PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4809
Public Law 103-465 103d Congress
An Act To approve and implement the trade agreements concluded in the Uruguay Round Dec. 8, 1994
of multilateral trade negotiations. [H.R. 5110]
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, Uruguay Round SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the "Uruguay 19 use 3501 Round Agreements Act", "°^-
(b) TABLE OF CONTENTS.— Sec. 1. Short title and table of contents. Sec. 2. Definitions.
TITLE I—APPROVAL OF, i\ND GENERAL PROVISIONS RELATING TO, THE URUGUAY ROUND AGREEMENTS
Subtitle A—^Approval of Agreements and Related Provisions Sec. 101. Approval and entry into force of the Uruguay Round Agreements. Sec. 102. Relationship of the agreements to United States law and State law. Sec. 103. Implementing actions in anticipation of entry into force; regulations.
Subtitle B—^Tariff Modifications Sec. 111. Tariff modifications. Sec. 112. Implementation of Schedule XX provisions on ship repairs. Sec. 113. Liquidation or reliquidation and refund of duty paid on certain entries. Sec. 114. Modifications to the HTS. Sec. 115. Consultation and layover requirements for, and effective date of, pro-
claimed actions. Sec. 116. Effective date.
Subtitle C—Uruguay !Elound Implementation and Dispute Settlement
Sec. 121. Definitions. Sec. 122. Implementation of Uruguay Round Agreements. Sec. 123. Dispute settlement panels and procedures. Sec. 124. Annual report on tlie WTO. Sec. 125. Review of participation in the WTO. Sec. 126. Increased transparency. Sec. 127. Access to the WTO dispute settlement process. Sec. 128. Advisory committet; participation. Sec. 129. Administrative action following WTO panel reports. Sec. 130. Effective date.
Subtitle D—^Related Provisions Sec. 131. Working party on worker rights. Sec. 132. Implementation of :rules of origin work program. Sec. 133. Membership in WTO of boycotting countries. Sec. 134. Africa trade and development policy. Sec. 135. Objectives for extended negotiations. Sec. 136. Repeal of tax on imported perfimies; drawback of tax on distilled spirits
used in perfume manufacture. Sec. 137. Certain nonrubber footwear. Sec. 138. Effective date.
108 STAT. 4810 PUBLIC LAW 103-465—DEC. 8, 1994
TITLE n—ANTIDUMPING AND COUNTERVAILING DUTY PROVISIONS Sec 201. Reference.
Siibtitle A—General ProvisionB Sec 211. Action witii respect to petitions. Sec 212. Petition and preliminary deteimination. Sec 213. De minimis dumpine; margin. Sec 214. Critical circumstances. Sec 215. Provisional measures. Sec 216. Conditions on acceptance of suspension agreements. Sec 217. Termination of investigation. Sec 218. Special rules for regional industries. Sec 219. Ijetermination of weî ^hted avera^ dumping maz^gin. Sec 220. Review of determinations. Sec 221. Review determinations. Sec 222. Definitions. Sec 223. Export price and constructed export price. Sec 224. Normal value. Sec 225. Currency conversion. Sec 226. Proprietary and nonproprietary information. Sec 227. Opportunity for comment by consumers and industrial users. Sec 228. Public notice and explanation of determinations. Sec 229. Sampling and averaging; determination of weighted average dumping
margin. ' Sec 230. Anticircumvention. Sec 231. Evidence. Sec 232. Antidimiping petitions by third ooimtries. Sec 233. Conforming amendments. Sec 234. Application to Canada and Mexico.
Subtitle B—Subsidies Provisions
PART 1—COUNTERVAILABLE SUBSIDIES
Sec 251. Countervailable subsidy.
PART 2—REPEAL OF SECTION 303 AND CONFORMING AMENDMENTS
Sec 261. Repeal of section 303. Sec 262. Imposition of countervailing duties. Sec 263. De minimis countervailable subsidy. Sec 264. Determination of coimtervailable subsidy rate. " ' Sec 265. Assessment of countei-vailing duty. Sec 266. Nature of ooimtervailable subsidy. Sec. 267. Definition of developing and least-developed coimtry. Sec. 268. Upstream subsidies. Sec 269. Sampling and averaging; determination of countervailable subsidy rate. Sec. 270. Conforming amendments.
PART 3—SECTION 303 INJURY INVESTIGATIONS
Sec 271. Special rules for i^juiy investigations for certain section 303 countervail- ing duty orders and investigations.
PART 4—^ENFORCEMENT OF UNITED STATES RIGHTS UNDER THE SUBSIDIES AGREEMENT
Sec 281. Subsidies enforcement. Sec 282. Review of subsidies agreement. Sec 283. Amendments to titie VII of the Tariff Act of 1930.
Subtitle C—-Effective Date
Sec. 291. Effective date.
TITLE m--ADDITIONAL IMPLEMENTATION OF AGREEMENTS
Subtitie A—Safeguards Sec. 301. Investigations, determinations, and reconamendations by International
Trade Commission. Sec 302. Action by President after determination of import injiiry. Sec 303. Miscellaneous amendments. Sec 304. Effective date.
Subtitle B—^Foreign Trade Barriers and Unfair Trade Practices Sec. 311. Identification of foreign anticompetitive practices.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4811
See. 312. Consultation •mih committees. Sec 313. Identification of coxintries that deny protection of intellectual property
lie^hts. Sec. 314. Amendments to title III of the Trade Act of 1974. Sec 315. Objectives in intellectual property. Sec 316. Effective date.
Subtitle C—Unfair Practices in Import Trade Sec 321. Unfair practices in import trade. Sec 322. Effective date.
Subtitle D—Textiles Sec 331. Textile product integration. Sec 332. Amendment to section 204 of the Agricultural Act of 1956. Sec 333. Textile traneahipmeuts. Sec 334. Rules of origin for textile and apparel products. Sec 335. Effective date.
Subtitle E—Government Procurement Sec 341. Monitoring and enforcement of the agreement on government procure-
ment. Sec 342. Conforming amendments. Sec 343. Reciprocal competitive procurement practices. Sec 344. Effective date.
Subtitie F—Technical Barriers to Trade Sec 351. Technical barriers to trade. Sec 352. Effective date.
TITLE IV—AGRICULTURE-RELATED PROVISIONS
Subtitie A—^Agriculture
PART I—MARKET ACCESS
Sec 401. Section 22 amendments. Sec. 402. Cheese and chocolate crumb imports. Sec 403. Meat Import Act Sec 404. Administration of tariff-rate quotas. Sec 405. Special agricultural safeguard authority.
PART II—EXPORTS
Sec 411. Export programs. Sec 412. Other conforming amendments.
PART III—OTHER PROVISIONS
Sec 421. Authority for certain actions under Article XXVIII. Sec. 422. Tobacco imiports. Sec. 423. Tobacco proclamation authority. Sec 424. Report to Congress on access to Canadian dairy and poultry markets. Sec. 425. Study of milk marketing order system. Sec 426. Additional program Jiunding.
Subtitie B—Sanitary and Phytosanitary Measvires Sec. 431. Sanitary and phytosanitary measures. Sec 432. International standard-setting activities.
Subtitie C—Standards Sec 441. Ihe Federal Seed Act.
Subtitie D—General Effective Date Sec 451. General effective date.
TITLE V—INTELLECTUAL PROPERTY Sec 501. Definition.
Subtitie A—Copyright Provisions Sec. 511. Rental rights in computer programs. Sec. 512. Civil penalties for unauthorized fixation of and trafficking in sound re-
' cordings and music videos of live musical performances.
108 STAT. 4812 PUBLIC LAW 103-465—DEC. 8, 1994
Sec. 513. Criminal penalties for unauthorized fixation of and trafficking in sound recordings and music videos or live musical performances.
Sec. 514. Restored works.
Subtitle B—Trademark Provisions Sec. 521. Definition of "abandoned". Sec. 522. Nonregistrability of misleading geographic indications for wines and
spirits. Sec. 523. Effective date.
Subtitle C—^Patent Provisions Sec. 531. Treatment of inventive activity. Sec. 532. Patent term and internal priority. Sec. 533. Patent rights. Sec. 534. Effective dates and application.
TITLE VI—RELATED PROVISIONS
Subtitle A—Elxpiring Provisions Sec. 601. Generalized System of Preferences. Sec. 602. U.S. insular possessions.
Subtitle B—Certain Customs Provisions Sec. 611. Reimbursements from c\istoms user fee account. Sec. 612. Merchandise processing fees.
Subtitle C—Conforming Amendments Sec. 621. Conforming amendments.
TITLE VII—REVENUE PROVISIONS Sec. 700. Amendment of 1986 Code and table of contents.
Subtitle A—^Withholding Tax Provisions Sec. 701. Withholding on distributions of Indian casino profits to tribal members. Sec. 702. Voluntary withholding on certain Federal payments and on xmemploy-
ment compensation.
Subtitle B—Provisions Relating to Estimated Taxes and Payments and Deposits of Taxes
Sec. 711. Treatment of subpart F and section 936 income of taxpayers using annualized method for estimated tax.
Sec. 712. Time for payments and deposits of certain taxes. Sec. 713. Reduction in rate of interest paid on certain corporate overpayments.
Subtitle C—^Earned Income Tax Credit Sec. 721. Extension of earned income tax credit to military personnel stationed out-
side the United States. Sec. 722. Certain nonresident aliens ineligible for earned income tax credit. Sec. 723. Income of prisoners disregardea in determining earned income tax credit.
Subtitle D—Provisions Relating To Retirement Benefits Sec. 731. Treatment of excess pension assets used for retiree hecdth benefits. Sec. 732. Roxmding roles for cost-of-living adjustments. Sec. 733. Increase m inclusion of social security benefits paid to nonresidents. .'
Subtitle E—Other Provisions Sec. 741. Partnership distributions of marketable securities. Sec. 742. Taxpajrer identification numbers rec[uired at birth. Sec. 743. Extension of Internal Revenue Service user fees. Sec. 744. Modification of substantial understatement penalty for corporations par-
ticipating in tax shelters. Sec. 745. Modification of authority to set terms and conditions for savings bonds.
Subtitle F—Pension Plan Funding and Premiums Sec. 750. Short title.
PART I—PENSION PLAN FUNDING
SUBPART A—AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986
Sec. 751. Minimum funding requirements.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4813
Sec. 752. Limitation on chang^e in current liability aasumptions. Sec. 753. Antidpation of bargained benefit increases. Sec 754. Modification of q\iarterly contribution requirement. Sec 755. Exceptions to excise tax on nondeductible contributions.
SUBPART B—AMENDMENTS TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974
Sec 761. Minimum funding requirements. Sec 762. Limitation on chimges in current liability assumptions. Sec 763. Anticipation of bargained benefit increases. Sec 764. Modification of quarterly contribution requirement.
SUBPART Ĉ —OTHER FUNDING PROVISIONS
Sec 766. Prohibition on benefit increases where plan sponsor is in bankruptcy. Sec 767. Single sum distributions. Sec 768. Adjustments to lien for missed minimuni funding contributions. Sec 769. Special funding rules for certain plans.
PART II—AMENDMENTS RELATED TO TITLE IV OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974
Sec 771. Reportable events. Sec 772. Certain information required to be furnished to PBGC. Sec 773. Enforcement of minimum funding requirements. Sec 774. Computation of additional PBGCTpremium. Sec 775. Disclosure to participants. Sec 776. Missing partidpants. Sec 777. Modification of^maximum guarantee for disability benefits. Sec 778. Procedures to facilitate distribution of termination benefits.
PART III—EFFECTIVE DATES
Sec 781. Effective dates.
TITLE VIII—PIONEER PREFERENCES
Sec 801. Pioneer preferences.
SEC. 2. DEFINITIONS. 19 USC 3501.
For purposes of this Act U) CJATT 1947; GATT 1994.—
(A) GATT 1947.—The term "GATT 1947" means the General Agreement on Tariffs and Trade, dated October 30, 1947, annexed to the Final Act Adopted at the Conclu- sion of tiie Second Session of the Prepsiratory Conunittee of the United Nations Conference on Trade and Employ- ment, as subsequently rectified, Eunended, or modified by the terms of legal instruments which have entered into force before the date of entry into force of the WTO
(B) GATT 1994.—The term "GATT 1994" means the Greneral Agreement on Tariffs and Trade annexed to the WTO Agreement. (2) HTS.—The term "HTS" means the Harmonized Tariff
Schedule of the United States. (3) INTERNATION̂ VL TRADE COMMISSION.—^The term "Inter-
national Trade Commission" meEins the United States Inter- national Trade Commission.
(4) MULTILATERAI. TRADE AGREEMENT.—The term "multQat> eral trade agreement^' means an agreement described in section 101(d) of this Act (otlier than an agreement described in para- graph (17) or (18) of such section).
(5) SCHEDULE xx.—The term "Schedule XX" means Sched- ule XX—^United States of America annexed to the Marrakesh Protocol to the GATT 1994.
(6) TRADE REPRESENTATIVE.—^The term "Trade Represente- tive" means the United States Trade Representetive.
108 STAT. 4814 PUBLIC LAW 103-465—DEC. 8, 1994
(7) URUGUAY ROUND AGREEMENTS.—The term "Uruguay Round Agreements" means the agreements approved hy the Congress under section lOl(aXl).
(8) WORLD TRADE ORGANIZATION AND WTO.—The terms "World Trade Organization" and "WTO" mean the oi^ganization established pursuant to the WTO Agreement.
(9) WTO AGREEMENT.—The term "WTO Agreement^' means the Agreement Establishing the World Trade Organization entered into on April 15, 1994.
(10) WTO MEMBER AND WTO MEMBER COUNTRY.—^The t e r m s "WTO member^ and "WTO member country" mean a state, or separate customs territory (within the meaning of Article X n of the WTO Agreement), with respect to which the United States appUes the WTO Agreement.
TITLE I—APPROVAL OF, AND GENERAL PROVISIONS RELATING TO, THE URU- GUAY ROUND AGREEMENTS
Subtitle A—Approval of Agreements and Related Provisions
19 u s e 3511. SEC. 101. APPROVAL AND ENTRY INTO FORCE OF THE URUGUAY ROUND AGREEMENTS.
(a) APPROVAL OF AGREEMENTS AND STATEMENT OF ADMINISTRA- TIVE ACTION.—^Pursuant to section 1103 of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 2903) and section 151 of the Trade Act of 1974 (19 U.S.C. 2191), the Congress approves—
(1) the trade agreements described in siibsection (d) result- ing from the Uruguay Round of multilateral trade negotiations under the auspices of the General Agreement on Tariffs and Trade, entered into on April 15, 1994, and submitted to the Congress on September 27,1994; and
(2) the statement of administrative action proposed to implement the agreements that was submitted to tne Congress on September 27,1994. (b) ENTRY INTO FORCE.—^At such time as the President deter-
mines that a sufficient nimiber of foreign countries are accepting the obHgations of the Uruguay Round Agreements, in accordance with article XIV of the WTO Agreement to ensure the effective operation of, and adequate benefits for tne United States under, those Agreements, the President may accept the Uruguay Round Agreements and implement article VTII of the WTO Agreement.
(c) AUTHORIZATION OF APPROPRIATIONS.—^There are authorized to be appropriated annually such sums as may be necessary for the payment by the United States of its share of the expenses of the WTO.
(d) TRADE AGREEMENTS TO WHICH THIS ACT APPLIES.—Sub- section (a) applies to the WTO Agreement and to the following agreements annexed to that Agreement:
(1) The (General Agreement on Tariffs and Trade 1994. (2) The Agreement on Agriculture.
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PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4815
(3) The Agreement on the Application of Sanitary and ' Phytosanitary Measures.
(4) The Agreement on Textiles and Clothing. (5) The Agreement on Technical Barriers to Trade. (6) The Agreement on Trade-Related Investment Measures. (7) The Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994. (8) The Agreement on Implementation of Article Vll of
the General A^eement on Tariffs and Trade 1994. (9) The A^eement on Preshipment Inspection. (10) The Agreement on Rules of Origin. (11) The Agreement on Import Licensing Procedures. (12) The Agreement on Subsidies and Coxintervailing
Measures. (13) The Agreement on Safeguards. (14) The General Agreement on Trade in Services. (15) The Agreement on Trade-Related Aspects of Intellec-
tual Property Rights. (16) The Understanding on Rules and Procedures Ciovem-
ing the Settlement of Disputes. (17) The Agreement on (jovemment Procurement. (18) The International Bovine Meat Agreement
SEC. 102. RELATIONSHIP OF THE AGREEMENTS TO UNITED STATES 19 USC 3512. LAW AND STATE LAW.
(a) REiATiONSfflp OF AGREEMENTS TO U N I T E D STATES L A W . — (1) UNITED STATISS LAW TO PREVAIL IN CONFLICT.—No provi-
sion of any of the Uruguay Round Agreements, nor the applica- tion of any such provision to any person or circumstance, that is inconsistent with any law of tne United States shall have effect
(2) CONSTRUCTION.—Nothing in this Act shall be construed—
(A) to amend or modify any law of the United States, including any law relating to—
(i) the protection of human, animal, or plant life or health,
(ii) the protection of the environment, or (iii) worker safety, or
(B) to limit any authority conferred under any law of the United States, including section 301 of the Trade Act of 1974,
unless specifically provided for in this Act (b) RELATIONSHIP OF AGREEMENTS TO STATE LAW.—
(1) FEDERAL-STA':rE CONSULTATION.-^ (A) IN GENERAL.—Upon the enactment of this Act, the President.
President shall, through the intergovernmental policy advisory commillees on trade established under section 306(cX2XA) of tlie Trade and Tariff" Act of 1984 (19 U.S.C. 2114c(2)(A)), consult with the States for the purpose of achieving conformity of State laws and practices with the Uruguay Round .Agreements.
(B) FEDER ŷ:̂ STATE CONSULTATION PROCESS.—The Trade Representative shall establish within the Office of the United States Trade Representative a FedeiiEd-State consultation process for addressing issues relating to the Uruguay Round Agreements that directiy relate to, or will
108 STAT. 4816 PUBLIC LAW 103-465—DEC. 8, 1994
potentially have a direct effect on, the States. The Federal- State consultation process shall include procedures under which—
(i) the States will be informed on a continuing basis of matters under the Uruguay Roimd Agreements that directiy relate to, or will potentially have a direct impact on, me States;
(ii) the States will be provided an opportunity to submit, on a continuing basis, to the Trade Representa- tive information and advice with respect to matters referred to in clause (i); and
(iii) the Trade Representative will take into account the information and advice received fix)m the States under clause (ii) when formulating United States positions regarding matters referred to in clause (i).
The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Federal-State consultation process estab- lished Dy this paragraph.
(C) FEDERAL-STATE COOPERATION IN WTO DISPUTE SETTLEMENT.—
(i) When a WTO member requests consultations with the United States under Article 4 of the Under- standing on Rules and Procediu^s Groveming the Settiement of Disputes referred to in section 10l(dXl6) (hereafter in this subsection referred to as the "Dispute Settiement Understanding^') concerning whether the law of a State is inconsistent with me obligations undertaken by the United States in any of the Uruguay Round Agreements, the Trade Representative shall notify the Governor of the State or the Governor's designee, and the chief legal officer of the jurisdiction whose law is the subject of the consultations, as soon as possible after tiie request is received, but in no event later than 7 days thereafter.
(ii) Not later than 30 days after receiving such a request for consultations, the Trade Representative shall consult with representatives of the State con- cerned regarding the matter. If the consultations involve the laws of a large number of States, the Trade Representative may consult with an appropriate group of representatives of the States concerned, as deter- minea by those States.
(iii) The Trade Representative shall make every effort to ensure that the State concerned is involved in the development of the position of the United States at each stage of the consultations and each subsequent stage of dispute settiement proceedings regarding the matter. In particular, the Trade Representative shall—
(I) notify the State concerned not later than 7 days after a WTO member requests the establish- ment oif a dispute settiement panel or gives notice of the WTO member's decision to appeal a report by a dispute settiement panel regarding the mat- ter, and
(II) provide the State concerned with the opportunity to advise and assist the Trade Rep-
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4817
resentative in the preparation of factual informa- tion and argumentation for any written or oral presentations by the United States in consultations or in proceedings of a panel or the Appellate Body regarding the matter. (iv) If a dispute settlement panel or the Appellate
Body finds that the law of a State is inconsistent with any of the Uruguay Round Agreements, the Trade Representative shall consult with the State concerned in Em. effort to develop a mutually agreeable response to the report of the panel or the Appellate Body and shall make every effort to ensure that the State con- cerned is involved in the development of the United States position regarding the response. (D) NOTICE TO STATES REGARDING CONSULTATIONS ON
FOREIGN SUBCENTRAL GOVERNMENT LAWS.— (i) Subject to clause (ii), the Trade Representative
shall, a t least 30 days before making a request for consultations under Article 4 of the Dispute Settlement Understanding regarding a snbcentral government measure of another WTO member, notify, and solicit the views of, appropriate representatives of each State regarding the matter.
(ii) In ejogent circumstcmces clause (i) shall not apply, in which case the Trade Representative shall no t i^ the appropriate representatives of each State not later than 3 days after making the request for consultations referred to in clause (i).
(2) LEGAL CHALLENGE.— (A) IN GENERAL.—^No State law, or the application of
such a State law, may be declared invalid as to any person or circumstance on the ground that the provision or applica- tion is inconsistent witn any of the Uruguay Round Agree- ments, except in an action brought by the United States for the purpose of declaring such law or application invalid.
(B) PROCEDURES GOVERNING ACTION.—In any action described in subparagraph (A) that is brought by the United States against a State or any subdivision thereof-
(i) a report of a dispute settlement panel or the Appellate Body convened under the Dispute Settlement Understanding regarding the State law, or the law of any political subdivision thereof, shall not be consid- ered £is binding or otherwise accorded deference;
(ii) the United States shall have the burden of proving that the law that is the subject of the action, or the application of that law, is inconsistent with the agreement in question;
(iii) any State whose interests may be impaired or impeded in the action shall have the unconditional right to intervene in the action as a party, Eind the United States shall be entitied to amend its complaint to include a claim or cross-claim concerning the law of a State that so intervenes; and
(iv) any State law that is declared invalid shall not be deemed to have been invalid in its application during any period before the courtfs judgment becomes
108 STAT. 4818 PUBLIC LAW 103-465—DEC. 8, 1994
final and all timely appeals, including discretionary review, of such judgment are exhausted. (C) REPORTS TO CONGRESSIONAL COMMITTEES.—^At least
30 days before the United States brings an action described in subparagraph (A), the TVade Representative shall pro- vide a report to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate—
(i) describing the proposed action; (ii) describing eiSbrts by the Trade Representative
to resolve the matter with the State concerned by other means; and
(iii) if the State law was the subject of consulta- tions under the Dispute Settlement Understanding, certifying that the Trade Representative has substan- tialty compHed with the requirements of paragraph (IXC) in connection with the matter.
Following the submission of the report, £ind before the action is brought, the Trade Representative shall consult with the committees referred to in the preceding sentence concerning the matter.
(3) DEFINITION OF STATE LAW.—^For purposes of this subsection—
(A) the term "State law" includes— (i) any law of a political subdivision of a State;
and (ii) any State law regulating or taxing the business
of insurance; and (B) the terms "dispute settlement panel" and "Appel-
late Body" have the meanings given those terms in section 121.
(c) EFFECT OF AGREEMENT WITH RESPECT TO PRIVATE REM- EDIES.—
(1) LIMITATIONS.—No person other than the United States—
(A) shall have any cause of action or defense under £Uiy of the Uruguay Roimd Agreements or by virtue of congressional approval of such an agreement, or
(B) may challenge, in any action brought under any provision of law, any action or inaction by any department, agency, or other instrumentality of the United States, any State, or any poUtical subdivision of a State on the ground that such action or inaction is inconsistent with such agreement (2) INTENT OF CONGRESS.—^It is the intention of the Con-
gress through paragraph (1) to occupy the field with respect to any cause of action or defense under or in connection with £iny of the Uruguay Round Agreements, including by precluding any person other tlmn the United States fi*om bringing any action against Einy State or pohtical subdivision thereof or raising any defense to the appUcation of State law under or in connection with any of the Uruguay Round Agreements—
(A) on the basis of a judgment obtained by the United States in an action brought under any such agreement; or
(B) on £my other basis.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4819
(d) STATEMENT OF .ADMINISTRATIVE ACTION.—The statement of administrative action approved by tbe Congress under section 101(a) shall be regarded as an authoritative expression by the United States concerning the interpretation and appHcation of the Uruguay Round Agreements and this Act in anv judicial proceeding in which a question arises concerning such interpretation or application.
SEC. 103. IMPLEMENTING ACTIONS IN ANTICIPATION OF ENTRY INTO 19 USC 3513. FORCE; REGULATIONS.
(a) IMPLEMENTING ACTIONS.—-After the date of the enactment of this Act—
(1) the President may proclaim such actions, and (2) other appropriate ofl&cers of the United States Govern-
ment may issue such regulations, as may be necessary to ensiu^ that any provision of this Act, or Eimendment made by this Act, that takes effect on the date any of the Uruguay Round Agreements enters into force with respect to the United States is appropriately implemented on such date. Such proclamation or regulation may not have an effective date earUer than the date of entry into force with respect to the United States of the agreement to which the proclamation or regula- tion relates.
(b) REGULATIONS.—^Any interim regulation necessary or appro- priate to carry out any action proposed in the statement of adminis- trative action approved under section 101(a) to implement an agreement described in section 101(d) (7), (12), or (13) shall be issued not later than 1 year after the date on which the agreement enters into force with respect to the United States.
Subtitle B—Tariff Modifications
SEC. IIL T A R I F F MODIFICATIONS. 19 USC 3521.
(a) IN GENERAL.—In addition to the authority provided by President, section 1102 of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 2902), the President shall have the authority to proclaim—
(1) such other modification of any duty, (2) such other staged rate reduction, or (3) such additional duties,
as the President determines to be necessary or appropriate to carry out Schedule XX.
(b) OTHER TARIFF MODIFICATIONS.—Subject to the consultation £ind layover requirements of section 115, the President may proclaim—
(1) the modification of any duty or staged rate reduction of any duty set forth in Schedule XX if—
(A) the United States agrees to such modification or staged rate reduction in a multilateral negotiation iinder the auspices of the WTO, and
(B) such modification or staged rate reduction appUes to the rate of duty on an article contained in a tariff category that was the subject of reciprocal duty elimination or harmonization negotiations during the Uruguay Round of multilateral trade negotiations, and
108 STAT. 4820 PUBLIC LAW 103-465—DEC. 8, 1994
President.
Federal Register, publication.
President.
(2) such modifications as are necessary to correct technical errors in Schedule XX or to make other rectifications to the Schedule. (c) AUTHORITY TO INCREASE DUTIES ON ARTICLES FROM CER-
TAIN COUNTRIES.— (1) IN GENERAL.—
(A) DETERMINATION WITH RESPECT TO CERTAIN COUN- TRIES.—Notwithstanding section 251 of the Trade Expan- sion Act of 1962 (19 U.S.C. 1881), after the entry into force of the WTO Agreement with respect to the United States, if the President—
(i) determines that a foreign country (other than a foreign country that is a WTO mecober country) is not according adequate trade benefits to the United States, including substantially equal competitive opportunities for the commerce of the United States, and
(ii) consults with the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate,
the President may proclaim an increase in the rate of duty with respect to any article of such country in accord- ance with subparagraph (B).
(B) RATE OF DUTY DESCRIBED.—The President may pro- claim a rate of duty on any article of a country identified under subparagrapn (A) that is equal to the greater of—
(i) the rate of duty set forth for sucn article in the base rate of dutj^ column of Schedule XX, or
(ii) the rate of duty set forth for such article in the bound rate of duty column of Schedule XX.
(2) TERMINATION OF INCREASED DUTIES.—-The President shall terminate any increase in the rate of duty proclaimed under this subsection by a proclamation which shall be effective on the earlier of—
(A) the date set out in such proclamation of termi- nation, or
(B) the date the WTO Agreement enters into force with respect to the foreign country with respect to which the determination under paragraph (1) was made. (3) PUBLICATION OF DETERMINATION AND TERMINATION.—
The President shall pubHsh in the Federal Register notice of a determination maae under paragraph (1) and a termination occurring by resison of paragrapn (2). (d) ADJUSTMENTS TO CERTAIN COLUMN 2 RATES OF DUTY.—
At such time as the President proclaims any modification to the HTS to implement the provisions of Schediue XX, the President shall also proclaim the rate of duty set forth in Column B as the column 2 rate of duty for the subheading of the HTS that corresponds to the subheading in Schedule XX listed in Column A.
Column A Column B
Schediile XX subheading;: Rate of duty for column 2 of the HTS:
020L10.50 3L1% 020L20.80 31.1% 0201.30.80 3L1%
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4821
0202.10.50 3L1% 0202.20.80 3L1% 0202.30.80 3L1% 040L30.25 90.8(!/liter 040L30.75 $L936/kg 0402.10.50 $L0ia/kg - 0402.21.25 $LOia/kg 0402.21.50 $L285/kg 0402.21.90 $L831/kg 0402.29.50 $L299/kg + 17.6% 0402.91.60 36.8(Z/kg 0402.99.50 68.40/kg 0402.99.90 64.5cykg + 17.5% 0403.10.50 $L217/kg + 20% 0403.90.16 90.8«!/Uter 0403.90.45 $1.03/kg 0403.90.55 $L285/kg 0403.90.65 $L83Lltg 0403.90.78 $ L 9 3 6 ^ 0403.90.95 $L217/kg + 20% 0404.10.11 20% 0404.10.15 $L217/kg + 10% 0404.10.90 $1.03/kg 0404.90.30 25% 0404.90.50 $L399/kg + 10% 0405.00.40 $L813/ke 0405.00.90 $2.194/kg + 10% 0406.10.08 $1.775/kg 0406.10.18 $2.67/kg 0406.10.28 $1.443/kg 0406.10.38 $1.241/kg 0406.10.48 $2.121/kg 0406.10.58 $2.525/kg 0406.10.68 $1.631/kg 0406.10.78 $1.328/kg 0406.10.88 $1.775/kg 0406.20.28 $2.67/kg 0406.20.33 $1.443/kg 0406.20.39 $1.241/kB 0406.20.48 $2.121/kg 0406.20.53 $2.625/ke 0406.20.63 $2.67/kg 0406.20.67 ;.. $1.443/kg 0406.20.71 $1.241/kg 0406.20.75 $ 2 , 1 2 1 ^ 0406.20.79 $2.525/kg 0406.20.83 $1.631/kg 0406.20.87 $1.328/kg 0406.20.91 $1.775/kg 0406.30.18 $2.67/kg 0406.30.28 $1.443/kg 0406.30.38 $1.241/kg 0406.30.48 $2.121/kg 0406.30.53 $1.631/kg 0406.30.63 $2.67/kg 0406.30.67 $1.443/kg 0406.30.71 $1.241/kg 0406.30.75 $2.121/kg
108 STAT. 4822 PUBLIC LAW 103-465—DEC. 8, 1994
0406.30.79 $2.525/kg 0406.30.83 $L631/kg 0406.30.87 $L32a/kg 0406.30.91 $L775/kg 0406.40.70 $2.67/kg 0406.90.12 $L443/kg 0406.90.18 $2.121/kg 0406.90.33 $2.525/kg 0406.90.38 $2.525/kg 0406.90.43 $2.525/kg 0406.90.48 $ 2 . 2 0 a ^ 0406.90.64 $L24iykg 0406.90.68 $2.525/ke 0406.90.74 $2.67/kg 0406.90.78 $L443/kg 0406.90.84 $1.24iykg 0406.90.88 $2.1211cg 0406.90.92 $L631/kg 0406.90.94 $L328/kg 0406.90.97 $L775/kg 1202.10.80 192.7% 1202.20.80 155% 1517.90.60 40.2(S/kg 1701.11.50 39.85«/kg 1701.12.10 6.68170<2/kg ICBB 0.0622005ci/kB for
each degree under 100 degrees (and fractionB of a degree in pro- portion) but not leeo than 5.031562(«/kg
170L12.50 42.05<i/kg 1701.91.10 6.58170<«/kg leae 0.0622005<j/kg for
each degree under 100 degrees (and fractions of a degree in pro- portion) but not less than 5.031562tf/kg
1701.91.30 42.05<2/kg 1701.91.48 39.9<«/kg + 6% 1701.91.58 39.9<«/kg + 6% 1701.99.10 6.5817O0acg less 0.0622005c!/kg for
each degree under 100 degrees (and fractions of a degree in pro- portion) but not less than 5.031562c!/kg
1701.99.50 42.05(«/kg 1702.20.28 19.9<i/kg of total sugars + 6% 1702.30.28 19.9<Z/kg of total sugars + 6% 1702.40.28 39.9<2/kg of total sugars + 6% 1702.60.28 39.9(£/kg of total sugars + 6% 1702.90.10 6.58170<!!/kg of total sugars 1702.90.20 42.O50Ttg 1702.90.58 39.9;j/kg of total stigars + 6% 1702.90.68 39.9c!/kg + 6% 1704.90.58 47.4<i/kg + 12.2% 1704.90.68 47.4«!/kg + 12.2% 1704.90.78 47.40/kg + 12.2% 1806.10.15 25.5c!/kg 1806.10.28 39.5«/kg 1806.10.38 39.5«!/kg
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4823
1806.10.55 39.50ltg 1806.10.75 39.5<J/kg 1806.20^6 43.6(t/ke + 5% 1806.20.28 62.1(t/kg + 5% 1806.20.36 43.8c!/kg + 5% 1806.20.38 62.10/kg + 5% 1806.20.73 35.9<J/kg + 10% 1806.20.77 35.9ci/kB + 10% 1806.20.82 43.80l£g + 10% 1806.20.83 62.1<S/kg + 10% 1806.20.87 43.8(J/kg + 10% 1806.20.89 62.1c!/kg + 10% 1806.20.92 43.8(i/kg + 10% 1806.20.93 62.1<«/kg + 109^ 1806.20.96 43.8<J/kB + 10% 1806.20.97 62.1<2/kg + 10% 1806.32.06 43.8(2/kg + 5% 1806.32.08 62.1<!/kg + 5% 1806.32.16 43.8<«/kg + 5% 1806.32.18 62.1«/kg + 5% 1806.32.70 43.8<«/kg + 7% 1806.32.80 62.1<!/kg + 7% 1806.90.08 43.8<2/kg + 7% 1806.90.10 62.1<J/kg + 7% 1806.90.18 43.80'kg + 7% 1806.90^0 62.1<J/kg + 7% 1806.90.28 43.8<S/kg + 7% 1806.90.30 62.1<«/kg + 7% 1806.90.38 43.8<J/kg + 7% 1806.90.40 62.1c!/kg + 7% 1806.90.48 43.8<!/kg + 7% 1806.90.50 62.l0Tcg + 7% 1806.90.58 43.8<J/kg + 7% 1806.90.60 62.1<!/kg + 7% 1901.10.30 $1.217/kg + 17.5% 190L 10.40 $1.217/kg + 17.5% 1901.10.75 $1.217/kg+ 17.5% 1901.10.85 $1.217/kg + 17.5% 1901.20.16 49.8c:/kg + 10% 1901.20.25 49.80/kg + 10% 1901.20.35 49.8c!/kg + 10% 1901.20.50 49.8(2/kg + 10% 1901.20.60 49.8c!/kg + 10% 1901.20.70 49.8tf/kg + 10% 1901.90.36 $1.328/kg 1901.90.42 25% 1901.90.44 $1.217/kg + 16% 1901.90.46 25% 190L90.48 $L217/kB + 16% 1901.90.54 27.90TtB + 10% 1901.90.58 27.9«!/kB + 10% 2008.11.15 155% 2008.11.35 155% 2008.11.60 155% 2101.10.38 35.9(£/kg + 10% 2101.10.48 35.9<J/kg + 10% 2101.10.58 35.9<S/kg + 10% 2101.20.38 35.9<f/ke + 10%
108 STAT. 4824 PUBLIC LAW 103-465—DEC. 8, 1994
210L20.48 35.9«;/kg + 10% 210L20.58 35.9(i/kg + 10% 2103.90.78 35.9ci/kg + 7.5% 2105.00.20 59c/kg + 20% 2105.00.40 59«J/kg + 20% 2106.90.02 $1.014/kg 2106.90.04 $2.348/kg 2106.90.08 $2.348^g 2106.90.11 6.58170(j/kB of total sugars 2106.90.12 42.05<2/kg 2106.90.34 82.8<2/kg + 10% 2106.90.38 82.8<2/kg + 10% 2106.90.44 82.8«!/kg + 10% 2106.90.48, 82.80/kg + 10% 2106.90.57 33.90Ttg + 10% 2106.90.67 33.9<2/kg + 10% 2106.90.77 33.9;!/kg + 10% 2106.90.87 33.9<S/kg + 10% 2202.90.28 27.6<i/liter + 17.5% 2309.90.28 94.6«ykg + 7.5% 2309.90.48 94.6<«/kg + 7.5% 240L10.70 85«!/kg 240L10.90 85<!/kg 2401.20.30 $1.21/kg 240L20.45 $1.15/kg 2401.20.55 $1.15/kg 2801.30.20 37% 2805.30.00 31.3% 2805.40.00 5.7% 2811.19.10 4.9% 2818.10.20 4.1% 2822.00.00 1.7% 2827.39.20 31.9% 2833.11.50 3.6% 2833.27.00 4.2% 2836.40.20 4.8% 2836.60.00 8.4% 2837.20.10 5.1% 2840.11.00 1.2% 2840.19.00 0.4% 2849.20.20 1.6% 2903.15.00 88% 2903.16.00 33.3% 2903.30.05 46.3% 2906.11.00 6.2% 2907.12.00 48.3% 2909.11.00 4% 2912.11.00 12.1% 2916.15.10 35.2% 2916.19.30 24.4% 2923.20.20 33.4% 3213.90.00 48.6% 3307.10.20 81.7% 3307.49.00 73.2% 3403.11.20 0.4% 3403.19.10 0.4% 3506.10.10 30.4% 3603.00.30 8.3%
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4825
3603.00.90 0.3% 3604.10.00 12.5% 3606.90.30 56.7% 3706.10.30 7% 3807.00.00 0.2% 3823.90.33 26.3% 3904.61.00 34.1% 3916.90.10 40.6% 3920.51.50 48.2% 3920.59.80 5L7% 3926.90.65 8.4% 5201.00.18 36.9<i/kg 5201.00.28 36.9«!/kg , 5201.00.38 36.9(«/kg 5201.00.80 36.9it/ks 5202.99.30 9.2c!/kg 5203.00.30 36.9c!/kg
(e) AUTHORITY TO CONSOUDATE SUBHEADINGS AND MODIFY COLUMN 2 RATES OF DUTY FOR TARIFF SIMPLIFICATION PURPOSES.—
(1) IN GENERAL.—^^^^enever the HTS column 1 general rates of duty for 2 or more 8-digit subheadings are at the same level and such subheadings are subordinate to a provision required by the Int<}mational Convention on the Harmonized Commodity Description and Coding System, the President may proclaim, subject to the consultation and layover requirements of section 115, that the goods described in such siibheadings be provided for in a single 8-digit subheading of the HTS, and that—
(A) the HTS column 1 general rate of duty for such single subheading be the column 1 general rate of duty common to all such subheadings, and
(B) the HTS column 2 rate of duty for such single subheading be the highest column 2 rate of duty for such subheadings that is in effect on the day before the effective date of sucn proclamation. (2) SAME LEVEL OF DUTY.—^The provisions of this subsection
apply to subheadings described in paragraph (1) that have the same column 1 general rate of duty—
(A) on the date of the enactment of this Act, or (B) after such date of enactment as a result of a staged
reduction in such column 1 rates of duty. SEC. 112. IMPLEMENTATION OF SCHEDULE XX PROVISIONS ON SHIP
REPAIRS.
(a) IN GENERAL.—Section 484E0b) of the Customs and Trade Act of 1990 (19 U.S.C. 1466 note; 104 S t a t 710) is amended—
(1) by striking "and" at the end of paragraph (1); (2) b)^ striking the period at the end of paragraph (2)
and inserting **, and"; and (3) by adding at the end the following new paragraph: "(3) any entry made pursuant to section 466(h) (1) or (2)
of the Tariff Act of 1930 (19 U.S.C. 1466(h) (1) or (2)), on or after the date of the entry into force of the WTO Agreement with respect to the United States.". (b) EXEMPTION FOR CERTAIN SPARE PARTS.—Section 466(h) of
the Tariff Act of 1930 (19 U.S.C. 1466(h)) is amended— (1) by striking "or^ at the end of paragraph (1);
79-194 0—95—9 : QL 3 Part 6
108 STAT. 4826 PUBLIC LAW 103-465—DEC. 8, 1994
(2) by striking the period at the end of paragraph (2) and inserting ", or^; and
(3) by adding at the end the following new paragraph: "(3) the cost of spare psirts necessarily installed before
the first entry into the United States, but only if duty is paid under appropriate commodity classifications of the Har- monized Tariff Scnedule of the United States upon first entry into the United States of each such spare part purchased in, or imported from, a foreign country.".
19 use 3522. SEC. 113. LIQUIDATION OR RELIQUIDATION AND REFUND OF DUTY PAID ON CERTAIN ENTRIES.
(a) LIQUIDATION OR RELIQUIDATION.—^Notwithstanding section 514 of the Tariff Act of 1930 (19 U.S.C. 1514) or any other provision of law, and subject to subsection (b), the Secretary of the Treasiiry shall Hquidate or reUquidate the entries Hsted or otherwise described in subsection (c) and refiind any duty or excess duty that was paid, as provided in subsection (c).
(b) REQUESTS.—Liquidation or reUquidation may be made under subsection (a) with respect to an entry only if a request therefor is filed with the Customs Service, within 180 days after the date on which the WTO Agreement enters into force with respect to the United States, that contains sufficient information to enable the Customs Service—
(1) to locate the entry; or (2) to reconstruct the entry if it cannot be located.
(c) ENTRIES.—The entries referred to in subsection (a) are as follows:
(1) AGGLOMERATED STONE TILES.—^Any goods— (A) for which the importer claimed or would have
claimed entry under subheading 6810.19.12 of the HTS on or after October 1, 1990, and before the effective date of a proclamation issued by the President under section 103(a) of this Act with respect to items imder such sub- heading in order to carry out Schedule XX, or
(B) entered on or after January 1, 1989, and before October 1, 1990, for which entry would have been claimed under subheading 6810.19.12 of the HTS on or after Octo- ber 1, 1990,
shall be liquidated or reUquidated as if the wording of that subheading were "Of stone agglomerated with binders other than cement", and the Secretary of the Treasury shall reftind any excess duties paid with respect to such entries.
(2) CLOMIPHENE CITRATE.— (A) Any entry, or withdrawal fix»m warehouse for
consumption, of goods described in heading 9902.29.95 of the HTS (relating to clomiphene citrate) which was made after December 31, 1988, and before January 1, 1993, and with respect to which there would have been no duty if the reference to subheading "2922.19.15" in such heading were a reference to subheading "2922.19.15 or any sub- heading of chapter 30" at the time of such entry or with- drawal, shall be Uquidated or reUquidated as fi*ee of duty.
(B) The Secretary of the Treasury shall refiind any duties paid with respect to entries described in subpara- graph (A).
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4827
SEC. 114. MODIFICATIONS TO THE HTS.
(a) WOOL.— (1) AMENDMENTS.—Chapter 51 of the HTS is amended—
(A) by striidng subheading 5101.21.60 and inserting the following new superior text and subheadings, with the superior text having the sEime degree of indentation as the artide description in subheading 5101.11.60:
6101^1.65
5101^1.70
Othen Unimproved wool; other wool!, not finer than 468
Other
Free
7.7«/ kg*6.25%
Fre«(MX) 0.8</kg+0.6% (IL) 3</ kg+2.5% (CA)
81.6t/ kg-f20% 81.6*/ kg*20%
(B) by striking subheading 5101.29.60 and inserting the following new superior text and subheadings, with the superior tesct having the same degree of indentation as the article description in subheading 5102.10.20:
610129.65
6101J29.70
Othen Unimproved wool; other wool, not finer than 46a
Other
Free
7.7*/ kg-t-6.25%
0.8f/kg-f0.6% (IL) St/ kg+2.5% (CA) 6.1(/kg+6% (MX)
81.6*/ kg-t-20% 81.6t/ kg-t-20%
and (C) by striking subheading 5101.30.60 and inserting
the following new superior text and subheadings, with the superior text having the same degree of indentation as the superior text immediately preceding subheading 5102.10.20:
5101.30.66
5101.30.70
Other Unimproved wool; other wool, not finer than 468
Other
Free
l.ltl kg-f6.25%
81.6*/ kg-t-20% 81.6</ kg-i-20%
Free (MX) 0.8</kg-i-0.6% (IL) Ztl kg-t-2.5% (CA)
(2) EFFECTIVE DATE.—^The amendments made by this sub- section take effect on the effective date of the proclamation issued by the President imder section 103(a) to carry out Sched- ule XX. (b) DUTY FREE TREATMENT FOR OCTADECYL ISOCYANATE AND
5-CHLORO-2-(2,4-DICHLORO-PHENOXY)PHENOL.—The President—
(1) shall proclaim duty-fi^e entry for octadecyl isocyanate and 5-Chloro-2-(2,4-dichloro-pheno3cy)phenol, to be effective on the effective date of the proclamation issued by the President under section 103(a) to carry out Schedule XX, and
19 use 3523.
108 STAT. 4828 PUBLIC LAW 103-465—DEC. 8, 1994
(2) shall take such actions as are necessary to reflect such tariff treatment in Schedule XX.
19 u s e 3524. SEC. 115. CONSULTATION AND LAYOVER REQUIREMENTS FOR, AND EFFECTIVE DATE OF, PROCLAIMED ACTIONS.
If a provision of this Act provides that the implementation of an action by the President by proclamation is subject to the consultation and layover requirements of this section, such action may be proclaimed onlv if—
(1) the President has obtained advice regarding the pro- posed action from—
(A) the appropriate advisory committees established under section 135 of the Trade Act of 1974 (19 U.S.C. 2155), and
(B) the International Trade Commission; President. (2) the President has submitted a report to the Conmiittee Reports. ^j^ Ways and Means of the House of Representatives and the
Committee on Finance of the Senate that sets forth— (A) the action proposed to be proclaimed and the rea-
sons for such actions, and (B) the advice obtained under paragraph (1);
(3) a period of 60 calendar days, beginning with the first day on wmch the President has met the requirements of para- graphs (1) and (2) with respect to such action, has expired; and
(4) the President has consulted with such conmiittees regarding the proposed action during the period referred to in paragraph (3).
19 u s e 3521 SEC. 116. EFFECTIVE DATE.
(a) IN GENERAL.—^Except as provided in section 114(a) £ind subsection (b) of this section, this subtitie and the amendments made by this subtitie take effect on the date on which the WTO Agreement enters into force with respect to the United States.
(b) SECTION 115.—Section 115 takes effect on the date of the enactment of this Act
Subtitle C—^Uruguay Round Implementation and Dispute Settlement
19 u s e 3531. SEC. 121. DEFINITIONS.
For purposes of this subtitie: (1) ADMINISTERING AUTHORITY.—^The term "administering
authority" has the meaning given that term in section 771(1) of the Tariff Act of 1930.
(2) APPELLATE BODY.—^The term "Appellate Body" means the Appellate Body estabUshed under Article 17.1 of the Dispute Settlement Understanding.
(3) A P P R O piUATE CONGRESSIONAL COMMITTEES; CONGRES- SIONAL COMMITTEES.—
(A) APPROPRIATE CONGRESSIONAL COMMITTEES.—^The term "appropriate congressional committees" means the committees referred to in subparagraph (B) and any other committees of the Congress that have jurisdiction involving the matter with respect to which consultations are to be held.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4829
(B) CONGRESSIONAL COMMITTEES.—The term "congres- sional committees" means the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate. (4) DISPUTE SETTLEMENT PANEL; PANEL.—^The terms "dis-
pute settlement panel" and "panel" mean a panel established pursuant to Article 6 of the Dispute Settlement Understanding.
(5) DISPUTE SETTLEMENT BODY.—The term "Dispute Settle- ment Body" means the Dispute Settlement Body administering the rules and procedures set forth in the Dispute Settlement Understanding.
(6) DISPUTE SETTLEMENT UNDERSTANDING.—^The term "Dis- pute Settlement Understanding" means the Understanding on JRules and Procedures Groverning the Settlement of Disputes referred to in section 101(d)(16).
(7) GENERAL COUNCIL.—The term "General Council" means the General Council established under paragraph 2 of Article IV of the WTO Agreement.
(8) MINISTERIAL CONFERENCE.—^The term "Ministerial Con- ference" means the Ministerial Conference established under paragraph 1 of Article IV of the WTO Agreement.
(9) OTHER TERMS.—The terms "Antidumping Agreement", "Agreement on Subsidies and Countervailing Measures", and "Safeguards Agreement" mean the agreements referred to in section 101(d) (7), (12), and (13), respectively.
SEC. 122. IMPLEMENTATION OF URUGUAY ROUND AGREEMENTS. 19 USC 3532.
(a) DECISIONMAKING.—In the implementation of the Uruguay Round Agreements and the functioning of the World Trade Organization, it is the objective of the United States to ensure that the Ministerial Conference and the General Council continue the practice of decisionmaking by consensus followed under the GATT 1947, as required by paragraph 1 of article DC of the WTO Agreement.
(b) CONSULTATIONS WITH CONGRESSIONAL COMMITTEES.—In furtherance of the objective set forth in subsection (a), the Trade Representative shall consult with the appropriate congressional committees before any vote is taken by the Ministerial Conference or the General Council relating to—
(1) the adoption of an interpretation of the WTO Agreement or another multilateral trade agreement,
(2) the amendment of any such agreement, (3) the granting of a waiver of any obligation under any
such agreement, (4) the adoption of any amendment to the rules or proce-
dures of the Ministerial Conference or the General Council, (5) the accession of a state or separate customs territory
to the WTO Agreement, or (6) the adoption of any other decision,
if the action described in paragraph (1), (2), (3), (4), (5), or (6) would substantially affect the rights or obligations of the United States under the WTO Agreement or another multilateral trade agreement or potentially entails a change in Federal or State law.
(c) REPORT ON DECISIONS.— (1) IN GENERAL.—Not later than 30 days after the end
of any calendar year in which the Ministerial Conference or the General Council adopts by vote any decision to take any
108 STAT. 4830 PUBLIC LAW 103-465—DEC. 8, 1994
action described in paragraph (1), (2), (4), or (6) of subsection (b), the Trade Representative shall submit a report to the appropriate congressional committees describing—
(A) the nature of the decision; (B) the efforts made by the United States to have
the matter decided by consensus pursuant to paragraph 1 of article IX of the WTO Agreement, and the results of those efforts;
(C) which coimtries voted for, and which countries voted against, the decision;
(D) the rights or obUgations of the United States affected by the decision and any Federal or State law that would be amended or repealed, if the President after consultation with the Congress determined that such amendment or repesd was an appropriate response; and
(E) the action the President intends to take in response to the decision or, if the President does not intend to take any action, the reasons therefor. (2) ADDITIONAL REPORTING REQUIREMENTS.—
(A) GRANT OF WAIVER.—In the case of a decision to grant a waiver described in subsection (b)(3), the report under paragraph (1) shall describe the terms and conditions of the waiver and the rights and obUgations of the United States that are affected by the waiver.
(B) ACCESSION.—In the case of a decision on accession described in subsection (b)(5), the report under paragraph (1) shall state whether the United States intends to invoice Article XIII of the WTO Agreement
(d) CONSULTATION ON REPORT.—Promptly after the submission of a report under subsection (c), the Trade Representative shall consult with the appropriate congressional committees with respect to the report.
19 use 3533. SEC. 123. DISPUTE SETTLEMENT PANELS AND PROCEDURES.
(a) REVIEW BY PRESIDENT.—The President shall review annually the WTO pEuiel roster and shall include the panel roster and the list of persons serving on the Appellate Body in the annual report submitted by the President under section 163(a) of the Trade Act of 1974.
(b) QUALIFICATIONS OF APPOINTEES TO PANELS.—^The Trade Representative shall—
(1) seek to ensure that persons appointed to the WTO panel roster are well-qualified, £uid that the roster includes persons with esroertise in the subject areas covered by the Uruguay Round Agreements; and
(2) inform the President of persons nominated to the roster by other WTO member countries. (c) RULES GOVERNING CONFUCTS OF INTEREST.—The Trade
Representative shall seek the estabHshment by the General Council and the Dispute Settlement Body of rules governing conflicts of interest by persons serving on panels and members of the Appellate Body and shall describe, in the annual report submitted under section 124, any progress made in establishing such rules.
(d) NOTIFICATION OF DISPUTES.—Promptly after a dispute settlement panel is established to consider the consistency of Fed- eral or State law with any of the Uruguay Round Agreements,
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4831
the Trade Representative shall notify the appropriate congressional committees of—
(1) the nature of the dispute, including the matters set forth in the request for the establishment of the panel, the legal basis of me complaint, and the specific measures, in particular any State or Federal law cited in the request for estabHshment of the panel;
(2) the identity of the persons serving on the panel; and (3) whether there was any departure from tne nile of
consensus with respect to the selection of persons to serve on the panel. (e) NOTICE OF APPE,\LS OF PANEL REPORTS.—If an appeal is
taken of a report of a panel in a proceeding described in subsection (d), the Trade Representative shall, promptly after the notice of appeal is filed, notify the appropriate congressional committees of—
(1) the issues under appeal; and (2) the identity of the persons serving on the Appellate
Body who are reviewing the report of the panel. (f) ACTIONS UPON CIRCULATION OF REPORTS.—Promptly after
the circulation of a report of a panel or of the Appellate Body to WTO members in a proceeding described in subsection (d), the Trade Representative shall—
(1) notify the appropriate congressional committees of the report;
(2) in the case of a report of a panel, consult with the appropriate congressional committees concerning the nature of £iny appeal that may be taken of the report; and
(3) ii the report is adverse to the United States, consult with the appropriate congressional committees .concerning whether to implement the report's recommendation and, if so, the manner of such implementation and the period of time needed for such implementation. (g) REQUIREMENTS FOR AGENCY ACTION.—
(1) CHANGES IN AGENCY REGULATIONS OR PRACTICE.—In any case in which a dispute settlement panel or the Appellate Body finds in its report that a regulation or practice of a department or agency of the United States is inconsistent with any of the Uruguay Round Agreements, that regulation or practice may not be amended, rescinded, or otherwise modified in the implementation of such report unless and imtil—
(A) the appropriate congressional committees have been consulted imder subsection (f);
(B) the Trade Representative has sought advice regard- ing the modification fix)m relevsmt private sector advisory committees established under section 135 of the Trade Act of 1974 (19 US.C. 2155);
(C) the head of the relevant department or agency Federal has provided an opportunity for pubUc comment by pubUsh- ^̂ u|̂ *^5- ing in the Federal Register the proposed modification and ^" the explanation for the modification;
(D) the Trade Representative has submitted to the appropriate cong:ressional committees a report describing the proposed modification, the reasons for the modification, and a sunmiary of the advice obtained under subparagraph (B) with respect to the modification;
108 STAT. 4832 PUBLIC LAW 103-465—DEC. 8, 1994
(E) the Trade Representative and the head of the rel- evant department or agency have consulted with the appro- priate congressional committees on the proposed contents of the finafmle or other modification; and
^®'*?*?* (F) the final rule or other modification has been pub- pubifcation ^shed in the Federal Register.
(2) EFFECTIVE DATE OF MODIFICATION.—A final rule or other modification to which paragraph (1) appHes may not go into efiect before the end of the 60-day period beginnii^ on the date on which consultations under paragraph (1)(E) begin, imless the President determines that £in earher effective date is in the national interest
(3) VOTE BY CONGRESSIONAL COMMITTEES.—During the 60- day period described in paragraph (2), the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate may vote to indicate the agreement or disagreement of the committee with the proposed contents of the final rule or other modification. Any such vote shall not be binding on the department or agency which is implementing the rule or other modification.
(4) INAPPLICABILITY TO ITC.—This subsection does not apply to any regulation or practice of the International Trade Commission- (h) CONSULTATIONS REGARDING REVIEW OF WTO RULES AND
PROCEDURES.—Before the review is conducted of the dispute settle- ment rules and procedures of the WTO that is provided for in the Decision on the AppUcation of the Understanding on Rules and Procedures Governing the Settlement of Disputes, as such decision is set forth in the Ministerial Declarations and Decisions adopted on April 15, 1994, together with the Uruguay Roimd Agree- ments, the Trade Representative shall consult wim the congres- sional committees regarding the poHcy of the United States concerning the review.
19 u s e 3534. SEC. 124. ANNUAL REPORT ON THE WTO.
Not later than March 1 of each year beginning in 1996, the Trade Representative shall submit to the Congress a report describ- ing, for the preceding fiscal year of the WTO—
(1) the major activities and work programs of the WTO, including the functions and activities oi the committees estab- lished under article IV of the WTO Agreement, and the expendi- tures made by the WTO in connection with those activities and programs;
(2) the percentage of budgetary assessments by the WTO that were accounted for by each WTO member country, includ- ing the United States;
(3) the total number of personnel employed or retained by the Secretariat of the WTO, and the number of professional, administrative, and support staff of the WTO;
(4) for each personnel category described in paragraph (3), the number of citizens of each country, and the average salary of the personnel, in that category;
(5) each report issued by a panel or the Appellate Body in a dispute settlement proceeding regarding Federal or State law, and any efforts by the Trade Representative to provide for implementation of the recommendations contained in a report that is adverse to the United States;
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4833
(6) each proceeding before a panel or the Appellate Body that was initiated during that fiscal year regarding Federal or State law, the status of the proceeding, and the matter at issue;
(7) the status of consultations with any State whose law was the subject of a report adverse to the United States that was issued by a panel or the Appellate Body; and
(8) any progress achieved in increasing the transparency of proceedings of tiie Ministerial Conference and the General Council, and of dispute settiement proceedings conducted pursu- ant to the Dispute Settiement Understanding.
SEC. 125. REVIEW OF PARTICIPATION IN THE WTO. 19 USC 3535.
(a) REPORT ON THE OPERATION OF THE WTO.—The first annual report submitted to the Congress imder section 124—
(1) after the end of the 5-year period beginning on the date on which the WTO Agreement enters into force with respect to the United States, and
(2) after the end of everv 5-year period thereafter, shall include an analysis of tne effects of the WTO Agreement on the interests of the United States, the costs and benefits to the United States of its participation in the WTO, and the value of the continued participation of the United States in the WTO.
(b) CONGRESSIONAL DISAPPROVAL OF U.S. PARTICIPATION IN THE WTO.—
(1) GENERAL RULE.—^The approval of the Congress, provided under section 101(a), of the WTO Agreement shall cease to be effective if, and only if, a joint resolution described in sub- section (c) is enacted into law pursuant to the provisions of paragraph (2).
(2) PROCEDURAL, PROVISIONS.—(A) The reqiiirements of this paragraph are met if the joint resolution is enacted under subsection (c), and—
(i) the Congress adopts and transmits the joint resolu- tion to the President before the end of the 90-day period (excluding any day described in section 154(b) of the Trade Act of 1974), beginning on the date on which the Congress receives a report referred to in subsection (a), and
(ii) if the President vetoes the joint resolution, each House of Congress votes to override that veto on or before the later of the last day of the 90-day period referred to in clause (i) or the last day of the 15-day period (exclud- ing any day described in section 154(b) of the Trade Act of 1974) beginning on the date on which the Congress receives the veto messagefi*omthe President (B) A joint resolution to which this section appUes may
be introduced at any time on or after the date on which the President transmits to the Congress a report described in sub- section (a), and before the end of the 90-day period referred to in subparagraph (A). (c) JOINT RESOLUTIONS.—
(1) JOINT RESOLUTIONS.—For purposes of this section, the term "joint resolution" means only a joint resolution of the 2 Houses of Congress, the matter after the resolving clause of which is as follows: T h a t the Congress withdraws its approval, provided under section 101(a) of the Uruguay Round
108 STAT. 4834 PUBLIC LAW 103-465—DEC. 8, 1994
Agreements Act, of the WTO Agreement as defined in section 2(9) of that Act".
(2) PROCEDURES.—(A) Joint resolutions may be introduced in either House of the Congress by any member of such House.
(B) Subject to the provisions of this subsection, the provi- sions of subsections (b), (d), (e), and (f) of section 152 of the Trade Act of 1974 (19 U.S.C. 2192(b), (d), (e), and (f)) apply to joint resolutions to the same extent as such provisions apply to resolutions under such section.
(C) If the committee of either House to which a joint resolution has been referred has not reported it by the close of the 45th day after its introduction (excluding any dav described in section 154(b) of the Trade Act of 1974), sucn conmiittee shall be automatically discharged fix)m fiirtiier consideration of the joint resolution smd it shall be placed on the appropriate calendar.
(D) It is not in order for— (i) the Senate to consider any joint resolution unless
it has been reported by the Committee on Finance or the committee nas been dischsirged under subparagraph (C); or
(u) the House of Representatives to consider any joint resolution unless it has been reported by the Committee on Ways and Means or the conmiittee has been discharged under subparagraph (C). (E) A motion in the House of Representatives to proceed
to the consideration of a joint resolution may only be made on the second legislative day after the calendar day on which the Member m£iKing the motion announces to the House his or her intention to do so.
(3) CONSIDERATION OF SECOND RESOLUTION NOT IN ORDER.—It shall not be in order in either the House of Rep- resentatives or the Senate to consider a joint resolution (other than a pint resolution received fix>m the other House), if that House nas previously adopted a joint resolution under this section. (d) RULES OF HOUSE OF REPRESENTATIVES AND SENATE.—^This
section is enacted by the Congress— (1) as an exercise of the rulemaking power of the House
of Representatives and the Senate, respectively, and as such is deemed a part of the rules of each House, respectively, and such procedures supersede other rules only to the extent that they are inconsistent with such other rules; and
(2) with the fiiU recognition of the constitutional right of either House to change the rules (so far as relating to the procedm^s of that House) at any time, in the same manner, and to the same extent as any other rule of that House.
19 use 3536. SEC. 126. INCREASED TRANSPARENCY.
The Trade Representative shall seek the adoption by the Min- isterial Conference and General Council of procedures that will ensure broader appUcation of the principle of transparency and clarification of the costs and benefits of trade policy actions, tlirough the observance of open and equitable procedures in trade matters by the Ministerial Conference and the (Jeneral Coimcil, and by the dispute settlement panels and the Appellate Body under the Dispute Settlement Understanding.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4835
SEC. 127. ACCESS TO THE WTO DISPUTE SETTLEMENT PROCESS. 19 USC 3537.
(a) IN GENERAL.—^Whenever the United States is a party before a dispute settlement panel established pursuant to Article 6 of the Dispute Settlement Understanding, the Trade Representative shall, at each stage of the proceeding before the panel or the Appellate Body, consult with the appropriate congressional commit- tees, the petitioner (if any) tmder section 302(a) of the Trade Act of 1974 (19 U.S.C. 2412) with respect to the matter that is the subject of the proceeding, and relevant private sector advisory committees estabUshed under section 135 of the Trade Act of 1974 (19 U.S.C. 2155), and shall consider the views of representatives of appropriate interested private sector and nongovernmental organizations concerning the matter.
(b) NOTICE AND PUBUC COMMENT.—In any proceeding described in subsection (a), the Trade Representative shall—
(1) promptiy after requesting the estabHshment of a panel. Federal or receiving a request from another WTO member coimtry pufucation for the establishment of a panel, publish a notice in the Federal Register—
(A) identiJ^'ing the initial parties to the dispute, (B) setting fortii the major issues raised by the country
requesting the establishment of a panel and the legal basis of the complaint,
(C) identifying the specific measures, including any State or Federal law cited in the request for establishment of the panel, and
(D) seeking written comments from the pubUc concern- ing the issues raised in the dispute; and (2) take into account £my advice received from appropriate
congressional committees and relevant private sector advisory committees referred to in subsection (a), and written conunents received pursuant to paragraph (1)(D), in preparing United States submissions to the panel or tlie Appellate Body. (c) ACCESS TO DOCUMENTS.—In each proceeding described in
subsection (a), the Trade Representative shall— (1) make written siibmissions by the United States referred
to in subsection (b) available to the public promptiy after they are submitted to the panel or Appellate Body, except that the Trade Representative is authorized to withhold from disclo- sure any information contained in such submissions identified by the provider of the information as proprietary information or information treated as confidential by a foreign government;
(2) request each other party to the dispute to permit the Trade Representetive to make that party's written submissions to the panel or the Appellate Body available to the pubUc; and
(3) make each report of the panel or the Appellate Body available to the pubUc promptiy after it is circulated to WTO members, and iniona the public of such availability. (d) REQUESTS FOR NONCONFIDENTL\L SUMMARIES.—In any dis-
§ute settiement proceeding conducted pursuant to the Disputeettiement Understanding, the Trade Representative shall request each party to the dispute to provide nonconfidential summaries of its written submissions, if that party has not made its written submissions pubhc, and shall make those summaries available to the pubUc promptiy after receiving them.
108 STAT. 4836 PUBLIC LAW 103-465—DEC. 8, 1994
Reports. (e) PuBUC FiLE.—The Trade Representative shall maintain a file accessible to thepubUc on each dispute settlement proceeding to which the United States is a party tjiat is conducted pursuant to the Dispute Settlement Understanding. The file shall include all United States submissions in the proceeding and a listing of any submissions to the Trade Representative fix)m the pubUc witii respect to the proceeding, as well as the report of the dispute settlement panel and the report of the Appellate Body.
(f) CONFORMING AMENDMENT.—Section 135(a)(1)(B) of the Trade Act of 1974 (19 U.S.C. 2155(a)(1)(B)) is amended to read as foUows:
"(B) the operation of any trade agreement once entered into, including preparation for dispute settlement panel proceedings to which the United States is a party; and".
SEC. 128. ADVISORY COMMITTEE PARTICIPATION.
Section 135(b)(1) of the Trade Act of 1974 (19 U.S.C. 2155(b)(1)) is amended by inserting "nongovernmental environmental and con- servation organizations, after "retailers,".
19 use 3538. SEC. 129. ADMINISTRATIVE ACTION FOLLOWING WTO PANEL REPORTS.
(a) ACTION BY UNITED STATES INTERNATIONAL TRADE COMMISSION.—
(1) ADVISORY REPORT.—If a dispute settlement panel finds in an interim report under Article 15 of the Dispute Settiement Understanding, or the Appellate Body finds in a report under Article 17 of that Understanding, that an action by the Inter- national Trade Commission in connection witii a particular proceeding is not in conformity with the obUgations of the United States under the Antidfumping Agreement, the Safe- guards Agreement, or the Agreement on Subsidies and Counter- vsdUng Measures, the Traoe Representative may request the Commission to issue an advisory report on whether titie VII of the Tariff Act of 1930 or titie II of the Trade Act of 1974, as the case may be, permits the Conmiission to take steps in connection with the particular proceeding that would render its action not inconsistent witii the findings of the panel or the Appellate Body concerning those obUgations. The Trade Representative shall notify the congressional committees of such request
(2) TIME LIMITS FOR REPORT.—The Conunission shall transmit its report under paragraph (1) to the Trade Repre- sentative—
(A) in the case of an interim report described in para- graph (1), within 30 calendar days after the Trade Rep- resentative requests the report; and
(B) in the case of a report of the Appellate Body, within 21 calendar days after the Trade Representative requests the report. (3) CONSULTATIONS ON REQUEST FOR COMMISSION DETER-
MINATION.—If a majority of the Commissioners issues an affirmative report under paragraph (1), the Trade Representa- tive shall consult with the congressional committees concerning the matter.
(4) COMMISSION DETERMINATION.—Notwithstanding any provision of the Tariff Act of 1930 or titie II of the Trade Act of 1974, if a majority of the Commissioners issues an affirmative report imder paragraph (1), the Commission, upon
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4837
the written request of the Trade Representative, shall issue a determination in connection with the particular proceeding that would render the Commission's action described in para- graph (1) not inconsistent with the findings of the panel or Appellate Body. The Commission shall issue its determination not later than 120 days after the request from the Trade Representative is made.
(5) CONSULTATIONS ON IMPLEMENTATION OF COMMISSION DETERMINATION.—The Trade Representative shall consult with the congressional committees before the Commission's deter- mination under paragraph (4) is implemented.
(6) REVOCATION OF ORDER.—If, by virtue of the Commis- sion's determination under paragraph (4), an antidumping or countervailing duty order with respect to some or all of the imports that are subject to the action of the Commission ^ described in paragraph (1) is no longer supported by an affirma- tive Commission determination under title VII of the Tariff Act of 1930 or this subsection, the Trade Representative may, after consulting with the congressional committees under para- graph (5), direct the administering authority to revoke the antidumping or countervailing duty order in whole or in part.
(7) MODIFICATION OF ACTION UNDER TITLE II OF TRADE ACT OF 1974.—Section 204(b) of the Trade Act of 1974 (19 U.S.C. 2254(b)) is amended by adding at the end the following new paragraph:
"(3) Notwithstanding paragraph (1), the President may, after receipt of a Commission determination under section 129(a)(4) of the Uruguay Round Agreements Act and consulting with the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, reduce, modify, or terminate action taken under section 203.". (b) ACTION BY ADMINISTERING AUTHORITY.—
(1) CONSULTATIONS WITH ADMINISTERING AUTHORITY AND CONGRESSIONAL COMMITTEES.—Promptly after a report by a Reports, dispute settlement panel or the Appellate Body is issued that contains findings that an action by the administering authority in a proceeding under title VII of the Tariff Act of 1930 is not in conformity with the obligations of the United States under the Antidumping Agreement or the Agreement on Sub- sidies and Countervailing Measures, the Trade Representative shall consult with the administering authority and the congres- sional committees on the matter.
(2) DETERMINATION BY ADMINISTERING AUTHORITY.—Not- withstanding any provision of the Tariff Act of 1930, the admin- istering authority shall, within 180 days after receipt of a written request from the Trade Representative, issue a deter- mination in connection with the particular proceeding that would render the administering authority's action described in paragraph (1) not inconsistent with the findings of the panel or the Appellate Body,
(3) CONSULTATIONS BEFORE IMPLEMENTATION.—Before the administering authority implements any determination under paragraph (2), the Trade Representative shall consult with the administering authority and the congressional committees with respect to such determination.
(4) IMPLEMENTATION OF DETERMINATION.—The Trade Rep- resentative may, after consulting with the administering
108 STAT. 4838 PUBLIC LAW 103-465—DEC. 8, 1994
authority and the congressional committees under paragraph (3), direct the administering authority to implement, in whole or in part, the determination made imder paragraph (2). (c) EFFECTS OF DETERMINATIONS; NOTICE OF
IMPLEMENTATION.— (1) EFFECTS OF DETERMINATIONS.—^Determinations concern-
ing title VII of the Tariff Act of 1930 that are implemented imder this section shall apply with respect to unliquidated entries of the suhject merchandise (as defined in section 771 of that Act) that are entered, or withdrawn from warehouse, for consumption on or after—
(A) in the case of a determination by the Conmiission under subsection (a)(4), the date on which the Trade Rep- resentative directs the administering authority under sub- section (a)(6) to revoke an order pursuant to that determination, and
(B) in the case of a determination by the administering authority under subsection (b)(2), the date on which the Trade Representative directs the administering authority under subsection Q))(4) to implement that determination.
Federal (2) NOTICE OF IMPLEMENTATION.— publication ^^^ '̂ ^® administering authority shall pubUsh in the
Federal Register notice of the implementation of any deter- mination made under this section with respect to title VII of the Tariff Act of 1930.
(B) The Trade Representative shall pubhsh in the Fed- eral Register notice of the implementation of any deter- mination made under this section with respect to title II of the Trade Act of 1974.
(d) OPPORTUNITY FOR COMMENT BY INTERESTED PARTIES.—Prior to issuing a determination under this section, the administering authority or the Commission, as the case may be, shall provide interested parties with an opportunity to submit written comments and, in appropriate cases, may hold a hearing, with respect to the determination.
(e) JUDICIAL OR BINATIONAL PANEL REVIEW.— (1) REVIEW OF DETERMINATIONS ON RECORD.—Section
516A(a)(2) of the Tariff Act of 1930 (19 U.S.C. 1516a(a)(2)) is amended—
(A) in subparagraph (A)(i)— (i) in subclause (I) by striking "(B), or" and insert-
ing "(B)", and (ii) by adding after subclause (II) the following:
"(III) notice of the implementation of any determination described in clause (vii) of subpara- graph (B), or"; and
(B) in subparagraph (B), by adding at the end the following new clause:
"(vii) A determination by the administering author- ity or the Commission under section 129 of the Uruguay Round Agreements Act concerning a deter- mination under title VII of the Tariff Act of 1930.".
(2) TIME LIMITS FOR CASES INVOLVING FREE TRADE AREA COUNTRIES.—Section 516A(a)(5) of the Tariff Act of 1930 (19 U.S.C. 1516a(a)(5)) is amended by adding at the end the follow- ing new subparagraph:
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4839
"(E) For a determination described in clause (vii) of paragraph (2)(B), the 31st day after the date on which notice of the implementation of the determination is pub- Ushed in the Federal Register.". (3) REVIEW OF CASES INVOLVING FREE TRADE AREA COUNTRY
MERCHANDISE.—Section 516A(g)(8)(A)(i) of the Tariff Act of 1930 (19 U.S.C. 1516a(gX8)(A)(i)) is amended by striking "sub- paragraph (A) or (B)" and inserting "subparagraph (A), (B), or(Er.
SEC. 130. EFFECTIVE DATE. 19 USC 3531
This subtitie and the amendments made by this subtitle take effect on the date on which the WTO Agreement enters into force with respect to the United States.
Subtitle D—Related Provisions SEC. 131. WORKING PARTY ON WORKER RIGHTS. President.
(a) IN GENERAL.—The President shall seek the establishment in the GATT 1947, and, upon entry into force of the WTO Agreement with respect to the United States, in the WTO, of a working party to examine the relationship of internationally recognized worker rights, as defined in section 502(a)(4) of the Trade Act of 1974, to the articles, objectives, and related instruments of the GATT 1947 and ofthe WTO, respectively.
(b) OBJECTIVES OF WORKING PARTY.—The objectives of the United States for the working party described in subsection (a) are to—
(1) explore the linkage between international trade and internationally recognized worker rights, as defined in section 502(a)(4) of the Trade Act of 1974, taking into account dif- ferences in the level of development among countries;
(2) examine the effects on international trade of the system- atic denial of such rights;
(3) consider ways to address such effects; and (4) develop metiiods to coordinate the work program of
the working party with the International Labor Oi^anization. (c) REPORT TO CONGRESS.—The President shall report to the
Congress, not later than 1 year after the date of the enactment of this Act, on the progress made in estabUshing the working party under this section, and on United States objectives with respect to the working party's work program. SEC. 132. IMPLEMENTATION OF RULES OF ORIGIN WORK PROGRAM. 19 USC 3552.
If the President enters into an agreement developed under the work program described in Article 9 of the Agreement on Rules of Origin referred to in section 101(d)(10), the President may implement United States obUgations under such an agreement under United States law only pursuant to authority granted to the President for that purpose by law enacted after the effective date of this titie. SEC. 133. MEMBERSHIP IN WTO OF BOYCOTTING COUNTRIES. 19 USC 3553.
It is the sense of the Congress that the Trade Representative should vigorously oppose the admission into the World Trade Organization of any country which, through its laws, regulations, official poUcies, or governmental practices, fosters, imposes, com-
108 STAT. 4840 PUBLIC LAW 103-465-DEC. 8, 1994
plies with, furthers, or supports any boycott described in section 8(a) of the Export Administration Act of 1979 (50 U.S.C. App. 2407(a)) (as in effect on August 20, 1994), including requiring or encouraging entities within that country to refuse to do business with persons who do not comply with requests to take any action prohibited under that section.
President. SEC. 134. AFRICA TRADE AND DEVELOPMENT POLICY. 19 u s e 3554
(a) DEVELOPMENT OF POLICY.—The President should develop and implement a comprehensive trade and development poHcy for the countries of Africa.
(b) REPORTS TO CONGRESS.—The President shall, not later than 12 months after the date of the enactment of this Act and annually thereafter for a period of 4 years, submit to the Conmiittee on Ways and Means and the Conmiittee on Foreign Affairs of the House of Representatives, the Committee on Finance and the Committee on Foreign Relations of the Senate, and other appro- priate committees of the Congress, a report on the steps teken to carry out subsection (a).
19 u s e 3555. SEC. 135. OBJECTIVES FOR EXTENDED NEGOTIATIONS.
(a) TRADE IN FINANCIAL SERVICES.—The principal negotiating objective of the United States in the extended negotiations on financial services to be conducted under the auspices of the WTO is to seek to secure commitments, from a wide range of commercially important developed and developing countries, to reduce or elimi- nate barriers to the supply of financial services, including barriers that deny national treatment or market access by restricting the estabhshment or operation of fineincial services providers, as the condition for the United States—
(1) offering commitments to provide national treatment and market access in each of the financial services subsectors, and
(2) making such commitments on a most-favored-nation basis. (b) TRADE IN BASIC TELECOMMUNICATIONS SERVICES.—The prin-
cipal negotiating objective of the United States in the extended negotiations on oasic telecommunications services to be conducted under the auspices of the WTO is to obtain the opening on non- discriminatory terms and conditions of foreign markets for basic telecommunications services through faciUties-based competition or through the ressile of services on existing networks.
(c) TRADE IN CIVIL AIRCRAFT.— (1) NEGOTIATIONS.—The principal negotiating objectives of
the United States in the extended negotiations on trade in civil aircraft to be conducted under the auspices of the WTO are—
(A) to obtain competitive opportunities for United States exports in foreign markets substantially equivalent to those afforded to foreign products in the United States,
(B) to obtain the reduction or elimination of specific tariff and nontariff barriers, including through expanded membership in the Agreement on Trade in Civil Aircraft and in the US-EC bilateral agreement for large civil aircraft,
(C) to maintain vigorous Eind effective disciplines on subsidies practices with respect to civil aircraft products
•i^Q^i"
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4841
under the Agreement on Subsidies and Countervailing Measures referred to in section lOKdX 12),
(D) to maint£iin the scope and coverage on indirect support as specified in the US-EC bilateral agreement on large civil aircraft, and
(E) to obtain increased transparency with respect to foreign subsidy programs in the civil aircraft sector, both through greater government disclosure with respect to the use of taxpayer moneys and higher financigil disclosure standards for companies receiving government supports (including disclosure comparable to that required under United States securities laws). (2) DEFINITIONS.—For purposes of paragraph (1)—
(A) the term "civil aircrjift^' means mose products to which the Agreement on Trade in Civil Aircraft applies,
(B) the term la rge civil aircraft" has the meaning given that term in Annex II to the US-EC bilateral agreement,
(C) the term "indirect support" means indirect govern- ment support as defined in Annex II to the US-EC bilateral agreement,
(D) the term "Agreement on Trade in Civil Aircraft" means the Agreement on Trade in Civil Aircraft approved by the Congress under section 2 of the Trade Agreements Act of 1979, and
(E) the term "US-EC bilateral agreement" means the Agreement Concerning the AppUcation of the GATT Agree- ment on Trade in Civil Aircraft Between the European Economic Community and the Government of the United States of America on trade in large civil aircraft, entered into on July 17, 1992.
SEC. 136. REPEAL OF TAX ON IMPORTED PERFUMES; DRAWBACK OF TAX ON DISTILLED SPIRITS USED IN PERFUME MANUFACTURE.
(a) REPEAL OF TAX ON IMPORTED PERFUMES.—Subsection (a) of section 5001 of the Internal Revenue Code of 1986 is amended 26 USC 5001. by striking paragraph (3) and redesignating the following para- graphs accordingly.
(b) DRAWBACK OF TAX ON DISTILLED SPIRITS USED IN PERFUME MANUFACTURE.—Sections 5131(a), 5132, 5134(c)(1), and 7652(g) of such Code are each amended by striking "or flavoring extracts" 26 USC 5131, and inserting "flavoring extracts, or perfiime". ^^^ '̂ ^̂ '̂*' ^̂ ^̂ •
(c) CONFORMING AMENDMENTS.— (1) Subsection (b) of section 5002 of such Code is amended 26 use 5002.
by striking paragraph (1) and redesignating the following para- graphs accordingly.
(2) Subsection (f) of section 5005 of such Code is amended— 26 USC 5005. (A) by striking "section 5001(a)(6) and (7)" in paragraph
(3) and inserting 'Section 5001(a)(5) and (6)", and (B) by striking "section 5001(a)(5)" in paragraph (4)
and inserting "section 5001(a)(4)". (3) Subsection (b) of section 5007 of such Code is amended 26 USC 5007.
to read as follows: "(b) COLLECTION OF TAX ON IMPORTED DISTILLED SPIRITS.—
The internal revenue tax imposed by section 5001(a)(1) and (2) upon imported distilled spirits shall be collected by the Secretary
108 STAT. 4842 PUBLIC LAW 103-465—DEC. 8, 1994
and deposited as internal revenue collections, under such regula- tions as the Secretary may prescribe. Section 5688 shall be appHcable to the disposition of imported spirits.".
26 use 5007. (4) Paragraph (3) of section 5007(c) of such Code is amended by striking 'Section 5001(a)(5), (6), and (7)" and inserting "sec- tion 5001(a)(4), (5), and (6)".
(5) Paragraph (1) of section 5061(b) of such Code is amended to read as follows:
"(1) section 5001(a)(4), (5), or (6),". 26 use 5001 (d) EFFECTIVE DATE.—The simendments made by this section "o^- shall take effect on January 1,1995. 19 use 3556. SEC. 137. CERTAIN NONRUBBER FOOTWEAR.
In the case of nonrubber footwear imported from Brazil— (1) which is subject to Treasury Decision 74-233, dated
September 9, 1974, (2) which was entered, or withdrawn from warehouse for
consimiption, on or before October 28,1981, and (3) with respect to which entries are unUquidated on the
date of the enactment of this Act, countervailing duties shall be assessed at rates equal to the amount of the cash deposit of the estimated countervailing duties required on such footwear at the time of entry or withdrawal from warehouse for consumption. Interest on imderpayments of Eimounts required to be deposited as countervailing duties shall be paid in accordance with section 778 of the Tariff Act of 1930 (19 U.S.C;. 1677g).
19 u s e 3551 SEC. 188. EFFECTIVE DATE.
(a) IN GENERAL.—Except as provided in section 136(d) and subsection (b) of this section, this subtitie and the amendments made by this subtitie take effect on the date of the enactment of this Act.
(b) SECTIONS 132 AND 135.—Sections 132 and 135 take effect on the date on which the WTO Agreement enters into force with respect to the United States.
TITLE II—ANTIDUMPING AND COUNTERVAILING DUTY PROVISIONS
SEC. 201. REFERENCE.
Except as otherwise expressly provided, whenever in this titie an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the TariffActofl930.
Subtitle A—General Provisions SEC. 211. ACTION WITH RESPECT TO PETITIONS.
(a) COUNTERVAILING DUTY INVESTIGATIONS.—Section 702(b) (19 U.S.C. 1671a(b)) is amended—
(1) in paragraph (3) by striking "subsection 702(b)(1)'' and inserting "paragraph (1)", and
(2) by adding at the end the following: "(4) ACTION WITH RESPECT TO PETITIONS.—
^••^HSfrt-
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4843
"(A) NOTIFICATION OF GOVERNMENTS.—Upon receipt of a petition filed under paragraph (1), the administering authority shall—
"(i) notify the government of any exporting country named in the petition by deUvering a pubUc version of the petition to an appropriate representative of such country; and
"(ii) provide the government of any exporting coun- try named in the petition that is a Subsidies Agreement coimtry an opportunity for consultations wim respect to the petition. "(B) ACCEPTANCE OF COMMUNICATIONS.—The admin-
istering authority shall not accept any unsoUcited oral or written communication fi:x)m any person other than an interested party described in section 771(9) (C), (D), (E), (F), or (G) before the administering authority makes its decision whether to initiate an investigation, except as provided in subpara^aph (A)(ii) and subsection (c)(4)(D), and except for inquiries regarding the status of the admin- istering authority s consideration of the petition.
"(C) NONDISCLOSURE OF CERTAIN INFORMATION.—The administering authority and the Conunission shall not dis- close information with regard to any draft petition sub- mitted for review and comment before it is filed under paragraph (1).".
(b) ANTIDUMPING INVESTIGATIONS.—Section 732(b) (19 U.S.C. 1673a(b)) is amended by adding at the end the following:
"(3) ACTION WITH RESPECT TO PETITIONS.— "(A) NOTIFICATION OF GOVERNMENTS.—^Upon receipt of
a petition filed under paragraph (1), the administering authority shall notify the government of any exporting country named in the petition by deUvering a pubUc version of the petition to an appropriate representative of such country.
"(B) ACCEPTANCE OF COMMUNICATIONS.—The admin- istering authority shall not accept any unsoHcited oral or written communication from any person other than an interested party described in section 771(9) (C), (D), (E), (F), or (G) before the administering authority makes its decision whether to initiate an investigation, except as provided in subsection (c)(4)(D), and except for inquiries regarding the status of the administering authority's consideration of the petition.
"(C) NONDISCLOSURE OF CERTAIN INFORMATION.—The administering authority and the Conmiission shall not dis- close information with regard to any draft petition sub- mitted for review and comment before it is filed luider paragraph (1).".
SEC. 212. PETITION AND PRELIMINARY DETERMINATION.
(a) GENERAL REQUIREMENTS.— (1) COUNTERVAILING DUTY PETITION.—Section 702(c) (19
U.S.C. 1671a(c)) is amended to read as follows: "(c) PETITION DETERMINATION.—
"(1) IN GENERAL.— "(A) TIME FOR INITL^U. DETERMINATION.—Except as pro-
vided in subparagraph (B), within 20 days after the aate
108 STAT. 4844 PUBLIC LAW 103-465—DEC. 8, 1994
on which a petition is filed under subsection G)), the admin- istering authority shall—
"(i) 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 alleges the elements necessary for the imposition of a duty under section 701(a) and contains information reasonably available to the petitioner supporting the allegations, and
"(ii) determine if the petition has been filed by or on behalf of the industry. "(B) EXTENSION OF TIME.—In any case in which the
administering authority is required to poll or otherwise determine support for the petition by the industry under paragraph (4)(D), the administering authority may, in exceptional circumstances, apply subparagraph (A) by substituting 'a maximiun of 40 days' for *20 days'.
"(C) TIME LIMITS WHERE PETITION INVOLVES SAME MER- CHANDISE AS AN ORDER THAT HAS BEEN REVOKED.—If a petition is filed under this section with respect to merchan- dise that was the subject merchandise of—
"(i) a countervailing duty order that was revoked under section 751(d) in the 24 months preceding the date the petition is filed, or
"(ii) a suspended investigation that was terminated under section 751(d) in the 24 months preceding the date the petition is filed,
the administering authority and the Commission shall, to the maximum extent practicable, expedite any investigation initiated under this section with respect to the petition, "(2) AFFIRMATIVE DETERMINATIONS.—If the determinations
under clauses (i) and (ii) of paragraph (1)(A) are affirmative, the administering authority shall initiate an investigation to determine whether a countervailable subsidy is being provided with respect to the subject merchandise.
"(3) NEGATIVE DETERMINATIONS.—If the determination imder clause (i) or (ii) of paragraph (1)(A) is negative, the administering authority shcdl 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 determine that the peti- tion has been filed by or on behalf of the industry, if—
"(i) the domestic producers or workers who support the petition account for at least 25 percent oi the total production of the domestic like product, and
"(ii) the domestic producers or workers who sup- port the petition accoimt for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition. "(B) CERTAIN POSITIONS DISREGARDED.—
"(i) PRODUCERS RELATED TO FOREIGN PRODUCERS.— In determining industry support under subpsiragraph (A), the administering authoritj^ shall disregard tne position of domestic producers who oppose the petition.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4845
if such producers are related to foreign producers, as defined in section 771(4)(B)(ii), unless such domestic producers demonstrate that their interests as domestic producers would be adversely affected by the imposi- tion of a countervailing duty order.
**(ii) PRODUCERS WHO ARE IMPORTERS.—The admin- istering authority may disregard the position of domes- tic producers of a domestic like product who are importers of the subject merchandise. "(C) SPECIAL RULE FOR REGIONAL INDUSTRIES.—If the
petition alleges that the industry is a regional industry, the administering authority shall determine whether the petition h£is been filed by or on behalf of the industry by applying subparagraph (A) on the basis of production in the region.
"(D) POLLING THE INDUSTRY.—If the petition does not establish support of domestic producers or workers account- ing for more than 50 percent of the total production of the domestic like product, the administering authority shall—
"(i) poll the industry or rely on other information in order to determine if there is support for the petition as required by subparagraph (A), or
"(ii) if there is a large number of producers in the industry, the administering authority may deter- mine industry support for the petition by using any statistically valid sampling method to poll me industry. "(E) COMMENTS BY INTERESTED PARTIES.—Before the
administering authority makes a determination with respect to initiating an investigation, any person who would qualify as an interested party under section 771(9) if an investigation were initiated, may submit comments or information on the issue of industry support After the administering autiiority makes a determination with respect to initiating an investigation, the determination regarding industry support shall not be reconsidered. "(5) DEFINITION OF DOMESTIC PRODUCERS OR WORKERS.—
For purposes of this subsection, the term 'domestic producers or workers' means those interested parties who are eligible to file a petition under subsection (b)(1)(A).''.
(2) ANTIDUMPING DUTY PETITION.—Section 732(c) (19 U.S.C. 1673a(c)) is amended to read as follows: "(c) PETITION DETERMINATION.—
"(1) IN GENERAL.— "(A) TIME FOR INITIAL DETERMINATION.—Except as pro-
vided in subparagraph (B), within 20 days after the date on which a petition is filed under subsection (b), the admin- istering aumority shaU—
"(i) 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 alleges the elements necessary for the imposition of a duty under section 731 and contains information reasonably available to the petitioner supporting the allegations, and
"(ii) determine if me petition has been filed by or on behalf of the industry.
108 STAT. 4846 PUBLIC LAW 103-465—DEC. 8, 1994
*(B) EXTENSION OF TIME.—In any case in which the administering authority is required to poll or otherwise determine support for the petition by the industry under paragraph (4)(D), the administering authority may, in exceptional circumstances, apply subpargigraph (A) by substituting *a maximimi of 40 days' for '20 days'.
"(C) TIME LIMITS WHERE PETITION INVOLVES SAME MER- CHANDISE AS AN ORDER THAT HAS BEEN REVOKED.—If a petition is filed under this section with respect to merchan- dise that was the subject merchandise of—
**(i) an antidumping duty order or finding that was revoked under section 751(d) in the 24 months preceding the date the petition is filed, or
"(ii) a suspended investigation that was terminated under section 751(d) in the 24 months preceding the date the petition is filed,
the administering authority and the Commission shall, to the maximum extent practicable, expedite any investigation initiated under this section with respect to the petition. "(2) AFFIRMATIVE DETERMINATIONS.—If the determinations
under clauses (i) and (ii) of paragraph (1)(A) are affirmative, the administering authority shall imtiate an investigation to determine whether the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value.
"(3) NEGATIVE DETERMINATIONS.—If the determination under clause (i) or (ii) of paragraph (1)(A) is negative, 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 determine that the peti- tion has been filed by or on behalf of the industry, if—
"(i) the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product, and
"(ii) the domestic producers or workers who sup- port the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition, "(B) CERTAIN POSITIONS DISREGARDED.—
"(i) PRODUCERS RELATED TO FOREIGN PRODUCERS.— In determining industry support under subparagraph (A), the administering authority shall disregard the position of domestic producers wno oppose the petition, if such producers are related to foreign producers, as defined in section 771(4)(B)(ii), imless such domestic producers demonstrate that their interests as domestic producers would be adversely affected by the imposi- tion of an antidumping duty order.
"(ii) PRODUCERS WHO ARE IMPORTERS.—^The admin- istering authority may disregard the position of domes- tic producers of a domestic Uke product who are importers of the subject merchandise. "(C) SPECIAL RULE FOR REGIONAL INDUSTRIES.—^If the
petition alleges the industry is a regional industry, the
«tf*jfir«i,^*
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4847
administeriiig authority shall determine whether the peti- tion has been filed by or on behalf of the industry by appljring subparagraph (A) on the basis of production in the region.
"(D) POLLING THE INDUSTRY.—If the petition does not establish support of domestic producers or workers account- ing for more than 50 percent of the total production of the domestic like product, the administering authority shall—
"(i) poll the industry or rely on other information in order to determine if there is support for the petition as required by subparagraph (A), or
"(ii) if there is a large number of producers in the industry, the administering authority may deter- mine industry support for the petition by using any statistically vahd sampUng method to poll the industry. "(E) COMMENTS BY INTERESTED PARTIES.—^Before the
administering authority makes a determination with respect to initiating an investigation, any person who would qualify as an interested party under section 771(9) if an investigation were initiated, may submit comments or information on the issue of industry support After the administering authority makes a determination with respect to initiating an investigation, the determination regarding industry support shall not be reconsidered. "(5) DEFINITION OF DOMESTIC PRODUCERS OR WORKERS.—
For purposes of this subsection, the term 'domestic producers or workers' means those interested parties who are eligible to file a petition under subsection (b)(1)(A).''. (b) DETERMINATION BY THE COMMISSION OF REASONABLE
INDICATION OF INJURY; PRELIMINARY DETERMINATION BY THE ADMINISTERING AUTHORITY.—
(1) COUNTERVAIUNG DUTY INVESTIGATIONS.— (A) Section 703(a) (19 U.S.C. 1671b(a)) is amended
to read as follows: "(a) DETERMINATION BY COMMISSION OF REASONABLE INDICA-
TION OF INJURY.— "(1) GENERAL RULE.—Except in the case of a petition dis-
missed by the administering authority under section 702(c)(3), the Commission, within the time specified ia paragraph (2), shall determine, based on the information available to it at the time of the determination, whether there is a reasonable indication that—
"(A) an industry in the United States— **(i) is materially injured, or **(ii) is threatened with material injmy, or
"(B) the establishment of an industry in the United States is materially retarded,
by reason of imports of the subject merchandise and that imports of the subject merchandise are not negUgible. If the Conmiission finds titiat imports of the subject mercnandise are negUgible or otherwise makes a negative determination under this paragraph, the investigation shall be terminated.
"(2) TIME FOR COMMISSION DETERMINATION.—The Commis- sion shall make the determination described in paragraph (1)—
"(A) in the case of a petition filed under section 702(b)—
108 STAT. 4848 PUBLIC LAW 103-465—DEC. 8, 1994
**(i) within 45 days after the date on which the petition is filed, or
"(ii) if the time has been extended pursuant to section 702(cXl)(B), within 25 days after the date on which the Commission receives noticefi:x)mthe admin- istering authority of initiation of the investigation, and "(B) in the case of an investigation initiated under
section 702(a), within 45 days after the date on which the Commission receives notice fi*om the administering authority that £in investigation has been initiated under such section "
(B) Section 705(b)(1) (19 U.S.C. 1671d(b)(l)) is amended by adding at the end the following: "If the Conmiission determines that imports of the subject mer- chandise are negligible, the investigation shall be termi- nated.".
(C) Section 703(b) (19 U.S.C. 1671b(b)) is amended— (i) in paragraph (1)—
(I) by striking "85 days Eifter the date on which the petition is filed imder section 702(b)'' and inserting "65 days after the date on which the administering authority initiates an investigation under section 702(c)'';
(II) by striking *T3est information" and insert- ing "information"; and
(III) by striking the last sentence; and (ii) in pa ra^aph (2), by striking "85 days after
the date on which the petition is filed under section 702(b)" and inserting "65 days after the date on which the administering authority initiates an investigation under section 702(c)". (D) Section 703(cXl) (19 U.S.C. 1671b(c)) is amended
by striking "150th day after the date on which a petition is filed under section 702(b)" and inserting "130th day after Hie date on which the administering authority initi- ates an investigation under section 702(c)".
(E) Section 702(bX3) (19 U.S.C. 1671a(bX3)) is amended by striking "twenty days" and inserting "5 days after the date on which the administering authority initiates an investigation under subsection (c),'.
(F) Section 703(f) (19 U.S.C. 1671b(f)) is amended to read as follows:
"(f) NOTICE OF DETERMINATION.—Whenever the Commission or the administering authority makes a determination under this section, the Commission or the administering authority, as the case may be, shall notify the petitioner, and other parties to the investigation, and the Commission or the administering authority (whichever is appropriate) of its determination. The administering authority 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 (aX2), the Commission shall transmit to the administering authoritv the facts and conclusions on which its determination is based.'.
(2) ANTIDUMPING DUTY INVESTIGATIONS.— (A) Section 733(a) (19 U.S.C. 1673b(a)) is amended
to read as follows:
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4849
"(a) DETERMINATION BY COMMISSION OF REASONABLE INDICA- TION OF INJURY.—
"(1) GENERAL RULE.—Except in the case of a petition dis- missed by the administering authority under section 732(c)(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 indication that—
"(A) an industry in the United States— "(i) is materially injured, or "(ii) is threatened with material injuiy, or
"(B) the establishment of an industty in the United States is materially retarded,
by reason of imports of the subject merchandise and that imports of the subject merchandise are not negUgible. If the
, Commission fiiids that imports of the subject merchandise are neghgible or otherwise makes a negative determination under this pars^aph , the investigation shall be terminated.
(2) TIME FOR COMMISSION DETERMINATION.—The Commis- sion shall make the determination described in paragraph (1)—
"(A) in the case of a petition filed under section 732(b)— "(i) within 45 days after the date on which the
petition is filed, or "(ii) if the time has been extended pursuant to
section 732(cXl)(B), within 25 days after the date on which the Commission receives notice fi^m the admin- istering authority of initiation of the investigation, and **(B) in the case of an investigation initiated under
section 732(a), within 45 days after the date on which the Commission receives notice fi*om the administering authority that an investigation has been initiated under such section "
(B) Section 735(b)(1) (19 U.S.C. 1673d(b)(l)) is amended by adding at the end the following: "If the Commission determines that imports of the subject mer-
j chandise are negUgible, the investigation shall be terminated.".
j (C) Section 733(b)(1) (19 U.S.C. 1673b(b)(l)) is I amended— I (i) in subparagraph (A)— j (I) by striking "160 days after the date on j which a petition is filed under section 732(b)" and
inserting "140 days after the date on which the administering authority initiates an investigation imder section 732(c)"; £uad
1 (II) by striking *l3est information" and insert- \ ing "information"; and 1 (ii) in subparagraph (B)—
(I) by striking "120" and inserting "100"; (II) by striking "160" and inserting "140"; (III) by striking "100" and inserting "80"; and (IV) by striking "160" and inserting^l40".
(D) Section 733(c)(1) (19 U.S.C. 1673b(c)(l)) is amended . by striking "210th day after the date on which a petition . is filed under section 732(b)" and inserting "190th day
Eifter the date on which the administering authority initi- ates an investigation under section 732(c)".
108 STAT. 4850 PUBLIC LAW 103-465—DEC. 8, 1994
(E) Section 733(f) (19 U.S.C. 1673b(f)) is amended to read as follows:
**(f) NOTICE OF DETERMINATION.—^Whenever the Commission or the administering authority makes a determination under this section, the Commission or the administering authority, as the case may be, shall notify the petitioner, and other parties to the investigation, and the Commission or the administering authority (whichever is appropriate) of its determination. The administering authority 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 authoritv the facts and conclusions on which its determination is based. .
SEC. 213. DE MINIMIS DUMPING MARGIN.
(a) PRELIMINARY DETERMINATIONS.—Section 733(b) (19 U.S.C. 1673b(b)) is amended by adding at the end the following new paragraph:
"(3) D E MINIMIS DUMPING MARGIN.—In making a determina- tion under this subsection, the administering authority shall disregard any weighted average dumping margin that is de minimis. For purposes of the preceding sentence, a weighted average dimipin^ margin is de minimis if the administering authority determines that it is less than 2 percent ad valorem or the equivalent specific rate for the subject merchandise.". (b) FINAL DETERMINATIONS.—Section 735(a) (19 U.S.C.
1673d(a)) is amended by adding at the end the following new paragraph:
"(4) D E MINIMIS DUMPING MARGIN.—In making a determina- tion under this subsection, the administering authority shsill disregard any weighted average dumping margin that is de minimis as defined in section 733(bX3). .
SEC. 214. CRITICAL CIRCUMSTANCES.
(a) COUNTERVAIUNG DUTY INVESTIGATIONS.— (1) PREUMINARY DETERMINATIONS.—Section 703(e)(1) (19
U.S.C. 1671b(e)(l)) is amended— (A) in the matter preceding subparagraph (A) by strik-
ing "best information and inserting information"; and (B) by amending subparagraphs (A) and (B) to read
as follows: "(A) the alleged countervailable subsidy is inconsistent
with the Subsidies Agreement, and "(B) there have been massive imports of the subject
merchandise over a relatively short penod.". (2) FINAL DETERMINATIONS.—(A) Section 705(a)(2) (19
U.S.C. 1671d(aX2)) is amended— (i) in subparagraph (A) by inserting "Subsidies" before
"Agreement^'; and (ii) in subparagraph (B) by striking "class or kind
of merchandise involved" and inserting "subject merchan- dise". (B) Section 705(b)(4)(A) (19 U.S.C. 1671d(b)(4)) is amended
to read as follows: "(A) COMMISSION STANDARD FOR RETROACTIVE
APPUCATION.—
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4851
**(i) IN GENERAL.—If the finding of the administer- ing authority under subsection (a)(2) is affirmative, then the final determination of the Commission shall include a finding as to whether the imports subject to the affirmative determination under subsection (a)(2) are likely to luidermine seriously the remedial effect of the coimtervailing duty order to be issued under section 706.
"(ii) FACTORS TO CONSIDER.—In making the evalua- tion under clause (i), the Commission snail consider, among other factors it considers relevant—
"(I) the timing and the volume of the imports, "(II) any rapid increase in inventories of the
imports, and "(III) any other circumstances indicating that
the remedial effect of the countervailing duty order will be seriously imdermined.".
(b) ANTIDUMPING INVESTIGATIONS.— (1) PREUMINARY DETERMINATIONS.—Section 733(e)(1) (19
U.S.C. 1673b(e)(l)) is amended— (A) in the matter preceding subparagraph (A) by strik-
ing "best information and inserting information"; and (B) by amending subparagraphs (A) and (B) to read
as follows: "(A)(i) there is a history of dumping and material injury
by reason of dmnped imports in the United States or else- where of the subject merchandise, or
"(ii) the person by whom, or for whose account, the merchandise was imported knew or should have known that the exporter was selling the subject merchandise at less than its fair value and that there was likely to be materisd injiuy by reason of such ssdes, and
"(B) there have been massive imports of the subject merchandise over a relatively short penod.". (2) FINAL DETERMINATIONS.—(A) Section 735(a)(3) (19
U.S.C. 1673d(a)(3)) is amended— (i) in clause (i) of subparagraph (A)—
(I) by inserting "and material injiuy by reason of dmnped imports after "history of dumping"; and
(II) by striking "class or kind of the merchandise which is me subject of the investigation" and inserting "subject merchandise"; (ii) in clause (ii) of subpsiragraph (A) by striking "mer-
chandise which is the subject of tlie investigation at less than its fair value" and inserting "subject merchandise at less than its fair value and that there would be material injiuy by reason of such sales"; and
(ui) in subparagraph (B) by striking "merchandise which is the siibject or the investigation and inserting "subject merchandise". (B) Section 735(b)(4)(A) (19 U.S.C. 1673d(bX4)(A)) is
amended to read as follows: "(A) COMMISSION STANDARD FOR RETROACTIVE
APPUCATION.— "(i) IN GENERAL.—If the finding of the administer-
ing authority under subsection (aX3) is affirmative, then the final determination of the Commission shall
108 STAT. 4852 PUBLIC LAW 103-465—DEC. 8, 1994
include a finding as to whether the imports subject to the affirmative determination under subsection (a)(3) are likely to undermine seriously the remedial effect of the antidumping duty order to be issued under section 736.
"(ii) FACTORS TO CONSIDER.—In making the evalua- tion under clause (i), the Commission shall consider, among other factors it considers relevant—
"(I) the timing and the volume of the imports, "(II) a rapid increase in inventories of the
imports, and "(III) any other circumstances indicating that
the remedial effect of the antidumping order will be seriously undermined.".
Federal SEC. 216. PROVISIONAL MEASURES.
puSication. (a) COUNTERVAIUNG DUTIES.— (1) SUSPENSION OF LIQUIDATION.—Section 703(d) (19 U.S.C.
1671b(d)) is amended— (A) in paragraph (1), by striking "warehouse" and aU
that follows througn "Register," and inserting "warehouse, for consumption on or after the later of—
"(A) the date on which notice of the determination is pubUshed in the Federal Register, or
"(B) the date that is 60 days after the date on which notice of the determination to initiate the investigation is pubhshed in the Federal Register,"; and
(B) by adding at the end the following: "The instructions of the administering authority under paragraphs (1) and (2) may not remain in effect for more than 4 months.".
(2) CRITICAL CIRCUMSTANCES CASES.—Section 703(e)(2) (19 U.S.C. 1671b(e)(2)) is amended by striking "warehouse, for consimiption on or after the date which is 90 days before the date on which suspension of Uquidation was first ordered." and inserting "warehouse, for consumption on or sifter the later of—
"(A) the date which is 90 days before the date on which the suspension of Uquidation was first ordered, or
"(B) the date on which notice of the determination to initiate the investigation is published in the Federal Register.".
(b) ANTIDLI^PING DUTIES.— (1) SUSPENSION OF UQUIDATION.—Section 733(d) (19 U.S.C.
1673b(d)) is amended— (A) in paragraph (1), by striking "warehouse" and all
that follows througn "Register," and iosertlng "warehouse, for consumption on or after the later of—
"(A) the date on which notice of the determination is pubhshed in the Federal Register, or
"(B) the date that is 60 days after the date on which notice of the determination to initiate the investigation is pubUshed in the Federal Register,"; and
(B) by adding at the end the foUowing: "The instructions of the administering authority under paragraphs (1) and (2) may not remain in effect for more than 4 months, except that the administering authority may, at the request of exporters representing a significant proportion of exports of the
sfjs^ts;
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4853
subject merchandise, extend that 4-month period to not more than 6 months.".
(2) CRITICAL CIRCUMSTANCES CASES.—Section 733(e)(2) (19 U.S.C. 1673b(e)(2)) is amended by striking "warehouse, for consumption on or after the date which is 90 days before the date on which suspension of liquidation was first ordered." and inserting "warehouse, for consumption on or after the later of—
"(A) the date which is 90 days before the date on which the suspension of liquidation was first ordered, or
"(B) the date on which notice of the determination to initiate the investigation is published in the Federal Register.".
SEC. 216. CONDITIONS ON ACCEPTANCE OF SUSPENSION AGREEMENTS.
(a) COUNTERVAILING DUTIES.—Section 704(d)(1) (19 U.S.C. 1671c(d)(l)) is amended by striking "In applying" and inserting the following:
"Where practicable, the administering authority shall provide to the exporters who would have been subject to the agreement the reasons for not accepting the agreement and, to the extent possible, an opportunity to submit comments thereon. In apply- ing". (b) ANTIDUMPING DUTIES.—Section 734(d) (19 U.S.C. 1673c(d))
is amended by adding at the end the following flush sentence: "Where practicable, the administering authority shall provide to the exporters who would have been subject to the agreement the reasons for not accepting the agreement and, to the extent possible, an opportunity to submit comments thereon.". SEC. 217. TERMINATION OF INVESTIGATION.
(a) COUNTERVAILING DUTY INVESTIGATIONS.—Section 704(a)(1) (19 U.S.C. 1671c(a)(l)) is amended—
(1) by striking "Except" and inserting "(A) WITHDRAWAL OF PETITION.—Except";
(2) by indenting the text so as to align it with subparagraph (B) (as added by paragraph (3) of this subsection); and
(3) by adding at the end the following: "(B) REFILING OF PETITION.—If, within 3 months after
the withdrawal of a petition under subparagraph (A), a new petition is filed seeking the imposition of duties on both the subject merchandise of the withdrawn petition and the subject merchandise from another country, the administering authority and the Commission may use in the investigation initiated pursuant to the new petition any records compiled in an investigation conducted pursu- ant to the withdrawn petition. This subparagraph applies only with respect to the first withdrawal of a petition.".
(b) ANTIDUMPING DUTY INVESTIGATIONS.—Section 734(a)(1) (19 U.S.C. 1673c(a)(l)) is amended—
(1) by striking "Except" and inserting "(A) WITHDRAWAL OF PETITION.—Except";
(2) by indenting the text so as to align it with subparagraph (B) (as added by paragraph (3) of this subsection); and
(3) by adding at the end the following: "(B) REFILING OF PETITION.—If, within 3 months after
the withdrawal of a petition under subparagraph (A), a new petition is filed seeking the imposition of duties on
108 STAT. 4854 PUBLIC LAW 103-465—DEC. 8, 1994
both the subject merchandise of the withdrawn petition and the subject merchandise from another countiy, the administezing authority and the Commission may use in the investigation initiated pursuant to the new petition any records compiled in an investigation conductea piursu- ant to the withdrawn petition. This subparagraph ap>plies only with respect to tne first withdrawal of a petition.".
SEC. 218. SPECIAL RULES FOR REGIONAL INDUSTRIES.
(a) SUSPENSION AGREEMENTS.— (1) COUNTERVAILING DUTY INVESTIGATIONS.—Section 704
(19 U.S.C. 1671c) is amended by adding at the end the following new subsection: "(1) SPECIAL RULE FOR REGIONAL INDUSTRY INVESTIGATIONS.—
"(1) SUSPENSION AGREEMENTS.—If the Commission makes a regional industry determination imder section 771(4)(C), the administering aumority shall offer exporters of the subject merchandise who account for substantially all exports of mat merchandise for sale in the region concerned the opportunity to enter into an agreement described in subsection (b) or (c).
"(2) REQUIREMENTS FOR SUSPENSION AGREEMENTS.—Anv agreement described in paragraph (1) shall be subject to all the requirements imposed under this section for otner agree- ments under subsection (b) or (c), except that if tiie Commission makes a regional industry determination described in para- graph (1) in the final affirmative determination under section 705(b) but not in the preliminaiy affirmative determination imder section 703(a), any agreement described in paragraph (1) may be accepted witnin 60 days after the countervailmg duty order is published under section 706.
"(3) EFFECT OF SUSPENSION AGREEMENT ON COUNTERVAIL- ING DUTY ORDER.—If an agreement described in paragraph (1) is accepted after the coimtervaiHng duty order is published, the administering authority shall rescind the order, refund any cash deposit and release any bond or other security depos- ited imder section 703(d)(1)(B), and instruct the Customs Serv- ice that entries of the subject merchandise that were made during the period that the order was in effect shall be Uquidated without regard to countervailing duties.".
(2) ANTIDUMPING INVESTIGATIONS.—Section 734 (19 U.S.C. 1673c) is amended by adding at the end the following new subsection: "(m) SPECIAL RULE FOR REGIONAL INDUSTRY INVESTIGATIONS.—
"(1) SUSPENSION AGREEMENTS.—If the Commission makes a re^onal industry determination under section 771(4)(C), the administering aumority shall offer exporters of the subject merchandise who account for substantially all exports of that merchandise for sale in the region concerned the opportunity to enter into an agreement described in subsection (b), (c), or(l).
"(2) REQUIREMENTS FOR SUSPENSION AGREEMENTS.—^Anv agreement described in paragraph (1) shall be subiect to all the requirements imposed under this section for otner agree- ments under subsection (b), (c), or (1), except that if the Commis- sion makes a regional industry determination described in paragraph (1) in tne final affirmative determination under sec- tion 735(b) but not in the preliminary affirmative determination
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4855
under section 733(a), any agreement described in paragraph (1) may be accepted within 60 days after the antidumping order is published under section 736.
"(3) EFFECT OF SUSPENSION AGREEMENT ON ANTIDUMPING DUTY ORDER.—If an sigreement described in paragraph (1) is accepted after the antidumping duty order is pubUsned, the adnunistering authority shall rescind the order, refund any cash deposit and release any bond or other security deposited imder section 733(d)(1)(B), and instruct the Customs Service that entries of the subject merchandise that were made during the period tiiat the order was in effect shall be Uquidated without regard to antidumping duties.". (b) APPUCABILITY OF ORDERS TO NEW SHIPPERS.—
(1) COUNTERVAILING DUTY CASES.—Section 706 (19 U.S.C. 167 le) is amended by adding at the end the following new subsection: "(c) SPECIAL RULE FOR REGIONAL INDUSTRIES.—
"(1) IN GENERAL.—^In an investigation under this subtitie in which the Conmiission makes a regional industry determina- tion under section 771(4XC), the administering authority shall, to the m£iximum extent possible, direct that duties be assessed only on the subject merchandise of the specific exporters or producers that exported the subject merchandise for sale in the region concerned during the period of investigation.
"(2) EXCEPTION FOR NEW EXPORTERS AND PRODUCERS.— After pubHcation of the countervailing duty order, if the admin- istering authority finds that a new exporter or producer is exporting the subject merchandise for sale in the region con- cerned, the administering authority shall direct that duties be assessed on the subject merchandise of the new exporter or producer consistent with the provisions of section 751(a)(2)(B).''.
(2) ANTIDUMPING DUTY CASES.—Section 736 (19 U.S.C. 1673e) is amended by adding at the end the following new subsection: "(d) SPECL!\L RULE FOR REGIONAL INDUSTRIES.—
"(1) IN GENERAL.—^In an investigation in which the Commis- sion makes a regional industry determination under section 771(4)(C), the administering authority shall, to l i e maximum extent possible, direct that duties be assessed only on the subject merchandise of the specific exporters or producers that exported the subject merchandise for sale in the region con- cerned during the period of investigation.
"(2) EXCEPTION FOR NEW EXPORTERS AND PRODUCERS.— After publication of the antidumping duty order, if the admin- istering authoritjr finds that a new exporter or producer is exporting the subject merchandise for sale in the region con- cerned, the administering authority shall direct that duties be assessed on the subject merchandise of the new exporter or producer consistent with the provisions of section 751(a)(2XB).''.
SEC. 219. DETERMINATION O F WEIGHTED AVERAGE DUMPING MARGIN.
(a) PRELIMINARY DETERMINATION.— (1) IN GENERAL.—Section 733(d) (19 U.S.C. 1673b(d)) is
amended—
108 STAT. 4856 PUBLIC LAW 103-465—DEC. 8, 1994
(A) by striking paragraph (2); (B) by redesimating paragraph (1), as amended by
section 215(bXl)(A), as peiragrapn (2); (C) by inserting "and" at the end of paragraph (2),
as so redesignated; and (D) by inserting before such paragraph (2) the following
new paragraph: "(l)(A)shaU—
"(i) determine an estimated weighted average dumping margin for each exporter and producer individually inves- tigated, and
"(ii) determine, in accordance with section 735(c)(5), an estimated all-others rate for all exporters and producers not individually investigated, and "(B) shall order the posting of a cash deposit, bond, or
other security, as the administering authority deems appro- priate, for each entry of the subject merchandise in an amount based on the estimated weighted average dumping margin or the estimated all-others rate, whichever is appHcable,".
(2) CONFORMING AMENDMENTS.—Section 733(b)(1)(A) (19 U.S.C. 1673b(b)(l)(A)) is amended by striking the last sentence, (b) FINAL DETERMINATION.—
(1) IN GENERAL.—Section 735(c)(1) (19 U.S.C. 1673d(c)(l)) is amended—
(A) in subparagraph (B)— (i) by redesignating such subparagraph as subpara-
graph (C); and (ii) by striking "under paragraphs (1) and (2)" and
all that follows through "security* and inserting "the suspension of Uquidation under section 733(d)(2)"; (B) by striking and" at the end of subparagraph (A);
and (C) by inserting after subparagraph (A) the following
new subparagraph: "(B)(i) the administering authority shall—
"(I) determine the estimated weighted average dumping margin for each exporter and producer individually investigated, and
"(II) determine, in accordance with paragraph (5), the estimated all-others rate for all exporters ana producers not individually investigated, and (ii) the administering authority shall order the posting
of a cash deposit, bond, or other security, as the admmister- ing authoritv deems appropriate, for each entry of the subject merchandise in an amount based on the estimated weighted average dimiping margin or the estimated all- others rate, whichever is appUcable, and". (2) METHOD FOR DETERMINING WEIGHTED AVERAGE DUMPING
MARGIN.—Section 735(c) (19 U.S.C. 1673d(c)) is amended by adding at the end the following new paragraph:
"(5) METHOD FOR DETERMINING ESTIMATED ALL-OTHERS RATE.—
"(A) GENERAL RULE.—For piuposes of this subsection and section 733(d), the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted average dumping margins established for export- ers and producers individually investigated, excluding any
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4857
zero and de minimis miargins, and any margins determined entirely under section 776.
**(B) EXCEPTION.—If the estimated weighted average dumping maimns established for aU exporters and produc- ers iadividually iQvestigated are zero or de minimis mar- gins, or are determined entirely \mder section 776, the administering authority may use any reeisonable method to establish the estimated all-others rate for exporters and producers not individually investigated, includmg averag- ing the estimated weignted average dumping ma i^ns determined for the exporters and producers individually investigated.".
(c) TECHNICAL AND CONFORMING AMENDMENTS.— (1) Section 733(e)(2) is amended by striking "subsection
(d)( i r and inserting "subsection (d)(2)''. (2) Section 734(fK2XA) is amended—
(A) in clause (i), by striking "section 733(d)(1)'' and inserting "section 733(d)(2)''; and
(B) in clause (iii), by striking "section 733(d)(2)'' and inserting "section 733(d)(1)(B)''. (3) Section 734(f)(2)(B) is amended—
(A) by striking "section 733(d)(1)'' and inserting "section 733(d)(2)^; and
(B) by striking "section 733(d)(2)'' and inserting "section 733(d)(1)(B)". (4) Section 734(h)(3) is amended—
(A) in subpara^aph (A), by striking "section 733(d)(1)" and inserting section 733(d)(2) ; and
(B) in subparagraph (B), by striking "section 733(d)(2)" and inserting '^section 733(d)(1)(B)". (5) Section 734(i)(l)(A) is amended by
733(d)(1)" and inserting "section 733(d)(2)". (6) Section 735(c)(2)(A) is amended by
703(d)(1)" and inserting "section 733(d)(2)". (7) Section 735(c)(2)(B) is amended by
733(d)(2)" and inserting "section 733(d)(1)(B)*. (8) Section 735(c)(3)(B) is amended by striking "section
733(d)(2)" and inserting "section 733(d)(1)(B)*. (9) Section 736(b)(1) is amended by striking "section
733(d)(1)" each place it appears and inserting "section 733(d)(2)".
(10) Section 737(a) is amended by striking "section 733(d)(2)" each place it appears in the heading and in the text and inserting "section 733(d)(1)(B)".
SEC. 220. REVIEW OF DETERAnNAIIONS.
(a) IN GENERAL.—Section 751 (19 U.S.C. 1675) is amended to read as foUows: "SEC. 761. ADMINISTRATIVE REVIEW OF DETERMINATIONS.
"(a) PERIODIC REVIEW OF AMOUNT OF DUTY.— "(1) IN GENERAL.—^At least once during each 12-month
period beginning on the anniversary of the date of pubUcation of a countervailing duty order under this titie or under section 303 of this Act, an antidumping duty order under this title or a finding under the Antidumping Act, 1921, or a notice of the suspension of an investigation, the administering author- ity, if a request for such a review h£is been received and
striking "section
striking "section
striking "section
19 u s e 1673b.
19 u s e 1673c.
19 u s e 1673d.
19 u s e 1673e.
19 u s e 1673f.
Federal Register, publication.
79-194 0—95—10 : QL 3 Part 6
108 STAT. 4858 PUBLIC LAW 103-465—DEC. 8, 1994
after publication of notice of such review in the Federal Reg- ister, shall—
"(A) review and determine the amount of any net countervailable subsidy,
"(B) review, and determine (in accordance with para- graph (2)), the amoimt of any antidumping duty, and
"(C) review the current status of, ana compHance with, any agreement by reason of which an investigation wsis suspended, and review the amount of any net countervailable subsidy or dumping margin involved in the agreement,
and shall pubUsh in the Federal Register the results of such review, together with notice of any duty to be assessed, esti- mated duty to be deposited, or investigation to be resimied.
"(2) DETERMINATION OF ANTIDUMPING DUTIES.— "(A) IN GENERAL.—For the purpose of paragraph (1)(B),
the administering authority shall determine— "(i) the normsd value and export price (or con-
structed export price) of each entry of the subject mer- chandise, and
"(ii) the dumping margin for each such entry. "(B) DETERMINATION OF ANTIDUMPING OR COUNTER-
VAILING DUTIES FOR NEW EXPORTERS AND PRODUCERS.— "(i) IN GENERAL.—If the administering authority
receives a request from an exporter or producer of the subject merchandise establishing that—
"(I) such exporter or producer did not export the merchandise that was the subject of an anti- dumping duty or countervailing duty order to the United States (or, in the case of a regional indus- try, did not export the subject merchandise for sale in the region concerned) during the period of investigation, and
"(II) such exporter or producer is not affiUated (within the meaning of section 771(33)) with any exporter or producer who exported the subject mer- chandise to the United States (or in the case of a regional industry, who exported the subject mer- chandise for sale in the region concerned) during that period,
the administering authority shall conduct a review under this subsection to establish an individual weighted average dimiping margin or an individual coimtervailing duty rate (as the cstse may be) for such exporter or producer.
"(ii) TIME FOR REVIEW UNDER CLAUSE (i).—The administering authority shall commence a review under clause (i) in the calendar month beginning after—
"(I) the end of the 6-month period beginning on the date of the countervailing duty or antidump- ing duty order under review, or
"(II) the end of any 6-month period occurring thereafter,
if the request for the review is made diuing that 6- month period.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4859
"(iii) POSTING BOND OR SECURITY.—^The administer- ing authority shall, at the time a review imder this subparagraph is initiated, direct the Customs Service to aUow, at the option of the importer, the posting, until the completion of the review, of a bond or security in Ueu of a cash deposit for each entry of the subject merchandise.
"(iv) TIME LIMITS.—^The administering authority shall make a preUminary determination in a review conducted under this suoparagraph within 180 days after the date on which the review is initiated, and a final determination within 90 days after the date the preUminary determination is issued, except that if the administering authority concludes that the case is extraordinarily complicated, it may extend the 180- day period to 300 days and may extend the 90-day period to 150 days. (C) RESULTS OF DETERMINATIONS.—The determination
under this paragraph shall be the basis for the assessment of coimtervaiUng or antidumping duties on entries of mer- chandise covered by the determination and for deposits of estimated duties. "(3) TIME UMITS.—
"(A) PRELIMINARY AND FINAL DETERMINATIONS.—The administering authority shall make a preUminary deter- mination under subparagraph (A), (B), or (C) of paragraph (1) within 245 days after the last day of the month in which occurs the anniversary of the date of pubUcation of the order, finding, or suspension agreement for which the review under paragraph (1) is requested, and a final determination imder psiragraph (1) within 120 days after the date on which the preliininary determination is pub- Ushed. If it is not practicable to complete the review within the foregoing time, the administering authority may extend that 245-day period to 365 days and may extend that 120-day period to 180 days. The administering authority may extend the time for making a final determination without extending the time for making a preUminary deter- mination, if such final determination is made not later than 300 days after the date on which the preUminary determination is published.
"(B) LIQUIDATION OF ENTRIES.—If the administering authority orders any Uquidation of entries pursuant to a review under paragraph (1), such Uquidation shaU be made promptly and, to the greatest extent practicable, within 90 days after the instructions to Customs are issued. In any case in which liquidation has not occurred within that 90-day period, the Secretary of the Treasury shaU, upon the request of the affected party, provide an expla- nation thereof.
"(C) EFFECT OF PENDING REVIEW UNDER SECTION 516A.—In a case in which a final determination under para- graph (1) is under review under section 516A and a Uquida- tion of entries covered by the determination is enjoined under section 516A(c)(2) or suspended under section 516A(g)(5)(C), the administering authority shall, within 10 days after the final disposition of the review under section
108 STAT. 4860 PUBLIC LAW 103-465—DEC. 8, 1994
Federal Register, publication.
516A, transmit to the Federal Register for publication the final disposition and issue instructions to the Customs Service with respect to the Uquidation of entries pursuant to the review. In such a case, the 90-day period referred to in subparagraph (B) shsdl begin on the day on which the administering authority issues such instructions. "(4) ABSORPTION OF ANTIDUMPING DUTIES.—During any
review under this subsection initiated 2 years or 4 years after the pubHcation of an antidumping duty order under section 736(a), the administering authority, if requested, shall deter- mine whether antidumping duties have been absorbed by a foreign producer or exporter subject to the order if the subject mercnandise is sold in the United States through an importer who is afiiliated with such foreign producer or exporter. The administering authority shsdl notify the Commission of its find- ings regarding such duty absorption for the Commission to consider in conducting a review under subsection (c). **(b) REVIEWS BASED ON CHANGED CIRCUMSTANCES.—
"(1) IN GENERAL.—Whenever the administering authority or the Commission receives information concerning, or a request fix)m an interested party for a review of—
"(A) a final affirmative determination that resulted ia an antidimiping duty order under this title or a finding under the Antidimiping Act, 1921, or in a countervaiHng duty order under this title or section 303,
"(B) a suspension agreement accepted under section 704 or 734, or
"(C) a final affirmative determination resulting fix)m an investigation continued pursuant to section 704(g) or 734(g),
which shows changed circumstances sufficient to warrant a review of such determination or agreement, the administeriag authority or the Commission (as the case may be) shall conduct a review of the determination or agreement after pubUshing notice of the review in the Federal Register.
"(2) COMMISSION REVIEW.—In conducting a review under this subsection, the Commission shall—
"(A) in the case of a countervailing duty order or anti- dumping duty order or finding, determine whether revoca- tion of the order or finding is likely to lead to continuation or recurrence of material injury,
"(B) in the case of a determination made pursuant to section 704(h)(2) or 734(h)(2), determine whether the suspension agreement continues to eliminate completely the injurious effects of imports of the subject merchandise, and
"(C) in the case of an affirmative determination result- ing fi^m an investigation continued under section 704(g) or 734(g), determine whether termination of the suspended investigation is hkely to lead to continuation or recurrence of material injury. "(3) BURDEN OF PERSUASION.—During a review conducted
by the Commission under this subsection— "(A) the party seeking revocation of an order or finding
described in parsigraph (1)(A) shall have the burden of persuasion with respect to whether there are changed cir- cumstances sufficient to warrant such revocation, and
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4861
"(B) the party seeking termination of a suspended investigation or a suspension agreement shall have the burden of persuasion with respect to whether there are changed circumstances sufficient to warrant such termi- nation. "(4) LIMITATION ON PERIOD FOR REVIEW.—In the absence
of good cause shown— "(A) the Commission may not review a determination
made imder section 705(b) or 735Cb), or an investigation suspended under section 7()4 or 734, and
"(B) the administering authority may not review a determination made under section 705(a) or 735(a), or £in investigation suspended under section 704 or 734,
less than 24 months after the date of pubUcation of notice of that determination or suspension. "(c) FIVE-YEAR REVIEW.—
"(1) IN GENERAL.—Notwithstanding subsection (b) and except in the case of a transition order defined in paragraph (6), 5 years after the date of publication of—
"(A) a countervailing duty order (other than a counter- vailing duty order to which subparagraph (B) applies or which was issued without an affirmative determination of injury by the Commission under section 303), an anti- dumping duty order, or a notice of suspension of an inves- tigation, described in subsection (aXD,
"(B) a notice of injury determination under section 753 with respect to a countervailing duty order, or
"(C) a determination under this section to continue an order or suspension agreement,
the administering authority and the Commission shall conduct a review to determine, in accordance with section 752, whether revocation of the countervailing or antidimiping duty order or termination of the investigation suspended under section 704 or 734 would be likely to lead to continuation or recurrence of dumping or a coimtervailable subsidy (as the case may be) and of material injury.
"(2) NOTICE OF INITIATION OF REVIEW.—Not later than 30 days before the fifth Eumiversary of the date described in para- graph (1), the administering authority shall publish in the Federal Register a notice of initiation of a review under this subsection and request that interested parties submit—
"(A) a statement expressing their wilhngness to partici- pate in tile review by providing information requested by the administering autiiority and the Commission,
"(B) a statement regarding the likely effects of revoca- tion of the order or termination of the suspended investiga- tion, and
"(C) such other information or industry data as the administering authority or the Conunission may specify. "(3) RESPONSES TO NOTICE OF INITIATION.—
"(A) No RESPONSE.—If no interested party responds to the notice of initiation under this subsection, the admin- istering autJiority shall issue a final determination, within 90 days after the initiation of a review, revoking the order or terminating the suspended investigation to which such notice relates. For purposes of this paragraph, an interested
Federal Register, publication.
108 STAT. 4862 PUBLIC LAW 103-465—DEC. 8, 1994
party means a party described in section 771(9) (C), (D), (E),(F),or(G).
"(B) INADEQUATE RESPONSE.—If interested parties pro- vide inadequate responses to a notice of initiation, the administering authority, within 120 days after the initi- ation of the review, or the Commission, within 150 days after such initiation, may issue, without further investiga- tion, a final determination based on the facts available, in accordance with section 776. "(4) WAIVER OF PARTICIPATION BY CERTAIN INTERESTED
PARTIES.— "(A) IN GENERAL.— Ân interested party described in
section 771(9) (A) or (B) may elect not to participate in a review conducted by the administering authority under this subsection and to participate only in the review con- ducted by the Commission imaer this subsection.
"(B) EFFECT OF WAIVER.—In a review in which an interested party waives its participation pursuant to this paragraph, the administering authority shall conclude that revocation of the order or termination of the investigation would be hkely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) with respect to that interested party. "(5) CONDUCT OF REVIEW.—
"(A) TIME LIMITS FOR COMPLETION OF REVIEW.—Unless the review has been completed pursuant to paragraph (3) or paragraph (4) applies, the administering authority shall make its nnal determination pursuant to section 752 (b) or (c) within 240 days after tne date on which a review is initiated under this subsection. If the administering authority makes a final affirmative determination, the Conmiission shall make its final determination pursuant to section 752(a) within 360 days after the date on which a review is initiated imder this subsection.
"(B) EXTENSION OF TIME LIMIT.—The administering authority or the Commission (as the case may be) may extend tne period of time for making their respective deter- minations under this subsection by not more than 90 days, if the administering authority or the Conmiission (as tiie case may be) determines that the review is extraordinarily compUcated. In a review in which the administering author- ity extends the time for making a final determination, but the Commission does not extend the time for making a determination, the Commission's determination shsill be made not later than 120 days after the date on which the final determination of the administering authority is published.
"(C) EXTRAORDINARILY COMPLICATED.—For purposes of this subsection, the administering authority or the Commis- sion (as the case may be) may treat a review as extraor- dinarily complicated if—
"(i) there is a large nimiber of issues, "(ii) the issues to be considered are complex, "(iii) there is a large number of firms involved, "(iv) the orders or suspended investigations have
been grouped as described in subparagraph (D), or "(v) it is a review of a transition order.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4863
**(D) GROUPED REVIEWS.—^The Commission, in consulta- tion with the administering authority, may group orders or suspended investigations for review if it considers tliat such grouping is appropriate and will promote administra- tive efficiency. Where orders or suspended investigations have heen grouped, the Commission shall, subject to subparagraph (B), mjake its final determination under this subsection not later than 120 days after the date that the administering authority publishes notice of its final determination with respect to the last order or agreement in the group. "(6) SPECIAL TRANSITION RULES.—
"(A) SCHEDULE FOR REVIEWS OF TRANSITION ORDERS.— "(i) INITIATION.—^The administering authority shall
begin its review of transition orders in the 42d calendar month after the date such orders are issued. A review of all transition orders shall be initiated not later than the 5th anniversary after the date such orders are issued.
**(ii) COMPLETION.—A review of a transition order , shall be completed not later than 18 months after the date such review is initiated. Reviews of all transi- tion orders shall be completed not later than 18 months after the 5th anniversary of the date such orders are issued.
*(iii) SUBSEQUENT REVIEWS.—The time limits set forth in clauses (i) and (ii) shall be appUed to aU subsequent 5-year reviews of transition orders by substituting 'date of the determination to continue such orders' for 'date such orders are issued'.
"(iv) REVOCATION AND TERMINATION.—No transi- tion order may be revoked imder this subsection before the date that is 5 years aft«r the date the WTO Agree- ment enters into force with respect to the United States. **(B) SEQUENCE OF TRANSITION REVIEWS.—^The admin-
istering authority, in consultation with the Conmiission, shall determine such sequence of review of transition orders as it deems appropriate to promote administrative effi- ciency. To the extent practicable, older orders shall be reviewed first
"(C) DEFINITION OF TRANSITION ORDER.—^For purposes of this section, the term 'transition order' means—
"(i) a coimtervailing duty order under this title or under section 303,
"(ii) an antidumping duty order under this title or a finding under the Antidumping Act, 1921, or
"(iii) a suspension of an investigation under section 704 or 734,
which is in effect on the date the WTO Agreement enters into force with respect to the United States.
"(D) ISSUE DATE FOR TRANSITION ORDERS.—^For pur- poses of this subsection, a transition order shall be treated as issued on the date the WTO Agreement enters into force with respect to the United States, if such order is based on an investigation conducted by both the admin- istering authority and the Commission.
108 STAT. 4864 PUBLIC LAW 103-465—DEC. 8, 1994
"(d) REVOCATION OF ORDER OR FINDING; TERMINATION OF SUS- PENDED INVESTIGATION.—
"(1) IN GENERAL.—^The admimstering authority may revoke, in whole or in part, a countervailing duty order or an antidump- ing duty order or finding, or terminate a suspended investiga- tion, after review under subsection (a) or (b). The administering authority shall not revoke, in whole or in part, a countervailing duty order or terminate a suspended investigation on the basis of any export taxes, duties, or other cha fe s levied on the export of the subject merchandise to the United States which are specifically intended to offset the countervailable subsidy received.
"(2) FrvE-YEAR REVIEWS.—In the case of a review conducted under subsection (c), the administering authority sh£jl revoke a countervailing duty order or an antidumping duty order or finding, or terminate a suspended investigation, unless—
"(A) the administering authority makes a determina- tion that dumping or a countervaUable subsidy, as the case may be, would be likely to continue or recur, and
"(B) the Commission makes a determination that mate- rial injury would be likely to continue or recur as described in section 752(a). "(3) APPUCATION OF REVOCATION OR TERMINATION.—A
determination under this section to revoke an order or finding or terminate a suspended investigation shall apply with respect to imliquidated entries of the subject merchandise which are entered, or withdrawn from warehouse, for consumption on or after the date determined by the administering authority. "(e) HEARINGS.—Whenever the administering authority or the
Commission conducts a review imder this section, it shall, upon the request of an interested party, hold a hearing in accordance with section 774(b) in connection witii that review.
"(f) DETERMINATION THAT BASIS FOR SUSPENSION NO LONGER EXISTS.—If the determination of the Commission under subsection (b)(2)(B) is negative, the suspension agreement shall be treated as not accepted, beginning on tiie date of publication of the Commis- sion's determination, and the administering authority and the Commission shall proceed, under section 704(i) or 734(i), as if the suspension agreement had been violated on that date, except that no duty under any order subsequentiy issued shall be assessed on merchandise entered, or withdrawn from warehouse, for consumption before that date.
"(g) CORRECTION OF MINISTERIAL ERRORS.—The administering authority shall establish procedures for the correction of ministerial errors in final determinations within a reasonable time after the determinations are issued imder 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 ftinction, clerical errors resulting fix)m inaccurate copy- ing, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.".
(b) REVIEW OF DETERMINATIONS.— 19 use 1516a. (1) IN GENERAL.—Section 516A(a)(l) (19 U.S.C. 1516A(a)(l))
is amended by striking "or" at the end of subparagraph (B), by inserting "or" at the end of subparagraph (C), and by insert-
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4865
inff immediately after subparagraph (C) the following new subparagraph:
"(D) a final determination by the administering author- ity or the Commission under section 751(0X3),". (2) TECHNICAL AMENDMENTS.—Section 516A(b)(l) (19
U.S.C. 1516a(b)(l)) is amended— (A) in subparagraph (A), by striking "under paragraph
(1) of subsection (a)" and inserting "under subparagraph (A), (B), or (C) of subsection (a)( 1)", and
. (B) in subparagraph (B)— (i) by striking "(B) in an action" and inserting
"(BXi) in an action , (ii) by striking the end period and inserting ",
or", and (iii) by adding at the end the following: "(ii) in an action brought imder paragraph (1)(D)
of subsection (a), to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.".
(c) CONFORMING AMENDMENT.—Section 504 (19 U.S.C. 1504) is amended—
(1) in subsection (a), by inserting "except as provided in section 751(a)(3)," before "an entry of merchandise not liq- uidated", and
(2) in subsection (d), by striking "When a suspension" and inserting "Except as provided in section 751(a)(3), when a suspension".
SEC. 221. REVIEW DETERMINATIONS.
(a) IN GENERAL.—Chapter 1 of subtitie C of titie VII (19 U.S.C. 1675) is amended by adding at the end the following new section: "SEC. 752. SPECIAL RULES FOR SECTION 751(b) AND 751(c) REVIEWS. 19 USC 1675a.
"(a) DETERMINATION OF LIKELIHOOD OF CONTINUATION OR RECURRENCE OF MATERIAL INJURY.—
"(1) IN GENERAL.—In a review conducted under section 751 (b) or (c), the Commission shall determine whether revoca- tion of an order, or termination of a suspended investigation, would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission shall consider the likely volume, price effect, and impact of imports of the subject merchandise on the industry if the order is revoked or the suspended investigation is terminated. The Commission shall take into account—
"(A) its prior injury determinations, including the vol- ume, price effect, and impact of imports of the subject merchandise on tiie industiy before me order was issued or the suspension agreement was accepted,
"(B) whether any improvement in the state of the industry is related to the order or the suspension agreement,
"(C) whether the industry is vulnerable to material injury if the order is revoked or the suspension agreement is terminated, and
"(D) in an antidimiping proceeding imder section 751(c), the findings of the administering autiiority regard- ing duty absorption imder section 751(a)r4). "(2) VOLUME.—In evaluating the likely volume of imports
of the subject merchandise if the order is revoked or the sus-
108 STAT. 4866 PUBLIC LAW 103-465—DEC. 8, 1994
pended investigation is terminated, the Commission shaU con- sider whether the likely voliraie of imports of the subject merchandise would be significant if the order is revoked or the suspended investigation is terminated, either in absolute terms or relative to production or consumption in the United States. In so doing, the Commission shall consider all relevant economic factors, including—
"(A) any likely increase in production capacity or exist- ing unused production capacity in the exporting country,
"(B) existing inventories of the subject merchandise, or likely increases in inventories,
"(Cf) the existence of barriers to the importation of such merchandise into countries other than the United States, and
"(D) 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. "(3) PRICE.—In evaluating the Ukely price effects of imports
of the subject merchandise if the order is revoked or the sus- pended investigation is terminated, the Commission shall con- sider whether—
"(A) there is likely to be significant price imderseUing by imports of the subject merchandise as compared to domestic like products, and
"(B) imports of the subject merchandise are likely to enter the United States at prices that otherwise would have a significant depressing or suppressing effect on the price of domestic like products. (4) IMPACT ON THE INDUSTRY.—In evaluating the likely
impact of imports of the subject merchandise on tne industry if the order is revoked or the suspended investigation is termi- nated, the Commission shall consider all relevant economic factors which are likely to have a bearing on the state of the industry in the United States, including, but not limited to—
"(A) Ukely decUnes in output, sales, market share, prof- its, productivity, return on investments, and utilization of capacity,
(B) ukely negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment, and
"(C) likely negative effects on the existing development £md production efforts of the industry, including efforts to develop a derivative or more advanced version of the domestic like product.
The Commission shall evaluate all relevant economic factors described in this paragraph within the context of the business cycle and the conditions of competition that are distinctive to the affected industry.
"(5) BASIS FOR DETERMINATION.—The presence or absence of any factor which the Commission is required to consider \inder this subsection shall not necessarily give decisive guid- ance with respect to the Commission's determination of whether material injury is likely to continue or reciu* within a reasonably foreseeable time if the order is revoked or the suspended inves- tigation is terminated. In making that determination, tiie
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4867
Commission shall consider that the effects of revocation or termination may not be imminent, but may manifest them- selves only over a longer period of time.
"(6) MAGNITUDE OF MARGIN OF DUMPING AND NET COUNTERVAILABLE SUBSIDY; NATURE OF COUNTERVAILABLE SUB- SIDY.—In making a determination under section 751 (b) or (c), the Commission may consider the magnitude of the m a i ^ n of dumping or the magnitude of the net countervailable subsidy. If a countervailable subsidy is involved the Commission shall consider information regarding the nature of the countervailable subsidy and whether the subsidy is a subsidy described in Article 3 or 6.1 of the Subsidies Agreement.
"(7) CUMULATION.—For purposes of this subsection, the Commission may cumulatively assess the volume and effect of imports of the subject merchandise from all countries with respect to which reviews under section 751 (b) or (c) were initiated on the same day, if such imports would be likely to compete with each other and with domestic like products in the United States market. The Commission shall not cumula- tively assess the volume and effects of imports of the subject merchandise in a case in which it determines that such imports are likely to have no discernible adverse impact on the domestic industry.
"(8) SPECIAL RULE FOR REGIONAL INDUSTRIES.—In a review under section 751 (b) or (c) involving a regional industry, the Commission may base its determination on the regional indus- try defined in the original investigation under this title, another region that satisfies tiae criteria established in section 771(4)(C), or the United States as a whole. In determining if a regional industry anahrsis is appropriate for the determination in the review, the Commission shall consider whether the criteria estabUshed in section 771(4)(C) are likely to be satisfied if the order is revoked or the suspended investigation is terminated. "(b) DETERMINATION OF LIKELIHOOD OF CONTINUATION OR
RECURRENCE OF A COUNTERVAILABLE SUBSIDY.— "(1) IN GENERAL.—In a review conducted under section
751(c), the administering authority shall determine whether revocation of a coimtervailing duty order or termination of a suspended investigation under section 704 would be likely to lead to continuation or recurrence of a countervailable sub- sidy. The administering authority shall consider—
"(A) the net countervailable subsidy determined in the investigation and subsequent reviews, and
"(B) whether £my change in the program which gave ^ rise to the net countervailable subsidy described in subparagraph (A) has occurred that is likely to affect that net countervailable subsidy. "(2) CONSIDERATION OF OTHER FACTORS.—If good cause is
shown, the administering authority sh£dl also consider— **(A) programs determined to provide countervailable
subsidies in other investigations or reviews under this title, but only to the extent that such programs—
"(i) can potentially be used by the exporters or producers subject to the review under section 751(c), and
108 STAT. 4868 PUBLIC LAW 103-465—DEC. 8, 1994
"(ii) did not exist at the time that the countervail- ing duty order was issued or the suspension agreement was accepted, and "(B) p ro -ams newly alleged to provide countervailable
subsidies but only to the extent that the administering authority makes an affirmative countervailing duty deter- mination with respect to such programs and with respect to the exporters or producers subject to the review. "(3) N E T COUNTERVAILABLE SUBSIDY.—The administering
authority shall provide to the Commission the net countervailable subsidy that is likely to prevail if the order is revoked or the suspended investigation is terminated. The administering authority shall normally choose a net countervailable subsidy that was determined under section 705 or subsection (a) or (b)(1) of section 751.
"(4) SPECLfU. RULE.— "(A) TREATMENT OF ZERO AND DE MINIMIS RATES.—
A net countervailable subsidy described in paragraph (1)(A) that is zero or de minimis shall not by itself require the administering authority to determine that revocation of a coimtervailing duty order or termination of a suspended investigation would not be likely to lead to continuation or reciurence of a countervailable subsidy.
"(B) APPLICATION OF DE MINIMIS STANDARDS.—For pur- poses of this paragraph, the administering authority snail apply the de minimis standards applicable to reviews con- ducted under subsections (a) and (b)(1) of section 751.
"(c) DETERMINATION OF LIKELIHOOD OF CONTINUATION OR RECURRENCE OF DUMPING.—
"(1) IN GENERAL.—In a review conducted under section 751(c), the administering authority shall determine whether revocation of an antidumping duty order or termination of a suspended investigation under section 734 would be likely to lead to continuation or reciurence of sales of the subject merchandise at less than fair value. The administering author- ity shall consider—
"(A) the weighted average dumping margins deter- mined in the investigation and subsequent reviews, and
"(B) the voliune of imports of the subject merchandise for the period before ana the period after the issuance of the antidumping duty order or acceptance of the suspen- sion agreement. "(2) CONSIDERATION OF OTHER FACTORS.—If good cause is
shown, the administering authority shall also consider such other price, cost, market, or economic factors as it deems relevant.
"(3) MAGNITUDE OF THE MARGIN OF DUMPING.—The admin- istering authority shall provide to the Commission the mag- nitude of the margin of̂ dumping that is likely to prevail if the order is revoked or the suspended investigation is termi- nated. The administering authority shall normally choose a margin that was determined under section 735 or under sub- section (a) or (b)(1) of section 751.
"(4) SPECIAL RULE.— "(A) TREATMENT OF ZERO OR DE MINIMIS MARGINS.—
A dimiping margin described in paragraph (1)(A) that is zero or de minimis shall not by itself require ihe admin-
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4869
istering authority to determine that revocation of an antidumping duty order or termination of a suspended investigation woilld not be hkely to lead to continuation or reciurence of sales at less than fair value.
"(B) APPLICATION OF DE MINIMIS STANDARDS.—For pur- poses of this paragraph, the administering authority snail apply the de minimis standards appHcable to reviews con- ducted under subsections (a) and (b) of section 751.".
(b) AFFIRMATIVE DETERMINATIONS BY DIVIDED COMMISSION.— Section 771(11) (19 U.S.C. 1677(11)) is amended by inserting ", including a determination under section 751," after "determination by the Commission".
(c) CONFORMING AMENDMENT.—The table of contents for titie VII is jmiended by inserting after the item relating to section 751 the following: "Sec. 752. Special rules for section 751(b) and 751(c) reviews.".
SEC. 222. DEFINITIONS.
(a) INDUSTRY.— (1) IN GENERAL.—Subparagraphs (A) and (B) of section
771(4) (19 U.S.C. 1677(4) (A) and (B)) are amended to read as follows:
"(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 produc- tion of the product.
"(B) RELATED PARTIES.— "(i) If a producer of a domestic Uke 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 merchan- dise, the producer may, in appropriate circumstances, be excluded fix)m the industry.
"(ii) For piirposes of clause (i), a producer and an exporter or importer shall be considered to be related parties, if—
"(I) the producer directiy or indirectiy controls the exporter or importer,
"(II) the exporter or importer directiy or indirectly controls the producer,
"(III) a third party directiy or indirectiy con- trols the producer and the exporter or importer, or
"(IV) the producer and the exporter or importer directiy or indirectiy control a third party £ind there is reason to believe that the relationship causes the producer to act differentiy than a nonrelated producer.
For piuposes of this subparagraph, a party shall be considered to directiy or indirectiy control £uiother party if the party is legally or operationally in a posi- tion to exercise restraint or direction over the other party.".
(2) REGIONAL INDUSTRY.—Section 771(4XC) (19 U.S.C. 1677(4)(C)) is amended by adding at the end the following new sentence: "The term 'regional industry* means the domestic
108 STAT. 4870 PUBLIC LAW 103-465—DEC. 8, 1994
producers within a region who are treated as a sepsirate indus- try under this subparagraph.". (b) IMPACT ON AFFECTED DOMESTIC INDUSTRY.—
(1) IN GENERAL.—Section 771(7)(C)(iii) (19 U.S.C. 1677(7)(C)(iii)) is amended—
(A) by striking "and" at the end of subclause (III), £ind
(B) by striking the period at the end of subclause (IV) and inserting ", and
"(V) in a proceeding under subtitle B, the mag- nitude of the margin of dumping.".
(2) CAPTIVE PRODUCTION.—Section 771(7)(C) (19 U.S.C. 1677(7)(C)) is amended by striking clause (iv) and inserting the following:
"(iv) CAPTIVE PRODUCTION.—If domestic producers internally transfer significant production of the domes- tic like product for the production of a downstream article and sell significant production of the domestic like product in the merchant market, and the Commis- sion 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 Uke product is the predomi- nant material input in the production of that down- stream article, and
"(III) the production of the domestic like prod- uct sold in the merchjint market is not generally used in the production of that downstresim article,
then the Commission, in determining market share and the factors affiecting financial performance set forth in clause (iii), shall focus primarily on the merchant market for the domestic like product.".
(3) TECHNICAL CORRECTION.—Section 771(7)(C)(iii) is amended by striking "subparagraph (B)(iii)" and inserting "subparagraph (B)(i)ail)''. (c) DETERMINATION OF THREAT OF INJURY.—Clauses (i) and
(ii) of section 771(7)(F) (19 U.S.C. 1677(7)(F) (i) and (ii)) are amended to read as follows:
"(i) IN GENERAL.—In determining whether an industry in the United States is threatened with mate- rial injury by reason of imports (or sales for importa- tion) 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 (psurticulsirly 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 inuninent, substantial increase in production capacity in the exporting country indicating the likelihood of substantially increased imports of the
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4871
subject merchandise into the United States, taking into account tibe availabUity of other export mar- kets to absorb any additional exports,
"(III) a signincsint rate of mcrease of the vol- ume or market penetration of imports of the sub- ject merchandise indicating the UkeUhood of substantially increased imports,
"(IV) whether imports of the subject merchan- dise are entering at prices that are likely to have a significant depressing or suppressing effect on domestic prices, and are hkely to increase demand for further imports,
"(V) inventories of the subject merchandise, "(VI) the potential for product-shifting if
production facilities in the fore i^ country, wnich can be used to produce the subject merchandise, are currently being used to produce other products,
"(VII) in any investigation imder this title which involves imports of Doth a raw agricultural product (within the meaning of paragraph (4XEXiv)) and any product processed from such raw agricultural product, the likelihood that there wiU be increased imports, by reason of product shifting, if there is an affirmative determination by the Commission under section 705(b)(1) or 735(b)(1) with respect to either the raw agricul- tural 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 probabiUty 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 agree- ment is accepted under this titie. The presence or absence of any factor which the Commission is required to consider under clause (i) shall not necessarily ^ve decisive guidance with respect to the determination. Such a determination may not be made on the basis of mere conjecture or supposition.",
(d) NEGLIGIBLE IMPORTS.—Section 771 (19 U.S.C. 1677) is amended—
(1) in paragraph (7) by striking clause (v) of subparagraph (C), and
(2) by adding at the end the following: "(24) NEGUGIBLE IMPORTS.—
108 STAT. 4872 PUBLIC LAW 103-465—DEC. 8, 1994
"(A) IN GENERAL.— "(i) LESS THAN 3 PERCENT.—^Except as provided
in clauses (ii) and (iv), imports from a countiy of mer- chandise corresponding to a domestic Uke product identified by the Commission are 'neghgible' if such imports account for less than 3 percent of the volimie 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 702(b) or 732(b), or
"(II) the initiation of the investigation, if the investigation was initiated under section 702(a) or 732(a). **(ii) EXCEPTION.—^Imports that would otherwise be
negligible under clause (i) shall not be negligible if the aggregate volimie of imports of the merchandise fix)m all countries described in clause (i) with respect to which investigations were initiated on the same day exceeds 7 percent of the volume of aU such mer- chandise imported into the United States during the appUcable 12-month period.
"(iii) DETERMINATION OF AGGREGATE VOLUME.—In determining aggregate volume under clause (ii) or (iv), the Commission snaU not consider imports fix>m any coimtry specified in paragraph (7XG)(ii).
"(iv) NEGUGIBILITY IN THREAT ANALYSIS.—Notwith- standing clauses (i) and (ii), the Commission shall not treat imports as negligible if it determines that there is a potential that imports fi:t)m 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 volnmes of imports fit)m all countries described in clause (ii) will imminentlv 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
couNTERVAiUNG DUTY INVESTIGATIONS.—In the case of an investigation under section 701, subparagraph (A) shall be applied to imports of subject merchandise from develop- ing 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 regioned industry deter- mination under paragraph (4)(C), the Commissions exEun- ination under subparagraphs (A) and (B) shall be based upon the volume of subject merchandise exported for sale in the regional market in Ueu of the volume of all subject merchandise imported into the United States.".
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4873
(e) CUMULATION.—Section 771(7) (19 U.S.C. 1677(7)) is amended—
(1) in subparagraph (F) bv striking clause (iv), and (2) by adding at tne end me following:
(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 cimiulatively assess the volume and effect of imports of the subiect merchandise from all countries Avith respect to which—
"(I) petitions were filed imder section 702(b) or 732(b) on the same day,
"(II) investigations were initiated under sec- tion 702(a) or 732(a) on the same day, or
"(III) petitions were filed under section 702(b) or 732(b) and investigations were initiated under section 702(a) or 732(a) 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 preUminary negative deter- mination, imless the administering authority sub- sequently made a final affirmative determination with respect to those imports before the Commis- sion's final determination is made;
"(II) fix)m any coimtry with respect to which the investigation has been terminatea;
"(III) from any country designated as a bene- ficiary country imder the Caribbean Basin Eco- nomic Recovery Act (19 U.S.C. 2701 et seq.) for purposes of making a determination with respect to tiiat country, except that the volume and effect of imports of the subject merchandise fix)m such country may be cumulatively assessed with imports of the subject merchandise fix)m any other country designated as such a beneficiary country to the extent permitted by clause (i); or
"(IV) fix)m 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, imless the Commission determines that a domestic industry is materially injured or threatened with material injiuy by rea- son of imports from that coimtry. "(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
108 STAT. 4874 PUBLIC LAW 103-465—DEC. 8, 1994
investigation to submit comments concerning the significance of the administering authority's final determination, and shaU include such comments £uid 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 whicn the Commission decides that the volume and effect of imports should be cumulatively assessed under this subparagraph, such assessment shall be based upon the volimie sind effect of imports into tiie region or regions determined by tiie Commission. The provi- sions of clause (iii) shall apply to such investigations. "(H) CUMULATION FOR DETERMINING THREAT OF MATE-
RIAL INJURY.—^To the extent practicable and suWect to subparagraph (G)(ii), for purposes of clause (iXIII) and (IV) of subparagraph (F), the Commission may cumula- tively 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 702(b) or 732(b) on the same day,
"(ii) investigations were initiated under section 702(a) or 732(a) on the same day, or
"(iii) petitions were filed under section 702(b) or 732(b) and investigations were initiated under section 702(a) or 732(a) on the same day,
if such imports compete with each other and with domestic like products in the United States market".
(f) CONSIDERATION OF POST-PETITION INFORMATION.—Section 771(7) (19 U.S.C. 1677(7)), is amended by adding a t tiie end the following:
"(I) CONSIDERATION OF POST-PETITION INFORMATION.— The Commission shall consider whether any change in the volimie, price effects, or impact of imports of the subject merchandise siuce the filing of the petition in an investiga- tion under subtitie A or B is related to tiie pendency of tiie investigation and, if so, tiie Commission may reduce the weight accorded to the data for the period after the filing of the petition in making its determination of material imury, threat of material injury, or material retardation of the establishment of an industry in the United States.".
(g) INTERESTED PARTY.—Section 771(9) (19 U.S.C. 1677(9)) is amended—
(1) in subparagraph (A), by inserting "producers, exporters, or'' before "importers", and
(2) in subparagraph (B), inserting "or froTD. which such merchandise is exported" after "manufactured". (h) ORDINARY COURSE OF TRADE.—Section 771(15) (19 U.S.C.
1677(15)) is amended— (1) by striking "merchandise which is the subject of an
investigation" and inserting "subject merchandise"; and (2) by adding at the end the following: "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 773(b)(1). "(B) Transactions disregarded imder section 773(f)(2).".
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4875
(i) OTHER DEFINITIONS.— (1) IN GENERAL.-—Section 771 (19 U.S.C. 1677), as amended
by subsection (d), is amended by adding at tiie end tiie following:
"(25) SUBJECT MERCHANDISE.—The term 'subject merchan- dise' means the class or kind of merchandise that is within the scope of sin investigation, a review, a suspension agreement, an order under this titie or section 303, or a finding under the Antidumping Act, 1921.
"(26) SECTION 303.—The terms 'section 303' and '303' mean section 303 of this Act 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 704(b), 704(c), 734(b), 734(c), or 734(1).
"(28) EXPORTER OR PRODUCER.—The term 'exporter or pro- ducer* means the exporter of the subject merchandise, the pro- ducer of the subject merchandise, or both where appropriate. For purposes of section 773, the term 'exporter or producer* includes both tiie exporter of the subject merchandise and the producer of the same subject merchandise to the extent nec- essary to accurately calculate the total amount incurred and resiUzed 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 2(9) of the Uruguay Round Agreements Act.
"(30) WTO MEMBER AND WTO MEMBER COUNTRY.—The terms ^WTO member' and WTO member countiy mean a state, or separate customs territory (within the meaning of Article XII of the WTO Agreement), with respect to which the United States appUes the WTO agreement.
"(31) GATT 1994.—The term 'GATT 1994' means the Gen- eral Agreement on Tariffs and Trade annexed to the WTO Agreement
"(32) TRADE REPRESENTATIVE.—The term 'Trade Represent- ative' means the United States Trade Representative.
"(33) AFFILIATED PERSONS.—The following persons shall be considered to be 'affihated' or 'siffihated persons':
"(A) Members of a family, including brothers and sis- ters (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 directiy or indirectiy owning, control-
ling, or holding with power to vote, 5 percent or more of the outstanding voting stock or shares of any organiza- tion and such organization.
"(F) Two or more persons directiy or indirectiy control- ling, controlled by, or under common control with, any person.
"(G) Any person who controls any other person and such other person.
108 STAT. 4876 PUBLIC LAW 103-465—DEC. 8, 1994
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 otiier person.
"(34) DUMPED; DUMPING.—The terms 'dumped' and *dump- ing* refer to the sale or likely sale of goods at less than fair value.".
(2) EXPORTER.—Paragraph (13) of section 771 (19 U.S.C. 1677(13)) is repealed.
SEC. 223. EXPORT PRICE AND CONSTRUCTED EXPORT PRICE.
Section 772 (19 U.S.C. 1677a) is amended to read as follows:
"SEC. 772. EXPORT PRICE AND CONSTRUCTED EXPORT PRICE.
"(a) EXPORT PRICE.—The term 'export price' means the price at which the subject merchandise is first sold (or sigreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c).
"(b) CONSTRUCTED EXPORT PRICE.—The term 'constructed export price' means the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller siffiliated with the producer or exporter, to a purchaser not affiliated with the producer or ejcporter, as adjusted under subsections (c) and (d).
(c) ADJUSTMENTS FOR EXPORT PRICE AND CONSTRUCTED EXPORT PRICE.—The price used to establish export price and con- structed export price snail be—
"(1) increased by— "(A) when not included in such price, the cost of all
containers and coverings and all other costs, charges, and expenses incident to placing the subject merchandise in condition packed ready for snipment to the United States,
"(B) tne amount of any import duties imposed by the country of exportation which have been rebated, or which have not been collected, by reason of the exportation of the subject merchandise to the United States, and
"(C) the amount of any countervEuling duty imposed on the subject merchandise under subtitle A to offset an export subsidy, and "(2) reduced by—
"(A) except as provided in paragraph (1)(C), the amount, if any, included in such price, attributable to any additional costs, chjirges, or expenses, and United States import duties, which are incident to bringing the subject merchandise from the original place of snipment in the exporting country to the place of delivery in the United States, and
"(B) the amoimt, if included in such price, of any export tax, duty, or other charge imposed by the exporting country on the exportation of the subject merchandise to the United States, other than an export tax, duty, or other charge described in section 771(6)(C).
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4877
**(d) ADDITIONAL ADJUSTMENTS TO CONSTRUCTED EXPORT PRICE.—For purposes of this section, the price used to establish constructed export price shall also be reduced by—
"(1) the amount of any of the following expenses generally incurred by or for the account of the producer or exporter, or the affiliated seller in the United States, in selling the subject merchandise (or subject merchandise to which value has been added)—
**(A) conmiissions for seUing the subject merchandise in the United States;
"(B) expenses that result from, and bear a direct rela- tionship to, the sale, such as credit expenses, guarantees and warranties;
"(C) any seUing expenses that the seller pays on behalf of the purchaser; and
"(D) any selling expenses not deducted under subpara- graph (A), (B), or (C); 12) the cost of any fiirtiier manufacture or assembly
(including additional material and labor), except in cir- cumstances described in subsection (e); and
"(3) the profit fillocated to the expenses described in para- graphs (1) and (2). (e) SPECIAL RULE FOR MERCHANDISE WITH VALUE ADDED
AFTER IMPORTATION.—^Where the subject merchandise is imported by a person affihated with the exporter or producer, and the value added in the United States by the affihated person is likely to exceed substantially tiie value of the subiect merchandise, the administering authority^ shall determine tne constructed export price for such merchandise by using one of the following prices if there is a sufficient quantity of sales to provide a reasonable basis for comparison and the administering authority determines that the use of such sales is appropriate:
"(1) The price of identical subject merchandise sold by the exporter or producer to an unaffihated person.
"(2) The price of other subject merchandise sold by the exporter or producer to an unaffihated person.
If there is not a sufficient quantity of sales to provide a reasonable basis for comparison under paragraph (1) or (2), or the administer- ing authority determines that neither of the prices described in such p£u*agraphs is appropriate, then the constructed export price may be determined on aay other reasonable basis.
"(f) SPECIAL RULE FOR DETERMINING PROFIT.— "(1) IN GENERAL.—For purposes of subsection (d)(3), profit
shall be an amount determined by multiplying the total actual profit by the apphcable percentage.
"(2) DEFINITIONS.—Forpmposes of this subsection: "(A) APPLICABLE PERCENTAGE.—The term 'apphcable
percentage' means the percentage determined by dividing the total United States expenses by the total expenses.
"(B) TOTAL UNITED STATES EXPENSES.—The term 'total United States expenses' means the total expenses described in subsection (d) (1) and (2).
"(C) TOTAL EXPENSES.—The term total expenses' means aU expenses in the first of the following categories which apphes and which are incurred by or on behalf of the foreign producer and foreign escporter of the subject merchandise and by or on behalf of the United States
108 STAT. 4878 PUBLIC LAW 103-465--DEC. 8, 1994
seller affiliated with the producer or exporter with respect to the production and sale of such merchandise:
"(i) The expenses incurred with respect to the sub- ject merchandise sold in the United States and the foreign like product sold in the exporting country if such expenses were requested by the aoministering authority for the purpose of establishing normal value and constructed export price.
**(ii) The expenses incurred with respect to the narrowest category of merchandise sold in the United States and the exporting country which includes the subject merchandise.
"(iii) The expenses incurred with respect to the narrowest category of merchandise sold in all countries which includes the subject merchandise. "(D) TOTAL ACTUAL PROFIT.—The term total actual
profit' means the total profit earned by the foreign pro- ducer, exporter, and affiliated parties described in subptira- graph (C) with respect to the sale of the s£ime merchandise for which total expenses are determined under such subparagraph.".
SEC. 224. NORMAL VALUE.
Section 773 (19 U.S.C. 1677b) is amended to read as follows:
"SEC. 773. NORMAL VALUE.
"(a) DETERMINATION.—In determining under this title whether subject merchandise is being, or is likely to be, sold at less than fair value, a fair comparison shall be made between the export price or constructed escport price and normal value. In order to achieve a fair comparison with the export price or constructed export price, normal value shall be determined as foUows:
"(1) DETERMINATION OF NORMAL VALUE.— "(A) IN GENERAL.—^The normal value of the subject
merchandise shall be the price described in subpsiragraph (B), at a time reasonably corresponding to the time of the sale used to determine the export price or constructed export price under section 772(a) or (b).
"(B) PRICE.—^The price referred to in subparagraph (A) is—
**(i) the price at which the foreign like product is first sold (or, in the absence of a sale, offered for sale) for consumption in the exporting country, in the usual commercial Quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade as the export price or constructed export price, or
"(ii) in a case to which subparagraph (C) appUes, the price at which the foreign like product is so sold (or offered for sale) for consumption in a country other than the exporting country or the United States, if—
"(I) such price is representative, "(II) the aggregate quantity (or, if quantitv
is not appropriate, value) of the foreign like prod- uct sold by the exporter or producer in such other country is 5 percent or more of the aggregate quan- tity (or value) of the subject merchandise sold in
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4879
the United States or for export to the United States, and
"(III) the administering authority does not determiine that the particular market situation in such other country prevents a proper comparison with the export price or constructed export price.
**(C) THIRD COUNTRY SALES.—This subparagraph appUes when—
"(i) the foreign like product is not sold (or offered for sale) for consumption in the exporting country as described in subparagraph (B)(i),
"(ii) the administering authority determines that the aggregate quantity (or, if quantity is not appro- priate, value) of the foreign like product sold in the exporting cotmtry is insufficient to permit a proper comparison with the sales of the subject merchandise to the United States, or
"(iii) the particular market situation in the export- ing country does not permit a proper comparison with the export price or constructed export price.
For purposes or clause (ii), the aggregate quantity (or value) of the foreign like product sold in the exportixig country shall normally be considered to be insufficient if such quan- tity (or value) is less than 5 percent of the aggregate quantity (or value) of sales of the subject merchandise to the United States. "(2) FICTITIOUS MARKETS.—No pretended sale or offer for
sale, and no sale or offer for sale intended to estabUsh a fictitious market, shall be taken into account in determining normal value. The occurrence of different movements in the prices at which different forms of the foreign like product are sold (or, in the absence of sales, offered for sale) in the exporting country sifter the issuance of an antidumping duty order may be considered by the administering authority as evidence of the establishment of a fictitious market for the foreign like product if the movement in such prices appears to reduce the amount by which the normal value exceeds the export price (or the constructed export price) of the subject merchandise.
"(3) EXPORTATION FROM AN INTERMEDIATE COUNTRY.— Where the subject merchandise is exported to the United States fh)m an intermediate; country, normal value shall be determined in the intermediate country, except that normal value may be determined in the country of origin of the subject merchan- dise if—
"(A) the prctducer knew at the time of the sale that the subject merclbiandise was destined for esroortation;
"(B) the subject merchandise is merely transshipped through the intermediate coimtry;
"(C) sales of the foreign like product in the intermediate country do not satisfy the conditions of paragraph (1)(C); or
"(D) the foreign like product is not produced in the intermediate country. "(4) U S E OF CONSTRUCTED VALUE.—If the administering
authority determines that the normal value of the subject mer- chandise carmot be determined under paragraph (IXBXi), then,
108 STAT. 4880 PUBLIC LAW 103-465—DEC. 8, 1994
notwithstanding paragraph (l)(B)(ii), the normal value of the subject merchandise may be the constructed value of that mer- chandise, as determined under subsection (e).
"(5) INDIRECT SALES OR OFFERS FOR SALE.—If the foreign like product is sold or, in the absence of sales, offered for sale through an affiHated party, the prices at which the foreign like product is sold (or offered for sale) by such siffiliated party may De used in determining normal value.
"(6) ADJUSTMEhfTS.—^The price described in paragraph (IXB) shall be—
**(A) increased by the cost of all containers and cover- ings and all other costs, charges, and expenses incident to placing the subject merchandise in condition packed reaay for shipment to the United States;
(B) reduced by— "(i) when included in the price described in para-
graph (1)(B), the cost of all containers and coverings ana all other costs, charges, and expenses incident to placing the foreign like product in condition packed ready for shipment to the place of deHvery to the purchaser,
"(ii) the amount, if any, included in the price described in paragraph (1)(B), attributable to any addi- tional costs, charges, and expenses incident to bringing the foreign like product from the original place of snip- ment to the place of dehvery to the purchaser, and
"(iii) the amount of any taxes imposed directly upon the foreign like product or components thereof wnich have been rebated, or which have not been col- lected, on the subject merchandise, but only to the extent that such taxes are added to or included in the price of the foreign Hke product, and "(C) increased or decreased by the amount of any dif-
ference (or lack thereof) between the export price or con- structed export price and the price described in paragraph (1)(B) (other than a difference for which allowance is other- wise provided under this section) that is established to the satisfaction of the administering authority to be whoUy or partly due to—
"(i) the fact that the quantities in which the subject merchandise is sold or agreed to be sold to the United States are greater than or less than the quantities in which the foreign like product is sold, agreed to be sold, or offere4 for sale,
**(ii) the fact that merchandise described in subparagraph (B) or (C) of section 771(16) is used in determining normal value, or
"(iii) other differences in the circumstances of sale. "(7) ADDITIONAL ADJUSTMENTS.—
"(A) LEVEL OF TRADE.—^The price described in para- graph (1)(B) shall also be increased or decreased to make due allowance for any difference (or lack thereof) between the export price or constructed 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 or constructed
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4881
export price and normal value, if the difference in level of trade—
"(i) involves the performance of different selling activities; and
"(ii) is demonstrated to affect price comparability, 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 country in which normal value is determined.
"(B) CONSTRUCTED EXPORT PRICE OFFSET.^When nor- mal value is established at a level of trade which con- stitutes a more advanced stage of distribution than the level of trade of the constructed export price, but the data available do not provide an appropriate basis to determine under subparjigraph (AXii) a level of trade adjustment, normal value snail be reduced by the amount of indirect selling expenses inciured in the country in which normal value is determined on sales of the foreign like product but not more than the amount of such expenses for which a deduction is made under section 772(d)(IXD). "(8) ADJUSTMENTS TO CONSTRUCTED VALUE.—Constructed
value as determined under subsection (e), 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 beUeve or suspect that sales of me foreign like product under consider- ation for the detenmnation of normal value have been made at prices which represent less than the cost of production of ma t product, the administering author i^ shall determine whether, in fact, such sales were made at less than the cost of production. If the administering authority determines that sales made at less than the cost of production—
"(A) have been made within an extended period of time in substantial quantities, and
"(B) were not at prices which permit recovery of all costs within a reasonable period of time,
such sales may be disregarded in the determination of normal value. Whenever such sales are disregarded, normal value shall be based on the remaining sales of the foreign like product in the ordinary course of trade. If no sales made in the ordinary course of traae remain, the normal value shall be based on the constructed value of the merchandise.
"(2) DEFINITIONS AND SPECIAL RULES.—For pmposes of this subsection—
"(A) REASONABLE GROUNDS TO BELIEVE OR SUSPECT.— There are reasonable grounds to beUeve or suspect that sales of the foreign like product were made at prices that are less than the cost of production of the product, if—
"(i) in an investigation initiated imder section 732 or a review conducted under section 751, an interested party described in subparagraph (C), (D), (E), (F), or (G) of section 771(9) provides information, based upon observed prices or constructed prices or costs, ma t
108 STAT. 4882 PUBLIC LAW 103-465—DEC. 8, 1994
sales of the foreign like product under consideration for the determination of normal value have been made at prices which represent less than the cost of produc- tion of the product; or
"(ii) in a review conducted under section 751 involving a specific exporter, the administering author- ity disregarded some or all of the exporter's sales pursuant to paragraph (1) in the investigation or if a review has been completed, in the most recently completed review. "(B) EXTENDED PERIOD OF TIME.—The term 'extended
period of time' means a period that is normally 1 year, but not less than 6 months.
"(C) SUBSTANTIAL QUANTITIES.—Sales made at prices below the cost of production have been made in substantial quantities if—
**(i) the volume of such, sales represents 20 percent or more of the volume of sales under consideration for the determination of normal value, or
"(ii) the weighted average per unit price of the sales imder consideration for the determination of nor- mal value is less than the weighted average per unit cost of production for such sales. "(D) RECOVERY OF COSTS.—If prices which are below
the per unit cost of production at the time of sale are above the weighted average per unit cost of production for the period of investigation or review, such prices shall be considered to providfe for recovery of costs within a reasonable period of time. "(3) CALCULATION OF COST OF PRODUCTION.—For pmposes
of this subtitle, the cost of production shall be an amount equal to the simi of—
"(A) the cost of materials and of &brication or other processing of any kind employed in producing the foreign like product, during a period which would ordinarily permit the production of uiat foreign like product in the ordinary course of business;
"(B) an amount for selling, general, and administrative expenses based on actual data pertaining to production and sales of the foreign like product by the exporter in question; and
**(C) the cost of all containers and coverings of whatever nature, and all other expenses incidental to placing the foreign like product in condition packed ready for shipment.
For purposes of subparagraph (A), if the normal value is based on me price of the foreign like product sold for consumption in a country other than the exporting country, the cost of materials shall be determined without regard to any internal tax in the exporting country imposed on such materials or their disposition which are remitted or refunded upon exportation. *(c) NONMARKET ECONOMY COUNTRIES.—
"(1) IN GENERAL.—If— "(A) the subject merchandise is exported from a
nonmarket economy country, and
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4883
"(B) the administering authority finds that available information does not permit the normal value of the subject merclmndise to be determined under subsection (a),
the administering authority shall determine the normal value of the subject merchandise on the basis of the value of the factors of production utilized in producing the merchandise and to which shall be added an amount for general expenses and profit plus the cost of containers, coverings, and other expenses. Except as provided in paragraph (2), the valuation of the factors oi production shall be based on the best available information regsirding the values of such factors in a market economy country or countries considered to be appropriate by the administering authority.
"(2) EXCEPTION.—If the administering authority finds that the available information is inadequate for purposes of deter- mining the normal value of subject merchandise under para- graph (1), the administering authority shall determine the normal value on the basis of the price at which merchandise that is—
"(A) comparable to the subject merchandise, and **(B) produced in one or more market economy countries
that are at a level of economic development comparable to that of the nonmarket economy country,
is sold in other coimtries, including the United States. "(3) FACTORS OF PRODUCTION.—For puiposes of paragraph
(1), the factors of production utilized in producing merchandise include, but are not Limited to—
**(A) hours of labor required, "(B) quantities of raw materials employed, "(C) amounts of energy and other utilities consiuned,
and "(D) representative capital cost, including depreciation.
"(4) VALUATION OF FACTORS OF PRODUCTION.—llie admin- istering authority, in valuing factors of production under para- graph (1), shall utUize, to the extent possible, the prices or costs of factors of production 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 merchandise. "(d) SPECIAL RULE FOR CERTAIN MULTINATIONAL CORPORA-
TIONS.—^Whenever, in the course of an investigation under this title, the administering authority determines that—
"(1) subject merchandise exported to the United States is being produced in faciHties which are owned or controlled, directly or indirectly, by a person, firm, or corporation which also owns or controls, directly or indirectly, other faciHties for the production of the foreign like product which are located in another country or countries,
"(2) subsection (a)(lXC) appUes, and "(3) the normal value of tne foreign like product produced
in one or more of the facilities outside the exporting country is higher than the normal vsdue of the foreign Uke product produced in the facilities located in tlie exporting country,
it shall determine the normal value of the subject merchandise by reference to the normjil vsdue at which the foreign like product is sold in substantial quantities fix)m one or more facilities outside
108 STAT. 4884 PUBLIC LAW 103-465—DEC. 8, 1994
the exporting country. The administering authority, in making any determination under this paragraph, shall make adjustments for the difference between the cost of production (including taxes, labor, materials, and overhead) of the foreign like product produced in facilities outside the exporting country and costs of production of the foreign like product produced in facilities in the exporting country, if such differences are demonstrated to its satisfaction. For purposes of this subsection, in determining the normal value of the foreign like product produced in a country outside of the exporting country, the administering authority shall determine its price at the time of exportation from tlie exporting coimtry and shall make any adjustments required by subsection (a) for the cost of all containers and coverings and all other costs, charges, and expenses incident to placing the merchandise in condition packed ready for shipment to the United States by reference to such costs in the exporting country.
"(e) CONSTRUCTED VALUE.—For purposes of this tide, the con- structed value of imported merchanoise shall be an amount equal to the sum of—
**(1) the cost of materials and fabrication or other processing of any kind employed in producing the merchandise, during a period which would ordinarily permit the production of the merchandise in the ordinary course of business;
"(2)(A) the actual amounts incurred and realized by the specific exporter or producer being examined in the investiga- tion or review for selling, general, £uid administrative expenses, and for profits, in connection with the production and sale of a fo re i^ like product, in the ordinary course of trade, for consiunption in the foreign country, or
**(B) if actUEd data are not available with respect to the amounts described in subparagraph (A), then—
"(i) the actual amounts incurred and reahzed by the specific exporter or producer being examined in the inves- tigation or review for seUing, general, and administrative expenses, and for profits, in connection with the production and sale, for consumption in the foreign country, of mer- chanchse that is in the same general category oi products as the subject merchandise,
"(ii) the weighted average of the actual amoimts incurred and realized by exporters or producers that are subject to the investigation or review (other than the exporter or producer described in clause (i)) for selling, general, and administrative expenses, and for profits, in connection with the production and sale of a foreign like product, in the ordinary course of trade, for consumption m the foreign country, or
"(iii) the amounts incurred and realized for selling, genered, and administrative expenses, and for profits, based on any other reasonable method, except that the amount allowed for profit may not exceed the amount normally realized by exporters or producers (other than the exporter or producer described in clause (i)) in connection with the sale, for consumption in the foreign country, of merchandise that is in tlie same general category of products as the subject merchandise; and "(3) the cost of all containers and coverings of whatever
nature, and all other expenses incidental to placing the subject
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4885
merchandise in condition packed ready for shipment to the United States.
For purposes of paragraph (1), the cost of materials shall be deter- mined without regard t» any internal tsix in the exporting country imposed on such materials or their disposition which are remitted or refunded upon exportation of the subject merchandise produced fix)m such materials.
"(f) SPECIAL RULES FOR CALCULATION OF COST OF PRODUCTION AND FOR CALCULATION OF CONSTRUCTED VALUE.—For purposes of subsections (b) and (e).—
"(1) COSTS.— "(A) IN GENERAL.—Costs shall normally be csilculated
based on the records of the exporter or producer of the merchandise, if such records are kept in accordance with the generally accepted accounting principles of the export- ing country (or the producing country, where appropriate) and reasonably reflect the costs associated with the produc- tion and sale of the merchandise. The administering authority shall consider all available evidence on the proper allocation of costs, including that which is made availaole by the exporter or producer on a timely basis, if such allocations have been historically used by the exporter or producer, in particular for estabUshing appropriate amortization and depreciation periods, and allowances for capital expenditures Etnd other development costs.
"(B) NONRECURRING COSTS.—Costs shall be adjusted appropriately for those nonrecurring costs that benefit cur- rent or future production, or both.
"(C) STARTUP COSTS.— "(i) IN GENERAL.—Costs shall be adjusted appro-
priately for circumstances in which costs incurred dur- ing the time period covered by the investigation or review are jaiFected by startup operations.
"(ii) STARTUP OPERATIONS.—A4justments shall be made for startup operations only where—
"(I) a producer is using new production faciU- ties or producing a new product that requires substantial additional investment, and
"(II) production levels are limited by technical factors associated with the initial phase of commer- cial production.
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, seasonaUty, or business cycles.
"(iii) ADJUSTMENT FOR STARTUP OPERATIONS.—The adiustment for startup operations shall be made by substituting the unit production costs incurred with respect to me merchandise at the end of the startup period for the unit production costs incurred during the startup period. If the startup period extends beyond the period of the investigation or review under this titie, the administering authority shall use the most recent cost of production data that it reasonably can
108 STAT. 4886 PUBLIC LAW 103-465—DEC. 8, 1994
obtain, analyze, and verify without delaying the timely completion of the investigation or review. For purposes of this subparagraph, the startup period ends at the point at wmch tne level of commercial production that is characteristic of the merchandise, producer, or indus- try concerned is achieved.
"(2) TRANSACTIONS DISREGARDED.—A transaction directly or indirectly between affiliated persons may be disregarded if, in the case of any element of value required to be considered, the amount representing that element does not fairly reflect the amount usually reflected in sales of merchandise under consideration in the msirket under consideration. If a trans- action is disreg£irded under the preceding sentence and no other transactions are available for consideration, the deter- mination of the amount shsiU be based on the information available as to what the amount would have been if the trans- action 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 merchandise, the admin- istering authority has resisonable grounds to beUeve or suspect that an amount represented as the value of such input is less than the cost of production of such input, then the admin- istering 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 imder paragraph (2).".
SEC. 225. CURRENCY CONVERSION.
(a) IN GENERAL.—Subtitie D of titie VII (19 U.S.C. 1677 et seq.) is amended by inserting after section 773 the following new section:
19 u s e 1677b-l. "SEC. 773A. CURRENCY CONVERSION.
"(a) IN GENERAL.—In an antidumping proceeding imder this titie, the administering authority shall convert foreign currencies into United States dollars using the exchange rate in effect on the date of sale of the subject merchandise, except that, if it is estabUshed that a currency transaction on forward markets is directiy Hnked to an export sale under consideration, the exchange rate specified with respect to such currency in the forward sale agreement shall be used to convert the foreign currency. Fluctua- tions in exchange rates shall be ignored.
"(b) SUSTAINED MOVEMENT IN FOREIGN CURRENCY VALUE,— In an investigation under subtitie B, if there is a sustained move- ment in the value of the foreign currency relative to the United States dollar, the administering authority shall allow exporters at least 60 days to adjust their export prices to reflect such sus- tained movement".
(b) CONFORMING AMENDMENT.—The table of contents for titie VII is amended by inserting after the item relating to section 773 the following new item: "Sec. 773A. Cvirrency conversion.".
SEC. 226. PROPRIETARY AND NONPROPRIETARY INFORMATION.
(a) PROPRIETARY STATUS MAINTAINED.— (1) IN GENERAL.—Section 777(b)(1) (19 U.S.C. 1677f(b)(l))
is amended to read as follows:
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4887
*•( 1) PROPRIETARY STATUS MAINTAINED.— "(A) IN GENERAL.—Except as provided in subsection
(a)(4)(A) and subsection (c), information submitted to the administering authority or the Commission which is des- ignated as proprietaiy by the person submitting the information shsLu not be disclosed to any person without the consent of the person submitting the information, other than—
"(i) to ian officer or employee of the administerine authority or the Commission who is directly concerned with carrying out the iuvestigation in connection with which the information is submitted or any review under this title covering the same subject merchandise, or
"(ii) to an officer or employee of the United States Customs Service who is directly involved in conducting an investigation regarding fraud under this titie. **(B) ADDITIONAL REQUIREMENTS.—The administering
authority and the Commission shall require that informa- tion for which proprietary treatment is requested be accom- panied by—
(i) either— "(I) a non-proprietary summary in sufficient
detail to permit a reasonable imderstanding of the substance of the information submitted m con- fidence, or
"(II) a statement that the information is not susceptible to summary accompanied by a state- ment of the reEisons in support of the contention, and "(ii) either—
"(I) a statement which permits the administer- ing authority or the Commission to release under administrative protective order, in accordance with subsection (c), the information submitted in con- fidence, or
"(II) a statement to the administering author- ity or the Commission that the business propri- etary information is of a type that should not be released under administrative protective order.".
(2) SECTION 751 REVIEWS.—Section 777(b) (19 U.S.C. 1677f(b)) is amended by adding at the end the following:
"(3) SECTION 751 REVIEWS.—Notwithstanding the provisions of paragraph (1), information submitted to the administering authority or the Commission in connection with a review under section 751(b) or 751(c) which is designated as proprietary by the person submitting the information may, if the review results m the revocation of an order or finding (or termination of a suspended investigation) under section 751(d), be used by the agency to which me information was originally submitted in any mvestigation initiated within 2 years after the date of the revocation or termination pursuant to a petition covering the same subject merchandise.". (b) UNWARRANTED PROPRIETARY DESIGNATION.—Section
777(b)(2) (19 U.S.C. 1677f(b)(2)) is amended by adding at the end the following new sentence: "In a case in which the administering
publication.
108 STAT. 4888 PUBLIC LAW 103-465—DEC. 8, 1994
authority or the Commission returns the information to the person submitting it, the person may thereafter submit other material concerning the subject matter of the returned information if the submission is made within the time otherwise provided for submit- ting such material.".
SEC. 227. OPPORTUNITY FOR COMMENT BY CONSUMERS AND INDUS- TRIAL USERS.
Section 777 (19 U.S.C. 1677f) is amended by adding at the end the following new subsection:
"(h) OPPORTUNITY FOR COMMENT BY CONSUMERS AND INDUS- TRIAL USERS.—The administering authority and the Conunission shsiU provide an opportunity for industrial users of the subject merchandise and, £f the merchandise is sold at the retail level, for representative consmner organizations, to submit relevant information to the administering authority concerning dumping or a countervailable subsidy, and to the Commission concerning material injury by reason of dumped or subsidized imports.".
SEC. 228. PUBUC NOTICE AND EXPLANATION OF DETERMINATIONS.
Section 777 (19 U.S.C. 1677f), as amended by section 227, is amended by adding at the end the following:
"(i) PUBLICATION OF DETERMINATIONS; REQUIREMENTS FOR FINAL DETERMINATIONS.—
Federal "(1) j ^ GENERAL.—Whenever the administering authority ^fif^fj^^ makes a determination imder section 702 or 732 whether to
initiate an investigation, or the administering authority or the Conmiission makes a preliminary determination under section 703 or 733, a final determination under section 705 or section 735, a preliminary or final determination in a review under section 751, a determination to suspend an investigation under this title, or a determination under section 753, the administer- ing authority or the Commission, as the case may be, shall ptibUsh the facts and conclusions supporting that determina- tion, and shall pubUsh notice of that determination in the Federal Register.
**(2) CONTENTS OF NOTICE OR DETERMINATION.—The notice or determination pubUshed under paragraph (1) shall include, to the extent applicable—
"(A) in the case of a determination of the administering authority—
"(i) the names of the exporters or producers of the subject merchandise or, when providing such names is impracticable, the countries exporting the subject merch£indise to the United States,
"(ii) a description of the subject merchandise that is sufficient to identify the subject merchandise for customs purposes,
"(iiiXl) with respect to a determination in an inves- tigation under subtitle A or section 753 or in a review of a coimtervailing duty order, the amount of the coimtervailable subsidy estabUshed and a full expla- nation of the methodology used in estabhshing the amount, and
"(II) with respect to a determination in an inves- tigation imder subtitle B or in a review of an antidump- ing duty order, the weighted average dumping margins
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4889
established and a full explaBation of the methodology used in establislung such margins, and
"(iv) the primary reasons for the determination; and "(B) in the case of a determination of the Commission—
"(i) considerations relevant to the determination of injury, and
(ii; the primary reasons for the determination. "(3) ADDITIONAI. REQUIREMENTS FOR FINAL DETERMINA-
TIONS.—In addition to the requirements set forth in paragraph ( 2 ) -
"(A) the admimstering authority shall include in a final determination described in paragraph (1) an expla- nation of the basis for its determination that addresses relevant arguments, made by interested parties who are parties to me investigation or review (as the case may be), concerning the establishment of dumping or a countervailable subsidy, or the suspension of the investiga- tion, with respect to which the determination is made; and
i "(B) the Conmiission shall include in a final determina- tion of injury an explanation of the basis for its determina- tion that addresses relevant arguments that are made by
' interested parties who are parties to the investigation or review (as the case may be) concerning volume, price effects, and impact on the iudustry of imports of the subject merchandise.".
SEC. 229. SAMPLING AND AVERAGING; DETERMINATION OF WEIGHTED AVERAGE DUMPING MARGIN.
(a) IN GENERAL.—Section 777A (19 U.S.C. 1677f-l) is amended to read as follows: -SEC. 777A. SAMPLING AND AVERAGING; DETERMINATION OF
WEIGHTED AVERAGE DUMPING MARGIN.
"(a) IN GENERAL.—For purposes of determining the export price (or constructed export price) under section 772 or the normal value under section 773, and in carrying out reviews under section 751, tibie administering authority may—
"(1) use averaging and statistically vaHd samples, if there is a significant volume of sales of tiie subject merchandise or a significant number or types of products, and
"(2) decUne to take into account adjustments which sire iosignificant in relation to the price or value of the merchandise. "(b) SELECTION OF AVERAGES AND SAMPLES.—^The authority
to select averages and statistically vaHd samples shall rest exclu- sively with the administciring authority. The administering author- ity shall, to the greatest extent possible, consult with the exporters and producers regarding the method to be used to select exporters, producers, or types of products under this section.
"(c) DETERMINATION OF DUMPING MARGIN.— "(1) GENERAL RULE.—In determining weighted average
dimiping margins under section 733(d), 735(c), or 761(a), the admimstering authority shall determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise.
(2) EXCEPTION.—If it is not practicable to make individual weighted average dumping margin determinations under para-
79-194 0—95—11 : QL 3 Part 6
108 STAT. 4890 PUBLIC LAW 103-465—DEC. 8, 1994
^ a p h (1) because of the large number of exporters or producers involved in the investigation or review, the administering authority may determine the weighted average dumping mar- gins for a reasonable number of exporters or producers by limiting its examination to—
**(A) a sample of exporters, producers, or types of prod- ucts that is statistically v£ilid based on the information available to the administering authority at the time of selection, or
*(B) esroorters and producers accounting for the lai^est volume of tne subject merchandise from the exporting coun- try that can be reasonably examined.
**(d) DETERMINATION OF LESS THAN FAIR VALUE.— "(1) INVESTIGATIONS.—
**(A) IN GENERAL.—In an investigation under subtitie B, the administering authority shall determine whether the subject merchandise is being sold in the United States at less than fair value—
"(i) by comparing the weighted average of the nor- mal values to the weighted average of the export prices (and constructed export prices) for compjirable mer- chandise, or
**(ii) by comparing the normal values of individual transactions to the export prices (or constructed export prices) of individual transactions for comparable mer- chandise. **(B) EXCEPTION.—^The administering authority may
determine whether the subject merchandise is being sold in the United States at less than fair value by comparing the weighted average of the normal values to the export prices (or constructed export prices) of individual trans- actions for comparable merchandise, if—
**(i) there is a pattern of export prices (or con- structed export prices) for comparable merchandise that differ sigmficantiy among purchasers, regions, or periods of time, and
**(ii) the administering authority explains why such differences cannot be taken into account using a method described in paragraph (lXA)(i) or (ii).
"(2) REVIEWS.—In a review under section 751, when comparing export prices (or constructed export prices) of individual transactions to tiie weighted average price of sales of the foreign like product, the administering authority shall limit its averaging of prices to a period not exceeding the calendar month that corresponds most closely to the calendar month of the individual export sale.**. (b) DUMPING MARGIN; WEIGHTED AVERAGE DUMPING MARGIN.—
Section 771 (19 U.S.C. 1677), as amended by section 222(i), is amended by adding at the end tiie following new paragraph:
"(35) DUMPING MARGIN; WEIGHTED AVERAGE DUMPING MAR- GIN.—
"(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 deter-
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4891
mined by dividing the aggregate dumping margins deter- mined 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 msirgin of dumping used by the Commis- sion shall be—
"(i) in imaking a preUminary determination under section 733(a) in an investigation (including any inves- tigation in which the Commission cumulatively assesses the volume and effect of imports under para- graph (7XG)(i)), the dumping margin or margins pub- lished by the administering authority in its notice of initiation of the investigation;
"(ii) in making a final determination under section 735(b), the dumping margin or mareins most recently published by the administering authority prior to the closing of the Conunission's administrative record;
"(lii) in a review imder section 751(b)(2), the most recent dumping margin or margins determined by the administering authority under section 752(c)(3), if any, or under section 733(b) or 735(a); and
"(iv) in a review under section 751(c), the dumping margin or margins determined by the administering authority under section 752(cX3).''.
SEC. 230. ANncmCUMVENnON.
(a) IN GENERAL.—Subsections (a) and (b) of section 781 (19 U.S.C. 1677J (a) and (b)) are amended to read as foUows:
"(a) MERCHANDISE COMPLETED OR ASSEMBLED IN THE UNITED STATES.—
"(1) IN GENERAL.—If— "(A) merchandise sold in the United States is of the
same class or kind as any other merchandise that is the subject of—
"(i) £ui antidumping duty order issued under sec- tion 736,
*(ii) a finding issued under the Antidumping Act, 1921, or
"(iii) a countervailing duty order issued under sec- tion 706 or section 303, "(B) such merchandise sold in the United States is
completed or assembled in the United States from parts or components produced in the foreign country with respect to which such order or finding applies,
**(C) the process of assembly or completion in the United States is minor or insignificant, and
**(D) the vjdue of the parts or components referred to in subparagraph (B) is a significant portion of the total value of the merchandise,
the administering authority, after taking into account any advice provided by the Commission under subsection (e), may include within the scope of such order or finding the imported parts or components referred to in subparagrapn (B) that are used in the completion or assembly of the merchandise in the United States at any time such order or finding is in effect
108 STAT. 4892 PUBLIC LAW 103-465—DEC. 8, 1994
"(2) DETERMINATION OF WHETHER PROCESS IS MINOR OR INSIGNIFICANT.—In determining whether the process of assem- bly or completion is itiinor or insignificant under psiragraph (IXC), the administering authority shall take into account—
"(A) the level of investment in the United States, "(B) the level of research and development in the
United States, "(C) the nature of the production process in the United
States, "(D) the extent of production faciUties in the United
States, and **(E) whether the value of the processing performed
in the United States represents a small proportion of the value of the merchandise sold in the United States. "(3) FACTORS TO CONSIDER.—In determining whether to
include narts or components in a countervaiHng or antidumping duty order or finding iinder paragraph (1), the administering autnority shall take into account such factors £is—
"(A) the pattern of trade, includiag sourcing patterns, **(B) whether the manufacturer or exporter of the parts
or components is affihated with the person who assembles or completes the merchandise sold in the United States fi:x)m the parts or components produced in the foreign coun- try with respect to which the order or finding described in paragraph (1) appUes, and
"(C) whether imports into the United States of the parts or coniponents produced in such foreign country have mcreased after the initiation of the investigation which resulted in the issuance of such order or finding.
"(b) MERCHANDISE COMPLETED OR ASSEMBLED IN OTHER FOR- EIGN COUNTRIES.—
"(1) IN GENERAL.—If— "(A) merchandise imported into the United States is
of the same class or kind as any merchandise produced in a foreign country that is the subject of—
^i) an antidumping duty order issued under sec- tion 736,
"(ii) a finding issued under the Antidumping Act, 1921, or
"(iii) a countervailing duty order issued under sec- tion 706 or section 303, "(B) before importation into the United States, such
imported merchandise is completed or assembled in another foreign country fix)m merchandise which—
"(i) is subject to such order or finding, or "(ii) is produced in the foreign counfiy with respect
to which such order or finding appUes, "(C) the process of assembly or completion in the for-
eign country referred to in subparagrapn (B) is minor or insignificant,
"(D) the value of the merchandise produced in the foreign countiy to which the antidumping duty order appHes is a significant portion of the total value of the merchandise exported to the United States, and
"(E) the administering authority determines that action is appropriate under this paragraph to prevent evasion of such order or finding,
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4893
the administering authority, after taking into account any advice provided by the Commission under subsection (e), may include such imported merchandise within the scope of such order or finding at any time such order or finding is in effect.
"(2) DETERMINATION OF WHETHER PROCESS IS MINOR OR INSIGNIFICANT.—In determining whether the process of assem- bly or completion is minor or insignificant under paragraph (1)(C), the administering authority shall take into account—
"(A) the level of investment in the foreign country, "(B) the level of research and development in the for-
eign country, "(C) the nature of the production process in the foreign
• country, "(D) the extent of production facilities in the foreign
country, and "(E) whether the value of the processing performed
in the foreign country represents a small proportion of the value of the merchandise imported into the United States. "(3) FACTORS TO CONSIDER.—In determining whether to
include merchandise assembled or completed in a foreign coun- try in a countervailing duty order or an antidumping duty order or finding under paragraph (1), the administering author- ity shall take into account such factors as—
"(A) the pattern of trade, including sourcing patterns, "(B) whether the manufacturer or exporter of the mer-
chandise described in paragraph (1)(B) is affiliated with the person who uses the merchandise described in para- graph (1)(B) to assemble or complete in the foreign country the merchandise that is subsequently imported into the United States, and
"(C) whether imports into the foreign country of the merchandise described in paragraph (1)(B) have increased after the initiation of the investigation which resulted in the issuance of such order or finding.",
(b) TIME LIMITS FOR ADMINISTERING AUTHORITY DETERMINA- TIONS.—Section 781 (19 U.S.C. 1677J) is amended by adding at the end the following:
"(f) TIME LIMITS FOR ADMINISTERING AUTHORITY DETERMINA- TIONS.—The administering authority shall, to the maximum extent practicable, make the determinations under this section within 300 days from the date of the initiation of a countervailing duty or antidumping circumvention inquiry under this section.". SEC. 231. EVTOENCE.
(a) CONDUCT OF INVESTIGATIONS AND ADMINISTRATIVE REVIEWS.—Subtitle D of title VII (19 U.S.C. 1671) is amended by adding at the end the following new section: "SEC. 782. CONDUCT OF INVESTIGATIONS AND ADMINISTRATIVE 19 USC 1677m.
REVIEWS.
"(a) TREATMENT OF VOLUNTARY RESPONSES IN COUNTERVAILING OR ANTIDUMPING DUTY INVESTIGATIONS AND REVIEWS.—In any investigation under subtitle A or B or a review under section 751(a) in which the administering authority has, under section 777A(c)(2) or section 777A(e)(2)(A) (whichever is applicable), limited the number of exporters or producers examined, or determined a single country-wide rate, the administering authority shall estab-
108 STAT. 4894 PUBLIC LAW 103-465—DEC. 8, 1994
lish an individual countervailable subsidy rate or an individual weighted average dumping margin for any exporter or producer not initially selected for individual examination under such sections who submits to the administering authority the information requested from exporters or producers selected for examination, if—
"(1) such information is so submitted by the date specified— "(A) for exporters and producers that were initially
selected for examination, or "(B) for the foreign government, in a countervaiHng
duty case where the administering authority has deter- mined a single country-wide rate; £Uid "(2) the number of exporters or producers who have submit-
ted such information is not so large that individual examination of such exporters or producers would be unduly burdensome and inhibit the timely completion of the investigation. "(b) CERTIFICATION OF SUBMISSIONS.—-Any person providing fac-
tual information to the administering authority or the Commission in connection with a proceeding under this titie on behalf of the petitioner or any other interested party shall certify that such information is accurate and complete to the best of that person's knowledge.
"(c) DIFFICULTIES IN MEETING REQUIREMENTS.— "(1) NOTIFICATION BY INTERESTED PARTY.—If an interested
party, promptiy after receiving a request from the administer- ing authority or the Commission for information, notifies the administering authority or the Commission (as tiie 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 information, the administering authority or the Commission (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 requirements to the extent necessary to avoid imposing an unreasonable burden on that party.
"(2) ASSISTANCE TO INTERESTED PARTIES.—^The administer- ing authority and the Commission shall take into account any difficulties experienced by interested parties, particularly small companies, in supplying infoimation requested by the admin- istering authority or the Commission in connection with inves- tigations and reviews under this titie, and shall provide to such interested parties any assistance that is practicable in supplying such information. "(d) DEFICIENT SUBMISSIONS.—If the administering authority
or the Commission determines that a response to a request fer information u n ^ r this titie does not comply with the request, the administering authority or the Commission (as the case may be) shall prtMnptiy inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency in hght of the time limits estabhshed for the comple- tion of investigations or reviews under this title. If that person submits furiher information in response to such deficiency and either—
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4895
"(1) the admimsteiing authority or the Commission (as the case may be) finds that such response is not satisfactory, or
"(2) such response is not submitted within the apphcable time Hmits,
then the administering authority or the Commission (as the case may be) may, subject to subsection (e), disregard aU or part of the original and subsequent responses.
"(e) U S E OF CERTAIN INFORMATION.—In reaching a determina- tion under section 703, 705, 733, 735, 751, or 753 the administering authority and the Commission shall not decHne to consider informa- tion that is submitted by an interested party and is necesssiry to the determination but does not meet all the apphcable require- ments estabUshed by the administering authority or the Commis- sion, if—
"(1) the information is submitted by the deadline estab- lished 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 apphcable determina- tion,
"(4) the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements estabUshed by the administering authority or the Commission with respect to the information, and
"(5) the information can be used without undue difficulties, "(f) NoNACCEPTANCE OF SUBMISSIONS.—If the administering
authority or the Commission declines to accept into the record any information submitted in an investigation or review under this titie, it shall, to the extent practicable, provide to the person submitting the information a written expkination of the reasons for not accepting the information.
**(g) PuBUC COMMENT ON INFORMATION.—Information that is submitted on a timely basis to the administering authority or the Commission during the course of a proceeding under this titie shall be subject to comment by other parties to the proceeding within such reasonable time as the administering authority or the Commission shall provide. The administering authority and the Commission, before making a final determination under section 705, 735, 751, or 753 shall cease collecting information and shall • provide the parties with a final opportunity to comment on the mformation ootained by the administering authority or the Commis- sion (as the case may be) upon which the parties have not previously had an opportunity to comment. Comments containing new factual information shall be disregarded.
"(h) TERMINATION OF INVESTIGATION OR REVOCATION OF ORDER FOR LACK OF INTEREST.—The administering authority may—
"(1) terminate an investigation under subtitie A or B with respect to a domestic like product if, prior to p^ibUcation of an order under section 706 or 736, the administering authority determines that producers accounting for substantially all of the production of that domestic like product have expressed a lack of interest in issuance of an order; and
"(2) revoke an order issued under section 706 or 736 with respect to a domestic like product, or terminate an investigation suspended under section 704 or 734 with respect to a domestic
108 STAT. 4896 PUBLIC LAW 103-465—DEC. 8, 1994
Uke product, if the administering authority determines that producers accounting for substantially all of the production of that domestic like product, have expressed a lack of interest in the order or suspended investigation. "(i) VERIFICATION.—The administering authority shall verify
all information relied upon in making— "(1) a final determination in an investigation, "(2) a revocation under section 751(d), and "(3) a final determination in a review under section 751(a),
if— "(A) verification is timely requested by an interested
party as defined in section 771(9)(C), (D), (E), (F), or (G), and
"(B) no verification was made under this subparagraph during the 2 immediately preceding reviews and determina- tions imder section 751(a) of the same order, finding, or notice, except that this clause shall not apply if good cause for verification is shown.".
(b) AVAILABILITY OF NONPROPRIETARY INFORMATION.—Section 777(a)(4) (19 U.S.C. 1677f(a)(4)) is amended by striking "may dis- close" and inserting "shall disclose".
(c) DETERMINATIONS ON THE BASIS OF THE FACTS AVAILABLE.— Section 776 (19 U.S.C. 1677e) is amended to read as foUows:
"SEC. 776. 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 deadHnes for submission of the information or in the form and man- ner requested, subject to subsections (c)(1) and (e) of section 782,
"(C) significantiy impedes a proceeding under this title, or
"(D) provides such information but the information cannot be verified as provided in section 782(i),
the administering authority and the Commission shall, subject to section 782(d), use the facts otJhierwise available in reaching the appUcable determination under this titie.
"(b) ADVERSE INFERENCES.—If the administering authority or the Commission (as the case may be) finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information fi:x)m the administering authority or the Commission, the administering authority or the Commission (as the case may be), in reaching the applicable deter- mination under this titie, may use an inference that is adverse to the interests of that party in selecting fix)m among the facts otherwise available. Such adverse inference may include reUance on information derived fit)m—
"(1) the petition, "(2) a final determination in the investigation under this
titie,
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4897
"(3) any previous review under section 751 or determination under section 753, or
"(4) any other information placed on the record. "(c) CORROBORATION OF SECONDARY INFORMATION.—When the
administering authority or the Commission reUes on secondary information rather than on information obtained in the course of an investigation or review, the administering authority or the Commission, as the case may be, shall, to the extent practicable, corroborate that information from independent sources that are reasonably at their disposal.".
(d) CONFORMING AMENDMENTS.— (1) Section 777(e) (19 U.S.C. 1677fle)) is repealed. (2) The table of contents for titie VII is amended—
(A) by amending the item relating to section 776 to read as follows:
"Sec. 776. Determinations on the basis of the facts available."; and
(B) by inserting after the item relating to section 781 the following new item:
"Sec. 782. Conduct of investigations £md administrative reviews.". \
SEC. 232. ANTIDUMPING PETITIONS BY TEDBD COUNTRIES.
(a) IN GENERAL.—Subtitie D of titie VII (19 U.S.C. 1677 et seq.), £is amended by section 231(a), is amended by adding at the end the following new section:
"SEC. 783. ANTIDUMPING PETITIONS BY TEIIRD COUNTRIES. 19 USC 1677n.
"(a) FILING OF PETITION.—The government of a WTO member may file with the Trade Representative a petition requesting that an investigation be conducted to determine if—-
"(1) imports fix)m another country are being sold in the United States at less than fair vahie, and
"(2) an industry in the petitioning country is materially injured by reason of tiiose imports. "(b) INITIATION.—The Trade Representative, after consultation
with the administering authority and the Conmiission and obtaining the approval of the WTO Council for Trade in (joods, shall deter- mine whether to initiatci an investigation described in subsection (a).
"(c) DETERMINATIONS.—Upon initiation of an investigation under this section, the Trade Representative shall request the fol- lowing determinations be made according to substantive and pro- cedural requirements specified by the Trade Representative, notwitiistanding anv other provision of this titie:
"(1) The aaministering authority shall determine whether imports into the United States of the subject merchandise are being sold at less than fair value.
(2) The Commission shall determine whether an industry in the petitioning country is materially injured by reason of imports of the subject merchandise into the United States. "(d) PUBLIC COMMENT.—^An opportunity for pubHc conunent
shall be provided, as appropriate— (1) by the Trade Representative, in making the determina-
tion required by subsection (b), and "(2) by the administering authority and the Commission,
in making the determination required by subsection (c).
108 STAT. 4898 PUBLIC LAW 103-465—DEC. 8, 1994
"(e) ISSUANCE OF ORDER.—If the admimstering authority makes an affirmative determination under paragraph (1) of subsection (c), and the Conmiission makes an affirmative determination under paragraph (2) of subsection (c), the administering authority shall issue an antidumping duty order in accordance witihi section 736 and take such other actions as are required by section 736.
"(f) REVIEWS OF DETERMINATIONS.—For purposes of review under section 516A or review under section 751, if an order is issued under subsection (d), the final determinations of the admin- istering authority and the Commission under this section shall be treated as final determinations made under section 735.
"(g) ACCESS TO INFORMATION.—Section 777 shall apply to inves- tigations under this section, to the extent specified By the Trade Representative, sifter consultation with the administering authority and the Conmiission.".
(b) CONFORMING AMENDMENT.—The table of contents for title VII, as amended by section 231(d)(2), is amended by adding after the item relating to section 782 the following new item: "Sec. 783. Antidumping petitions by third countries.".
SEC. 233. CONFORMmG AMENDMENTS.
(a) TERMINOLOGY.— (1) NORMAL VALUE.—Each of the following sections is
amended by striking "foreign market value" each place it appears in the text and in tne heading and inserting normal value":
(A) Section 731 (19 U.S.C. 1673). (B) Section 734 (19 U.S.C. 1673c). (C) Section 736 (19 U.S.C. 1673e). (D) Section 739 (19 U.S.C. 1673h). (E) Section 780 (19 U.S.C. 16771).
(2) EXPORT PRICE.— (A) IN GENERAL.—Each of the following sections is
amended by striking "United States price" each place it appears in the text and in the heading and inserting "export price (or the constructed export price) :
(i) Section 731 (19 U.S.C. 1673). (ii) Section 734 (19 U.S.C. 1673c). (iii) Section 736 (19 U.S.C. 1673e). (iv) Section 738 (19 U.S.C. 1673g). (v) Section 739 (19 U.S.C. 1673h). (vi) Section 780 (19 U.S.C. 16771).
(B) EXPORTER'^S SALES PRICE.—Section 738(bX3) (19 U.S.C. 1673g(b)(3)) is amended by striking "exporter's sales
f)rice" and inserting "constructed export price".3) DOMESTIC LIKE PRODUCT.— (A) Each of the following sections is sunended by strik-
ing ^ike product" each place it appears in the text and in the heading and insertmg "domestic Uke product":
(i) Section 771(4X(J) and (D) (19 U.S.C. 1677(4X0 and (D)).
(ii) Section 771(7XCXiiiXIV) (19 U.S.C. 1677(7)(CXiii)(IV)).
(iii) Section 771(9) (19 U.S.C. 1677(9)). (iv) Section 771(10) (19 U.S.C. 1677(10)).
(B) Sections 771(7XBXiXII) and (III) and section 771(7XCXiiXI) (19 U.S.C. 1677(7XB)(iXII) and (III) and
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4899
(C)(ii)(I)) are Eunended by striking **like products" and insertiiig "domestic like products". (4) FOREIGN LIKE PRODUCT.—Section 771(16) (19 U.S.C.
1677(16)) is amended— (A) by striMng "such or similar merchandise" in the
text and inserting ^foreign Uke product", and (B) by amending the headmg to read as follows: "FOR-
EIGN LIKE PRODUCT. . (5) SUBJECT MERCHANDISE.—
(A) Section 701(d) (19 U.S.C. 1671(d)) is amended by striking "a class or kind of merdiandise subject to a countervailing duty investigation" and inserting "subject merchandise .
(B) Section 702(e) (19 U.S.C. 1671a(e)) is amended by striking "class or kind of merchandise that is the subject 01 the investigation" each place it appears and inserting "subject mercmmdise".
(C) Section 703(bXl) (19 U.S.C. 1671b(b)(l)) is amended by striking "merchandise which is the subject of the inves- t^ation" and inserting "subject merchandise".
(D) Section 704(aX2XA) (19 U.S.C. 1671c(aX2XA)) is amended by striking "merchandise that is subject to the investigation" sind inserting "subject merchandise".
(E) Section 704(b) (19 U.S.C. 1671c(b)) is amended by striking "merchandise which is the subject of the inves- tigation" and iuserting "subject merchandise".
(F) Section 704(cXl) (19 U.S.C. 1671c(cXl)) is amended by striking "merchandise which is the subject of the inves- t^ation" and inserting "subject merchandise".
(G) Section 704(cX2) (19 U.S.C. 1671c(cX2)) is amended by striking "merchandise which is the subject of the inves- tigation" and inserting "subject merchandise".
(H) Section 704(cX3) (19 U.S.C. 1671c(cX3)) is amended by striking "mejrchandise which is the subject of an inves- tigation" and inserting "subject merchandise".
(I) Section 704(d)(3) (19 U.S.C. 1671c(dX3)) is amended by striking "merchandise covered by such agreement" and inserting *^ubject merchandise".
(J) Section 704(fXl)(A) (19 U.S.C. 1671c(fXlXA)) is amended by striking "merchandise which is the subject of the investigation" and inserting "subject merchandise".
(K) Subpai-agraphs (A)(i) and (B) of section 704(fX2) (19 U.S.C. 1671c(f)(2XAXi) and (B)) are amended by strik- ing "merchandise which is the subject of the investigation" each place it appears and inserting "subject merchandise".
(L) Paragraphs (2) and (3) of section 704(h) (19 U.S.C. 1671c(h) (2) £ind (3)) are amended by strikiag "merchandise which is the subject of the investigation" each place it appears and inserting "subject merchandise".
(M) Section 704(j) (19 U.S.C. 1671c(j)) is amended by striHng "merchandise which is the subject of the investiga- tion" and inserting "subject merchandise".
(N) Section 705(aXl) (19 U.S.C. 1671d(aXl)) is amended by strikLng "the merchandise" and inserting "the
(O) Section 706(aX2) (19 U.S.C. 1671e(aX2)), as redesig- nated by section 265, is amended by striking "class or
108 STAT. 4900 PUBLIC LAW 103-465—DEC. 8,1994
kind of merchandise to which it appUes" and inserting "subject merchandise".
(P) Section 732(eXl) (19 U.S.C. 1673a(e)(l)) is amended by striking "clsiss or kind of the merchandise which is the subject of the investigation" and inserting "the subject merchandise".
(Q) Section 732(eX2) (19 U.S.C. 1673a(e)(2)) is amended by striking "merchandise which is the subject of the inves- tigation*' and inserting "subject merchandise".
(R) Section 732(e) (19 U.S.C. 1673a(e)) is amended by striking "class or kind of merchandise that is the subject of the investigation'' each place it appears and inserting "subject merchandise".
(S) Section 734(a)(2)(A) (19 U.S.C 1673c(a)(2)(A)) is amended by striking "merchandise that is subject to the investigation'' and inserting "subject merchandise".
(T) Subsections (b), (c)(1), (f)(1)(A), (f)(2)(A)(i), (g)(1), (h)(2), (h)(3), and Q) of section 734 (19 U.S.C 1673c(b), (c)(1), (f)(1)(A), (f)(2)(A)(i), (g)(1), (h)(2), (h)(3), and (})) are amended by striking "merchandise which is the subject of the investigation" each place it appears and inserting "subject merchandise".
(U) Section 734(f)(2XB) (19 U.S.C. 1673c(f)(2XB)) is amended by striking "merchandise subject to the investiga- tion" and inserting subject merchandise".
(V) Section 735(aXl) (19 U.S.C. 1673d(aXl)) is amended by striking "merchandise which was the subject of the investigation and inserting "subject merchandise".
(W) Section 736(a)(2) (19 U.S.C. 1673e(a)(2)) is amended by striking "class or kind of merchsindise to which it appUes" and inserting "subject merchandise".
(X) Section 736(b)(1) (19 U.S.C. 1673e(bXl)) is amended by striking "merchandise subject to the antidumping duty order" and inserting "subject merchandise".
(Y) Section 736(b)(2) (19 U.S.C. 1673e(bX2)) is amended by striking "merchandise subject to an antidumping duty order'' and inserting "subject merchandise".
(Z) Section 762(aX 1) (19 U.S.C. 1676a(aX D) is amended by striking "merchandise subject to the agreement" and inserting "subject merchandise".
(AA) Section 762(bX2) (19 U.S.C. 1676a(bX2)) is amended by striking "merchandise subject to the order" and inserting "subject merchandise".
(BB) Section 771(7XBXi)(I) (19 U.S.C. 1677(7)(BXiXI)) is amended by striking "merchandise which is tlie subject of the investigation" and inserting "subject merchandise".
(CO Section 771(9)(A) (19 U.S.C. 1677(9)(A)) is amended by striking "merchandise which is the subject of an investigation under this titie" and inserting "subject merchandise'.
(DD) Section 771(16)(A) (19 U.S.C. 1677(16)(A)) is amended by striking "merchandise which is the subject of an investigation" and inserting "subject merchandise".
(EE) Section 771(16XBXi) (19 U.S.C. 1677(16XBXi)) is amended by striking "merchandise which is the subject of an investigation" and inserting "subject merchandise".
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4901
(FF) Section 771(17) (19 U.S.C. 1677(17)) is amended by striking "merchandise which is the subject of the inves- tigation" and inserting "subject merchandise".
(GG) Section 771A(c) (19 U.S.C. 1677-l(c)) is amended by striking "merchandise imder investigation'' and insert- ing "subject merchandise". (6) INITIATE.—(A) Each of the following sections is amended
by striking "commenced" and inserting "initiated": (i) Section 702(a). (ii) Section 702(bXl). (iii) Section 703(b)(1). (iv) Section 703(cXl). - '- (v) Section 732(a)(1).
' (vi) Section 732(a)(2)(D). (vii) Section 732(b)(1). (viii) Section 733(bXl)(A) and (B). (ix) Section 733(bX2). (x) Section 733(cXl).
(B) Sections 703(gXl) and 733(b)(2) are each amended by striking "commenc€jment" and inserting "initiation".
(C) Section 732(a)(2XB) is amended by striking "conmience" and inserting "initiate".
(7) TECHNICAL, AMENDMENTS.—The table of contents for title VII is amended—
(A) by amending the item relating to section 772 to read as follows:
"Sec 772. ibiport price and constructed export price.";
(B) by striking "Foreign market value" in the item relating to section 773 and inserting "Normal value", and
(C) by inserting after the item relating to section 708 the following new item:
"Sec. 709. Conditional payment of countervailing duty.". (b) OTHER CONFORMING AMENDMENTS.—
(1) WTO ME;MBER.—Section 771(7XFXiii) (19 U.S.C. * 1677(7XFXiii)) is amended—
(A) in subclause (I), by striking "GATT member'' and inserting "WTO member''; and
(B) in subclause (II)— (i) in the subclause heading, by striking "GATT
MEMBER" and inserting "WTO MEMBER"; (ii) by striking "GATT member" and inserting
"WTO member''; and (iii) by striking "signatory" and all that foUows
through "measures)" and inserting "WTO member". (2) ADMINISTERING AUTHORITY.—Section 771(1) (19 U.S.C.
1677(1)) is amended by striking "the Treasury" and inserting "Commerce".
SEC. 234. APPLICATIONTO CANADA AND MEXICO.
Pursuant to sirticle 1902 of the North American Free Trade Agreement and section 408 of the North American Free Trade Agreement Implementiition Act, the amendments made by this titie shall apply with respect to goods from Canada and Mexico.
19 u s e 1671a.
19 u s e 1671b.
19 u s e 1673a.
19 u s e 1673b.
19 u s e 3438 note.
108 STAT. 4902 PUBLIC LAW 103-465—DEC. 8, 1994
Subtitle B—Subsidies Provisions PART 1—COUNTERVAILABLE SUBSIDIES
SEC. 251. COUNTERVAILABLE SUBSIDY. (a) IN GENERAL.—Section 771 (19 U.S.C. 1677) is amended
by stiiJdng paragraph (5) and inserting tiie following: "(5) COUNTERVAILABLE SUBSIDY.—
"(A) IN GENERAL.—Except as provided in paragraph (5B), a countervailable subsidy is a subsidy described in tiiis paragraph which is specific as described in paragraph (5A).
"(B) SUBSIDY DESCRIBED.—A subsidy is described in this par£^raph in the case in which an autiiority—
(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 fiinding mechanism to provide a financial contribution, or entrusts or directs a private entity to make a financial contribu- tion, 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 tms paragraph and paragraphs (5A) and (5B), the term 'authority* means a government of a country or any pubHc 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 directiy 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 e^rect transfer of ftinds, such as grants, loans, and equity in^sions, or the potential direct transfer of funds or liabiUties, such as loan guarantees,
"(ii) fbregoii^ or not collecting revenue that is otherwise due, such as granting tax credits or deduc- tions icom. taxable income,
"(iii) providing goods or services, other than gen- eral iafi:astructure, or
**(iv) purchasing goods. "(E) BENEFIT CONFERRED.—A benefit shall normaUy
he treated as conferred where there is a benefit to the recipient, including—
"(i) in the case of an equity infusion, if tiie invest- ment decision is incoi^istent with the usual investment practice of private investors, including the practice regardiag iihe provision of risk capital, in the country in which the equity in^sion is made,
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4903
"(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 tne recipient would pay on a comparable conunercial 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 losm and the amount the recipient would pay for a comparable
i commercial loan if there were no guarantee by the authority, and
"(iv) in the case where goods or services are pro- vided, 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 condi- tions 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, quahty, availabOity, marketabiUty, transpor- tation, 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 me enterprise no longer continues to be cotmtervailable, even if me 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.^AU export subsidy is a subsidy that is, in law or in fact, contingent upon export perform- ance, alone or as 1 of 2 or more conditions.
**(C) IMPORT SUBSTITUTION SUBSIDY.—An import substi- tution 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 oper- ates, expressly limits access to the subsidy to an enter- prise or industry, the subsidy is specific as a matter of law.
108 STAT. 4904 PUBLIC LAW 103-465—DEC. 8, 1994
"(ii) Where the authority providing the subsidy, or the legislation pursuant to which the authority oper- ates, estabUshes objective criteria or conditions govern- ing the ehgibUity for, and the amount of, a subsidy, the subsidy is not specific as a matter of law, if—
"(I) eUgibihty is automatic, "(II) the criteria or conditions for eUgibihty
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 foUowing 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 predomi- nant user of the subsidy.
"(Ill) An enterprise or industry receives a dis- proportionately 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 accoimt the extent of diversification of eco- nomic 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 pa ra^apn and paragraph (5B), any ref- erence 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 fix)m a Subsidies Agreement country, a subsidy shall be treated as noncountervailable if the administering authority determines in an investigation under subtitle A or a review under subtitle C that the subsidy meets all of the criteria described in subparagraph (B), (C), or (D), as the case may be, or the provisions oi subparagraph (E)(i) apply.
"(B) RESEARCH SUBSIDY.— "(i) IN GENERAL.—Except for a subsidy provided
on the msmufacture, production, or export of civil air- craft, a subsidy for research activities conducted by
' • W « i s | ^ '
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4905
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 sub- sidy is Hmited 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 perma- nently (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 materisds and suppUes) incurred directiy as a result of the research activity. "(ii) DEFINITIONS.—For purposes of this
subparagraph— "(I) INDUSTRIAL RESEARCH.—The term 'indus-
trial research' means planned search or critical investig;ation aimed at the discovery of new knowl- edge, with the objective that such knowledge may be useful in developing new products, processes, or services, or in bringing about a significant improvfsment to existing products, processes, or services.
"(II) PRECOMPETITIVE DEVELOPMENT ACTIV- ITY.—^The term *precompetitive development activ- ity* means the translation of industnal research findings into a plan, blueprint, or design for new, modified, or improved products, processes, or serv- ices, whether intended for sale or use, including the creation of a first prototype that would not be capable of commercisd use. The term also may include the conceptuEd 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 appUcation or commercial exploitation. The term does not include routine or periodic alter- ations to existing products, production Unes, msuiu- facturirig 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
{)recompetitive development activity, the allowableevel of the noncountervailable subsidy shall not exceed 62.5 percent of the costs set forth in
108 STAT. 4906 PUBLIC LAW 103-465—DEC. 8, 1994
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 diu-ation 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 coimtry shall be treated as noncountervailable, if it is not specific (within the meaning of paragraph (5A)) within eUgible regions and if the following conditions are met:
"(I) Each region identified as disadvantaged within the territory of a country is a clearly des- ignated, contiguous geographical area with a defin- able economic and administrative identity.
"(II) Each region is considered a disadvantaged region on the basis of neutral £Uid 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.
"(Ill) The criteria described in subclause (II) include a measurement of economic development
"(IV) Programs provided within a general fi*amework of regional development include ceihngs on the amount of assistance that can be granted
- to a subsidized project Such ceilings are dmeren- tiated according to the different levels of develop- ment of assisted regions, and are expressed in terms of investment costs or costs of job creation. Within such ceilings, the distribution of assistance is sufficientiy broad and even to avoid the predomi- nant use of a subsidy by, or the provision of dis- proportionately large amoimts of a subsidy to, an enterprise or industry as described in parsigraph (5AXD). "(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 countnr subject to investigation or review.
"(ll) An unemployment rate that is a t 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 mav include factors other than those set forth in this clause.
"(iii) DEFINITIONS.—^For p\irposes of this subparagraph—
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4907
"(I) GENERAL FRAMEWORK OF REGIONAL DEVEL- OPMENT.—The term 'general framework of regional development^ means that the regional subsidy pro- grams are part of an internally consistent and generally appUcable 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 CRITERL\.—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 poUcy.
"(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 facihties to new environmental requirements that are imposed by stat- ute or by r€!gulation, and that result in greater con- straints and financial burdens on the recipient of the subsidy, shall be treated as noncoimtervailable, 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 nilly borne by the recipient,
"(IV) is directly hnked and proportionate to the recipient's planned reduction of nuisances and pollution, and does not cover any manufacturing cost saviiigs that may be achieved, and
"(V) is available to all persons that can adopt the new equipment or production processes, "(ii) EXISTING FACIUTIES.—For piirposes of this
subparagraph, the term 'existing faciUties means facih- ties 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 accord- ance with Article 8.3 of the Subsidies Agreement, the subsidy shaQ be ^ a t e d as noncoimtervailable and shall not be subject to investigation or review under this title.
"(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 A ^ e m e n t that the subsidy, or the pro-
f ram pursuant to which the subsidy was provided,oes not satisfy t ^ conditions and criteria of Arti- cle 8.2 of t ^ Subsidies Agreement; and
108 STAT. 4908 PUBLIC LAW 103-465—DEC. 8, 1994
"(II) the subsidy is specific witMn the meaniiig of paragraph (5A).
**(F) CERTAIN SUBSIDIES ON AGRICULTURAL PRODUCTS.— Domestic support measures that are provided with respect to products listed iu Annex 1 to the Agreement on Agri- culture, and that the administering aumority determines conform fully to the provisions of Annex 2 to that Agree- ment, shall be treated as noncountervailable. Upon request bv the administering authority, the Trade Representative shall provide advice regarding tlie interpretation and appHcation 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, tmless the provisions of such subparagraphs are extended pursuant to section 282(c) of the Uruguay Round Agreements Act
"(ii) Subparagraph (F) shaU not apply to imports firom a WT(J 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 A ^ - culture and such date shall be notmed to the admin- istering authority.",
(b) N E T COUNTERVAILABLE SUBSIDY.—Section 771(6) (19 U.S.C. 1677(6)) is amended by inserting "countervailable" before "subsidy" each place it appears in the text and in the heading.
PART 2—REPEAL OF SECTION 303 AND CONFORMING AMENDMENTS
SEC. 261. REPEAL OF SECTION 303.
(a) IN GENERAL.—Section 303 of the Tariff Act of 1930 (19 U.S.C. 1303) is repealed eflfective on the effective date of this titie.
19 use 1303 (b) SAVINGS PROVISIONS.— "°*®- (1) CONTINUING E F F E C T O F LEGAL DOCUMENTS.—All orders,
determinations, and other administrative actions— (A) which have been issued pursuant to an investiga-
tion conducted under section 303 of the Tariff Act of 1930, and
(B) which are in effect on the effective date of this titie, or were final before such date and are to become effective on or after such date,
shall continue in effect according to their terms until modified, terminated, superseded, set aside, or revoked in accordance with law by the administering authority, the International Trade Commission, or a court of competent jurisdiction, or by operation of law. Except as provided in paragraph (3), such orders or determinations shall oe subject to review under sec- tion 751 of the Tariff Act of 1930 and, to the extent appHcable, investigation under section 753 of such Act (as added by this titie).
(2) PROCEEDINGS NOT AFFECTED.—^The provisions of sub- section (a) shall not affect any proceedings, including notices
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4909
of proposed rulemaking, pending before the administering authority or the International Trade Commission on the effec- tive date of this title with respect to such section 303. Orders shall be issued in such proceedings, appeals shall be taken therefi:x)m, and payments shall be made pursuant to such orders, in accordance with such section 303 as in eflfect on the day before the eflfective date of this title and, except as provided in paragraiph (3), shall be subject to review under section 751 of me Tariff Act of 1930 and, to the extent appUcable, investigation imder section 753 of such Act Orders issued in any such proceedings shall continue in effect until modified, terminated, superseded, set aside, or revoked in accordance with law by the administering authority, a court of competent jurisdiction, or by operation of law. Nothing in this section shall be deemed to prohibit the discontinuance or modification of any such proceeding under the ssune terms and conditions and to the same extent that such proceeding could have been discontinued or modified if this section had not been enacted.
(3) SUITS NOT AFFECTED.—^The provisions of subsection (a) shall not affect the review pursuant to section 516A of the Tariff Act of 1930 of a countervailing duty order issued pursu- ant to an investigation conducted under section 303 of such Act or a review of a countervailing duty order issued under section 751 of such Act, if such review is pending or the time for filing such review has not expired on the effective date of thistitie. (c) DEFINITION OF ^^MINISTERING AUTHORITY.—^For p\irposes 19 use 1303
of this section, the term "administering authority" has the meaning "°^- given such term by section 771(1) of the Tariff Act of 1930.
(d) CONFORMING AMENDMENTS.— (1) IN GENERAL.—
(A) AMENDMENTS TO TRADE ACT OF 1974.— (i) Section 331(dX3) of the Trade Act of 1974 (19
U.S.C. 1303 note) is repealed. (ii) Section 152(aX2) of the Trade Act of 1974 (19
U.S.C. 2192(a)(2)) is amended by striking "(A) m the case of and all that foUows through "(B)".
(iii) Section 154(a) of the Trade Act of 1974 (19 U.S.C. 219^l(a)) is amended by striking "or section 303(e) of the Tariff Act of 1930,". (B) AMENDMENTS TO TARIFF ACT OF 1930.—The following
sections of the Tariff Act of 1930 are amended: (i) Section 315(d) (19 U.S.C. 1315(d)) is amended
by inserting "(as in effect on the day before the effective date of titie II of the Uruguay Round Agreements Act) or section 701" after "section 303".
(ii) Section 337(bX3) (19 U.S.C. 1337(b)(3)) is amended—
(I) by striking "of section 303 or subtitie B of titie VII of the Tariff Act of 1930" and inserting "of subtitie B of titie VII of this Actf',
(II) by striking "section 303, 671, or 673" and inserting "section 701 or 731",
(III) by striking "section 303, 701," and insert- ing "section 701",
108 STAT. 4910 PUBLIC LAW 103-465—DEC. 8, 1994
(IV) by striking "of the Secretary under section 303 of this Act or", and
(V) by striking "matter within such section 303, 701, or" and inserting "matter within such section 701 or". (iii) Section 701 (19 U.S.C. 1671) is amended by
striking subsection (f). (ivT Section 780(c)(1) (19 U.S.C. 1677i(c)(l)) is
amended by striking ", 732(a), or 303" and inserting "or 732(a)".
19 use 1303 (C) OTHER REFERENCES.—Any reference to section 303 "°*®- in any other Federal law, Executive order, rule, or regula-
tion shall be treated as a reference to section 303 of the Tariff Act of 1930 as in effect on the day before the effective date of title II of this Act.
19 use 1315 (2) EFFECTIVE DATE.—The amendments made by this sub- "°*®- section shall take effect on the effective date of this title.
SEC. 262. IMPOSITION OF COUNTERVAILING DUTIES.
Section 701 (a), (b), and (c) (19 U.S.C. 1671 (a), (b), and (c)) are amended to read as follows:
"(a) GENERAL RULE.—If— "(1) the administering authority determines that the
government of a country or any pubUc entity within the terri- tory of a country is providing, directiy or indirectiy, a countervailable subsidy with respect to the manufacture, production, or export of a class or kind of merchandise imported, or sold (or likely to be sold) for importation, into the United States, and
"(2) in the case of merchandise imported from a Subsidies Agreement country, the Conmiission determines that—
"(A) an industry in the United States— "(i) is materially injured, or "(ii) is threatened with material injury, or
"(B) the establishment of an industty in the United States is materially retarded,
by reason of imports of tiiat merchandise or by reason of sales (or the likelihood of sales) of that merchandise for importation,
then there shall be imposed upon such merchandise a countervailing duty, ia addition to any other duty imposed, equal to the amount of tne net countervailable subsidy. For purposes of this subsection and section 705(b)(1), a reference to the sale of merchandise includes the entering into of any leasing arrangement regarding the mer- chandise that is equivalent to the sale of the merchandise.
"(b) SUBSIDIES AGREEMENT COUNTRY.—For purposes of this titie, the term 'Subsidies Agreement country* means—
"(1) a WTO member country, "(2) a country which the President has determined has
assumed obligations with respect to the United States which are substantially equivalent to the obligations under the Sub- sidies Agreement, or
"(3) a country with respect to which the President deter- mines that—
"(A) there is an agreement in effect between the United States and that country which—
"(i) was in force on the date of the enactment of the Uruguay Round Agreements Act, and
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4911
"(ii) requires unconditional most-favored-nation treatinent witii respect to articles imported into the United States, and "(B) the agireement described in subparagraph (A) does
not expressly permit— "(i) actions required or permitted by the GATT
1947 or GATT 1994, as defined in section 2(1) of the Uruguay Round Agreements Act, or required by the Congress, or
(ii) nondiscriminatory prohibitions or restrictions on importation which are designed to prevent deceptive or uniair practices.
"(c) COUNTERVAIUNG DUTY INVESTIGATIONS INVOLVING IMPORTS N O T ENTITLED TO A MATEIUAL INJURY DETERMINATION.—In the case of any article or merchandise imported fix»m a country which is not a Subsidies Agreement country—
"(1) no determination by the Commission under section 703(a), 704, or 705(t)) shall be required,
"(2) an investigation may not be suspended under section 704(c) or 704(1),
"(3) no determination as to the presence of critical cir- cumstances shall be made imder section 703(e) or 705(a)(2),
"(4) section 706(c) shall not apply, "(5) any reference to a determination described in para-
graph (1) or (3), or to the suspension of an investigation under section 704(c) or 704(1), shall be disregarded, and
"(6) section 751(c) shall not apply.".
SEC. 263. DE MINIMIS COUNTERVAILABLE SUBSIDY.
(a) PRELIMINARY DETERMINATIONS.—Section 703(b) (19 U.S.C. 1671b(b)) is amended by adding at the end the following new paragraph:
"(4) D E MINIMIS COUNTERVAILABLE SUBSIDY.— **(A) GENERAL RULE.—In making a determination imder
this subsection, the administering authority shall disregard any de minimis countervailable subsidy. For piirposes of tiie preceding sentence, a countervailable subsidy is de Tninimis if tDB administering authoritjr determines that the aggregate of the net countervEolable subsidies is less than 1 percent ad valorem or the equivalent specific rate for the subject merchandise.
"(B) EXCEPTION FOR DEVELOPING COUNTRIES.—In the case of subject merchandise imported fix)m a Subsidies Agreement country (other than a country to which subpara- graph (C) ai)plies) designated by the Trade Representetive as a developing coimtry in accordance with section 771(36), a counterveulable subsidy is de minimis if the administering authority determines that the aggregate of the net countervailable subsidies does not exceed 2 percent ad valo- rem or the equivalent specific rate for the subject merchan- dise.
"(C) CERTAIN OTHER DEVELOPING COUNTRIES.—In the case of subject merchandise imported fi^m a Subsidies Agreement country that is—
"(i) a least developed coimtry, as determined by the Trade Representetive in accordance with section 771(36), or
108 STAT. 4912 PUBLIC LAW 103-465—DEC. 8, 1994
"(ii) a developing country with respect to which the Trade Representative has notified the administer- ing authority that the country has eliminated its export subsidies on an expedited basis within the meaning of Article 27.11 of the Subsidies Agreement,
subparagraph (B) shall be appHed by substituting '3 per- cent* for 2 percent".
"(D) LIMITATIONS ON APPUCATION OF SUBPARAGRAPH (C).—
"(i) IN GENERAL.—In the case of a country described in subparagraph (C)(i), the provisions of subparagraph (C) shall not appty after the date that is 8 years Edler the date the WTO Agreement enters into force.
"(ii) SPECIAL RULE FOR SUBPARAGRAPH (Cxii) COUN- TRIES.—In the case of a country described in subpara- graph (CXii), the provisions of subparagraph (C) shall not apply after the earUer of—
"(I) the date that is 8 years after the date the WTO Agreement enters into force, or
"(II) the date on which the Trade Representa- tive notifies the administering authority that such country is providing an export subsidy.",
(b) FINAL DETERMINATIONS.—Section 705(a) (19 U.S.C. 1671d(a)) is amended by adding at the end the following new paragraph:
"(3) D E MINIMIS COUNTERVAILABLE SUBSIDY.—In making a determination imder this subsection, the administering authority shall disregard any countervailable subsidy that is de minimis as defined in section 703(b)(4).".
SEC. 264. DETERMINATION OF COUNTERVAILABLE SUBSIDY RATE.
(a) PRELIMINARY DETERMINATION.—Section 703(d) (19 U.S.C. 19 use 1671b. 1673b(d)) is amended—
(1) by striking paragraph (2); (2) by redesignating paragraph (1), as amended by section
215(a)(1), as paragraph (2); (3) by inserting "and" at the end of paragraph (2), as
so redesignated; and (4) by inserting before such paragraph (2) the following
new paragraph: 'X1)(A) shall—
"(i) determine an estimated individual countervailable subsidy rate for each exporter and producer individually investigated, and, in accordance with section 705(c)(5), an estimated all-others rate for all ejcporters and producers not individually investigated and for new exporters and producers within the meaning of section 751(a)(2)(B), or
"(ii) if section 777A(e)(2XB) appUes, determine a single estimated country-wide subsidy rate, apphcable to aU e3«)orters and producers, and "(B) shall oraer the posting of a cash deposit, bond, or
other security, as the administering authority deems appro-
Eriate, for each entry of the subject merchandise in an amountased on the estimated individual countervsulable subsidy rate, the estimated all-others rate, or the estimated country-wide subsidy rate, whichever is apphcable,".
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4913
(b) FINAL DETERMINATION.— (1) IN GENERAI..—Section 705(cXl) (19 U.S.C. 1671d(c)(l))
is amended— (A) in subparagraph (B)—
(i) by redesignating such subparagraph as subpara- graph (C); and
(ii) by striking **under paragraphs (1) and (2)" and all that follows through "security* and inserting "the suspension of Hquidation under paragraph (2) of section TOSCd)"; (B) by striking "and" at the end of subparsigraph (A);
and (C) by inserting after subparagraph (A) the following
new subparagraph: "(B)(i) the administering authority shall—
"(I) determine an estimated individual countervailable subsidy rate for each exporter £ind pro- ducer individually investigated, and, in accordance with paragraph (5), an estimated all-others rate for all exporters and producers not individually inves- tigated and for new exporters and producers within the meaning of section 751(a)(2)(B), or
"(II) if 777A(e)(2)(B) appUes, determine a single estimated country-wide subsidy rate, appUcable to all exporters and producers, "(ii) shall order the posting of a cash deposit, bond,
or other security, £is the administering authority deems appropriate, for each entry of the subject merchandise in an amount based on the estimated individual countervailable subsidy rate, the estimated all-others rate, or the estimated country-wide subsidy rate, whichever is appHcable, and". (2) METHOD FOR DETERMINING COUNTERVAILABLE SUBSIDY
RATE.—Section 705(c) (19 U.S.C. 1671d(c)) is amended by add- ing at the end the following new psiragraph:
"(5) METHOD FOR DETERMINING THE ALL-OTHERS RATE AND THE COUNTRY-WIDE SUBSIDY RATE.—
"(A) ALL-OTHERS RATE.— "(i) GENERAL RULE.—For piuiposes of this sub-
'̂ section and section 703(d), the all-others rate shall be an amount equal to the weighted average countervailable subsidy rates estabUshed for exporters and producers individually investigated, excluding any zero and de minimis countervailable subsidy rates, and any rates determined entirely under section 776.
"(ii) EXCEPTION.—If the countervailable subsidy rates estabUshed for all exporters and producers individually investigated are zero or de minimis rates, or are determined entirely under section 776, the administering authority may use any reasonable method to estabUsh an all-others rate for exporters
: and producers not individually investigated, including averaging the weighted average countervailable sub- sidy rates determined for the exporters and producers individually investigated. "(B) COUNI^RY-WIDE SUBSIDY RATE.—^The administering
authority may calculate a single country-wide subsidy rate.
108 STAT. 4914 PUBLIC LAW 103-465—DEC. 8, 1994
applicable to all exporters and producers, if the administer- ing authority limits its examination pursuant to section 777A(e)(2)(B). The estimated country-wide rate determined under section 703(dXl)(A)(ii) or paragraph (l)(B)(i)(II) of this subsection shall be based on indus^-wide data regard- ing the use of subsidies determined to be countervailable.''.
(c) TECHNICAL AND CONFORMING AMENDMENTS.— 19 use 1671b. (1) Section 703(bX2) is amended—
(A) by striking "subsection (b)(1)" and inserting "para- graph (1)",
(B) by striking "subsection 702(bX3)" and inserting "section 702(bX3)",
(C) by striking "subsection 703(bXl)'' and inserting "paragraph (1)", and
(D) by striking "section 703(c)'' and inserting "sub- section (c) of this section". (2) Section 703(eX2) is amended by striking "subsection
(dXD" and inserting "subsection (dX2)''. 19 use 1671c. (3) Section 704(f)(2XA) is amended—
(A) in clause (i), by striking "section 703(dXl)'' and inserting "section 703(dX2)''; and
(B) in clause (iii), by striking "section 703(d)(1)'' and inserting "section 703(dXlXB)''. (4) Section 704(f)(2XB) is amended—
(A) by striking "section 703(d)(1)'' and inserting "section 703(dX2)"; and
(B) by striking "section 703(d)(2)'' and inserting "section 703(dXlXB)". (5) Section 704(hX3) is amended—
(A) in subparagraph (A), by striking "section 703(dXl)" and inserting section 703(d)(2)''; and
(B) in subparagraph (B), by striking "section 703(dX2)" and inserting "^section 703(dXlXB)". (6) Section 704(iXlXA) is amended by striking "section
703(d)(1)'' and inserting "section 703(dX2)''. 19 use I67ld. (7) Section 705(cX2) is amended—
(A) in subparagraph (A), by striking "section 703(dXl)" and inserting section 703(d)(2)''; and
(B) in subparagraph (B), by striking "section 703(dX2)" and inserting **section 703(dXlXB)". (8) Section 705(cX3XB) is amended by striking "section
703(d)(2)'' and inserting "section 703(dX IXB)*. l9USCl67ie. (9) Section 706(bXl) is amended by strildng "section
703(d)(1)'' each place it appears and inserting "section 703(dX2)".
19 use I67if. (10) Section 707(a) is amended— (A) by striking "section 703(d)(2)'' and inserting "section
703(dXlXB)", and (B) by striking "Section 703(dX2)'' in the heading and
inserting "Section 703(dXlXB)". 19 use I67lg. (11) Section 708 is amended by striking "section 703(dX2)''
and inserting "section 703(dXlXB)".
SEC. 265. ASSESSMENT OF COUNTERVAILING DUTY.
Section 706(a) (19 U.S.C. 1671e(a)) is amended— (1) by striking paragraph (2); and
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4915
(2) by redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively.
SEC. 26«. NATURE OF COUNTERVAILABLE SUBSIDY.
Section 771(7)(E)(i) (19 U.S.C. 1677(7)(E)(i)) is amended to read as follows:
"(i) NATURE OF COUNTERVAILABLE SUBSIDY.—In determining whether there is a threat of material injuiy, the Commission shall consider information pro- vided, to it by the administering authority regaraing the nature or the countervailable subsidy granted by a foreign coimtry (psirticularly whether the countervailable subsidy is a subsidy described in Arti- cle 3 or 6.1 of the Subsidies Agreement) and the effects likely to be caused by the coimtervailable subsidy.".
SEC. 267. DEFINITION OF DEVELOPING AND LEAST-DEVELOPED COUNTRY.
Section 771 (19 U.S.C. 1677), as amended, is amended by adding at the end the following new paragraph:
"(36) DEVELOPING AND LEAST DEVELOPED COUNTRY.— "(A) DEVEIX)PING COUNTRY.—The term 'developing
country* means a country designated as a developing coun- try by the Trade Representative.
\B) LEAST DEVELOPED COUNTRY.—The term least developed country^ means a country which the Trade Rep- resentative determines is—
"(i) a country referred to as a least developed coun- within the meaning of paragraph (a) of Annex
[I to the Subsidies Agreement, or "(ii) anv other coimtry hsted 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 m e a s u i ^ by the most recent data avail- able fix)m the World Bank. "(C) PUBUCATION OF UST.—Tlte Trade Representative Federal
shall publish m the Federal Register, and update as nee- Jjgf^^^^ essary, a nst of— yuuuwitiuii.
"(i) developing countaies 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 Represent- ative 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 apprmmate, includiog the level of economic devel- opment 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 devefoping or least developed country pursuant to tiiis paragraph shall be for purposes of this titie only and slialL not affect the determination of a coun- try's status as a developing or least developed country with respect to any other law. .
108 STAT. 4916 PUBLIC LAW 103-465—DEC. 8, 1994
SEC. 268. UPSTREAM SUBSIDIES.
Section 771A(a) (19 U.S.C. 1677-l(a)) is amended— (1) by striking the matter preceding paragraph (1) and
paragraph (1) and inserting the following: "(a) DEFINITION.—The term *upstream subsidy* mesins any
countervailable subsidy, other than an export subsidy, that— "(1) is paid, or bestowed by an authority (as defined in
section 771(5)) with respect to a product (hereafter in this section referred to as an Input product") that is used in the same country as the authority in the manufacture or production of merchandise which is the subject of a coimtervailing duty proceeding;", and
(2) in the flush sentence at the end thereof, by inserting "countervailable" before "subsidjr".
SEC. 269. SAMPLING AND AVERAGING; DETERMINATION OF COUNTERVAILABLE SUBSIDY RATE.
(a) IN GENERAL.—Section 777A (19 U.S.C. 1677f-l), as amended by section 229, is amended by adding at the end the following •new subsection:
"(e) DETERMINATION OF COUNTERVAILABLE SUBSIDY RATE.— "(1) GENERAL RULE.—In determining countervailable sub-
sidy rates imder section 703(d), 705(c), or 751(a), the admin- istering authority shall determine an individual coimtervailable subsidy rate for each known exporter or producer of the subject merchandise.
"(2) EXCEPTION.—If the administering authority determines that it is not practicable to determine individual countervailable subsidy rates under paragraph (1) because of the large number of exporters or producers involved in the investigation or review, the administering authority may—
"(A) determine individual coimtervEiilable subsidy rates for a reasonable number of exporters or producers by limit- ing its examination to—
**(i) a sample of exporters or producers that the administering authority determines is statistically vaUd based on the information available to the admin- istering authority at the time of selection, or
"(ii) exporters and producers accoiuitiog for the largest vo]i]ume of the subject merchandise from the exporting country that the administering authority determines can be reasonably examined; or "(B) determine a single coimtry-wide subsidy rate to
be appUed to all exporters and producers. The individual countervailable subsidy rates determined under subparagraph (A) shall be used to determine the all-others rate under section 705(c)(5).". (b) CONFORMING AMENDMENTS.—
(1) The heading for section 777A, as amended by section 229, is amended by inserting "AND COUNTERVAILABLE SUBSIDY RATE" after "MARGIN".
(2) The table of contents for title VII is amended by insert- ing "; determination of weighted average dimiping margin and countervailable subsidy rate" after "averaging" in the item relating to section 777A.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4917
SEC. 270. CONFORMING AMENDMENTS.
(a) COUNTERVAILABLE SUBSIDY.— (1) Except as provided in p£u*agraph (2), each of the follow-
ing sections is amended by strilang "subsidy" each place it appears in the text and in the heading and inserting "countervailable subsidy":
(A) Section 702(e) (19 U.S.C. 1671a(e)). (B) Section 703(b)(1) (19 U.S.C. 1671b(b)(l)). (C) Section 703(b)(2) (19 U.S.C. 1671b(b)(2)). (D) Section 703(c)(l)(B)(i)(I) (19 U.S.C.
1671b(c)(l)(B)(iXI)). (E) Section 704 (19 U.S.C. 1671c). (F) Section 705(a)(1) (19 U.S.C. 1671d(a)(l)). (G) Section 705(a)(2) (19 U.S.C. 1671d(a)(2)). (H) Section 706(a)(1) (19 U.S.C. 1671e(a)(l)). (I) Section 761 (19 U.S.C. 1676). (J) Section 762 (19 U.S.C. 1676a). (K) Section 771A(b) (19 U.S.C. 1677-l(b)). (L) Section 771A(c) (19 U.S.C. 1677-l(c)). (M) Section 780(d)(l)(A)(ii) (19 U.S.C.
1677i(dXlXA)(ii)). (N) Section 516A(a)(2)(BXiv) (19 U.S.C.
1516a(aX2XBXiv)). (2)(A) The heading for section 704(b) (19 U.S.C. 1671c(b))
is amended by striking "Subsidy" and inserting "Coimtervailable Subsidy".
(B) The heading for section 771(AXc) (19 U.S.C. 1677- 1(c)) is amended by striking "Subsidy" and inserting "Countervailable Subsidy". (b) COUNTERVAILABLE SUBSIDIES.—
(1) Except as provided in paragraph (2), each of the follow- ing sections is amended by striking "subsidies" each place it appears in the text and in the heading and inserting "countervailable subsidies":
(A) Section 701(d) (19 U.S.C. 1671(d)). (B) Section 703(cXlXBXiXIII) (19 U.S.C.
1671b(cXlXB)(iXIII)). (C) Section 761 (19 U.S.C. 1676). (D) Section 771B (19 U.S.C. 1677-2).
(2) The heading for section 761(a) and section 771B (19 U.S.C. 1676(a) and 1677-2) are each amended by striking "Sub- sidies" and inserting "Countervailable Subsidies". (c) OTHER CONFORMING AMENDMENTS.—
(1) The heading for section 704(b) (19 U.S.C. 1671c(b)) is amended by striking "Subsidized Merchandise" and inserting "Subject Merchandise .
(2) Subparagraphs (C) and (D) of section 771(4) (19 U.S.C. 1677(4) (C) and (D)) are amended by striking "subsidized or" each place it appears and inserting "or imports of merchandise benefiting from a countervailable subsidy" after "imports".
(3) Section 77lA (19 U.S.C. 1677-1), as amended, is eimended in subsection (c), by striking "subsidization" and inserting "the countervEulable subsidy".
(4) The table of contents for titie VII is amended— (A) in the item relating to section 77IB, by inserting
"countervailable" before "subsidies", and
108 STAT. 4918 PUBLIC LAW 103-465—DEC. 8, 1994
(B) in the item relating to section 775, by striking "Subsidy" and inserting "Countervailable subsidy*.
(d) SUBSIDIES AGREEMENT.—Section 702(e) (19 U.S.C. 1671a(e)) is amended by striking "Agreement" and inserting "Subsidies Agreement".
(e) SUBSIDIES AGREEMENT AND AGREEMENT ON AGRICULTURE.— Section 771(8) (19 U.S.C. 1677(8)) is amended to read as follows:
"(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 101(d)(12) of the Uruguay Round Agreements Act.
"(B) AGREEMENT ON AGRICULTURE.—The term 'Agree- ment on Agriculture' means the Agreement on Agriculture referred to in section 101(d)(2) of the Uruguay Round Agreements Act.".
PART 3—SECTION 303 INJURY INVESTIGATIONS
SEC. 271. SPECIAL RULES FOR INJURY INVESTIGATIONS FOR CER- TAIN SECTION 303 COUNTERVAILING DIHY ORDERS AND INVESTIGATIONS.
(a) IN GENERAL.—Chapter 1 of subtitle C of title VII, as amended, is £imended by inserting after section 752 the following new section:
19 u s e 1675b. "SEC. 753. SPECIAL RULES FOR INJURY INVESTIGATIONS FOR CER- TAIN SECTION 303 COUNTERVAILING DUTY ORDERS AND INVESTIGATIONS.
*(a) IN GENERAL.— "(1) INVESTIGATION BY THE COMMISSION UPON REQUEST.—
In the case of a coimtervailing duty order described in para- graph (2), which—
"(A) appUes to merchandise that is the product of a Subsidies Agreement country, and
"(B)(i) is in effect on the date on which such coimtiy becomes a Subsidies Agreement country, or
"(ii) is issued on a date that is after the date described in clause (i) pursuant to a court order in an action brought under section 516A,
the Commission, upon receipt of a request fix)m an interested party described in section 771(9) (C), (D), (E), (F), or (G) for an injury investigation with respect to such order, shall initiate an investigation and shall determine whether an industry in the United States is Hkely to be materially injured by reason of imports of the subject merchandise if the order is revoked.
"(2) DESCRIPTION OF COUNTERVAILING DUTY ORDERS.—^A countervailing duty order described in this paragraph is an order issued under section 303 with respect to wnich the requirement of an affirmative determination of material injury imder section 303(a)(2) was not appUcable at the time such order was issued.
"(3) REQUIREMENTS OF REQUEST FOR INVESTIGATION.—A request for an investigation under this subsection shall be suDmitted—
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4919
"(A) in the case of an order described in paragraph (l)(BXi), within 6 months after the date on which me country described in paragraph (IXA) becomes a Subsidies Agreement country, or
**(B) in the case of an order described in paragraph (DCBKii), within 6 months after the date the order is issued. "(4) SUSPENSION OF LIQUIDATION.—^With respect to entries
of subject merchandise made on or after— "(A) in the case of an order described in paragraph
(l)(BXi), the date on which the country described in para- graph (1)(A) becomes a Subsidies Agreement country, or
"(B) in the case of an order described in paragraph (l)(BXii), the date on which the order is issued,
liquidation shall be suspended at the cash deposit rate in effect on the date described in subparagraph (A) or (B) (which- ever is applicable). "(b) INVESTIGATION PROCEDURE AND SCHEDULE.—
"(1) COMMISSION PROCEDURE.— "(A) IN GENERAL.—Except as otherwise provided in
this section, the provisions of this title regarding evidence in and procedures for investigations conducted under sub- titie A shall apply to investigations conducted by the Commission imder this section.
"(B) TIME FOR COMMISSION DETERMINATION.—Except as otherwise provided in subparagraph (C), the Commission shall issue its determination under subsection (a)(1), to the extent possible, not later than 1 year after the date on which the investigation is initiated under this section.
"(C) SPECLU. RULE TO PERMIT ADMINISTRATIVE FLEXIBIL- ITY.—In the case of requests for investigations received under this section within 1 year after the date on which the WTO Agreement enters into force with respect to the United States, the Commission may, after consulting with the administering authority, initiate its investigations in a manner that results in determinations being made in all such investigations during the 4-year period beginning on such date. "(2) N E T COUNIERVAILABLE SUBSIDY; NATURE OF SUBSIDY.—
"(A) N E T COUNTERVAILABLE SUBSIDY.—The administer- ing authority shall provide to the Commission the net countervailable subsiay that is likely to prevail if the order which is the subject of the investigation is revoked. The administering authority normally shall choose a net countervailable subsidy that was determined under section 705 or subsection (a) or (b)(1) of section 751. If the Commis- sion considers the magnitude of the net countervailable subsidy in making its determination under this section, the Commission shall use the net countervailable subsidy provided by the administering authority.
"(B) NATURE OF SUBSIDY.—The administering authority shall inform the Commission of, and the Commission, in making its determination under this section, shall consider, the nature of the countervailable subsidy and whether the countervailable subsidy is a subsidy described in Article 3 or Article 6.1 of the Subsidies Agreement. "(3) EFFECT OF COMMISSION DETERMINATION.— *
108 STAT. 4920 PUBLIC LAW 103-465—DEC. 8, 1994
"(A) AFFIRMATIVE DETERMINATION.—Upon being noti- fied by the Commission that it has made an affirmative determination under subsection (a)(1)—
"(i) the administering authority shall order the termination of the suspension of Hquidation required pursuant to subsection (a)(4), and
"(ii) the countervailing duty order shall remain in effect until revoked, in whole or in part, under section 751(d).
For purposes of section 751(c), a countervaiUng duty order described in this section shall be treated as issued on the date of pubHcation of the Commission's determination under this subsection.
"(B) NEGATIVE DETERMINATION.— **(i) IN GENERAL.—Upon being notified by the
Commission that it has made a negative determination under subsection (a)(1), the administering authoritry shall revoke the coimtervailing duty order, and shall refiind, vdth interest, any estimated countervaihng duties collected during the period hquidation was sus- pended pursuant to siibsection (a)(4).
**(ii) LIMITATION ON NEGATIVE DETERMINATION.— A determination by the Commission that revocation of the order is not likely to result in material injury to an industry by reason of imports of the subject merchandise shall not be based, in whole or in part, on any export taxes, duties, or other chaises levied on the export of the subject merchandise to tne United States that were specifically intended to offset the countervailable subsidy received.
"(4) COUNTERVAILING DUTY ORDERS WITH RESPECT TO WHICH NO REQUEST FOR INJURY INVESTIGATION IS MADE.—If, wi t l l respect to a countervaiUng duty order described in subsection (a), a request for an investigation is not made within the time required by subsection (aX3), the Commission shall notify the administering authority that a negative determination has been made under subsection (a) and the provisions of paragraph (3XB) shall apply with respect to the order. "(c) PENDING AND SUSPENDED COUNTERVAIUNG DUTY INVES-
TIGATIONS.—If, on the date on which a country becomes a Subsidies Agreement country, there is a countervailing duty investigation in progress or suspended under section 303 that applies to merchan- dise wnich is a product of that country and with respect to which the requirement of an affirmative determination of material injury under section 303(a)(2) was not applicable at the time the investiga- tion was initiated, the Commission shall—
"(1) in the case of an investigation in progress, make a final determination under section 705(b) within 75 days after the date of an affirmative final determination, if any, by tlie administering authority,
"(2) in the case of a suspended investigation to which section 704(i)(l)(B) appUes, make a final determination under section 705(b) within 120 days after receiving notice fix)m the administering authority of the resumption of the investigation pursuant to section 704(i), or within 45 days after the date of an affirmative final determination, if any, by the administer- ing authority, whichever is later, or
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4921
"(3) in the case of a suspended investigation to which section 704(i)(l)(C) applies, treat the countervailing duty order issued piu^uant to such section as if it were—
"(A) an order issued under subsection (aXlXBXii) for purposes of subsection (aX3); £ind
"(B) an order issued under subsection (aXlXBXi) for purposes of subsection (aX4).
"(d) PUBLICATION IN FEDERAL REGISTER.—The administering authority or the Commission, as the case may be, shall publish in the Federal Register a notice of the initiation of any investigation, and a notice of any determination or revocation, made pursuant to this section.
"(e) REQUEST FOR SIMULTANEOUS EXPEDITED REVIEW UNDER SECTION 751(c).—
"(1) GENERAL RULE.— "(A) REQUESTS FOR REVIEWS.—Notwithstanding section
751(c)(6XA) and except as provided in subparagraph (B), an interested party may request a review of an order under section 751(c) at the same time the party requests an investigation imder subsection (a), if the order involves the same or comparable subject merchandise. Upon receipt of such request, the administering authority, after consult- ing with tiie (Jonmiission, shall initiate a review of the order under section 751(c). The Commission shall combine such review with the investigation under this section.
"(B) EXCEPTION.—If the administering authority deter- mines that the interested party who requested an investiga- tion under this section is a related party or an importer within the meaning of section 771(4)(B), the administering authority may decline a request by such party to initiate a review of an order under section 751(c) wluch involves the same or comparable subject merchandise. "(2) CUMULATION.—If a review under section 751(c) is initi-
ated under paragraph (1), such review shall be treated as having been initiated on the same day as the investigation under this section, and the Commission may, in accordance with section 771(7)(G), cumulatively assess the volume and effect of imports of the subject merchandise from all countries with respect to which such investigations are treated as initi- ated on the same day..
"(3) TIME AND PROCEDURE FOR COMMISSION DETERMINA- TION.—The Commission shaU render its determination in the investigation conducted under this section at the same time as the Commission's determination is made in the review under section 751(c) that is initiated pursuant to this subsection. The Commission shall in all other respects apply the procedures and standards set forth in section 751(c) to such section 751(c) reviews.". (b) REVIEW OF DETERMINATIONS.—Section 516A(aX2) (19 U.S.C.
1516a(aX2)) is amended— (1) in subparagraph (AXiXD, by striking "or (v)" and insert-
ing "(v), or (viii)", and (2) in subparagraph (B), by adding at the end the following:
"(viii) A determination by the Commission under section 753(aXl).".
79-194 O—95—12 : QL 3 Part 6
108 STAT. 4922 PUBLIC LAW 103-465—DEC. 8, 1994
(c) CONFORMING AMENDMENT.—^The table of contents for title VII, as amended, is amended by inserting after the item relating to section 752 the following new item: "Sec. 753. Special rules for injviry inveetigations for certain section 303 countervail-
ing duty orders and investigations.".
PART 4—ENFORCEMENT OF UNITED STATES RIGHTS UNDER THE SUBSIDIES AGREEMENT
19 u s e 3571. SEC. 281. SUBSIDIES ENFORCEMENT.
(a) ASSISTANCE REGARDING MULTILATERAL SUBSIDY REM- EDIES.—The administering authority shall provide information to the pubHc upon request, and, to the extent feasible, assistance and advice to interested parties concerning—
(1) remedies and benefits available under relevant provi- sions of the Subsidies Agreement, and
(2) the procedures relating to such remedies and benefits. (b) PROHIBITED SUBSIDIES.—
(1) NOTIFICATION OF TRADE REPRESENTATIVE.—If the administering authority determines pursuant to title VII of the Tariff" Act of 1930 that a class or kind of merchandise is benefiting fi'om a subsidy which is prohibited under Article 3 of the Subsidies Agreement, the administering authority shaU notify the Trade Representative and shall provide the Trade Representative with the information upon which the admin- istering authority based its determination.
(2) REQUEST BY INTERESTED PARTY REGARDING PROHIBITED SUBSIDY.—An interested party may request that the administer- ing authority determine if there is reason to beUeve that mer- chandise produced in a WTO member country is benefiting fix)m a subsidy which is prohibited under Article 3 of the Subsidies Agreement. The request shall contain such informa- tion as the administering authority may require to support the allegations contained in the request. If the administering authority, after Einalyzing the request £ind other information reasonably available to the administering authority, determines that there is reason to believe that such merchandise is benefit- ing fix)m a subsidy which is prohibited under Article 3 of the Subsidies Agreement, the administering authority shall so notify the Trade Representative, and shall include supporting information with the notification. (c) SUBSIDIES ACTIONABLE UNDER THE AGREEMENT.—
(1) IN GENERAL.—If the administering authority determines pursuant to titie VII of the Tariff" Act of 1930 that a class or kind of merchandise is benefiting fi-om a subsidy described in Article 6.1 of the Subsidies Agreement, the administering authority shall notify the Trade Representative, and shall pro- vide the Trade Representative with the information upon which the administering authority based its determination.
(2) REQUEST BY INTERESTED PARTY REGARDING ADVERSE EFFECTS.—^An interested party may request the administering authority to determine if there is reason to believe that a subsidy which is actionable under the Subsidies Agreement is causing adverse effects. The request shall contain such information as the administering authority may require to sup- port the allegations contained in the request. At the request of the administering authority, the Commission shall assist
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4923
the administering author i^ in analyzing the information pertaining to the existence of such adverse effects. If the admin- istering authority, after analyzing the request and other information reasonably available to the administering author- ity, determines that tnere is reason to beUeve that a subsidy which is actionable under the Subsidies Agreement is causing adverse effects, the administering authority shall so notify the Trade Representative, and shall include supporting information with the notification. (d) INITIATION OF SECTION 301 INVESTIGATION.—On the basis
of the notification and information provided by the administering authority pursuant to subsection (b) or (c), such other information as the Trade Representative may have or obtain, and where applicable, after consultation with an interested party referred to in subsection (b)(2) or (c)(2), the Trade Representative shall, unless such interested party objects, determine as expeditiously as possible, in accordance with the procedures in section 302(b)(1) of the Trade Act of 1974 (19 U.S.C. 2412(b)(1)), whether to initiate an investiga- tion piu^uant to titie III of that Act (19 U.S.C. 2411 et seq.). At the request of the Trade Representative, the administering authority and the Commission shall assist the Trade Representative in an investigation initiated pursuant to this subsection.
(e) NONACTIONABLE SUBSIDIES.— (1) COMPLIANCE WITH ARTICLE 8 OF THE SUBSIDIES
AGREEMENT.— (A) MONITORING.—In order to monitor whether a sub-
sidy meets the conditions and criteria described in Article 8.2 of the Subsidies Agreement and is nonactionable, the Trade Representative shall provide the administering authority on a timely basis with any information submitted or report made piu^uant to Article 8.3 or 8.4 of the Sub- sidies Agreement regarding a notified subsidy program. The administering authority shall review such information and reports, and where appropriate, shall recommend to the Trade Representative mat the Trade Representative seek pursuant to Article 8.3 or 8.4 of the Subsidies Agree- ment additional information regarding the notified subsidy program or a subsidy granted pursuant to the notified subsidy program. If the administering authority has reason to believe that a violation of Article 8 of the Subsidies Agreement exists, the administering authority shall so notify the Trade Representative, and shall iuclude support- ing information with the notification.
(B) REQUEST BY INTERESTED PARTY REGARDING VIOLA- TION OF ARTICLE 8.— Ân iuterested party may request tibie administering authority to determine if tliere is reason to believe that a violation of Article 8 of the Subsidies Agreement exists. The request shall contain such informa- tion as the administering authority may require to support the allegations contained in the request. If the administer- ing aumority, after analyzing tne request and other information reasonably available to the administering authority, determines that additional information is needed, the administering authority shall recommend to the Trade Representative that the Trade Representative seek, pursuant to Article 8.3 or 8.4 of the Subsidies Agree- ment, additional information regarding the particular noti-
108 STAT. 4924 PUBLIC LAW 103-465—DEC. 8, 1994
fied subsidy program or a subsidy granted pursuant to the notified subsidy program. If the administering author- ity determines that there is reason to beUeve that a viola- tion of Article 8 of the Subsidies Agreement exists, the administering authority shall so notify the Trade Rep- resentative, and shall include supporting information with the notification.
(C) ACTION BY TRADE REPRESENTATIVE.— (i) If the Trade Representative, on the basis of
the notification and information provided by the admin- istering authority pursuant to subparagraph (A) or (B), and such other information as the Trade Rep- resentative may have or obtain, and after consulting with the interested party referred to in subparagraph (B) and appropriate domestic industries, determines that there is reason to beUeve that a violation of Article 8 of the Subsidies Agreement exists, the Trade Rep- resentative shall invoke the procedures of Article 8.4 or 8.5 of the Subsidies Agreement.
(ii) For purposes of clause (i), the Trade Represent- ative shall determine that there is reason to beUeve that a violation of Article 8 exists in anv case in which the Trade Representative determines that a noti- fied subsidy program or a subsidy granted pursuant to a notified subsidy program does not satisfy the conditions and criteria required for a nonactionable subsidy program under this Act, the Subsidies Agree- ment, and the statement of administrative action approved under section 101(a). (D) NOTIFICATION OF ADMINISTERING AUTHORITY.—The
Trade Representative shall notify the administering author- ity whenever a violation of Article 8 of the Subsidies Agree- ment has been found to exist pursuant to Article 8.4 or 8.5 of that Agreement. (2) SERIOUS ADVERSE EFFECTS.—
(A) REQUEST BY INTERESTED PARTY.—^An interested party may request the administering authority to deter- mine if there is reason to beUeve that serious adverse effects resulting from a program referred to in Article 8.2 of the Subsidies Agreement exist. The request shall contain such information as the administering authority may require to support the aUegations contained in the rec^uest.
(B) ACTION BY ADMINISTERING AUTHORITY.—^Withm 90 days after receipt of the request described in subparagraph (A), the administering authority, after analyzing me request and other information reasonably available to the administering authority, shall determine if there is reason to beUeve that serious adverse effects resulting from a program referred to in Article 8.2 of the Subsidies Agree- ment exist. If the determination of the administering authority is affirmative, it shall so notify the Trade Rep- resentative and shaU include supporting information with the notification. The Commission shaU assist the admin- istering authority in analyzing the information pertaining to the existence of such serious adverse effects if the admin- istering authority requests the Commission's assistance. If the subsidy program that is aUeged to result in serious
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4925
adverse effects has been the subject of a countervailing duty investigation or review under subtitle A or C of title VII of the Tariff Act of 1930, the administering authority shall take into account the determinations made by the administering authority and the Commission in such inves- tigation or review and the administering authority shall complete its analysis as expeditiously as possible.
(C) ACTION BY TRADE REPRESENTATIVE.—The Trade Representative, on the basis of the notification and informa- tion provided by the administering authority pursuant to subparagraph (B), and such other information as the Trade Representative may have or obtain, shall determine as expeditiously as possible, but not later than 30 days after receipt of the notification provided by the administering authority, if there is reason to beUeve that serious adverse effects exist resulting fi-om the subsidy program which is the subject of the administering authority's notification. The Trade Reprcjsentative shall make an affirmative deter- mination regarding the existence of such serious adverse effects unless the Trade Representative finds that the notification of the administering authority is not supported by the facts.
(D) CoNSUî TATlONS.—If the Trade Representative determines that there is reason to believe that serious adverse effects resulting fi-om the subsidy program exist, the Trade Representative, unless the interested party referred to in subparagraph (A) objects, shall invoke the procedures of Article 9 of the Subsidies Agreement, and shall request consultations pursuant to Article 9.2 of the Subsidies Agreement with respect to such serious adverse effects. If such consultations have not resulted in a mutu- ally acceptable solution within 60 days after the request is made for such consultations, the Trade Representative shall refer the matter to the Subsidies Committee pursuant to Article 9.3 of the Subsidies Agreement.
(E) DETERMINATION BY SUBSIDIES COMMITTEE.—If the Trade Representative determines that—
(i) the Subsidies Committee has been prevented fi:x)m making an affirmative determination regarding the existence of serious adverse effects under Article 9 of the Subsidies Agreement by reason of the reftisal of the WTO member country with respect to which the consultations have been invoked to join in an affirmative consensus-
(I) that such serious adverse effects exist, or (II) regarding a recommendation to such WTO
member country to modify the subsidy program in such a way as to remove the serious adverse effects, or (ii) the Subsidies Committee has not presented
its conclusions regarding the existence of such serious adverse effects within 120 days after the date the matter was referred to it, as required by Article 9.4 of the Subsidies Agreement,
the Trade Representative shall, within 30 days after such determination, make a determination under section 304(a)(1) of the Trade Act of 1974 (19 U.S.C. 2414(a)(1))
108 STAT. 4926 PUBLIC LAW 103-465—DEC. 8, 1994
regarding what action to take under section 301(a)(1)(A) of that Act.
(F) NONCOMPLIANCE WITH COMMITTEE RECOMMENDA- TION.—In the event that the Subsidies Committee makes a reconmiendation under Article 9.4 of the Subsidies Agree- ment and the WTO member country with respect to which such recommendation is made does not comply with such recommendation within 6 months after the date of the recommendation, the Trade Representative shall make a determination under section 304(a)(1) of the Trade Act of 1974 (19 U.S.C. 2414(a)(1)) regarding what action to take under section 301(a) of tiiat Act
(f) NOTIFICATION, CONSULTATION, AND PUBUCATION.— (1) NOTIFICATION OF CONGRESS.—The Trade Representative
shall submit promptiy to the Committee on Ways and Means of the House of Representatives, the Committee on Finance of the Senate, and other appropriate committees of the Congress any information submitted or report made pursuant to Article 8.3 or 8.4 of the Subsidies Agreement regarding a notified subsidy program.
(2) PUBUCATION IN THE FEDERAL REGISTER.—The admin- istering authority shall publish regularly in the Federal Reg- ister a stunmary notice of any information submitted or report made pursuant to Article 8.3 or 8.4 of the Subsidies Agreement regarding notified subsidy programs.
(3) CONSULTATIONS WITH CONGRESS AND PRIVATE SECTOR.— The Trade Representative and the administering authority promptiy shall consult with the committees referred to in para- graph (1), and with interested representatives of the private sector, regarding all information submitted or reports made pursuant to Article 8.3 or 8.4 of the Subsidies Agreement regarding a notified subsidy program.
(4) ANNUAL REPORT.—Not later than February 1 of each year beginning in 1996, the Trade Representative and the administering authority shall issue a joint report to the Con- gress detailing—
(A) the subsidies practices of major trading partners of the United States, including subsidies that are prohib-
. ited, are causing serious prejudice, or are nonactionable, under the Subsidies Agreement, and
(B) the monitoring and enforcement activities of the Trade Representative and the administering authority dur- ing the preceding calendar year which relate to subsidies practices.
(g) COOPERATION OF OTHER AGENCIES.—All agencies, depart- ments, and independent agencies of the Federal Government shall cooperate fully with one another in carrying out the provisions of this section, and, upon the request of the administering authority, shall furnish to the administering authority all records, papers, and information in their possession which relate to the requirements of this section.
(h) DEFINITIONS.—For purposes of this section: (1) ADVERSE EFFECTS.—The term "adverse effects" has the
meaning given that term in Articles 5(a) and 5(c) of the Sub- sidies Agreement
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4927
(2) ADMINISTERING AUTHORITY.—The term "admimstering authority" has the meamng given that term in section 771(1) of the Tariff Act of 1930 (19 U.S.C. 1677(1)).
(3) COMMISSION.—The term "Commission" means the United States International Trade Commission.
(4) INTERESTED PARTY.—^The term *Hnterested party" means a party described in subparagraph (C), (D), (E), (F), or (G) of section 771(9) of the Tariff Act of 1930 (19 U.S.C. 1677(9) (A),(C),(D),(E),(F),or(G)).
(5) NONACTIONABLE SUBSIDY.— T̂he term "nonactionable subsidj^' means a subsidy described in Article 8.1(b) of the Subsidies Agreement.
(6) NOTIFIED SUBSIDY PROGRAM.—The term "notified sub- sidy program" means a subsidy program which has been noti- fied pursuant to Article 8.3 of the Subsidies Agreement.
(7) SERIOUS ADVERSE EFFECTS.—^The term "serious adverse effects" has the meaning given that term in Article 9.1 of the Subsidies Agreement.
(8) SUBSIDIES AGREEMENT.—The term "Subsidies Agree- ment" means the Agreement on Subsidies and Countervailing Measures described in section 771(8) of the Tariff Act of 1930 (19 U.S.C. 1677(8)).
(9) SUBSIDIES COMMITTEE.—The term "Subsidies Commit- tee" means the committee established pursuant to Article 24 of the Subsidies Agreement.
(10) SUBSIDY.—^The term "subsidy" has the meaning given that term in Article 1 of the Subsidies Agreement.
(11) TRADE REPRESENTATIVE.—The term "Trade Represent- ative" means the United States Trade Representative.
(12) VIOLATION OF ARTICLE 8.—The term "violation of Arti- cle 8" means the &ilure of a notified subsidy program or an individual subsidy granted pursuant to a notified subsidy pro- gram to meet the applicable conditions and criteria described in Article 8.2 of the Subsidies Agreement (i) TREATMENT OF PROPRIETARY INFORMATION.—Notwithstand-
ing any other provision of law, the administering authority may provide the Trade Representative with a copy of proprietary information submitted to, or obtained by, the admmistenng author- ity that the Trade Representative considers relevant in carrying out its responsibilities under this part The Trade Representative shall protectfirompubUc disclosure proprietary information obtained fi^m the administering authority under this part.
SEC. 282. REVIEW OF SUBSIDIES AGREEMENT. 19 USC 3572.
(a) GENERAL OBJECTIVES.—^The general objectives of the United States under this part are—
(1) to ensure that parts II and III of the Agreement on Subsidies and Countervailing Measures referred to in section 101(d)(12) (hereafter in this section referred to as the "Subsidies Agreement^) are effective in disciplining the use of subsidies
')i and in remedying the adverse effects of subsidies, and 'f (2) to ensure that part IV of the Subsidies Agreement
does not undermine the benefits derived from, any other part of that Agreement. (b) SPECIFIC OBJECTIVE.—The specific objective of the United
States under this part shall be to create a mechanism which wiU
108 STAT. 4928 PUBLIC LAW 103-465—DEC. 8, 1994
provide for an ongoing review of the operation of part IV of the Subsidies Agreement.
(c) SUNSET OF NONCOUNTERVAILABLE SUBSIDIES PROVISIONS.— (1) IN GENERAL.—Subparagraphs (B), (C), (D), and (E) of
section 771(5B) of the Tariff Act of 1930 shall cease to apply £is provided in subparagraph (G)(i) of such section, unless, before the date referred to in such subparagraph (G)(i)—
(A) the Subsidies Committee determines to extend Arti- cles 6.1, 8, and 9 of the Subsidies Agreement as in effect on the date on which the Subsidies Agreement enters iuto force or in a modified form, in accordance with Article 31 of such Agreement,
(B) the President consults with the Congress in accord- ance with paragraph (2), and
(C) an implementing bill is submitted and enacted into law in accordance with paragraphs (3) and (4).
President. (2) CONSULTATION WITH CONGRESS BEFORE SUBSIDIES COMMITTEE AGREES TO EXTEND.—^Before a determination is made by the Subsidies Conmiittee to extend Articles 6.1, 8, and 9 of the Subsidies Agreement, the President shall consult with the Committee on Ways and Means of the House of Representatives and the Conmiittee on Finance of the Senate regarding such extension.
(3) IMPLEMENTATION OF EXTENSION.— (A) NOTIFICATION AND SUBMISSION.—Any extension of
subparagraphs (B), (C), (D), and (E) of section 771(5B) of the Tariff Act of 1930 shall take effect if (and only if)—
(i) after the Subsidies Committee determines to extend Articles 6.1, 8, and 9 of the Subsidies Agree- ment, the President submits to the committees referred to in paragraph (2) a copy of the document describing the terms of such extension, together with—
(I) a draft of an implementing bUl, (II) a statement of any administrative action
proposed to implement the extension, £uid (III) the supporting information described in
subparagraph (C); and (ii) the implementing bill is enacted into law.
(B) IMPLEMENTING BILL.—The implementing bill referred to in subparagraph (A) shall contain only those provisions that are necessary or appropriate to implement an extension of the provisions of section 771(5B) (B), (C), (D), and (E) of the Tariff Act of 1930 as in effect on the day before the date of the enactment of the implement- ing bill or as modified to reflect the determination of the Subsidies Committee to extend Articles 6.1, 8, £ind 9 of the Subsidies Agreement
(C) SUPPORTING INFORMATION.—The supporting information required under subparagraph (A)(i)(III) con- sists of—
(i) an explanation as to how the implementing bill and proposed administrative action will change or affect existing law; and
(ii) a statement regarding— (I) how the extension serves the interests of
United States conmierce, and
• ••-• > %^ H'.' . >%'''
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4929
(II) why the implementing bill and proposed administrative action is required or appropriate to csirry out the extension.
(4) APPLICATION OF CONGRESSIONAL "FAST TRACK" PROCE- DURES TO IMPLEMENTING BILL.—Section 151 of the Trade Act of 1974 (19 U.S.C. 2191) is amended—
(A) in subsection (b)(1)— (i) by inserting ", or with respect to an extension
described in section 282(c)(3) of the Uruguay Roimd Agreements Act," after "trade agreements",
(ii) by striking "or section 1103(a)(1) of the Onmi- bus Trade and Competitiveness Act of 1988" and insert- ing ", section 1103(aXl) of the Omnibus Trade and Competitiveness Act of 1988, or section 282 of the
• Uruguay Round Agreements Act", and (iii) by inserting "or such extension" in subpara-
graphs (A) and (C) after "agreements" each place it appears, and (B) in subsection (c)(1)—
(i) by inserting "or section 282 of the Uruguay Round Agreements Act" after "section 102", and
(ii) by inserting "or extension" afber "agreement^' each place it appears.
(5) REPORT BY THE TRADE REPRESENTATIVE.—Not later than the date referred to in section 771(5B)(G)(i) of the Tariif Act of 1930, the Trade Representative shall submit to the Congress a report setting forth the provisions of law which were enacted to implement Articles 6.1, 8, and 9 of the Subsidies Agreement and snould be repealed or modified if such provisions are not extended. (d) REVIEW OF THE OPERATION OF THE SUBSIDIES AGREEMENT.—
The Secretary of Commerce, in consultation with other appropriate departments and agencies of the Federal Government, shall under- take an ongoing review of the operation of the Subsidies Agreement The review shall address—
(1) the effectiveness of part II of the Subsidies Agreement in disciplining the use of suTbsidies which are prohibited under Article 3 of the Agreement,
(2) the effectiveness of part III and, in particular. Article 6.1 of the Subsidies Agreement, in remedying the adverse effects of subsidies which are actionable under tne Agreement, and
(3) the extent to which the provisions of part IV of the Subsidies Agreement may have imdermined the benefits derived from other parts of the Agreement, and, in particular—
(A) the extent to which WTO member countries have cooperated in reviewing and improving the operation of part IV of the Subsidies Agreement,
(B) the extent to which the provisions of Articles 8.4 £ind 8.5 of the Subsidies Agreement have been effective in identifying and remedying violations of the conditions and criteria described in Article 8.2 of the A^:^ement, and
(C) the extent to which the provisions of Article 9 of the Subsidies Agreement have been effective in remedy- ing the serious adverse effects of subsidy programs described in Article 8.2 of the Agreement
108 STAT. 4930 PUBLIC LAW 103-465—DEC. 8, 1994
^P**^^- Not later than 4 years and 6 months after the date of the enactment of this Act, the Secretary of Commerce shall submit to the Congress a report on the review required under this subsection.
SEC. 283. AMENDMENTS TO TITLE VII OF THE TARIFF ACT OF 1930.
(a) PREUMINARY DETERMINATION BY ADMINISTERING AUTHOR- ITY.—Section 703(b) of the Tariflf Act of 1930 (19 U.S.C. 1671b(b)), as amended, is amended by adding at the end the following new paragraph:
"(5) NOTIFICATION OF ARTICLE 8 VIOLATION.—If the onlv subsidy under investigation is a subsidy with respect to whicn the aaministering authority received notice from the Trade Representative of a violation of Article 8 of the Subsidies Agree- ment, paragraph (1) shall be appHed by substituting '60 days' for '65 days"". (b) SUBSIDY PRACTICE DISCOVERED DURING A PROCEEDING.—
Section 775 of the Tariff Act of 1930 (19 U.S.C. 1677d) is amended to read as follows:
"SEC. 775. COUNTERVAILABLE SUBSIDY PRACTICES DISCOVERED DURING A PROCEEDING.
"If, in the coiu^e of a proceeding under this title, the admin- istering authority discovers a practice which appears to be a coimtervailable subsidy, but was not included in the matters alleged in a countervailing duty petition, or if the administering authority receives notice from the Trade Representative that a subsidy or subsidy program is in violation of Article 8 of the Subsidies Agree- ment, then me administering authority—
"(1) shall include the practice, subsidy, or subsidy program in the proceeding if the practice, subsidy, or subsidy program appears to be a countervailable subsidy with respect to the merchandise which is the subject of the proceeding, or
"(2) shall transfer the imbrmation (other than confidential information) concerning the practice, subsidy, or subsidy pro- gram to tiie library maintained under section 777(a)(1), if the practice, subsidy, or subsidy program appears to be a countervailable subsidy with respect to any other merchan- dise.". (c) ADMINISTRATIVE REVIEWS.—Section 751 of the Tariff Act
of 1930 (19 U.S.C. 1675), as amended, is amended by redesignating subsection (^) as subsection (h) and by inserting after subsection (f) the following new subsection:
"(g) REVIEWS TO IMPLEMENT RESULTS OF SUBSIDIES ENFORCE- MENT PROCEEDING.—
"(1) VIOLATIONS OF ARTICLE 8 OF THE SUBSIDIES AGREE- MENT.—If—
"(A) the administering authority receives notice from the Trade Representative of a violation of Article 8 of the Subsidies Agreement,
"(B) the administering authority has reason to believe that merchandise subject to an existing countervaihng duty order or suspended investigation is benefiting firam the subsidy or subsidy p r o - a m found to have been in violation of Article 8 of the Subsidies Agreement, and
"(C) no review pursuant to subsection (a)(1) is in progress.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4931
the administering authority shall conduct a review of the order or suspended investigation to determine whether the subject merchandise benefits from the subsidy or subsidy program found to have been in violation of Article 8 of the Subsidies Agreement If the administering authority determines that the subject merchandise is benefiting fix)m the subsidy or subsidy program, it shall make appropriate adjustments in the esti- mated duty to be deposited or appropriate revisions to the terms of the suspension agreement.
"(2) WITHDRAWAL OF SUBSIDY OR IMPOSITION OF COUNTER- MEASURES.—If the Trade Representative notifies the admiu- istering authority that, pursuant to Article 4 or Article 7 of the Subsidies Agreement—
"(AXi) the United States has imposed coimtermeasures, and
"(ii) such countermeasures are based on the effects ia the United States of imports of merchandise that is the subject of a countervailing duty order, or
**(Bj a WTO member country has withdrawn a countervaUable subsidy provided witii respect to merchan- dise subject to a countervailing duty order,
the administering authority shall conduct a review to determine if the amount of the estimated duty to be deposited should be adjusted or the order should be revoked.
"(3) EXPEDITED REVIEW.—The administering authority shall Federal conduct reviews under this subsection on an expedited basis, ^fl'^^f' £tQd shall pubUsh the results of such reviews in the Federal ^ '̂ ^ '°" Register.".
Subtitle C—Effective Date SEC. 291. EFFECTIVE DATE. 19 USC 1671
(a) IN GENERAL.—Except as provided in section 261, the amend- ments made by this title shall take effect on the date described in subsection (b) and apply with respect to—
(1) investigations initiated— (A) on the basis of petitions filed under section 702(b),
732(b), or 783(b) of the Tariff Act of 1930 after the date described in subsection (b), or
(B) by the administering authority under section 702(a) or 732(a) of such Act after such date, (2) reviews initiated imder section 751 of such Act—
(A) by the administering authority or the Commission on their own initiative after such date, or
(B) pursuant to a request filed after such date, (3) investigations initiated under section 753 of such Act
aft«r such date, (4) petitions filed imder section 780 of such Act after such
date, and (5) inquiries initiated under section 781 of such Act—
(A) by the administering authority on its own initiative after such date, or
(B) pursuant to a request filled after such date. (b) DATE DESCRIBED.—^The date described ia this subsection
is the date on which the WTO Agreement (as defined in section 2(9)) enters into force with respect to the United States.
108 STAT. 4932 PUBLIC LAW 103-465—DEC. 8, 1994
TITLE III—ADDITIONAL IMPLEMENTATION OF AGREEMENTS
Subtitle A—Safeguards
Regulations.
Federal Register, publication.
SEC. 301. INVESTIGATIONS, DETERMINATIONS, AND RECOMMENDA- TIONS BY INTERNATIONAL TRADE COMMISSION.
(a) TREATMENT OF CONFIDENTIAL INFORMATION.—Section 202(a)(8) of tlie Trade Act of 1974 (19 U.S.C. 2252(a)(8)) is amended by adding at the end the following: "The Commission may request that parties providing confidential business information furnish nonconfidential summaries thereof or, if such parties indicate that the information in the submission cannot be summarized, the rea- sons why a summary cannot be provided. If the Commission finds that a request for confidentiaUty is not warranted and if the party concerned is either unwilling to make the information pubHc or to authorize its disclosiu*e in generaUzed or summarized form, the Commission may disregard the submission.".
(b) ADMINISTRATIVE PROTECTIVE ORDERS.—Section 202 of the Trade Act of 1974 (19 U.S.C. 2252) is amended by adding at the end the following:
"(i) LIMITED DISCLOSURE OF CONFIDENTIAL BUSINESS INFORMA- TION UNDER PROTECTIVE ORDER.—The Commission shall promul- gate regulations to provide access to confidential business information under protective order to authorized representatives of interested parties who are parties to an investigation under this section.".
(c) NOTICE OF PROCEEDINGS.—Section 202(b) of the Trade Act of 1974 (19 U.S.C. 2252(b)) is amended by striking paragraphs (3) and (4) and inserting the following:
"(3) The Commission shall publish notice of the commence- ment of any proceeding under this subsection in the Federal Register and shall, within a reeisonable time thereafter, hold pubhc hearings at which the Commission shall afford interested parties and consumers an opportunity to be present, to present evidence, to conmient on the adjustment plan, if any, submitted imder subsection (a), to respond to the presentations of other parties and consumers, and otherwise to be heard.". (d) CRITICAL CIRCUMSTANCES.—
(1) IN GENERAL.—Section 202(d)(2) of the Trade Act of 1974 (19 U.S.C. 2252(d)(2)) is amended to read as follows:
"(2)(A) When a petition filed under subsection (a) alleges that critical circumstances exist and requests that provisional reUef be provided under this subsection with respect to imports of the article identified in the petition, the Commission shall, not later than 60 days after the petition containing the request was filed, determine, on the basis of available information, whether—
"(i) there is clear evidence that increased imports (either actual or relative to domestic production) of the article are a substantial cause of serious injury, or the threat thereof, to the domestic industry producing an article hke or directly competitive with the imported article; and
^j**svV-'j
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4933
"(ii) delay in taking action under this chapter would cause damage to that industry that would be difficult to repair. "(B) If the determinations imder subparagraph (A)(i) and
(ii) are affirmative, tlie Commission shall find the amount or extent of provisional reUef that is necessary to prevent or remedy the serious injury. In carrying out this subparagraph, the Commission shall give preference to increasing or imposing a duty on imports, if such form of reUef is foEisible and would prevent or remedy the serious injury.
"(C) The Conmiission shall immediately report to the Presi- Reports, dent its determinations under subparagraph (A)(i) and (ii) and, if the determinations are affirmative, the finding under subpEiragraph (B).
"(D) Within 30 days after receiving a report fix)m the President. Commission under subparagraph (C) containing sm affirmative determination imder suTbparagraph (A)(i) and (ii), the President, if he considers provisional relief to be warranted and after taking into accoimt the finding of the Commission under subparagraph (B), shall proclaim, for a period not to exceed 200 days, such provisional relief that the President considers necessary to prevent or remedy the serious injury. Such relief shall take the form of £in increase in, or the imposition of, a duty on imports, if such form of reUef is feasible and would prevent or remedy the serious injury.".
(2) TIME LIMITS FOR DETERMINATIONS.—Section 202 of the Trade Act of 1974 (19 U.S.C. 2252) is amended—
(A) in subsection (b)(2)— (i) in subparagraph (A) by inserting "(180 days
if the petition alleges that critical circumstances exist)" after ^ 2 0 days"; and
(ii) in subparagraph (B) by inserting "(210 days if the petition alleges that critical circumstances exist)" aft^r "150 days"; and (B) in subsection (f)(1) by inserting "(240 days if the
petition alleges that critical circumstances exist)" after "180 days". (3) ACTION BY THE PRESIDENT.—Section 203(a)(4) of the
Trade Act of 1974 (19 U.S.C. 2253(a)(4)) is amended— (A) by striking "The" and inserting "(A) Subject to
subparagraph (B), the"; (B) bv inserting after "60 days" the following: "(50
days if the President has proclaimed provisional relief under section 202(d)(2)(D) with respect to the article con- cerned)"; and
(C) by striking "; except that" and all that follows through "received? and inserting a period and the following: "(B) If a supplemental report is requested under paragraph
(5), the President shall take action under paragraph (1) witiun 30 days after the supplemental report is received, except that, in a case in which the President has proclaimed provisional relief under section 202(d)(2)(D) with respect to the article concerned, action by the President under paragraph (1) may not be taken later than the 200th day after the provisional relief was proclaimed.".
108 STAT. 4934 PUBLIC LAW 103-465—DEC. 8, 1994
(4) CONFORMING AMENDMENTS.—Section 202(d) of the Trade Act of 1974 (19 U.S.C. 2252(d)) is amended—
(A) in paragraph (3)— (i) by striking "(2)(B)" and inserting "(2)(D)"; and (ii) Dy striking "subsection (b)(1)" and inserting
"paragraph (2)(A)"; sind (B) in paragraph (4)(A)(i) by inserting "or (2)(D)" after
"(1)(G)". (e) FACTORS IN MAKING DETERMINATIONS.—Section 202(c) of
the Trade Act of 1974 (19 U.S.C. 2252(c)) is amended— (1) in paragraph (l)(B)(i) by inserting "productivity," after
"wages,"; and (2) in paragraph (6)—
(A) by amending subparagraph (A) to read as follows: "(A)(i) The term 'domestic industry* means, with
respect to an article, the producers as a whole of the like or directiy competitive article or those producers whose collective production of the Uke or directiy competitive arti- cle constitutes a major proportion of the total domestic production of such article.
"(ii) The term 'domestic industry' includes producers . located in the United States insular possessions."; and
(B) by adding at the end the following: "(C) The term 'serious injury' means a significant over-
all impairment in the position of a domestic industry. "(D) The term 'threat of serious injury* means serious
injury that is clearly imminent. (f) LIMITATIONS ON INVESTIGATIONS.—Section 202(h) of the
Trade Act of 1974 (19 U.S.C. 2252(h)) is amended by adding at the end the following:
Federal "(3)(A) Not later than the date on which the Textiles Agree- ^ublication ment enters into force with respect to the United States, the ^" ^ ^ ^ • Secretary of Commerce shall pubUsh in the Federal Register
a Hst of all articles that are suDJect to the Textiles Agreement. An investigation may be conducted under this section concern- ing imports of any article that is subject to the Textiles Agree- ment only if the United States has integrated that article into GATT 1994 pursuant to the Textiles A g r e ^ e n t , as set forth in notices pubhshed in the Federal Register by the Sec- retary of Commerce, including the notice published under sec- tion 331 of the Uruguay Round Agreements Act.
"(B) For piuposes of this paragraph: "(i) The term "Textiles Agreement' means the Agree-
ment on Textiles and Clothing referred to in section 101(d)(4) of the Uruguay Round Agreements Act.
"(ii) The term 'GATT 1994' has the meaning given that term in section 2(1)(B) of the Uruguay Round Agree- ments Act".
SEC. 302. ACTION BY PRESmENT AFTER DETERMINATION OF IMPORT INJURY.
(a) AUTHORITY TO ENTER INTO INTERNATIONAL AGREEMENTS.— Section 203 of the Trade Act of 1974 (19 U.S.C. 2253) is amended—
(1) in subsection (a)(3)(E) by striking "orderly marketing"; (2) in subsection (d)(1) by striking "orderly marketing
agreements" and inserting "agreements described in subsection (a)(3)(E)";
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4935
(3) in subsection (f)— (A) in the subsection heading by stinking "ORDERLY
MARKETING AND OTHER" and inserting "CERTAIN"; (B) in paragraph (1)—
(i) by sti*iking "orderly marketing agreements" the first place it appears and inserting "agreements of the type describea in subsection (aX3)(E)"; and
(ii) by striking "orderly marketing agreements with foreign countries and inserting "agreements of the type described in subsection (aX3XE)"; and (Cj in paragraph (2) by striking "orderly marketing
agreement implemented under subsection (a)" and insertLog "agreement implemented under subsection (aX3XE)"; and (4) in subsection (gX2)—
(A) in the first sentence by striking "orderly marketing or other"; and
(B) in the second sentence— (i) by striking "orderly marketing agreement" and
inserting "agreement of the type described in sub- section (a)(3)(E) that is"; and
(ii) by striking "agreements" and inserting "agreement",
(b) LIMITATIONS ON ACTIONS.— (1) DURATION OF ACTIONS.—Section 203(eXl) of the Trade
Act of 1974 (19 U.S.C. 2253(eXl)) is amended to read as follows: "(1)(A) Subject to subparagraph (B), the duration of the
period in which an action taken under this section may be in effect shall not exceed 4 years. Such period shall include the period, if any, in which provisiomd relief under section 202(d) was in effect.
"(B)(i) Subject to clause (ii), the President, after receiving an af&rmative determination fix)m the Commission under sec- tion 204(c) (or, if the Commission is equally divided in its determination, a determination which the President considers to be an afSnnative determination of the Commission), may extend the effective period of any action under this section ifthe President determines that—
"(I) the action continues to be necessary to prevent or remedy the serious injury; and
"(II) there is evidence that the domestic industry is making a positive adjustment to import competition. "(ii) The effective period of any action tmder this section,
including any extensions thereof, may not, in the aggregate, exceed 8 years.".
(2) LIMITATION ON QUANTITATIVE RESTRICTIONS.—Section 203(eX4) of the Trade Act of 1974 (19 U.S.C. 2263(eX4)) is cunended to read as foUows:
"(4) Any action taken \mder this section proclaiming a quantitative restriction shall permit the importation of a quan- tity or value of the article which is not less th£m. the average quantity or value of such article entered into the United States in the most recent 3 years that are representative of imports of such sirticle and for which data are available, unless the President finds that the importation of a different quantity or value is clearly justified in order to prevent or remedy the serious injury.".
108 STAT. 4936 PUBLIC LAW 103-465—DEC. 8, 1994
(3) PHASING-DOWN OF ACTIONS.—Section 203(e)(5) of the Trade Act of 1974 (19 U.S.C. 2253(e)(5)) is amended to read as follows:
"(5) An action described in subsection (a)(3)(A), (B), or (C) that has an effective period of more than 1 year shall be phsised down at regular intervals during the period in which the action is in effect .
(4) LIMITATIONS ON NEW ACTIONS AND INVESTIGATIONS OF SAME ARTICLE.—(A) Section 203(e) of the Trade Act of 1974 (19 U.S.C. 2253(e)) is amended by adding at the end the follow- ing:
"(7)(A) If an article was the subject of an action under subparagraph (A), (B), (C), or (E) of subsection (a)(3), no new action may be taken imder any of those subparagraphs with respect to such article for—
**(i) a period beginning on the date on which the pre- vious action terminates that is equal to the period in which the previous action was in effect, or
"(ii) a period of 2 yeara beginning on the date on which the previous action terminates,
whichever is greater. "(B) Notwithstanding subparagraph (A), if the previous
action under subparagraph (A), (B), (C), or (E) of subsection (a)(3) with respect to an article was in effect for a period of 180 days or less, the President may take a new action under any of those subparagraphs with respect to such article if—
*(i) at least 1 year has elapsed since the previous action went into effect; and
"(ii) an action described in any of those subparagraphs has not been taken with respect to such article more than twice in the 5-year period immediately preceding the date on which the new action with respect to such article first beconQ.es effective.". (B) Section 202(h)(2) of the Trade Act of 1974 (19 U.S.C.
2252(h)(2)) is amended to read as follows: "(2) No new investigation shall be conducted with respect
to an sirticle that is or has been the subject of an action under section 203(a)(3)(A), (B), (C), or (E) if the last day on which the President could take action under section 203 in the new investigation is a date earUer than that permitted under section 203(e)(7).''. (c) REPORTS ON MONITORING.—Section 204(a) of the Trade Act
19 use 2254. of 1974 (19 U.S.C. 2354(a)) is amended— (1) by amending paragraph (2) to read as follows: "(2) If the initial period during which the action taken
xmder section 203 is in effect exceeds 3 years, or if an extension of such action exceeds 3 years, the Conmiission shall submit a report on the results of the monitoring under paragraph (1) to the President and to the Congress not later than tne date that is the mid-point of the initial period, and of each such extension, during which the action is in effect"; and
(2) in paragraph (4) by striking "extension,". (d) INVESTIGATION OF EXTENSION OF ACTION.—Section 204 of
the Trade Act of 1974 (19 U.S.C. 2254) is amended— (1) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4937
(2) by inserting after subsection (b) the following: "(c) EXTENSION OF ACTION.—
"(1) Upon request of the President, or upon petition on behalf of me industry concerned filed with the Commission not earlier than the date which is 9 months, and not later than the date which is 6 months, before the date any action taken under section 203 is to terminate, the Commission shall investigate to determine whether action under section 203 continues to be necessary to prevent or remedy serious rmury and whether there is evidence that the industry is making a positive adjustment to import competition.
"(2) The Commission snail publish notice of the commence- ment of any proceeding under this subsection in the Federal Register and shall, within a reasonable time thereafter, hold a public hearing at which the Conmiission shall afford interested parties and consumers an opportunity to be present, to present evidence, and to respond to the presentations of other parties and consumers, and otherwise to be heard.
"(3) The Commission shsdl transmit to the President a report on its investigation and determination under this sub- section not later than 60 days before the action under section 203 is to terminate, \mless the President specifies a different date.".
SEC. 303. MISCELLANEOUS AMENDMENTS.
Title II of the Trade Act of 1974 is amended as follows: (1) Section 202(a)(2)(B)(ii) (19 U.S.C. 2252(aX2)(B)(ii)) is
amended by striking ", or at any time before the 150th day after the date of filing be amended to request,".
(2) Section 202(b)(1)(A) (19 U.S.C. 2252(b)(1)(A)) is amended by striking "(b)" and inserting "(a)".
(3) Section 202(d)(1) (19 U.S.C. 2252(d)(1)) is amended— (A) in subparagraph (C)(i) by striking "paragraph (2)"
£ind inserting 'Subparagraph (B)"; and (B) by striking "or threat thereof each place it appears
in subparagraphs (E) and (G). (4) Section 202(d)(4)(A)(i) (19 U.S.C. 2252(d)(4)(A)(i)) is
amended by striking "203(a)'' and inserting "202(b)''. (5) Section 202(c)(6) (19 U.S.C. 2252(c)(6)) is amended by
striking "subsection" and inserting "section". (6) Section 202(f)(2)(G)(ii) (19 U.S.C. 2252(f)(2)(G)(ii)) is
amended by striking "is" and inserting "are". (7) Section 203(a)(2)(C) ( 1 9 U . S . C . 2253(a)(2)(C)) is
amended by striking "201(b)" and inserting "202(a)". (8) Section 203(c) (19 U.S.C. 2253(c)) is amended by striking
"(c)(2)" and inserting "(d)(2)". (9) Section 203(e)(2) (19 U.S.C. 2253(e)(2)) is amended—
(A) by striking "may be taken under subsection (a)(1)(A), (B), or (C) or \mder section 202(d)(2)(B)" and inserting "of a type described in subsection (a)(3)(A), (B), or (C) may be taken under subsection (a)(1), under section 202(d)(1)(G), or under section 202(d)(2)(D)"; and
(B) by striking "or threat thereof". (10) Section 203(e)(6)(B) (19 U.S.C. 2253(e)(6)(B)) is
amended— (A) by striking "203(c)" and inserting "202(e)"; and (B) by striking ^03(a)" and inserting "202(b)".
Federal Register, publication.
Reports.
108 STAT. 4938 PUBLIC LAW 103-465—DEC. 8,1994
19 use 2252 SEC. 304. EFFECTIVE DATE.
(a) IN GENERAL.—Except as provided in subsection (b), this subtitle and the amendments made by this subtitle take effect on the date on which the WTO Agreement enters into force with respect to the United States.
(b) SECTION 301(b).—The amendment made by section 301(b) takes effect on the date of the enactment of this Act.
Subtitle B—^Foreign Trade Barriers and Unfair Trade Practices
SEC. 311. roENTIFICATION OF FOREIGN ANTICOMPETITIVE PRACTICES.
(a) REPORT TO CONGRESS.— (1) CONTENTS OF REPORT.—Section 181(bX2) of the Trade
Act of 1974 (19 U.S.C. 2241(b)(2)) is amended— (A) in subparagraph (A) by striking **or" after the
conmia; (B) iu subparagraph (B) by striking the period and
inserting ", or''; and (C) by adding £ifter subparagraph (B) the following: "(CJ) a section on foreign anticompetitive practices, the
toleration of which by foreign governments is adversely affecting exports ofUnited States goods or services.". (2) ASSISTANCE OF OTHER AGENCIES.—Section 181(c) of the
Trade Act of 1974 (19 U.S.C. 2241(c)) is amended by adding at tihe end of paragraph (1) the following: "In preparing the section of the report required by subsection (bX2)(C), the Trade Representative shall consult in particular with the Attorney Greneral.".
SEC. 312. CONSULTATION WITH COMMTTTEES.
Section 181(b)(3) of tiie Trade Act of 1974 (19 U.S.C. 2241(b)(3)) is amended by adding at the end the following: "After the submis- sion of the report required by paragraph (1), the Trade Representa- tive shall also consult perioaicaUv with, and take into account the views of, the committees described in that paragraph regarding means to address the foreign trade barriers identified in the report, including the possible initiation of investigations under section 302 or other trade actions.". SEC. 313. IDENTIFICATION OF COUNTRIES THAT DENY PROTECTION
OF INTELLECTUAL PROPERTY RIGHTS.
Section 182 of the Trade Act of 1974 (19 U.S.C. 2242) is amended—
(1) in subsection (b) by adding at the end the following: "(4) In identifying foreign countries under paragraphs (1)
and (2) of subsection (a), the Trade Representative shall take into account—
"(A) the history of intellectual property laws and prac- tices of the foreign country, includmg any previous ioenti- fication imder subsection (a)(2), and
"(B) the history of efforts of the United States, and the response of the foreign country, to achieve adequate and effective protection and enforcement of intellectual property rights."; sind
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4939
(2) in subsection (d)— (A) in paragraph (3) by amending the matter preceding
subparagraph (A) to read as follows: "(3) A fereign country denies fair and equitable market
access if the foreign country effectively denies access to a mar- ket for a product protected by a copyright or related right, patent, trademark, mask work, trade secret, or plant breeder's right, through the use of laws, procedures, practices, or regula- tions which—"; and
(B) by adding at the end the following: "(4) A foreign coimtry may be determined to deny adequate
and effective protection of intellectual property rights, notwith- standing the fact that the foreign country may be m comphance with the specific obhgations of the Agreement on Trade-Related Aspects of Intellectual Property Rights referred to in section 101(d)(15) of the Uruguay Round Agreements Act"; £ind
(3) by adding at the end the following: "(g) ANNUAL REPORT.—The Trade Representative shall, by not
later than the date by which countries are identified under sub- section (a), transmit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, a report on actions taken under this section dining the 12 months preceding such report, and the reasons for such actions, including a description of progress made in achieving improved intellectual property protection and market access for persons relying on intellectual property rights.".
SEC. 314. AMENDMENTS TO TITLE m OF THE TRADE ACT OF 1974.
(a) SCOPE OF AUTHORITY.— (1) IN GENERAL.—Subsections (a)(1) and (b)(2) of section
301 of the Trade Act of 1974 (19 U.S.C. 2411(a)(1) and (b)(2)) are each amended by adding the following sentence at the end:
"Actions may be taken that are within the power of the President with respect to trade in any goods or services, or with respect to any other area of pertinent relations with the foreign country.".
(2) IMPORT RESTRICTIONS.—Section 301(c)(5) of the Trade Act of 1974 (19 U.S.C. 2411(c)(5)) is amended by striking the matter preceding subpsiragraph (B) and inserting the following:
"(5) If the Trade Representative determines that actions to be taken under subsection (a) or (b) are to be in the form of import restrictions, the Trade Representative shall—
"(A) give preference to the imposition of duties over the imposition of other import restrictions, and".
(b) RELATIONSHIP WITH OTHER AUTHORITIES.—Section 301(c) of the Trade Act of 1974 (19 U.S.C. 2411(c)) is amended—
(1) in paragraph (1)— (A) in subparagraph (B), by striking "or" afler the
semicolon at the end; (B) by redesignating subparagraph (C) as subpara-
graph (D); and (C) by inserting after subpEiragraph (B) the following: "(C) in a case in which the act, poUcy, or practice
also fails to meet the eHgibUity criteria for receiving duty- free treatment under subsections (b) and (c) of section 502 of this Act, subsections (b) and (c) of section 212 of the Caribbean Basin Economic Recovery Act (19 U.S.C.
108 STAT. 4940 PUBLIC LAW 103-465—DEC. 8, 1994
2702(b) and (c)), or subsections (c) and (d) of section 203 of the Andean Trade Preference Act (19 U.S.C. 3202(c) and (d)), withdraw, Umit or suspend such treatment under such provisions, notwithstanding the provisions of sub- section (a)(3) of this section; oi^'.
(c) DEFINITION OF AN UNREASONABLE ACT, POUCY, OR PRAC- TICE.—Section 301(d)(3) of the Trade Act of 1974 (19 U.S.C. 2411(d)(3)) is amended—
(1) in subparagraph (B)(i) by striking subclauses (II) and (III) and inserting the following:
"(II) provision of adequate and effective protection of intellectual property rights notwithstanding the fact that the foreign country may be in compUance with the specific obligations of the Agreement on Trade- Related Aspects of Intellectual Property Rights referred to in section 101(d)(15) of the Uruguay Roimd Agree- ments Act,
"(III) nondiscriminatory market access opportuni- ties for United States persons that rely upon intellec- tual property protection, or
(IV) market opportunities, including the toleration by a foreign government of systematic anticompetitive activities by enterprises or among enterprises in the fo re i^ coimtry that have the effect of restricting, on a basis that is inconsistent with commercial consider- ations, access of United States goods or services to a foreign market,"; and
(2) by adding at the end the following: "(F)(i) For the purposes of subparagraph (B)(i)(II), adequate
and effective protection of intellectual property rights includes adequate £ind effective means under the laws of the foreign country for persons who are not citizens or nationals of such country to secure, exercise, and enforce rights and enioy commercial benefits relating to patents, trademarks, copyrights and related rights, mask works, trade secrets, and plant breed- er's rights.
"(li) For purposes of subparagraph (B)(i)(IV), the denial of fair and equitable nondiscriminatorv market access opportunities includes restrictions on market access related to the use, exploitation, or enjoyment of commercial benefits derived from exercising intellectual property rights in protected works or fixations or products embodying protected works.". (d) TIME LIMITS FOR DETERMINATIONS OF UNFAIR TRADE PRAC-
TICES.—Section 304(a) of the Trade Act of 1974 (19 U.S.C. 2414(a)) is amended—
(1) in subparagraph (A) of paragraph (2), by striking "(other than the agreement on subsidies and countervaUing measures described in section 2(c)(5) of the Trade Agreements Act of 1979)",
(2)(A) in subparagraph (A) of psiragraph (3), by inserting "does not consider that a trade agreement, including the Agree- ment on Trade-Related Aspects of Intellectual Property (referred to in section 101(d)(15) of the Uruguay Round Agree- ments Act), is involved or" after "the Trade Representative" the first place it appears, and
(B) in subparagraph (B) of paragraph (3), in the matter preceding clause (i), by striking "any investigation initiated
' • ; ? > . ' - A x H 5 i « ^ — •
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4941
by reason of section 302(b)(2)" and inserting "an investigation initiated by reason of section 302(b)(2) (other than an investiga- tion involving a trade agreement)", and
(3) in paragraph (4), by striking "(other than the agreement on subsidies and countervailing measures described in section 2(c)(5) of the Trade Agreements Act of 1979)". (e) MONITORING OF FOREIGN COMPLIANCE.—Subsections (a) and
(b) of section 306 of the Trade Act of 1974 (19 U.S.C. 2416) are amended to read as follows:
"(a) IN GENERAL.—^The Trade Representative shall monitor the implementation of each measure undertaken, or agreement that is entered into, by a foreign country to provide a satisfactory resolu- tion of a matter subject to investigation under this chapter or subject to dispute settiement proceedings to enforce the rights of the United States under a trade agreement providing for such proceedings.
"(b) FURTHER ACTION.— "(1) IN GENERAL.—If, on the basis of the monitoring carried
out under subsection (a), the Trade Representative considers that a foreign country is not satisfactorily implementing a measure or agreement referred to in subsection (a), the Trade Representative shall determine what further action the Trade Representative shall take under section 301(a). For purposes of section 301, any such determination shaU be treated as a determination made imder section 304(a)( 1).".
"(2) WTO DISPUTE SETTLEMENT RECOMMENDATIONS.—If the measure or agreement referred to in subsection (a) concerns the implementation of a recommendation made pursuant to dispute settiement proceedings under the World Trade Organization, and the Trade Representative considers that the foreign country has failed to implement it, the Trade Represent- ative shsdl make the determination in paragraph (1) no later tiaan 30 days after the expiration of the reasonable period of time provided for such implementation under paragraph 21'«of the Understanding on Rules and Procedures Governing the Settiement of Disputes that is referred to in section 101(d)(16) of the Uruguay Round Agreements Act". (f) EXTENSION OF SECTION 310 OF THE TRADE ACT OF 1974.—
Section 310 of the Trade Act of 1974 (19 U.S.C. 2420) is amended to read as follows:
"SEC. 310.roENTIFICATIONOF TRADE EXPANSION PRIORITIES.
"(a) IDENTIFICATION.— "(1) Within 180 days after the submission in calendar year
1995 of the report required by section 181(b), the Trade Rep- resentative shall—
"(A) review United States trade expansion priorities, "(B) identify priority foreign country practices, the
elimination of which is likely to have the most significant potential to increase United States exports, either directiy or through the estabhshment of a beneficial precedent, and
"(C) submit to the Committee on Finance of the Senate Repoi-ts. and the Committee on Ways and Means of the House S^^'^^ of Representatives and publish in the Federal Regfister publfcation. a report on the priority foreign country practices identified.
108 STAT. 4942 PUBLIC LAW 103-465—DEC. 8, 1994
"(2) In identifying priority foreign countiy practices under paragraph (1) of this section, the Trade Representative shall take into account all relevant factors, including—
"(A) the major barriers and trade distorting practices described in the National Trade Estimate Report required under section 181(b);
"(B) the trade agreements to which a foreign country is a party and its compliance with those agreements;
(C) the medium- and long-term implications of foreign government procurement plans; and
"(D) the international competitive position and export potential of United States products and services. (3) The Trade Representative may include in the report,
if appropriate— "(A) a description of foreign country practices that may
in the fliture warrant identification as priority foreign coun- try practices; and
"(B) a statement about other foreign coimtry practices that were not identified because they are already being addressed by provisions of United States trade law, by existLiag bilateral trade agreements, or as part of trade negotiations with other countries and progress is being made toward the elimination of such practices.
"(b) INITIATION OF INVESTIGATIONS.—By no later than the date which is 21 days after the date on which a report is submitted to the appropriate congressional committees under subsection (a)(1), the Trade Representative shail initiate under section 302(b)(1) investigations imder this chapter with respect to all of the priority foreign country practices identified.
"(c) AGREEMENTS FOR THE ELIMINATION OF BARRIERS.—In the consultations with a foreign country that the Trade Representative is required to request under section 303(a) with respect to an investigation initiated by reason of subsection (b), the Trade Rep- resentative shall seek to negotiate an agreement that provides for the elimination of the practices that are the subject of the investigation as quickly as possible or, if elimination of the practices is not feasible, an agreement that provides for compensatory trade benefits.
"(d) REPORTS.—^The Trade Representative shall include in the semiannual report required by section 309 a report on the status of £uiy investigations initiated pursuant to subsection (b) and, where appropriate, the extent to which such investigations have led to increased opportunities for the export of products and services of the United States.".
19 use 3581. SEC. 315. OBJECTIVES IN INTELLECTUAL PROPERTY.
It is the objective of the United States— (1) to accelerate the implementation of the Agreement on
Trade-Related Aspects of Intellectual Property Rights referred to in section 101(d)(15),
(2) to seek enactment and effective implementation by for- eign countries of laws to protect and enforce intellectual prop- erty rights that supplement and strengthen the stEindards of the Agreement on Trade-Related Aspects of Intellectual Prop- erty Rights referred to in section 101(d)(15) and the North American Free Trade Agreement and, in particular—
" ^ . " ^ 2 ^ • *4 , " ' ' ' ^ '* 'x
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4943
(A) to conclude bilateral and multilateral agreements that create obligations to protect and enforce intellectual property rights that cover new and emerging technologies and new methods of transmission and distribution, and
(B) to prevent or eliminate discrimination with respect to matters affecting the availabiUty, acquisition, scope, maintenance, use, and enforcement of intellectual property rights, (3) to secure fair, equitable, and nondiscriminatory market
access opportunities for United States persons that rely upon intellectual property protection,
(4) to take an active role in the development of the intellec- tual property regime under the World Trade Orgsmization to ensure that it is consistent with other United States objectives, and
(5) to take an active role in the World Intellectual Property Organization (WIH)) to develop a cooperative and mutually supportive relationship between the World Trade Organization and WIPO.
SEC. 316. EFFECTIVE DATE. 19 USC 3581 (a) IN GENERAL.—Except as provided in subsection (b), this ^°^'
subtitie and the amendments made by this subtitie take effect on the date on which the WTO Agreement enters into force witii respect to the United States.
(b) SECTION 314(f).—The amendment made by section 314(f) takes effect on the date of the enactment of this Act.
Subtitle C—Unfair Practices in Import Trade
SEC. 321. UNFAIR PRACTICES IN IMPORT TRADE.
(a) AMENDMENTS TO SECTION 337 OF THE TARIFF ACT OF 1930.— Section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) is amended as follows:
(1) INVESTIGATION.—Subsection (b) is amended— (A) by striking "; TIME LIMITS" in the heading; (B) in paragraph (1) by striking aU tliat follows the
second sentence and inserting the foUowing: "The Commis- sion shall conclude any sucn investigation and make its determination under this section at the earUest practicable time after the date of pubHcation of notice of such investiga- tion. To promote expeditious adjudication, the Commission shall, within 45 days after an investigation is initiated, establish a target date for its final determination."; and
(C) in paragraph (3)— (i) in the nrst sentence—
(I) by striking "the Tariff Act of 1930" and insertine "this Act ; and
(II) by striking "such Act" and inserting "such subtitie"; and (ii) by striking the fifth sentence.
(2) DETERMINATION; REVIEW.—Subsection (c) is amended— (A) in the first sentence by striking "a settlement agree-
ment" and inserting "an agreement between the private
108 STAT. 4944 PUBLIC LAW 103-465—DEC. 8, 1994
parties to the investigation, including an agreement to present the matter for EU'bitration'';
(B) by inserting the following after the third sentence: "A respondent may raise any counterclaim in a manner prescribed by the Commission. Inmiediately after a counter- claim is received by the Commission, the respondent raising such counterclaim shall file a notice of removal with a United States district court in which venue for any of the counterclaims raised by the party would exist under section 1391 of title 28, United States Code. Any counter- claim raised pursuant to this section shall relate back to the date of the original complaint in the proceeding before the Commission. Action on such counterclaim shall not delay or affect the proceeding imder this section, includ- ing the legal and equitable defenses that may be raised under this subsection."; and
(C) by adding at the end the following: "Determinations by the Commission under subsections (e), (f), and ^) with respect to forfeiture of bonds and imder subsection (h) witn respect to the imposition of sanctions for abuse of discovery or abuse of process shall also be reviewable in accordance with section 706 of title 5, United States Code.". (3) ENTRY UNDER BOND.—Subsection (e) is amended—
(A) in the last sentence of paragraph (1) by striking "determined by the Commission" and all that follows through the end of the sentence and inserting "prescribed by the Secretary in an amoimt determined by the Commis- sion to be sufficient to protect the complainant firom any injury. If the Conmiission later determines that the respondent has violated the provisions of this section, the bond may be forfeited to the complainant";
(B) by adding at the end of paragraph (2) the following: "If the Commission later determines tnat the respondent has not violated the provisions of this section, the bond may be forfeited to the respondent."; and
(C) by adding at the end the following new paragraph: "(4) The Conmiission shall prescribe the terms and conditions
under which bonds may be forfeited under paragraphs (1) and (2).".
(4) CEASE AND DESIST ORDERS.—Subsection (f)(1) is amended by adding at the end the following: "If a temporary cease and desist order is issued in addition to, or in lieu of, an exclusion order under subsection (e), the Commission may require the complainant to post a bond, in an amount determined by the Commission to be sufficient to protect the respondent from any injury, as a prerequisite to the issuance of an order under this subsection. If the Commission later determines that the respondent has not violated the provisions of this section, tJie bond may be forfeited to the respondent. The Commission shall prescribe the terms and conditions under which the bonds may be forfeited under this paragraph.".
(5) CONDITIONS APPLICABLE FOR GENERAL EXCLUSION ORDERS.—(A) Subsection (d) is amended—
(i) by inserting "(1)" before "If; (ii) in the first sentence by striking "there is violation"
and inserting "there is a violation"; and (iii) by adding at the end the following new paragraph:
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4945
"(2) The authority of the Commission to order an exclusion from entry of articles shall be limited to persons determined by the Commission to be violating this section unless the Commission determines that—
"(A) a general exclusion from entry of articles is necessary to prevent circumvention of an exclusion order limited to prod- ucts of named persons; or
"(B) there is a pattern of violation of this section and it is difficult to identify the source of infringing products.".
(B) Subsection (g)(2) is amended— (i) by strikuig "and" at the end of subparagraph (A); (ii) by striking the period at the end of subparagraph
(B) and inserting , and"; and (iii) by adding after subparagraph (B) the following:
"(C) the requirements of subsection (d)(2) are met.". (6) ENTRY UNDER BOND AFTER REFERRAL TO THE PRESI-
DENT.—Subsection <jX3) is amended by striking "shall be enti- tied to entry under bond" and aU that follows through the end of the sentence and inserting "shsdl, until such determina- tion becomes final, be entitied to entry under bond prescribed by the Secretary in an amount determined by the Commission to be sufficient to protect the complainant from any injury. If the determination becomes final, the bond may be forfeited to the complainant The Conmussion shall prescribe the terms and conditions under which bonds may be forfeited under this paragraph.".
(7) ACCESS TO CONFIDENTIAL INFORMATION.—Subsection (n)(2) is amended—
(A) by amending subparagraph (A) to read as follows: "(A) an officer or employee of the Conunission who is
directly concerned vdth— "(i) carrying' out the investigation or related proceeding
in connection with which the information is submitted, "(ii) the administration of a bond posted pursuant to
subsection (e), (f), or (j), "(iii) tiie administration or enforcement of an exclusion
order issued pursuant to subsection (d), (e), or (g), a cease and desist order issued piu^uant to subsection (f), or a consent order issued pursuant to subsection (c),
"(iv) proceedings for the modification or rescission of a temporary or permanent order issued under subsection (d), (e), (f), (g), or (i), or a consent order issued under this section, or
"(v) maintaining the administrative record of the inves- tigation or related proceeding,"; and
(B) by amending subparagraph (C) to read as follows: "(C) an officer or employee of the United States Customs
Service who is directiy involved in administering an exclusion fix)m entry under subsection (d), (e), or (g) resulting fix)m the investigation or related proceeding in connection witb which the information is submitted.".
(8) TECHNICAL -AMENDMENT.—Subsection (1) is amended by striking "Claims Court" and inserting "Court of Federal Claims". (b) AMENDMENTS TO TITLE 28, UNITED STATES CODE.—
(1) STAY OF ACTIONS.—
108 STAT. 4946 PUBLIC LAW 103-465—DEC. 8, 1994
(A) IN GENERAL.—Chapter 111 of title 28, United States Code, is amended by adding at the end the following new section:
^§ 1659. Stay of certain actions pending disposition of related proceedings before the United States Inter- national 'nrade Commission
"(a) STAY.—In a civil action involving parties that are also parties to a proceeding before the United States International Trade Commission under section 337 of the TaiiS Act of 1930, at the request of a party to the civil action that is also a respondent in the proceeding before the Commission, the district court shall stay, until the determination of the Commission becomes final, proceedings in the civil action with respect to any claim that involves tiie same issues involved in the proceeding before the Conunission, but only if such request is made within—
"(1) 30 da3rs after the party is named as a respondent in the proceeding before the Conmiission, or
"(2) 30 days after the district court action is filed, whichever is later.
"(b) USE OF COMMISSION RECORD.—Notwithstanding section 337(n)(l) of the Tariff Act of 1930, after dissolution of a stay under subsection (a), the record of the proceeding before the United States International Trade Commission shall be transmitted to the district court and shall be admissible in the civil action, subject to such protective order as the district court determines necessary, to the extent permitted under the Federal Rules of Evidence and the Federal Rides of Civil Procedure.".
(B) CLERICAL AMENDMENT.—The table of sections for chapter 111 of titie 28, United States Code, is amended by adding at the end the following new item:
"1669. Stay of certain actions pending disposition of related proceedings before the United States International Trade Commission.".
(2) COUNTERCLAIMS.—Section 1446 of titie 28, United States Code, is amended by adding at the end the following: "(f) With respect to any coimterclaim removed to a district
court pursuant to section 337(c) of the Tariff Act of 1930, the district court shall resolve such counterclaim in the same manner as an original complaint under the Federal Rules of Civil Procedure, except that the payment of a filing fee shall not be required in such cases and the counterclaim shall relate back to the date of the original complaint in the proceeding before the International Trade Commission imder section 337 of that Act".
(3) JURISDICTION.— (A) IN GENERAL.—Chapter 85 of titie 28, United States
Code, is amended by adding at the end the following:
'̂ §1368. Counterclaims in unfair practices in international trade.
The district coiuts shall have original jurisdiction of any civil action based on a counterclaim raised pursuant to section 337(c) of the Tariff Act of 1930, to the extent that it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim in the proceeding under section 337(a) of that Act".
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4947
(B) CLERICAL AMENDMENT.—^The table of sections for chapter 85 of title 28, United States Code, is amended by adding at the end the following:
"1368. Counterclaims in unfair practices in international trade.".
SEC. 322. EFFECTIVE DATE.
The amendments made by this subtitle apply— (1) with respect to complaints filed under section 337 of
the Tariff Act of 1930 on or after the date on which the WTO Agreement enters into force with respect to the United States, or
(2) m cases imder such section 337 in which no complaint is filed, with respect to investigations initiated under such section on or after such date.
19 u s e 1337 note.
Subtitle D—Textiles SEC. 331. TEXTILE PRODUCT INTEGRATION. 19 USC 3591.
Not later than 120 days after the date that the WTO Agree- Federal ment, as defined in section 2(9) of the Uruguay Round Implementa- ^®f|?**f' tion Act, enters into force with respect to the United States, the ^" ^̂ ^ ^°" Secretary of Commerce shall publish in the Federal Register a notice containing the Ust of products to be integrated in each stage set out in Article 2(8) of the Agreement on Textiles and Clothing referred to in section 101(d)(4). After pubUcation of such Ust, the Hst may not be changed unless otherwise required by statute or the international obligations of the United States, to correct technical errors, or to reflect reclassifications. Within 30 days after the pubUcation of such list, the Trade Representative shaU notify the Ust to the Textiles Monitoring Body established under Article 8 of the Agreement on Textiles and Clothing. SEC. 332. AMENDMENT TO SECTION 204 OF THE AGRICULTURAL ACT
OF 1966.
Section 204 of the Agricultural Act of 1956 (7 U.S.C. 1854) is amended by amending the second sentence to read as foUows: "In addition, if a multilateral agreement, including but not limited to the Agreement on Textiles and Clothing referred to in section 101(d)(4) of the Uruguay Round Implementation Act, has been or is concluded under the authority of this section among countries accounting for a significant part of world trade in the articles with respect to which the agreement was concluded, the President may also issue, in order to carry out such agreement, regulations governing the entry or withdrawal ftx)m warehouse of the same articles which are the products of countries not parties to the agreement, or countries to which the United States does not apply the agreement.". SEC. 333. TEXTILE TRANSSHIFMENTS.
Part V of titie IV of the Tariff" Act of 1930 is amended by inserting after section 592 the foUowing: "SEC. 592A. SPECIAL PROVISIONS REGARDING CERTAIN VIOLATIONS. 19 USC 1592a.
**(a) PUBLICATION OF NAMES OF CERTAIN VIOLATORS.— "(1) PUBLICATION.—The Secretary of the Treasury is
authorized to pubUsh in the Federal Register a Ust of the name of any producer, manufacturer, supplier, seUer, exporter.
Federal Register, publication.
108 STAT. 4948 PUBLIC LAW 103-465—DEC. 8, 1994
or other person located outside the customs territory of the United States—
"(A) against whom the Customs Service has issued a penalty claim under section 592, and
"(B) if a petition with respect to that claim has been filed under section 618, against whom a final decision has been issued under such section after exhaustion of administrative remedies,
citing any of the violations of the customs laws referred to in paragraph (2). Such list shall be published not later than March 31 and September 30 of each year.
"(2) VIOLATIONS.—The violations of the customs laws referred to in paragraph (1) are the following:
"(A) Using docimientation, or providing documentation subsequently used by the importer of record, which indicates a false or fi^udulent country of origin or source of textile or apparel products.
"(B) Using counterfeit visas, Ucenses, permits, biUs of lading, or similar documentation, or providing counterfeit visas, licenses, permits, bills of lading, or similar docu- mentation that is subsequently used oy the importer of record, with respect to the entry into the customs territory of the United States of textile or apparel products.
"(C) Manufacturing, producing, supplying, or selling textile or appsirel products which are falsely or fraudulently labelled as to country of origin or soiuxe.
"(D) Engaging in practices which aid or abet the trans- shipment, tiirough a country other than the country of origin, of textile or apparel products in a manner which conceals the true origin of the textile or apparel products or permits the evasion of quotas on, or voluntary restraint agreements with respect to, imports of textile or apparel products. "(3) REMOVAL FROM LIST.—Any person whose name has
been included in a Ust pubUshed under paragraph (1) may petition the Secretary to be removed fix)m such Ust If the Secretary finds that such person has not committed any viola- tions described in paragraph (2) for a period of not less than 3 years after the date on which the person's name was so published, the Secretary shall remove such person fix)m the list as of the next pubUcation of the Ust under paragraph (2).
"(4) REASONABLE CARE REQUIRED FOR SUBSEQUENT IMPORTS.—
"(A) RESPONSIBILITY OF IMPORTERS AND OTHERS.—After the name of a person has been pubUshed under paragraph (1), the Secretary of the Treasury shaU require any importer of record entering, introducing, or attempting to introduce into the commerce of the United States textile or apparel products that were either directly or indirectly produced, manufactured, suppUed, sold, exported, or trans- ported by such named person to show, to the satisfaction of the Secretary, that such importer has exercised reason- able care to ensure that the textile or apparel products are accompanied by documentation, packaging, and label- Ung that are accurate as to its origin. Such reasonable
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4949
care shall not include reliance solely on a source of informa- tion which is the named person.
"(B) FAILURE TO EXERCISE REASONABLE CARE.—If the Customs Service determines that merchandise is not from the country claimed on the documentation accompanying the merchandise, the failure to exercise reasonable care described in subparagraph (A) shall be considered when the Customs Service determines whether the importer of record is in violation of section 484(a).
"(b) LIST OF HIGH RISK COUNTRIES.— "(1) LIST.—^The President or his designee, upon the advice Federal
of the Secretaries of Commerce and Treasury, and the heads pu^cation of other appropriate departments and agencies, is authorized to publish a Ust of countries in which illegal activities have occurred involving transshipped textile or apparel products or activities designed to evade quotas of the United States on textile or apparel products, if those countries fail to demonstrate a good faitn effort tx) cooperate with United States authorities in ceasing such activities. Such list shall be pubUshed in the Federal Register not later than March 31 of each year. Any country that is on the Ust and that subsequentiy demonstrates a good faith effort tx) cooperate with United States authorities in ceasing illegal activities described in the first sentence shall be removed from the Ust, and such removal shaU be pubUshed in the Federal Register as soon as practicable.
"(2) REASONABLE CARE REQUIRED FOR SUBSEQUENT IMPORTS.—
"(A) RESPONSIBILITY OF IMPORTERS OF RECORD.—The Secretary of the Treasury shall require any importer of record entering, introducing, or attempting to introduce into the commerce of the United States textile or apparel
f)roducts indicated, on the documentation, packaging, orabeUing accompanying such products, to be from £iny coun- try on the list puolished under paragraph (1) to show, to the satisfaction of the Secretsiry, that such importer, consignee, or purchaser has exercised reasonable c£ire to ascertain the true country of origin of the textile or apparel products.
"(B) FAILURE TO EXERCISE REASONABLE CARE.—If the Customs Service determines that merchandise is not from the country claimed on the documentation accompanying the merchandise, the failure to exercise reasonable care described in subparagraph (A) shaU be considered when the Customs Service determines whether the importer of record is in violation of section 484(a). "(3) DEFINITION.—For purposes of this subsection, the term
'country' means a foreign country or territory, including any overseas dependent territory or possession of a foreign country.".
SEC. 334. RULES OF ORIGIN FOR TEXTILE AND APPAREL PRODUCTS. 19 USC 3592.
(a) REGULATORY AUTHORITY.—The Secretary of the Treasmy shaU prescribe rules implementing the principles contained in sub- section (b) for determining the origin of textiles and apparel prod- ucts. Such rules shall be promulgated in final form not later than July 1, 1995.
(b) PRINCIPLES.—
108 STAT. 4950 PUBLIC LAW 103-465—DEC. 8, 1994
(1) IN GENERAL.—Except as otherwise provided for by stat- ute, a textile or apparel product, for purposes of the customs laws and the administration of quantitative restrictions, origi- nates in a coimtry, territory, or insular possession, and is the growth, product, or manufacture of that country, territory, or insular possession, if—
(A) the product is wholly obtained or produced in that countrv, territory, or possession;
(B) the product is a yam, thread, twine, cordage, rope, cable, or braiding and—
(i) the constituent staple fibers are spun in that country, territory, or possession, or
(ii) the continuous filament is extruded in that country, territory, or possession, (C) the product is a fabric, including a fabric classified
under chapter 59 of the HTS, and the constituent fibers, filaments, or yams are woven, knitted, needled, tufted, felted, entangled, or transformed by any other fabric-mak- ing process in that country, territory, or possession; or
(D) the product is any other textile or apparel product that is wholly assembled in that country, territory, or possessionfi"omits component pieces. (2) SPECIAL RULES.—Notwithstanding paragraph (1)(D)—
(A) the origin of a good that is classified under one of the following HTS headings or subheadings shall be determined unoer subparagraph (A), (B), or (C) of para- graph (1), as appropriate: 5609, 5807, 5811, 6209.20.50.40, 6213, 6214, 6301, 6302, 6303, 6304, 6305, 6306, 6307.10, 6307.90, 6308, or 9404.90; and
(B) a textile or apparel product which is knit to shape shall be considered to originate in, and be the growth, product, or manufacture of, the country, territory, or posses- sion in which it is knit. (3) MULTICOUNTRY RULE.—If the Origin of a good cannot
be determined imder paragraph (1) or (2), then that good shall be considered to originate in, and be the growth, product, or manufacture of—
(A) the country, territory, or possession in which the most important assembly or manufacturing process occurs, or
(B) if the origin of the good cannot be determined under subparagraph (A), the last country, territory, or possession in wnicn important assembly or manufacturing occurs. (4) COMPONENTS CUT IN THE UNITED STATES.—(A) The value
of a component that is cut to shape (but not to length, width, or both) in the United States fix)m foreign fabric and exported to another country, territory, or insular possession for assembly into an article that is then returned to the United States—
(i) shall not be included in the dutiable value of such article, and
(ii) may be appUed toward determining the percentage referred to in General Note 7(b)(iXB) of the HTS, subject to tiie limitation provided in that note. (B) No article (except a textile or apparel product) assem-
bled in whole of components described in subparagraph (A), or of such components and components that are products of
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4951
the United States, in a beneficiary country as defined in Gen- eral Note 7(a) of the HTS shall be treated as a foreign article, or as subject to duty if—
(i) the components after exportation fi*om the United States, and
(ii) the article itself before importation into the United States
do not enter into the commerce of any foreign country other than such a beneficiary country.
(5) EXCEPTION FOR UNITED STATES-ISRAEL FREE TRADE AGREEMENT.—^This section shall not affect, for purposes of the customs laws and administration of quantitative restrictions, the status of goods that, under ruhngs and administrative practices in effect immediately before the enactment of this Act, would have originated in, or been the growth, product, or manufacture of, a country that is a party to an agreement with the United States establishing a free trade area, which entered into force before January 1, 1987. For such purposes, such rulings and administrative practices that were applied, immediately before the enactment of this Act, to determine the origin of textile and apparel products covered by such agreement shall continue to apply after the enactment of this Act, and on and after the effective date described in subsection (c), imless such rulings and practices are modified by the mutual consent of the parties to the agreement. (c) EFFECTIVE DATE.—This section shall apply to goods entered,
or withdrawn fix)m warehouse, for consumption on or after July 1, 1996, except that this section shall not apply to goods if—
(1) the contract for the sale of such goods to the United States is entered into before July 20,1994;
(2) all of the material terms of sale in such contract, includ- ing the price and quantity of the goods, are fixed and determina- ble before July 20, 1994;
(3) a copy of the contract is filed with the Commissioner of Customs within 60 days after the date of the enactment of this Act, together with a certification that the contract meets the requirements of paragraphs (1) and (2); and
(4) the goods are entered, or withdrawn fix)m warehouse, for consumption on or before January 1, 1998.
The origin of goods to which this section does not apply shall be determined in accordance with the appUcable rules in effect on July 20, 1994.
SEC. 336. EFFECTIVE DATE. 19 USC 3591
Except as provided in section 334, this subtitie and the amend- ments made by this subtitle take effect on the date on which the WTO Agreement enters into force with respect to the United States.
Subtitle E—Government Procurement
SEC. 341. MONITORING AND ENFORCEMENT OF THE AGREEMENT ON GOVERNMENT PROCUREMENT.
(a) IN GENERAL.—Section 305(f)(2) of the Trade Agreements Act of 1979 (19 U.S.C. 2515(f>(2)) is amended—
108 STAT. 4952 PUBLIC LAW 103-465—DEC. 8, 1994
(1) in the matter preceding subparagraph (A), by striking "a year" and inserting "the 18 months",
(2) by striking "or" at the end of subparagraph (B), (3) by redesignating subparagraph (C) as subparagraph
(D), and (4) by inserting after subparagraph (B), the following new
subparagraph: "(C) the procedm^s result in a determination providing
a specific period of time for the other participant to bring its practices into compliance with the Agreement, or".
(b) SANCTIONS AFTER DISPUTE RESOLUTION FAILS.— (1) SANCTIONS.—Paragraph (3) of section 305(f) of such
Act (19 U.S.C. 2515(f)(3)) is amended to read as follows: "(3) SANCTIONS AFTER DISPUTE RESOLUTION FAILS.—
"(A) FAILURES RESULTING IN SANCTIONS.—If— "(i) within 18 months from the date dispute settle-
ment procedures are initiated with a signatory country pursuant to this section—
"(I) such procedures are not concluded, or "(II) the country has not met the requirements
of subparagraph (A) or (B) of paragraph (2), or "(ii) the period of time provided for pursuant to
paragraph (2)(C) has expired and procedures for suspending concessions under the Agreement have been completed,
then the sanctions described in subparagraph (B) shall be imposed.
"(B) SANCTIONS.— "(i) IN GENERAL.—If subparagraph (A) appUes to
any signatory country— "(I) the signatory country shall be considered
as a signatory not in good standing of the Agree- ment and the prohibition on procurement con- tained in section 4 of the Act of March 3, 1933 (41 U.S.C. lOb-1) shall apply to such country, and
"(II) the President shall revoke the waiver of discriminatory purchasing requirements granted to the signatory coimtry pursuant to section 301(a). "(ii) TIME ,, SANCTIONS ARE IMPOSED.—^Any
sanction— "(I) described in clause (i)(I) shall apply from
the date that is the last day of the 18-month period described in subparagraph (A)(i) or, in the case of paragraph (2)(C), from the date procedures for suspending concessions under the Agreement have been completed, and
"(II) described in clause (i)(II) shall apply beginning on the day after the date described in subclause (I).".
(2) CONFORMING AMENDMENT.—Paragraph (4) of section 305(f) of such Act (19 U.S.C. 2515(f)(4)) is amended by striking "subparagraph (A) or (B) of paragraph (3)" and inserting "subclause (I) or (II) of paragraph (3)(B)(i)". (c) REPORT TO CONGRESS.—
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4953
(1) Section 305(d)(2) of the Trade Agreements Act of 1979 (19 U.S.C. 2515(d)(2)) is amended by adding at the end the following new subparagraphs:
"(D)(i) are not signatories to the Agreement; "(ii) fail to apply transparent and competitive proce-
dures to its government procurement equivalent to those in the Agreement; and
"(iii) whose products or services are acquired in signifi- cant amounts by the United States Government; or
"(E)(i) are not signatories to the Agreement; "(ii) fail to maintain and enforce effective prohibitions
on bribery and other corrupt practices in connection with government procurement; and
"(ui) whose products or services are acquired in signifi- cant amounts by the United States Government.". (2) Section 305(dX3)(C) of the Trade Agreements Act of
1979 (19 U.S.C. 2515(dX3)(C)) is amended by adding before the period at the end the following: ", including the failure to maintain and enforce effective prohibitions on bribeiy and other corrupt practices in connection with government procurement .
SEC. 342. CONFORMING AMENDMENTS.
(a) WAIVER OF DISCRIMINATORY PURCHASING REQUIREMENTS REGARDING PURCHASES OF CIVIL AIRCRAFT.—Section 303 of the Trade Agreements Act of 1979 (19 U.S.C. 2513) is amended by inserting "referred to in section 2(c) and approved under section 2(a)'' after "Civil Aircraft^'.
(b) EXPANSION OF COVERAGE OF THE AGREEMENT.—Section 304 of the Trade Agreements Act of 1979 (19 U.S.C. 2514) is amended—
(1) in subsections (a) and (c) by striking "part IX, paragraph 6" and inserting "article XXIV(7)'';
(2) in subsection (c) by striking "part VI, paragraph 9" and inserting "article XIX(5)''; and
(3) in subsection (e) by striking "date of enactment of this Act" £ind inserting "date it enters into force with respect to the United States". (c) ANNUAL REPORT ON FOREIGN DISCRIMINATION.—Section
305(d) of the Trade Agreements Act of 1979 (19 U.S.C. 2515(d)) is amended by striking out "April 30, 1990, and annually on April 30 thereafter, and inserting "April 30 of each year,".
(d) LABOR SURPLUS AREA STUDIES.—Section 306 of the Trade Agreemente Act of 1979 (19 U.S.C. 2516), and the item relating to such section in the table of contents for such Act, are repealed.
(e) AVAILABILITY OF INFORMATION TO CONGRESSIONAL ADVISORS.—Section 307 of the Trade Agreements Act of 1979 (19 U.S.C. 2517) is amended by striking "part VI, paragraph 9," and inserting "article XIX(5)''.
(f) DEFINITIONS.—Section 308 of the Trade Agreemente Act of 1979 (19 U.S.C. 2518) is amended—
(1) in paragraph (1) by striking "section 2(c) of this Act" and inserting "section 101(a)(17) of the Uruguay Round Agree- mente Act"; and
(2) in paragraph (4)— (A) in subparagraph (C) by striking "having a contract
value" and all that follows through the end of the subpeira-
79-194 O—95—13 : QL 3 Part 6
108 STAT. 4954 PUBLIC LAW 103-465—DEC. 8, 1994
graph and insertiiig "for which the United States is obU- gated to waive Buy National restrictions under—
"(i) the Agreement on the EstabUshment of a Free Trade Area between the Government of the United States of America and the Government of Israel, regardless of the thresholds provided for in the Agree- ment (as defined in paragraph (1)), or
"(ii) any subsequent agreement between the United States and Israel which lowers on a reciprocal basis the appHcable threshold for entities covered by the Agreement."; and (B) in subparagraph (D) by striking "GATT" the first
place it appears and all that follows through the end of the subparagraph and inserting "the Agreement (as defined in paragraph (1)), but for the thresholds provided for in the Agreement".
(g) CONFORMING AMENDMENTS.—Section 401 of the Riu-al Elec- trification Act of 1938 (7 U.S.C. 903 note) is amended—
(1) by striking ", Mexico, or Canada" each place that it appears and inserting "or in any eligible countrV*; and
(2) by adding at the end the following: ^ o r purposes of this section, an 'ehgible country' is any country tiiat appHes with respect to the United States an agreement ensuring recip- rocal access for United States products and services and United States suppUers to the markets of that country, as determined by the United States Trade Representative.".
SEC. 343. RECIPROCAL COMPETITIVE PROCUREMENT PRACTICES.
(a) APPLICABIUTY.—Section 302(a) of the Trade Agreements Act of 1979 (19 U.S.C. 2512(a)) is amended to read as follows:
"(a) AUTHORITY TO BAR PROCUREMENT FROM NON-DESIGNATED COUNTRIES.—
"(1) IN GENERAL.—Subiect to paragraph (2), the President, in order to encourage additional cotmtries to become parties to the Agreement and to provide appropriate reciprocal competi- tive government procurement opportunities to United States products and supphers of such products—
"(A) shall, with respect to procurement covered by the Agreement, prohibit the procurement, after the date on which any waiver under section 301(a) first takes effect, of products—
"(i) which are products of a foreign country or instrumentahty which is not designated pursuant to section 301(b), and
"(ii) which would otherwise be eUgible products; and "(B) may, with respect to procurement covered by the
Agreement, take such other actions within the President's authority as the President deems necessary. "(2) EXCEPTION.—Paragraph (1) shall not apply in the case
of procurements for which— "(A) there are no offers of products or services of the
United States or of eligible products; or "(B) the offers of products or services of the United
States or of eHgible products are insufficient to fulfill the requirements ofthe United States Grovemment".
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4955
(b) ADDITIONAL WAIVER AUTHORITY.—Section 302(b) of the Trade Agreements Act of 1979 (19 U.S.C. 2512(b)) is amended—
(1) by amending paragraph (1) to read as follows: "(1) waive the prohibition required by subsection (a)(1)
on procurement of products of a foreign coimtry or instrumen- tality which has not yet become a party to the Agreement b u t ^
"(A) h£is agreed to apply transparent and competitive procediu^s to its government procurement equivalent to those in the Agreement, £ind
"(B) maintains and enforces effective prohibitions on bribery and other corrupt practices in connection with its government procurement;"; and (2) by adding after paragraph (3) the following:
"Before exercising the waiver authority under paragraph (1), the President. President shall consult with the appropriate private sector advisory committees estabUshed imder section 135 of the Trade Act of 1974 and with the appropriate committees of the Congress.".
(c) CONFORMING AMENDMENT.—Section 305(g) of the Trade Agreements Act of 1979 (19 U.S.C. 2515(g)) is amended—
(1) in paragraph (1)— (A) by striking "(B) or (C)" and inserting "(B), (C),
(D),or(E)^and (B) by striking "their discriminatory procurement prac-
tices" and insertmg "the practices regarding government procurement identified under subparagraph (B)(ii), (C)(ii), (DXii), or (E)(ii) (as the case may be)"; and (2) in paragraph (3) by striking "discrimination identified
pursuant to subsection (d)(2)(B) or (C)" and inserting "the prac- tices regarding government procurement identified under subparagraph (B)(ii), (C)(ii), (DXii), or (E)(ii) (as the case may be) .
SEC. 344. EFFECTIVE DATE. 19 USC 2512
(a) IN GENERAL.—Except as provided in subsection Ot)), the amendments made by this subtitie take effect on the date on which the Agreement on Government Procurement referred to in section 101(d)(17) enters into force with respect to the United States.
(b) SECTION 342(g).—The amendments made by section 342(g) take effect on the date on which the WTO Agreement enters into force with respect to the United States.
Subtitle F—^Technical Barriers to Trade SEC. 361. TECHNICAL BARRIERS TO TRADE.
(a) REFERENCES.—^AU references in this section are to titie IV of the Trade Agreements Act of 1979 (19 U.S.C. 2531 et seq.) unless otherwise specified.
(b) SECTION 401.—Section 401 is amended— 19 use 2531. (1) by striking "Nothing" and inserting "(b) UNNECESSARY
OBSTACLES.—Nothing"; and (2) by inserting after the section heading the following:
"(a) No BAR TO ENGAGING IN STANDARDS ACTIVITY.—^Nothing in this titie may be construed—
"(1) to prohibit a Federal agency fix)m engag^g in activity related to standards-related measures, including any such
108 STAT. 4956 PUBLIC LAW 103-465—DEC. 8, 1994
measure relating to SEifety, the protection of human, animal, or plant life or health, the environment, or consumers; or
"(2) to limit the authority of a Federal agency to determine the level it considers appropriate of safety or of protection of human, animal, or plant life or health, the environment, or consumers.".
19 use 2532. (c) SECTION 402.—Section 402(4) is amended— (1) by striking "CERTIFICATION ACCESS" in the paragraph
heading and inserting "ACCESS"; (2) by striking "certification system" and inserting
"conformity assessment procedure"; and (3) by striking "certification under that system" and insert-
ing "an assessment of conformity and the mark of the system, if any".
19 use 2544. (d) SECTION 414.—Section 414(b)( 1) is amended— (1) by inserting "(A)" after "relating to"; (2) by striking "certification systems" and inserting "tech-
nical regulations, conformity assessment procedures,"; (3) Dy striking "such standards, systems" and inserting
"such standards, technical regulations, conformity assessment procedures,"; and
(4) after "local" by inserting "and (B) the membership £ind participation of Federal, State, or local government bodies or private bodies in the United States in international and regional standardizing bodies and conformity assessment systems, as well £is in bilateral and multilateral arrangements concerning standards-related activities".
19 use 2571. (e) DEFINITIONS.—Section 451 is amended— (1) so that paragraph (1) reads as follows: "(1) AGREEMENT.—^The term 'Agreement* means the Agree-
ment on Technical Barriers to Trade referred to in section 101(d)(5) of the Uruguay Round Agreements Act.";
(2) so that paragraph (2) reads as follows: "(2) CONFORMITY ASSESSMENT PROCEDURE.—The term
'conformity assessment procedure' means any procedure used, directly or indirectiy, to determine that relevant requirements in tecmiical regulations or standards are fulfilled.";
(3) in paragraph (4), by striking "certification system" and inserting conformity assessment procedure" each place it occurs;
(4) so that paragraph (6)(A) reads as follows: "(A) the membership of which is open to representa-
tives, whether pubUc or private, of the United States and at leaist all Members."; (5) in paragraph (7), by striking "certification system" and
inserting "conformity assessment procedure"; (6) so that paragraph (8) reads as follows: "(8) MEMBER.—^The term 'Member' means a WTO member
as defined in section 2(10) of the Uruguay Round Agreements Act.";
(7) so that paragraph (13) reads as foUows: "(13) STANDARD.^The term 'standard' means a document
approved by a recognized body, that provides, for common and repeated use, rules, guidehnes, or characteristics for products or related processes and production methods, with which compHance is not mandatory. Such term may also include or deal exclusively with terminology, symbols, packaging, marking.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4957
or labeling requirements as they apply to a product, process, or production method.";
(8) in p a r a ^ p h (14), by striking "or any certification sys- tem" and insertmg ", technical regulation, or conformity assess- ment procedure"; and
(9) by redesignating paragraph (17) as paragraph (18) and inserting after paragrapn (16) the following:
"(17) TECHNICAL REGULATION.—The term technical r e l a - tion' mesms a dociunent which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. Such term may also include or deal exclusively with terminology, symbols, packaging, marking, or labeling requirements as they apply to a product, process, or production method.". (f) REPORTS TO CONGRESS.—Section 453 is amended by inserting 19 use 2573.
"through 2001" after "succeeding 3-year period". (g) EFFECTIVE DATE.—Title IV of the Trade Agreements Act 19 use 2531
of 1979 (19 U.S.C. 2531 et seq.) is amended by striking sec- "°*® tion454. SEC. 352. EFFECTIVE DATE. 19 USC 2531
This subtitle and the amendments made by this subtitle take effect on the date on which the WTO Agreement enters into force with respect to the United States.
TITLE IV—AGRICULTURE-RELATED PROVISIONS
Subtitle A—^Agriculture PART I—MARKET ACCESS
SEC. 401. SECTION 22 AMENDMENTS.
(a) AMENDMENT TO SECTION 22.— (1) GENERALLY.—Subsection (f) of section 22 of the Agricul-
tural Adjustment Act (7 U.S.C. 624(f)), reenacted with amend- ments by the Agricultural Marketing Agreement Act of 1937, is amended to read as follows: "(f) No quantitative limitation or fee shall be imposed under
this section with respect to any article that is the product of a WTO member (as defined in section 2(10) of the Uruguay Round Agreements Act).".
(2) EFFECTIVE DATE.—^The amendment made by paragraph 7 use 624. (1) shall take effect on the date of entry into force of tlie WTO Agreement with respect to the United States, except that with respect to wheat, that amendment shall take effect on the later of such date or September 12, 1995. (b) CONFORMING AMENDMENTS.—
(1) SECTION 202 OF THE AGRICULTURAL ACT OF 1956.—Section 202 ofthe Agricultural Act of 1956 (7 U.S.C. 1852) is amended—
(A) by striking subsection (a); and (B) in subsection (b), by striking "(b)".
(2) COTTON IMPORT QUOTAS.—Section 103B of the Agricul- tural Act of 1949 (7 U.S.C. 1444-2) is amended—
(A) in subsection (a)(5)(F)(i>—
108 STAT. 4958 PUBLIC LAW 103-465—DEC. 8, 1994
(i) by striking "this section" and inserting "the Uruguay Round Agreements Acf; and
(ii) by striking "limited global"; (B) in subsection ra)(5)(F)(iv), by striking "special quota
period has" and inserting "quota period has"; (C) by adding at me end of subsection (a)(5)(F) the
following: "(v) PREFERENTIAL TARIFF TREATMENT.—The quan-
tity under a special import quota shall be considered to be an in-quota quantity for purposes of section 213(d) of the Cariobean Basin Economic Recovery Act (19 U.S.C. 2703(d)), section 204 of the Andean Trade Pref- erence Act (19 U.S.C. 3203), section 503(d) of the Trade Act of 1974 (19 U.S.C. 2463(d)), and General Note 3(a)(iv) to the HTS.
"(vi) DEFINITION.—^As used in this subparagraph, the term 'special import quota' means a quantity of imports that is not subiect to the over-quota tariff rate of a tariff-rate quota. ; and (D) in subsection (n)—
(i) in the subsection headia^, by striking "SPECIAL"; (ii) in paragraph (1), by stnldng "this section" and
inserting "the Uruguay Round Agreements Act"; (iii) in paragraph (1), by striking "special" each
place it appears; (iv) by redesignating paragraph (1)(C) as para-
graph (1)(D); (v) by inserting after subparagraph (B) of para-
graph (1) the following: (C) PREFERENTIAL TARIFF TREATMENT.—The quantity
under a limited global import quota shall be considered to be an in-quota quantity for purposes of section 213(d) of the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(d)), section 204 of the Andean Trade Preference Act (19 U.S.C. 3203), section 503(d) of the Trade Act of 1974 (19 U.S.C. 2463(d)), and General Note 3(a)(iv) to the HTS."; and
(vi) in paragraph (1)(D) (as redesignated by clause (iv)), by adaing at tne end the following:
"(iii) LIMITED GLOBAL IMPORT QUOTA.—^As used in this subsection, the term limited global import quota' means a quantity of imports that is not subject to the over-quota tariff rate of a tairiff-rate quota."; and
(vii) in paragraph (2), by striking "special quota period may" and inserting "quota period may".
SEC. 402. CHEESE AND CHOCOLATE CRUMB IMPORTS.
(a) REPEAL OF SECTIONS 701 AND 703.—Sections 701 and 703 of the Trade Agreements Act of 1979 (93 Sta t 268) are hereby
(b) PRESIDENTIAL ACTION.—Section 702(d)(1) (93 Stat. 268) of the TVade Agreements Act of 1979 is amended to read as follows:
"(1) IN GENERAL.—Not later than 7 days after receiving a report under subsection (c)(3) with respect to an article of cheese subject to an in-quota rate of duty (or not later than 3 days after receiving a report under paragraph (2) in anv case in which such paragraph applies), the President shall
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4959
proclaim the imposition of a fee on the importation of such article from the country involved in such amoimt (not to exceed the amount of the subsidy determined under subsection (b)(2)(B)) as may be necessary to ensure that the duty-paid wholesale price of such article will not be less than the domestic wholesale market price of similar articles produced in the United States, and shall direct the Conunissioner of Customs to administer and enforce such fee. Any such fee imposed shall be in addition to any customs duty or other fee imposed bylaw.". (c) TECHNICAL AND CONFORMING AMENDMENTS.—
(1) Section 702 of the Trade Agreements Act of 1979 is amended by striking "of quota cheese" each place it appears and inserting "of cheese subject to an in-quota rate of duty".
(2) Section 702(c)(2) of such Act is amended— (A) by striking "the Special Representative for Trade
Negotiations" and mserting "the Umted States Trade Rep- resentative", and
(B) by striking "The Special Representative" and insert- ing "The United States Trade Representative". (3) Subsections (c)(3)(B) and (e) of section 702 of such
Act are each amended by striking "or quantitative limitation". (4) Section 702(f) of such Act is amended—
(A) by inserting "(as in effect on the day before the effective date of titie II of the Uruguay Round Agreements Act)" after "TariiOf Act of 1930", and
(B) by striking "imder titie I of this Act" and inserting "under titie VII of the Tariflf Act of 1930". (5) Section 702(g)(2) of such Act is amended by striking
"or quantitative limitations". (6) Section 702(h) of such Act is amended by adding at
the end the following new paragraphs: "(4) CHEESE SUBJECT TO AN IN-QUOTA RATE OF DUTY.—
The term 'cheese subject to an in-quota rate of duty] means the articles and the quantities of such articles provided for in the Additional U. S. Notes 14 through 23 of chapter 4 of Schedule XX (as defined in section 2(5) of the Uruguay Roimd Agreements Act).
"(5) SECRETARY.—^The term 'Secretary* means the Secretary of Agriculture.".
SEC. 403. MEAT IMPORT ACT.
The Meat Import Act of 1979 (19 U.S.C. 2253 note) is repealed. SEC. 404. A D M I M S T K A T I O N OF TARIFF-RATE QUOTAS. 19 USC 3601.
(a) ORDERLY MARKETING.—^In implementing the tariff-rate quotsis set out in Schedule XX for the entry, or withdrawal from warehouse, for consumption of goods in the United States, the President shall take such action as may be necessary to ensure that imports of agricultural products do not disrupt the orderly marketing of commodities in the United States.
(b) INADEQUATE SUPPLY.—Where imports of an agricultural product are subject to a tariff-rate quota, and where the President determines £Uid proclaims that the supply of the same or directiy competitive or suDstitutable agricultural product will be inadequate, because of a natural disaster, disease, or major national market disruption, to meet domestic demand at reasonable prices, the Presi- dent may temporarily increase the quantity of imports of the
108 STAT. 4960 PUBLIC LAW 103-465—DEC. 8, 1994
agricultural product that is subject to the in-quota rate of duty established under the tariff-rate quota.
(c) MONITORING.—The Secretary of Agriculture shall monitor the domestic supply of agricultural products subject to a tariff- rate quota as the Secretary considers appropriate and shall advise the President when the domestic supply of the products and substitutable products combined with the estimated imports of the products under the tariff-rate quota may be inadequate to meet domestic demand at reasonable prices.
(d) COVERAGE OF TARIFF-RATE QUOTAS.— (1) EXCLUSIONS.—^The President may, subject to terms and
conditions determined appropriate by the President, provide that the entry, or withdrawal from warehouse, for consumption in the United States of an agricultural product shall not be subject to the over-quota rate of duty established imder a tariff-rate quota if the agricultural product—
(A) is imported by, or for the account of, tmy agency of the United States or of any foreign embassy;
(B) is imported as a sample for taking orders, for the personal use of the importer, or for the testing of equipment;
(C) is a commercial sample or is entered for exhibition, display, or ssimpling at a trade fair or for research; or
(D) is a blended syrup provided for in subheadings 1702.20.28, 1702.30.28, 1702.40.28, 1702.60.28, 1702.90.58, 1806.20.92, 1806.20.93, 1806.90.38, 1806.90.40, 2101.10.38, 2101.20.38, 2106.90.38, or 2106.90.67 of Schedule XX, if entered from a foreign trade zone by a foreign trade zone user whose facilities were in operation on June 1, 1990, to the extent that the annual quantity entered into the customs territory from such zone does not contain a quan- tity of sugar of nondomestic origin greater than the quan- tity authorized by the Foreign Trade Zones Board for processing in that zone during ceJendar year 1985. (2) RECLASSIFICATION.—Subject to the consultation and lay-
over requirements of section 115, the President may proclaim a modification to the coverage of a tariff-rate quota for any agricultural product if the President determines the modifica- tion is necessary or appropriate to conform the tariff-rate quota to Schedule XX as a result of a reclassification of any item by the Secretary of the Treasury.
(3) ALLOCATION.—^The President may allocate the in-quota quantity of a tariff-rate quota for any agricultural product among supplying countries or customs areas and may modify any allocation as determined appropriate by the President.
(4) BILATERAL AGREEMENT.—^The President may proclaim an increase in the tariff-rate quota for beef if the President determines that £in increase is necessary to implement—
(A) the March 24, 1994, agreement between the United States and Argentina; or
( B ) the March 9, 1994, agreement between the United States and Uruguay. (5) CONTINUATION OF SUGAR HEADNOTE.—The President
is authorized to proclaim additional United States note 3 to chapter 17 of the HTS, and to proclaim the modifications to the note, as determined appropriate by the President to reflect Schedule XX.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4961
(e) CONFORMING AMENDMENTS.— (1) SECTION 213 OF THE CARIBBEAN BASIN ECONOMIC RECOV-
ERY ACT.—Section 213(d) of the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(d)) is amended to read as follows: "(d) TARIFF-RATE QUOTAS.—No quantity of an agricultural prod-
uct subject to a tariff-rate quota that exceeds the in-quota quantity shall be eligible for duty-free treatment under this title.".
(2) SECTION 204 OF THE ANDEAN TRADE PREFERENCE ACT.— Section 204 of the Andean Trade Preference Act (19 U.S.C. 3203) is amended by adding at the end the following new subsection: "(g) TARIFF-RATE QUOTAS.—^No quantity of an agricultural prod-
uct subject to a tariff-rate quota that exceeds the in-quota quantity shall be eligible for duty-free treatment under this Act".
(3) GSR—Section 503 of the Trade Act of 1974 (19 U.S.C. 2463) is simended by adding at the end the following new subsection: "(d) TARIFF-RATE QUOTAS.—^No quantity of an agricultural prod-
uct subject to a tariff-rate quota that exceeds the in-quota quantity shall be eUgible for duty-free treatment under this titie.".
(4) GENERAL NOTE 3(a) TO THE HTS.—General Note 3(a)(iv) to the HTS is amended by adding at the end the following:
"(F) No quantity of an agricultural product that is subject to a tariff-rate quota that exceeds the in-quota quantity shall be eligible for duty-free treatment under this paragraph.". (5) DUTY DRAWBACK.—
(A) GENERALLY.—Section 313 of the Tariff Act of 1930 (19 U.S.C. 1313) is amended by adding at the end the following new subsection:
"(w) LIMITED APPUCABIUTY FOR CERTAIN AGRICULTURAL PROD- UCTS.—No drawback shall be available with respect to an agricul- tural product subject to the over-quota rate of duty established under a tariff-rate quota, except pursuant to subsection (i)(l).".
(B) EFFECTIVE DATE.—^The amendment made by subparagraph (A) shall take effect on the earUer of the date of entry into force of the WTO Agreement with respect to the United States or January 1, 1995. (6) RESTRICTIONS ON IMPORTED PEANUTS.—Paragraph (6)
of section 358e(f) of thfe Agricultural Adjustment Act of 1938 (7 U.S.C. 1359a(f)(6)) is amended by inserting after "issues a proclamation" the following: "under section 404(b) of the Uruguay Round Agreements Act expanding the quantity of peanuts subject to the in-quote rate of duty under a tariff- rate quote, or".
SEC. 406. SPECIAL AGRICUI.TURAL SAFEGUARD AUTHORITY.
(a) DETERMINATION OF TRIGGER LEVELS.—Consistent with Arti- cle 5 as determined by the President, the President shall cause to be published in the Federal Register—
(1) the list of special safeguard agricultural goods not later than the date of entry into force of tne WTO Agreement with respect to the United Stetes; and
(2) for each special safegu£ird agricultural good— (A) the trigger level specified in subparagraph 1(a)
of Article 5, on an annual basis;
19 u s e 1313 note.
19 u s e 3602. President. Federal Register, publication.
108 STAT. 4962 PUBLIC LAW 103-465—DEC. 8, 1994
(B) the trigger price specified in subparagraph 1(b) of Article 5; and
(C) the relevant period. President. (fe) DETERMINATION OF SAFEGUARD.—If the President deter-
mines with respect to a special safeguard agricultural good that it is appropriate to impose—
(1) the price-based safeguEird in accordance with subpara- graph 1(a) 01 Article 5; or
(2) the volume-based safeguard in accordance with subpara- graph 1(b) of Article 5,
the President shall, consistent with Article 5 as determined by the President, determine the amount of the duty to be imposed, the period such duty shall be in effect, and any other terms and conditions applicable to the duty.
President. (c) IMPOSITION OF SAFEGUARD.^The President shall direct the Secretary of the Treasury to impose a duty on a special safeguard agricultural good entered, or withdrawn from warehouse, for consumption m the United States in accordance with a determina- tion made under subsection (b).
(d) No SIMULTANEOUS SAFEGUARD.^A duty may not be in effect for a special safeguard agricultural good piu^uant to this section during any period in which such good is the subject of any action proclaimed pursuant to section 202 or 203 of the Trade Act of 1974 (19 U.S.C. 2252 or 2253).
(e) EXCLUSION OF NAFTA COUNTRIES.—The President may exempt from any duty imposed under this section any good originat- ing in a NAFTA country (as determined in accordance with section 202 of the North American Free Trade Agreement Implementation Act (19 U.S.C. 3332)).
(f) ADVICE OF SECRETARY OF AGRICULTURE.—^The Secretary of Agriculture shall advise the President on the implementation of this section.
(g) TERMINATION DATE.—^This section shall cease to be effective on the date, as determined by the President, that the special ssife- guard provisions of Article 5 are no longer in force with respect to the United States.
(h) DEFINITIONS.—For purposes of this section— (1) the term "Article 5" means Article 5 of the Agreement
on Agriculture described in section 101(d)(2); (2) the term "relevant period" means the period determined
by the President to be applicable to a special safeguard agricul- tural good for purposes of^applying this section; and
(3) the term "special safeguard agricultural good" means an agricultural good on which an additional duty may be imposed pursuant to the special safeguard provisions of Article 5.
PART II—EXPORTS
Export Enhancement Program Amendments of 1994. 7 u s e 5601 note.
SEC. 411. EXPORT PROGRAMS.
(a) EXPORT ENHANCEMENT PROGRAM.— (1) SHORT TITLE.—This subsection may be cited as the
"Export Enhancement Program Amendments of 1994". (2) TITLE HEADING.—-Titie III of the Agricultural Trade
Act of 1978 (7 U.S.C. 5651 et seq.) is amended by striking the titie heading and inserting the following:
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4963
"TITLE III—EXPORT ENHANCEMENT PROGRAM".
(3) GENERAL AUTHORITY.—Subsection (a) of section 301 of such Act (7 U.S.C. 5651(a)) is amended to read as follows: "(a) IN GENERAL.—The Commodity Credit Corporation shall
carry out an export enhancement program in accordance with this section to encourage the conmiercial sale of United States agricul- tural commodities in world markets at competitive prices. The program shall be carried out in a market sensitive manner. Activi- ties under the program shall not be limited to responses to tmfair trade practices. .
(4) FUNDING.—Section 301 of such Act (7 U.S.C. 5651) is amended—
(A) in subsection (e), by striking "1995" and inserting "2001"; and
(B) by adding at the end the following: "(g) CONSISTENCY WITH INTERNATIONAL OBUGATIONS.—Not-
withstanding any other provision of this section, the Commodity Credit Corporation shall administer and carry out the program authorized by this section in a manner consistent, as determined by the President, with the obligations undertaken by the United States set forth in the Uruguay Round Agreements.".
(b) DAIRY EXPORT INCENTIVE PROGRAM.—Section 153(a) of the Food Security Act of 1985 (15 U.S.C. 713a-14) is amended by striking "1995" and inserting "2001".
(c) EXPORT SALES OF DAIRY PRODUCTS.—Subsection (a) of sec- tion 1163 of the Food Seciuity Act of 1985 (PubUc Law 99-198; 7 U.S.C. 1731 note) is amended to read as follows:
"(a) In each fiscal year, the Secretary of Agriculture may sell dsdiy products for export, at such prices as the Secretary determines appropriate, in a quantity and allocated as determined by the Secretary, consistent with the obligations undertaken by the United States set forth in the Uruguay Round Agreements, if the disposi- tion of the commodities will not interfere with the usual marketings of the United States nor disrupt world prices of agricultural commodities and patterns of commercial trade.".
(d) MARKET PROMOTION PROGRAM.—(1) Section 203(c) of the Agricultural Trade Act of 1978 (7 U.S.C. 5623(c)) is amended—
(A) by striking paragraph (2); (B) by striking: "PARTICIPATION.—" and all that follows
through "To" in paragraph (1) and inserting "PARTICIPATION.— To";
(C) by redesignating subparagraphs (A), (B), and (C) as psiragraphs (1), (2), and (3), respectively; and
(D) by aligning the margins of paragraphs (1), (2), and (3) (as so redesigDated) so as to silign with the margin of paragraph (1) of subsection (d). (2) Section 203(f)(2) of such Act (7 U.S.C. 5623(f)(2)) is
amended— (A) by striking subparagraph (D); (B) by inserting "or" at the end of subparagraph (C); and (C) by redesignating subparagraph (E) as subpara-
graph (D). (e) FOOD AID.— 19USC361I.
108 STAT. 4964 PUBLIC LAW 103-465—DEC. 8, 1994
(1) POLICY.—In light of the Uruguay Round Agreement on Agriculture and me Ministerial Tecision on Measures Concerning the Possible Negative Effects of the Reform Pro-
gram on Least-Developed and Net-Food Importing? Developingountries, the United States reaffirms the commitment of the United States to providing food aid to developing coimtries.
(2) SENSE OF CONGRESS.—It is the sense of Congress that— (A) the President should initiate consultations with
other donor nations to consider appropriate levels of food aid commitments to meet the legitimate needs of developing countries* and
(B) the United States should increase its contribution of bona fide food assistance to developing coimtries consist- ent with the Agreement on Agriculture.
SEC. 412. OTHER CONFORMING AMENDMENTS.
(a) PUBLIC LAW 98-332.—Section 106 of Public Law 98-332 (98 Sta t 287), is repealed.
(b) AGRICULTURE, RURAL DEVELOPMENT, AND RELATED AGEN- CIES APPROPRIATIONS ACT, 1984.—Section 625(A) of the Agriculture, Rural Development, and Related Agencies Appropriations Act, 1984, as given the force of law by section 101(a) of PubUc Law 98- 151 (97 Stat. 1853), is repealed.
(c) AGRICULTURAL ACT OF 1956.—Section 203 of the Agriculture Act of 1956 (7 U.S.C. 1853) is repealed.
PART III—OTHER PROVISIONS 19 use 2135 SEC. 421. AUTHORITY FOR CERTAIN ACTIONS UNDER ARTICUJ XXVm.
(a) IN GENERAL.—In the application of section 125(c) of the Trade Act of 1974 (19 U.S.C. 2135) with respect to any item provided for in subheadings 2401.10.60, 2401.20.30, 2401.20.80, 2401.30.30, 2401.30.60, 2401.30.90, 2403.10.00, 2403.91.40, or 2403.99.00 of the HTS, "350" shall be substituted for "20" where it appears in such section.
(b) EFFECTIVE DATE.—This section shall take effect on the date of the enactment of this Act. SEC. 422. TOBACCO IMPORTS.
(a) DOMESTIC MARKETING ASSESSMENT.—Section 320C of the Agricultural Ac^ustment Act of 1938 (7 U.S.C. 13141) is amended by adding at the end the following new subsection:
"(g) EFFECTIVE DATE.—This section shall be effective only for calendar year 1994.".
(b) BUDGET DEFICIT ASSESSMENT.— (1) IMPORTER ASSESSMENTS.—Section 106(g) of the Agricul-
tural Act of 1949 (7 U.S.C. 1445(g)) is amended— (A) by striking paragraph (1) and inserting the follow-
ing new paragraph: "(1) Effective only for each of the 1994 through 1998 crops
of tobacco for which price support is made available under this Act, each producer and purchaser of such tobacco, and each importer of the same kind of tobacco, shall remit to the Conmioaity Credit Corporation a nonrefundable marketing assessment in an amount equal to—
"(A) in the case of a producer or purchaser of domestic tobacco, .5 percent of the national price support level for each such crop; and
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4965
**(B) in the case of an importer of tobacco, 1 percent of the national support price for the same kind of tobacco;
as provided for in this section."; and (B) in paragraph (2), by striking "assessments and
purchaser" and inserting ", purchaser, and importer''. (2) CONFORMING AMENDMENT.—Section 106 of such Act
(7 U.S.C. 1445) is amended by striking subsection (h). (c) WAIVER AUTHOR[TY.—The President may waive the appUca- '? use 1445 note.
tion to imported tobacco of section 106(g), 106A, or 106B of the Agricultural Act of 1949 (7 U.S.C. 1445(g), 1445-1, or 1445-2) or the amendment made in subsection (c) of section 1106 of the Omnibus Budget ReconciHation Act of 1993 (Public Law 103-66; 107 Sta t 323) if the President determines that the waiver is nec- essary or appropriate pursuant to an international agreement entered into by the United States.
(d) DUTY DRAWBACK.—Section 313(w) of the Tariff Act of 1930 (19 U.S.C. 1313) (as added by section 404(d)(5)) is further amended—
(1) by striking "PRODUCTS.—No" and inserting "PRODUCTS.—
"(1) IN GENERAL.—No"; and (2) by adding at the end the following new paragraph: "(2) APPUCATION TO TOBACCO.—Notwithstanding para-
graph (1), drawback shall also be available pursuant to sub- section (a) with respect to any tobacco subject to the over-quota rate of duty estabUshed under a tariff-rate quota.". (e) EFFECTIVE DATE.—^This section and the amendments made
by this section shall be effective beginning on the effective date of the Presidential proclamation, authorized under section 421, establishing a tariff-rate quota pursuant to Article XXVIII of the GATT 1947 or the GATT 1994 with respect to tobacco.
SEC. 423. TOBACCO PROCLAMATION AUTHORITY.
(a) IN GENERAL.—The President, after consultation with the Committee on Ways and Means of the House of Representatives and with the Committee on Finance of the Senate, may proclaim the reduction or elimination of any duty with respect to cigar binder and filler tobacco, wrapper tobacco, or oriental tobacco set forth in Schedule XX.
(b) EFFECTIVE DATE.—^This section shall take effect on the date of the enactment of this Act.
SEC. 424. REPORT TO CONGRESS ON ACCESS TO CANADIAN DAIRY 19 USC 3622. AND POULTRY MARKETS.
The President, not later than 6 months after the date of entry into force of the WTO Agreement with respect to the United States, shall submit a report to the Congress on the extent to which Canada is complying witli its obUgations under the Uruguay Round Agreements witn respect to dairy and poultry products and with its related obUgations imder tne North American Free Trade Agreement.
7 USC 13141 note.
19 USC 3621.
SEC. 426. STUDY OF MILK MARKETING ORDER SYSTEM. 19 USC 3623. The Secretary of Agriculture shall conduct a study to determine
the effects of the Uruguay Round Agreements on the Federal milk marketing order system.. Not later than 6 months after Hie date Reports, of entry into force of the WTO Agreement with respect to the
108 STAT. 4966 PUBLIC LAW 103-465—DEC. 8, 1994
United States, the Secretary of Agriculture shall report to the Congress on the results of the study.
19 use 3624. SEC. 426. ADDITIONAL PROGRAM FUNDING.
(a) U S E OF ADDITIONAL FUNDS.—Consistent, as determined by the President, with the obUgations undertaken by the United States set forth in the Uruguay Round Agreements, the Conunodity Credit Corporation shall use, m addition to any otlier fiinds appropriated or made available for such purposes, any funds mad!e available under subsection (b) for authorized export promotion, foreign mar- ket development, export credit financing, and promoting the devel- opment, commercialization, and marketing of producte resulting from alternative uses of agricultural commodities.
(b) AMOUNT OF ADDITIONAL FUNDS.—Amounts shall be credited to the Commodity Credit Corporation in fiscal year 1995 equal to the lesser of the dollar amount of—
(1) the fiscal year 1995 Pay-As-You-Go savings; and (2) the 5-year Pay-As-You-Go savings;
under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985, resulting fi:x)m the enactment oi the Federal Crop Insiu-ance Reform Act of 1994.
(c) EFFECTIVE DATE.—This section shall take effect on the date of the enactment of this section.
Subtitle B—Sanitary and Phytosanitary Measures
SEC. 431. SANTTABY AND PHYTOSANITARY MEASURES.
(a) TRADE AGREEMENTS ACT OF 1979.—Section 414 of the Trade Agreements Act of 1979 (19 U.S.C. 2544) is amended by adding at the end the foUowiug:
"(c) SANITARY AND PHYTOSANITARY MEASURES.— (1) PUBLIC INFORMATION.—The standards information cen-
ter shall, in addition to the functions specified under subsection (b), make available to the public relevant dociunents, at such reasonable fees as the Secretary of Conunerce may prescribe, and information regarding—
"(A) any sanitary or phytosanitary measure of general appHcation, including any inspection procedure or approval procedure proposed, adopted, or maintained by a Federal agency or agency of a State or local government;
"(B) the procedures of a Federal agency or an agency of a State or local government for risk assessment and factors the agency considers in conducting the assessment;
"(C) the determination of the levels of protection that a Federal agency or an agency of a State or local govern- ment considers appropriate; and
"(D) the membership and participation of the Federal Government and State and local governments in inter- national and regional sanitary and pnytosanitary organiza- tions and systems, and in bilateral and multilateral arrangements reg£irding sanitary and phytosanitary meas- lu-es, and the provisions of those systems and arrangements. "(2) DEFINITIONS.—The definitions in section 463 apply for
purposes of this subsection.".
""" Î̂ l̂ ,;
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4967
(b) RAILWAY CAR INSPECTION.—Subsection (a) of the Act of Januar5^ 31, 1942 (56 Sta t 40, chapter 31; 7 U.S.C. 149), is amended by striking "from Mexico".
(c) FEDERAL PLANT PEST ACT.—The Federal Plant Pest Act (7 U.S.C. 150aa et seq.) is amended—
(1) so that section 103 (7 U.S.C. 150bb) reads as follows: "SEC. 103. MOVEMENT OF PESTS PROmBITED.
"(a) IN GENERAL.—No person shall import or enter any plant pest into the United States, or move any plaint pest interstate, or accept delivery of any plsint pest moving from any foreign country into or through the United States, or interstate, unless the move- ment is made in accordance with such regulations as the Secretary may promulgate to prevent the dissemination into the United States, or interstate, of plant pests.
"(b) REGULATIONS.—The regulations promulgated by the Sec- retary to implement subsection (a) may include regulations requir- ing tnat a plant pest moving into or through the United States, or interstate—
"(1) be accompanied by a permit issued by the Secretary prior to the movement of the plant pest; or
"(2) be accompanied by a certificate of inspection issued, in a manner Eind foim required by the Secretary, oy appropriate officiails of the country or State from which the plant pest is to be moved."; and
(2) in section 104 (7 U.S.C. 150cc)— (A) so that subsection (a) reads as follows:
"(a) Any letter, parcel, box, or other package containing any plant pest, whether seialed as letter-rate postal matter or not, is nonmgolable, and shjdl not knowingly be conveyed in the mail or deUvered from any post office or by any mail carrier, unless it is mailed in conformance with such regulations as the Secretary may promulgate to prevent the dissemination into the United States, or interstate, of plant pests.";
(B) by striking subsection (b); and (C) by redesignating subsections (c) and (d) as sub-
sections (b) and (c), respectively. (d) PLANT QUARANTINE ACT.—The Act of August 20, 1912 (37
Sta t 315, chapter 308; 7 U.S.C. 151 et seq.) (commonly known as the "Plant Quarantine Act") is amended—
(1) so that the first section (7 U.S.C. 151) reads as foUows: "SECTION 1. IMPORTATION OF NURSERY STOCK. 7 USC 154.
"(a) IN GENERAL.—No person shall— "(1) import or enter into the United States any nursery
stock; or "(2) accept delivery of any nursery stock moving fix)m any
foreign country into or through the United States; unless the movement is made in accordance with such regulations as the Secretary of Agriculture may promulgate to prevent dissemi- nation into the United States of plant pests, plant diseases, or insect pests.
"(b) REGULATIONS.—^The regulations promulgated by the Sec- retary of Agriculture to implement subsection (a) may include regu- lations requiring that nursery stock moving into or through the United States—
"(1) be accomp;sinied by a permit issued by the Secretary of Agriculture prior to the movement of the nursery stock;
108 STAT. 4968 PUBLIC LAW 103-465—DEC. 8, 1994
"(2) be accompanied by a certificate of inspection issued, in a manner and form required by the Secretary of Agriculture, by appropriate officials of the country or State from which tne nursery stock is to be moved;
"(3) be grown under postentry quarsintine conditions by or under the supervision of the Secretary of Agriculture for the purposes of determining whether the nursery stock may be infested with plant pests or insect pests, or infected with plant diseases, not discernible by port-of-entry inspection; and
"(4) if tiie nursery stock is found to be infested with plant pests or insect pests or infected with plant diseases, be siibject to remedial measures the Secretary of Agriculture determines to be necessary to prevent the spread of plant pests, insect pests, or plant aiseases."; and
(2) so that the last sentence of section 2 (7 U.S.C. 156) reads as follows: "This section does not apply to nursery stock that is imported or entered fix)m a country or a region of a country that the Secretary of Agriculture designates, pursuant to procedures set forth in such regulations as the Secretsiry may promulgate, as exempt fi*om the requirements of this sec- tion.'\ (e) HONEYBEE IMPORTATION.—The first section of the Act of
August 31, 1922 (42 Sta t 833, chapter 301; 7 U.S.C. 281) (commonly known as the "Honeybee Act"), is amended to read as follows:
"SECTION 1. HONEYBEE BIPORTATION.
"(a) IN GENERAL.—^The Secretary of Agriculture is authorized to prohibit or restrict the importation or entry of honeybees and honeybee semen into or through the United States in order to prevent the introduction and spread of diseases and parasites harm- mi to honeybees, the introduction of genetically undesirable germ plasm of honeybees, or the introduction and spread of undesirable species or subspecies of honeybees and the semen of honeybees.
"(b) REGULATIONS.—The Secretary of Agriculture and the Sec- retary of the Treasury are each authorized to prescribe such regula- tions as the respective Secretary determines necessary to carry out this section.
"(c) ENFORCEMENT.—Honeybees or honeybee semen offered for importation into, intercepted entering, or havinjg entered the United States, other than in accordance with regulations promulgated by the Secretary of Agriculture and the Secretary of the I^asu ry , shall be destroyed or immediately exported.
"(d) DEFINITION.—^As used in this Act, the term *honeybee' means all life stages and the germ plasm of honeybees of the genus Apis, except honeybee semen.".
(f) FEDERAL NOXIOUS WEED ACT OF 1974.—Section 4 of the Federal Noxious Weed Act of 1974 (7 U.S.C. 2803) is amended so that subsections (a) through (b) read as foUows:
"(a) No person shall import or enter any noxious weed identified in a regulation promulgated by the Secretary into or through the United States or move any noxious weed interstate, unless the movement is in accordance with such conditions as tne Secretary may prescribe by regulation under this Act to prevent the dissemi- nation into the United States, or interstate, of such noxious weeds.
"(b) The regulations prescribed by the Secretary to implement subsection (a) may include regulations requiring that any noxious weed imported or entered into the United States or moving inter-
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4969
state be accompanied by a permit issued by the Secretary prior to the movement of the noxious weed.".
(g) TARIFF ACT OF 1930.—Section 306(b) of the Tariff Act of 1930 (19 U.S.C. 1306(b)) is amended by mserting before the period at the end the following: ", or is, and is likely to remain, a region of low prevalence of rinderpest and foot-and-mouth disease".
(h) IMPORTATION OF ANIMALS.—Section 6 of the Act of August 30, 1890 (26 Stat. 416, chapter 839; 21 U.S.C. 104), is amended to read as follows:
"SEC. 6. IMPORTATION OF ANIMALS.
"(a) IN GENERAL.—The Secretary of Agriculture may by regula- tion prohibit or restrict the importation or entry of any cattle, sheep, or other ruminants, or swine, that are diseased or infected with any disease, or that have been exposed to an infection, into or through the United States to prevent the dissemination into the United States of a disease.
"(b) PENALTIES.— "(1) CRIMINAL.—:Any person who knowingly violates any
regulation promulgated by the Secretary pursuant to this sec- tion, or any provision of sections 7 through 10 or any regulation promulgated by the Secretary pursuant to such sections, shall be fined under title 18, United States Code, or imprisoned not more than 1 year, or both.
"(2) CIVIL.—^Any person who violates any such provision or any such regulation may be assessed a civU penalty by the Secretary of Agriculture not exceeding $1,000. The Sec- retary may issue an order assessing the civil penalty only after notice and an opportunity for an agency hearing on the record. The order shgJI be treated as a final order reviewable under chapter 158 of title 28, United States Code. The vahdity of the order may not be reviewed in an action to collect such civil penalty.". (i) INSPECTION OF ANIMALS.—Section 10 of the Act of August
30, 1890 (26 Stat. 417, chapter 839; 21 U.S.C. 105), is amended— (1) in subsection (a)—
(A) by striking "(a) IN GENERAL.—Except as provided in subsection (b), the" and inserting "The";
(B) in the first sentence, by stnking "shall cause careful inspection to be made by a suitable officer of all" and inserting "may cause careful inspection of any"; and
(C) in the third sentence, by striking "they shall not be allowed to be placed" and inserting "the Secretary may prohibit or restrict their placement"; and (2) by striking subsection (b).
(j) INTERNATIONAL ANIMAL QUARANTINE STATION.—The 6th sen- tence in the first section of Pubhc Law 91-239 (21 U.S.C. 135) is amended—
(1) by striking "North American"; and (2) by striking "withm the United States".
(k) POULTRY PRODUCTS INSPECTION ACT.—Section 17(d) of the Poultry Products Inspection Act (21 U.S.C. 466) is amended—
(1) by amending paragraph (1) to read as follows: "(1) Notwithstanding any other provision of law, EJI poultry,
or parts or products of poultry, capable of use as human food offered for importation into the United States shall—
108 STAT. 4970 PUBLIC LAW 103-465—DEC. 8, 1994
"(A) be subject to inspectioii, sanitary, quality, species ver- ification, and residue standjirds that achieve a level of sanitary protection equivalent to that achieved under United States standards; and
"(B) have been processed in facilities and under conditions that achieve a level of sanitsiry protection equivalent to that achieved under United States standards."; and
(2) in paragraph (2)— (A) by amending subpEiragraph (A) to read as follows:
"(A) The Secretary may treat as equivalent to a United States standard a standard of an exporting country described in paragraph (1) if the exporting country provides the Secretary with scientific evidence or other mformation, in accordance witii risk assessment methodologies determined appropriate by the Secretary, to dem- onstrate that the standard of the exporting country achieves the level of sanitary protection achieved under the Unitea States stand- ard. For the purposes of this subsection, the term 'ssmitary protec- tion' means protection to safeguard pubUc health.";
(B) by striking subparagraph (B); and (C) by redesignatmg subparagraph (C) as subpara-
graph (B). (1) FEDERAL MEAT INSPECTION ACT.—Section 20(e) of the Fed-
eral Meat Inspection Act (21 U.S.C. 620(e)) is amended— (1) so that subparagraphs (A) through (B) of paragraph
(1) read as foUows: "(A) A certification by the Secretary that foreign plants
exporting carcasses or meat or meat products referred to in subsection (a) have compUed with requirements that achieve a level of sanitary protection equivalent to that achieved under United States requirements witn regard to all inspection, build- ing construction standards, and all other provisions of this Act and regulations issued under this Act
"(B) The Secretary may treat as equivalent to a United States requirement a requirement described in subparagraph (A) if the exporting country provides the Secretary with sci- entific evidence or other information, in accordance with risk assessment methodologies determined appropriate by the Sec- retary, to demonstrate that the requirement achieves tiie level of sanit£iry protection achieved under the United States require- ment For the purposes of this subsection, the term 'sanitary protection' means protection to safeguard pubUc health.";
(2) by striking paragraph (2); and (3) by redesignating paragraphs (3) through (7) as para-
graphs (2) through (6), respectively. SEC. 432. INTERNATIONAL STANDARD-SETTING ACTIVrnES.
Titie IV of the Trade Agreements Act of 1979 (19 U.S.C. 2531 et seq.) is amended by adding at the end the following new subtitie:
"Subtitle F—International Standard- Setting Activities
19 use 2548. "SEC. 491. NOTICE OF UNITED STATES PARTICIPATION IN INTER- NATIONAL STANDARD-SETIING ACTIVrnES.
President. "(a) IN GENERAL.—The President shall designate an agency to be responsible for informing the pubUc of tne sanitary and
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4971
phytosanitaiy standcird-setting activities of each international standard-setting organization.
**(b) NOTIFICATION.—^Not later than June 1 of each year, the agency designated under subsection (a) with respect to each inter- national standard-setting organization shall publish notice in the Federal Register of the information specified in subsection (c) with respect to that organization. The notice shall cover the period enoing on June 1 of the year in which the notice is published, and beginning on the date of the preceding notice under this sub- section, except that the first such notice shall cover the 1-year period ending on the date of the notice.
"(c) REQUIRED INFORMATION.—The information to be provided in the notice under subsection (b) is—
"(1) the sanitary or phytosanitary standards under consid- eration or planned for consideration by that organization;
"(2) for each sanitary or phytosanitary standard specified in paragraph (1)—
"(A) a description of the consideration or planned consideration of the standard;
"(B) whether the United States is participating or plans to participate in tiie consideration of the standard;
"(C) the agenda for the United States participation, if any; and
(D) the agency responsible for representing the United States with respect to the standard.
"(d) PUBLIC COMMENT.—^The agency specified in subsection (c)(2)(D) shall provide an opportunity for pubUc comment with respect to the standards for which the agency is responsible and s h ^ take the comments into account in participating in the consid- eration of the standards and in proposing matters to be considered by the organization.
"SEC. 492. EQUIVALENCE DETERMINATIONS.
"(a) IN GENERAL.—An agency may not determine that a sanitary or phytosanitary measmre of a foreign country is equivalent to a sanitary or phytossmitaiy measure established under the author- ity of Federal law imless the agency determines that the sanitEiry or phytosanitary measure of the foreign country provides at least the same level of sanitary or phj^sanitary protection as the com- parable sanitary or phytosanitary measure established under the authority of Federal law.
"(b) FDA DETERMINATION.—If the Commissioner proposes to issue a determination of the equivalency of a samtary or phytosanitary measure of a foreign coimtry to a measure that is required to be promulgated as a rule under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or other statute administered by the Food and Drug Administration, the Commis- sioner shall issue a proposed regulation to incorporate such deter- mination and shall include in the notice of proposed rulemaking the basis for the determination that the sanitary or phytosanitary measure of a foreign country provides at least the same level of sanitary or phytosanitary protection as the comparable Federal sanitary or phytosanitary measure. The Commissioner shall provide opportunity for interestejd persons to comment on the proposed regulation. The Commissioner shall not issue a final regulation based on the proposal without taking into account the comments received.
Federal Register, publication.
19 u s e 2578a.
Regulations.
108 STAT. 4972 PUBLIC LAW 103-465—DEC. 8, 1994
^^J"^! "(c) NOTICE.—If the Commissioner proposes to issue a deter- puWication mioation of the equivalency of a sanitary or ph3^sanitary measure
of a foreign country to a sanitary or phystosanitary measure of the Food and Drug Administration that is not required to be promul- gated as a rule under the Federal Food, Drug, and Cosmetic Act or otier statute administered by the Food and Drug Administration, the Conmiissioner shall publish a notice in the Federal Register that identifies the basis for the determination that the measiu^ provides at least the same level of sanitary or phytosanitary protec- tion as the comparable Federal sanitary or phytosanitary measure. The Conmiissioner shall provide opportunity for interested persons to conmient on the notice. The Commissioner shall not issue a final determination on the issue of equivalency without taking into account the comments received.
19 use 2578b. "SEC. 493. DEFINITIONS.
"(a) IN GENERAL.—As used in this subtitle: "(1) AGENCY.—The term 'agency^ means a Federal depart-
ment or agency (or combination of Federal depsuiments or agencies).
"(2) COMMISSIONER.—The term 'Commissioner' means the Commissioner of Food and Drugs.
"(3) INTERNATIONAL STANDARD-SETTING ORGANIZATION.— The term International standard-setting organization' means an organization consisting of representatives of 2 or more coun- tries, tiie purpose of whicn is to negotiate, develop, promulgate, or amend an international standard.
"(4) SANITARY OR PHYTOSANITARY STANDARD.—The term 'sanitary or phytosanitary standard' means a standard intended to form a basis for a sanitary or phytosanitary measure.
"(5) INTERNATIONAL STANDARD.—The term International standard' means a standard, guideUne, or recommendation—
"(A) regarding food safety, adopted by the Codex Alimentarius Conmiission, including a standard, guideUne, or recommendation regarding decomposition elaborated by the Codex Conunittee on Fish and Fishery Products, food additives, contaminants, hygienic practice, and methods of analysis and sampUng;
"(B) regarding animal heedth and zoonoses, developed under the auspices of the International Of&ce of Epizootics;
"(C) regarding plant health, developed under the aus- pices of the Secretariat of the International Plant Protec- tion Convention in cooperation with the North American Plant Protection Organization; or
"(D) estabUshea by or developed under any other inter- national organization agreed to by the NAFTA countries (as defined in section 2(4) of the North American Free Trade Agreement Implementation Act) or by the WTO members (as defined in section 2(10) of tiie Uruguay Round Agreements Act).
"(b) OTHER DEFINITIONS.—^The definitions set forth in section 463 apply for purposes of this subtitie except that in applying paragraph (7) of section 463 with respect to a sanitary or phytosanitaiy measure of a foreign country, any reference iu such paragrsmh to the United States shall be deemed to be a reference to that foreign country.".
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4973
Subtitle C—Standards
SEC. 441. THE FE3)ERAL SEED ACT. The Federal Seed Act (7 U.S.C. 1551 et seq.) is amended—
(1) in section 301(a) (7 U.S.C. 1581(a))— (A) by striking "(a)"; (B) in paragraph (1), by striking ", or is required to
be stained and is not so stained, under the terms of this title,'';
(C) by striking psiragraph (3); and (D) by redesignating paragraphs (4) and (5) as para-
graphs (3) and (4), respectively; (2) in section 302 (7 U.S.C. 1582)—
(A) in subsection (a), by striking "staining," both places it appears; and
(B) by striking subsection (e); (3) by striking section 303 (7 U.S.C. 1585) and inserting
the following new section:
"SEC. 303. CERTAIN SEEDS NOT ADAPTED FOR GENERAL AGRICUL- TURAL USE.
"Whenever the Secretary of Agriculture, after a pubUc hearing, determines that seed of alfalfa or red clover from any foreign coimtry is not adapted for general agricultural use in the United States, the Secretary shall pubUsh the determination and the rea- sons for the determination."; and
(4) in section 304 (7 U.S.C. 1586)— (A) in subsection (a)—
(i) by inserting "or" at the end of paragraph (2); (ii) by striking the semicolon at the end ot para-
graph (3) and inserting a period; and (iii) by striking paragraphs (4) through (7);
(B) by stnkiiig subsection (b); and (C) by redesignating subsection (c) as subsection (b).
Subtitle D—General Effective Date
SEC. 451. GENERAL EFFEC^nVE DATE. 19 USC 3601
Except as otherwise provided in this titie, this titie, and the "° ® amendments made by this titie, shall take effect on the date of entry into force of the WTO Agreement with respect to the United States.
TITLE V—INTELLECTUAL PROPERTY
SEC. 501. DEFINrnON. 17 USC 101 note.
For purposes of this titie— (1) the term "WTO Agreement" has the meaning given
that term in section 2(9) of the Uruguay Round Agreements Act; and
(2) the term "WTO member country" has the meaning given that term in section 2(10) of the Uruguay Round Agree- ments Act.
108 STAT. 4974 PUBLIC LAW 103-465—DEC. 8, 1994
Subtitle A—Copyright Provisions SEC. 611. RENTAL RIGHTS IN COMPUTER PROGRAMS.
Section 804(c) of the Computer Software Rental Amendments Act of 1990 (17 U.S.C. 109 note; 104 Sta t 5136) is amended by striking the first sentence.
SEC. 612. CIVIL PENALTIES FOR UNAUTHORIZED FIXATION OF AND TRAFFICKING IN SOUND RECORDINGS AND MUSIC VID- EOS OF LIVE MUSICAL PERFORMANCES.
(a) IN GENERAL.—Title 17, United States Code, is amended by adding at the end the following new chapter:
"CHAPTER 11—SOUND RECORDINGS AND MUSIC VIDEOS
"Sec. "1101. Unauthorized fixation and trafficking in sound recordings and music videos.
"§1101. Unauthorized fixation and trafficking in sound recordings and music videos
"(a) UNAUTHORIZED ACTS.—^Anyone who, without the consent of the performer or performers involved—
"(1) fixes the sounds or sounds and images of a Uve musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,
"(2) transmits or otherwise communicates to the pubUc the sounds or sounds and images of a five musical performance, or
"(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States,
shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.
"(b) DEFINITION.—^As used in this section, the term 'traffic in' means transport, transfer, or otherwise dispose of, to another, as consideration for anjrthing of value, or make or obtain control of with intent to transport, transfer, or dispose of
"(c) APPLICABILITY.—^This section shall apply to any act or acts that occur on or after the date of the enactment of tiie Uruguay Round Agreements Act
"(d) STATE LAW N O T PREEMPTED.—^Nothing in this section may be construed to annul or limit any rights or remedies under the common law or statutes of any State.".
(b) CONFORMING AMENDMENT.—The table of chapters for title 17, United States Code, is amended by adding at the end the following: "11. Sound Recordings and Music Videos 1101".
SEC. 613. CRIMINAL PENALTIES FOR UNAUTHORIZED FIXATION OF AND TRAFFICKING IN SOUND RECORDINGS AND MUSIC VIDEOS OR LIVE MUSICAL PERFORMANCES.
(a) IN GENERAL.—Chapter 113 of title 18, United States Code, is amended by inserting after section 2319 the following:
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4975
^§ 2319A. Unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances
"(a) OFFENSE.—^Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain—
"(1) fixes the sounds or soimds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance fix)m an unauthorized fixation;
"(2) transmits or otherwise conununicates to the pubUc the sounds or sotmds and images of a five musical performance; or
"(3) distributes or offers to distribute, sells or offers to seU, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States;
shall be imprisoned for not more than 5 years or fined in the amount set forth in this title, or both, or if tiie offense is a second or subsequent offense, shaU be imprisoned for not more than 10 years or fined in the amount set forth in this title, or both.
"(b) FORFEITURE AND DESTRUCTION.—When a person is con- victed of a violation of subsection (a), the coiu*t snaU order the forfeiting and destruction of £iny copies or phonorecords created in violation thereof, as well as any plates, molds, matrices, masters, tapes, and film negatives by means of which such copies or phonorecords may be made. The coiut may also, in its discretion, order the forfeiture and destruction of any other equipment by means of which such copies or phonorecoras may be reproduced, taking into account the nature, scope, and proportionahty of the use of the equipment in tiie offense.
"(c) SEIZURE AND FORFEITURE.—If copies or phonorecords of sounds or soimds and images of a five musical performance are fixed outside of the United States without the consent of the per- former or performers involved, such copies or phonorecords are subject to seizure and forfeiture in the United States in the same manner as property imported in violation of the customs laws. The Secretary of the Treasury shall, not later than 60 days after the date of the enactment of the Uruguay Round Agreements Act, issue regulations to carry out this subsection, including regulations by which any performer may, upon payment of a specified fee, be entitied to notification by the United States Customs Service of the importation of copies or phonorecords that appear to consist of imauthorized fixations of the sounds or sounds and images of a five musical performance.
"(d) DEFINITIONS.—^As used in this section— "(1) the terms 'copy*, fixed', 'musical work', 'phonorecord',
'reproduce', 'sound recordings', and 'transmif mean those terms within the meaning of titie 17; and
"(2) the term 'traffic in' means transport, transfer, or other- wise dispose of, to {mother, £is consideration for anjrthing of value, or make or obtain control of with intent to transport, transfer, or dispose of. "(e) APPLICABILITY.—This section shall apply to any Act or
Acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act".
108 STAT. 4976 PUBLIC LAW 103-465—DEC. 8, 1994
(b) CONFORMING AMENDMENT.—The table of sections for chapter 113 of title 18, United States Code, is amended by inserting Euler the item relating to section 2319 the following:
''2319A. Unauthorized fixation of and trafficking in sound recordings and music vid- eos of live musical performances.".
SEC. 614. RESTORED WORKS.
(a) IN GENERAL.—Section 104A of title 17, United States Code, is amended to read as foUows:
"§ 104A. Copyright in res tored works "(a) AUTOMATIC PROTECTION AND TERM.—
"(1) TERM.— "(A) Copyright subsists, in accordance with this section,
in restored works, and vests automatically on the date of restoration.
"(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copjrright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States. "(2) EXCEPTION.—^Any work in which the copyright was
ever owned or administered by the Alien Property Custodian and in which the restored copyright would be owned by a government or instrumentsiHty tnereof, is not a restored work. (b) OWNERSHIP OF RESTORED COPYRIGHT.—A restored work
vests initially in the author or initial rightholder of the work as determined by the law of the source coimtiy of the work.
"(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPY- RIGHT AGAINST RELIANCE PARTIES.—On or after the date of restora- tion, £iny person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright Office a notice of intent to enforce that person's copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright Office is effective as to any reUance parties but shall not create a presumption of the vaHdity of any of the facts stated therein. Service on a rehance party is effective as to that reliance party and any other reUance parties with actual knowledge of such service and of the contents of that notice.
"(d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS.— "(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN
THE ABSENCE OF A RELIANCE PARTY.— Âs against any party who is not a reUance psirty, the remedies provided in chapter 5 of this title slmll be available on or after the date of restora- tion of a restored copyright with respect to an act of infringe- ment of the restorea copyright that is commenced on or after the date of restoration.
"(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES.—^As against a reUance psirty, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a restored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met:
"(A)(i) The owner of the restored copjoight (or such owner's agent) or the owner of an exclusive right therein
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4977
(or such owner's agent) files with the Copyright Office, during the 24-month period heginning on the date of res- toration, a notice of intent to enforce the restored copyright; and
"(iiXD the act of infringement commenced after the end of the 12-month period beginning on the date of publication of the notice in the Federal Register;
"(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for infringement occurring sifter the end of that 12-month period; or
"(III) copies or phonorecords of a work in which copy- right has been restored under this section are made after publication of tlie notice of intent in the Federal Register.
"(B)(i) The owner of the restored copyright (or such owner's agent) or the owner of an exclusive right therein (or such owner's agent) serves upon a reUance party a notice of intent to enforce a restored copyright; and
"(ii)(I) the act of infringement commenced after the end of tiie 12-month period beginning on the date the notice of intent is received;
"(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for tiie infringement occurring after the end of that 12-month period; or
"(III) copies or phonorecords of a work in which copy- right has been restored under this section are made after receipt of the notice of intent.
In the event that notice is provided under both subparagraphs (A) and (B), the 12-month period referred to in such subpara- graphs shall run from the earUer of pubUcation or service of notice.
"(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a derivative work that is based upon a restored work and is created—
"(i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the deriva- tive work is an eligible country on such date, or
"(ii) before the date of adherence or proclamation, if the source country of the derivative work is not an ehgible country on such date of enactment,
a reUance party may continue to exploit that work for the duration of the restx)red copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the previsions of this paragraph.
"(B) In the absence of an agreement between the parties, the amount of such compensation shaU be determinea by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of the restored work from the reliance party's continued exploitation of the work, as well as compensation for the relative contribu- tions of expression of the author of the restored work and the rehance party to the derivative work.
Federal Register, publication.
Federal Register, publication.
108 STAT. 4978 PUBLIC LAW 103-465—DEC. 8, 1994
Federal Register, publication. Federal Register, publication.
Federal Register, publication.
"(4) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE PAR- TIES.—For purposes of section 412, in the case of reliance parties, infringement shall be deemed to have commenced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. **(e) NOTICES OF INTENT TO ENFORCE A RESTORED COPYRIGHT.—
"(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT OFFICE.—(A)(i) A notice of intent filed with the Copyright Office to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsection (d)(2)(A)(i) (here- after in this paragraph referred to as the 'owner*), or by the owner's agent, shall identify the titie of the restored work, and shall include an EngUsh translation of tiie titie and any other alternative tities known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the fOing of the notice. The Copyright Office may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invali- date the notice or be a basis for refusal to list the restored work in the Federjil Register.
"(ii) If a work in which copjndght is restored has no formal titie, it shall be described in the notice of intent in detail sufficient to identify i t
"(iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period estabUshed in subsection (d)(2)(A)(i). Notices shall be pubUshed in the Federal Register pursuant to subparagraph (B).
"(B)(i) The Register of Copyrights shall publish in the Fed- eral Register, commencing not later than 4 months after the date of restoration for a psirticuleir nation and every 4 months thereafter for a period of 2 years, Usts identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed.
"(ii) Not less than 1 Hst containing aU notices of intent to enforce shall be maintained in the PubUc Information Office of the Copyright Office and shaU be available for pubUc inspec- tion and copying during regular business hours pursuant to sections 705 and 708. Such list shall also be pubHshed in the Federal Register on an annual basis for the first 2 years after tiie appUcable date of restoration.
"(C) The Register of Copyrights is authorized to fix reason- able fees based on the costs of receipt, processing, recording, and pubUcation of notices of intent to enforce a restored copy- right and corrections thereto.
"(D)(i) Not later than 90 days before the date the Agree- ment on Trade-Related Aspects of Intellectual Property referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright Office shall issue and publish in the Federal Register
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4979
regulations governing the filing under this subsection of notices of intent to enforce a restored copyright.
"(ii) Such regulations shall permit owners of restored copy- rights to file simultaneously for registration of the restored copyright
"(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY.— (A) Notices of intent to enforce a restored copyright may be served on a reUance party at any time after the date of restora- tion of the restored copyright.
"(B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner's agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an EngUsh translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone ntunber at which the rehance party may contact the owner. If the notice is signed by an agent, me agency relationship must have been constituted in writing and signed by the owner before service of the notice.
"(3) EFFECT OF MATERIAL FALSE STATEMENTS.—Any mate- rial false statement knowingly made with respect to any restored copyright identified in any notice of intent shall make void aU claims and assertions made with respect to such restored copyright. "(f) IMMUNITY FROM WARRANTY AND RELATED LD^ILITY.—
"(1) IN GENERAL.—^Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 106 shaU not be liable for legal, equitable, arbitral, or administrative reUef if the warranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warranty, promise, or guarantee is made before January 1, 1995.
"(2) PERFORMANCES.—No person shall be required to per- form any act if such performance is made infiinging by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was undertaken before January 1, 1995. "(g) PROCLAMATION OF COPYRIGHT RESTORATION.—Whenever
the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright protection on substantially the same basis as provided under this section, 'the President may by proclamation extend restored protection provided under this section to any work—
"(1) of which one or more of the authors is, on the date of first pubUcation, a national, domicihary, or sovereign author- ity of that nation; or
"(2) which was first pubUshed in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation.
"(h) DEFINITIONS.—For purposes of this section and section 109(a):
"(1) The term 'date of adherence or proclamation' means the earUer of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect
108 STAT. 4980 PUBLIC LAW 103-465—DEC. 8, 1994
to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes—
"(A) a nation adhering to the Berne Convention or a WTO member country; or
"(B) subject to a Residential proclsunation under sub- section (g). "(2) The 'date of restoration' of a restored copyright is
the later of— "(A) the date on which the Agreement on Trade-Related
Aspects of Intellectual Property referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, if the source country of the restored work is a nation adhering to the Berne Convention or a WTO member country on such date; or
"(B) the date of adherence or proclamation, in the case of any other source country of the restored work. "(3) The term 'eUgible coiintry* means a nation, other than
the United States, that is a WTO member country, adheres to the Berne Convention, or is subject to a proclamation under section 104A(g).
"(4) The term VeHance party* means any person who— "(A) with respect to a particular work, engages in acts,
before the source country of that work becomes an eUgible country, which would have violated section 106 if the restored work had been subject to copyright protection, and who, after the soiurce country becomes an eUgible coun- try, continues to engage in such acts;
"(B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or
"(C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or signifi- cant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. "(5) The term ^restored copyright means copjnight in a
restored work under this section. "(6) The term ^restored work' means an original work of
authorship that— "(A) is protected under subsection (a); "(B) is not in the pubUc domain in its source country
through expiration of term of protection; "(C) is in the pubUc domain in the United States due
to— "(i) noncompHance with formalities imposed at any
time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements;
"(ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or
"(iii) lack of national eligibility; and "(D) li£is at least one author or rightholder who was,
at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not pubUshed in the United
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4981
States during the 30-day period following publication in such eUgible country. "(7) The term Vi^htnolder' means the person—
"(A) who, with respect to a sound recording, first fixes a sound recording with authorization, or
"(B) who has acquired rights from the person described in subparagraph (A) by means of any conveyance or by operation of law. "(8) The 'source country* of a restored work is—
"(A) a nation other than the United States; "(B) in the case of an unpublished work—
"(i) the ehgible country in which the author or rightholder is a national or domiciliaiy, or, if a restored work has more than 1 author or rightholder, the major- ity of foreign authors or rightholders are nationals or domiciliari.es of eligible countries; or
"(ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and "(C) in the case of a pubHshed work—
"(i) the ehgible country in which the work is first published, or
"(ii) if the restored work is published on the same day in 2 or more eUgible countries, the eligible country wMch has the most significant contacts with the work.
"(9) The terms WTO Agreement and *WTO member cotm- trjr* have the meanings given those terms in paragraphs (9) and (10), respectively, of section 2 of the Uruguay Round Agree- ments Act.". (b) LIMITATION.—Section 109(a) of title 17, United States Code,
is Eunended by adding at the end the following: "Notwithstanding the preceding sentence, copies or phonorecoras of works subject to restored copyright under section 104A that are manufactured before the date of restoration of copyright or, with respect to reUance parties, before pubHcation or service of notice under section 104A(e), may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on—
(1) the date of the pubUcation in the Federal Register of the notice of intent filed with the Copyright Office under section 104A(d)(2)(A), or
"(2) the date of the receipt of actual notice served under section 104A(d)(2)(B),
whichever occurs first.". (c) CONFORMING AMENDMENT.—The item relating to section
104A in the table of sections for chapter 1 of titie 17, United States Code, is amended to read as foUows:
"104A. Copyright in restored works.".
Subtitle B—Trademark Provisions SEC. 521. DEFINrnON OF "ABANDONED".
Section 45 of the Act entitled "An Act to provide for the registra- tion and protection of trade-marks used in commerce, to carry
108 STAT. 4982 PUBLIC LAW 103-465—DEC. 8, 1994
out the provisions of certsdn iatemational conventioiis, and for other pirrooses", approved JuW 5, 1946 (15 U.S.C. 1127) (hereafter in this title referrea to as the *Trademark Act of 1946"), is amended by amending the paragraph defining "abandoned" to read as follows:
"A mark shall be deemed to oe 'abandoned' if either of the following occurs:
"(1) When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred fi*om circumstances. Nonuse for 3 consecutive years shall be prima fecie evidence of abandonment *Use' of a mark means the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark.
"(2) When any coiu^e of conduct of the owner, including acts of omission as well as conmiission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its signifi- cance as a mark. Purchaser motivation shall not be a test for determining abandonment under this paragraph.".
SEC. 622. NONREGISTEIABILITY OF MISLEADING GEOGRAPHIC INDICATIONS FOR WINES AND SPIRITS.
Subsection (a) of section 2 of the Trademark Act of 1946 (15 U.S.C. 1052(a)) is amended to read as foUows:
"(a) Consists of or comprises immoral, deceptive, or scandalous matter, or matter which may disparage or falsely suggest a connec- tion with persons, Uving or dead, institutions, beHefe, or national symbols, or bring them into contempt, or disrepute; or a geographi- cal indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the appHcant on or after one year after the date on wnich the WTO Agreement (as defined in section 2(9) of the Uruguay Round Agreements Act) enters into force with respect to the United States.".
15 use 1052 SEC. 523. EFFECTIVE DATE.
The amendments made by this subtitle take effect one year after the date on which tJie WTO Agreement enters into force with respect to the United States.
Subtitle C—Patent Provisions SEC. 531. TREATMENT OF INVENTIVE ACTIVI'IY.
(a) IN GENERAL.—Section 104 of title 35, United States Code, is amended to read as foUows:
^§ 104. Invention made abroad "(a) IN GENERAL.—
"(1) PROCEEDINGS.—In proceedings in the Patent and Trademark Office, in the courts, and before any other competent authority, an applicant for a patent, or a patentee, may not estabhsn a date of invention by reference to knowledge or use thereof, or other activity with respect thereto, in a foreign country other thsin a NAFTA country or a WTO member coun- try, except as provided in sections 119 and 365 of this titie.
"(2) RIGHTS.—If an invention was made by a person, civil or military—
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4983
"(A) while domiciled in the United States, and serving in any other country in connection with operations by or onbenalf of the United States,
"(B) while domiciled in a NAFTA country and serving in another country in connection witih operations by or on behalf of that NAFTA country, or
"(C) while domiciled in a WTO member country and serving in another countty in connection with operations by or on behalf of that WT(J member country,
that person shall be entitled to the same rights of priority in the United States with respect to such invention as if such invention had been :made in the United States, that NAFTA country, or that WTO member country, as the case may be.
"(3) U S E OF INFORMATION.—To the extent that any informa- tion in a NAFTA country or a WTO member country concerning knowledge, use, or other activity relevant to proving or disprov- ing a date of invention has not been made available for use in a proceeding in tlie Patent and Trademark Office, a court, or any other competent authority to the same extent as such information could be made available in the United States, the Conmiissioner, court, or such other authority shall draw appropriate inferences, or take other action pernutted by stat- ute, rule, or regulation, in favor of the party that requested the information in the proceeding. "(b) DEFINITIONS.—^As used in this section—
"(1) the term *NAFTA countiy* has the meaning given that term in section 2(4) of the North American Free Trade Agreement Implementation Act; and
"(2) the term *WTO member country' has the meaning given that term in section 2(10) of the Uruguay Round Agree- ments Act.". (b) EFFECTIVE DATE.— 35 use 104 note.
(1) IN GENERAL.—Except as provided in paragraph (2), the amendment made by this section shaU apply to aU patent appHcations that are filed on or after the date that is 12 months after the date; of entry into force of the WTO Agreement with respect to the United States.
(2) ESTABUSHMENT OF DATE.—^An appUcant for a patent, or a patentee, may not establish a date of invention for purposes of title 35, United States Code, that is earlier than 12 months after the date of entry into force of the WTO Agreement with respect to the United States by reference to knowledge or use, or other activity, in a WT(J member country, except as provided in sections 119 and 365 of such titie.
SEC. 532. PATENT TERM AND INTERNALPRIORITY. (a) PATENT RIGHTS.—
(1) CONTENTS AND TERM OF PATENT.—Section 154 of titie 35, United States Code, is amended to read as follows:
**§ 154. Contents and term of patent "(a) IN GENERAL.—
"(1) CONTENTS.—Every patent shall contain a short titie of the invention and a grant to the patentee, his heirs or assigns, of the right to exclude others fi^m making, using, offering for sale, or selling the invention throughout the United States or importing tJie invention into the United States, and.
108 STAT. 4984 PUBLIC LAW 103-465—DEC. 8, 1994
if the invention is a process, of the right to exclude others from using, offering for sale or seUing throughout Hie United States, or importing into the United States, products made by that process, referring to the specification for the particulars
' thereof "(2) TERM.—Subject to the payment of fees under this title,
such grant shall be for a term beginning on the date on which the patent issues and ending 20 years from the date on which the appUcation for the patent was filed in the United States or, if the appUcation contains a specific reference to an earher filed application or appUcations imder section 120, 121, or 365(c) of this title, fix)m the date on which the earUest such application was filed.
"(3) PRIORITY.—Priority under section 119, 365(a), or 365(b) of this title shall not be taken into account in determining the term of a patent
"(4) SPECIFICATION AND DRAWING.—A copy of the specifica- tion and drawing shall be annexed to the patent and be a part of such patent (b) TERM EXTENSION.—
"(1) INTERFERENCE DELAY OR SECRECY ORDERS.—If the issue of an original patent is delayed due to a proceeding under section 135(a) of this title, or because the application for patent is placed under an order pursuant to section 181 of this title, the term of the patent shall be extended for the period of delay, but in no case more than 5 years.
"(2) EXTENSION FOR APPELLATE REVIEW.—If the issue of a patent is delayed due to appellate review by the Board of Patent Appeals and Interferences or by a Federal court and the patent is issued pursuant to a decision in the review reversing an adverse determination of patentabiUty, the term of the patent shall be extended for a period of time but in no CEise more than 5 years. A patent shall not be eUgible for extension under this paragraph if it is subject to a terminal disclaimer due to the issue of another patent claiming subject matter that is not patentably distinct from that imder appellate review.
"(3) LIMITATIONS,—The period of extension referred to in paragraph (2)—
"(A) shall include any period beginning on the date on which an appeal is filed under section 134 or 141 of this title, or on which £m action is commenced under section 145 of tbis title, and ending on the date of a final decision in favor of the appUcant;
"(B) shall be reduced by any time attributable to appel- late review before the expiration of 3 years from the nling date of the appUcation for patent; and
"(C) shall be reduced for the period of time during which the applicant for patent did not act with due diU- gence, as determined by the Conmiissioner. (4) LENGTH OF EXTENSION.—The total duration of all exten-
sions of a patent under this subsection shall not exceed 5 years. "(c) CONTINUATION.—
"(1) DETERMINATION.—The term of a patent that is in force on or that results fix)m an appUcation filed before the date that is 6 months after the date of the enactment of the Uruguay
c*5^g9S5^.:::
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4985
Round Agreements Act shall be the greater of the 20-year term as provided in. subsection (a), or 17 years from grant, subject to any terminal disclaimers.
"(2) REMEDIES.—The remedies of sections 283, 284, and 285 of this title shall not apply to Acts which—
"(A) were commenced or for which substantial invest- ment was made before the date that is 6 months after the date of the enactment of the Uruguay Roxind Agree- ments Act; and
**(B) became infringing by reason of paragraph (1). "(3) REMUNERATION.—^Tne acts referred to in paragraph
(2) may be continued only upon the payment of an equitable remuneration to the patentee that is determined in an action brought under chapter 28 and chapter 29 (other than those provisions excluded oy paragraph (2)) of this titie.".
(2) PROVISION OF FURTHER LIMITED REEXAMINATION AND 35 use 154 note. CONDITIONS OF RESTRICTION REQUIREMENTS.—(A) T h e C o m m i s - Regulations. sioner of Patents and Trademarks shall prescribe regiilations to provide for further limited reexamination of appHcations that have been pending for 2 years or longer as of the effective date of section 154(aX2) of titie 35, United States Code, as added by paragraph (1) of this subsection, taking into account any reference made in such appUcation to any earlier filed appUcation under section 120, 121, or 365(c) of such titie. Tne Conmiissioner may establish appropriate fees for such fur- ther limited reexamination.
(B) The Commissioner of Patents and Trademarks shall prescribe regulations to provide for the examination of more than 1 independent and distinct invention in an appUcation that has been pending for 3 years or longer as of the effective date of section 154(a)(2) of titie 35, United States Code, as added by paragraph (1) of this subsection, taking into account any reference made in such appUcation to any earlier filed appUcation imder section 120, 121, or 365(c) of such titie. Tne Conunissioner may estabUsh appropriate fees for such examination. (b) ESTABLISHMENT OF A DOMESTIC PRIORITY SYSTEM.—
(1) IN GENERAL,.—Section 119 of titie 35, United States Code, is amended—
(A) by £imending the section caption to read as foUows:
**§ 119. Benefit of earlier filing date; right of priority"; (B) by designating the undesignated paragraphs as
subsections (a), (b), (c), and (d), respectively; and (C) by adding at the end tiie following:
"(e)(1) An appUcation for patent filed under section 111(a) or section 363 of this titie for an invention disclosed in the manner provided by the first paragraph of section 112 of this titie in a provisional appUcation filed under section 111(b) of this titie, by an inventor or inventors named in the provisional appUcation, snaU have the same effect, as to such invention, as though filed on the date of the provisional ^pUcation filed imder section 111(b) of this titie, if the appUcation for patent filed under section 111(a) or section 363 of this titie is filed not later than 12 months after the date on which the provisional application was filed and if it contains or is simended to contain a specific reference to the provisional application.
79-194 O—95—14: QL 3 Part 6
108 STAT. 4986 PUBLIC LAW 103-465—DEC. 8, 1994
"(2) A provisional application filed under section 111(b) of this titie may not be reUed upon in any proceeding in the Patent and Trademark Office unless the fee set forth in subparagraph (A) or (C) of section 41(a)(1) of this titie has been paid and the provisional appUcation was pending on the filing date of the applica- tion for patent under section 111(a) or section 363 of this titie.".
(2) FEES.—Section 41(a)(1) of titie 35, United States Code, is amended by adding at the end the following:
"(C) On filing each provisional application for an original patent, $150.".
(3) APPLICATIONS.—Section 111 of titie 35, United States Code, is amended to read as foUows:
"§111. Application "(a) IN GENERAL.—
"(1) WRITTEN APPLICATION.—^An appUcation for patent shall be made, or authorized to be made, by the inventor, except as otherwise provided in this titie, in writing to the Commissioner.
"(2) CONTENTS.—Such appUcation shall include— "(A) a specification as prescribed by section 112 of
this titie; "(B) a drawing as prescribed by section 113 of this
titie; and "(C) an oath by the appUcant as prescribed by section
115 of this titie. "(3) F E E AND OATH.—The appUcation must be accompanied
by the fee required by law. The fee and oath may be submitted after the specification and any required drawing are submitted, within such period and tmder such conditions, including the payment of a surcharge, as may be prescribed by the Conmiis- sioner.
"(4) FAILURE TO SUBMIT.—Upon failure to submit the fee and oath within such prescribed period, the appUcation shaU be regarded as abandoned, unless it is shown to the satisfaction of the Conmiissioner that the delay in submitting the fee and oatii was unavoidable or unintentional. The filing date of an appUcation shaU be the date on which the specification and any required drawing are received in the Patent and Trademark Office. "(b) PROVISIONAL APPLICATION.—
"(1) AUTHORIZATION.—^A provisional appUcation for patent shaU be made or authorized to be made by the inventor, except as otherwise provided in this titie, in writing to the Commis- sioner. Such appUcation shaU include—
"(A) a specification as prescribed by the first paragraph of section 112 of this titie; and
"(B) a drawing as prescribed by section 113 of this titie. "(2) CLAIM.—^A claim, as required by the second through
fiftJi paragraphs of section 112, shaU not be required in a provisional appUcation.
"(3) FEE.-—(A) The application must be accompanied by the fee required by law.
"(B) The fee may be submitted after the specification and any required drawing are submitted, within such period and
• 4 ' - (S?^- -
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4987
under such conditions, including the payment of a surcharge, as may be prescribed by the Commissioner.
"(C) Upon failure to submit the fee within such prescribed period, the application shall be regarded as abandoned, imless it is shown to the satisfaction of the Commissioner that the delay in submitting the fee was imavoidable or unintentional.
(4) FILING DATE.—^The fiUng date of a provisional apphca- tion shall be the date on which the specification and anv required drawing are received in the Patent and Trademark Office.
"(5) ABANDONMISNT.—The provisional appHcation shall be regarded as abandoned 12 months after the nling date of such appUcation and shall not be subject to revival thereafter.
"(6) OTHER BASIS FOR PROVISIONAL APPLICATION.—Subiect to all the conditionis in this subsection and section 119(e) of this title, and as prescribed by the Commissioner, an appUcation for patent filed under subsection (a) may be treated as a provi- sional appUcation for patent.
"(7) N o RIGHT OF PRIORITY OR BENEFIT OF EARLIEST FIUNG DATE.— Â provisional appUcation shaU not be entitled to the right of priority of any other appUcation under section 119 or 365(a) of this title or to the benefit of an earUer filing date in the United States under section 120, 121, or 365(c) of this title.
"(8) APPLICABLE; PROVISIONS.—The provisions of this title relating to appUcatiions for patent shall apply to provisional appUcations for patent, except as otherwise provided, and except that provisional appUcations for patent shaU not be subject to sections 115,131,135, and 157 of this title.". (c) CONFORMING CH/LNGES.—
(1) Section 156(a)(2) of title 35, United States Code, is amended by inserting **under subsection (e)(1) of this section"
(2) Section 172 of titie 35, United States Code, is amended—
(A) by striking "section 119" and inserting "subsections (a) through (d) of section 119"; and
(B) by inserting at the end the foUowing new sentence: "The right of priority provided for by section 119(e) of this titie shaU not apply to designs.".
(3) Section 173 of titie 35, United States Code, is amended by inserting "fix>m the date of grant" after "years".
(4) Section 365 of title 35, United States Code, is amended—
(A) in subsection (a), by striking "section 119" and inserting "subsections (a) through (d) of section 119"; and
(B) in subsection (b), by stnking "the first paragraph of section 119" and inserting "section 119(a)". (5) Section 373 of titie 35, United States Code, is amended
by striking "section 119" and inserting "subsections (a) through (d) of section 119".
(6) The table of sections for chapter 11 of titie 35, United States Code, is amended—
(A) by striking the item relating to section 111 and inserting the foUowing:
"111. Application.";
and
108 STAT. 4988 PUBLIC LAW 103-465—DEC. 8, 1994
(B) by striking the item relating to section 119 £ind inserting the following:
"119. Benefit of earlier filing date; right of priority.".
SEC. 533. PATENT RIGHTS.
(a) DEFINITION OF INFRINGEMENT.—Section 271 of title 35, United States Code, is amended—
(1) in subsection (a)— (A) by inserting ", offers to seU," after "uses"; and (B) by inserting "or imports into the United States
any patented invention" after "the United States"; (2) in subsection (c), by striking "sells" and inserting "offers
to sell or sells within the United States or imports into the United States";
(3) in subsection (e)— (A) in paragraph (1), by striking "or sell" and inserting
"offer to sell, or sell within the United States or import into the United States";
(B) in paragraph (3), by striking "or selling" and insert- ing "offering to sell, or seUing within the United States or importing into the United States";
(C) in paragraph (4)(B), by striking "or sale" and insert- ing "offer to sell, or sale within the United States or importation into the United States"; and
(D) in paragraph (4)(C), by striking "or sale" and insert- ing "offer to sell, or sale within the United States or importation into the United States"; (4) in subsection (g)—
(A) by striking "sells" and inserting "offers to sell, seUs,";
(B) by striking "importation, sale," and inserting "importation, offer to sell, sale,"; and
(C) by striking "other use or" and inserting "other use, offer to sell, or'; and (5) by adding at the end the following:
"(i) As used in this section, an 'offer for sale' or an 'offer to sell' by a person other than the patentee, or any designee of the patentee, is that in which the sale will occur before the expira- tion of the term of the patent".
(b) CONFORMING AMENDMENTS.— (1) Paragraph (2) of section 41(c) of titie 35, United States
Code, is amended to read as follows: "(2) A patent, the term' of which has been maintained as a
result of the acceptance of a payment of a maintenance fee under this subsection, shall not abridge or affect the right of any person or that person's successors in business who made, purchased, offered to sell, or used anything protected by the patent within the United States, or imported anything protected by tne patent into the United States sifter the 6-month grace period but prior to the acceptance of a maintenance fee under this subsection, to continue the use of, to offer for sale, or to sell to others to be used, offered for sale, or sold, the specific thing so made, purchased, offered for sale, used, or imported. The court before which such matter is in question mav provide for the continued manufacture, use, offer for sale, or sale of the thing made, purchased, offered for sale, or used within the United States, or imported into the United States, as specified, or for the manufacture, use, offer for sale,
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4989
or sale in the United States of which substantial preparation was made after the 6-monthL grace period but before the acceptance of a maintenance fee under this subsection, and the court may also provide for the continued practice of any process that is prac- ticed, or for the practice of which substantial preparation was made, after the 6-month grace period but before the acceptance of a maintenance fee under this subsection, to the extent and under such terms as the court deems equitable for the protection of investments made or business commenced after the 6-month grace period but before the acceptance of a maintenance fee under this subsection.".
(2) The second undesignated paragraph of section 252 of title 35, United States Code, is amended to read as follows: "A reissued patent shall not abridge or affect the right of
any person or that person's successors in business who, prior to the grant of a reissue, made, purchased, offered to sell, or used within the United States, or imported into the United States, any- thing patented by the reissued patent, to continue the use of, to offer to sell, or to sell to others to be used, offered for sale, or sold, the specific thing so made, purchased, offered for sale, used, or imported unless the making, using, offering for s£de, or selling of such thing infringes a valid claim of the reissued patent which was in the original patent. The court before which such matter is in question may provide for the continued manufacture, use, offer for sale, or sale of the thing made, purchased, offered for sale, used, or imported as specified, or for the manufacture, use, offer for sale, or sale in the United States of which substantial preparation was made before the grant of the reissue, and the court may also provide for the continued practice of any process patented by the reissue that is practiced, or for the practice of which substantial preparation was made, before the grant of the reissue, to the extent and under such terms as the court deems equitable for the protection of investments made or business com- menced before the grant of the reissue.".
(3) Section 262 of title 35, United States Code, is amended—
(A) by striking "use or sell" and inserting "use, offer to sell, or sell"; and
(B) by inserting "within the United States, or import the patented invention into the United States," after "invention". (4) Section 272 of title 35, United States Code, is amended
by striking "not sold" and inserting "not offered for sale or sold".
(5) Section 287 of title 35, United States Code, is amended—
(A) in subsection (a)— (i) by striking "making or seUing" and inserting
"making, offering for sale, or selling within the United States"; and
(ii) by inserting "or importing any patented article into the United States," after "under tliem,"; and (B) in subsection (b)—
(i) in paragraph (1)(C), by striking "use, or sale" and inserting "use, offer for sale, or sale";
108 STAT. 4990 PUBLIC LAW 103-465—DEC. 8, 1994
(ii) in paragraph (4)(A), by striking "sold or" and inserting sold, offered for sale, or" in the matter preceding clause (i);
(iii) in paragraph (4)(A)(ii), bv striking **use, or sale" and inserting "use, offer for sale, or sale ;
(iv) in paragraph (4)(C), by striking "have been sold" and inserting Tiave been offered for sale or sold"; and
(v) in paragraph (4)(C), by striking "United States before" and inserting *iJnited States, or imported by the person into the United States, before".
(6) Section 292(a) of title 35, United States Code, is amended—
(A) by striking '*used, or sold by him" and inserting "used, offered for sale, or sold by such person within the United States, or imported by the person into the United States"; and
(B) by striking "made or sold" and inserting "made, offered for sale, sold, or imported into the United States". (7) Section 295 of title 35, United States Code, is amended
by striking "sale, or use" and inserting "sale, offer for sale, or use".
(8) Section 307(b) of title 35, United States Code, is amended bv striking "used anything" and inserting "used within the United States, or imported into the Unitea States, any- thing".
35 u s e 154 note. SEC. 534. EFFECTIVE DATES AND APPLICATION.
(a) IN GENERAL.—Subject to subsection (b), the amendments made by this subtitle take effect on the date that is one year after the date on which the WTO Agreement enters into force with respect to the United States.
(b) PATENT APPUCATIONS.— (1) IN GENERAL.—Subject to paragraph (2), the amendments
made by section 532 take effect on the date that is 6 months after the date of the enactment of this Act and shall apply to all patent applications filed in the United States on or after the effective date.
(2) SECTION i54(a)(i).—Section 154(a)(1) of title 35, United States Code, as amended by section 532(a)(1) of this Act, shall take effect on the effective date described in subsection (a).
(3) EARUEST FILING.—The term of a patent granted on an appHcation that is filed on or after the effective date described in subsection (a) and that contains a specific reference to an earlier appUcation filed under the provisions of section 120, 121, or 365(c) of title 35, United States Code, shall be measured fi^m the fihng date of the earUest filed appUcation.
TITLE VI—RELATED PROVISIONS
Subtitle A—Expiring Provisions
SEC. 601. GENERALIZED SYSTEM OF PREFERENCES.
(a) EXTENSION OF DUTY-FREE TREATMENT UNDER SYSTEM.— Section 505(a) of the Trade Act of 1974 (19 U.S.C. 2465(a)) is
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4991
19 u s e 2465 note.
amended by striking "September 30, 1994" and inserting "July 31,1995".
(b) RETROACTIVE APPUCATION FOR CERTAIN LIQUIDATIONS AND REUQUIDATIONS.—
(1) IN GENERAL.—^Notwithstanding section 514 of the Tariff Act of 1930 or any other provision of law and subject to para- graph (2), liie entiy—
(A) of any article to which duty-fi-ee treatment under title V of the Trade Act of 1974 would have appUed if the entiy had been made on September 30, 1994, and
(B) mat was made after September 30,1994, and before such date of enactment,
shall be Uquidated or rehquidated as free of duty, and the Secretary of the Treasmy shall refund any duty paid with respect to such entry. As used in this subsection, the term "entry" includes a withdrawal from warehouse for consumption.
(2) REQUESTS.—Liquidation or reUquidation may be made under paragraph (1) with respect to an entry only if a request therefor is filed with the Customs Service, witnin 180 days after the date of the enactment of this Act, that contains sufficient information to enable the Customs Service—
(A) to locate the entry; or (B) to reconstruct me entry if it cannot be located.
SEC. 602. U.S. INSULAR POSSESSIONS.
(a) EXTENSION OF VERIFICATION AND CERTIFICATE ISSUANCE PROVISIONS.—Additional U.S. Note 5(h)(i) to chapter 91 of the HTS is amended by striking "and before January 1, 1995," and inserting "and before January 1, 2007,".
(b) EXTENSION OF CERTIFICATE NUMBER PIC-EV-89.—Notwi th- Expiration date, standing any other provision of law, the production incentive certifi- cate, number PIC--EV-89, issued jointly by the Secretary of Conmierce and the Secretary of the Interior, piu^uant to paragraph (hXiXB) of Additional U.S. Note 5 to chapter 91 of the HTS (formerly paragraph (h)(i)(II) of headnote 6 of schedule 7, part 2, subpart E of the Tariff Schedules of the United States), snail be deemed to have been reissued on the date of the enactment of this Act in the amount of the balance remaining on such certificate, £ind shall expire on the date that is 1 year after such date of enactment.
Subtitle B—Certain Customs Provisions SEC. 611. REIMBURSEMENTS FROM CUSTOMS USER FEE ACCOUNT.
(a) IN GENERAL.—Subclause (II) of section 13031(f)(3)(A)(i) of the ConsoUdated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c(f)(3)(A)(i)(n)) is amended to read as follows:
"(II) paying premium pay under section 5(b) of the Act of FebruEiry 13, 1911, out the amount for which reimbursement may be made under this subclause may not, for any fiscal year, exceed the difference between the total cost of all the premium pay for such year calculated under section 5(b) and the cost of the nignt and hoUday premium pay that the Customs Service would have mcurred for me same inspectiomd work on the day before the effective date of section 13813 of the Omnibus Budget Reconcihation Act of 1993,".
108 STAT. 4992 PUBLIC LAW 103-465—DEC. 8, 1994
19 use 58c note. (b) EFFECTIVE DATE.—The amendment made by this section shall apply to customs inspectional services performed on or after January 1, 1994. SEC. 612. MERCHANDISE PROCESSING FEES.
(a) IN GENERAL.—Section 13031 of the Consohdated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c) is amended—
(1) in subsection (a)(9)— (A) in subparagraph (A), by striking "0.17" and insert-
ing "0.21", (B) in subparagraph (B)(i), by striking "(but not to
a rate of more than 0.19 percent nor less than 0.15 percent) that would" and inserting "(but not to a rate of more than 0.21 percent nor less than 0.15 percent) and the amounts specified in subsection (b)(8)(A)(ij (but not to more than $485 nor less than $21) to rates and amounts which would", and
(C) in subparagraph (B)(ii), by striking "section 613A of the Tariff Act of 1930" and inserting subsection (f)", (2) in subsection (a)(10)—
(A) in subparagraph (C), by striking "entry or release." and inserting entry or release, ,
(B) in clause (ii), by striking "$5" and inserting "$6", and
(C) in clause (iii), by striking "$8" and inserting "$9", and (3) in subsection (b)(8)(A)(i), by striking "$400 or be less
than $21", and inserting "$485 or be less than $25, imless adjusted pursuant to subsection (a)(9)(B)".
19 use 58c note. (b) EFFECTIVE DATE.—The amendments made by this section apply to articles entered, or withdrawn fi*om warehouse for consumption, on or sifter JanuEiry 1, 1995.
Subtitle C—Conforming Amendments SEC. 621. CONFORMING AMENDMENTS.
(a) TRADE LAWS.— (1) Section 1317(a)(1) of the Omnibus Trade and Competi-
tiveness Act of 1988 (19 U.S.C. 1677k(a)(l)) is amended— (A) by inserting "(A)" after "(1)"; (B) by striking "General Agreement on Tariffs and
Trade" and inserting "GATT 1994^; and (C) by adding at the end the following:
"(B) The term 'GATT 1994' has the meaning given that term in section 2(1)(B) of the Uruguay Roimd Agreements Act.".
(2) Section 212(c)(4) of the Caribbean Basin Economic Recovery Act (19 U.S.C. 2702(c)(4)) is amended by striking "GeneraJ" and all that follows through "1979" and inserting "WTO Agreement and the multilateral trade agreements (as such terms are defined in paragraphs (9) and (4), respectively, of section 2 of the Uruguay Round Agreements Act)".
(3) Section 203(d)(4) of the Andean Trade Preference Act (19 U.S.C. 3202(d)(4)) is amended by striking "General" and all that follows through "1979" and inserting "WTO Agreement and the multilateral trade agreements (as such terms are
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4993
defined in paragraphs (9) and (4), respectively, of section 2 of the Uruguay Round Agreements Act)".
(4) Section 1106 of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 2905) is amended—
(A) in subsection (a), by striking "the GATT" and inserting "the GATT 1947, or to the WTO Agreement,";
(B) in subsections (b) and (c), by inserting after "the GATT' each place it appears "1947 or the WTO Agreement";
(C) by adding at the end the following new subsection: "(e) DEFINITIONS.—For purposes of this section:
"(1) The term 'GATT 1947' has the meaning given that term in section 2(1)(A) of the Uruguay Round Agreements Act.
"(2) The term WTO Agreement' means the Agreement Establishing the World Trade Organization entered into on April 15, 1994 and the multilateral trade agreements (as such term is defined in section 2(4) of the Uruguay Round Agree- ments Act)."; and
(D) by inserting after "GENERAL AGREEMENT ON TAR- IFFS AND TRADE" in the heading "FOR THE WTO". (5) Section 1107(a)(3) of the Omnibus Trade and Competi-
tiveness Act of 1988 (19 U.S.C. 2906(3)) is amended by striking "the General Agreement on Tariffs and Trade" and inserting "the GATT 1947 (as defined in section 2(1)(A) of the Uruguay Round Agreements Acif.
(6) Section 1378(2) of the Omnibus Trade and Competitive- ness Act of 1988 (19 U.S.C. 3107(2)) is amended by striking "the General Agreement on Tariffs and Trade" and inserting "the WTO Agreement and the multilateral trade agreements (as such terms are defined in paragraphs (9) and (4), respec- tively, of section 2 of the Uruguay Roimd Agreements Act)".
(7) Section 1382 of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 3111) is amended by striking "the General Agreement on Tariffs and Trade" and inserting "the WTO Agreement and the multilateral trade agreements (as such terms are defined in paragraphs (9) and (4), respectively, of section 2 of the Uruguay Roimd Agreements Act)".
(8) Section 141(c)(1) of the Trade Act of 1974 (19 U.S.C. 2171(c)(1)) is amended—
(A) in subparagraph (C) by inserting "all negotiations on any matter considered under the auspices of tiie World Trade Organization," after "including"; and
(B) in subparagraph (D) by inserting ", including any matter considered under the auspices of the World Trade Organization," iifter "functions". (9) Section 301(a)(2)(A) of the Trade Act of 1974 (19 U.S.C.
2411(a)(2)(A)) is amended by striking "the Contracting Parties" and all that follows through "Parties," and inserting "the Dis- pute Settlement Body (as defined in section 121(5) of the Uru- guay Round Agreements Act) has adopted a report,". (b) EFFECTIVE DATE.—The amendments made by this section 19 use I677k
shall take effect on the date on which the WTO Agreement enters "°*®' into force with respect to the United States.
108 STAT. 4994 PUBLIC LAW 103-465—DEC. 8, 1994
TITLE VII—REVENUE PROVISIONS SEC. 700. AMENDMENT OF 1986 CODE AND TABLE OF CONTENTS.
(a) AMENDMENT OF 1986 CODE.—Except as otherwise expressly provided, whenever in this title an amendment or repeal is expressed in terms of an amendment to, or repesil of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Internal Revenue Code of 1986.
(b) TABLE OF CONTENTS.—
TITLE V I I — R E V E N U E PROVISIONS Sec. 700. Amendment of 1986 Code and table of contents.
Subtitle A—^Withholding Tax Provisions Sec. 701. Withholding on distributions of Indian casino profits to tribal members. Sec. 702. Voluntary withholding on certain Federal payments and on unemploy-
ment compensation.
Subtitle B—Provisions Relating to Estimated Taxes and Payments and Deposits of Taxes
Sec. 711. Treatment of subpart F and section 936 income of taxpayers using annualized method for estimated tax.
Sec. 712. Time for payments and deposits of certain taxes. Sec. 713. Reduction in rate of interest paid on certain corporate overpayments.
Subtitle C—^Earned Income Tax Credit
Sec. 721. Extension of earned income tax credit to military personnel stationed out- side the United States.
Sec. 722. Certain nonresident aliens ineligible for earned income tax credit. Sec. 723. Income of prisoners disregardea in determining earned income tax credit.
Subtitle D—Provisions Relating To Retirement Benefits Sec. 731. Treatment of excess pension assets used for retiree health benefits. Sec. 732. Rounding rules for cost-of-living adjustments. Sec. 733. Increase in inclusion of social security benefits paid to nonresidents.
Subtitle E—Other Provisions Sec. 741. Partnership distributions of marketable securities. Sec. 742. Taxpayer identification numbers regvured at birth. Sec. 743. Extension of Internal Revenue Service user fees. Sec. 744. Modification of substantial understatement penalty for corporations par-
ticipating in tax shelters. Sec. 745. Modification of authority to set terms and conditions for savings bonds.
Subtitle F—Pension Plan Funding and Premiums Sec. 750. Short title.
PART I—PENSION PLAN FUNDING
SUBPART A—AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986
Sec. 751. Minimum funding requirements. Sec. 752. Limitation on changes in current liability assumptions. Sec. 753. Anticipation of bargained benefit increases. Sec. 754. Modification of quarterly contribution requirement. Sec. 755. Exceptions to excise tax on nondeductible contributions.
SUBPART B—^AMENDMENTS TO THE EMPLOYEE RETIREMENT INC!OME SECURITY ACT OF
1974
Sec. 761. Minimum funding requirements. Sec. 762. Limitation on changes in current liability assumptions. Sec. 763. Anticipation of bargained benefit increases. Sec. 764. Modification of quarterly contribution requirement.
SUBPART O—OTHER FUNDING PROVISIONS
Sec. 766. Prohibition on benefit increases where plan sponsor is in bcmkruptcy.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4995
Sec. 767. Single sum diatributiona. Sec. 768. Adjuatmenta to lien for miaaed minimum funding oontributiona. Sec. 769. Special fdnding rulea for certain plana.
PART II—AMENDMENTS RE:LATED TO TITLE FV OF THE EMPLOYEE RETIREMENT
INC!OME SECURITY ACT OF 1974
Sec. 771. Reportable eventa. Sec. 772. Certain information required to be furniahed to PBGC Sec. 773. Enforcement of minimum fundin? requirementa. Sec. 774. Computation of additional PBGCpremium. Sec. 775. Diacioaure to participanta. Sec. 776. Miaaing participants. Sec. 777. Modification of maximum guarantee for diaability benefita. Sec. 778. Procedurea to facilitate diatribution of termination benefita.
PART III—EFFECTIVE DATES
Sec. 781. Effective dates.
Subtitle A—Withholding Tax Provisions SEC. 701. WITHHOLDING ON DISTRIBUTIONS OF INDIAN CASINO
PROFITS TO IHIBAL MEMBERS.
(a) IN GENERAL.—Section 3402 (relating to income tax collected 26 use 3402. at source) is amended by inserting after subsection (q) the following new subsection:
"(r) EXTENSION OF WITHHOLDING TO CERTAIN TAXABLE PAY- MENTS OF INDIAN CASINO PROFITS.—
"(1) IN GENERAI..—Every person, including an Indian tribe, making a payment to a member of an Indian tribe from the net revenues of any class II or class III gaming activity con- ducted or licensed by such tribe shall deduct and withhold from such payment a tax in an amount equsd to such payment's proportionate share of the annualized tax.
"(2) EXCEPTION.—The tax imposed by paragraph (1) shall not apply to any payment to the extent that the payment, when annuaUzed, does not exceed an amount equal to the sum of—
"(A) the ba£iic standard deduction (as defined in section 63(c)) for an individual to whom section 63(c)(2)(C) applies, and
"(B) the exemption amount (as defined in section 151(d)). "(3) ANNUALIZED TAX.—For purposes of paragraph (1), the
term 'annuaHzed tsix' means, with respect to any payment, the amount of tax which would be imposed by section 1(c) (determined without regard to any rate of tax in excess of 31 percent) on an amount of taxable income equal to the excess of—
"(A) the annuahzed amount of such payment, over "(B) the amoimt determined under paragraph (2).
"(4) CLASSES OF GAMING ACTIVITIES, ETC.—For purposes of this subsection, terms used in paragraph (1) wnicn are defined in section 4 of the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.), as in effect on the date of the enact- ment of this subsection, shall have the respective meanings given such terms by such section.
"(5) ANNUALIZATION.—^Payments shall be placed on an annualized basis under regulations prescribed by the Secretary.
"(6) ALTERNATE WITHHOLDING PROCEDURES.—At the elec- tion of an Indian tnbe, the tax imposed by this subsection
108 STAT. 4996 PUBLIC LAW 103-465—DEC. 8, 1994
on £iny payment made by such tribe shall be determined in accordance with such tables or computational procedures as may be specified in regulations prescribed bv the Secretary (in lieu of m accordance with paragraphs (2) and (3)).
"(7) COORDINATION WITH OTHER SECTIONS.—For purposes of this chapter and so much of subtitle F as relates to this chapter, payments to any person which are subject to withhold- ing under this subsection shall be treated as if they were wages paid by an employer to an employee."
26 use 3402 (b) EFFECTIVE DATE.^The amendment made by this section ^°^' shall apply to payments made after December 31, 1994.
SEC. 702. VOLUNTARY WITHHOLDING ON CERTAIN FEDERAL PAY- MENTS AND ON UNEMPLOYMENT COMPENSATION.
26 use 3402. (a) IN GENERAL.—Subsection (p) of section 3402 (relating to voluntary withholding agreements) is amended to read as follows:
"(p) VOLUNTARY WITHHOLDING AGREEMENTS.— "(1) CERTAIN FEDERAL PAYMENTS.—
"(A) IN GENERAL.—If, at the time a specified Federal payment is made to any person, a request by such person is in effect that such payment be subject to withholding under this chapter, then for piuT)oses of this chapter and so much of subtitle F as relates to this chapter, such payment shall be treated as if it were a payment of wages by an employer to an employee.
"(B) AMOUNT WITHHELD.—The amount to be deducted and withheld under this chapter fi-om any payment to which any request under subparagraph (A) applies shall be an amount equal to the percentage of such payment specified in such request. Such a request shall apply to any payment only if the percentage specified is 7, 15, 28, or 31 percent or such omer percentage as is permitted under regulations prescribed by the Secretary.
"(C) SPECIFIED FEDERAL PAYMENTS.—For purposes of this paragraph, the term 'specified Federal payment' means—
"(i) any payment of a social security benefit (as defined in section 86(d)),
"(ii) any payment referred to in the second sen- tence of section 451(d) which is treated as insurance proceeds,
"(iii) any amount which is includible in gross income under section 77(a), and
"(iv) any other payment made piu^uant to Federal law which is specined by the Secretary for pmposes of this paragraph. "(D) REQUESTS FOR WITHHOLDING.—Rules similar to
the rules that apply to annuities under subsection (o)(4) shall apply to requests under this paragraph and paragraph (2). "(2) VOLUNTARY WITHHOLDING ON UNEMPLOYMENT BENE-
FITS.—If, at the time a payment of imemployment compensation (as defined in section 85(b)) is made to any person, a request by such person is in effect that such payment be subject to withholding under this chapter, then for piuposes of this chap- ter and so much of subtitle F as relates to this chapter, such payment shall be treated as if it were a payment of wages
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4997
by an employer to an employee. The amount to be deducted EOid withheld under this chapter from any payment to which any request under lids paragraph apphes shaU be an amount equal to 15 percent of such payment
"(3) AUTHORITY FOR OTHER VOLUNTARY WITHHOLDING.—The Secretary is authorized by regulations to provide for withholding—
"(A) from remuneration for services performed by an employee for the employee's employer which (witiiout regard to this pjiragraph) does not constitute wages, and
"(B) fix)m any other type of pajonent with respect to which the Secretary finds tiiat withholding would be appro- priate under the provisions of this chapter,
if the employer and employee, or the person making and the person receiving such other type of payment, agree to such withholding. Such agreement shall be in such form and manner as the Secretary may by regulations prescribe. For purposes of this chapter (and so much of subtitle F as relates to this chapter), remuneration or other payments with respect to which such agreement is made shall be treated as if they were wages paid by an employer to an employee to the extent that such remuneration is paid or other payments are made during the period for which the agreement is in effect." (b) STATE LAW MUST PERMIT VOLUNTARY WITHHOLDING OF
FEDERAL INCOME TAX FROM UNEMPLOYMENT COMPENSATION.—Sec- tion 3304(a) is amended by striking "and" at the end of paragraph (17), by redesignating paragraph (18) as paragraph (19), and by inserting after paragraph (17) the following new paragraph:
"(18) Federal individual income tax from unemployment compensation is to be deducted and withheld if an individual receiving such compensation voluntarily requests such deduc- tion and withholding; and". (c) WITHHOLDING FROM UNEMPLOYMENT COMPENSATION OF
FEDERAL, STATE, AND LOCAL INCOME TAXES PERMITTED.— (1) Subparagraph (C) of section 3304(a)(4) is amended by
inserting aher "health insurance" the following: ", or the withholding of Federal, State, or local individual income tax,".
(2) Subsection (iD of section 3306 is amended by redesignat- ing paragraphs (3) smd (4) as paragraphs (4) and (5), respec- tively, and by inserting sifter .paragraph (2) the following new paragraph:
"(3) nothing in this subsection shall be construed to prohibit deducting any amount fix)m unemployment compensation other- wise payable to an individual and using the amount so deducted to pay for health insurance, or the withholding of Federal, State, or local indi\idual income tax, if the individual elected to have such deduction made and such deduction was made imder a program approved by the Secretary of Labor;".
(3) Paragraph (5) of section 303(a) of the Social Security Act is amended by inserting after "health insurance" the follow- ing: ", or the withholding of Federsil, State, or local individual income tax,". (d) EFFECTIVE DATFL—The amendments made by this section
shall apply to payments made after December 31, 1996.
Regulations.
26 u s e 3304.
42 u s e 503.
26 u s e 3304 note.
108 STAT. 4998 PUBLIC LAW 103-465—DEC. 8, 1994
Subtitle B—Provisions Relating to Esti- mated Taxes and Payments and Deposits of Taxes
SEC. 711. TREATMENT OF SUBPART F AND SECTION 936 INCOME OF TAXPAYERS USING ANNUALIZED METHOD FOR ESTIMATED TAX.
26 use 6655. (a) CORPORATIONS.—Section 6655(e) (relating to lower required installment where annualized income installment is less) is amend- ed by adding at the end the following new paragraph:
"(4) TREATMENT OF SUBPART F AND SECTION 936 INCOME.— "(A) IN GENERAL.—^Any amounts required to be
included in gross income under section 936(h) or 951(a) (and credits properly allocable thereto) shall be taken into account in computing any annualized income installment under paragrapn (2) in a manner similar to the manner under which partnership income inclusions (and credits properly allocable thereto) are taken into account
"(B) PRIOR YEAR SAFE HARBOR.— "(i) IN GENERAL.—If a taxpayer elects to have this
subparagraph apply for any taxable year— "(I) subparagraph (A) shall not apply, and "(II) for purposes of computing any annuaUzed
income installnient for such taxable year, the tax- payer shall be treated as having received ratably during such taxable year items of income and credit described in subparagraph (A) in an amount equal to 115 percent of the amount of such items shown on the return of the taxpayer for the preced- ing taxable year (the second preceding taxable year in the case of the first and second required install- ments for such taxable year), "(ii) SPECIAL RULE FOR NONCONTROLLING
SHAREHOLDER.— "(I) IN GENERAL.—If a taxpayer making the
election under clause (i) is a noncontroUing share- holder of a corporation, clause (i)(II) shall be appHed with respect to items of such corporation by substituting '100 percent* for *115 percent*.
"(II) NONCONTROLLING SHAREHOLDER.—For purposes of subclause (I), the term *noncontroUing shareholder* means, vdih. respect to any corpora- tion, a shareholder which (as of the beginning of the taxable year for which the installment is being made) does not own (within the mesining of section 958(a)), and is not treated as owning (within the meaning of section 958(b)), more thEin 50 percent (by vote or value) of the stock in the corporation."
(b) INDIVIDUALS.—Section 6654(d)(2) (relating to lower required installment where annualized income installment is less) is amended by adding at the end the following new subparagraph:
"(D) TREATMENT OF SUBPART F AND SECTION 936 INCOME.—
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 4999
"(i) IN GENERAL.—^Any amounts required to be included in gross income under section 936(h) or 951(a) (and credits properly allocable thereto) shall be taken into account in computing any annualized income installment under subparagraph (B) in a manner simi- lar to the manner under which partnership income inclusions (and credits properly allocable thereto) are taken into account.
"(ii) PRIOR YEAR SAFE HARBOR.—If a taxpayer elects to have this clause apply to any taxable year—
"(I) clause (i) shall not apply, and "(II) for purposes of computing any annualized
income installment for such taxable year, the tax- payer shall be treated as having received ratably dining such taxable year items of income and credit described in clause (i) in an amount equal to the amount of such items shown on the return of the taxpayer for the preceding taxable year (the second preceding taxable year in the case of the first and second required instsdlments for such taxable year)."
(c) EFFECTIVE DATE.—^The amendments made by this section 26 use 6654 shall apply for purposes of determining underpayments of estimated ^°^- tax for taxable years beginning after December 31,1994.
SEC. 712. TIME FOR PAYMENTS AND DEPOSITS OF CERTAIN TAXES. (a) DEPOSITS REQUIRED FOR SEMIMONTHLY PERIODS.—Sub-
section (f) of section 6302 (relating to collection authority) is 26 use 6302. amended to read as follows:
"(f) TIME FOR DEPOSIT OF CERTAIN EXCISE TAXES.— "(1) GENERAL RULE.—Except as otherwise provided in this
subsection and subsection (e), if any person is required under regulations to make deposits of taxes under subtitle D with respect to semimonthly periods, such person shall make deposits of such taxes for the period beginning on September 16 and ending on September 26 not later than September 29. In the case of taxes imposed by sections 4261 and 4271, this paragraph shall not apply to periods before January 1, 1997.
"(2) TAXES ON OZONE DEPLETING CHEMICALS.—If any person is required under regulations to make deposits of taxes under subchapter D of chapter 38 with respect to semimonthly peri- ods, in Heu of paragraph (1), such person shall make deposits of such taxes for—
"(A) the second semimonthly period in August, and "(B) the period beginning on September 1 and ending
onSentember 11, not later tnan September 29.
"(3) TAXPAYERS NOT REQUIRED TO USE ELECTRONIC FUNDS TRANSFER.—In the case of deposits not required to be made by electronic fiinds transfer, paragraphs (1) and (2) shall be appUed by substituting 'September 25' for 'September 26', 'September Icy for 'September 11', and 'September 28' for 'September 29'.
"(4) SPECLfVL RtrUB WHERE DUE DATE ON SATURDAY OR SUN- DAY.— Îf, but for this paragraph, the due date under paragraph
108 STAT. 5000 PUBLIC LAW 103-465—DEC. 8, 1994
(1), (2), or (3) would fall on a Saturday or Simday, such due date sliEdl be deemed to be—
"(A) in the case of Saturday, the preceding day, and "(B) in the case of Sunday, the following day.
(b) TAXES ON DISTILLED SPIRITS, WINES, AND BEER.— 26 use 5061. (1) Subsection (d) of section 5061 is amended by redesignat-
ing paragraph (4) £is paragraph (5) and by inserting after paragraph (3) the following new paragraph:
(4) SPECIAL RULE FOR TAX DUE IN SEPTEMBER.— "(A) IN GENERAL.—Notwithstanding the preceding
provisions of this subsection, the taxes on distilled spirits, wines, and beer for the period beginning on September 16 and ending on September 26 snail be paid not later than September 29.
"(B) SAFE HARBOR.—^The requirement of subparagraph (A) shall be treated as met if the amount paid not later th£in September 29 is not less than Wi6 of the taxes on distilled spirits, wines, and beer for the period beginning on September 1 and ending on September 15.
"(C) TAXPAYERS NOT REQUIRED TO USE ELECTRONIC FUNDS TRANSFER.—In the case of payments not required to be made by electronic funds transfer, subparagraphs (A) and (B) snaU be apphed by substituting September 25' for 'September 26', ^September 28' for 'September 29', and '%' for '^Vis'." (2) Section 5061(d)(5), as redesignated by paragraph (1),
is amended— (A) by inserting "(or the immediately following day
where the due date described in paragraph (4) falls on a Sunday)" before the period at the end, and
(B) by striking "I4TH DAY" in the heading and inserting "DUE DATE".
(c) TOBACCO PRODUCTS AND CIGARETTE PAPERS AND TUBES.— (1) Paragraph (2) of section 5703(b) is amended by
redesignating subparagraph (D) as subparagraph (E) and by inserting after subpciragraph (C) the following new subparagraph:
"(D) SPECIAL RULE FOR TAX DUE IN SEPTEMBER.— "(i) IN GENERAL.—^Notwithstanding the preceding
provisions of this paragraph, the taxes on tobacco prod- ucts and cigarette papers and tubes for the period beginning on September 16 and ending on September 26 shall be paid not later than September 29.
"(ii) SAFE HARBOR.—^The requirement of clause (i) shall be treated as met if the amount paid not later than September 29 is not less than WIB of the taxes on tobacco products and cigarette papers and tubes for the period beginning on September 1 and ending on September 15.
"(iii) TAXPAYERS NOT REQUIRED TO USE ELECTRONIC FUNDS TRANSFER.—In the case of payments not required to be made by electronic funds transfer, clauses (i) and (ii) shall be appUed by substituting 'September 25' for 'September 26', 'September 28' for 'September 29', and '%^for '^Vis'."
(2) Section 5703(b)(2)(E), as redesignated by paragraph (1), is amended—
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5001
(A) by inserting "(or the immediately following day where the due date described in subparagraph (D) falls on a Simday)" before the period at the end, and
(B) by striking "i4TH DAY" in the heading and inserting "DUE DATE".
(d) COMMUNICATION SERVICES AND AIRLINE TICKETO.—Sub- section (e) of section 6302 is amended to read as follows: 26 USC 6302.
"(e) TIME FOR DEPOSIT OF TAXES ON COMMUNICATIONS SERVICES AND AIRUNE TICKETS.—
"(1) IN GENERAL.—Except as provided in paragraph (2), if, under regulations; prescribed by the Secretary, a person is required to make deposits of any tax imposed by section 4251 or subsection (a) or (b) of section 4261 with respect to amounts considered collected by such person during any semi- monthly period, such deposit shaU be made not later than the 3rd day (not including Saturdays, Sundays, or legal holi- days) after the close of the 1st week of the 2nd semimonthly period following the period to which such amounts relate.
"(2) SPECIAL RULE FOR TAX DUE IN SEPTEMBER.— "(A) AMOUNTS CONSIDERED COLLECTED.—In the case
of a person required to make deposits of the tax imposed b y -
"(i) section 4251, or "(ii) effective on January 1, 1997, section 4261
or 4271, with respect to amounts considered collected by such person during any semimonthly period, the amount of such tax included in bills rendered or tickets sold during the period beginning on September 1 and ending on September 11 shall be deposited not later than September 29.
"(B) SPECIAL RULE WHERE SEPTEMBER 29 is ON SATUR- DAY OR SUNDAY.—If September 29 falls on a Saturday or Simday, the due date under subparagraph (A) shall be—
"(i) in the case of Saturday, the preceding day, and
"(ii) in the case of Simday, the following day. "(C) TAXPAYERS NOT REQUIRED TO USE ELECTRONIC
FUNDS TRANSFER.—In the case of deposits not required to be made by electronic funds transfer, subparagraphs (A) and (B) shall be appUed by substituting 'September 10' for 'September 11' and 'September 28' for 'September 29'."
(e) EFFECTIVE DATE.—^The amendments made by this section 26 use 5061 shall take effect on January 1, 1995.
SEC. 713. REDUCTION IN IIATE OF INTEREST PAID ON CERTAIN COR- PORATE OVERPAYMENTS.
(a) IN GENERAL.—Piiragraph (1) of section 6621(a) (defining overpayment rate) is amended by adding at the end the following new flush sentence:
"To the extent that an overpayment of tax by a corporation for any taxable period (as defined in subsection (c)(3)) exceeds $10,000, subparagraph (B) shall be appHed by substituting '0.5 percentage pointf for '2 percentage points'."
note.
108 STAT. 5002 PUBLIC LAW 103-465—DEC. 8, 1994
26 use 6621 (b) EFFECTIVE DATE.—^The amendment made by this section " shall apply for purposes of determining interest for periods after
December 31, 1994.
Subtitle C—Earned Income Tax Credit SEC. 721. EXTENSION OF EARNED DfCOME TAX CREDIT TO MILITARY
PERSONNEL STATIONED OUTSIDE THE UNITED STATES. 26 use 32. (a) IN GENERAL.—Subsection (c) of section 32 (relating to earned
income credit) is amended by adding at the end the following new paragraph:
*\4) TREATMENT OF MILITARY PERSONNEL STATIONED OUT- SIDE THE UNITED STATES.—For Durposes of paragraphs (l)(A)(ii)(I) and (3)(E), the principEd place of abode of a member of the Armed Forces of the United States shall be treated £is in the United States during any period during which such member is stationed outside the United States while serving on extended active duty (as defined in section 1034(h)(3)) with the Armed Forces of the United States." (b) REPORTING OF MILITARY EARNED INCOME.—Subsection (a)
of section 6051 (relating to receipts for employees) is amended by striking "and" at the end of paragraph (8), by striking the period at the end of paragraph (9) and by inserting ", and", Eind by inserting after paragraph (9) the following new paragraph:
"(10) in the CEise of an employee who is a member of the Armed Forces of the United States, such employee's earned income as determined for purposes of section 32 (relating to earned income credit)." (c) ADVANCE PAYMENT OF EARNED INCOME CREDIT BASED ON
MILITARY EARNED INCOME.—Paragraph (1) of section 3507(c) (defin- ing earned income advance amount) is amended by adding at the end the following new sentence:
"In the case of an employee who is a member of the Armed Forces of the United States, the earned income advance amount shall be determined by taking into accoimt such employee's earned income as determined for piuposes of section 32." (d) EFFECTIVE DATES.—
26 use 32 note. (1) SUBSECTION (a).—The amendment made by subsection (a) shall apply to taxable years beginning after December 31, 1994.
26 use 3507 (2) SUBSECTIONS (b) AND (C).—The amendments made by °̂*«- subsections (b) and (c) shall apply to remuneration paid after
December 31, 1994. SEC. 722. CERTAIN NONRESIDENT ALIENS INELIGIBLE FOR EARNED
INCOME TAX CREDIT.
(a) IN GENERAL.—Paragraph (1) of section 32(c) (defining eligible individual) is amended by adding at the end the following new subparagraph:
^ ( E ) LIMITATION ON ELIGIBILITY OF NONRESIDENT ALIENS.—^The term 'ehgible individual' shall not include any individual who is a nonresident ahen individual for any portion of the taxable year imless such individual is treated for such taxable year as a resident of the United States for purposes of this chapter by reason of an election under subsection (g) or (h) of section 6013."
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5003
(b) EFFECTIVE DATE.—^The amendment made by subsection (a) 26 use 32 note, shall apply to taxable yesirs beginning after December 31, 1994. SEC. 723. INCOME OF PRISONERS DISREGARDED IN DETERMINING
EARNED INCOME TAX CREDIT. (a) IN GENERAL.—Subparagraph (B) of section 32(c)(2) (defining 26 use 32.
earned income) is amended by striking "and" at the end of clause (ii), by striking the period at the end of clause (iii) and inserting ", and", and by adding at the end the following new clause:
"(iv) no amount received for services provided by an individual while the individual is an inmate at a penal institution shall be taken into accoimt."
(b) EFFECTIVE DATE.—The amendment made by subsection (a) 26 use 32 note, shall apply to taxable years beginning after December 31, 1993.
Subtitle D—Provisions Relating To Retirement Benefits
SEC. 731. TREATMENT OF EXCESS MINSION ASSETS USED FOR RETIREE HEALTH BENEFITS.
(a) 5-YEAR EXTENSION.—Paragraph (5) of section 420(b) (defin- ing qualified transfer) is amended by striking "1995" and inserting "2000".
(b) MINIMUM BENEFIT REQUIREMENTS.—Paragraph (3) of section 420(c) (relating to requirements of plans transferring assets) is amended to read as follows:
"(3) MAINTENANCE OF BENEFIT REQUIREMENTS.— "(A) IN GENERAL.—The requirements of this paragraph
are met if each group health plan or arrangement under which apphcable nealth benefits are provided provides that the apphcable health benefits provided by the employer during each taxable year during the benefit maintenance
Eeriod are subsfeintially the same as the apphcable healthenefits provided by the employer during the taxable year immediately preceding the taxable year of the qualified transfer.
"(B) ELECTION TO APPLY SEPARATELY.—^An employer may elect to have this paragraph appUed separately with respect to individuals ehgible for benefits under titie XVIII of me Social Security Act at any time during the taxable year and with respect to individuals not so ehgible.
"(C) BENEFIT MAINTENANCE PERIOD.—For purposes of this paragraph, the term ^benefit maintenance period' means the period of 5 taxable years beginning with the taxable year in which the qualified transfer occ\u*s. If a taxable year is in 2 or more benefit maintenance periods, this paragraph shall be apphed by taking into account the highest level of benefits required to be provided under subparagraph (A) for such taxable year."
(c) CONFORMING AMENDMENTS.— (1) Clause (ui) of section 42(Xb)(l)(C) is amended by striking
"cost" and inserting "benefits". (2) Subparagraph (B) of section 420(e)(1) is amended to
read as follows: "(B) REDUCTIONS FOR AMOUNTS PREVIOUSLY SET
ASIDE.—The amount determined under subparagraph (A)
108 STAT. 5004 PUBLIC LAW 103-465—DEC. 8, 1994
shall be reduced by the amount which bears the same ratio to such amount as—
"(i) the value (as of the close of the plan year preceding the year of the qualified transfer) of the assets in all health benefits accounts or welfare benefit funds (as defined in section 419(e)(1)) set aside to
Eay for the qualified current retiree health habihty,ears to "(ii) the present vsilue of the qualified current
retiree health UabUities for all plan years (determined without regard to this subparagraph)."
26 use 420. (3) Subparagraph (D) of section 420(e)(1) is amended by striking "or in calculating appUcable employer cost under sub- section (c)(3)(B)" and inserting "and shall not be subject to the minimum benefit requirements of subsection (c)(3)".
(4)(A) Section 101(e)(3) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1021(e)(3)) is amended by striking "1991" and inserting "1995".
(B) Section 403(c)(1) of such Act (29 U.S.C. 1103(c)(1)) is amended by striking "1991" and inserting "1995".
(C) Paragraph (13) of section 408(b) of such Act (29 U.S.C. 1108(b)(13)) is amended—
(i) by striking "1996" and inserting "2001", and (ii) by striking "1991" and inserting "1995".
26 use 420 note. (d) EFFECTIVE DATES.— (1) EXTENSION.—^The amendments made by subsections (a)
and (c)(3) shall apply to taxable years beginning after December 31,1995.
(2) BENEFITS.—^The amendments made by subsections (b) and (c)(1) and (2) shall apply to qualified transfers occurring after the date of the enactment of this Act.
SEC. 732. ROUM)ING RULES FOR COST-OF-LIVING ADJUSTMENTS.
(a) CosT-OF-LiviNG ADJUSTMENT FOR COMPENSATION LIMIT.— Section 401(a)(17)(B) is amended to read as follows:
"(B) COST-OF-LIVING ADJUSTMENT.—The Secretary shall adjust annually the $150,000 amount in subparagraph (A) for increases in the cost-of-Uving at the same time and in the same manner as adjustments under section 415(d); except that the base period shall be the calendar quarter beginning October 1, 1993, and any increase which is not a multiple of $10,000 shall be rounded to the next lowest multiple of $10,000."
(b) CosT-OF-LiviNG ADJUSTMENT FOR MAXIMUM DEFINED BENE- FIT AMOUNT AND MAXIMUM ANNUAL ADDITION.—
(1) IN GENERAL.—Section 415(d) is amended to read as follows: "(d) CosT-oF-LiviNG ADJUSTMENTS.—
"(1) IN GENERAL.—The Secretary shall adjust annually— "(A) the $90,000 amoimt in subsection (b)(1)(A), "(B) in the case of a participant who separated fix)m
service, the amount taken into accoimt under subsection (b)(1)(B), and
Regulations. «(C) the $30,000 amoimt in subsection (c)( 1)(A), for increases in the cost-of-Hving in accordance with regulations prescribed by the Secretary.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5005
"(2) METHOD.—The regulations prescribed under paragraph (1) shall provide for—
"(A) an at^ustment with respect to any calendar year based on the increase in the applicable index for the cal- endar quarter ending September 30 of the preceding cal- endar year over such index for the base period, and
"(B) adjustment procedures which are similar to the procedures used to adjust benefit amounts under section 215(i)(2)(A) of the Social Security Act. "(3) BASE PERIOD.—For purposes of paragraph (2)—
"(A) $90,000 AMOUNT.—The base period taken into account for purposes of paragraph (1)(A) is the calendar quarter beginning October 1, 1986.
"(B) SEPARATIONS AFTER DECEMBER 3I, 1994.—The base period taken into accoimt for purposes of paragraph (1)(B) with respect to Individuals separating fix)m service with the employer after December 31, 1994, is the calendar quarter beginning July 1 of the calendar year preceding the calendar year in which such separation occurs.
"(C) SEPARATIONS BEFORE JANUARY 1, 1995.—The base period taken into accoimt for purposes of paragraph (1)(B) with respect to individuals separating from service with the employer before January 1, 1995, is the calendar quar- ter beginning October 1 of the calendar year preceding the calendar year' in which such sepsu'ation occurs.
"(D) $30,000 AMOUNT.—The base period taken into account for purposes of paragraph (1)(C) is the calendar quarter beginning October 1, 1993. "(4) ROUNDING.—Any increase under subparagraph (A) or
(C) of paragraph (1) wMch is not a midtiple of $5,000 shall be rounded to the next lowest multiple of $5,000."
(2) CONFORMING AMENDMENT.—Section 415(c)(1)(A) is 26 use 415. amended by striking "(or, if greater, V4 of the doUfu* Umitation in effect under subsection (b)(1)(A))". (c) CosT-OF-LiviNG ADJUSTMENT FOR MAXIMUM SALARY DEFER-
RAL.—Section 402(g)(5) is amended by inserting before the period "; except that any increase under tiiis paragraph which is not a mtdtiple of $500 shall be rounded to the next lowest multiple of $500".
(d) CosT-oF-LiviNG ADJUSTMENT FOR EUGIBIUTY FOR SIM- PUFIED EMPLOYEE PENSIONS.—Section 408(k)(8) is amended by inserting before the period "; except that any increase in the $300 amount which is not a multiple of $50 shall be rounded to the next lowest multiple of $50".
(e) EFFECTIVE DATES.— 26 use 401 note. (1) IN GENERAL.—Except as provided in paragraph (2), the
amendments made by this section shall apply to years begin- ning after December 31,1994.
(2) ROUNDING NOT TX) RESULT IN DECREASES.—The amend- ments made by this section providing for the rounding of indexed amoimts shall not apply to any year to the extent the rounding would require the indexed amount to be reduced below the amount in effect for years beginning in 1994.
108 STAT. 5006 PUBLIC LAW 103-465—DEC. 8, 1994
SEC. 733. INCREASE IN INCLUSION OF SOCIAL SECURITY BENEFITS PAID TO NONRESIDENTS.
26 use 871. (a) IN GENERAL.—Subparagraph (A) of section 871(a)(3) (relat- ing to taxation of Socisil Security oenefits) is amended by striking "one-half' and inserting "85 percent.
26 use 871 note. (fc) EFFECTIVE DATE.—The amendment made by subsection (a) shall apply to benefits paid after December 31, 1994, in taxable years ending after such date.
Subtitle E—Other Provisions
SEC. 741. PARTNERSHIP DISTRIBUTIONS OF MARKETABLE SECURI- TIES.
(a) IN GENERAL.—Section 731 (relating to extent of recognition of gain or loss on distribution) is amended by redesignating sub- section (c) as subsection (d) and by inserting after subsection (b) the following new subsection:
"(c) TREATMENT OF MARKETABLE SECURITIES.— "(1) IN GENERAL.—For purposes of subsection (a)(1) and
section 737— "(A) the term ^monej^ includes marketable securities,
and "(B) such securities shall be taken into account at
their fair market value as of the date of the distribution. "(2) MARKETABLE SECURITIES.—For purposes of this sub-
section: "(A) IN GENERAL.—The term 'marketable securities'
means financial instruments and foreign currencies which are, as of the date of the distribution, actively traded (within the meaning of section 1092(d)(1)).
"(B) OTHER PROPERTY.—Such term includes— "(i) any interest in—
"(I) a common trust fiind, or "(II) a regulated investment company which
is offering for sale or has outstanding £iny redeem- able security (as defined in section 2(a)(32) of the Investment Company Act of 1940) of which it is the issuer, "(ii) any financial instrument which, pursuant to
its terms or any other arrangement, is readily convert- ible into, or exchangeable for, money or marketable securities, ,,
"(iii) any financial instrument the value of which is determined substantially by reference to marketable securities,
"(iv) except to the extent provided in regulations prescribed by the Secretary, any interest in a precious metal which, as of the date of the distribution, is actively traded (within the meaning of section 1092(dXl)) unless such metal was produced, used, or held in the active conduct of a trade or business by the partnership,
"(v) except as otherwise provided in regulations prescribed by the Secretary, interests in any entity if substantially all of the assets of such entity consist
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5007
(directly or indirectly) of marketable securities, money, or both, and
*'(vi) to the extent provided in regulations pre- scribed by the Secretary, any interest in an entity not described in clause (v) but only to the extent of the value of such interest which is attributable to marketable securities, money, or both. "(C) FINANCIAL INSTRUMENT.—The term ^financial
instrumenf includes stocks and other equity interests, evi- dences of indebtedness, options, forward or futures con- tracts, notional piincipal contracts, and derivatives. "(3) EXCEPTIONS.—
"(A) IN GENERAL.—Paragraph (1) shall not apply to the distribution from a partnersmp of a marketable security to a partner if—
"(i) the security was contributed to the partnership by such partner, except to the extent that the value of the distributed security is attributable to marketable seciuities or money contributed (directly or indirectly) to the entity to which the distributed security relates,
"(ii) to the extent provided in regulations pre- scribed by the Secretary, the property was not a marketable security when acquired by such partner- ship, or
"(iii) such partnership is an investment partner- ship and such partner is an eUgible partner thereof "(B) LIMITATION ON GAIN RECOGNIZED.—In the case
of a distribution of marketable securities to a partner, the amoimt taken into account under paragraph (1) shall be reduced (but not below zero) by the excess (if any) of—
"(i) such partner's distributive share of the net gain which would be recognized if all of the marketable securities of the same class and issuer as the distrib- uted securities held by tJie partnership were sold (immediately before the transaction to wnich the dis- tribution relates) by the partnership for fair market value, over
"(ii) such partner's distributive share of the net gain which is attributable to the marketable securities of the same class and issuer as the distributed securi- ties held by the partnershij) immediately after the transaction, determined by using the same fair market value as used imder clause (i).
Under regulations prescribed by the Secretary, all market- Regulations, able securities held by the partnership may be treated as marketable securities of the same class and issuer as the distributed securities.
"(C) DEFINITIONS RELATING TO INVESTMENT PARTNER- SHIPS.—For purposes of subparagraph (A)(iii):
"(i) INVESTMENT PARTNERSHIP.—The term 'invest- ment pgutnership' means any partnership which has never been engaged in a trade or business and substan- tially all of tiie assets (by value) of which have always consisted of—-
"(I) money, "(II) stock in a corporation,
108 STAT. 5008 PUBLIC LAW 103-465—DEC. 8, 1994
"(III) notes, bonds, debentures, or other evi- dences of indebtedness,
"(IV) interest rate, currency, or equity notional principal contracts,
"(V) foreign currencies, "(VI) interests in or derivative financial
instruments (including options, forward or futures contracts, short positions, and similar financial instruments) in £uiy asset described in any other subclause of this clause or in any conmiodity traded on or subject to the rules of a board of trade or conmiodity exchange,
"(VII) other assets specified in regulations pre- scribed by the Secretary, or
"(VIII) any combination of the foregoing, "(ii) EXCEPTION FOR CERTAIN ACTIVITIES.—A part-
nership shall not be treated as engaged in a trade or business by reason of—
"(I) any activity undertaken as an investor, trader, or dealer in any asset described in clause (i), or
"(II) any other activity specified in regulations prescribed by the Secretary, (iii) ELIGIBLE PARTNER.—
"(I) IN GENERAL.—The term 'ehgible partner' means any partner who, before the date of the distribution, did not contribute to the partnership any property other than assets described in clause (i).
"(II) EXCEPTION FOR CERTAIN NONRECOGNITION TRANSACTIONS.— T̂he term 'eUgible partner* shall not include the transferor or transferee in a non- recognition transaction involving a transfer of any portion of an interest in a partnership with respect to which the transferor was not an eligible partner. "(iv) LOOK-THRU OF PARTNERSHIP TIERS.—Except
as otherwise provided in regulations prescribed by the Secretary—
"(I) a partnership shall be treated as engaged ia £uiy trade or business engaged in by, and as holding (instead of a partnership interest) a proportionate share of the assets of, any other partnership in which the partnership holds a part- nership interest, and
"(II) a partner who contributes to a partner- ship an interest in another partnership shall be treated as contributiag a proportionate share of the assets of the other partnersnip.
If the preceding sentence does not apply under such regulations with respect to any interest held by a part- nership in another partnersmp, the interest in such other partnership shall be treated as if it were specified in a subclause of clause (i).
"(4) BASIS OF SECURITIES DISTRIBUTED.— "(A) IN GENERAL.—The basis of marketable securities
with respect to which gain is recognized by reason of this subsection shall be—
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5009
"(i) their basis determiiied under section 732, increased by
**(ii) the amount of such gain. "(B) ALLOCATION OF BASIS INCREASE.—Any increase in
basis attributable to the gain described in subparagraph (A)(ii) shall be allocated to marketable securities in propor- tion to their respective amounts of unrealized appreciation before such increase. "(5) SUBSECTION DISREGARDED IN DETERMINING BASIS OF
PARTNER'S INTEREST IN PARTNERSHIP AND OF BASIS OF PARTNER- SHIP PROPERTY.—Sections 733 and 734 shall be applied as if no gain were recognized, and no adjustment were made to the basis of property, under this subsection.
"(6) CHARACTER OF GAIN RECOGNIZED.—In the case of a distribution of a marketable security which is an unrealized receivable (as defined in section 751(c)) or an inventory item (as defined in section 751(d)(2)), any gain recognized under this subsection shall be treated as ordinary income to the extent of any increase in the basis of such seciuity attributable to the gain described in paragraph (4)(A)(ii).
"(7) REGULATIONS.—^The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this subsection, including regulations to prevent the avoidance of such purposes." (b) CONFORMING AMENDMENTS.—
(1) The last sentence of section 737(c)(1) is amended to 26 use 737. read as follows: "For purposes of determining the basis of the distributed property (other than monev), such increase shaM be treated as occurring immediately before the distribution."
(2) Section 737 is amended by aading at the end the follow- ing new subsection: "(e) MARKETABLE SECURITIES TREATED AS MONEY.—
"For treatment of :inarketable seciirities as money for purposes of this section, see section TSKc)."
(c) EFFECTIVE DATE.— 26 use 73i note. (1) IN GENERAL.—^Except as otherwise provided in this sub-
section, the amendments made by this section shall apply to distributions after the date of the enactment of this Act
(2) CERTAIN DISTRIBUTIONS BEFORE JANUARY i, 1995.—The amendments made by this section shall not apply to any marketable security distributed before Jsinuary 1, 1995, by the partnership which held such security on July 27, 1994.
(3) DISTRIBUTIONS IN UQUIDATION OF PARTNER'S INTEREST.—The amendments made by this section shall not apply to the distribution of a marketable security in Uquidation of a partner's interest in a partnership if—
(A) such liquidation is pursuant to a written contract which was binding on July 15, 1994, and at all times thereafter before the distribution, and
(B) such contract provides for the purchase of such interest not later than a date certain for—
(i) a fixed value of marketable securities that are specified in the contract, or
(ii) other property. The preceding sentence shall not apply if the partner has the right to elect that such distribution be made other than in marketable securities.
108 STAT. 5010 PUBLIC LAW 103-465—DEC. 8, 1994
(4) DISTRIBUTIONS IN COMPLETE UQUIDATION OF PUBUCLY TRADED PARTNERSHIPS.—
(A) IN GENERAL.—The amendments made by this sec- tion shall not apply to the distribution of a marketable security in a qualified partnership liquidation if—
(i) the marketable securities were received by the partnership in a nonrecognition transaction in exchange for substantially all of the assets of the part- nership,
(ii) the marketable securities are distributed by the partnership within 90 days after their receipt by the partnership, and
(iii) the partnership is Hquidated before the begin- ning of the 1st taxable year of the partnership begin- ning after December 31, 1997. (B) QUAUFIED PARTNERSHIP UQUIDATION.—For pur-
poses of subparagraph (A), the term "qualified partnership Uquidation'' means—
(i) a complete Uquidation of a pubUcly traded part- nership (as defined in section 7704(b) of the Internal Revenue Code of 1986) which is an existing partnership (as defined in section 10211(c)(2) of the Revenue Act of 1987), and
(ii) a complete Uquidation of a partnership which is related to a partnership described in clause (i) if such liquidation is related to a complete Uquidation of the partnership described in clause (i).
(5) MARKETABLE SECURITIES.—For purposes of this sub- section, the term "marketable securities" has the meaning given such term by section 731(c) of the Internal Revenue Code of 1986, as added by this section.
SEC. 742. TAXPAYER IDENTIFICATION NUMBERS REQUIRED AT BIRTEL 26 use 32. (a) EARNED INCOME CREDIT.—Clause (i) of section 32(c)(3)(D)
is amended to read as foUows: "(i) IN GENERAL.—^The requirements of this
subparagraph are met if the taxpayer includes the name, age, and TIN of each qualifying child (without regard to this subparagraph) on the return of tax for the taxable year."
(b) DEPENDENCY EXEMPTION.—Subsection (e) of section 6109 is amended to read as foUows:
"(e) FURNISHING NUMBER FOR DEPENDENTS.—Any taxpayer who claims an exemption under section 151 for any dependent on a return for any taxable year shaU include on such return the identify- ing number (for purposes of this titie) of such dependent."
26 u s e 32 note. (c) EFFECTIVE DATE.— (1) IN GENERAL.—Except as provided in paragraph (2), the
amendments made by this section shaU apply to returns for taxable years beginning after December 31, 1994.
(2) EXCEPTION.—^The amendments made by this section shall not apply to—
(A) returns for taxable years beginning in 1995 with respect to individuals who are born after October 31, 1995, and
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5011
(B) returns for taxable years beginning in 1996 with respect to individuals who are bom after November 30, 1996.
note.
SEC. 743. EXTENSION OF INTEKNAL REVENUE SERVICE USER FEES.
Subsection (c) of section 10511 of the Revenue Act of 1987 26USC7801 (relating to fees for requests for ruling, determination, and similar letters) is amended by striking "October 1, 1995" and inserting "October 1, 2000".
SEC. 744. MODIFICATION OF SUBSTANTIAL UNDERSTATEMENT PEN- ALTY FOR CORPORATIONS PARTICIPATING IN TAX SHEL- TE31S.
(a) IN GENERAL.—Subparagraph (C) of section 6662(d)(2) (relat- ing to special rules in cases involving tax shelters) is amended by redesignating clause (iL) as clause (iii) and by inserting after clause (i) the following new clause:
"(ii) SUBPARAGRAPH (B) NOT TO APPLY TO CORPORA- TIONS.^-Subparagraph (B) shall not apply to any item of a corporation which is attributable to a tax shelter."
(b) TECHNICAL AMENDMENTS.— (1) Clause (i) of section 6662(d)(2)(C) is amended by striking
"In the case of any item" and inserting "In the case of any item of a taxpayer otiier than a corporation which is".
(2) Clause (iii) of section 6662(d)(2)(C), as redesignated by subsection (a), is amended by striking "clause (i)" and insert- ing "this subparagraph". (c) EFFECTIVE DATE.—The £imendments made by this section 26 use 6662
shall apply to items related to transactions occurring after the "°**' date of the enactment of this Act.
SEC. 745. MODIFICATION OF AUTHORITY TO SET TERMS AND CONDI- TIONS FOR SAVINGS BONDS.
(a) IN GENERAL.—Subsection (b) of section 3105 of titie 31, United States Code, is amended to read as foUows:
"(b)(1) The Secretary may— "(A) fix the investment yield for savings bonds; and "(B) change the investment yield on an outstanding savings
bond, except that the yield on a bond for the period held may not be decreased below the minimum yield for the period guaranteed on the date of issue. "(2) The Secretary may prescribe regulations providing that—
"(A) owners of savings bonds may keep the bonds after maturity or after a period beyond maturity during which the bonds have earned interest and continue to earn interest at rates consistent with paragraph (1) of this subsection; and
"(B) savings bonds earning a different rate of interest before the regulations are prescribed shall earn a rate of interest consistent with paragraph (1)." (b) EFFECTIVE DATE.—The amendment made by this section 3i use 3105
shsill apply to bonds issued after October 31, 1994. ^°^-
108 STAT. 5012 PUBLIC LAW 103-465—DEC. 8, 1994
S J S o ; Act of Subti t le F—Pension Plan F u n d i n g and ^̂^̂ Premiums
26 u s e 1 note. SEC. 750. SHORT TITLE.
This subtitle may be cited as the "Retirement Protection Act of 1994".
PART I—PENSION PLAN FUNDING Subpart A—-Amendments to the Internal Revenue
Code of 1986 SEC. 751. MINIMUM FUNDING REQUIREMENTS.
(a) AMENDMENTS TO ADDITIONAL FUNDING REQUIREMENTS FOR SINGLE-EMPLOYER PLANS.—
(1) LIMITATIONS ON ADDITIONAL FUNDING REQUIREMENT FOR CERTAIN PLANS.—
26 use 412. (A) IN GENERAL.—Paragraph (1) of section 412(1) (relat- ing to additional funding requirements for plans which are not multiemployer plans) is amended by striking "which has an unfunded current Uability" and inserting "to which this subsection applies under paragraph (9)".
(B) PLANS TO WHICH REQUIREMENT APPLIES.—Section 412(1) is eimended by adding at the end the following new PEiragraph:
(9) APPLICABIUTY OF SUBSECTION.— "(A) IN GENERAL.—Except as provided in paragraph
(6)(A), this subsection shall apply to a plan for any plan year if its funded current liaDility percentage for such year is less than 90 percent.
"(B) EXCEPTION FOR CERTAIN PLANS AT LEAST SO PER- CENT FUNDED.—Subparagraph (A) shall not apply to a plan for a plan year if—-
"(i) the funded current Uability percentage for the plan year is at least 80 percent, and
"(ii) such percentage for each of the 2 immediately preceding plan years (or each of the 2d and 3d imme- diately preceding plan years) is at least 90 percent "(C) FUNDED CURRENT LIABIUTY PERCENTAGE.—For
purposes of subparagraphs (A) and (B), the term funded ciurent liabiHty percentage' has the meaning given such term by paragraph (8)(B), except that such percentage shall be determined for any plan year—
"(i) without regard to paragraph (8)(E), and "(ii) by using the rate of interest which is the
highest rate allowable for the plan year under para- graph (7)(C). ^(D) TRANSITION RULES.—For purposes of this
paragraph: "(i) F U N D E D PERCENTAGE FOR YEARS BEFORE 1995.—
The funded current Uability percentage for any plan year beginning before January 1, 1995, shall be treated as not less than 90 percent only if for such plan year tJie plan met one of the following requirements (as in effect for such year):
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5013
"(I) The full-funding limitation under sub- section (c)(7) for the plan was zero.
"(II) The plan had no additional funding requirement under this subsection (or would have had no such requirement if its fiinded current UabHity percentage had been determined under subparagraph (O).
"(IID The plan's additional funding require- ment under this subsection did not exceed the lesser of 0.5 percent of current habiUty or $5,000,000. "(ii) SPECIAL RULE FOR 1995 AND I996.—For pur-
poses of determining whether subparagraph (B) apphes to any plan year beginning in 1995 or 1996, a plan shall be treated as meeting the requirements of subparagraph (B)(ii) if the plan met the requirements of clause (i) of this subparagraph for any two of the plan years beginning in 1992, 1993, and 1994 (whether or not consecutive)."
(2) RELATIONSHIP OF ADDITIONAL FUNDING REQUIREMENT TO FUNDING STANDARD ACCOUNT CHARGES AND CREDITS.—
(A) Clause (ii) of section 412(1)(1)(A) is amended to 26 USC 412. read as foUows:
"(ii) the sum of the charges for such plan year ^^ under subsection (b)(2), reduced by the sum of the
credits for such plan year under subparagraph (B) of subsection (b)(3), plus . (B) The last sentence in section 412(1)(1) of such Code
is amended to read as follows: "Such increase shall not exceed the amount which, after taking into account cheirges (other than the additional charge under this subsection) and credits under subsection (b), is necessary to increase the funded current UabiUty percentage (taking into account the expected increase in current liabiHty due to benefits accruing during the plan year) to 100 percent"
(3) AMENDMENT TO DEFICIT REDUCTION CONTRIBUTION.— Paragraph (2) of section 412(1) is amended—
(A) by striking "plus" at the end of subparagraph (A); (B) by strikijig the period at the end of subparagraph
(B) and inserting: , plus , and (C) by adding at the end the following new
subparagraph: "(C) the expected increase in current UabiUty due to
benefits accruing during the plan year." (4) INCREASE IN CURRENT LL^^ILITY DUE TO CHANGE IN
REQUIRED ASSUMPTIONS.— (A) Paragraph (3) of section 412(1) is amended by add-
ing at the end the following new subparagraphs: "(D) SPECLM. RULE FOR REQUIRED CHANGES IN ACTUAR-
IAL ASSUMPTIONS.— "(i) IN GENERAL.—The unfiinded old Uability
amount with respect to any plan for any plan year shall be increased by the amount necessary to amortize the amount of additional unfunded old liabiUty under the plan in equal annual installments over a period of 12 plan years (beginning with the first plan year beginning after December 31,1994).
108 STAT. 5014 PUBLIC LAW 103-465—DEC. 8, 1994
"(ii) ADDITIONAL UNFUNDED OLD UABILITY.—For purposes of clause (i), the term 'additional unfunded old liabilitv' means the amoiuit (if any) by which—
"(D the current Uability of the plan as of the beginning of the first plan year beginning after December 31, 1994, valued using the assumptions required by paragraph (7)(C) as in effect for plan years beginning after December 31, 1994, exceeds
"(II) the current Uability of the plan £is of the beginning of such first plan year, valued using the same assumptions used under subclause (I) (other than the assiunptions required by para- graph (7)(C)), using the prior interest rate, and using such mortality assumptions as were used to determine ciurent UabiUty for the first plan year beginning after December 31, 1992. "(iu) PRIOR INTEREST RATE.—For purposes of clause
(u), the term 'prior interest rate' means the rate of interest that is the same percentage of the weighted average under subsection (b)(5)(B)(ii)(I) for the first plan year beginning after December 31, 1994, as the rate of interest used by the plan to determine current UabiUty for the first plan year beginning after Decem- ber 31, 1992, is of tne weighted average under sub- section (b)(5)(B)(u)(I) for such first plan year beginning after December 31,1992. "(E) OPTIONAL RULE FOR ADDITIONAL UNFUNDED OLD
LIABIUTY.— "(i) IN GENERAL.—If an employer makes an election
under clause (U), the additional unfiinded old UabiUty for purposes of subparagraph (D) shall be the amount (if any) by which—
(I) the unfunded current UabiUty of the plan as of the beginning of the first plan year beginning after December 31, 1994, valued using the assump- tions required by paragraph (7)(C) as in effect for plan years beginning after December 31, 1994, exceeds
"(11) the unamortized portion of the unfunded old UabiUty under the plan as of the beginning of the first plan year beginning after December 31,1994. "(ii) ELECTION.—
"(I) An employer may irrevocably elect to apply the provisions of this subpsu-agraph as of the begin- ning of the first plan year beginning after Decem- ber 31,1994.
"(II) If an election is made under this clause, the increase luider paragraph (1) for any plan year beginning after December 31, 1994, and before January 1, 2002, to which this subsection appUes (without regard to this subclause) shaU not be less than the increase that would be required under paragraph (1) if the provisions of this titie as in effect for the last plan year begin- ning before January 1, 1995, had remained in effect"
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5015
(B) Clause (i) of section 412(1)(4)(B) is amended by 26 use 412. inserting ", the unamortized portion of tiie additional unfiinded old liability," after "old liability". (5) APPLICABLE PERCENTAGE FOR DETERMINING UNFUNDED
NEW LIABILITY AMOtfNT.—Subparagraph (C) of section 412(1)(4) is amended—
(A) by striking ".25" and inserting ".40", and (B) by striking "35" and inserting "60".
(6) UNPREDICTABLE CONTINGENT EVENT AMOUNT.— (A) Subparagraph (A) of section 412(1)(5) is amended—
(i) by strikmg "greater of and inserting "greatest of before clause (i);
(ii) by striking "or" at the end of clause (i); (iii) by striking the period at the end of clause
(ii) and inserting ", or"; and (iv) by adding after clause (ii) the following new
clause: "(iii) the additional amount that would be deter-
mined imder paragraph (4)(A) if the unpredictable contingent event benefit liabilities were included in unfunded new liability notwithstanding psiragraph (4)(B)(ii)." (B) Paragraph (5) of section 412(1) is amended by add-
ing at the end the following new subparagraph: "(E) LIMITATION.—The present value of the amounts
described in subparagraph (A) with respect to any one event shall not exceed the unpredictable contingent event benefit liabiHties attributable to that event"
(C) Clause (ii) of section 412(m)(4)(D) is amended— (i) by slaiking "greater of and inserting "greatest
of before subclause (I); (ii) by striking "or" at the end of subclause (I); (iii) by striking the period at the end of subclause
(II) and inserting ", or"; and (iv) by adding after subclause (II) the following
new clause: "(III) 25 percent of the amoimt determined
under subsection (l)(5)(A)(iii) for the plan year." (7) REQUIRED INTEREST RATE AND MORTALITY ASSUMPTIONS
FOR DETERMINING CtfRRENT LIABILITY.— (A) IN GENERAL.—Subparagraph (C) of section 412(1)(7)
is amended to read as foUows: "(C) INTEREST RATE AND MORTALITY ASSUMPTIONS Effective date.
USED.—Effective for plan years beginning after December 31,1994—
"(i) INTE:REST RATE.— "(I) IN GENERAL.—The rate of interest used
to determine current HabiHty under this subsection shall be the rate of interest used under subsection (b)(5), except that the highest rate in the permis- sible range under subparagraph (B)(ii) thereof shall not exceed the specified percentage under subclause (II) of the weighted average referred to in such subparagraph.
"(II) SPECIFIED PERCENTAGE.—For purposes of subclause (I), the specified percentage snail be determined as foUows:
108 STAT. 5016 PUBLIC LAW 103-465—DEC. 8, 1994
"Li the case of plan years beginning The specified in calendar year: percentage is:
1995 109 1996 108 1997 107 1998 106 1999 and thereafter 106.
"(ii) MORTAUTY TABLES.— "(I) COMMISSIONERS' STANDARD TABLE.—In the
case of plan years beginning before the first plan year to which the &rst tables prescribed under subclause (II) apply, the mortality table used in determining current liabUity under this subsection shall be the table prescribed by the Secretary which is based on the prevailing commissioners' standard table (described in section 807(d)(5)(A)) used to determine reserves for group annuity con- tracts issued on January 1,1993.
"(II) SECRETARL^L AUTHORITY.—The Secretary may by regulation prescribe for plan years begin- ning after December 31, 1999, mortality tables to be used in determining current liabihty under this subsection. Such tables shall be based upon the actual expjerience of pension plans and pro- jected trends in such experience. In prescribing such tables, the Secretary shall take into account results of available independent studies of mortal- ity of individuals covered by pension plans.
"(Ill) PERIODIC REVIEW.—The Secretary shall periodically (at least every 5 years) review any tables in effect under this subsection and shall, to the extent the Secretary determines necessary, by regulation update the tables to reflect the actual experience of pension plans and projected trends in such experience. "(iii) SEPARATE MORTALITY TABLES FOR THE DIS-
ABLED.—Notwithstanding clause (ii)— "(I) IN GENERAL.—In the case of plan years
beginning after December 31, 1995, the Secretary shall establish mortaUty tables which may be used (in Ueu of the tables under clause (ii)) to determine current Uability imder this subsection for individ- uals who are entitled to benefits under the plan on account of disability. The Secretary shall estab- lish separate tables for individuals whose disabil- ities occur in plan years beginning before January 1, 1995, and for individuals whose disabihties occur in plan years beginning on or after such date.
"(II) SPECL\L RULE FOR DISABILITIES OCCUR- RING AFTER 1994.—In the case of disabilities occur- ring in plan years beginning after December 31, 1994, the tables under subclause (I) shall apply only with respect to individuals described in such subclause who are disabled within the meaning of title II of the Social Security Act and the regula- tions thereunder.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5017
"(III) PLAN YEARS BEGINNING IN 1995.—In the case of any plan year beginning in 1995, a plan may use its own mortality assumptions for individ- uals who are entitled to benefits under the plan on account of disability."
(B) AMORTIZATION OF UNFUNDED MORTALITY INCREASE AMOUNT.—
(i) IN GENERAL.—Paragraph (2) of section 412(1), as amended by paragraph (3), is amended by striking "plus" at the end of subparagraph (B), by striking the period, at the end of subparagraph (C) and inserting ", and", and by adding at the end the following new subparagraph: "(D) the aggregate of the unfunded mortaUty increase
amounts." (ii) UNFUNDED MORTAUTY INCREASE AMOUNT.—
Section 412(1), as amended by paragraph (1), is < amended by adding at the end the following new para-
graph: "(10) UNFUNDED MORTALITY INCREASE AMOUNT.—
"(A) IN GENERAL.—The imfunded mortahty increase amount with respect to each unfunded mortahty increase is the amount necessary to amortize such increase in equal annuttl installments over a period of 10 plan years (begin- ning with the first plan year for which a plan uses any new mortahty table issued imder paragraph (7)(C)(ii)(II) or (III)).
"(B) UNFUNDED MORTALITY INCREASE.—For purposes of subparagraph (A), the term ^unfunded mortahty increase' means an amount equal to the excess of—
"(i) tlie current habUity of the plan for the first plan year for which a plan uses any new mortality table issued under paragraph (7)(C)(ii)(II) or (III), over
"(ii) the current Uabihty of the plan for such plan year which would have been determined if the mortal- ity table in effect for the preceding plan year had been used."
: ; (iii) CONFORMING AMENDMENT.—Clause (i) of sec- tion 412(1)(4)(B), as amended by paragraph (4)(B), is amended by inserting "the unamortized portion of each unfunded mortality increase," after "additional unfunded old Uabihty,".
(8) TRANSITION RULE.—Section 412(1), as amended by para- graph (7), is amended by adding at the end the following new paragraph:
(11) PHASE-IN OF INCREASES IN FUNDING REQUIRED BY RETIREMENT PROTECTION ACT OF 1994.—
"(A) IN GENERAL.—For any appUcable plan year, at the election of the employer, the increase under paragraph (1) shall not exceed the greater of—
"(i) the increase that would be required under paragraph (1) if the provisions of this title as in effect for plan years beginning before January 1, 1995, had remainea in effect, or
"(ii) the amoimt which, after taking into account charges (other than the additional charge under this subsection) and credits under subsection (b), is nec-
79-194 O—95—15 : QL 3 Part 6
108 STAT. 5018 PUBLIC LAW 103-465—DEC. 8, 1994
essary to increase the funded current liability percent- age (taking into account the expected increase in cur- rent liabihty due to benefits accruing dming the plan year) for the appUcable plan year to a percentage equal to the sum of the initial Ainded current liability percentage of the plan plus the appHcable number of percentage points for such applicable plan year. *(B) APPUCABLE NUMBER OF PERCENTAGE POINTS.—
"(i) INITIAL FUNDED CURRENT LIABILITY PERCENT- AGE OF 75 PERCENT OR LESS.—Except as provided in clause (ii), for plans with an initial funded current UabOity percentage of 75 percent or less, the appUcable number of percentage points for the appUcable plan year is:
"In the case The applicable of applicable number of
Elan years percentage eginning in: points is:
1995 3 1996 6 1997 9 1998 12 1999 15 2000 19 2001 24. "(ii) OTHER CASES.—In the case of a plan to which
this clause appUes, the appUcable number of percent- age points for any such appUcable plan year is the sum of—
"(I) 2 percentage points; "(II) the appUcable number of percentage
points (if any) under this clause for the preceding appUcalDle plan year,
"(III) the product of .10 multiplied by the excess (if any) of (a) 85 percentage points over (b) the sum of the initial funded current UabOity percentage and the number determined under subclause (II);
"(IV) for appUcable plan years beginning in 2000,1 percentage point; and
"(V) for appUcable plan years beginning in 2001, 2 percentage points, "(in) PLANS TO WHICH CLAUSE (U) APPLIES.—
"(I) IN GENERAL.—Clause (ii) shall apply to a plan for an appUcable plan year if the initial funded current liability percentage of such plan is more than 75 percent
"(II) PLANS INITIALLY UNDER CLAUSE (i).—In the case of a plan which (but for this subclause) has an initial funded current UabiUty percentage of 75 percent or less, clause (u) (and not clause (i)) shsdl apply to such plan with respect to appUcable plan years beginning after the first appUcable plan year for which the sum of the initial funded current UabiUty percentage and the appUcable niunber of percentage points (deter- mined under clause (i)) exceeds 75 percent For purposes of applying clause (ii) to such a plan.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5019
the initial funded current liability percentage of such plan shall be treated as beiag the sum referred to in the preceding sentence.
"(C) DEFINITIONS.—^For purposes of this paragraph: **(i) The term 'applicable plan year means a plan
year begiinning after December 31, 1994, and before January 1, 2002.
**(ii) The term ^initial funded current liability percentage' means the funded current liabUity percent- age as of the first day of the first plan year beginning after December 31,1994."
(9) LIQUIDITY REQUIREMENT.— (A) IN GENERAL.—Section 412(m) is amended by 26USC412.
redesignating paragraph (5) as paragraph (6) and by insert- ing after psiragraph (4) the following new paragraph: "(5) LIQUIDITY REQUIREMENT.—
"(A) IN GENERAL.—^A plan to which this paragraph appHes shall be treated as failing to pay the full amount of Euay required installment to the extent that the value of the liquid assets paid in such installment is less than the Uquidity shortfall (whether or not such Uquidity short- fall exceeds the amoimt of such installment required to be paid but for this paragraph).
"(B) PLANS TO WHICH PARAGRAPH APPUES.—This para- graph shall apply to a defined benefit plan (other than a multiemployer plan or a plan described in subsection (1)(6)(A)) which—
"(i) is required to pay installments under this sub- section for a plan year, and
"(ii) lias a liquidity shortfall for any quarter during such plan year. "(C) PERIOD OF UNDERPAYMENT.—For purposes of para-
graph (1), any portion of an installment that is treated as not paid under subparagraph (A) shall continue to be treated as unpaid until the close of the quarter in which the due date for such installment occurs.
"(D) LIMITATION ON INCREASE.—If the amount of any required installment is increased by reason of subpara- graph (A), in no event shall such increase exceed the amount which, when added to prior installments for the plan year, is necessary to increase the funded current liabOity percentage (taking into account the expected increase in current Uability due to benefits accruing during the plan year) to 100 percent
"(E) DEFINITIONS.—For purposes of this paragraph: "(i) LIQUIDITY SHORTFALL.—The term 'Hquidi^
shortfall' mesuis, with respect to any required install- ment, an amount equal to the excess (as of the last day of the quarter for which such installment is made) of the base amount with respect to such quarter over the value (as of such last day) of the plan's Hquid assets.
"(ii) BASE AMOUNT.— "(I) IN GENERAL.—The term *base amoimf
means, with respect to any quarter, an amount equal to 3 times the sum of the a4justed disburse-
108 STAT. 5020 PUBLIC LAW 103-465—DEC. 8, 1994
ments from the plan for the 12 months ending on the last day of such quarter.
"(II) SPECIAL RULE.—If the amount determined under clause (i) exceeds an amount equal to 2 times the sum of the adjusted disbursements from the plan for the 36 months ending on the last day of the quarter and an enrolled actuary certifies to the satisfaction of the Secretary that such excess is the result of nonreciuTing circumstances, the base amount with respect to such quarter shall be determined without regard to amounts related to those nonrecurring circumstances. "(iii) DISBURSEME^̂ ŝ FROM THE PLAN.—The term
'disbursements from the plan* means aU disbursements from the trust, including purchases of annuities, pay- ments of single simis and other benefits, and adminis- trative expenses.
"(iv) ADJUSTED DISBURSEMENTS.—The term 'adjusted disbursements' means disbursements from the plan reduced by the product of—
"(I) the plan's funded current liability percent- age (as defined in subsection (1)(8)) for tiie plan year, and
"(II) the sum of the purchases of annuities, payments of single sums, and such other disburse- ments as the Secretary shall provide in regula- tions. "(v) LIQUID ASSETS.—^The term liquid assets'
means cash, marketable securities and such other assets as specified by the Secretary in regulations.
"(vi) QUARTER.—^The term 'quarter* means, with respect to any required instaUment, the 3-month period preceding the month in which the due date for such installment occurs. "(F) REGULATIONS.—The Secretary may prescribe such
regulations as are necessary to carry out this paragraph." (B) EXCISE TAX ON UNPAID UQUIDITY SHORTFALL.—
26 use 4971. (i) Subsection (e) of section 4971 is amended by striking "(a) or (b)" wherever it appears and inserting "(a),(b),or(f)''.
(ii) Section 4971 is amended by redesignating sub- section (f) as subsection (g) and adding a new sub- section (f) to read as follows:
"(f) FAILURE TO PAY LIQUIDITY SHORTFALL.— "(1) IN GENERAL.—In the case of a plan to which section
412(m)(5) appUes, there is hereby imposed a tax of 10 percent of the excess (if any) of—
"(A) the amount of the Uquidity shortfall for any quar- ter, over
"(B) the amoimt of such shortfall which is paid by the required installment under section 412(m) for such
auarter (but only if such installment is paid on or beforetie due date for such installment). "(2) ADDITIONAL TAX.—If the plan has a Uquidity shortfaU
as of the close of any quarter and as of the close of each of tiie foUowing 4 quarters, there is hereby imposed a tax
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5021
equal to 100 percent of the amount on which tax was imposed by paragraph (1) for such first quarter.
"(3) DEFINITIONS AND SPECIAL RULE.— "(A) LIQUIDITY SHORTFALL; QUARTER.—For purposes of
this subsection, the terms liquidity shortfall' and 'quarter' have the respective meanings given such terms by section 412(m)(5).
"(B) SPECIAI:. RULE.—If the tax imposed by paragraph (2) is paid with respect to any liquidity shortfall for any quarter, no further tax shall be imposed by this subsection on such shortfall for such quarter."
(C) TREATMENT OF FAILURE TO MAKE CERTAIN PAY- MENTS IF PLAN HAS LIQUIDITY SHORTFALL.—Section 401(a) 26 use 40L is amended by adding at the end the following new para- graph: ^(32) TREATMENT OF FAILURE TO MAKE CERTAIN PAYMENTS
IF PLAN HAS LIQUIDITY SHORTFALL.— "(A) IN GENERAL.—^A trust forming part of a pension
plan to which section 412(m)(5) applies shall not be treated as failing to constitute a qualified trust under this section merely because such plan ceases to make any payment described in subparagraph (B) during any period tnat such plan has a Uquidity shortfall (as defined in section 412(m)(5)).
"(B) PAYMENTS DESCRIBED.—A payment is described in this subparagraph if such payment is—
"(i) any payment, in excess of the monthly amount paid under a single hfe annuity (plus any social secu- rity supplements described in me last sentence of sec- tion 411(a)(9)), to a participant or beneficiary whose annuity staxiins date (as defined in section 417(f)(2)) occurs during the period referred to in subparagraph (A),
"(ii) any payment for the purchase of an urevocable commitment fix)m an insurer to pay benefits, and
"(iii) any other payment specified by the Secretary by regulations. "(C) PERIOD OF SHORTFALL.—For purposes of this para-
graph, a plan has a liquidity shortfall diuing the period that there is an underpavment of an installment under section 412(m) by reason of paragraph (5XA) thereof" (10) AMENDMENT TO DEFINITION OF FULL-FUNDING
LIMITATION.— (A) Subparagraph (A) of section 412(c)(7) is amended
by inserting "(including the expected increase in current Habihty due to benefits accruing during the plan year)" after "current liability" in clause (i).
(B) Section 412(c)(7) is amended by adding at the end the following new subparagraph:
"(E) MINIMUM AMOUNT.— "(i) IN GENERAL.—In no event shall the fiill-fiinding
limitation determined under subparagraph (A) be less than the excess (if any) of—
"(I) 90 percent of the current liability of the
Elan (including the expected increase in currentability due to benefits accruing during the plan yesir), over
108 STAT. 5022 PUBLIC LAW 103-465—DEC. 8, 1994
"(II) the value of the plan's assets determined under paragraph (2). "(ii) CURRENT LIABILITY; ASSETS.—^For purposes of
clause (i)— "(I) the term 'current liability' has the meaning
given such term by subsection (1)(7) (without regard to subpsiragraph (D) thereof), and
"(II) assets shall not be reduced by any credit balance in the funding standard account."
26 use 412. (C) Subparagraph (B) of section 412(c)(7) is amended to read as follows:
"(B) CURRENT LIABILITY.—For purposes of subpara- graph (D) and subclause (I) of subparagraph (A)(i), the term 'current UabOity' has the meaning given such term by subsection (1)(7) (without regard to subparagraphs (C) and (D) thereof) and using the rate of interest used under subsection (b)(5)(B).'' (11) REFERENCE TO ACT.—Section 404(g)(4) is amended by
striking "the Single-Employer Pension Plan Amendments Act of IQSo' £ind inserting "the Retirement Protection Act of 1994".
26 u s e 401 note. (b) EFFECTIVE DATES.— (1) IN GENERAL.—^Except as provided in psiragraph (2), the
amendments made by this section shall apply to plan years beginning after December 31,1994.
(2) REFERENCE.—The amendment made by subsection (a)(ll) slmll take effect on the date of the enactment of this Act.
SEC. 752. LBDTATION ON CHANGES IN CURRENT LIABILITY ASSUMPTIONS.
(a) IN GENERAL.—Paragraph (5) of section 412(c) is amended— (1) by striking "If the funding method" and inserting the
following: "(A) IN GENERAL.—If the funding method", and
(2) by adding at the end the following new subparagraph: "(B) APPROVAL REQUIRED FOR CERTAIN CHANGES IN
ASSUMPTIONS BY CERTAIN SINGLE-EMPLOYER PLANS SUBJECT TO ADDITIONAL FUNDING REQUIREMENT.—
"(i) IN GENERAL.—No actuarial assumption (other than the assimiptions described in subsection (1)(7)(C)) used to determine the current UabiUty for a plan to which this subparagraph appUes may be changed with- out the approval of the Secretary.
"(ii) PLANS TO WHICH SUBPARAGRAPH APPLIES.— This subparagraph shsill apply to a plan only if—
(I) tne plan is a defined oenefit plan (other than a multiemployer plan) to which titie IV of the Employee Retirement Income Security Act of 1974 appUes;
"(II) the aggregate unfunded vested benefits as of the close of the preceding pljin year (as deter- mined under section 4006(a)(3)(E)(iii) of the Employee Retirement Income Security Act of 1974) of such plan and all other plans maintained by the contributing sponsors (as defined in section 4001(a)(13) of such Act) and members of such spon- sors' controlled groups (as defined in section
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5023
4001(a)(14) of such Act) which are covered by title IV of such Act (disregarding plans with no unfunded vested benefits) exceed $50,000,000; and
"(III) the change in assumptions (determined after taking into account any cnanges in interest rate and mortality table) results in a decrease in the unfunded current UabUity of the plan for the current plan year that exceeds $50,000,000, or that exceeds $5,000,000 and that is 5 percent or more of the current UabUity of the plan before such change."
(b) EFFECTIVE DATE,,— 26 use 412 note. (1) IN GENERA]..—^The amendment made by this section
shaU apply to changes in assiunptions for plan years beginning after October 28,1993.
(2) CERTAIN CH/\NGES CEASE TO BE EFFECTIVE.—In the case of changes in assumptions for plan years beginning after December 31, 1992, and on or before October 28, 1993, such changes shaU cease to be eftective for plan years beginning after December 31,1994, if—
(A) such change would have required the approval of the Secretary of the Treasury had such amendment appUed to such mange, and
(B) such change is not so approved. SEC. 763. ANTICIPATION OF BARGAINED BENEFIT INCREASES.
(a) IN GENERAL.—Section 412(c) is amended by adding at the 26 use 412. end the foUowing new paragraph:
"(12) AJJTICIPATION OF BENEFIT INCREASES EFFECTIVE IN THE FUTURE.—In determining projected benefits, the funding method of a coUectively bargained plan described in section 413(a) (other than a multiemployer plan) shaU anticipate bene- fit increases schediUed to take effect during the term of the coUective bargaining agreement appUcable to the plan." (b) EFFECTIVE DATE.—The amendment made by this section 26 use 412 note.
shall apply to plan years beginning after December 31, 1994, with respect to coUective bargaining agreements in effect on or after January 1, 1995. SEC. 754. MODIFICATION OF QUARTERLY CONTRIBUTION
REQUIREMENT.
(a) IN GENERAL.—Paragraph (1) of section 412(m) is amended— (1) by inserting V m c h has a funded cmrent liabiUty
percentage (as defined in subsection (1X8)) for the preceding plan year of less than 100 percent" before "fails", and
(2) by striking "any plan year" and inserting "the plan year". (b) EFFECTIVE DATE.—The amendment made by this section 26 use 412 note.
shall apply to plan years beginning after the date of enactment of this Act. SEC. 765. EXCEPTIONS TO EXCISE TAX ON NONDEDUCTIBLE
CONTRIBUTIONS.
(a) IN GENERAL.—Section 4972(c) is amended by adding at the end the foUowing new paragraph:
"(6) EXCEPTIONS.—In determining the amoimt of non- deductible contributions for any taxable year, there shaU not be taken into account—
108 STAT. 5024 PUBLIC LAW 103-465—DEC. 8, 1994
"(A) contributions that would be deductible under sec- tion 404(a)(1)(D) if the plan had more than 100 participants if—
"(i) the plan is covered under section 4021 of the Employee Retirement Income Security Act of 1974, and
"(ii) the plan is terminated under section 4041(b) of such Act on or before the last day of the taxable year, and "(B) contributions to 1 or more defined contribution
Elans which are not deductible when contributed solelvecause of section 404(a)(7), but only to the extent sucn contributions do not exceed 6 percent of compensation (within the meaning of section 404(a)) paid or accrued (during the taxable year for which the contributions were made) to beneficiaries under the plans.
If 1 or more defined benefit plans were taken into account in determining the amount allowable as a deduction under section 404 for contributions to any defined contribution plan, subparagraph (B) shall apply only if such defined benefit plans are described in section 404(a)(1)(D). For purposes of subpara-
f raph (B), the deductible limits under section 404(a)(7) shallrst be appHed to amounts contributed to a defined benefit plan and then to amounts described in subparagraph (B)."
26 use 4972 fb) EFFECTIVE DATE.— "°*®- (1) SECTION 4972(C)(6XA).—Section 4972(c)(6)(A) of the
Internal Revenue Code of 1986 (as added by this section) shall apply to taxable years ending on or after the date of enactment of tiiis Act.
(2) SECTION 4972(CX6XB).—Section 4972(c)(6)(B) of such Code (as added by this section) shall apply to taxable years ending on or after December 31, 1992.
Subpart B—^Amendments to the Employee Retirement Income Security Act of 1974
SEC. 761. MINIMUM FUNDING REQUIREMENTS. (a) AMENDMENTS TO ADDITIONAL FUNDING REQUIREMENTS FOR
SINGLE-EMPLOYER PLANS.— (1) LIMITATIONS ON ADDITIONAL FUNDING REQUIREMENT FOR
CERTAIN PLANS.— (A) IN GENERAL.—Paragraph (1) of section 302(d) of
the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1082(d)) is amended by striking "which has an unfunded current liabiUty" and inserting "to which this subsection applies under paragraph (9)".
(B) PLANS TO WHICH REQUIREMENT APPLIES.—Section 302(d) of such Act is amended by adding at the end the following new paragraph: "(9) APPLICABILITY OF SUBSECTION.—
"(A) IN GENERAL.—Except as provided in paragraph (6)(A), this subsection shall apply to a plan for any plan year if its funded current Uability percentage for such year is less than 90 percent
"(B) EXCEPTION FOR CERTAIN PLANS AT LEAST SO PER- CENT FUNDED.—Subparagraph (A) shall not apply to a plan for a plan year if—
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5025
"(i) the funded current liability percentage for the planyear is at least 80 percent, and
*Xii) such percentage for each of the 2 immediately preceding' plan years (or each of the 2d and 3d imme- diately preceding plan years) is at least 90 percent "(C) FLINDED CURRENT UABIUTY PERCENTAGE.—For
purposes of subparagraphs (A) and (B), the term funded ciurent liabiHty percentage' has the meaning given such term by paragrapn (8)(B), except that such percentage shall be determined for any plan year—
"(i) without regard to paragraph (8XE), and "(ii) by using the rate of interest which is the
highest rate allowable for the plan year under para- graph (7)(C). ID) TRANSITION RULES.—For purposes of this para-
graph: "(i) FUNDED PERCENTAGE FOR YEARS BEFORE 1995.—
The ^nded current liability percentage for any plan year beginning before JanuEuy 1, 1995, shall be treated as not less thsin 90 percent only if for such plan year the plan met one of the following requirements (as in effect for such year):
"(I) The full-funding hmitation under sub- section (c)(7) for the plan was zero.
"(II) The plan had no additional funding requirement under this subsection (or would have had no such requirement if its fimded cmrent liability percentage had been determined under subparagraph (C)).
"(Ill) The plan's additional funding require- ment under this subsection did not exceea the lesser of 0.5 percent of current liabiHty or $5,000,000. "(ii) SPECIAL RULE FOR 1995 AND 1996.—For piu*-
poses of determining whether subparagraph (B) applies to any plan year beginning in 1995 or 1996, a plan shall be treated as meeting the requirements of subparagraph (B)(ii) if the plan met the requirements of clause (i) of this subparagraph for any two of the plan years beginning in 1992, 1993, and 1994 (whether or not consecutive)."
(2) RELATIONSHIP OF ADDITIONAL FUNDING REQUIREMENT TO FUNDING STANDARD ACCOUNT CHARGES AND CREDITS.—
(A) Clause (ii) of section 302(d)(1)(A) of such Act is 29 use 1082. amended to read as follows:
"(ii) the sum of the chsu^es for such plan year under subsection (b)(2), reduced by the sum of the
a credits for such plan year under subparagraph (B) of subsection (b)(3), plus . (B) The last sentence in section 302(d)(1) of such Act
is amended to read as follows: "Such increase shall not exceed the amount which, after taking into accoimt charges (other than the additional charge under this subsection) and credits under subsection (b), is necessary to increase the funded current Hability percentage (taking into account the expected increase in current liability due to benefits accruing during tlie plan year) to 100 percent"
108 STAT. 5026 PUBLIC LAW 103-465—DEC. 8, 1994
(3) AMENDMENT TO DEFICIT REDUCTION CONTRIBUTION.— 29 use 1082. Paragraph (2) of section 302(d) of such Act is amended—
(A) by striking "plus" at the end of subparagraph (A); (B) by striking tne period at the end of subparagraph
(B) and inserting ", plus"; and (C) by adding at the end the following new subpara-
graph: "(C) the expected increase in current Habihty due to
benefits accruing during the plan year." (4) INCREASE IN CURRENT LIABIUTY DUE TO CHANGE IN
REQUIRED ASSUMPTIONS.— (A) Paragraph (3) of section 302(d) of such Act is
amended by adding at the end the following new subparagraphs:
"(D) SPECIAL RULE FOR REQUIRED CHANGES IN ACTUAR- IAL ASSUMPTIONS.—
"(i) IN GENERAL.—The unfunded old Uability Eunount with respect to any plan for any plan year shall be increaseci by the amount necessary to amortize the amount of additional unfunded old liability under the plan in equal annual installments over a period of 12 plan years (beginning with the first plan year beginning after December 31, 1994).
"(ii) ADDITIONAL UNFUNDED OLD LIABILITY.—For purposes of clause (i), the term 'additional unfunded old liabihty' means the amotmt (if any) by which—
"(I) the current habihty of the plan as of the beginning of the first plan year beginning after December 31, 1994, valued using the assumptions required by paragraph (7)(C) as in effect for plan years beginmng after December 31, 1994, exceeds
"(II) the current habihty of the plan as of the beginning of such firet plan year, valued using the same assumptions used under subclause (1) (other than the assumptions required by para- graph (7)(C)), usinjg the prior interest rate, and using such mortality assumptions as were used to determine current habihty for the first plan year beginning after December 31, 1992. (iii) PRIOR INTEREST RATE.—For purposes of clause
(ii), the term *prior interest rate' means the rate of interest that is the same percentage of the weighted average under subsection (b)(5)(B)Tii)(I) for the first plan year beginning after December 31, 1994, as the rate of interest used by the plan to determine current habihty for the first plan year beginning after Decem- ber 31, 1992, is of me weighted average under sub- section (b)(5)(B)(u)(I) for such first plan year beginning after December 31,1992. "(E) OPTIONAL RULE FOR ADDITIONAL UNFUNDED OLD
LIABILITY.— "(i) IN GENERAL.—If an employer makes an election
under clause (u), the additional unfunded old habihty for purposes of subparagraph (D) shall be the amount (if any) Dy which—
"(I) the unfunded current habihty of the plan as of the beginning of the first plan year beginning
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5027
after December 31, 1994, valued using the assump- tions required by paragraph (7XC) as in efifect for plan years beginning after December 31, 1994, exceeds
"(II) the unamortized portion of the unftmded old Uabihty under the plan as of the beginning of tlie first plan year beginning after December 31,1994. "(ii) ELECTION.—
"(I) An employer may irrevocably elect to apply the provisions of this subparagraph as of the begin- ning of the first plan yesir beginning after Decem- ber 31,1994.
"(II) If an election is made under this clause, the increase imder paragraph (1) for any plan year beginning after December 31, 1994, and before January 1, 2002, to which this subsection appHes (without regard to this subclause) shall not be less than the increase that would be required under paragraph (1) if the provisions of this title as in effect for the last plan year begin- ning before January 1, 1995, had remained in effect."
(B) Clause (i) of section 302(d)(4)(B) of such Act is 29 USC 1082. amended by inserting ", the unamortized portion of the additional unftmded old liabihty," after "old HabOity". (5) APPLICABLE PERCÊ fTAGE FOR DETERMINING UNFUNDED
NEW LIABILITY AMOUNT.—Subparagraph (C) of section 302(d)(4) of such Act is amended—
(A) by sitriking ".25" and inserting ".40", and (B) by striking "35" and inserting "60".
(6) UNPREDICTABLE CONTINGENT EVENT AMOUNT.— (A) Subparagraph (A) of section 302(dX5) of such Act
is amended— (i) by striking "greater o r and inserting "greatest
of beiFore clause (i); (ii) by striking "or" at the end of clause (i); (iii) Dy striking the period at the end of clause
(ii) and Inserting ", or"; ana (iv) by adding after clause (ii) the following new
clause: "(iii) the additional amount that would be deter-
mined imder paragraph (4)(A) if the unpredictable contingent event benefit liabilities were included in unftinded new liability notwithstanding paragraph (4)(BXii)." (B) Paragraph (5) of section 302(d) of such Act is
amended by adding at the end the following new subparagrapn:
"(E) LIMITATION.—The present value of the amounts described in subparagraph (A) with respect to any one event shall not exceed the unpredictable contingent event benefit Uabijlities attributable to tiiat event"
(C) Clause (ii) of section 302(eX4XD) of such Act is amended—
(i) by striking "greater of and inserting "greatest of before subclause (I);
108 STAT. 5028 PUBLIC LAW 103-465—DEC. 8, 1994
(ii) by striking "or^ at the end of subclause (I); (iii) by striking tiie period at the end of subclause
(II) and inserting ", or"; and (iv) by adding after subclause (II) the following
new clause: "(III) 25 percent of the amount determined
under subsection (d)(5)(A)(iii) for the plan year." (7) REQUIRED INTEREST RATE AND MORTAUTY ASSUMPTIONS
FOR DETERMINING CURRENT LIABILITY.— (A) IN GENERAL.—Subparagraph (C) of section 302(d)(7)
29 use 1082. of such Act is amended to read as foUows: "(C) INTEREST RATE AND MORTALITY ASSUMPTIONS
Effective date. USED.—Effective for plan years beginning after December 31,1994—
"(i) INTEREST RATE.— "(I) IN GENERAL.—The rate of interest used
to determine current UabiHty \mder this subsection shall be the rate of interest used under subsection (b)(5), except that the highest rate in the permis- sible range under subparagraph (B)(ii) thereof shall not exceed the specified percentage under subclause (II) of the weighted average referred to in such subparagraph.
"(II) SPECIFIED PERCENTAGE.—For purposes of subclause (I), the specified percentage shall be determined as follows:
"In the case of plan years beginning The specified in calendar year: percentage is:
1995 109 1996 108 1997 107 1998 106 1999 and thereafter 106.
"(ii) MORTALITY TABLES.— "(I) COMMISSIONERS' STANDARD TABLE.—^In the
case of plan years beginning before the first plan year to which the fS«t tables prescribed under subclause (II) apply, the mortality table used in determining current liability under this subsection shall be the table prescribed by the Secretsuy of the Treasury which is based on the prevailing commissioners' standard table (described in section 807(d)(5XA) of the Internal Revenue Code of 1986) used to determine reserves for group annuity con- tracts issued on January 1, 1993.
"(II) SECRETARIAL AUTHORITY.—The Secretary of the Treasury may by regulation prescribe for plan years beginning after December 31, 1999, mortality tables to be used in determining current liabihty under this subsection. Such tables shall be based upon the actual experience of pension plans and projected trends in such experience. In prescribing such tables, the Secretary of the Treas- ury shall take into account results of available independent studies of mortality of individuals cov- ered by pension plans.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5029
"(III) PERIODIC REVIEW.—The Secretary of the Regulations. Treasury shall periodically (at least every 5 years) review any tables ia effect under this subsection and shall, to the extent the Secretary determines necessary, by regulation update the tables to reflect the actual experience of pension plans and projected trends in such experience, "(iii) SEPARATE MORTALITY TABLES FOR THE DIS-
ABLED.—Notwithstanding clause (ii)— "(I) IN GENERAL.—In the case of plan years
beginning after December 31, 1995, the Secretary of the Treasury shall establish mortaUty tables which may be used (in Ueu of the tables under clause (ii)) to determine current liability under this subsection for individuals who are entitled to benefits under the plan on accoimt of disability. Such Secretary shall estabhsh separate tables for individuals whose disabihties occur in plan years beginning before January 1, 1995, and for individ- uals whose disabihties occur in plan years begin- ning on or after such date.
"(II) SPECIAL RULE FOR DISABILITIES OCCUR- RING AFTER 1994.—In the case of disabihties occur- ring in plan years beginning after December 31, 1994, the tables under subclause (I) shall apply only with respect to individuals described in such subclause who are disabled within the meaning of title II of the Social Security Act and the regula- tions thereunder.
"(Ill) PLAN YEARS BEGINNING IN 1995.—In the case of any plan year beginning in 1995, a plsin may use its own mortahty assumptions for individ- uals who are entitled to benefits under the plan on account of disabihty."
(B) AMORTIZATION OF UNFUNDED MORTALITY INCREASE AMOUNT.—
(i) IN GENERAL.—Paragraph (2) of section 302(d) of such Act, as amended by paragraph (3), is amended 29 use 1082. by striking "plus" at the end of subparagraph (B), by striking the period at the end of subparagraph (C) and inserting ", and", and by adding at the end the following new subparagraph: "(D) the aggregate of the uniunded mortahty increase
amounts." (ii) UNFUNDED MORTALITY INCREASE AMOUNT.—
Section 302(d) of such Act, as amended by paragraph (1), is amended by adding at the end the following new paragraph:
"(10) UNFUNDED MORTALITY INCREASE AMOUNT.— "(A) IN GENERAL.—^The imfimded mortality increase
amount with respect to each unfunded mortahty increase is the amount necessary to amortize such increase in equal annual installments over a period of 10 plan years (begin- ning with the first plan year for which a plan uses any new mortahty table issued under paragraph (7)(C)(ii)(n) or (III)).
108 STAT. 5030 PUBLIC LAW 103-465—DEC. 8, 1994
"(B) UNFUNDED MORTALITY INCREASE.—For purposes of subparagraph (A), the term Sinfiinded mortaUty increase' means an amount equal to the excess of—
**(i) the current UabiUty of the plan for the first plan year for which a plan uses any new mortality table issued under paragraph (7)(C)(ii)(II) or (III), over
**(ii) the current habihty of the plan for such plan year which would have been determined if the mortal- ity table in effect for the preceding plan year had been used."
(iii) CONFORMING AMENDMENT.—Clause (i) of sec- tion 302(d)(4)(B) of such Act, as amended by paragraph (4)(B), is amended by inserting "the unamortized por- tion of each unfunded mortaUty increase," after "addi- tional imfunded old Hability,".
(8) TRANSITION RULE.—Section 302(d) of such Act, as amended by paragraph (7), is amended by adding at the end the following new paragraph:
"(11) PHASE-IN OF INCREASES IN FUNDING REQUIRED BY R E T I R E M E N T P R O T E C T I O N A C T O F 1994.—
"(A) IN GENERAL.—For any apphcable plan year, at the election of the employer, the increase under paragraph (1) shall not exceed the greater of—
"(i) the increase that would be required under paragraph (1) if the provisions of this titie as in effect for plan years beginning before January 1, 1995, had remained in effect, or
"(ii) the amoimt which, after taking into account charges (other than the additional charge under this subsection) and credits under subsection (b), is nec- essary to increase the funded current liabiHty percent- age (taking into account the expected increase in current UabiUty due to benefits accruing during the plan year) for the appUcable plan year to a percent- age equal to the sum of the initial funded ciurent UabiUty percentage of the plan plus the appUcable niunber of percentage points for such appUcable plan year. "(B) APPUCABLE NUMBER OF PERCENTAGE POINTS.—
"(i) INITIAL FUNDED CURRENT LIABILITY PERCENT- AGE OF 75 PERCENT OR LESS.—Except as provided in clause (u), for plans with an initial fiinded current UabiUty percentage of 75 percent or less, the appUcable number of percentage points for the appUcable plan year is:
"In the case The applicable of applicable number of
Elan years percentage eginning in: points is:
1995 3 1996 6 1997 9 1998 12 1999 15 2000 19 2001 24. "(ii) OTHER CASES.—In the case of a plan to which
this clause appUes, the appUcable number of percent-
'••^iritl* t-
PUBLIC LAW 103-465—DEC. 8,1994 108 STAT. 5031
age points for any such applicable plan year is the sum of—
"(I) 2 percentage points; "(II) the apphcable number of percentage
points (if any) under this clause for the preceding apphcable plan year,
"(III) the product of .10 multiplied by the excess (if any) of (a) 85 percentage points over (b) the sum of the initial funded current liabihty percentage and the number determined under subclause (II);
"(IV) for apphcable plan years beginning in 2000,1 percentage point; and
"(V) for apphcable plan years beginning in 2001, 2 percentage points, "(iii) P L A N S TO WHICH CLAUSE (ii) APPLIES.—
"(I) IN GENERAL.—Clause (ii) shall apply to a plan for an apphcable plan year if the initial funded current liability percentage of such plan is more than 75 percent
"(II) PLANS INITLIVLLY UNDER CLAUSE (i).—In the case of a plan which (but for this subclause) has an initial funded current habihty percentage of 75 percent or less, clause (ii) (and not clause (i)) shall apply to such plan with respect to apphcable plan years beginning after the first apphcable plan yesir for which the sum of the initial funded ciurent habUity percentage and the apphcable number of percentage points (deter- mined under clause (i)) exceeds 75 percent For purposes of applying clause (ii) to such a plan, the initial funded current liability percentage of such plan shall be treated as being the sum referred to in the preceding sentence.
"(C) DEFINITIONS.—^For purposes of this paragraph— "(i) The term 'applicable plstn year* means a plEui
year beginning after December 31, 1994, and before January 1, 2002.
"(ii) The term Initial funded current liabihty percentage' means the funded current habihty percent- age as of the first day of the first plan year beginning after December 31,1994."
(9) LIQUIDITY REQUIREMENT.— (A) IN GENERAL.—Section 302(e) of such Act is amended 29 use 1082.
by redesignating paragraph (5) as paragraph (6) and by inserting after paragraph (4) the following new paragraph: "(5) LIQUIDITY REQUIREMENT.—
"(A) IN GENERAL.—A plan to which this paragraph apphes shall be treated as failing to pay the fml amount of any required installment to the extent that the value of the liquid assets paid in such installment is less than the hquidity shortfall (whether or not such hquidity short- fall exceeds the amoimt of such installment required to be paid but for this peiragraph).
"(B) PLANS TO WHICH PARAGRAPH APPUES.—^This para- graph shall apply to a defined benefit plan (other th£ui
108 STAT. 5032 PUBLIC LAW 103-465—DEC. 8, 1994
a multiemployer plan or a plan described in subsection (d)(6)(A)) which—
"(i) is required to pay installments under this sub- section for a plan year, and
"(ii) has a liquidity shortfall for any quarter during such plan year. "(C) PERIOD OF UNDERPAYMENT.—For purposes of para-
graph (1), any portion of an installment that is treated as not paid uncier subpsiragraph (A) shall continue to be treated as unpaid until the close of the quarter in which the due date for such installment occurs.
"(D) LIMITATION ON INCREASE.—If the amount of any required installment is increased by reason of subpara- graph (A), in no event shall such increase exceed the amount which, when added to prior installments for the plan year, is necessary to increase the funded current liabUity percentage (taking into account the expected increase in cturent Uability due to benefits accruing during the plan year) to 100 percent.
"(E) DEFINITIONS.—For purposes of this paragraph— "(i) LIQUIDITY SHORTFALL.—The term 'Uquiditjr
shortfall' means, with respect to any required install- ment, an amount equal to the excess (as of the last day of the quarter for which such installment is made) of the base amoimt with respect to such quarter over the value (as of such last day) of the plan's liquid assets.
"(ii) BASE AMOUNT.— "(I) IN GENERAL.—The term *base amoimt'
means, with respect to any quarter, an amount equal to 3 times the sum of the adjusted disburse- ments from the plan for the 12 months ending on the last day of such quarter.
"(II) SPECIAL RULE.—If the amount determined imder clause (i) exceeds an amoimt equal to 2 times the sum of the adjusted disbursements from the plan for the 36 months ending on the last day of the quarter and an enrolled actuary certifies to the satisfaction of tlie Secretary of the Treasury that such excess is the result of nonrecurring cir- cumstances, the bEise amount with respect to such quarter shall be determined without regard to amounts related to those nonrecurring cir- cumstances. "(iii) DISBURSEMENTS FROM THE PLAN.—The term
'disbursements from the plan' means all disbursements from the trust, including purchases of annuities, pay- ments of single sums and other benefits, and adminis- trative expenses.
"(iv) ADJUSTED DISBURSEMENTS.—The term 'adjusted disbursements' means disbursements from the plan reduced by the product of—
"(I) the plan's funded current UabiUty percent- age (as defined in subsection (d)(8)) for me plan year, and
"(II) the sum of the purchases of annuities, payments of single sums, and such other disburse-
- i S ^ > ? " /
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5033
ments as the Secretary of the Treasury shall pro- vide in regulations. "(v) LIQUID ASSETS.—The term liquid assets'
means cash, marketable securities and such other assets as specified by the Secretary of the Treasury in regulations.
•^vi) QUARTER.—^The term 'qusirter' means, with respect to any required installment, the 3-month period preceding the month in which the due date for such installment occurs. "(F) REGULATIONS.—The Secretary of the Treasury may
prescribe such regulations as are necessary to carry out this paragraph."
(B) LIMITATION ON DISTRIBUTIONS OTHER THAN U F E ANNUITIES PAID BY THE PLAN.—
(i) Section 206 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1056) is amended by adding at the end the following new subsection:
"(e) LIMITATION ON DISTRIBUTIONS OTHER THAN LIFE ANNUITIES PAID BY THE PLAN.—
"(1) IN GENERAL.—Notwithstanding any other provision of this part, the fiduciary of a pension plan that is subject to the additional fiinding requirements of section 302(d) shall not permit a prohibited payment to be made fix)m a plan during a period in which such plan has a Hquidity shortfall (as defined in section 302(6)(5)).
"(2) PROHIBITED PAYMENT.—For purposes of paragraph (1), the term prohibited payment' means—
"(A) any payment, in excess of the monthly amount paid under a single Hfe annuity (plus any social security supplements described in the last sentence of section 204(b)(1)(G)), to a participsint or beneficiary whose annuity starting date (as defined in section 205(h)(2)), that occurs during the period referred to in paragraph (1),
"(B) any payment for the purcnase of an irrevocable commitment from an insurer to pay benefits, and
"(C) any other payment specified by the Secretary of the Treasury by regulations. "(3) PERIOD OF SHORTFALL.—For purposes of this sub-
section, a plan has a hquidity shortfall during the period that there is an underpayment of an installment under section 302(e) by reason of paragraph (5)(A) thereof
"(4) COORDINATION WITII OTHER PROVISIONS.—CompUance with this subsection shall not constitute a violation of any other provision of this Act"
(ii) Section 502 of such Act is amended by adding 29 use 1132. at the end a new subsection (m) to read as follows:
"(m) In the case of a distribution to a pension plan participant or beneficiary in violation of section 206(e) by a plan fiduciary, the Secretary shall assess a penalty against such fiduciary in an amount equal to the value oi the distribution. Such penalty shall not exceed $10,000 for each such distribution."
(10) AMENDMENT TO DEFINITION OF FULL-FUNDING UMITATION.—
(A) Subparagraph (A) of section 302(c)(7) of such Act 29 USC 1082. is amended oy inserting "(including the expected increase
108 STAT. 5034 PUBLIC LAW 103-465—DEC. 8, 1994
in current liability due to benefits accruing during the plan year)" after "current liability^ in clause (i).
29 use 1082. (B) Section 302(cX7) of such Act is amended by adding at the end the following new subparagraph:
*(E) MINIMUM AMOUNT.— "(i) IN GENERAL.—In no event shall the full-funding
limitation determined under subparagraph (A) be less than the excess (if any) of—
"(I) 90 percent of the current liability of the
Elan (including the expected increase in currentability due to benefits accruing during the plan year), over
"(II) the value of the plan's assets determined under paragraph (2). "(ii) CURRENT LIABIUTY; ASSETS.—For purposes of
clause (i)— "(I) the term 'current liability' has the meaning
given such term by subsection (d)(7) (without regard to subparagraph (D) thereof), and
"(II) assets shall not be reduced by any credit balance in the fiinding standard accoimt."
(C) Subparagraph (B) of section 302(c)(7) of such Act is amended to read as follows:
"(B) CURRENT LIABILITY.—For purposes of subpara- graph (D) and subclause (I) of subparagraph (A)(i), the term 'current Uabili^ has the meaning given such term by subsection (d)(7) (without regard to subparagraphs (C) and (D) thereof) and using the rate of interest used under subsection (b)(5XB).'' (11) DEFINITION OF CONTRIBUTING SPONSOR.—Paragraph
(13) of section 4001(a) ô ' such Act (29 U.S.C. 1301(a)(13)) is amended by striking "means a person—" and aU that follows £Uid inserting "means a person described in section 302(c)(ll)(A) of this Act (without regard to section 302(c)(ll)(B) of this Act) or section 412(c)(ll)(A) of the Internal Revenue Code of 1986 (without regard to section 412(cXllXB) of such Code)."
29 use 1056 (b) EFFECTIVE DATES.— note. (1) IN GENERAL.—Except as provided in paragraph (2), the
amendments made by this section shall apply to plan yesirs beginning afi:er December 31,1994.
(2) CONTRIBUTING SPONSOR.—The amendment made by subsection (aXll) shall be effective as if included in the Pension Protection Act̂
SEC. 762. UMTTATION ON CHANGES IN CURRENT LIABILITY ASSUMPTIONS.
(a) IN GENERAL.—Paragraph (5) of section 302(c) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1082(c)(5)) is amended—
(1) by striking "If the fiinding method" and inserting the following:
"(A) IN GENERAL.—Ifthe fiinding method", and (2) by adding at the end the following new subparagraph:
"(B) APPROVAL REQUIRED FOR CERTAIN CHANGES IN ASSUMPTIONS BY CERTAIN SINGLE-EMPLOYER PLANS SUBJECT TO ADDITIONAL FUNDING REQUIREMENT.—
-'*^-/.-->r T4f^^j^:^^ , - • , % . - - >
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5035
**(i) IN GENERAL.—^No actuarial assumption (other than tlie assumptions described in subsection (d)(7)(C)) used to determine the current liability for a plan to which this subparagraph applies may be changed with- out the approval of the Secretary of the Treasury.
"(ii) PLAJÎ S TO WHICH SUBPARAGRAPH APPLIES.— This subparagraph shall apply to a plan only if—
"(I) the plan is a defined benefit plan (other than a multiemployer plan) to which title IV appUes;
"(II) the aggregate unfunded vested benefits as of the close of the preceding plan year (sis deter- mined under section 4006(a)(3)(E)(iii)) of such plan and all other plans maintained by the contributing sponsors (as defined in section 4001(a)(13)) and members of such sponsors' controlled groups (as defined in section 4001(a)(14)) which are covered by titie rV (disregarding plans with no unfunded vested benefits) exceed $50,000,000; and
"(III) the change in assumptions (determined after taking into account any changes in interest rate and mortality table) results in a decrease in the unfunded current HabiHty of the plan for the current plan year that exceeds $50,000,000, or that (jxceeds $5,000,000 and that is 5 percent or more of the current Uability of the plan before such change."
(b) EFFECTIVE DATE.— 29 use io82 (1) IN GENERAL.—^The amendment made by this section ^°^-
shall apply to changes in assimiptions for plan years beginning after October 28, 1993.
(2) CERTAIN CHÂ JGES CEASE TO BE EFFECTIVE.—In the case of changes in assumptions for plan years beginning afl^r December 31, 1992, and on or before October 28, 1993, such changes shall cease to be effective for plan years beginning after December 31,1994, if—
(A) such change would have required the approval of the Secretary of the Treasury had such amendment applied to such change, and
(B) such change is not so approved.
SEC. 763. ANTICIPATION OF BARGAINED BENEFIT INCREASES.
(a) IN GENERAL.—Section 302(c) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1082(c)) is amended by adding at the end the following new paragraph:
"(12) ANTICIPATION OF BENEFIT INCREASES EFFECTIVE IN THE FUTURE.—In determining projected benefits, the fiinding method of a collectively bargained plan described in section 413(a) of the Internal Revenue Code of 1986 (otiier than a multiemployer plan) shall anticipate benefit increases sched- uled to take effect during the term of the collective bargaining agreement appHcable to the plan." (b) EFFECTIVE DATE,—The amendment made by this section 29 use 1082
shall apply to plan years beginning after December 31, 1994 with "°^- respect to collective bargaining agreements in effect on or after January 1, 1995.
108 STAT. 5036 PUBLIC LAW 103-465—DEC. 8, 1994
SEC. 764. MODIFICATION OF QUARTE31LY CONTRIBUTION REQUIREMENT.
(a) IN GENERAL.—Paragraph (1) of section 302(e) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1082(e)) is amended—
(1) by inserting Vhich has a funded current liability percentage (as defined in subsection (d)(8)) for the preceding plan year of less than 100 percent" before ^ails", and
(2) by striking "any plan year^ and inserting "the plan year".
29 use 1082 (b) EFFECTIVE DATE.—The amendment made by this section "°*®- shall apply to plan years beginning after the date of enactment
of this Act.
Subpart C—Other Funding Provisions SEC. 766. PROHIBITION ON BENEFIT INCREASES WHERE PLAN SPON-
SOR IS IN BANKRUPTCY.
(a) AMENDMENT TO THE EMPLOYEE RETIREMENT INCOME SECU- RITY ACT OF 1974.—Section 204 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1054) is amended by redesignating subsection (i) as (j) and inserting after subsection (h) the following new subsection:
"(i)(l) In the case of a plan described in paragraph (3) which is maintained by an employer that is a debtor in a case under titie 11, United States Code, or similar Federal or State law, no amendment of the plan which increases the UabiUties of the plan by reason of—
"(A) any iacrease in benefits, "(B) any change in the accrual of benefits, or "(C) any change in the rate at which benefits become non-
forfeitable imder the plan, with respect to employees of the debtor, shaU be effective prior to the effective date of such employer's plan of reorganization.
"(2) Paragraph (1) shall not apply to any plan amendment that—
"(A) the Secretary of the Treasury determines to be reason- able and that proviaes for only de minimis increases in the liabOities of the plan with respect to employees of the debtor,
"(B) only repeals an amendment described in section 302(c)(8),
"(C) is required as a condition of qualification under part I of subchapter D of chapter 1 of the Internal Revenue Code of 1986, or
"(D) was adopted prior to, or pursuant to a collective bargsiining agreement entered into prior to, the date on which the employer became a debtor in a case under titie 11, United States Code, or similar Federal or State law. "(3) This subsection shall apply only to plans (other than midti-
employer plans) covered under section 4021 of this Act for which the funded current UabiUty percentage (within the meaning of sec- tion 302(d)(8) of this Act) is less than 100 percent after taking into account the effect of the amendment.
"(4) For purposes of this subsection, the term 'employer' has the meaning set fortii in section 302(cXll)(A), without regard to section 302(c)(ll)(B)."
---s^^i^-^-
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5037
(b) AMENDMENT TO INTERNAL REVENUE CODE OF 1986.—Section 401(a), as amended by section 751 of tiiis Act, is further amended by adding at the end the following new paragraph:
"(33) PROHIBITION ON BENEFIT INCREASES WHILE SPONSOR IS IN BANKRUPTCY.—
"(A) IN GENERAL.—^A trust which is part of a plan to which this paragraph appUes shall not constitute a quah- fied trust under this section if an amendment to such plan is adopted while the employer is a debtor in a case under titie 11, United States Code, or similar Federal or State law, if such amendment increases liabilities of the plan by reason of—
"(i) any increase in benefits, "(ii) any change in the accrual of benefits, or **(iii) any change in tiie rate at which benefits
become nonforfeitable imder the plan, with respect to employees of the debtor, and such amend- ment is effective prior to the effective date of such employ- er's plan of reorgEuoization.
"(B) EXCEPTIONS.—This paragraph shall not apply to any plan amendment if—
"(i) the plan, were such amendment to tsike effect, would have a funded ciurent UabiUty percentage (as defined in section 412(1)(8)) of 100 percent or more,
"(ii) the Secretary determines that such amend- ment is reasonable and provides for only de minimis increases in the UabiUties of the plan with respect to employees of the debtor,
"(iii) such smiendment only repeals an amendment described in subsection 412(c)(8), or
"(iv) such amendment is required as a condition of qualification under this pa r t "(C) PLANS TO WHICH THIS PARAGRAPH APPLIES.—This
paragraph shall apply only to plans (other than multiem- ployer plans) covered under section 4021 of the Employee Retirement Income Security Act of 1974.
"(D) EMPLOYER.—For purposes of this paragraph, the term 'employer' means the employer referred to in section 412(c)(ll) (without regard to subparagraph (B) thereof)."
(c) EFFECTIVE DATE OF PLAN AMENDMENT.--Section 4022 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1322) is amended by inserting at the end the following new sub- section:
"(f) For purposes of this section, the effective date of a plan amendment described in section 204(i)(l) shall be the effective date of the plan of reorganization of the employer described in section 204(i)(l) or, if later, the effective date stated in such amend- ment"
(d) EFFECTIVE DATE.—The amendments made by this section 26 use 40i note. shall apply to plan amendments adopted on or after the date of enactment of tiiis Act
SEC. 767. SINGLE SUM DISTRIBUTIONS.
(a) AMENDMENTS TO INTERNAL REVENUE CODE OF 1986 RELAT- ING TO MINIMUM BENEFITS.—
108 STAT. 5038 PUBLIC LAW 103-465—DEC. 8, 1994
(1) DETERMINATION OF PRESENT VALUE FOR PURPOSES OF RESTRICTIONS ON MANDATORY DISTRIBUTIONS.—Subparagraph (B) of section 411(a)(ll) is amended to read as follows:
"(B) DETERMINATION OF PRESENT VALUE.—For purposes of subparagraph (A), the present value shall be calculated in accordance with section 417(6X3)." (2) DETERMINATION OF PRESENT VALUE FOR PURPOSES OF
26 use 417. RESTRICTIONS ON CASH-OUTS.—Paragraph (3) of section 417(e) is amended to read as follows:
"(3) DETERMINATION OF PRESENT VALUE.— "(A) IN GENERAL.—
"(i) PRESENT VALUE.—Except as provided in subparagraph (B), for purposes of paragraphs (1) and (2), the present value shall not be less than the present vsJue calculated by using the appUcable mortahty table and the appUcable interest rate.
"(ii) DEFINITIONS.—For piuposes of clause (i)— "(I) APPLICABLE MORTALITY TABLE.—The term
'appUcable mortaUty table' means the table pre- scribed by the Secretary. Such table shaU be based on the prevaiUng commissioners' standard table (described in section 807(d)(5)(A)) used to deter- mine reserves for group annuity contracts issued on the date as of which present value is being determined (without regard to any other subpara- graph of section 807(d)(5)).
"(II) APPLICABLE INTEREST RATE.—The term 'appUcable interest rate' means the annual rate of interest on 30-year Treasury securities for the month before the date of distribution or such other time as the Secretary may by regulations pre- scribe.
"(B) EXCEPTION.—In the case of a distribution from a plan that was adopted and in effect before the date of the enactment of the Retirement Protection Act of 1994, the present value of any distribution made before the ear- Uer of—
"(i) the later of the date a plan amendment apply- ing subparagraph (A) is adopted or made effective, or
"(ii) the first day of the first plan year beginning after December 31, 1999,
shaU be calculated, for purposes of paragraphs (1) and (2), using the interest rate aetermined under the regula- tions of the Pension Benefit Gusiranty Corporation for determining the present value of a lump simi distribution on plan termination that were in effect on September 1, 1993, and using the provisions of the plan as in effect on the day beiore such date of enactment; but only if such provisions of the plan met the requirements of section 417(eX3) as in effect on the day before such date of enact- ment."
(b) AMENDMENTS TO INTERNAL REVENUE CODE OF 1986 RELAT- ING TO MAXIMUM BENEFITS.—Subparagraph (E) of section 415(bX2) is amended—
(1) by redesignating clauses (ii) and (iii) as clauses (iii) and (iv), respectively,
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5039
(2) by striking clause (i) and inserting the following new clauses:
"(i) Except as provided in clause (ii), for purposes of adjusting any benefit or limitation under subpara- graph (B) or (C), the interest rate assumption shall not be less than the greater of 5 percent or the rate specified in tlie plan.
"(ii) For purposes of adjusting the benefit or limita- tion of any form of benefit subject to section 417(e)(3), the applicable interest rate (as defined in section 417(e)(3)) shall be substituted for '5 percent* in clause (i).", and
(3) by adding at the end the following new clause: "(v) For pu]-poses of adjusting any benefit or limita-
tion under subparagraph (B), (C), or (D), the mortsdity table used shall be the table prescribed by the Sec- retary. Such table shall be based on the prevailing commissioners' standsird table (described in section 807(d)(5)(A)) used to determine reserves for group annuity contracts issued on the date the adjustment is being made (without regard to any other subp£u^- graph of section 807(d)(5)).''
(c) AMENDMENTS TO EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974.—
(1) DETERMINATION OF PRESENT VALUE FOR PURPOSES OF RESTRICTIONS ON MANDATORY DISTRIBUTIONS.—Section 203(e)(2) of the Employee Retiresment Income Security Act of 1974 (29 U.S.C. 1053(e)(2)) is amended to read as follows:
"(2) For purposes of paragraph (1), the present value shall be calculated in accordance with section 205(g)(3).''
(2) DETERMINATION OF PRESENT VALUE FOR PURPOSES OF RESTRICTIONS ON CASH-OUTS.—Section 205(g)(3) of such Act (29 U.S.C. 1055(g)(3)) is amended to read as follows:
"(3) DETERMINATION OF PRESENT VALUE.— "(A) IN GENERAL.—
"(i) PRESENT VALUE.—Except as provided in subparagraph (B), for purposes of paragraphs (1) and (2), the present value shall not be less than the present value calculated by using the applicable mortality table and the applicable interest rate.
"(ii) DEFINITIONS.—For purposes of clause (i)— "(I) APPLICABLE MORTALITY TABLE.—The term
'applicable mortality table' means the table pre- scribed by the Secretary of the Treasury. Such table shall be based on the prevaiUng commis- sioners' standard table (described in section 807(d)(5)(A) of tlie Internal Revenue Code of 1986) used to determine reserves for group annuity con- tracts issued on the date as of wnich present value is being determined (without regard to any other subparagraph of section 807(d)(5) of such Code).
"(II) APPLICABLE INTEREST RATE.—The term 'appUcable interest rate' means the annual rate of interest on 30-year Treasury securities for the month before the date of distribution or such other time as the Secretary of the Treasury may by regulations prescribe.
108 STAT. 5040 PUBLIC LAW 103-465—DEC. 8, 1994
"(B) EXCEPTION.—^In the case of a distribution from a plan that was adopted and in effect prior to the date of the enactment of the Retirement Protection Act of 1994, the present value of any distribution made before the ear- Uer of—
**(i) the later of when a plan amendment applying subparagraph (A) is adopted or made effective, or
"(ii) the first day of the first plan year beginning after December 31, 1999,
shall be calculated, for purposes of paragraphs (1) and (2), using the interest rate determined under the regula- tions of the Pension Benefit Guaranty Corporation for determining the present value of a lump sum distribution on plan termination that were in effect on September 1, 1993, and using the provisions of the plan as in effect on tne day before such date of enactment; but only if such provisions of the plan met the requirements of section 205(gX3) as in effect on the day before such date of enactment."
26 u s e 411 note. (d) EFFECTIVE DATE.— (1) IN GENERAL.—The amendments made by this section
shall apply to plan years and limitation years beginning after December 31, 1994; except that an employer may elect to treat the amendments made Tby this section as being effective on or after the date of the enactment of this Act.
(2) No REDUCTION IN ACCRUED BENEFITS.—A participant's accrued benefit shaU not be considered to be reduced in viola- tion of section 411(d)(6) of the Internal Revenue Code of 1986 or section 204(g) of the Employee Retirement Income Security Act of 1974 merely because (A) the benefit is determined in accordance with section 417(e)(3)(A) of such Code, as amended by this Act, or section 205(g)(3) of the Employee Retirement Income Security Act of 1974, as amended by this Act, or (B) the plan appUes section 415(b)(2)(E) of such Code, as amended by this Act
(3) SECTION 4 IS.— (A) No REDUCTION REQUIRED.—An accrued benefit shall
not be required to be reduced below the accrued benefit as of the last day of the last plan year beginning before January 1, 1995, merely because of the amendments made by subsection (b).
(B) TIMING OF PLAN AMENDMENT.—A plan that operates in accordance with the amendments made by subsection (b) shall not be treated as faihng to satisfy section 401(a) of the Internal Revenue Code of 1986 or as not being operated in accordance with the provisions of the plan until such date as the Secretary of the Treasiuy provides merely because the plein has not been amended to include the amendments made by subsection (b).
SEC. 768, ADJUSTMENTS TO LIEN FOR MISSED MINIMUM FUNDING CONTRIBUTIONS.
(a) AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.— (1) CLARIFICATION OF APPUCABILITY OF PROVISION.—Para-
26 use 412. graph (2) of section 412(n) is amended by adding at the end the following new sentence: "This subsection shall not apply to any plan to which section 4021 of the Employee Retirement
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5041
Income Security Act of 1974 does not apply (as such section is in effect on the date of the enactment of the Retirement Protection Act of 1994).".
(2) REPEAL OF $1,000,000 OFFSET.—Paragraph (3) of section 412(n) is amended to read as follows: 26 use 412.
"(3) AMOUNT OF LIEN.—For puiposes of paragraph (1), the amoimt of the lien shall be equal to the aggregate unpaid balance of required installments and other payments required under this section (including interest)—
**(A) for plan years beginning after 1987, and "(B) for which payment has not been made before
the due date." (3) REPEAL OF 60-DAY DELAY.—Section 412(n)(4)(B) is
amended by striking "60th day following the". (b) AMENDMENTS TO THE EMPLOYEE RETIREMENT INCOME SECU-
RITY ACT OF 1974.— (1) CLARIFICATION OF APPLICABILITY OF PROVISION.—Section
302(f)(1) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1082(f)(1)) is amended by striking "to which this section appUes" and inserting "covered under section 4021 ofthisActf'.
(2) REPEAL OF $1,000,000 OFFSET.—Paragraph (3) of section 302(f) of such Act is amended to read as follows:
"(3) AMOUNT OF LIEN.—For purposes of paragraph (1), the amount of the lien shall be equal to the aggregate unpaid balance of required installments and other payments required under this section (including interest)—
"(A) for plan years beginning after 1987, and "(B) for which payment has not been made before
the due date." (3) REPEAL OF 6O-DAY DELAY.—Section 302(f)(4)(B) of such
Act is amended by striking "60th day following the". (c) EFFECTIVE DATE.—The amendments made by this section 26 use 412 note.
shall be effective for installments and other payments required under section 412 of the Internal Revenue Code of 1986 or imder part 3 of subtitle B of the Employee Retirement Income Security Act of 1974 that become due on or after the date of enactment.
SEC. 769. SPECIAL FUNDING RULES FOR CERTAIN PLANS. 26 USC 412 note.
(a) FUNDING RULES NOT TO APPLY TO CERTAIN PLANS.—Any changes made by this Act to section 412 of the Internal Revenue Code of 1986 or to part. 3 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 shall not apply to—
(1) a plan which is, on the date of enactment of this Act, subject to a restoration payment schedule order issued by the Pension Benefit Guaranty Corporation that meets the requirements of section 1.412(c)(l>-3 of the Treasury Regula- tions, or
(2) a plan established by an affected air carrier (as defined under section 4001(a)(14)(C)(ii)(I) of such Act) and assumed by a new plan sponsor pursuant to the terms of a written agreement with the Pension Benefit Guaranty Corporation dated January 5, 1993, and approved by the United States Bankruptcy Court for the District of Delaware on December 30, 1992. (b) CHANGE IN ACTUARIAL METHOD.—Any amortization install-
ments for bases estabhshed under section 412(b) of the Internal
108 STAT. 5042 PUBLIC LAW 103-465—DEC. 8, 1994
Revenue Code of 1986 and section 302Cb) of the Employee Retire- ment Income Security Act of 1974 for plan years beginning after December 31, 1987, and before January 1, 1993, by reason of nonelective changes under the firozen entry age actuarial cost method shall not be included in the calculation of offsets under section 412(lXl)(A)(ii) of such Code and section 302(dXl)(A)(ii) of such Act for the 1st 5 plan years beginning after December 31, 1994.
PART II—AMENDMENTS RELATED TO TITLE IV OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974
SEC. 771. REPORTABLE EVENTS.
(a) RESPONSIBILITY FOR REPORTABLE EVENTS REPORTING.—Sec- tion 4043(a) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1343(a)) is amended—
(1) in the first sentence, by inserting "or the contributing sponsor" before "knows or has reason to know";
(2) in the first sentence, by inserting ", unless a notice otherwise required under this subsection has already been pro- vided with respect to such event" before the period at the end; and
(3) by striking the last sentence. (b) NOTIFICATION THAT EVENT IS ABOUT TO OCCUR.—Section
4043 of such Act is amended by redesignating subsections (b), (c), and (d) as (c), (d), and (e), respectively, and by inserting after subsection (a) the following new subsection:
''(b)(1) The requirements of this subsection shall be appUcable to a contributing sponsor if, as of the close of the preceding plan year—
"(A) the aggregate unfunded vested benefits (as determined under section 4006(a)(3)(E)(iii)) of plans subject to this titie which are maintained by such sponsor and members of such sponsor's controlled groups (disreg£irding plans with no imiunded vested bene^ts) exceed $50,000,000, and
"(B) the ftmded vested benefit percentage for such plans is less than 90 percent
For purposes of subparagraph (B), the funded vested benefit percentage means the percentage which the aggregate value of the assets of such plans bears to the aggregate vested benefits of such plans (determined in accordance with section 4006(a)(3)(E)(iii)).
"(2) This subsection shall not apply to an event if the contribut- ing sponsor, or the member of the contributing sponsor's controlled group to which the event relates, is—
"(A) a person subiect to the reporting requirements of sec- tion 13 or 15(d) of tne Securities Exchange Act of 1934, or
"(B) a subsidiary (as defined for purposes of such Act) of a person subject to such reporting reqmrements. "(3) No later than 30 days prior to the effective date of an
event described in paragraph (9), (10), (11), (12), or (13) of subsection (c), a contributing sponsor to which the recruirements of this sub- section apply shall notify the corporation that the event is about to occur.
V -i- * "^ '* |^v!^^«f tS:*~i ' .•*;
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5043
"(4) The corporation may waive the requirement of this sub- section with respect to any or all reportable events with respect to any contributing sponsor."
(c) NEW REPORTABLE EVENTS.—Subsection (c) of section 4043 of such Act (as redesignated by subsection (h)) is amended— 29 use 1343.
(1) by striking the "o^ at the end of paragraph (8); (2) by striking paragraph (9); and (3) by inserting after .paragraph (8) the following new
paragraphs: . -!.' "(9) when, as a result of £in event, a person ceases to
be a member of the controlled group; "(10) when a contributing sponsor or a member of a contrib-
uting sponsor's controlled group liquidates in a case under titie 11, United States Code, or under any similar Federal law or law of a State or poHtical subdivision of a State;
"(11) when a contributing sponsor or a member of a contrib- uting sponsor's controlled group declares £in extraordinary divi- dend (as defined in section 1059(c) of the Internal Revenue Code of 1986) or redeems, in any 12-month period, an aggregate of 10 percent or more of the total combined voting power of all classes of stock entitied to vote, or an aggregate of 10 percent or more of the total value of shares of all classes of stock, of a contributing sponsor and aU members of its controlled group;
"(12) when, in einy 12-month period, an aggregate of 3 percent or more of the benefit Uabilities of a plan covered by this titie and maintained by a contributing sponsor or a member of its controlled group are transferred to a person that is not a meniber of the controlled group or to a plan or plans maintained by a person or persons that are not such a contributing sponsor or a member of its controlled group; or
"(13) when any other event occurs that may be indicative of a need to terminate the plan and that is prescribed by tiie corporation in regulations." (d) DISCLOSURE EXISMPTION.—Section 4043 of such Act is
amended by adding at the end the following new subsection: "(f) Any information or documentary material submitted to
the corporation pursuant to this section shall be exempt fi*om disclo- sure under section 552 of titie 5, United States Code, and no such information or documentary material may be made pubhc, except £LS may be relevant to any administrative or judicial action or proceeding. Nothing in this section is intended to prevent disclo- sure to either body of Congress or to any duly authorized committee or subconmiittee of the Congress."
(e) TECHNICAL AND CONFORMING AMENDMENTS.— (1) Subsection (a) of section 4043 of such Act, and sub-
sections (d) and (e) of such section 4043 (as redesignated by subsection (b)), are each amended by striking "subsection (b)" each place it appears and inserting "subsection (c)".
(2) Section 4042(a)(3) of such Act is amended by striking 29 USC 1342. "4043(b)(7)" and inserting "4043(c)(7)". (f) EFFECTIVE DATE.—The amendments made by this section 29 use 1342
shall be effective for events occurring 60 days or more afi:er the " ° ^ ' date of enactment of this Act.
108 STAT. 5044 PUBLIC LAW 103-465—DEC. 8, 1994
SEC. 772. CERTAIN INFORMATION REQUIRED TO BE FURNISHED TO PBGC.
(a) GENERAL RULE.—Subtitle A of title IV of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1301 et seq.) is amended by adding at the end the following new section:
29 use 1310. "SEC. 4010. AUTHORTIY TO REQUIRE CERTAIN INFORMATION. Regulations. «(a) INPORMATION REQUIRED.—Each person described in sub-
section (b) shall provide the corporation annually, on or before a date specified by the corporation"in regulations, with—
"(1) such records, documents, or other information that the corporation specifies in regulations as necessary to deter- mine the liabilities and assets of plans covered by this titie; £Uld
**(2) copies of such person's audited (or, if unavailable, unaudited) financial statements, and such other financial information as the corporation may prescribe in regulations. "(b) PERSONS REQUIRED TO PROVIDE INFORMATION.—The per-
sons covered by subsection (a) are each contributing sponsor, and each member of a contributing sponsor's controlled group, of a single-employer plan covered by this titie, if—
"(1) the aggregate unfunded vested benefits a t the end of the precec^Qg plan year (as determined under section 4006(aX3)(EXiii)) of plans maintained by the contributing spon- sor and the members of its controlled group exceed $50,000,000 (disregarding plans with no unfunded vested benefits);
"(2) the conditions for imposition of a Hen described in section 302(f)(lXA) and (B) of this Act or section 412(nXl)(A) and (B) of the Internal Revenue Code of 1986 have been met with respect to any plan maintained by the contributing sponsor or any member of its controlled group; or
"(3) minimum fiinding waivers in excess of $1,000,000 have been granted with respect to £iny plan maintained by the contributing sponsor or any member of its controlled group, and any portion thereof is still outstanding. "(c) INFORMATION EXEMPT FROM DISCLOSURE REQUIREMENTS.—
Any information or documentary material submitted to the corpora- tion pursuant to this section shall be exempt fix)m disclosure under section 552 of titie 5, United States Code, and no such information or documentaiy material may be made pubUc, except as may be relevant to any administrative or judicial action or proceeding. Nothing in this section is intended to prevent disclosure to either body ofCongress or to any duly authorized committee or subcommit- tee of the Congress."
(b) CLERICAL AMENDMENT.—The table of contents contained in section 1 of such Act is amended by inserting after the item relating to section 4009 the following new item:
"Sec. 4010. Authorily to require certain information." 29 use 1310 (c) EFFECTIVE DATE.—The amendments made by this section ^°^- shall be effective on the date of enactment of this Act
SEC. 773. ENFORCEMENT OF MINIMUM FUNDING REQUIREMENTS. (a) IN GENERAL.—Paragraph (1) of section 4003(e) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1303(e)(1)) is amended—
(1) by inserting "(A)" after "enforce"; and
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5045
(2) by striking the period after "title" and inserting ", and (B) in the case of a plan which is covered under this titie (other than a multiemployer plan) and for which the condi- tions for imposition of a hen described in section 302(f)(1)(A) and (B) of this Act or section 412(nXl)(A) and (B) of the Internal Revenue Code of 1986 have been met, section 302 of this Act and section 412 of such Code." (b) EFFECTIVE DATE.—The amendments made by this section 29 use 1303
shall be effective for installments and other payments required ^°^- under section 302 of the Employee Retirement Income Security Act of 1974 or section 412 of the Internal Revenue Code of 1986 that become due on or after the date of the enactment of this Act SEC. 774. COMPUTATION OF ADDITIONAL PBGC PREMIUM.
(a) PHASE-OUT OF VARIABLE RATE PREMIUM CAP.— (1) IN GENERAL.—Subparagraph (E) of section 4006(aX3)
of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1306(a)(3)(E)) is amended by striking clause (iv), and by redesignating clause (v) as clause (iv).
(2) EFFECTIVE DATE.— 29usci306 (A) IN GENERAL.—The amendments made by this sub- "°**-
section shall be effective for plan years beginning on or after July 1,1994.
(B) TRANSITION RULE.—In the cEise of plan years begin- ning on or after July 1, 1994, and before July 1, 1996, the additional premium payable with respect to any partici- pant by reason of the amendments made by this section shall not exceed the sum of—
(i) $53, and (ii) the product derived by multiplying—
(I) the excess (if any) of the amoimt deter- mined under clause (i) of section 4006(a)(3)(E) of the Employee Retirement Income Security Act of 1974, over $53, by
(II) the appHcable percentage. For purposes of this subparagraph, the appUcable percent- Eige shall be the percentage specified in the following table:
For the plan year beginning: The applica- ble percent-
on or after but before age is:
July 1, 1994 July 1, 1995 20 percent July 1, 1995 July 1, 1996 60 percent
(b) INTEREST RATE AND ASSET VALUATION.— (1) INTEREST RATE.—Subclause (II) of section
4006(a)(3)(E)(iii) of the Employee Retirement Income Seciuity Act of 1974 is amended—
(A) by striking **80 percent '̂ and inserting "the apphcable percentage", and
(B) by adding at the end the following new sentence: "For purposes of this subclaiise, the aj licable percentage is 80 percent for plan years beginning before July 1, 1997, 85 percent for plan years beginning after June 30, 1997, and before the 1st plan year to which the first tables prescribed under section 302(d)(7)(C)(ii)(II) apply, and 100 percent for such 1st plan year and subsequent plan years."
108 STAT. 5046 PUBLIC LAW 103-465—DEC. 8, 1994
(2) ASSET VALUATION.—Clause (iii) of section 4006(a)(3)(E) 29 use 1306. of such Act is amended—
(A) by inserting "or (III)" after "subclause (11)" in subclause (I), and
(B) by adding at the end the following new subclause: "(III) In the case of any plan year for which
the applicable percentage imder subclause (II) is 100 percent, the value of the plan's assets used in determining''.iinfunded current liability under subclause (I) sliall be their fedr market value."
29 use 1306 (3) EFFECTIVE DATE.—The amendments made by this sub- "°*®- section shall apply to plan years beginning after tiie date of
the enactment of this Act 29 use 1306 (c) TRANSITION RULE FOR CERTAIN REGULATED PUBLIC UTILI- "°*®- TIES.— În the case of a regulated pubHc utility described in section
7701(a)(33XA)(i) of the Internal Revenue Code of 1986, the amend- ments made by this section shall not apply to plan years beginning before the earlier of—
(1) January 1,1998, or (2) the date the regulated public utUity begins to collect
from utility customers rates that reflect the costs incurred or projected to be incurred for additional premitmis under sec- tion 4006(aX3)(E) of the Employee Retirement Income Security Act of 1974 pursuant to final and nonappealable determinations by all public utUity commissions (or other authorities having jurisdiction over the rates and terms of service by the regulated pubUc utility) that the costs are just and reasonable and recoverable from customers of the regulated public utility.
SEC. 775. DISCLOSUKE TO PARTICIPANTS.
(a) PARTICIPANT NOTICE REQUIREMENT.—Subtitie A of titie IV of the Employee Retirement Income Security Act of 1974 (as amended by section 772 of this Act) is further amended by adding at the end me following new section:
29 u s e 1311. "SEC 4011. NOTICE TO PARTICIPANTS.
"(a) IN GENERAL.—^The plan administrator of a plan subject to the additional premium under section 4006(a)(3)(E) shall provide, in a form and manner and at such time as prescribed in regulations of the corporation, notice to plan participants and beneficiaries of the plan's funding status and the limits on the corporation's guaranty should the plan terminate while underfunded. Such notice shall be written in a manner so as to be understood by the average planparticipEoit.
Q)) EXCEPTION.—Subsection (a) shall not apply to any plan to which section 302(d) does not apply for the plan year by reason ofparagraph (9) thereof"
(b) CLERICAL AMENDMENT.—The table of contents contained in section 1 of such Act is amended by inserting after the item relating to section 4010 (as added by section 772 of this Act) the following new item: "Sec. 4011. Notice to participantfl."
29 use 1311 (c) EFFECTIVE DATE.—The amendment made by this section "°^ shall be effective for plan years beginning after the date of enact-
ment of this Act.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5047
SEC. 776. MISSING PARTICIPANTS.
(a) IN GENERAL.—Subtitle C of title IV of the Employee Retire- ment Income Security Act of 1974 (29 U.S.C. 1341 et seq.) is Eunended by adding at the end the following new section: "SEC. 4050. MISSING PARTICn»ANTS. 29 USC 1350.
"(a) GENERAL RULE.— "(1) PAYMENT TO THE CORPORATION.—A plan administrator
satisfies section 4041(bX3XA) in the case of a missing partici- pant only if the plan administrator—
**(A) transfers the participant's designated benefit to the corporation or purclmses an irrevocable commitment fix)m an insurer in accordance with clause (i) of section 4041(b)(3)(A), and
"(B) provides tiie corporation such information and cer- tifications with respect to such designated benefits or irrev- ocable commitments as the corporation shall specify. "(2) TREATMENT OF TRANSFERRED ASSETS.—A transfer to
the corporation imder this section shall be treated as a transfer of eissets fix)m a terminated plan to the corporation as trustee, and shall be held with assets of terminated plans for which the corporation is trustee under section 4042, subject to the rules set forth in tiiat section.
"(3) PAYMENT BY THE CORPORATION.—After a missing participant whose designated benefit was transferred to the corporation is located—
"(A) in any CEise in which the plan could have distrib- uted the benefit of the missing participant in a single sum without participant or spousal consent under section 205(g), the corporation shaU. pay the participant or bene- ficiary a single sum benefit equal to the designated benefit paid the corporation plus interest as specified by the cor- poration, and
"(B) in any other case, the corporation shall pay a benefit based on the designated benefit and the assump- tions prescribed by the corporation at the time that the corporation received the designated benefit.
The corporation shall make payments imder subparagraph (B) available in the same forms and at the same times as a guaran- teed benefit under section 4022 would be available to be paid, except that the corporation may make a benefit available in the form of a single sum if the plan provided a single stun benefit (other than a single sum described in subsection (b)(2)(A)). "(b) DEFINITIONS.—For pmposes of this section—
"(1) MISSING PARTICIPANT.—^The term 'missing participant means a participant or beneficiary under a terminating plan whom the plan administrator cannot locate after a diligent search.
"(2) DESIGNATED BENEFIT.—The term 'designated benefit means the single sum benefit the participant would receive—
"(A) under the plan's assumptions, in the case of a distribution that can be made without participcmt or spousal consent imder section 205(g)-
**(B) under the assmnptions of tne corporation in effect on the date that the designated benefit is transferred to the corporation, in the case of a plan that does not pay
108 STAT. 5048 PUBLIC LAW 103-465—DEC. 8, 1994
any single sums other than those described in subpara- graph (A); or
"(C) under the assumptions of the corporation or of the plan, whichever provides the higher single sum, in the case of a plan that pays a single sum other than those described in subparagraph (A).
"(c) REGULATORY AUTHORITY.—^The corporation shall prescribe such regulations as are necessary to carry out the purposes of this section, including rules relating to what will be considered a diligent search, the amount payable to the corporation, and the Eunount to be paid by the corporation."
(b) CONFORMING TITLE IV AMENDMENTS.— (1) AMENDMENT TO SECTION 4003.—Section 4003(a) of such
Act (29 U.S.C. 1303(a)) is amended in the second sentence by inserting before the period the following: "and whether sec- tion 4050(a) has been satisfied".
(2) AMENDMENT TO SECTION 4OO5.—Section 4005(b)(2)(A) of such Act (29 U.S.C. 1305(b)(2)(A)) is amended by inserting "or benefits payable under section 4050" after "section 4022A".
(3) AMENDMENT TO SECTION 4041.—Section 4041(b)(3)(A)(ii) of such Act (29 U.S.C. 1341(b)(3)(A)(ii)) is amended by adding at the end the following new sentence: "A transfer of assets to the corporation in accordance with section 4050 on behalf of a missing participant shall satisfy this subpciragraph with respect to such participant" (c) CONFORMING ERISA AMENDMENTS.—
(1) The table of contents contained in section 1 of the Employee Retirement Income Security Act of 1974 is Eimended by inserting Eifter the item related to section 4049 the following new item:
"Sec. 4050. Missing pEu-ticipants."
(2) Section 206 of such Act (29 U.S.C. 1056) is amended by adding at the end the following new subsection: "(f) MISSING PARTICIPANTS IN TERMINATED PLANS.—In tiie case
of a plan covered by titie IV, the plan shall provide that, upon termination of the plan, benefits of missing participants shall be treated in accordance with section 4050."
(d) CONFORMING INTERNAL REVENUE CODE AMENDMENTS.—Sec- tion 401(a), as amended by section 766 of this Act, is fiirther amended by inserting after paragraph (33) the following new paragraph:
"(34) BENEFITS OF MISSING PARTICIPANTS ON PLAN TERMI- NATION.—In the case of a plan covered by titie IV of the Employee Retirement Income Security Act of 1974, a trust forming part of such plan shall not be treated as failing to constitute a qualified trust under this section merely because the pension plan of which such trust is a part, upon its termi- nation, transfers benefits of missing participants to the Pension Benefit Guaranty Corporation in accordance with section 4050 of such Act."
29 use 1056 (e) EFFECTIVE DATE.—^The provisions of this section shall be "°^ ' effective with respect to distributions that occur in plan years
commencing after final regulations implementing these provisions are prescribed by the Pension Benefit Guaranty Corporation,
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5049
SEC. 777. MODinCAHON OF MAXIMUM GUARANTEE FOB DLSABELnY BENEFITS.
(a) IN GENERAL.—Section 4022(b)(3) of the Employee Retire- ment Income Security Act of 1974 (29 U.S.C. 1322(b)(3)) is amended by adding at the end the following new sentences: T h e maximnm guaranteed monthly benefit shall not be reduced solely on account of the age of a participant in the case of a benefit payable by reason of disabihty that occurred on or before the termination date, if the participant demonstrates to the satisfaction of the corporation timt the Social Secimty Administration has determined that the participant satisfies the definition of disability under title II or XVI of the Social Security Act, and the regulations thereunder. If a benefit payable by reason of disabihty is converted to an early or normal retirement benefit for reasons other than a change in the health of the participant, such early or normal retirement benefit shall be treated as a continuation of the benefit payable by reason of disability and this subparagraph shall continue to apply."
(b) EFFECTIVE DATE.—The amendment made by this section 29 use 1322 shall be efifective for plan terminations under section 4041(c) of "°** the Employee Retirement Income Security Act of 1974 with respect to whicn notices of intent to terminate are provided under section 4041(a)(2) of such Act, or under section 4042 of such Act with respect to which proceedings are instituted by the corporation, on or after the date of enactment of this Act
SEC. 778. PBOCEX>UBES TO FACILITATE DISTRIBUTION OF TE31MI- NATION BENEFITS.
(A) REMEDIES FOR NONCOMPLIANCE WITH REQUIREMENTS FOR STANDARD TERMINATION.—
(1) NOTICE OF NONCOMPLIANCE.—Section 404lO))(2)(C)(i) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1341(b)(2XCXi)) is amended—
(A) bv striking subclause (I) and inserting the following new subclause:
"(I) i t determines, based on the notice sent under paragraph (2)(A) of subsection (b), that there is reason to beheve that the plan is not su£&cient for benefit liabilities,";
(B) by striking the period at the end of subclause (II) and inserting ", or"; and
(C) by adding at the end the following new subclause: "(III) it determines that any other requirement
; of subparagraph (A) or (B) of this paragraph or of subsection (aX2) has not been met, unless it fiuther determines that the issuance of such notice would be inconsistent with the interests of partici- pants and beneficiaries."
(2) EFFECTIVE DATE.—The amendments made bv this sub- 29 use 1341 section shall apply to any plan termination imder section 4041(b) of the Employee Retirement Income Security Act of 1974 with respect to which the Pension Benefit Guaranty Cor- poration has not, as of the date of enactment of this Act, issued a notice of noncompliance that has become final, or otherwise issued a final determination that the plan termi- nation is nullified.
note.
79-194 O—95—16: QL 3 Part 6
108 STAT. 5050 PUBLIC LAW 103-465—DEC. 8, 1994
(b) DISTRESS TERMINATION CRITERIA FOR BANKING INSTITUTIONS.—
(1) CLARIFICATION OF DISTRESS CRITERION.—Subclause (I) of section 4041(c)(2XB)(i) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1341(c)(2)(BXi)) is amended by inserting after *under any similar" the following: "Federal law or".
29 use 1341 (2) EFFECTIVE DATE.—^The amendment made by tbis sub- "o*®- section shall be eflfective as if included in the Single-Employer
Pension Plan Amendments Act of 1986. ' • ' . "
PART III—EFJ'ECTIVE DATES 26 u s e 401 note. SEC. 781. EFFECTIVE DATES.
Except as otherwise provided in this subtitle, the amendments made by this subtitle shall be effective on the date of enactment of this Act.
TITLE VIII—PIONEER PREFERENCES
SEC. 801. PIONEER PREFERENCES.
Section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j)) is amended by adding at the end the following new para- graph:
"(13) RECOVERY OF VALUE OF P U B U C SPECTRUM IN CONNEC- TION WITH PIONEER PREFERENCES.—
"(A) IN GENERAL.—Notwithstanding paragraph (6XG), the Commission shall not award Ucenses pursuant to a preferential treatment accorded by the Commission to per- sons who make significant contributions to the development of a new telecommunications service or technology, except in accordance with the requirements of this paragraph.
"(B) RECOVERY OF VALUE.—The Commission shall recover for the public a portion of the value of the pubUc spectrum resource made available to such person by requir- ing such person, as a condition for receipt of the license, to agree to pay a sum determined by—
**(i) identifying the winning bids for the Hcenses that the Commission determines are most reasonably comparable in terms of bandwidth, scope of service area, usage restrictions, and other technical character- istics to the license awarded to such person, and excluding Hcenses that the Commission determines are subject to bidding anomaHes due to the award of pref- erential treatment;
"(ii) dividing each such winning bid bv the popu- lation of its seryice area (hereinafter referred to £is the per capita bid amount);
"(iii) computing the average of the per capita bid amounts for the hcenses identified under clause (i);
"(iv) reducing such average amount by 15 percent; and
"(v) multiplying the amount determined under clause (iv) by tiie population of the service area of the license obt£iined by such person.
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5051
**(C) INSTALLMENTS PERMiTTED.̂ The Commission shall require such person to pay the simi required by subpara- graph (B) in a lump sum or in guaranteed installment payments, with or without royalty payments, over a period ofnot more than 5 years.
"(D) RULEMAKING ON PIONEER PREFERENCES.—^Except with respect to pending applications described in clause (iv) of this subparagraph, the Commission shall prescribe regulations specifying thffi procedures and criteria Dy which the Commission will evaluate appUcations for preferential treatment in its Ucensing processes (by precluding the filing of mutually exclusive applications) for persons who make significEmt contributions to the development of a new serv- ice or to the development of new technologies that substan- tially enhance an existing service. Such regulations shall—
"(i) specify the procedures and criteria by which the signincance of such contributions will be deter- mined, after an opportunity for review and verification by experts in the radio sciences drawn fix)m among persons who are not employees of the Commission or by any appHcant for such preferential treatment;
"(ii) include such other procedures as may be nec- essary to prevent unjust enrichment by ensuring that the value of any such contribution justifies any reduc- tion in the amounts paid for comparable Hcenses under this subsection;
"(iii) be prescribed not later than 6 months after the date of enactment ofthis paragraph;
"(iv) not apply to applications that have been accepted for filing on or before September 1, 1994; £Uld
"(v) cease to be effective on the date of the expira- tion of the Commission's authority under subparagraph (F). "(E) IMPLEMENTATION WITH RESPECT TO PENDING
APPLICATIONS.— În applying this paragraph to any broadband licenses in the personal conmiunications service awarded pursuEint to the preferential treatment accorded by the Federal Communications Commission in the Third Report and Order in General Docket 90-314 (FCC 93- 550, released February 3, 1994)—
"(i) the Commission shall not reconsider the award of preferences in such Third Report and Order, and the Commission shall not delay the grant of hcenses based on such awards more than 15 days following the date of enactment of this paragraph, and the award of such preferences and hcenses shall not be subject to administrative orjudicial review;
"(ii) the Commission shall not alter the bandwidth or service areas designated for such hcenses in such Third Report and Order;
"(iii) except as provided in clause (v), the Commis- sion shall use, as the most reasonably compsirable hcenses for purposes of subparagraph (BXi), the broadband licenses in the personal conmiunications service for blocks A and B for the 20 largest markets
108 STAT. 5052 PUBLIC LAW 103-465—DEC. 8, 1994
(ranked by population) in which no appUcant has obtained preferential treatment;
"(iv) for purposes of subpara^aph (C), the Commission shall permit guaranteed installment pay- ments over a period of 5 years, subject to—
"(I) the -payment only oi interest on unpaid balances diinng the first 2 years, commencing not later than 30 days after the award of the Hcense (including any jireferential treatment used in mak- ing such awara) is final and no longer subject to administrative or judicial review, except that no such payment shall be required prior to the date of completion of the auction of the comparable licenses described in clause (iii); and
"(II) payment of the unpaid balance and interest thereon after the ena of such 2 years in accordance with the regulations prescribed by the Conmiission; and "(v) the Commission shall recover with respect to
broadband licenses in the personal communications service an amount under this paragraph that is equal to not less than $400,000,000, £ind if such amount is less than $400,000,000, the Commission shall recover an amount equal to $400,000,000 by allocating such amount among the holders of such licenses based on the population of the license areas held by each licensee.
The Commission shall not include in any amounts required to be collected under clause (v) the interest on unpaid balances required to be collected under clause (iv).
"(F) ExPiRATiON.^The authority of the Commission to provide preferential treatment in licensing procedures (by precluding the filing of mutually exclusive applications) to persons who make significant contributions to the devel- opment of a new service or to the development of new technologies that substantially enhance an existing service shall expire on September 30,1998.
"(G) EFFECTIVE DATE.—^This parsigraph shall be effec- tive on the date of its enactment and apply to anv licenses issued on or after August 1, 1994, by the Federal Commu- nications Commission pursuant to any licensing procedure
PUBLIC LAW 103-465—DEC. 8, 1994 108 STAT. 5053
that provides preferential treatment (by precluding the filing of mutimlly exclusive applications) to persons who make significant contributions to the development of a new service or to the development of new technologies that substantially enhance an existing service.".
Approved December 8, 1994.
LEGISLATIVE HISTORY—H.R. 5110 (S. 2467):
HOUSE REPORTS: No. 103-826, Pt. 1 (Coram, on Ways and Means) and Ft. 2 (Coram, on Energy and Coraraerce).
SENATE REPORTS: No. 103-412 accompanying S. 2467 (Comra. on Finance, Comra. on Agriculture, Nutrition, and Forestry, and Coram, on Grovemraental Affairs).
CONGRESSIONAL RECORD, Vol. 140 (1994): Nov. 29, considered and passed House. Nov. 30, Dec. 1, considered and passed Senate.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 30 (1994): Dec. 8, Presidential reraarks.