accu-
rate and complete to the best of that person’s knowledge.
‘‘(b) DIFFICULTIES IN MEETING REQUIREMENTS.—
‘‘(1) NOTIFICATION BY INTERESTED PARTY.—If
an interested party, promptly after receiving a re-
quest from the administering authority or the Com-
mission for information, notifies the administering
authority or the Commission (as the case may be)
that such party is unable to submit the information
requested in the requested form and manner, together
with a full explanation and suggested alternative
forms in which such party is able to submit the infor-
mation, the administering authority or the Commis-
sion (as the case may be) shall consider the ability of
the interested party to submit the information in the
requested form and manner and may modify such re-
quirements to the extent necessary to avoid imposing
an unreasonable burden on that party.
‘‘(2) ASSISTANCE
TO
INTERESTED
PARTIES.—
The administering authority and the Commission
shall take into account any difficulties experienced by
interested parties, particularly small companies, in
supplying information requested by the administering
authority or the Commission in connection with in-
vestigations under this title, and shall provide to such
interested parties any assistance that is practicable in
supplying such information.
‘‘(c) DEFICIENT SUBMISSIONS.—If the administering
authority or the Commission determines that a response to
a request for information under this title does not comply
with the request, the administering authority or the Com-
mission (as the case may be) shall promptly inform the per-
son submitting the response of the nature of the deficiency
and shall, to the extent practicable, provide that person with
an opportunity to remedy or explain the deficiency in light
of the time limits established for the completion of investiga-
tions or reviews under this title. If that person submits fur-
ther information in response to such deficiency and either—
‘‘(1) the administering authority or the Commis-
sion (as the case may be) finds that such response is
not satisfactory, or
‘‘(2) such response is not submitted within the
applicable time limits,
then the administering authority or the Commission (as the
case may be) may, subject to subsection (d), disregard all
or part of the original and subsequent responses.
‘‘(d) USE OF CERTAIN INFORMATION.—In reaching a
determination under section 803, 805, or 807, the admin-
istering authority and the Commission shall not decline to
consider information that is submitted by an interested
party and is necessary to the determination but does not
meet all the applicable requirements established by the ad-
ministering authority or the Commission if—
‘‘(1) the information is submitted by the deadline
established for its submission,
‘‘(2) the information can be verified,
‘‘(3) the information is not so incomplete that it
cannot serve as a reliable basis for reaching the appli-
cable determination,
‘‘(4) the interested party has demonstrated that
it acted to the best of its ability in providing the in-
formation and meeting the requirements established
by the administering authority or the Commission
with respect to the information, and
‘‘(5) the information can be used without undue
difficulties.
‘‘(e) NONACCEPTANCE OF SUBMISSIONS.—If the ad-
ministering authority or the Commission declines to accept
into the record any information submitted in an investiga-
tion under this title, it shall, to the extent practicable, pro-
vide to the person submitting the information a written ex-
planation of the reasons for not accepting the information.
‘‘(f) PUBLIC COMMENT ON INFORMATION.—Informa-
tion that is submitted on a timely basis to the administer-
ing authority or the Commission during the course of a pro-
ceeding under this title shall be subject to comment by other
parties within such reasonable time as the administering
authority or the Commission shall provide. The administer-
ing authority and the Commission, before making a final
determination under section 805 or 807, shall cease collect-
ing information and shall provide the parties with a final
opportunity to comment on the information obtained by the
administering authority or the Commission (as the case
may be) upon which the parties have not previously had
an opportunity to comment. Comments containing new fac-
tual information shall be disregarded.
‘‘(g) VERIFICATION.—The administering authority
shall verify all information relied upon in making a final
determination under section 805.
‘‘SEC. 845. ADMINISTRATIVE ACTION FOLLOWING SHIP-
BUILDING AGREEMENT PANEL REPORTS.
‘‘(a) ACTION
BY UNITED STATES INTERNATIONAL
TRADE COMMISSION.—
‘‘(1) ADVISORY REPORT.—If a dispute settlement
panel under the Shipbuilding Agreement finds in a
report that an action by the Commission in connec-
tion with a particular proceeding under this title is
not in conformity with the obligations of the United
States under the Shipbuilding Agreement, the Trade
Representative may request the Commission to issue
an advisory report on whether this title permits the
Commission to take steps in connection with the par-
ticular proceeding that would render its action not
inconsistent with the findings of the panel concerning
those obligations. The Trade Representative shall no-
tify the Committee on Ways and Means of the House
of Representatives and the Committee on Finance of
the Senate of such request.
‘‘(2) TIME LIMITS FOR REPORT.—The Commis-
sion shall transmit its report under paragraph (1) to
the Trade Representative within 30 calendar days
after the Trade Representative requests the report.
‘‘(3) CONSULTATIONS ON REQUEST FOR COMMIS-
SION DETERMINATION.—If a majority of the Commis-
sioners issues an affirmative report under paragraph
(1), the Trade Representatives shall consult with the
congressional committees listed in paragraph (1) con-
cerning the matter.
‘‘(4) COMMISSION
DETERMINATION.—Notwith-
standing any other provision of this title, if a major-
ity of the Commissioners issues an affirmative report
under paragraph (1), the Commission, upon the writ-
ten request of the Trade Representative, shall issue a
determination in connection with the particular pro-
ceeding that would render the Commission’s action
described in paragraph (1) not inconsistent with the
findings of the panel. The Commission shall issue its
determination not later than 120 calendar days after
the request from the Trade Representative is made.
‘‘(5) CONSULTATIONS
ON
IMPLEMENTATION
OF
COMMISSION DETERMINATION.—The Trade Represent-
ative shall consult with the congressional committees
listed in paragraph (1) before the Commission’s deter-
mination under paragraph (4) is implemented.
‘‘(6) REVOCATION OF ORDER.—If, by virtue of
the Commission’s determination under paragraph (4),
an injurious pricing order is no longer supported by
an affirmative Commission determination under this
title, the Trade Representative may, after consulting
with the congressional committees under paragraph
(5), direct the administering authority to revoke the
injurious pricing order.
‘‘(b) ACTION BY ADMINISTERING AUTHORITY.—
‘‘(1) CONSULTATIONS WITH ADMINISTERING AU-
THORITY
AND
CONGRESSIONAL
COMMITTEES.—
Promptly after a report or other determination by a
dispute settlement panel under the Shipbuilding
Agreement is issued that contains findings that—
‘‘(A) an action by the administering au-
thority in a proceeding under this title is not in
conformity with the obligations of the United
States under the Shipbuilding Agreement,
‘‘(B) the due date for payment of an injuri-
ous pricing charge contained in an order issued
under section 806 should be amended,
‘‘(C) countermeasures provided for in an
order issued under section 807 should be provi-
sionally suspended or reduced pending the final
decision of the panel, or
‘‘(D) the scope or duration of counter-
measures imposed under section 807 should be
narrowed or shortened,
the Trade Representative shall consult with the ad-
ministering authority and the congressional commit-
tees listed in subsection (a)(1) on the matter.
‘‘(2) DETERMINATION
BY
ADMINISTERING
AU-
THORITY.—Notwithstanding any other provision of
this title, the administering authority shall, in re-
respect to such determination, amendment, or suspen-
sion.
‘‘(5) IMPLEMENTATION
OF
DETERMINATION.—
The Trade Representative may, after consulting with
the administering authority and the congressional
committees under paragraph (4), direct the admin-
istering authority to implement, in whole or in part,
the determination, amendment, or suspension made
under paragraph (2).
‘‘(6) IMPLEMENTATION OF DETERMINATION; NO-
TICE OF IMPLEMENTATION.—The administering au-
thority 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, amendment,
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 duties
of the administering authority under this title are
transferred by law.
‘‘(2) 
COMMISSION.—The 
term 
‘Commission’
means the United States International Trade Com-
mission.
‘‘(3) COUNTRY.—The term ‘country’ means a for-
eign country, a political subdivision, dependent terri-
tory, or possession of a foreign country and, except as
provided in paragraph (16)(E)(iii), may not include
an association of 2 or more foreign countries, politi-
cal subdivisions, dependent territories, or possessions
of countries into a customs union outside the United
States.
‘‘(4) INDUSTRY.—
‘‘(A) IN GENERAL.—Except as used in sec-
tion 808, the term ‘industry’ means the produc-
ers as a whole of a domestic like vessel, or those
producers whose collective capability to produce
a domestic like vessel constitutes a major propor-
tion of the total domestic capability to produce
a domestic like vessel.
‘‘(B) PRODUCER.—A ‘producer’ of a domes-
tic like vessel includes an entity that is produc-
ing the domestic like vessel and an entity with
the capability to produce the domestic like vessel.
‘‘(C) CAPABILITY TO PRODUCE A DOMESTIC
LIKE VESSEL.—A producer has the ‘capability to
produce a domestic like vessel’ if it is capable of
producing a domestic like vessel with its present
facilities or could adapt its facilities in a timely
manner to produce a domestic like vessel.
‘‘(D) RELATED PARTIES.—(i) In an inves-
tigation under this title, if a producer of a do-
mestic like vessel and the foreign producer, seller
(other than the foreign producer), or United
States buyer of the subject vessel are related par-
ties, or if a producer of a domestic like vessel is
also a United States buyer of the subject vessel,
the domestic producer may, in appropriate cir-
cumstances, be excluded from the industry.
‘‘(ii) For purposes of clause (i), a domestic
producer and the foreign producer, seller, or
United States buyer shall be considered to be re-
lated parties, if—
‘‘(I) the domestic producer directly or
indirectly controls the foreign producer, sell-
er or United States buyer,
‘‘(II) the foreign producer, seller, or
United States buyer directly or indirectly
controls the domestic producer,
‘‘(III) a third party directly or indi-
rectly controls the domestic producer and
the foreign producer, seller, or United States
buyer, or
‘‘(IV) the domestic producer and the
foreign producer, seller, or United States
buyer directly or indirectly control a third
party and there is reason to believe that the
relationship causes the producer to act dif-
ferently than a nonrelated producer.
For purposes of this subparagraph, a party shall
be considered to directly or indirectly control an-
other party if the party is legally or operation-
ally in a position to exercise restraint or direc-
tion over the other party.
‘‘(E) PRODUCT LINES.—In an investigation
under this title, the effect of the sale of the subject
vessel shall be assessed in relation to the United
States production (or production capability) of a
domestic like vessel if available data permit the
separate identification of production (or produc-
tion capability) in terms of such criteria as the
production process or the producer’s profits. If
the domestic production (or production capabil-
ity) of a domestic like vessel has no separate
identity in terms of such criteria, then the effect
of the sale shall be assessed 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 nec-
essary 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 char-
ter, in conjunction with the original transfer from the
producer, either directly or indirectly, including an
individual or company which owns or controls a
buyer. There may be more than one buyer of any one
vessel.
‘‘(6) UNITED STATES BUYER.—The term ‘United
States buyer’ means a buyer that is any of the follow-
ing:
‘‘(A) A United States citizen.
‘‘(B) A juridical entity, including any cor-
poration, company, association, or other organi-
zation, that is legally constituted under the laws
and regulations of the United States or a politi-
cal subdivision thereof, regardless of whether the
entity is organized for pecuniary gain, privately
or government owned, or organized with limited
or unlimited liability.
‘‘(C) A juridical entity that is owned or
controlled by nationals or entities described in
subparagraphs (A) and (B). For the purposes of
this subparagraph—
‘‘(i) the term ‘own’ means having more
than a 50 percent interest, and
‘‘(ii) the term ‘control’ means the ac-
tual ability to have substantial influence on
corporate behavior, and control is presumed
to exist where there is at least a 25 percent
interest.
If ownership of a company is established under
clause (i), other control is presumed not to exist
unless it is otherwise established.
‘‘(7) OWNERSHIP INTEREST.—An ‘ownership in-
terest’ in a vessel includes any contractual or propri-
etary interest which allows the beneficiary or bene-
ficiaries of such interest to take advantage of the oper-
ation of the vessel in a manner substantially com-
parable to the way in which an owner may benefit
from the operation of the vessel. In determining
whether such substantial comparability exists, the ad-
ministering authority shall consider—
‘‘(A) the terms and circumstances of the
transaction which conveys the interest,
‘‘(B) commercial practice,
‘‘(C) whether the vessel subject to the trans-
action is integrated into the operations of the
beneficiary or beneficiaries, and
‘‘(D) whether in practice there is a likeli-
hood that the beneficiary or beneficiaries of such
interests will take advantage of and the risk for
the operation of the vessel for a significant part
of the life-time of the vessel.
100
‘‘(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 ves-
sel is built,
‘‘(ii) any military vessel, and
‘‘(iii) any vessel sold before the date
that the Shipbuilding Agreement enters into
force with respect to the United States, ex-
cept that any vessel sold after December 21,
1994, for delivery more than 5 years after
101
the date of the contract of sale shall be a
‘vessel’ for purposes of this title unless the
shipbuilder demonstrates to the administer-
ing authority that the extended delivery
date was for normal commercial reasons
and not to avoid applicability of this title.
‘‘(C) 
SELF-PROPELLED
SEAGOING
VES-
SEL.—A vessel is ‘self-propelled seagoing’ if its
permanent propulsion and steering provide it all
the characteristics of self-navigability in the high
seas.
‘‘(D) MILITARY VESSEL.—A ‘military ves-
sel’ is a vessel which, according to its basic struc-
tural characteristics and ability, is intended to
be used exclusively for military purposes.
‘‘(9) LIKE VESSEL.—The term ‘like vessel’ means
a vessel of the same type, same purpose, and approxi-
mate size as the subject vessel and possessing charac-
teristics closely resembling those of the subject vessel.
‘‘(10) DOMESTIC LIKE VESSEL.—The term ‘do-
mestic like vessel’ means a like vessel produced in the
United States.
‘‘(11) FOREIGN LIKE VESSEL.—Except as used
in section 822(e)(1)(B)(ii)(II), the term ‘foreign like
vessel’ means a like vessel produced by the foreign
102
producer of the subject vessel for sale in the producer’s
domestic market or in a third country.
‘‘(12) SAME GENERAL CATEGORY OF VESSEL.—
The term ‘same general category of vessel’ means a
vessel of the same type and purpose as the subject ves-
sel, but of a significantly different size.
‘‘(13) SUBJECT VESSEL.—The term ‘subject ves-
sel’ means a vessel subject to investigation under sec-
tion 801 or 808.
‘‘(14) FOREIGN PRODUCER.—The term ‘foreign
producer’ means the producer or producers of the sub-
ject vessel.
‘‘(15) EXPORTING COUNTRY.—The term ‘export-
ing country’ means the country in which the subject
vessel was built.
‘‘(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,
103
‘‘(II) the effect of the sale of the
subject vessel on prices in the United
States for a domestic like vessel, and
‘‘(III) the impact of the sale of the
subject vessel on domestic producers of
the domestic like vessel, but only in the
context of production operations within
the United States, and
‘‘(ii) may consider such other economic
factors as are relevant to the determination
regarding whether there is or has been ma-
terial injury by reason of the sale of the
subject vessel.
In the notification required under section 805(d),
the Commission shall explain its analysis of each
factor considered under clause (i), and identify
each factor considered under clause (ii) and ex-
plain in full its relevance to the determination.
‘‘(C) EVALUATION
OF
RELEVANT
FAC-
TORS.—For purposes of subparagraph (B)—
‘‘(i) SALE OF THE SUBJECT VESSEL.—
In evaluating the sale of the subject vessel,
the Commission shall consider whether the
sale, either in absolute terms or relative to
production or demand in the United States,
104
in terms of either volume or value, is or has
been significant.
‘‘(ii) PRICE.—In evaluating the effect
of the sale of the subject vessel on prices, the
Commission shall consider whether—
‘‘(I) there has been significant
price underselling of the subject vessel
as compared with the price of a domes-
tic like vessel, and
‘‘(II) the effect of the sale of the
subject vessel otherwise depresses or has
depressed prices to a significant degree
or prevents or has prevented price in-
creases, which otherwise would have oc-
curred, to a significant degree.
‘‘(iii) IMPACT ON AFFECTED DOMESTIC
INDUSTRY.—In examining the impact re-
quired to be considered under subparagraph
(B)(i)(III), the Commission shall evaluate
all relevant economic factors which have a
bearing on the state of the industry in the
United States, including, but not limited
to—
‘‘(I) actual and potential decline
in output, sales, market share, profits,
105
productivity, return on investments,
and utilization of capacity,
‘‘(II) factors affecting domestic
prices, including with regard to sales,
‘‘(III) actual and potential nega-
tive effects on cash flow, employment,
wages, growth, ability to raise capital,
and investment,
‘‘(IV) actual and potential nega-
tive effects on the existing development
and production efforts of the domestic
industry, including efforts to develop a
derivative or more advanced version of
a domestic like vessel, and
‘‘(V) the magnitude of the injuri-
ous pricing margin.
The Commission shall evaluate all relevant
economic factors described in this clause
within the context of the business cycle and
conditions of competition that are distinc-
tive to the affected industry.
‘‘(D) STANDARD
FOR
DETERMINATION.—
The presence or absence of any factor which the
Commission is required to evaluate under sub-
paragraph (C) shall not necessarily give decisive
106
guidance with respect to the determination by
the Commission of material injury.
‘‘(E) THREAT OF MATERIAL INJURY.—
‘‘(i) IN
GENERAL.—In determining
whether an industry in the United States is
threatened with material injury by reason
of the sale of the subject vessel, the Commis-
sion shall consider, among other relevant
economic factors—
‘‘(I) any existing unused produc-
tion capacity or imminent, substantial
increase in production capacity in the
exporting country indicating the likeli-
hood of substantially increased sales of
a foreign like vessel to United States
buyers, taking into account the avail-
ability of other export markets to ab-
sorb any additional exports,
‘‘(II) whether the sale of a foreign
like vessel or other factors indicate the
likelihood of significant additional
sales to United States buyers,
‘‘(III) whether sale of the subject
vessel or sale of a foreign like vessel by
the foreign producer are at prices that
107
are likely to have a significant depress-
ing or suppressing effect on domestic
prices, and are likely to increase de-
mand for further sales,
‘‘(IV) the potential for product-
shifting if production facilities in the
exporting country, which can presently
be used to produce a foreign like vessel
or could be adapted in a timely man-
ner to produce a foreign like vessel, are
currently being used to produce other
types of vessels,
‘‘(V) the actual and potential neg-
ative effects on the existing develop-
ment and production efforts of the do-
mestic industry, including efforts to
develop a derivative or more advanced
version of a domestic like vessel, and
‘‘(VI) any other demonstrable ad-
verse trends that indicate the prob-
ability that there is likely to be mate-
rial injury by reason of the sale of the
subject vessel.
‘‘(ii) BASIS
FOR
DETERMINATION.—
The Commission shall consider the factors
108
set forth in clause (i) as a whole. The pres-
ence or absence of any factor which the
Commission is required to consider under
clause (i) shall not necessarily give decisive
guidance with respect to the determination.
Such a determination may not be made on
the basis of mere conjecture or supposition.
‘‘(iii) EFFECT OF INJURIOUS PRICING
IN THIRD-COUNTRY MARKETS.—
‘‘(I) IN GENERAL.—The Commis-
sion shall consider whether injurious
pricing in the markets of foreign coun-
tries (as evidenced by injurious pricing
findings or injurious pricing remedies
of other Shipbuilding Agreement Par-
ties, or antidumping determinations of,
or measures imposed by, other coun-
tries, against a like vessel produced by
the producer under investigation) sug-
gests a threat of material injury to the
domestic industry. In the course of its
investigation, the Commission shall re-
quest information from the foreign pro-
ducer or United States buyer concern-
ing this issue.
109
‘‘(II) EUROPEAN COMMUNITIES.—
For purposes of this clause, the Euro-
pean Communities as a whole shall be
treated as a single foreign country.
‘‘(F) CUMULATION FOR DETERMINING MA-
TERIAL INJURY.—
‘‘(i) IN
GENERAL.—For purposes of
clauses (i) and (ii) of subparagraph (C),
and subject to clause (ii) of this subpara-
graph, the Commission shall cumulatively
assess the effects of sales of foreign like ves-
sels from all foreign producers with respect
to which—
‘‘(I) petitions were filed under sec-
tion 802(b) on the same day,
‘‘(II) investigations were initiated
under section 802(a) on the same day,
or
‘‘(III) petitions were filed under
section 802(b) and investigations were
initiated under section 802(a) on the
same day,
if, with respect to such vessels, the foreign
producers compete with each other and with
110
producers of a domestic like vessel in the
United States market.
‘‘(ii) EXCEPTIONS.—The Commission
shall not cumulatively assess the effects of
sales under clause (i)—
‘‘(I) with respect to which the ad-
ministering authority has made a pre-
liminary negative determination, un-
less the administering authority subse-
quently made a final affirmative deter-
mination with respect to those sales be-
fore the Commission’s final determina-
tion is made, or
‘‘(II) from any producer with re-
spect to which the investigation has
been terminated.
‘‘(iii) RECORDS IN FINAL INVESTIGA-
TIONS.—In each final determination in
which it cumulatively assesses the effects of
sales under clause (i), the Commission may
make its determinations based on the record
compiled in the first investigation in which
it makes a final determination, except that
when the administering authority issues its
final determination in a subsequently com-
111
pleted investigation, the Commission shall
permit the parties in the subsequent inves-
tigation to submit comments concerning the
significance of the administering authority’s
final determination, and shall include such
comments and the administering authority’s
final determination in the record for the
subsequent investigation.
‘‘(G) 
CUMULATION
FOR
DETERMINING
THREAT OF MATERIAL INJURY.—To the extent
practicable and subject to subparagraph (F)(ii),
for purposes of clause (i) (II) and (III) of sub-
paragraph (E), the Commission may cumula-
tively assess the effects of sales of like vessels from
all countries with respect to which—
‘‘(i) petitions were filed under section
802(b) on the same day,
‘‘(ii) 
investigations 
were 
initiated
under section 802(a) on the same day, or
‘‘(iii) petitions were filed under section
802(b) and investigations were initiated
under section 802(a) on the same day,
if, with respect to such vessels, the foreign pro-
ducers compete with each other and with produc-
112
ers of a domestic like vessel in the United States
market.
‘‘(17) INTERESTED PARTY.—The term ‘interested
party’ means, in a proceeding under this title—
‘‘(A)(i) the foreign producer, seller (other
than the foreign producer), and the United
States buyer of the subject vessel, or
‘‘(ii) a trade or business association a ma-
jority of the members of which are the foreign
producer, seller, or United States buyer of the
subject vessel,
‘‘(B) the government of the country in
which the subject vessel is produced or manufac-
tured,
‘‘(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
113
‘‘(G) for purposes of section 807, a pur-
chaser who, after the effective date of an order is-
sued under that section, entered into a contract
of sale with the foreign producer that is subject
to the order.
‘‘(18) AFFIRMATIVE
DETERMINATIONS
BY
DI-
VIDED COMMISSION.—If the Commissioners voting on
a determination by the Commission are evenly di-
vided as to whether the determination should be af-
firmative or negative, the Commission shall be deemed
to have made an affirmative determination. For the
purpose of applying this paragraph when the issue
before the Commission is to determine whether there
is or has been—
‘‘(A) material injury to an industry in the
United States,
‘‘(B) threat of material injury to such an
industry, or
‘‘(C) material retardation of the establish-
ment of an industry in the United States,
by reason of the sale of the subject vessel, an affirma-
tive vote on any of the issues shall be treated as a vote
that the determination should be affirmative.
‘‘(19) ORDINARY COURSE OF TRADE.—The term
‘ordinary course of trade’ means the conditions and
114
practices which, for a reasonable time before the sale
of the subject vessel, have been normal in the ship-
building industry with respect to a like vessel. The
administering authority shall consider the following
sales and transactions, among others, to be outside the
ordinary course of trade:
‘‘(A) 
Sales 
disregarded 
under 
section
822(b)(1).
‘‘(B) Transactions disregarded under sec-
tion 822(f)(2).
‘‘(20) NONMARKET ECONOMY COUNTRY.—
‘‘(A) IN GENERAL.—The term ‘nonmarket
economy country’ means any foreign country
that the administering authority determines does
not operate on market principles of cost or pric-
ing structures, so that sales of vessels in such
country do not reflect the fair value of the vessels.
‘‘(B) FACTORS
TO
BE
CONSIDERED.—In
making determinations under subparagraph (A)
the administering authority shall take into ac-
count—
‘‘(i) the extent to which the currency of
the foreign country is convertible into the
currency of other countries,
115
‘‘(ii) the extent to which wage rates in
the foreign country are determined by free
bargaining between labor and management,
‘‘(iii) the extent to which joint ventures
or other investments by firms of other for-
eign countries are permitted in the foreign
country,
‘‘(iv) the extent of government owner-
ship or control of the means of production,
‘‘(v) the extent of government control
over the allocation of resources and over the
price and output decisions of enterprises,
and
‘‘(vi) such other factors as the admin-
istering authority considers appropriate.
‘‘(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.
116
‘‘(D) DETERMINATIONS
NOT
IN
ISSUE.—
Notwithstanding any other provision of law, any
determination made by the administering au-
thority under subparagraph (A) shall not be sub-
ject to judicial review in any investigation con-
ducted under subtitle A.
‘‘(21) SHIPBUILDING
AGREEMENT.—The term
‘Shipbuilding Agreement’ means The Agreement Re-
specting Normal Competitive Conditions in the Com-
mercial Shipbuilding and Repair Industry, resulting
from negotiations under the auspices of the Organiza-
tion for Economic Cooperation and Development, and
entered into on December 21, 1994.
‘‘(22) SHIPBUILDING AGREEMENT PARTY.—The
term ‘Shipbuilding Agreement Party’ means a state
or separate customs territory that is a Party to the
Shipbuilding Agreement, and with respect to which
the United States applies the Shipbuilding Agree-
ment.
‘‘(23) WTO 
AGREEMENT.—The term ‘WTO
Agreement’ means the Agreement defined in section
2(9) of the Uruguay Round Agreements Act.
‘‘(24) WTO MEMBER.—The term ‘WTO member’
means a state, or separate customs territory (within
the meaning of Article XII of the WTO Agreement),
117
with respect to which the United States applies the
WTO Agreement.
‘‘(25) 
TRADE
REPRESENTATIVE.—The 
term
‘Trade Representative’ means the United States Trade
Representative.
‘‘(26) AFFILIATED PERSONS.—The following per-
sons shall be considered to be ‘affiliated’ or ‘affiliated
persons’:
‘‘(A) Members of a family, including broth-
ers and sisters (whether by the whole or half
blood), spouse, ancestors, and lineal descendants.
‘‘(B) Any officer or director of an organiza-
tion and such organization.
‘‘(C) Partners.
‘‘(D) Employer and employee.
‘‘(E) Any person directly or indirectly own-
ing, controlling, or holding with power to vote,
5 percent or more of the outstanding voting stock
or shares of any organization, and such organi-
zation.
‘‘(F) Two or more persons directly or indi-
rectly controlling, controlled by, or under com-
mon control with, any person.
‘‘(G) Any person who controls any other
person, and such other person.
118
For purposes of this paragraph, a person shall be con-
sidered to control another person if the person is le-
gally or operationally in a position to exercise re-
straint or direction over the other person.
‘‘(27) INJURIOUS PRICING.—The term ‘injurious
pricing’ refers to the sale of a vessel at less than fair
value.
‘‘(28) INJURIOUS PRICING MARGIN.—
‘‘(A) IN
GENERAL.—The term ‘injurious
pricing margin’ means the amount by which the
normal value exceeds the export price of the sub-
ject vessel.
‘‘(B) MAGNITUDE OF THE INJURIOUS PRIC-
ING MARGIN.—The magnitude of the injurious
pricing margin used by the Commission shall
be—
‘‘(i) in making a preliminary deter-
mination under section 803(a) in an inves-
tigation (including any investigation in
which the Commission cumulatively assesses
the 
effect 
of 
sales 
under 
paragraph
(16)(F)(i)), the injurious pricing margin or
margins published by the administering au-
thority in its notice of initiation of the in-
vestigation; and
119
‘‘(ii) in making a final determination
under section 805(b), the injurious pricing
margin or margins most recently published
by the administering authority before the
closing of the Commission’s administrative
record.
‘‘(29) 
COMMERCIAL
INTEREST
REFERENCE
RATE.—The term ‘Commercial Interest Reference
Rate’ or ‘CIRR’ means an interest rate that the ad-
ministering authority determines to be consistent with
Annex III, and appendices and notes thereto, of the
Understanding on Export Credits for Ships, resulting
from negotiations under the auspices of the Organiza-
tion for Economic Cooperation, and entered into on
December 21, 1994.
‘‘(30) ANTIDUMPING.—
‘‘(A) WTO MEMBERS.—In the case of a
WTO member, the term ‘antidumping’ refers to
action taken pursuant to the Agreement on Im-
plementation of Article VI of the General Agree-
ment on Tariffs and Trade 1994.
‘‘(B) OTHER CASES.—In the case of any
country that is not a WTO member, the term
‘antidumping’ refers to action taken by the coun-
try against the sale of a vessel at less than fair