§ 1677. — Definitions; special rules.
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From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 19USC1677]
TITLE 19--CUSTOMS DUTIES
CHAPTER 4--TARIFF ACT OF 1930
SUBTITLE IV--COUNTERVAILING AND ANTIDUMPING DUTIES
Part IV--General Provisions
Sec. 1677. Definitions; special rules
For purposes of this subtitle--
(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 subtitle are transferred by law.
(2) Commission
The term ``Commission'' means the United States International
Trade Commission.
(3) Country
The term ``country'' means a foreign country, a political
subdivision, dependent territory, or possession of a foreign
country, and, except for the purpose of antidumping proceedings, may
include an association of 2 or more foreign countries, political
subdivisions, dependent territories, or possessions of countries
into a customs union outside the United States.
(4) Industry
(A) In general
The term ``industry'' means the producers as a whole of a
domestic like product, or those producers whose collective
output of a domestic like product constitutes a major proportion
of the total domestic production of the product.
(B) Related parties
(i) If a producer of a domestic like product and an exporter
or importer of the subject merchandise are related parties, or
if a producer of the domestic like product is also an importer
of the subject merchandise, the producer may, in appropriate
circumstances, be excluded from the industry.
(ii) For purposes of clause (i), a producer and an exporter
or importer shall be considered to be related parties, if--
(I) the producer directly or indirectly controls the
exporter or importer,
(II) the exporter or importer directly or indirectly
controls the producer,
(III) a third party directly or indirectly controls the
producer and the exporter or importer, or
(IV) the producer and the exporter or importer directly
or indirectly control a third party and there is reason to
believe that the relationship causes the producer to act
differently than a nonrelated producer.
For purposes of this subparagraph, a party shall be considered
to directly or indirectly control another party if the party is
legally or operationally in a position to exercise restraint or
direction over the other party.
(C) Regional industries
In appropriate circumstances, the United States, for a
particular product market, may be divided into 2 or more markets
and the producers within each market may be treated as if they
were a separate industry if--
(i) the producers within such market sell all or almost
all of their production of the domestic like product in
question in that market, and
(ii) the demand in that market is not supplied, to any
substantial degree, by producers of the product in question
located elsewhere in the United States.
In such appropriate circumstances, material injury, the threat
of material injury, or material retardation of the establishment
of an industry may be found to exist with respect to an industry
even if the domestic industry as a whole, or those producers
whose collective output of a domestic like product constitutes a
major proportion of the total domestic production of that
product, is not injured, if there is a concentration of dumped
imports or imports of merchandise benefiting from a
countervailable subsidy into such an isolated market and if the
producers of all, or almost all, of the production within that
market are being materially injured or threatened by material
injury, or if the establishment of an industry is being
materially retarded, by reason of the dumped imports or imports
of merchandise benefiting from a countervailable subsidy. The
term ``regional industry'' means the domestic producers within a
region who are treated as a separate industry under this
subparagraph.
(D) Product lines
The effect of dumped imports or imports of merchandise
benefiting from a countervailable subsidy shall be assessed in
relation to the United States production of a domestic like
product if available data permit the separate identification of
production in terms of such criteria as the production process
or the producer's profits. If the domestic production of the
domestic like product has no separate identity in terms of such
criteria, then the effect of the dumped imports or imports of
merchandise benefiting from a countervailable subsidy shall be
assessed by the examination of the production of the narrowest
group or range of products, which includes a domestic like
product, for which the necessary information can be provided.
(E) Industry producing processed agricultural products
(i) In general
Subject to clause (v), in an investigation involving a
processed agricultural product produced from any raw
agricultural product, the producers or growers of the raw
agricultural product may be considered part of the industry
producing the processed product if--
(I) the processed agricultural product is produced
from the raw agricultural product through a single
continuous line of production; and
(II) there is a substantial coincidence of economic
interest between the producers or growers of the raw
agricultural product and the processors of the processed
agricultural product based upon relevant economic
factors, which may, in the discretion of the Commission,
include price, added market value, or other economic
interrelationships (regardless of whether such
coincidence of economic interest is based upon any legal
relationship).
(ii) Processing
For purposes of this subparagraph, the processed
agricultural product shall be considered to be processed
from a raw agricultural product through a single continuous
line of production if--
(I) the raw agricultural product is substantially or
completely devoted to the production of the processed
agricultural product; and
(II) the processed agricultural product is produced
substantially or completely from the raw product.
(iii) Relevant economic factors
For purposes of clause (i)(II), in addition to such
other factors it considers relevant to the question of
coincidence of economic interest, the Commission shall--
(I) if price is taken into account, consider the
degree of correlation between the price of the raw
agricultural product and the price of the processed
agricultural product; and
(II) if added market value is taken into account,
consider whether the value of the raw agricultural
product constitutes a significant percentage of the
value of the processed agricultural product.
(iv) Raw agricultural product
For purposes of this subparagraph, the term ``raw
agricultural product'' means any farm or fishery product.
(v) Termination of this subparagraph
This subparagraph shall cease to have effect if the
United States Trade Representative notifies the
administering authority and the Commission that the
application of this subparagraph is inconsistent with the
international obligations of the United States.
(5) Countervailable subsidy
(A) In general
Except as provided in paragraph (5B), a countervailable
subsidy is a subsidy described in this paragraph which is
specific as described in paragraph (5A).
(B) Subsidy described
A subsidy is described in this paragraph in the case in
which an authority--
(i) provides a financial contribution,
(ii) provides any form of income or price support within
the meaning of Article XVI of the GATT 1994, or
(iii) makes a payment to a funding mechanism to provide
a financial contribution, or entrusts or directs a private
entity to make a financial contribution, if providing the
contribution would normally be vested in the government and
the practice does not differ in substance from practices
normally followed by governments,
to a person and a benefit is thereby conferred. For purposes of
this paragraph and paragraphs (5A) and (5B), the term
``authority'' means a government of a country or any public
entity within the territory of the country.
(C) Other factors
The determination of whether a subsidy exists shall be made
without regard to whether the recipient of the subsidy is
publicly or privately owned and without regard to whether the
subsidy is provided directly or indirectly on the manufacture,
production, or export of merchandise. The administering
authority is not required to consider the effect of the subsidy
in determining whether a subsidy exists under this paragraph.
(D) Financial contribution
The term ``financial contribution'' means--
(i) the direct transfer of funds, such as grants, loans,
and equity infusions, or the potential direct transfer of
funds or liabilities, such as loan guarantees,
(ii) foregoing or not collecting revenue that is
otherwise due, such as granting tax credits or deductions
from taxable income,
(iii) providing goods or services, other than general
infrastructure, or
(iv) purchasing goods.
(E) Benefit conferred
A benefit shall normally be treated as conferred where there
is a benefit to the recipient, including--
(i) in the case of an equity infusion, if the investment
decision is inconsistent with the usual investment practice
of private investors, including the practice regarding the
provision of risk capital, in the country in which the
equity infusion is made,
(ii) in the case of a loan, if there is a difference
between the amount the recipient of the loan pays on the
loan and the amount the recipient would pay on a comparable
commercial loan that the recipient could actually obtain on
the market,
(iii) in the case of a loan guarantee, if there is a
difference, after adjusting for any difference in guarantee
fees, between the amount the recipient of the guarantee pays
on the guaranteed loan and the amount the recipient would
pay for a comparable commercial loan if there were no
guarantee by the authority, and
(iv) in the case where goods or services are provided,
if such goods or services are provided for less than
adequate remuneration, and in the case where goods are
purchased, if such goods are purchased for more than
adequate remuneration.
For purposes of clause (iv), the adequacy of remuneration shall
be determined in relation to prevailing market conditions for
the good or service being provided or the goods being purchased
in the country which is subject to the investigation or review.
Prevailing market conditions include price, quality,
availability, marketability, transportation, and other
conditions of purchase or sale.
(F) Change in ownership
A change in ownership of all or part of a foreign enterprise
or the productive assets of a foreign enterprise does not by
itself require a determination by the administering authority
that a past countervailable subsidy received by the enterprise
no longer continues to be countervailable, even if the change in
ownership is accomplished through an arm's length transaction.
(5A) Specificity
(A) In general
A subsidy is specific if it is an export subsidy described
in subparagraph (B) or an import substitution subsidy described
in subparagraph (C), or if it is determined to be specific
pursuant to subparagraph (D).
(B) Export subsidy
An export subsidy is a subsidy that is, in law or in fact,
contingent upon export performance, alone or as 1 of 2 or more
conditions.
(C) Import substitution subsidy
An import substitution subsidy is a subsidy that is
contingent upon the use of domestic goods over imported goods,
alone or as 1 of 2 or more conditions.
(D) Domestic subsidy
In determining whether a subsidy (other than a subsidy
described in subparagraph (B) or (C)) is a specific subsidy, in
law or in fact, to an enterprise or industry within the
jurisdiction of the authority providing the subsidy, the
following guidelines shall apply:
(i) Where the authority providing the subsidy, or the
legislation pursuant to which the authority operates,
expressly limits access to the subsidy to an enterprise or
industry, the subsidy is specific as a matter of law.
(ii) Where the authority providing the subsidy, or the
legislation pursuant to which the authority operates,
establishes objective criteria or conditions governing the
eligibility for, and the amount of, a subsidy, the subsidy
is not specific as a matter of law, if--
(I) eligibility is automatic,
(II) the criteria or conditions for eligibility are
strictly followed, and
(III) the criteria or conditions are clearly set
forth in the relevant statute, regulation, or other
official document so as to be capable of verification.
For purposes of this clause, the term ``objective criteria or
conditions'' means criteria or conditions that are neutral
and that do not favor one enterprise or industry over
another.
(iii) Where there are reasons to believe that a subsidy
may be specific as a matter of fact, the subsidy is specific
if one or more of the following factors exist:
(I) The actual recipients of the subsidy, whether
considered on an enterprise or industry basis, are
limited in number.
(II) An enterprise or industry is a predominant user
of the subsidy.
(III) An enterprise or industry receives a
disproportionately large amount of the subsidy.
(IV) The manner in which the authority providing the
subsidy has exercised discretion in the decision to
grant the subsidy indicates that an enterprise or
industry is favored over others.
In evaluating the factors set forth in subclauses (I), (II),
(III), and (IV), the administering authority shall take into
account the extent of diversification of economic activities
within the jurisdiction of the authority providing the
subsidy, and the length of time during which the subsidy
program has been in operation.
(iv) Where a subsidy is limited to an enterprise or
industry located within a designated geographical region
within the jurisdiction of the authority providing the
subsidy, the subsidy is specific.
For purposes of this paragraph and paragraph (5B), any reference to
an enterprise or industry is a reference to a foreign enterprise or
foreign industry and includes a group of such enterprises or
industries.
(5B) Categories of noncountervailable subsidies
(A) In general
Notwithstanding the provisions of paragraphs (5) and (5A),
in the case of merchandise imported from a Subsidies Agreement
country, a subsidy shall be treated as noncountervailable if the
administering authority determines in an investigation under
part I of this subtitle or a review under part III of this
subtitle that the subsidy meets all of the criteria described in
subparagraph (B), (C), or (D), as the case may be, or the
provisions of subparagraph (E)(i) apply.
(B) Research subsidy
(i) In general
Except for a subsidy provided on the manufacture,
production, or export of civil aircraft, a subsidy for
research activities conducted by a person, or by a higher
education or research establishment on a contract basis with
a person, shall be treated as noncountervailable, if the
subsidy covers not more than 75 percent of the costs of
industrial research or not more than 50 percent of the costs
of precompetitive development activity, and such subsidy is
limited exclusively to--
(I) the costs of researchers, technicians, and other
supporting staff employed exclusively in the research
activity,
(II) the costs of instruments, equipment, land, or
buildings that are used exclusively and permanently
(except when disposed of on a commercial basis) for the
research activity,
(III) the costs of consultancy and equivalent
services used exclusively for the research activity,
including costs for bought-in research, technical
knowledge, and patents,
(IV) additional overhead costs incurred directly as
a result of the research activity, and
(V) other operating costs (such as materials and
supplies) incurred directly as a result of the research
activity.
(ii) Definitions
For purposes of this subparagraph--
(I) Industrial research
The term ``industrial research'' means planned
search or critical investigation aimed at the discovery
of new knowledge, with the objective that such knowledge
may be useful in developing new products, processes, or
services, or in bringing about a significant improvement
to existing products, processes, or services.
(II) Precompetitive development activity
The term ``precompetitive development activity''
means the translation of industrial research findings
into a plan, blueprint, or design for new, modified, or
improved products, processes, or services, whether
intended for sale or use, including the creation of a
first prototype that would not be capable of commercial
use. The term also may include the conceptual
formulation and design of products, processes, or
services alternatives and initial demonstration or pilot
projects, if these same projects cannot be converted or
used for industrial application or commercial
exploitation. The term does not include routine or
periodic alterations to existing products, production
lines, manufacturing processes, services, or other
ongoing operations even if those alterations may
represent improvements.
(iii) Calculation rules
(I) In general
In the case of a research activity that spans both
industrial research and precompetitive development
activity, the allowable level of the noncountervailable
subsidy shall not exceed 62.5 percent of the costs set
forth in subclauses (I), (II), (III), (IV), and (V) of
clause (i).
(II) Total eligible costs
The allowable level of a noncountervailable subsidy
described in clause (i) shall be based on the total
eligible costs incurred over the duration of a
particular project.
(C) Subsidy to disadvantaged regions
(i) In general
A subsidy provided, pursuant to a general framework of
regional development, to a person located in a disadvantaged
region within a country shall be treated as
noncountervailable, if it is not specific (within the
meaning of paragraph (5A)) within eligible regions and if
the following conditions are met:
(I) Each region identified as disadvantaged within
the territory of a country is a clearly designated,
contiguous geographical area with a definable economic
and administrative identity.
(II) Each region is considered a disadvantaged
region on the basis of neutral and objective criteria
indicating that the region is disadvantaged because of
more than temporary circumstances, and such criteria are
clearly stated in the relevant statute, regulation, or
other official document so as to be capable of
verification.
(III) The criteria described in subclause (II)
include a measurement of economic development.
(IV) Programs provided within a general framework of
regional development include ceilings on the amount of
assistance that can be granted to a subsidized project.
Such ceilings are differentiated according to the
different levels of development of assisted regions, and
are expressed in terms of investment costs or costs of
job creation. Within such ceilings, the distribution of
assistance is sufficiently broad and even to avoid the
predominant use of a subsidy by, or the provision of
disproportionately large amounts of a subsidy to, an
enterprise or industry as described in paragraph
(5A)(D).
(ii) Measurement of economic development
For purposes of clause (i), the measurement of economic
development shall be based on one or more of the following
factors:
(I) Per capita income, household per capita income,
or per capita gross domestic product that does not
exceed 85 percent of the average for the country subject
to investigation or review.
(II) An unemployment rate that is at least 110
percent of the average unemployment rate for the country
subject to investigation or review.
The measurement of economic development shall cover a 3-year
period, but may be a composite measurement and may include
factors other than those set forth in this clause.
(iii) Definitions
For purposes of this subparagraph--
(I) General framework of regional development
The term ``general framework of regional
development'' means that the regional subsidy programs
are part of an internally consistent and generally
applicable regional development policy, and that
regional development subsidies are not granted in
isolated geographical points having no, or virtually no,
influence on the development of a region.
(II) Neutral and objective criteria
The term ``neutral and objective criteria'' means
criteria that do not favor certain regions beyond what
is appropriate for the elimination or reduction of
regional disparities within the framework of the
regional development policy.
(D) Subsidy for adaptation of existing facilities to new
environmental requirements
(i) In general
A subsidy that is provided to promote the adaptation of
existing facilities to new environmental requirements that
are imposed by statute or by regulation, and that result in
greater constraints and financial burdens on the recipient
of the subsidy, shall be treated as noncountervailable, if
the subsidy--
(I) is a one-time nonrecurring measure,
(II) is limited to 20 percent of the cost of
adaptation,
(III) does not cover the cost of replacing and
operating the subsidized investment, a cost that must be
fully borne by the recipient,
(IV) is directly linked and proportionate to the
recipient's planned reduction of nuisances and
pollution, and does not cover any manufacturing cost
savings that may be achieved, and
(V) is available to all persons that can adopt the
new equipment or production processes.
(ii) Existing facilities
For purposes of this subparagraph, the term ``existing
facilities'' means facilities that have been in operation
for at least 2 years before the date on which the new
environmental requirements are imposed.
(E) Notified subsidy program
(i) General rule
If a subsidy is provided pursuant to a program that has
been notified in accordance with Article 8.3 of the
Subsidies Agreement, the subsidy shall be treated as
noncountervailable and shall not be subject to investigation
or review under this subtitle.
(ii) Exception
Notwithstanding clause (i), a subsidy shall be treated
as countervailable if--
(I) the Trade Representative notifies the
administering authority that a determination has been
made pursuant to Article 8.4 or 8.5 of the Subsidies
Agreement that the subsidy, or the program pursuant to
which the subsidy was provided, does not satisfy the
conditions and criteria of Article 8.2 of the Subsidies
Agreement; and
(II) the subsidy is specific within the meaning of
paragraph (5A).
(F) Certain subsidies on agricultural products
Domestic support measures that are provided with respect to
products listed in Annex 1 to the Agreement on Agriculture, and
that the administering authority determines conform fully to the
provisions of Annex 2 to that Agreement, shall be treated as
noncountervailable. Upon request by the administering authority,
the Trade Representative shall provide advice regarding the
interpretation and application of Annex 2.
(G) Provisional application
(i) Subparagraphs (B), (C), (D), and (E) shall not apply on
or after the first day of the month that is 66 months after the
WTO Agreement enters into force, unless the provisions of such
subparagraphs are extended pursuant to section 3572(c) of this
title.
(ii) Subparagraph (F) shall not apply to imports from a WTO
member country at the end of the 9-year period beginning on
January 1, 1995. The Trade Representative shall determine the
precise termination date for each WTO member country in
accordance with paragraph (i) of Article 1 of the Agreement on
Agriculture and such date shall be notified to the administering
authority.
(6) Net countervailable subsidy
For the purpose of determining the net countervailable subsidy,
the administering authority may subtract from the gross
countervailable subsidy the amount of--
(A) any application fee, deposit, or similar payment paid in
order to qualify for, or to receive, the benefit of the
countervailable subsidy,
(B) any loss in the value of the countervailable subsidy
resulting from its deferred receipt, if the deferral is mandated
by Government order, and
(C) export taxes, duties, or other charges levied on the
export of merchandise to the United States specifically intended
to offset the countervailable subsidy received.
(7) Material injury
(A) In general
The term ``material injury'' means harm which is not
inconsequential, immaterial, or unimportant.
(B) Volume and consequent impact
In making determinations under sections 1671b(a), 1671d(b),
1673b(a), and 1673d(b) of this title, the Commission, in each
case--
(i) shall consider--
(I) the volume of imports of the subject
merchandise,
(II) the effect of imports of that merchandise on
prices in the United States for domestic like products,
and
(III) the impact of imports of such merchandise on
domestic producers of domestic like products, 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
material injury by reason of imports.
In the notification required under section 1671d(d) or 1673d(d)
of this title, as the case may be, the Commission shall explain
its analysis of each factor considered under clause (i), and
identify each factor considered under clause (ii) and explain in
full its relevance to the determination.
(C) Evaluation of relevant factors
For purposes of subparagraph (B)--
(i) Volume
In evaluating the volume of imports of merchandise, the
Commission shall consider whether the volume of imports of
the merchandise, or any increase in that volume, either in
absolute terms or relative to production or consumption in
the United States, is significant.
(ii) Price
In evaluating the effect of imports of such merchandise
on prices, the Commission shall consider whether--
(I) there has been significant price underselling by
the imported merchandise as compared with the price of
domestic like products of the United States, and
(II) the effect of imports of such merchandise
otherwise depresses prices to a significant degree or
prevents price increases, which otherwise would have
occurred, to a significant degree.
(iii) Impact on affected domestic industry
In examining the impact required to be considered under
subparagraph (B)(i)(III), the Commission shall evaluate all
relevant economic factors which have a bearing on the state
of the industry in the United States, including, but not
limited to--
(I) actual and potential decline in output, sales,
market share, profits, productivity, return on
investments, and utilization of capacity,
(II) factors affecting domestic prices,
(III) actual and potential negative effects on cash
flow, inventories, employment, wages, growth, ability to
raise capital, and investment,
(IV) actual and potential negative effects on the
existing development and production efforts of the
domestic industry, including efforts to develop a
derivative or more advanced version of the domestic like
product, and
(V) in a proceeding under part II of this subtitle,
the magnitude of the margin of dumping.
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 distinctive to
the affected industry.
(iv) Captive production
If domestic producers internally transfer significant
production of the domestic like product for the production
of a downstream article and sell significant production of
the domestic like product in the merchant market, and the
Commission finds that--
(I) the domestic like product produced that is
internally transferred for processing into that
downstream article does not enter the merchant market
for the domestic like product,
(II) the domestic like product is the predominant
material input in the production of that downstream
article, and
(III) the production of the domestic like product
sold in the merchant market is not generally used in the
production of that downstream article,
then the Commission, in determining market share and the
factors affecting financial performance set forth in clause
(iii), shall focus primarily on the merchant market for the
domestic like product.
(D) Special rules for agricultural products
(i) The Commission shall not determine that there is no
material injury or threat of material injury to United States
producers of an agricultural commodity merely because the
prevailing market price is at or above the minimum support
price.
(ii) In the case of agricultural products, the Commission
shall consider any increased burden on government income or
price support programs.
(E) Special rules
For purposes of this paragraph--
(i) Nature of countervailable subsidy
In determining whether there is a threat of material
injury, the Commission shall consider information provided
to it by the administering authority regarding the nature of
the countervailable subsidy granted by a foreign country
(particularly whether the countervailable subsidy is a
subsidy described in Article 3 or 6.1 of the Subsidies
Agreement) and the effects likely to be caused by the
countervailable subsidy.
(ii) Standard for determination
The presence or absence of any factor which the
Commission is required to evaluate under subparagraph (C) or
(D) shall not necessarily give decisive guidance with
respect to the determination by the Commission of material
injury.
(F) Threat of material injury
(i) In general
In determining whether an industry in the United States
is threatened with material injury by reason of imports (or
sales for importation) of the subject merchandise, the
Commission shall consider, among other relevant economic
factors--
(I) if a countervailable subsidy is involved, such
information as may be presented to it by the
administering authority as to the nature of the subsidy
(particularly as to whether the countervailable subsidy
is a subsidy described in Article 3 or 6.1 of the
Subsidies Agreement), and whether imports of the subject
merchandise are likely to increase,
(II) any existing unused production capacity or
imminent, substantial increase in production capacity in
the exporting country indicating the likelihood of
substantially increased imports of the subject
merchandise into the United States, taking into account
the availability of other export markets to absorb any
additional exports,
(III) a significant rate of increase of the volume
or market penetration of imports of the subject
merchandise indicating the likelihood of substantially
increased imports,
(IV) whether imports of the subject merchandise are
entering at prices that are likely to have a significant
depressing or suppressing effect on domestic prices, and
are likely to increase demand for further imports,
(V) inventories of the subject merchandise,
(VI) the potential for product-shifting if
production facilities in the foreign country, which can
be used to produce the subject merchandise, are
currently being used to produce other products,
(VII) in any investigation under this subtitle which
involves imports of both a raw agricultural product
(within the meaning of paragraph (4)(E)(iv)) and any
product processed from such raw agricultural product,
the likelihood that there will be increased imports, by
reason of product shifting, if there is an affirmative
determination by the Commission under section
1671d(b)(1) or 1673d(b)(1) of this title with respect to
either the raw agricultural product or the processed
agricultural product (but not both),
(VIII) the actual and potential negative effects on
the existing development and production efforts of the
domestic industry, including efforts to develop a
derivative or more advanced version of the domestic like
product, and
(IX) any other demonstrable adverse trends that
indicate the probability that there is likely to be
material injury by reason of imports (or sale for
importation) of the subject merchandise (whether or not
it is actually being imported at the time).
(ii) Basis for determination
The Commission shall consider the factors set forth in
clause (i) as a whole in making a determination of whether
further dumped or subsidized imports are imminent and
whether material injury by reason of imports would occur
unless an order is issued or a suspension agreement is
accepted under this subtitle. The presence 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 dumping in third-country markets
(I) In general
In investigations under part II of this subtitle,
the Commission shall consider whether dumping in the
markets of foreign countries (as evidenced by dumping
findings or antidumping remedies in other WTO member
markets against the same class or kind of merchandise
manufactured or exported by the same party as under
investigation) suggests a threat of material injury to
the domestic industry. In the course of its
investigation, the Commission shall request information
from the foreign manufacturer, exporter, or United
States importer concerning this issue.
(II) WTO member market
For purposes of this clause, the term ``WTO member
market'' means the market of any country which is a WTO
member.
(III) European Communities
For purposes of this clause, the European
Communities shall be treated as a foreign country.
(G) Cumulation for determining material injury
(i) In general
For purposes of clauses (i) and (ii) of subparagraph
(C), and subject to clause (ii), the Commission shall
cumulatively assess the volume and effect of imports of the
subject merchandise from all countries with respect to
which--
(I) petitions were filed under section 1671a(b) or
1673a(b) of this title on the same day,
(II) investigations were initiated under section
1671a(a) or 1673a(a) of this title on the same day, or
(III) petitions were filed under section 1671a(b) or
1673a(b) of this title and investigations were initiated
under section 1671a(a) or 1673a(a) of this title on the
same day,
if such imports compete with each other and with domestic like
products in the United States market.
(ii) Exceptions
The Commission shall not cumulatively assess the volume
and effect of imports under clause (i)--
(I) with respect to which the administering
authority has made a preliminary negative determination,
unless the administering authority subsequently made a
final affirmative determination with respect to those
imports before the Commission's final determination is
made;
(II) from any country with respect to which the
investigation has been terminated;
(III) from any country designated as a beneficiary
country under the Caribbean Basin Economic Recovery Act
(19 U.S.C. 2701 et seq.) for purposes of making a
determination with respect to that country, except that
the volume and effect of imports of the subject
merchandise from such country may be cumulatively
assessed with imports of the subject merchandise from
any other country designated as such a beneficiary
country to the extent permitted by clause (i); or
(IV) from any country that is a party to an
agreement with the United States establishing a free
trade area, which entered into force and effect before
January 1, 1987, unless the Commission determines that a
domestic industry is materially injured or threatened
with material injury by reason of imports from that
country.
(iii) Records in final investigations
In each final determination in which it cumulatively
assesses the volume and effect of imports under clause (i),
the Commission shall 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
completed investigation, the Commission shall permit the
parties in the subsequent investigation 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.
(iv) Regional industry determinations
In an investigation which involves a regional industry,
and in which the Commission decides that the volume and
effect of imports should be cumulatively assessed under this
subparagraph, such assessment shall be based upon the volume
and effect of imports into the region or regions determined
by the Commission. The provisions of clause (iii) shall
apply to such investigations.
(H) Cumulation for determining threat of material injury
To the extent practicable and subject to subparagraph
(G)(ii), for purposes of clause (i)(III) and (IV) of
subparagraph (F), the Commission may cumulatively assess the
volume and price effects of imports of the subject merchandise
from all countries with respect to which--
(i) petitions were filed under section 1671a(b) or
1673a(b) of this title on the same day,
(ii) investigations were initiated under section
1671a(a) or 1673a(a) of this title on the same day, or
(iii) petitions were filed under section 1671a(b) or
1673a(b) of this title and investigations were initiated
under section 1671a(a) or 1673a(a) of this title on the same
day,
if such imports compete with each other and with domestic like
products in the United States market.
(I) Consideration of post-petition information
The Commission shall consider whether any change in the
volume, price effects, or impact of imports of the subject
merchandise since the filing of the petition in an investigation
under part I or II of this subtitle is related to the pendency
of the investigation and, if so, the Commission may reduce the
weight accorded to the data for the period after the filing of
the petition in making its determination of material injury,
threat of material injury, or material retardation of the
establishment of an industry in the United States.
(8) Subsidies Agreement; Agreement on Agriculture
(A) Subsidies Agreement
The term ``Subsidies Agreement'' means the Agreement on
Subsidies and Countervailing Measures referred to in section
3511(d)(12) of this title.
(B) Agreement on Agriculture
The term ``Agreement on Agriculture'' means the Agreement on
Agriculture referred to in section 3511(d)(2) of this title.
(9) Interested party
The term ``interested party'' means--
(A) a foreign manufacturer, producer, or exporter, or the
United States importer, of subject merchandise or a trade or
business association a majority of the members of which are
producers, exporters, or importers of such merchandise,
(B) the government of a country in which such merchandise is
produced or manufactured or from which such merchandise is
exported,
(C) a manufacturer, producer, or wholesaler in the United
States of a domestic like product,
(D) a certified union or recognized union or group of
workers which is representative of an industry engaged in the
manufacture, production, or wholesale in the United States of a
domestic like product,
(E) a trade or business association a majority of whose
members manufacture, produce, or wholesale a domestic like
product in the United States,
(F) an association, a majority of whose members is composed
of interested parties described in subparagraph (C), (D), or (E)
with respect to a domestic like product, and
(G) in any investigation under this subtitle involving an
industry engaged in producing a processed agricultural product,
as defined in paragraph (4)(E), a coalition or trade association
which is representative of either--
(i) processors,
(ii) processors and producers, or
(iii) processors and growers,
but this subparagraph shall cease to have effect if the United
States Trade Representative notifies the administering authority
and the Commission that the application of this subparagraph is
inconsistent with the international obligations of the United
States.
(10) Domestic like product
The term ``domestic like product'' means a product which is
like, or in the absence of like, most similar in characteristics and
uses with, the article subject to an investigation under this
subtitle.
(11) Affirmative determinations by divided Commission
If the Commissioners voting on a determination by the
Commission, including a determination under section 1675 of this
title, are evenly divided as to whether the determination should be
affirmative 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--
(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 establishment of an industry
in the United States,
by reason of imports of the merchandise, an affirmative vote on any
of the issues shall be treated as a vote that the determination
should be affirmative.
(12) Attribution of merchandise to country of manufacture or
production
For purposes of part I of this subtitle, merchandise shall be
treated as the product of the country in which it was manufactured
or produced without regard to whether it is imported directly from
that country and without regard to whether it is imported in the
same condition as when exported from that country or in a changed
condition by reason of remanufacture or otherwise.
(13) Repealed. Pub. L. 103-465, title II, Sec. 222(i)(2),
Dec. 8, 1994, 108 Stat. 4876
(14) Sold or, in the absence of sales, offered for sale
The term ``sold or, in the absence of sales, offered for sale''
means sold or, in the absence of sales, offered--
(A) to all purchasers in commercial quantities, or
(B) in the ordinary course of trade to one or more selected
purchasers in commercial quantities at a price which fairly
reflects the market value of the merchandise,
without regard to restrictions as to the disposition or use of the
merchandise by the purchaser except that, where such restrictions
are found to affect the market value of the merchandise, adjustment
shall be made therefor in calculating the price at which the
merchandise is sold or offered for sale.
(15) Ordinary course of trade
The term ``ordinary course of trade'' means the conditions and
practices which, for a reasonable time prior to the exportation of
the subject merchandise, have been normal in the trade under
consideration with respect to merchandise of the same class or kind.
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 1677b(b)(1) of this
title.
(B) Transactions disregarded under section 1677b(f)(2) of
this title.
(16) Foreign like product
The term ``foreign like product'' means merchandise in the first
of the following categories in respect of which a determination for
the purposes of part II of this subtitle can be satisfactorily made:
(A) The subject merchandise and other merchandise which is
identical in physical characteristics with, and was produced in
the same country by the same person as, that merchandise.
(B) Merchandise--
(i) produced in the same country and by the same person
as the subject merchandise,
(ii) like that merchandise in component material or
materials and in the purposes for which used, and
(iii) approximately equal in commercial value to that
merchandise.
(C) Merchandise--
(i) produced in the same country and by the same person
and of the same general class or kind as the subject
merchandise,
(ii) like that merchandise in the purposes for which
used, and
(iii) which the administering authority determines may
reasonably be compared with that merchandise.
(17) Usual commercial quantities
The term ``usual commercial quantities'', in any case in which
the subject merchandise is sold in the market under consideration at
different prices for different quantities, means the quantities in
which such merchandise is there sold at the price or prices for one
quantity in an aggregate volume which is greater than the aggregate
volume sold at the price or prices for any other quantity.
(18) Nonmarket economy country
(A) In general
The term ``nonmarket economy country'' means any foreign
country that the administering authority determines does not
operate on market principles of cost or pricing structures, so
that sales of merchandise in such country do not reflect the
fair value of the merchandise.
(B) Factors to be considered
In making determinations under subparagraph (A) the
administering authority shall take into account--
(i) the extent to which the currency of the foreign
country is convertible into the currency of other countries;
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(ii) the extent to which wage rates in the foreign
country are determined by free bargaining between labor and
management,
(iii) the extent to which joint ventures or other
investments by firms of other foreign countries are
permitted in the foreign country,
(iv) the extent of government ownership 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 administering 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.
(D) Determinations not in issue
Notwithstanding any other provision of law, any
determination made by the administering authority under
subparagraph (A) shall not be subject to judicial review in any
investigation conducted under part II of this subtitle.
(E) Collection of information
Upon request by the administering authority, the
Commissioner of Customs shall provide the administering
authority a copy of all public and proprietary information
submitted to, or obtained by, the Commissioner of Customs that
the administering authority considers relevant to proceedings
involving merchandise from nonmarket economy countries. The
administering authority shall protect proprietary information
obtained under this section from public disclosure in accordance
with section 1677f of this title.
(19) Equivalency of leases to sales
In determining whether a lease is equivalent to a sale for
purposes of this subtitle, the administering authority shall
consider--
(A) the terms of the lease,
(B) commercial practice within the industry,
(C) the circumstances of the transaction,
(D) whether the product subject to the lease is integrated
into the operations of the lessee or importer,
(E) whether in practice there is a likelihood that the lease
will be continued or renewed for a significant period of time,
and
(F) other relevant factors, including whether the lease
transaction would permit avoidance of antidumping or
countervailing duties.
(20) Application to governmental importations
(A) In general
Except as otherwise provided by this paragraph, merchandise
imported by, or for the use of, a department or agency of the
United States Government (including merchandise provided for
under chapter 98 of the Harmonized Tariff Schedule of the United
States) is subject to the imposition of countervailing duties or
antidumping duties under this subtitle or section 1303 of this
title.
(B) Exceptions
Merchandise imported by, or for the use of, the Department
of Defense shall not be subject to the imposition of
countervailing or antidumping duties under this subtitle if--
(i) the merchandise is acquired by, or for use of, such
Department--
(I) from a country with which such Department had a
Memorandum of Understanding which was in effect on
January 1, 1988, and has continued to have a comparable
agreement (including renewals) or superceding
agreements, and
(II) in accordance with terms of the Memorandum of
Understanding in effect at the time of importation, or
(ii) the merchandise has no substantial nonmilitary use.
(21) United States-Canada Agreement
The term ``United States-Canada Agreement'' means the United
States-Canada Free-Trade Agreement.
(22) NAFTA
The term ``NAFTA'' means the North American Free Trade
Agreement.
(23) Entry
The term ``entry'' includes, in appropriate circumstances as
determined by the administering authority, a reconciliation entry
created under a reconciliation process, defined in section 1401(s)
of this title, that is initiated by an importer. The liability of an
importer under an antidumping or countervailing duty proceeding for
entries of merchandise subject to the proceeding will attach to the
corresponding reconciliation entry or entries. Suspension of
liquidation of the reconciliation entry or entries, for the purpose
of enforcing this subtitle, is equivalent to the suspension of
liquidation of the corresponding individual entries; but the
suspension of liquidation of the reconciliation entry or entries for
such purpose does not preclude liquidation for any other purpose.
(24) Negligible imports
(A) In general
(i) Less than 3 percent
Except as provided in clauses (ii) and (iv), imports
from a country of merchandise corresponding to a domestic
like product identified by the Commission are ``negligible''
if such imports account for less than 3 percent of the
volume of all such merchandise imported into the United
States in the most recent 12-month period for which data are
available that precedes--
(I) the filing of the petition under section
1671a(b) or 1673a(b) of this title, or
(II) the initiation of the investigation, if the
investigation was initiated under section 1671a(a) or
1673a(a) of this title.
(ii) Exception
Imports that would otherwise be negligible under clause
(i) shall not be negligible if the aggregate volume of
imports of the merchandise from all countries described in
clause (i) with respect to which investigations were
initiated on the same day exceeds 7 percent of the volume of
all such merchandise imported into the United States during
the applicable 12-month period.
(iii) Determination of aggregate volume
In determining aggregate volume under clause (ii) or
(iv), the Commission shall not consider imports from any
country specified in paragraph (7)(G)(ii).
(iv) Negligibility in threat analysis
Notwithstanding clauses (i) and (ii), the Commission
shall not treat imports as negligible if it determines that
there is a potential that imports from a country described
in clause (i) will imminently account for more than 3
percent of the volume of all such merchandise imported into
the United States, or that the aggregate volumes of imports
from all countries described in clause (ii) will imminently
exceed 7 percent of the volume of all such merchandise
imported into the United States. The Commission shall
consider such imports only for purposes of determining
threat of material injury.
(B) Negligibility for certain countries in countervailing duty
investigations
In the case of an investigation under section 1671 of this
title, subparagraph (A) shall be applied to imports of subject
merchandise from developing countries by substituting ``4
percent'' for ``3 percent'' in subparagraph (A)(i) and by
substituting ``9 percent'' for ``7 percent'' in subparagraph
(A)(ii).
(C) Computation of import volumes
In computing import volumes for purposes of subparagraphs
(A) and (B), the Commission may make reasonable estimates on the
basis of available statistics.
(D) Regional industries
In an investigation in which the Commission makes a regional
industry determination under paragraph (4)(C), the Commission's
examination under subparagraphs (A) and (B) shall be based upon
the volume of subject merchandise exported for sale in the
regional market in lieu of the volume of all subject merchandise
imported into the United States.
(25) Subject merchandise
The term ``subject merchandise'' means the class or kind of
merchandise that is within the scope of an investigation, a review,
a suspension agreement, an order under this subtitle or section 1303
of this title, or a finding under the Antidumping Act, 1921.
(26) Section 1303
The terms ``section 1303'' and ``1303'' mean section 1303 of
this title as in effect on the day before the effective date of
title II of the Uruguay Round Agreements Act.
(27) Suspension agreement
The term ``suspension agreement'' means an agreement described
in section 1671c(b), 1671c(c), 1673c(b), 1673c(c), or 1673c(l) of
this title.
(28) Exporter or producer
The term ``exporter or producer'' means the exporter of the
subject merchandise, the producer of the subject merchandise, or
both where appropriate. For purposes of section 1677b of this title,
the term ``exporter or producer'' includes both the exporter of the
subject merchandise and the producer of the same subject merchandise
to the extent necessary to accurately calculate the total amount
incurred and realized for costs, expenses, and profits in connection
with production and sale of that merchandise.
(29) WTO Agreement
The term ``WTO Agreement'' means the Agreement defined in
section 3501(9) of this title.
(30) WTO member and WTO member country
The terms ``WTO member'' and ``WTO member country'' mean a
state, or separate customs territory (within the meaning of Article
XII of the WTO Agreement), with respect to which the United States
applies the WTO Agreement.
(31) GATT 1994
The term ``GATT 1994'' means the General Agreement on Tariffs
and Trade annexed to the WTO Agreement.
(32) Trade representative
The term ``Trade Representative'' means the United States Trade
Representative.
(33) Affiliated persons
The following persons shall be considered to be ``affiliated''
or ``affiliated persons'':
(A) Members of a family, including brothers and sisters
(whether by the whole or half blood), spouse, ancestors, and
lineal descendants.
(B) Any officer or director of an organization and such
organization.
(C) Partners.
(D) Employer and employee.
(E) Any person directly or indirectly owning, controlling,
or holding with power to vote, 5 percent or more of the
outstanding voting stock or shares of any organization and such
organization.
(F) Two or more persons directly or indirectly controlling,
controlled by, or under common control with, any person.
(G) Any person who controls any other person and such other
person.
For purposes of this paragraph, a person shall be considered to
control another person if the person is legally or operationally in
a position to exercise restraint or direction over the other person.
(34) Dumped; dumping
The terms ``dumped'' and ``dumping'' refer to the sale or likely
sale of goods at less than fair value.
(35) Dumping margin; weighted average dumping margin
(A) Dumping margin
The term ``dumping margin'' means the amount by which the
normal value exceeds the export price or constructed export
price of the subject merchandise.
(B) Weighted average dumping margin
The term ``weighted average dumping margin'' is the
percentage determined by dividing the aggregate dumping margins
determined for a specific exporter or producer by the aggregate
export prices and constructed export prices of such exporter or
producer.
(C) Magnitude of the margin of dumping
The magnitude of the margin of dumping used by the
Commission shall be--
(i) in making a preliminary determination under section
1673b(a) of this title in an investigation (including any
investigation in which the Commission cumulatively assesses
the volume and effect of imports under paragraph (7)(G)(i)),
the dumping margin or margins published by the administering
authority in its notice of initiation of the investigation;
(ii) in making a final determination under section
1673d(b) of this title, the dumping margin or margins most
recently published by the administering authority prior to
the closing of the Commission's administrative record;
(iii) in a review under section 1675(b)(2) of this
title, the most recent dumping margin or margins determined
by the administering authority under section 1675a(c)(3) of
this title, if any, or under section 1673b(b) or 1673d(a) of
this title; and
(iv) in a review under section 1675(c) of this title,
the dumping margin or margins determined by the
administering authority under section 1675a(c)(3) of this
title.
(36) Developing and least developed country
(A) Developing country
The term ``developing country'' means a country designated
as a developing country by the Trade Representative.
(B) Least developed country
The term ``least developed country'' means a country which
the Trade Representative determines is--
(i) a country referred to as a least developed country
within the meaning of paragraph (a) of Annex VII to the
Subsidies Agreement, or
(ii) any other country listed in Annex VII to the
Subsidies Agreement, but only if the country has a per
capita gross national product of less than $1,000 per annum
as measured by the most recent data available from the World
Bank.
(C) Publication of list
The Trade Representative shall publish in the Federal
Register, and update as necessary, a list of--
(i) developing countries that have eliminated their
export subsidies on an expedited basis within the meaning of
Article 27.11 of the Subsidies Agreement, and
(ii) countries determined by the Trade Representative to
be least developed or developing countries.
(D) Factors to consider
In determining whether a country is a developing country
under subparagraph (A), the Trade Representative shall consider
such economic, trade, and other factors which the Trade
Representative considers appropriate, including the level of
economic development of such country (the assessment of which
shall include a review of the country's per capita gross
national product) and the country's share of world trade.
(E) Limitation on designation
A determination that a country is a developing or least
developed country pursuant to this paragraph shall be for
purposes of this subtitle only and shall not affect the
determination of a country's status as a developing or least
developed country with respect to any other law.
(June 17, 1930, ch. 497, title VII, Sec. 771, as added Pub. L. 96-39,
title I, Sec. 101, July 26, 1979, 93 Stat. 176; amended Pub. L. 98-573,
title VI, Sec. 612(a), Oct. 30, 1984, 98 Stat. 3033; Pub. L. 99-514,
title XVIII, Sec. 1886(a)(9), Oct. 22, 1986, 100 Stat. 2922; Pub. L.
100-418, title I, Secs. 1312, 1316(b), 1326(a)-(c), 1327-1330, 1335,
Aug. 23, 1988, 102 Stat. 1184, 1187, 1203-1206, 1210; Pub. L. 100-449,
title IV, Sec. 403(d), Sept. 28, 1988, 102 Stat. 1887; Pub. L. 100-647,
title IX, Sec. 9001(a)(5), Nov. 10, 1988, 102 Stat. 3807; Pub. L. 101-
382, title I, Sec. 139(a)(3), title II, Sec. 224(a), (b), Aug. 20, 1990,
104 Stat. 653, 659, 660; Pub. L. 103-182, title IV, Sec. 412(b), title
VI, Sec. 637(b), Dec. 8, 1993, 107 Stat. 2146, 2203; Pub. L. 103-465,
title II, Secs. 221(b), 222, 229(b), 233(a)(3), (4), (5)(BB)-(FF), (b),
251, 266, 267, 270(c)(2), (e), Dec. 8, 1994, 108 Stat. 4869, 4890, 4898-
4902, 4915, 4917, 4918; Pub. L. 104-295, Sec. 20(b)(7), (14), Oct. 11,
1996, 110 Stat. 3527.)
References in Text
The Caribbean Basin Economic Recovery Act, referred to in par.
(7)(G)(ii)(III), is title II of Pub. L. 98-67, Aug. 5, 1983, 97 Stat.
384, as amended, which is classified principally to chapter 15
(Sec. 2701 et seq.) of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 2701 of this
title and Tables.
The Harmonized Tariff Schedule of the United States, referred to in
par. (20)(A), is not set out in the Code. See Publication of Harmonized
Tariff Schedule note set out under section 1202 of this title.
Section 1303 of this title, referred to in pars. (20)(A), (25), and
(26), was repealed, effective Jan. 1, 1995, by Pub. L. 103-465, title
II, Sec. 261(a), Dec. 8, 1994, 108 Stat. 4908. For savings provisions
and treatment of references to section 1303 in other laws, see section
261(b), (d)(1)(C) of Pub. L. 103-465, set out as notes under section
1303 of this title.
The Antidumping Act, 1921, referred to in par. (25), is act May 27,
1921, ch. 14, title II, 42 Stat. 11, as amended, which was classified
generally to sections 160 to 171 of this title, and was repealed by Pub.
L. 96-39, title I, Sec. 106(a), July 26, 1979, 93 Stat. 193.
For the effective date of title II of the Uruguay Round Agreements
Act, referred to in par. (26), as Jan. 1, 1995, see Effective Date of
1994 Amendment note set out under section 1671 of this title.
Amendments
1996--Par. (16)(C)(i). Pub. L. 104-295, Sec. 20(b)(7), which
directed substitution of ``subject merchandise'' for ``merchandise which
is the subject of the investigation'' in subpar. (B)(i), was executed by
making the substitution in subpar. (C)(i) to reflect the probable intent
of Congress.
Par. (30). Pub. L. 104-295, Sec. 20(b)(14), substituted
``Agreement'' for ``agreement'' after ``applies the WTO''.
1994--Par. (1). Pub. L. 103-465, Sec. 233(b)(2), substituted
``Secretary of Commerce'' for ``Secretary of the Treasury''.
Par. (4)(A). Pub. L. 103-465, Sec. 222(a)(1), amended heading and
text of subpar. (A) generally. Prior to amendment, text read as follows:
``The term `industry' means the domestic producers as a whole of a like
product, or those producers whose collective output of the like product
constitutes a major proportion of the total domestic production of that
product; except that in the case of wine and grape products subject to
investigation under this subtitle, the term also means the domestic
producers of the principal raw agricultural product (determined on
either a volume or value basis) which is included in the like domestic
product, if those producers allege material injury, or threat of
material injury, as a result of imports of such wine and grape
products.''
Par. (4)(B). Pub. L. 103-465, Sec. 222(a)(1), amended heading and
text of subpar. (B) generally. Prior to amendment, text read as follows:
``When some producers are related to the exporters or importers, or are
themselves importers of the allegedly subsidized or dumped merchandise,
the term `industry' may be applied in appropriate circumstances by
excluding such producers from those included in that industry.''
Par. (4)(C). Pub. L. 103-465, Sec. 270(c)(2), in concluding
provisions, substituted ``dumped imports or imports of merchandise
benefiting from a countervailable subsidy'' for ``subsidized or dumped
imports'' in two places.
Pub. L. 103-465, Secs. 222(a)(2), 233(a)(3)(A)(i), substituted
``domestic like product'' for ``like product'' in cl. (i) and concluding
provisions, and inserted at end of concluding provisions ``The term
`regional industry' means the domestic producers within a region who are
treated as a separate industry under this subparagraph.''
Par. (4)(D). Pub. L. 103-465, Secs. 233(a)(3)(A)(i), 270(c)(2),
substituted ``domestic like product'' for ``like product'' wherever
appearing and ``dumped imports or imports of merchandise benefiting from
a countervailable subsidy'' for ``subsidized or dumped imports'' in two
places.
Pars. (5) to (5B). Pub. L. 103-465, Sec. 251(a), added pars. (5) to
(5B), and struck out former par. (5) which defined ``subsidy''.
Par. (6). Pub. L. 103-465, Sec. 251(b), inserted ``countervailable''
before ``subsidy'' wherever appearing in heading and text.
Par. (7)(B)(i)(I). Pub. L. 103-465, Sec. 233(a)(5)(BB), substituted
``subject merchandise'' for ``merchandise which is the subject of the
investigation''.
Par. (7)(B)(i)(II), (III), (C)(ii)(I). Pub. L. 103-465,
Sec. 233(a)(3)(B), substituted ``domestic like products'' for ``like
products''.
Par. (7)(C)(iii). Pub. L. 103-465, Sec. 222(b)(3), substituted
``subparagraph (B)(i)(III)'' for ``subparagraph (B)(iii)'' in
introductory provisions.
Par. (7)(C)(iii)(IV). Pub. L. 103-465, Sec. 233(a)(3)(A)(ii),
substituted ``domestic like product'' for ``like product''.
Par. (7)(C)(iii)(V). Pub. L. 103-465, Sec. 222(b)(1), added subcl.
(V).
Par. (7)(C)(iv). Pub. L. 103-465, Sec. 222(b)(2), added cl. (iv) and
struck out former cl. (iv) which directed that Commission cumulatively
assess volume and effect of imports from two or more countries of like
products subject to investigation if such imports compete with each
other and with like products of domestic industry in United States
market, with an exception for imports which are products of country
designated as beneficiary country under Caribbean Basin Economic
Recovery Act.
Par. (7)(C)(v). Pub. L. 103-465, Sec. 222(d)(1), struck out heading
and text of cl. (v). Prior to amendment, text read as follows: ``The
Commission is not required to apply clause (iv) or subparagraph (F)(iv)
in any case in which the Commission determines that imports of the
merchandise subject to investigation are negligible and have no
discernable adverse impact on the domestic industry. For purposes of
making such determination, the Commission shall evaluate all relevant
economic factors regarding the imports, including, but not limited to,
whether--
``(I) the volume and market share of the imports are negligible,
``(II) sales transactions involving the imports are isolated and
sporadic, and
``(III) the domestic market for the like product is price
sensitive by reason of the nature of the product, so that a small
quantity of imports can result in price suppression or depression.
For purposes of this clause, the Commission may treat as negligible and
having no discernable adverse impact on the domestic industry imports
that are the product of any country that is a party to a free trade area
agreement with the United States which entered into force and effect
before January 1, 1987, if the Commission determines that the domestic
industry is not being materially injured by reason of such imports.''
Par. (7)(E)(i). Pub. L. 103-465, Sec. 266, amended heading and text
of cl. (i) generally. Prior to amendment, text read as follows: ``In
determining whether there is a threat of material injury, the Commission
shall consider such information as may be presented to it by the
administering authority as to the nature of the subsidy (particularly as
to whether the subsidy is an export subsidy inconsistent with the
Agreement) provided by a foreign country and the effects likely to be
caused by the subsidy.''
Par. (7)(F)(i), (ii). Pub. L. 103-465, Sec. 222(c), amended cls. (i)
and (ii) generally, substituting present provisions for provisions which
listed factors in determining as well as basis for determining that an
industry is threatened with material injury by reason of imports (or
sales for importation) of the subject merchandise.
Par. (7)(F)(iii)(I), (II). Pub. L. 103-465, Sec. 233(b)(1)(A), in
subcl. (I), substituted ``WTO member'' for ``GATT member'', and in
subcl. (II), substituted ``WTO member'' for ``GATT member'' in heading
and text before ``market'', and ``WTO member.'' for ``signatory to The
Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade (relating to antidumping measures).''
Par. (7)(F)(iv). Pub. L. 103-465, Sec. 222(e)(1), struck out heading
and text of cl. (iv). Prior to amendment, text read as follows: ``To the
extent practicable and subject to subparagraph (C)(iv)(II) and (v), for
purposes of clause (i)(III) and (IV) the Commission may cumulatively
assess the volume and price effects of imports from two or more
countries if such imports--
``(I) compete with each other, and with like products of the
domestic industry, in the United States market, and
``(II) are subject to any investigation under section 1303,
1671, or 1673 of this title.''
Par. (7)(G), (H). Pub. L. 103-465, Sec. 222(e)(2), added subpars.
(G) and (H).
Par. (7)(I). Pub. L. 103-465, Sec. 222(f), added subpar. (I).
Par. (8). Pub. L. 103-465, Sec. 270(e), amended heading and text of
par. (8) generally. Prior to amendment, text read as follows: ``The
terms `Agreement on Subsidies and Countervailing Measures' and
`Agreement' mean the Agreement on Interpretation and Application of
Articles VI, XVI, and XXIII of the General Agreement on Tariffs and
Trade (relating to subsidies and countervailing measures) approved under
section 2503(a) of this title.''
Par. (9)(A). Pub. L. 103-465, Secs. 222(g)(1), 233(a)(5)(CC),
substituted ``subject merchandise'' for ``merchandise which is the
subject of an investigation under this subtitle'' and inserted
``producers, exporters, or'' before ``importers''.
Par. (9)(B). Pub. L. 103-465, Sec. 222(g)(2), inserted ``or from
which such merchandise is exported'' after ``manufactured''.
Par. (9)(C) to (F). Pub. L. 103-465, Sec. 233(a)(3)(A)(iii),
substituted ``domestic like product'' for ``like product''.
Par. (10). Pub. L. 103-465, Sec. 233(a)(3)(A)(iii), substituted
``domestic like product'' for ``like product'' in heading and text.
Par. (11). Pub. L. 103-465, Sec. 221(b), inserted ``, including a
determination under section 1675 of this title,'' after ``determination
by the Commission'' in introductory provisions.
Par. (13). Pub. L. 103-465, Sec. 222(i)(2), struck out heading and
text of par. (13). Text read as follows: ``For the purpose of
determining United States price, the term `exporter' includes the person
by whom or for whose account the merchandise is imported into the United
States if--
``(A) such person is the agent or principal of the exporter,
manufacturer, or producer;
``(B) such person owns or controls, directly or indirectly,
through stock ownership or control or otherwise, any interest in the
business of the exporter, manufacturer, or producer;
``(C) the exporter, manufacturer, or producer owns or controls,
directly or indirectly, through stock ownership or control or
otherwise, any interest in any business conducted by such person; or
``(D) any person or persons, jointly or severally, directly or
indirectly, through stock ownership or control or otherwise, own or
control in the aggregate 20 percent or more of the voting power or
control in the business carried on by the person by whom or for
whose account the merchandise is imported into the United States,
and also 20 percent or more of such power or control in the business
of the exporter, manufacturer, or producer.''
Par. (15). Pub. L. 103-465, Sec. 222(h), substituted ``subject
merchandise'' for ``merchandise which is the subject of an
investigation'' and inserted at end ``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 1677b(b)(1) of this title.
``(B) Transactions disregarded under section 1677b(f)(2) of this
title.''
Par. (16). Pub. L. 103-465, Sec. 233(a)(4), substituted ``Foreign
like product'' for ``Such or similar merchandise'' as heading and
``foreign like product'' for ``such or similar merchandise'' in
introductory provisions.
Par. (16)(A). Pub. L. 103-465, Sec. 233(a)(5)(DD), substituted
``subject merchandise'' for ``merchandise which is the subject of an
investigation''.
Par. (16)(B)(i). Pub. L. 103-465, Sec. 233(a)(5)(EE), which directed
the substitution of ``subject merchandise'' for ``merchandise which is
the subject of an investigation'', was executed by making the
substitution for text which contained the words ``the investigation''
rather than ``an investigation'', to reflect the probable intent of
Congress.
Par. (17). Pub. L. 103-465, Sec. 233(a)(5)(FF), substituted
``subject merchandise'' for ``merchandise which is the subject of the
investigation''.
Par. (24). Pub. L. 103-465, Sec. 222(d)(2), added par. (24).
Pars. (25) to (34). Pub. L. 103-465, Sec. 222(i)(1), added pars.
(25) to (34).
Par. (35). Pub. L. 103-465, Sec. 229(b), added par. (35).
Par. (36). Pub. L. 103-465, Sec. 267, added par. (36).
1993--Pars. (18), (21). Pub. L. 103-182, Sec. 412(b)(1),
redesignated par. (18), relating to United States-Canada Agreement, as
(21).
Par. (22). Pub. L. 103-182, Sec. 412(b)(2), added (22).
Par. (23). Pub. L. 103-182, Sec. 637(b), added par. (23).
1990--Par. (7)(C)(iv). Pub. L. 101-382, Sec. 224(a), amended cl.
(iv) generally. Prior to amendment, cl. (iv) read as follows: ``For
purposes of clauses (i) and (ii), the Commission shall cumulatively
assess the volume and effect of imports from two or more countries of
like products subject to investigation if such imports compete with each
other and with like products of the domestic industry in the United
States market.''
Par. (7)(F)(iv). Pub. L. 101-382, Sec. 224(b), substituted
``(C)(iv)(II) and (v)'' for ``(C)(v)''.
Par. (20)(A). Pub. L. 101-382, Sec. 139(a)(3), substituted ``chapter
98 of the Harmonized Tariff Schedule'' for ``schedule 8 of the Tariff
Schedules''.
1988--Par. (4)(E). Pub. L. 100-418, Sec. 1326(a), added subpar. (E).
Par. (5). Pub. L. 100-418, Sec. 1312, amended par. (5) generally.
Prior to amendment, par. (5) read as follows: ``The term `subsidy' has
the same meaning as the term `bounty or grant' as that term is used in
section 1303 of this title, and includes, but is not limited to, the
following:
``(A) Any export subsidy described in Annex A to the Agreement
(relating to illustrative list of export subsidies).
``(B) The following domestic subsidies, if provided or required
by government action to a specific enterprise or industry, or group
of enterprises or industries, whether publicly or privately owned,
and whether paid or bestowed directly or indirectly on the
manufacture, production, or export of any class or kind of
merchandise:
``(i) The provision of capital, loans, or loan guarantees on
terms inconsistent with commercial considerations.
``(ii) The provision of goods or services at preferential
rates.
``(iii) The grant of funds or forgiveness of debt to cover
operating losses sustained by a specific industry.
``(iv) The assumption of any costs or expenses of
manufacture, production, or distribution.''
Par. (7)(B). Pub. L. 100-418, Sec. 1328(1), amended subpar. (B)
generally. Prior to amendment, subpar. (B) read as follows: ``In making
its determinations under sections 1671b(a), 1671d(b), 1673b(a), and
1673d(b) of this title, the Commission shall consider, among other
factors--
``(i) the volume of imports of the merchandise which is the
subject of the investigation,
``(ii) the effect of imports of that merchandise on prices in
the United States for like products, and
``(iii) the impact of imports of such merchandise on domestic
producers of like products.''
Par. (7)(C). Pub. L. 100-418, Sec. 1328(2), in heading substituted
``relevant factors'' for ``volume and of price effects'', in cl. (ii)(I)
substituted ``underselling'' for ``undercutting'', and in cl. (iii)
inserted ``domestic'' in heading and amended text generally. Prior to
amendment, text of cl. (iii) read as follows: ``In examining the impact
on the affected industry, the Commission shall evaluate all relevant
economic factors which have a bearing on the state of the industry,
including, but not limited to--
``(I) actual and potential decline in output, sales, market
share, profits, productivity, return on investments, and utilization
of capacity,
``(II) factors affecting domestic prices, and
``(III) actual and potential negative effects on cash flow,
inventories, employment, wages, growth, ability to raise capital,
and investment.''
Par. (7)(C)(v). Pub. L. 100-418, Sec. 1330(b), added cl. (v).
Par. (7)(F)(i)(IX). Pub. L. 100-418, Sec. 1326(b), which directed
that par. (7)(F) be amended by adding subcl. (IX), was executed by
adding subcl. (IX) to par. (7)(F)(i) to reflect the probable intent of
Congress.
Par. (7)(F)(i)(X). Pub. L. 100-418, Sec. 1329(1)-(3), added subcl.
(X).
Par. (7)(F)(iii). Pub. L. 100-418, Sec. 1329(4), added cl. (iii).
Par. (7)(F)(iv). Pub. L. 100-418, Sec. 1330(a), added cl. (iv).
Par. (9)(G). Pub. L. 100-418, Sec. 1326(c), added subpar. (G).
Par. (18). Pub. L. 100-449 added par. (18) relating to United
States-Canada Agreement.
Pub. L. 100-418, Sec. 1316(b), added par. (18) relating to nonmarket
economy country.
Par. (19). Pub. L. 100-647 redesignated par. (19), relating to
application to governmental importations, as (20).
Pub. L. 100-418, Sec. 1335, added par. (19) relating to application
to governmental importations.
Pub. L. 100-418, Sec. 1327, added par. (19) relating to equivalency
of leases to sales.
Par. (20). Pub. L. 100-647 redesignated par. (19), relating to
application to governmental importations, as (20).
1986--Par. (7)(F)(i). Pub. L. 99-514 substituted ``the merchandise''
for ``any merchandise'' in introductory provisions and ``final orders''
for ``find orders'' in subcl. (VIII).
1984--Par. (4)(A). Pub. L. 98-573, Sec. 612(a)(1), inserted
provision that in the case of wine and grape products subject to
investigation under this subtitle, the term also means the domestic
producers of the principal raw agricultural product (determined on
either a volume or value basis) which is included in the like domestic
product, if those producers allege material injury, or threat of
material injury, as a result of imports of such wine and grape products.
Par. (7)(C)(iv). Pub. L. 98-623, Sec. 612(a)(2)(A), added cl. (iv).
Par. (7)(F). Pub. L. 98-573, Sec. 612(a)(2)(B), added subpar. (F).
Par. (9)(F). Pub. L. 98-573, Sec. 612(a)(3), added subpar. (F).
Par. (14)(A), (B). Pub. L. 98-573, Sec. 612(a)(4), substituted ``in
commercial quantities'' for ``at wholesale''.
Par. (17). Pub. L. 98-573, Sec. 612(a)(5), substituted ``commercial
quantities'' for ``wholesale quantities''.
Effective Date of 1994 Amendment
Amendment by Pub. L. 103-465 effective, except as otherwise
provided, on the date on which the WTO Agreement enters into force with
respect to the United States [Jan. 1, 1995], and applicable with respect
to investigations, reviews, and inquiries initiated and petitions filed
under specified provisions of this chapter after such date, see section
291 of Pub. L. 103-465, set out as a note under section 1671 of this
title.
Effective Date of 1993 Amendment
Amendment by section 412(b) of Pub. L. 103-182 effective on the date
the North American Free Trade Agreement enters into force with respect
to the United States [Jan. 1, 1994], but not applicable to any final
determination described in section 1516a(a)(1)(B) or (2)(B)(i), (ii), or
(iii) of this title, notice of which is published in the Federal
Register before such date, or to a determination described in section
1516a(a)(2)(B)(vi) of this title, notice of which is received by the
Government of Canada or Mexico before such date, or to any binational
panel review under the United States-Canada Free-Trade Agreement, or to
any extraordinary challenge arising out of any such review that was
commenced before such date, see section 416 of Pub. L. 103-182, set out
as an Effective Date note under section 3431 of this title.
Effective Date of 1990 Amendment
Section 224(c) of Pub. L. 101-382 provided that: ``The amendments
made by subsections (a) and (b) [amending this section] apply with
respect to investigations (including investigations regarding products
of Canadian origin) initiated under section 702 or 732 of the Tariff Act
of 1930 [19 U.S.C. 1671a, 1673a] on or after the date of the enactment
of this Act [Aug. 20, 1990].''
Effective and Termination Dates of 1988 Amendments
Amendment by Pub. L. 100-647 applicable as if such amendment took
effect on Aug. 23, 1988, see section 9001(b) of Pub. L. 100-647, set out
as a note under section 58c of this title.
Amendment by Pub. L. 100-449 effective on date United States-Canada
Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to
have effect on date Agreement ceases to be in force, see section 501(a),
(c) of Pub. L. 100-449, set out in a note under section 2112 of this
title.
Amendment by sections 1312, 1316(b), 1326(a)-(c), and 1327-1329 of
Pub. L. 100-418 applicable with respect to investigations initiated
after Aug. 23, 1988, and to reviews initiated under section 1673e(c) or
1675 of this title after Aug. 23, 1988, see section 1337(b) of Pub. L.
100-418, set out as an Effective Date of 1988 Amendment note under
section 1671 of this title.
Amendment by section 1330 of Pub. L. 100-418 applicable with respect
to investigations initiated after Aug. 23, 1988, see section 1337(c) of
Pub. L. 100-418.
Amendment by section 1335 of Pub. L. 100-418 applicable with respect
to entries, and withdrawals from warehouse for consumption, that are
liquidated on or after Aug. 23, 1988, see section 1337(e) of Pub. L.
100-418.
Effective and Termination Dates of 1984 Amendment
Amendment by Pub. L. 98-573 applicable with respect to
investigations initiated by petition or by the administering authority
under parts I and II of this subtitle, and to reviews begun under
section 1675 of this title, on or after Oct. 30, 1984; but provisions of
this subtitle not to be interpreted to prevent refiling of a petition
under section 1671a or 1673a of this title that was filed before Oct.
30, 1984, if the purpose of refiling was to avail petitioner of
amendment of par. (4)(A) of this section by Pub. L. 98-573, and such
amendment of par. (4)(A) inapplicable to petitions filed (or refiled)
under section 1671a or 1673a of this title after Sept. 30, 1986, see
section 626(b)(1), (c)(1), (2) of Pub. L. 98-573, as amended, set out as
an Effective Date of 1984 Amendment note under section 1671 of this
title.
Effective Date
Part effective Jan. 1, 1980, see section 107 of Pub. L. 96-39, set
out as a note under section 1671 of this title.
Transfer of Functions
For transfer of functions, personnel, assets, and liabilities of the
United States Customs Service of the Department of the Treasury,
including functions of the Secretary of the Treasury relating thereto,
to the Secretary of Homeland Security, and for treatment of related
references, see sections 203(1), 551(d), 552(d), and 557 of Title 6,
Domestic Security, and the Department of Homeland Security
Reorganization Plan of November 25, 2002, as modified, set out as a note
under section 542 of Title 6.
All functions of the Secretary of the Treasury under this subtitle
were transferred to the Secretary of Commerce pursuant to Reorg. Plan
No. 3 of 1979, Sec. 5(a)(1)(C), 44 F.R. 69275, 93 Stat. 1381, eff. Jan.
2, 1980, as provided by section 1-107(a) of Ex. Ord. No. 12188, Jan. 2,
1980, 45 F.R. 993, set out as notes under section 2171 of this title,
except that the Customs Service of the Department of the Treasury was to
accept such deposits, bonds, or other security as deemed appropriate by
the Secretary of Commerce, assess and collect such duties as directed by
the Secretary of Commerce, and furnish such of its important records or
copies thereof as requested by the Secretary incident to the functions
transferred.
Uruguay Round Agreements: Entry Into Force
The Uruguay Round Agreements, including the World Trade Organization
Agreement and agreements annexed to that Agreement, as referred to in
section 3511(d) of this title, entered into force with respect to the
United States on Jan. 1, 1995. See note set out under section 3511 of
this title.
Effect of Termination of NAFTA Country Status
For provisions relating to effect of termination of NAFTA country
status on the provisions of sections 401 to 416 of Pub. L. 103-182, see
section 3451 of this title.
Plan Amendments Not Required Until January 1, 1989
For provisions directing that if any amendments made by subtitle A
or subtitle C of title XI [Secs. 1101-1147 and 1171-1177] or title XVIII
[Secs. 1801-1899A] of Pub. L. 99-514 require an amendment to any plan,
such plan amendment shall not be required to be made before the first
plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub.
L. 99-514, as amended, set out as a note under section 401 of Title 26,
Internal Revenue Code.
Section Referred to in Other Sections
This section is referred to in sections 1337, 1516, 1516a, 1671a,
1671b, 1671c, 1671e, 1673a, 1673b, 1673c, 1673e, 1675, 1675a, 1675b,
1677-1, 1677a, 1677b, 1677d, 1677m, 3435, 3531, 3538, 3571, 3572 of this
title; title 28 section 2631.
