19 U.S.C. § 1677 — Definitions; special rules

Page 381 TITLE 19—CUSTOMS DUTIES § 1677 §§ 233(a)(5)(Z), (AA), 270(a)(1)(J), Dec. 8, 1994, 108 Stat. 4900, 4917.) Editorial Notes AMENDMENTS 1994—Subsec. (a)(1). Pub. L. 103–465, §§ 233(a)(5)(Z), 270(a)(1)(J), inserted ‘‘countervailable’’ before ‘‘sub- sidy’’ in two places and substituted ‘‘subject merchan- dise’’ for ‘‘merchandise subject to the agreement’’. Subsec. (b)(2). Pub. L. 103–465, § 233(a)(5)(AA), sub- stituted ‘‘subject merchandise’’ for ‘‘merchandise sub- ject to the order’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 effective, except as otherwise provided, on the date on which the WTO Agreement enters into force with respect to the United States (Jan. 1, 1995), and applicable with respect to in- vestigations, reviews, and inquiries initiated and peti- tions filed under specified provisions of this chapter after such date, see section 291 of Pub. L. 103–465, set out as a note under section 1671 of this title. EFFECTIVE DATE Section applicable with respect to investigations ini- tiated by petition or by the administering authority under parts I and II of this subtitle, or reviews begun under section 1675 of this title, on or after Oct. 30, 1984, see section 626(b)(1) of Pub. L. 98–573, as amended, set out as an Effective Date of 1984 Amendment note under section 1671 of this title. PART IV—GENERAL PROVISIONS Editorial Notes CODIFICATION The designation ‘‘PART IV’’ was in the original ‘‘Sub- title D’’ and was editorially changed in order to con- form the numbering format of this subtitle to the us- ages employed in the codification of the remainder of the Tariff Act of 1930 as originally enacted. § 1677. Definitions; special rules For purposes of this subtitle— (1) Administering authority The term ‘‘administering authority’’ means the Secretary of Commerce, or any other offi- cer of the United States to whom the responsi- bility for carrying out the duties of the admin- istering authority under this subtitle are transferred by law. (2) Commission The term ‘‘Commission’’ means the United States International Trade Commission. (3) Country The term ‘‘country’’ means a foreign coun- try, a political subdivision, dependent terri- tory, or possession of a foreign country, and, except for the purpose of antidumping pro- ceedings, may include an association of 2 or more foreign countries, political subdivisions, dependent territories, or possessions of coun- tries into a customs union outside the United States. (4) Industry (A) In general The term ‘‘industry’’ means the producers as a whole of a domestic like product, or those producers whose collective output of a domestic like product constitutes a major proportion of the total domestic production of the product. (B) Related parties (i) If a producer of a domestic like product and an exporter or importer of the subject merchandise are related parties, or if a pro- ducer of the domestic like product is also an importer of the subject merchandise, the producer may, in appropriate circumstances, be excluded from the industry. (ii) For purposes of clause (i), a producer and an exporter or importer shall be consid- ered to be related parties, if— (I) the producer directly or indirectly controls the exporter or importer, (II) the exporter or importer directly or indirectly controls the producer, (III) a third party directly or indirectly controls the producer and the exporter or importer, or (IV) the producer and the exporter or im- porter directly or indirectly control a third party and there is reason to believe that the relationship causes the producer to act differently than a nonrelated pro- ducer. For purposes of this subparagraph, a party shall be considered to directly or indirectly control another party if the party is legally or operationally in a position to exercise re- straint or direction over the other party. (C) Regional industries In appropriate circumstances, the United States, for a particular product market, may be divided into 2 or more markets and the producers within each market may be treat- ed as if they were a separate industry if— (i) the producers within such market sell all or almost all of their production of the domestic like product in question in that market, and (ii) the demand in that market is not supplied, to any substantial degree, by pro- ducers of the product in question located elsewhere in the United States. In such appropriate circumstances, material injury, the threat of material injury, or ma- terial retardation of the establishment of an industry may be found to exist with respect to an industry even if the domestic industry as a whole, or those producers whose collec- tive output of a domestic like product con- stitutes a major proportion of the total do- mestic production of that product, is not in- jured, if there is a concentration of dumped imports or imports of merchandise bene- fiting from a countervailable subsidy into such an isolated market and if the producers of all, or almost all, of the production within that market are being materially injured or threatened by material injury, or if the es- tablishment of an industry is being materi- ally retarded, by reason of the dumped im- ports or imports of merchandise benefiting from a countervailable subsidy. The term ‘‘regional industry’’ means the domestic pro- ducers within a region who are treated as a separate industry under this subparagraph. Page 382 TITLE 19—CUSTOMS DUTIES § 1677 (D) Product lines The effect of dumped imports or imports of merchandise benefiting from a countervailable subsidy shall be assessed in relation to the United States production of a domestic like product if available data per- mit the separate identification of production in terms of such criteria as the production process or the producer’s profits. If the do- mestic production of the domestic like prod- uct has no separate identity in terms of such criteria, then the effect of the dumped im- ports or imports of merchandise benefiting from a countervailable subsidy shall be as- sessed by the examination of the production of the narrowest group or range of products, which includes a domestic like product, for which the necessary information can be pro- vided. (E) Industry producing processed agricul- tural products (i) In general Subject to clause (v), in an investigation involving a processed agricultural product produced from any raw agricultural prod- uct, the producers or growers of the raw agricultural product may be considered part of the industry producing the proc- essed product if— (I) the processed agricultural product is produced from the raw agricultural product through a single continuous line of production; and (II) there is a substantial coincidence of economic interest between the pro- ducers or growers of the raw agricultural product and the processors of the proc- essed agricultural product based upon relevant economic factors, which may, in the discretion of the Commission, in- clude price, added market value, or other economic interrelationships (regardless of whether such coincidence of economic interest is based upon any legal relation- ship). (ii) Processing For purposes of this subparagraph, the processed agricultural product shall be considered to be processed from a raw agri- cultural product through a single contin- uous line of production if— (I) the raw agricultural product is sub- stantially or completely devoted to the production of the processed agricultural product; and (II) the processed agricultural product is produced substantially or completely from the raw product. (iii) Relevant economic factors For purposes of clause (i)(II), in addition to such other factors it considers relevant to the question of coincidence of economic interest, the Commission shall— (I) if price is taken into account, con- sider the degree of correlation between the price of the raw agricultural product and the price of the processed agricul- tural product; and (II) if added market value is taken into account, consider whether the value of the raw agricultural product constitutes a significant percentage of the value of the processed agricultural product. (iv) Raw agricultural product For purposes of this subparagraph, the term ‘‘raw agricultural product’’ means any farm or fishery product. (v) Termination of this subparagraph This subparagraph shall cease to have ef- fect if the United States Trade Represent- ative notifies the administering authority and the Commission that the application of this subparagraph is inconsistent with the international obligations of the United States. (5) Countervailable subsidy (A) In general Except as provided in paragraph (5B), a countervailable subsidy is a subsidy de- scribed in this paragraph which is specific as described in paragraph (5A). (B) Subsidy described A subsidy is described in this paragraph in the case in which an authority— (i) provides a financial contribution, (ii) provides any form of income or price support within the meaning of Article XVI of the GATT 1994, or (iii) makes a payment to a funding mechanism to provide a financial con- tribution, or entrusts or directs a private entity to make a financial contribution, if providing the contribution would normally be vested in the government and the prac- tice does not differ in substance from prac- tices normally followed by governments, to a person and a benefit is thereby con- ferred. For purposes of this paragraph and paragraphs (5A) and (5B), the term ‘‘author- ity’’ means a government of a country or any public entity within the territory of the country. (C) Other factors The determination of whether a subsidy exists shall be made without regard to whether the recipient of the subsidy is pub- licly or privately owned and without regard to whether the subsidy is provided directly or indirectly on the manufacture, produc- tion, or export of merchandise. The admin- istering authority is not required to consider the effect of the subsidy in determining whether a subsidy exists under this para- graph. (D) Financial contribution The term ‘‘financial contribution’’ means— (i) the direct transfer of funds, such as grants, loans, and equity infusions, or the potential direct transfer of funds or liabil- ities, such as loan guarantees, (ii) foregoing or not collecting revenue that is otherwise due, such as granting tax credits or deductions from taxable income, Page 383 TITLE 19—CUSTOMS DUTIES § 1677 (iii) providing goods or services, other than general infrastructure, or (iv) purchasing goods. (E) Benefit conferred A benefit shall normally be treated as con- ferred where there is a benefit to the recipi- ent, including— (i) in the case of an equity infusion, if the investment decision is inconsistent with the usual investment practice of pri- vate investors, including the practice re- garding the provision of risk capital, in the country in which the equity infusion is made, (ii) in the case of a loan, if there is a dif- ference between the amount the recipient of the loan pays on the loan and the amount the recipient would pay on a com- parable commercial loan that the recipient could actually obtain on the market, (iii) in the case of a loan guarantee, if there is a difference, after adjusting for any difference in guarantee fees, between the amount the recipient of the guarantee pays on the guaranteed loan and the amount the recipient would pay for a com- parable commercial loan if there were no guarantee by the authority, and (iv) in the case where goods or services are provided, if such goods or services are provided for less than adequate remunera- tion, and in the case where goods are pur- chased, if such goods are purchased for more than adequate remuneration. For purposes of clause (iv), the adequacy of remuneration shall be determined in rela- tion to prevailing market conditions for the good or service being provided or the goods being purchased in the country which is sub- ject to the investigation or review. Pre- vailing market conditions include price, quality, availability, marketability, trans- portation, 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 re- quire a determination by the administering authority that a past countervailable sub- sidy received by the enterprise no longer continues to be countervailable, even if the change in ownership is accomplished through an arm’s length transaction. (5A) Specificity (A) In general A subsidy is specific if it is an export sub- sidy described in subparagraph (B) or an im- port substitution subsidy described in sub- paragraph (C), or if it is determined to be specific pursuant to subparagraph (D). (B) Export subsidy An export subsidy is a subsidy that is, in law or in fact, contingent upon export per- formance, alone or as 1 of 2 or more condi- tions. (C) Import substitution subsidy An import substitution subsidy is a sub- sidy that is contingent upon the use of do- mestic 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 juris- diction of the authority providing the sub- sidy, the following guidelines shall apply: (i) Where the authority providing the subsidy, or the legislation pursuant to which the authority operates, expressly limits access to the subsidy to an enter- prise or industry, the subsidy is specific as a matter of law. (ii) Where the authority providing the subsidy, or the legislation pursuant to which the authority operates, establishes objective criteria or conditions governing the eligibility for, and the amount of, a subsidy, the subsidy is not specific as a matter of law, if— (I) eligibility is automatic, (II) the criteria or conditions for eligi- bility 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 ‘‘ob- jective criteria or conditions’’ means cri- teria or conditions that are neutral and that do not favor one enterprise or indus- try over another. (iii) Where there are reasons to believe that a subsidy may be specific as a matter of fact, the subsidy is specific if one or more of the following factors exist: (I) The actual recipients of the sub- sidy, whether considered on an enter- prise or industry basis, are limited in number. (II) An enterprise or industry is a pre- dominant user of the subsidy. (III) An enterprise or industry receives a disproportionately large amount of the subsidy. (IV) The manner in which the author- ity 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 sub- clauses (I), (II), (III), and (IV), the admin- istering authority shall take into account the extent of diversification of economic activities within the jurisdiction of the au- thority 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 en- terprise or industry located within a des- ignated geographical region within the ju- risdiction of the authority providing the subsidy, the subsidy is specific. For purposes of this paragraph and paragraph (5B), any reference to an enterprise or indus- try is a reference to a foreign enterprise or foreign industry and includes a group of such enterprises or industries. Page 384 TITLE 19—CUSTOMS DUTIES § 1677 (5B) Categories of noncountervailable sub- sidies (A) In general Notwithstanding the provisions of para- graphs (5) and (5A), in the case of merchan- dise imported from a Subsidies Agreement country, a subsidy shall be treated as noncountervailable if the administering au- thority determines in an investigation under part I of this subtitle or a review under part III of this subtitle that the subsidy meets all of the criteria described in subparagraph (B), (C), or (D), as the case may be, or the provi- sions of subparagraph (E)(i) apply. (B) Research subsidy (i) In general Except for a subsidy provided on the manufacture, production, or export of civil aircraft, a subsidy for research activities conducted by a person, or by a higher edu- cation or research establishment on a con- tract basis with a person, shall be treated as noncountervailable, if the subsidy cov- ers not more than 75 percent of the costs of industrial research or not more than 50 percent of the costs of precompetitive de- velopment activity, and such subsidy is limited exclusively to— (I) the costs of researchers, techni- cians, and other supporting staff em- ployed exclusively in the research activ- ity, (II) the costs of instruments, equip- ment, land, or buildings that are used ex- clusively and permanently (except when disposed of on a commercial basis) for the research activity, (III) the costs of consultancy and equivalent services used exclusively for the research activity, including costs for bought-in research, technical knowledge, and patents, (IV) additional overhead costs incurred directly as a result of the research activ- ity, and (V) other operating costs (such as ma- terials and supplies) incurred directly as a result of the research activity. (ii) Definitions For purposes of this subparagraph— (I) Industrial research The term ‘‘industrial research’’ means planned search or critical investigation aimed at the discovery of new knowl- edge, with the objective that such knowledge may be useful in developing new products, processes, or services, or in bringing about a significant improve- ment to existing products, processes, or services. (II) Precompetitive development activity The term ‘‘precompetitive develop- ment activity’’ means the translation of industrial research findings into a plan, blueprint, or design for new, modified, or improved products, processes, or serv- ices, whether intended for sale or use, in- cluding the creation of a first prototype that would not be capable of commercial use. The term also may include the con- ceptual formulation and design of prod- ucts, processes, or services alternatives and initial demonstration or pilot projects, if these same projects cannot be converted or used for industrial appli- cation or commercial exploitation. The term does not include routine or periodic alterations to existing products, produc- tion lines, manufacturing processes, services, or other ongoing operations even if those alterations may represent improvements. (iii) Calculation rules (I) In general In the case of a research activity that spans both industrial research and precompetitive development activity, the allowable level of the noncountervailable subsidy shall not ex- ceed 62.5 percent of the costs set forth in subclauses (I), (II), (III), (IV), and (V) of clause (i). (II) Total eligible costs The allowable level of a noncountervailable subsidy described in clause (i) shall be based on the total eli- gible costs incurred over the duration of a particular project. (C) Subsidy to disadvantaged regions (i) In general A subsidy provided, pursuant to a gen- eral framework of regional development, to a person located in a disadvantaged re- gion within a country shall be treated as noncountervailable, if it is not specific (within the meaning of paragraph (5A)) within eligible regions and if the following conditions are met: (I) Each region identified as disadvan- taged within the territory of a country is a clearly designated, contiguous geo- graphical area with a definable economic and administrative identity. (II) Each region is considered a dis- advantaged region on the basis of neu- tral and objective criteria indicating that the region is disadvantaged because of more than temporary circumstances, and such criteria are clearly stated in the relevant statute, regulation, or other official document so as to be capable of verification. (III) The criteria described in sub- clause (II) include a measurement of eco- nomic development. (IV) Programs provided within a gen- eral framework of regional development include ceilings on the amount of assist- ance that can be granted to a subsidized project. Such ceilings are differentiated according to the different levels of devel- opment of assisted regions, and are ex- pressed in terms of investment costs or costs of job creation. Within such ceil- ings, the distribution of assistance is suf- Page 385 TITLE 19—CUSTOMS DUTIES § 1677 ficiently broad and even to avoid the predominant use of a subsidy by, or the provision of disproportionately large amounts of a subsidy to, an enterprise or industry as described in paragraph (5A)(D). (ii) Measurement of economic development For purposes of clause (i), the measure- ment of economic development shall be based on one or more of the following fac- tors: (I) Per capita income, household per capita income, or per capita gross do- mestic product that does not exceed 85 percent of the average for the country subject to investigation or review. (II) An unemployment rate that is at least 110 percent of the average unem- ployment rate for the country subject to investigation or review. The measurement of economic develop- ment shall cover a 3-year period, but may be a composite measurement and may in- clude factors other than those set forth in this clause. (iii) Definitions For purposes of this subparagraph— (I) General framework of regional devel- opment The term ‘‘general framework of re- gional development’’ means that the re- gional subsidy programs are part of an internally consistent and generally ap- plicable regional development policy, and that regional development subsidies are not granted in isolated geographical points having no, or virtually no, influ- ence on the development of a region. (II) Neutral and objective criteria The term ‘‘neutral and objective cri- teria’’ means criteria that do not favor certain regions beyond what is appro- priate for the elimination or reduction of regional disparities within the frame- work of the regional development policy. (D) Subsidy for adaptation of existing facili- ties to new environmental requirements (i) In general A subsidy that is provided to promote the adaptation of existing facilities to new environmental requirements that are im- posed by statute or by regulation, and that result in greater constraints and financial burdens on the recipient of the subsidy, shall be treated as noncountervailable, if the subsidy— (I) is a one-time nonrecurring measure, (II) is limited to 20 percent of the cost of adaptation, (III) does not cover the cost of replac- ing and operating the subsidized invest- ment, a cost that must be fully borne by the recipient, (IV) is directly linked and propor- tionate to the recipient’s planned reduc- tion of nuisances and pollution, and does not cover any manufacturing cost sav- ings that may be achieved, and (V) is available to all persons that can adopt the new equipment or production processes. (ii) Existing facilities For purposes of this subparagraph, the term ‘‘existing facilities’’ means facilities that have been in operation for at least 2 years before the date on which the new en- vironmental 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 shall be treated as noncountervailable and shall not be sub- ject to investigation or review under this subtitle. (ii) Exception Notwithstanding clause (i), a subsidy shall be treated as countervailable if— (I) the Trade Representative notifies the administering authority that a de- termination has been made pursuant to Article 8.4 or 8.5 of the Subsidies Agree- ment that the subsidy, or the program pursuant to which the subsidy was pro- vided, does not satisfy the conditions and criteria of Article 8.2 of the Sub- sidies Agreement; and (II) the subsidy is specific within the meaning of paragraph (5A). (F) Certain subsidies on agricultural prod- ucts Domestic support measures that are pro- vided with respect to products listed in Annex 1 to the Agreement on Agriculture, and that the administering authority deter- mines conform fully to the provisions of Annex 2 to that Agreement, shall be treated as noncountervailable. Upon request by the administering authority, the Trade Rep- resentative shall provide advice regarding the interpretation and application of Annex 2. (G) Provisional application (i) Subparagraphs (B), (C), (D), and (E) shall not apply on or after the first day of the month that is 66 months after the WTO Agreement enters into force, unless the pro- visions of such subparagraphs are extended pursuant to section 3572(c) of this title. (ii) Subparagraph (F) shall not apply to imports from a WTO member country at the end of the 9-year period beginning on Janu- ary 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 Agree- ment on Agriculture and such date shall be notified to the administering authority. (6) Net countervailable subsidy For the purpose of determining the net countervailable subsidy, the administering au- thority may subtract from the gross countervailable subsidy the amount of— (A) any application fee, deposit, or similar payment paid in order to qualify for, or to Page 386 TITLE 19—CUSTOMS DUTIES § 1677 receive, the benefit of the countervailable subsidy, (B) any loss in the value of the countervailable subsidy resulting from its deferred receipt, if the deferral is mandated by Government order, and (C) export taxes, duties, or other charges levied on the export of merchandise to the United States specifically intended to offset the countervailable subsidy received. (7) Material injury (A) In general The term ‘‘material injury’’ means harm which is not inconsequential, immaterial, or unimportant. (B) Volume and consequent impact In making determinations under sections 1671b(a), 1671d(b), 1673b(a), and 1673d(b) of this title, the Commission, in each case— (i) shall consider— (I) the volume of imports of the subject merchandise, (II) the effect of imports of that mer- chandise on prices in the United States for domestic like products, and (III) the impact of imports of such merchandise on domestic producers of domestic like products, but only in the context of production operations within the United States; and (ii) may consider such other economic factors as are relevant to the determina- tion regarding whether there is material injury by reason of imports. In the notification required under section 1671d(d) or 1673d(d) of this title, as the case may be, the Commission shall explain its analysis of each factor considered under clause (i), and identify each factor consid- ered under clause (ii) and explain in full its relevance to the determination. (C) Evaluation of relevant factors For purposes of subparagraph (B)— (i) Volume In evaluating the volume of imports of merchandise, the Commission shall con- sider whether the volume of imports of the merchandise, or any increase in that vol- ume, either in absolute terms or relative to production or consumption in the United States, is significant. (ii) Price In evaluating the effect of imports of such merchandise on prices, the Commis- sion shall consider whether— (I) there has been significant price underselling by the imported merchan- dise as compared with the price of do- mestic like products of the United States, and (II) the effect of imports of such mer- chandise otherwise depresses prices to a significant degree or prevents price in- creases, which otherwise would have oc- curred, to a significant degree. (iii) Impact on affected domestic industry In examining the impact required to be considered under subparagraph (B)(i)(III), the Commission shall evaluate all relevant economic factors which have a bearing on the state of the industry in the United States, including, but not limited to— (I) actual and potential decline in out- put, sales, market share, gross profits, operating profits, net profits, ability to service debt, productivity, return on in- vestments, return on assets, and utiliza- tion of capacity, (II) factors affecting domestic prices, (III) actual and potential negative ef- fects on cash flow, inventories, employ- ment, wages, growth, ability to raise capital, and investment, (IV) actual and potential negative ef- fects on the existing development and production efforts of the domestic indus- try, including efforts to develop a deriva- tive or more advanced version of the do- mestic like product, and (V) in a proceeding under part II of this subtitle, the magnitude of the margin of dumping. The Commission shall evaluate all rel- evant economic factors described in this clause within the context of the business cycle and conditions of competition that are distinctive to the affected industry. (iv) Captive production If domestic producers internally transfer significant production of the domestic like product for the production of a down- stream article and sell significant produc- tion of the domestic like product in the merchant market, and the Commission finds that— (I) the domestic like product produced that is internally transferred for proc- essing into that downstream article does not enter the merchant market for the domestic like product, and (II) the domestic like product is the predominant material input in the pro- duction of that downstream article, then the Commission, in determining mar- ket share and the factors affecting finan- cial performance set forth in clause (iii), shall focus primarily on the merchant market for the domestic like product. (D) Special rules for agricultural products (i) The Commission shall not determine that there is no material injury or threat of material injury to United States producers of an agricultural commodity merely be- cause the prevailing market price is at or above the minimum support price. (ii) In the case of agricultural products, the Commission shall consider any increased burden on government income or price sup- port programs. (E) Special rules For purposes of this paragraph— (i) Nature of countervailable subsidy In determining whether there is a threat of material injury, the Commission shall consider information provided to it by the Page 387 TITLE 19—CUSTOMS DUTIES § 1677 administering authority regarding the na- ture of the countervailable subsidy grant- ed by a foreign country (particularly whether the countervailable subsidy is a subsidy described in Article 3 or 6.1 of the Subsidies Agreement) and the effects like- ly to be caused by the countervailable sub- sidy. (ii) Standard for determination The presence or absence of any factor which the Commission is required to evaluate under subparagraph (C) or (D) shall not necessarily give decisive guid- ance with respect to the determination by the Commission of material injury. (F) Threat of material injury (i) In general In determining whether an industry in the United States is threatened with mate- rial injury by reason of imports (or sales for importation) of the subject merchan- dise, the Commission shall consider, among other relevant economic factors— (I) if a countervailable subsidy is in- volved, such information as may be pre- sented to it by the administering author- ity as to the nature of the subsidy (par- ticularly as to whether the countervailable subsidy is a subsidy de- scribed in Article 3 or 6.1 of the Subsidies Agreement), and whether imports of the subject merchandise are likely to in- crease, (II) any existing unused production ca- pacity or imminent, substantial increase in production capacity in the exporting country indicating the likelihood of sub- stantially increased imports of the sub- ject merchandise into the United States, taking into account the availability of other export markets to absorb any addi- tional exports, (III) a significant rate of increase of the volume or market penetration of im- ports of the subject merchandise indi- cating the likelihood of substantially in- creased imports, (IV) whether imports of the subject merchandise are entering at prices that are likely to have a significant depress- ing or suppressing effect on domestic prices, and are likely to increase demand for further imports, (V) inventories of the subject merchan- dise, (VI) the potential for product-shifting if production facilities in the foreign country, which can be used to produce the subject merchandise, are currently being used to produce other products, (VII) in any investigation under this subtitle which involves imports of both a raw agricultural product (within the meaning of paragraph (4)(E)(iv)) and any product processed from such raw agricul- tural product, the likelihood that there will be increased imports, by reason of product shifting, if there is an affirma- tive determination by the Commission under section 1671d(b)(1) or 1673d(b)(1) of this title with respect to either the raw agricultural product or the processed ag- ricultural product (but not both), (VIII) the actual and potential nega- tive effects on the existing development and production efforts of the domestic industry, including efforts to develop a derivative or more advanced version of the domestic like product, and (IX) any other demonstrable adverse trends that indicate the probability that there is likely to be material injury by reason of imports (or sale for importa- tion) of the subject merchandise (wheth- er or not it is actually being imported at the time). (ii) Basis for determination The Commission shall consider the fac- tors set forth in clause (i) as a whole in making a determination of whether fur- ther dumped or subsidized imports are im- minent and whether material injury by reason of imports would occur unless an order is issued or a suspension agreement is accepted under this subtitle. The pres- ence or absence of any factor which the Commission is required to consider under clause (i) shall not necessarily give deci- sive guidance with respect to the deter- mination. Such a determination may not be made on the basis of mere conjecture or supposition. (iii) Effect of dumping in third-country markets (I) In general In investigations under part II of this subtitle, the Commission shall consider whether dumping in the markets of for- eign countries (as evidenced by dumping findings or antidumping remedies in other WTO member markets against the same class or kind of merchandise manu- factured or exported by the same party as under investigation) suggests a threat of material injury to the domestic indus- try. In the course of its investigation, the Commission shall request informa- tion from the foreign manufacturer, ex- porter, or United States importer con- cerning this issue. (II) WTO member market For purposes of this clause, the term ‘‘WTO member market’’ means the mar- ket of any country which is a WTO mem- ber. (III) European Communities For purposes of this clause, the Euro- pean Communities shall be treated as a foreign country. (G) Cumulation for determining material in- jury (i) In general For purposes of clauses (i) and (ii) of sub- paragraph (C), and subject to clause (ii), the Commission shall cumulatively assess the volume and effect of imports of the Page 388 TITLE 19—CUSTOMS DUTIES § 1677 subject merchandise from all countries with respect to which— (I) petitions were filed under section 1671a(b) or 1673a(b) of this title on the same day, (II) investigations were initiated under section 1671a(a) or 1673a(a) of this title on the same day, or (III) petitions were filed under section 1671a(b) or 1673a(b) of this title and in- vestigations were initiated under section 1671a(a) or 1673a(a) of this title on the same day, if such imports compete with each other and with domestic like products in the United States market. (ii) Exceptions The Commission shall not cumulatively assess the volume and effect of imports under clause (i)— (I) with respect to which the admin- istering authority has made a prelimi- nary negative determination, unless the administering authority subsequently made a final affirmative determination with respect to those imports before the Commission’s final determination is made; (II) from any country with respect to which the investigation has been termi- nated; (III) from any country designated as a beneficiary country under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2701 et seq.) for purposes of making a de- termination with respect to that coun- try, except that the volume and effect of imports of the subject merchandise from such country may be cumulatively as- sessed with imports of the subject mer- chandise from any other country des- ignated as such a beneficiary country to the extent permitted by clause (i); or (IV) from any country that is a party to an agreement with the United States establishing a free trade area, which en- tered into force and effect before Janu- ary 1, 1987, unless the Commission deter- mines that a domestic industry is mate- rially injured or threatened with mate- rial injury by reason of imports from that country. (iii) Records in final investigations In each final determination in which it cumulatively assesses the volume and ef- fect of imports under clause (i), the Com- mission shall make its determinations based on the record compiled in the first investigation in which it makes a final de- termination, except that when the admin- istering authority issues its final deter- mination in a subsequently completed in- vestigation, the Commission shall permit the parties in the subsequent investigation to submit comments concerning the sig- nificance of the administering authority’s final determination, and shall include such comments and the administering authority’s final determination in the record for the subsequent investigation. (iv) Regional industry determinations In an investigation which involves a re- gional industry, and in which the Commis- sion decides that the volume and effect of imports should be cumulatively assessed under this subparagraph, such assessment shall be based upon the volume and effect of imports into the region or regions deter- mined by the Commission. The provisions of clause (iii) shall apply to such investiga- tions. (H) Cumulation for determining threat of material injury To the extent practicable and subject to subparagraph (G)(ii), for purposes of clause (i)(III) and (IV) of subparagraph (F), the Commission may cumulatively assess the volume and price effects of imports of the subject merchandise from all countries with respect to which— (i) petitions were filed under section 1671a(b) or 1673a(b) of this title on the same day, (ii) investigations were initiated under section 1671a(a) or 1673a(a) of this title on the same day, or (iii) petitions were filed under section 1671a(b) or 1673a(b) of this title and inves- tigations were initiated under section 1671a(a) or 1673a(a) of this title on the same day, if such imports compete with each other and with domestic like products in the United States market. (I) Consideration of post-petition information The Commission shall consider whether any change in the volume, price effects, or impact of imports of the subject merchan- dise since the filing of the petition in an in- vestigation under part I or II of this subtitle is related to the pendency of the investiga- tion and, if so, the Commission may reduce the weight accorded to the data for the pe- riod after the filing of the petition in mak- ing its determination of material injury, threat of material injury, or material retar- dation of the establishment of an industry in the United States. (J) Effect of profitability The Commission may not determine that there is no material injury or threat of ma- terial injury to an industry in the United States merely because that industry is prof- itable or because the performance of that in- dustry has recently improved. (8) Subsidies Agreement; Agreement on Agri- culture (A) Subsidies Agreement The term ‘‘Subsidies Agreement’’ means the Agreement on Subsidies and Counter- vailing Measures referred to in section 3511(d)(12) of this title. (B) Agreement on Agriculture The term ‘‘Agreement on Agriculture’’ means the Agreement on Agriculture re- ferred to in section 3511(d)(2) of this title. (9) Interested party The term ‘‘interested party’’ means— Page 389 TITLE 19—CUSTOMS DUTIES § 1677 (A) a foreign manufacturer, producer, or exporter, or the United States importer, of subject merchandise or a trade or business association a majority of the members of which are producers, exporters, or importers of such merchandise, (B) the government of a country in which such merchandise is produced or manufac- tured or from which such merchandise is ex- ported, (C) a manufacturer, producer, or whole- saler in the United States of a domestic like product, (D) a certified union or recognized union or group of workers which is representative of an industry engaged in the manufacture, production, or wholesale in the United States of a domestic like product, (E) a trade or business association a ma- jority of whose members manufacture, produce, or wholesale a domestic like prod- uct in the United States, (F) an association, a majority of whose members is composed of interested parties described in subparagraph (C), (D), or (E) with respect to a domestic like product, and (G) in any investigation under this subtitle involving an industry engaged in producing a processed agricultural product, as defined in paragraph (4)(E), a coalition or trade asso- ciation which is representative of either— (i) processors, (ii) processors and producers, or (iii) processors and growers, but this subparagraph shall cease to have ef- fect if the United States Trade Representa- tive notifies the administering authority and the Commission that the application of this subparagraph is inconsistent with the international obligations of the United States. (10) Domestic like product The term ‘‘domestic like product’’ means a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this subtitle. (11) Affirmative determinations by divided Commission If the Commissioners voting on a determina- tion by the Commission, including a deter- mination under section 1675 of this title, are evenly divided as to whether the determina- tion should be affirmative or negative, the Commission shall be deemed to have made an affirmative determination. For the purpose of applying this paragraph when the issue before the Commission is to determine whether there is— (A) material injury to an industry in the United States, (B) threat of material injury to such an in- dustry, or (C) material retardation of the establish- ment of an industry in the United States, by reason of imports of the merchandise, an affirmative vote on any of the issues shall be treated as a vote that the determination should be affirmative. (12) Attribution of merchandise to country of manufacture or production For purposes of part I of this subtitle, mer- chandise shall be treated as the product of the country in which it was manufactured or pro- duced without regard to whether it is im- ported directly from that country and without regard to whether it is imported in the same condition as when exported from that country or in a changed condition by reason of re- manufacture or otherwise. (13) Repealed. Pub. L. 103–465, title II, § 222(i)(2), Dec. 8, 1994, 108 Stat. 4876 (14) Sold or, in the absence of sales, offered for sale The term ‘‘sold or, in the absence of sales, offered for sale’’ means sold or, in the absence of sales, offered— (A) to all purchasers in commercial quan- tities, or (B) in the ordinary course of trade to one or more selected purchasers in commercial quantities at a price which fairly reflects the market value of the merchandise, without regard to restrictions as to the dis- position or use of the merchandise by the pur- chaser except that, where such restrictions are found to affect the market value of the mer- chandise, adjustment shall be made therefor in calculating the price at which the merchan- dise is sold or offered for sale. (15) Ordinary course of trade The term ‘‘ordinary course of trade’’ means the conditions and practices which, for a rea- sonable time prior to the exportation of the subject merchandise, have been normal in the trade under consideration with respect to mer- chandise of the same class or kind. The admin- istering authority shall consider the following sales and transactions, among others, to be outside the ordinary course of trade: (A) Sales disregarded under section 1677b(b)(1) of this title. (B) Transactions disregarded under section 1677b(f)(2) of this title. (C) Situations in which the administering authority determines that the particular market situation prevents a proper compari- son with the export price or constructed ex- port price. (16) Foreign like product The term ‘‘foreign like product’’ means mer- chandise in the first of the following cat- egories in respect of which a determination for the purposes of part II of this subtitle can be satisfactorily made: (A) The subject merchandise and other merchandise which is identical in physical characteristics with, and was produced in the same country by the same person as, that merchandise. (B) Merchandise— (i) produced in the same country and by the same person as the subject merchan- dise, (ii) like that merchandise in component material or materials and in the purposes for which used, and Page 390 TITLE 19—CUSTOMS DUTIES § 1677 1 So in original. The semicolon probably should be a comma. (iii) approximately equal in commercial value to that merchandise. (C) Merchandise— (i) produced in the same country and by the same person and of the same general class or kind as the subject merchandise, (ii) like that merchandise in the pur- poses for which used, and (iii) which the administering authority determines may reasonably be compared with that merchandise. (17) Usual commercial quantities The term ‘‘usual commercial quantities’’, in any case in which the subject merchandise is sold in the market under consideration at dif- ferent prices for different quantities, means the quantities in which such merchandise is there sold at the price or prices for one quan- tity in an aggregate volume which is greater than the aggregate volume sold at the price or prices for any other quantity. (18) Nonmarket economy country (A) In general The term ‘‘nonmarket economy country’’ means any foreign country that the admin- istering authority determines does not oper- ate on market principles of cost or pricing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise. (B) Factors to be considered In making determinations under subpara- graph (A) the administering authority shall take into account— (i) the extent to which the currency of the foreign country is convertible into the currency of other countries; 1 (ii) the extent to which wage rates in the foreign country are determined by free bargaining between labor and manage- ment, (iii) the extent to which joint ventures or other investments by firms of other for- eign countries are permitted in the foreign country, (iv) the extent of government ownership or control of the means of production, (v) the extent of government control over the allocation of resources and over the price and output decisions of enter- prises, and (vi) such other factors as the admin- istering authority considers appropriate. (C) Determination in effect (i) Any determination that a foreign coun- try is a nonmarket economy country shall remain in effect until revoked by the admin- istering authority. (ii) The administering authority may make a determination under subparagraph (A) with respect to any foreign country at any time. (D) Determinations not in issue Notwithstanding any other provision of law, any determination made by the admin- istering authority under subparagraph (A) shall not be subject to judicial review in any investigation conducted under part II of this subtitle. (E) Collection of information Upon request by the administering author- ity, the Commissioner of U.S. Customs and Border Protection shall provide the admin- istering authority a copy of all public and proprietary information submitted to, or ob- tained by, the Commissioner of U.S. Cus- toms and Border Protection that the admin- istering authority considers relevant to pro- ceedings involving merchandise from non- market economy countries. The admin- istering authority shall protect proprietary information obtained under this section from public disclosure in accordance with section 1677f of this title. (19) Equivalency of leases to sales In determining whether a lease is equivalent to a sale for purposes of this subtitle, the ad- ministering authority shall consider— (A) the terms of the lease, (B) commercial practice within the indus- try, (C) the circumstances of the transaction, (D) whether the product subject to the lease is integrated into the operations of the lessee or importer, (E) whether in practice there is a likeli- hood that the lease will be continued or re- newed for a significant period of time, and (F) other relevant factors, including whether the lease transaction would permit avoidance of antidumping or countervailing duties. (20) Application to governmental importations (A) In general Except as otherwise provided by this para- graph, merchandise imported by, or for the use of, a department or agency of the United States Government (including merchandise provided for under chapter 98 of the Har- monized Tariff Schedule of the United States) is subject to the imposition of coun- tervailing duties or antidumping duties under this subtitle or section 1303 of this title. (B) Exceptions Merchandise imported by, or for the use of, the Department of Defense shall not be sub- ject to the imposition of countervailing or antidumping duties under this subtitle if— (i) the merchandise is acquired by, or for use of, such Department— (I) from a country with which such De- partment had a Memorandum of Under- standing which was in effect on January 1, 1988, and has continued to have a com- parable agreement (including renewals) or superceding agreements, and (II) in accordance with terms of the Memorandum of Understanding in effect at the time of importation, or (ii) the merchandise has no substantial nonmilitary use. Page 391 TITLE 19—CUSTOMS DUTIES § 1677 (21) United States-Canada Agreement The term ‘‘United States-Canada Agree- ment’’ means the United States-Canada Free- Trade Agreement. (22) USMCA The term ‘‘USMCA’’ has the meaning given that term in section 4502 of this title. (23) Entry The term ‘‘entry’’ includes, in appropriate circumstances as determined by the admin- istering authority, a reconciliation entry cre- ated under a reconciliation process, defined in section 1401(s) of this title, that is initiated by an importer. The liability of an importer under an antidumping or countervailing duty proceeding for entries of merchandise subject to the proceeding will attach to the cor- responding reconciliation entry or entries. Suspension of liquidation of the reconciliation entry or entries, for the purpose of enforcing this subtitle, is equivalent to the suspension of liquidation of the corresponding individual entries; but the suspension of liquidation of the reconciliation entry or entries for such purpose does not preclude liquidation for any other purpose. (24) Negligible imports (A) In general (i) Less than 3 percent Except as provided in clauses (ii) and (iv), imports from a country of merchan- dise corresponding to a domestic like prod- uct identified by the Commission are ‘‘neg- ligible’’ if such imports account for less than 3 percent of the volume of all such merchandise imported into the United States in the most recent 12-month period for which data are available that pre- cedes— (I) the filing of the petition under sec- tion 1671a(b) or 1673a(b) of this title, or (II) the initiation of the investigation, if the investigation was initiated under section 1671a(a) or 1673a(a) of this title. (ii) Exception Imports that would otherwise be neg- ligible under clause (i) shall not be neg- ligible if the aggregate volume of imports of the merchandise from all countries de- scribed in clause (i) with respect to which investigations were initiated on the same day exceeds 7 percent of the volume of all such merchandise imported into the United States during the applicable 12- month period. (iii) Determination of aggregate volume In determining aggregate volume under clause (ii) or (iv), the Commission shall not consider imports from any country specified in paragraph (7)(G)(ii). (iv) Negligibility in threat analysis Notwithstanding clauses (i) and (ii), the Commission shall not treat imports as negligible if it determines that there is a potential that imports from a country de- scribed in clause (i) will imminently ac- count for more than 3 percent of the vol- ume of all such merchandise imported into the United States, or that the aggregate volumes of imports from all countries de- scribed in clause (ii) will imminently ex- ceed 7 percent of the volume of all such merchandise imported into the United States. The Commission shall consider such imports only for purposes of deter- mining threat of material injury. (B) Negligibility for certain countries in countervailing duty investigations In the case of an investigation under sec- tion 1671 of this title, subparagraph (A) shall be applied to imports of subject merchandise from developing countries by substituting ‘‘4 percent’’ for ‘‘3 percent’’ in subparagraph (A)(i) and by substituting ‘‘9 percent’’ for ‘‘7 percent’’ in subparagraph (A)(ii). (C) Computation of import volumes In computing import volumes for purposes of subparagraphs (A) and (B), the Commis- sion may make reasonable estimates on the basis of available statistics. (D) Regional industries In an investigation in which the Commis- sion makes a regional industry determina- tion under paragraph (4)(C), the Commis- sion’s examination under subparagraphs (A) and (B) shall be based upon the volume of subject merchandise exported for sale in the regional market in lieu of the volume of all subject merchandise imported into the United States. (25) Subject merchandise The term ‘‘subject merchandise’’ means the class or kind of merchandise that is within the scope of an investigation, a review, a suspen- sion agreement, an order under this subtitle or section 1303 of this title, or a finding under the Antidumping Act, 1921. (26) Section 1303 The terms ‘‘section 1303’’ and ‘‘1303’’ mean section 1303 of this title as in effect on the day before the effective date of title II of the Uru- guay Round Agreements Act. (27) Suspension agreement The term ‘‘suspension agreement’’ means an agreement described in section 1671c(b), 1671c(c), 1673c(b), 1673c(c), or 1673c(l) of this title. (28) Exporter or producer The term ‘‘exporter or producer’’ means the exporter of the subject merchandise, the pro- ducer of the subject merchandise, or both where appropriate. For purposes of section 1677b of this title, the term ‘‘exporter or pro- ducer’’ includes both the exporter of the sub- ject merchandise and the producer of the same subject merchandise to the extent necessary to accurately calculate the total amount in- curred and realized for costs, expenses, and profits in connection with production and sale of that merchandise. (29) WTO Agreement The term ‘‘WTO Agreement’’ means the Agreement defined in section 3501(9) of this title. Page 392 TITLE 19—CUSTOMS DUTIES § 1677 (30) WTO member and WTO member country The terms ‘‘WTO member’’ and ‘‘WTO mem- ber country’’ mean a state, or separate cus- toms territory (within the meaning of Article XII of the WTO Agreement), with respect to which the United States applies the WTO Agreement. (31) GATT 1994 The term ‘‘GATT 1994’’ means the General Agreement on Tariffs and Trade annexed to the WTO Agreement. (32) Trade representative The term ‘‘Trade Representative’’ means the United States Trade Representative. (33) Affiliated persons The following persons shall be considered to be ‘‘affiliated’’ or ‘‘affiliated persons’’: (A) Members of a family, including broth- ers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descend- ants. (B) Any officer or director of an organiza- tion and such organization. (C) Partners. (D) Employer and employee. (E) Any person directly or indirectly own- ing, controlling, or holding with power to vote, 5 percent or more of the outstanding voting stock or shares of any organization and such organization. (F) Two or more persons directly or indi- rectly controlling, controlled by, or under common control with, any person. (G) Any person who controls any other person and such other person. For purposes of this paragraph, a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person. (34) Dumped; dumping The terms ‘‘dumped’’ and ‘‘dumping’’ refer to the sale or likely sale of goods at less than fair value. (35) Dumping margin; weighted average dump- ing margin (A) Dumping margin The term ‘‘dumping margin’’ means the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise. (B) Weighted average dumping margin The term ‘‘weighted average dumping mar- gin’’ is the percentage determined by divid- ing 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 margin of dumping used by the Commission shall be— (i) in making a preliminary determina- tion under section 1673b(a) of this title in an investigation (including any investiga- tion in which the Commission cumula- tively assesses the volume and effect of imports under paragraph (7)(G)(i)), the dumping margin or margins published by the administering authority in its notice of initiation of the investigation; (ii) in making a final determination under section 1673d(b) of this title, the dumping margin or margins most recently published by the administering authority prior to the closing of the Commission’s administrative record; (iii) in a review under section 1675(b)(2) of this title, the most recent dumping margin or margins determined by the ad- ministering authority under section 1675a(c)(3) of this title, if any, or under sec- tion 1673b(b) or 1673d(a) of this title; and (iv) in a review under section 1675(c) of this title, the dumping margin or margins determined by the administering author- ity under section 1675a(c)(3) of this title. (36) Developing and least developed country (A) Developing country The term ‘‘developing country’’ means a country designated as a developing country by the Trade Representative. (B) Least developed country The term ‘‘least developed country’’ means a country which the Trade Representative determines is— (i) a country referred to as a least devel- oped country within the meaning of para- graph (a) of Annex VII to the Subsidies Agreement, or (ii) any other country listed in Annex VII to the Subsidies Agreement, but only if the country has a per capita gross na- tional product of less than $1,000 per annum as measured by the most recent data available from the World Bank. (C) Publication of list The Trade Representative shall publish in the Federal Register, and update as nec- essary, a list of— (i) developing countries that have elimi- nated their export subsidies on an expe- dited basis within the meaning of Article 27.11 of the Subsidies Agreement, and (ii) countries determined by the Trade Representative to be least developed or de- veloping countries. (D) Factors to consider In determining whether a country is a de- veloping country under subparagraph (A), the Trade Representative shall consider such economic, trade, and other factors which the Trade Representative considers appropriate, including the level of economic development of such country (the assessment of which shall include a review of the country’s per capita gross national product) and the coun- try’s share of world trade. (E) Limitation on designation A determination that a country is a devel- oping or least developed country pursuant to this paragraph shall be for purposes of this subtitle only and shall not affect the deter- Page 393 TITLE 19—CUSTOMS DUTIES § 1677 mination of a country’s status as a devel- oping or least developed country with re- spect to any other law. (June 17, 1930, ch. 497, title VII, § 771, as added Pub. L. 96–39, title I, § 101, July 26, 1979, 93 Stat. 176; amended Pub. L. 98–573, title VI, § 612(a), Oct. 30, 1984, 98 Stat. 3033; Pub. L. 99–514, title XVIII, § 1886(a)(9), Oct. 22, 1986, 100 Stat. 2922; Pub. L. 100–418, title I, §§ 1312, 1316(b), 1326(a)–(c), 1327–1330, 1335, Aug. 23, 1988, 102 Stat. 1184, 1187, 1203–1206, 1210; Pub. L. 100–449, title IV, § 403(d), Sept. 28, 1988, 102 Stat. 1887; Pub. L. 100–647, title IX, § 9001(a)(5), Nov. 10, 1988, 102 Stat. 3807; Pub. L. 101–382, title I, § 139(a)(3), title II, § 224(a), (b), Aug. 20, 1990, 104 Stat. 653, 659, 660; Pub. L. 103–182, title IV, § 412(b), title VI, § 637(b), Dec. 8, 1993, 107 Stat. 2146, 2203; Pub. L. 103–465, title II, §§ 221(b), 222, 229(b), 233(a)(3), (4), (5)(BB)–(FF), (b), 251, 266, 267, 270(c)(2), (e), Dec. 8, 1994, 108 Stat. 4869, 4890, 4898–4902, 4915, 4917, 4918; Pub. L. 104–295, § 20(b)(7), (14), Oct. 11, 1996, 110 Stat. 3527; Pub. L. 114–27, title V, §§ 503, 504(a), June 29, 2015, 129 Stat. 384, 385; Pub. L. 114–125, title VIII, § 802(d)(2), Feb. 24, 2016, 130 Stat. 210; Pub. L. 116–113, title IV, § 422(b), Jan. 29, 2020, 134 Stat. 65.) AMENDMENT OF SECTION For termination of amendment by section 501(c) of Pub. L. 100–449, see Effective and Ter- mination Dates of 1988 Amendment note below. Editorial Notes REFERENCES IN TEXT The Caribbean Basin Economic Recovery Act, re- ferred to in par. (7)(G)(ii)(III), is title II of Pub. L. 98–67, Aug. 5, 1983, 97 Stat. 384, which is classified principally to chapter 15 (§ 2701 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2701 of this title and Tables. The Harmonized Tariff Schedule of the United States, referred to in par. (20)(A), is not set out in the Code. See Publication of Harmonized Tariff Schedule note set out under section 1202 of this title. Section 1303 of this title, referred to in pars. (20)(A), (25), and (26), was repealed, effective Jan. 1, 1995, by Pub. L. 103–465, title II, § 261(a), Dec. 8, 1994, 108 Stat. 4908. For savings provisions and treatment of references to section 1303 in other laws, see section 261(b), (d)(1)(C) of Pub. L. 103–465, set out as notes under section 1303 of this title. The Antidumping Act, 1921, referred to in par. (25), is act May 27, 1921, ch. 14, title II, 42 Stat. 11, which was classified generally to sections 160 to 171 of this title, and was repealed by Pub. L. 96–39, title I, § 106(a), July 26, 1979, 93 Stat. 193. For the effective date of title II of the Uruguay Round Agreements Act, referred to in par. (26), as Jan. 1, 1995, see Effective Date of 1994 Amendment note set out under section 1671 of this title. AMENDMENTS 2020—Par. (22). Pub. L. 116–113 added par. (22) and struck out former par. (22) which defined ‘‘NAFTA’’ as the North American Free Trade Agreement. 2015—Par. (7)(C)(iii)(I). Pub. L. 114–27, § 503(b), amend- ed subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: ‘‘actual and potential decline in out- put, sales, market share, profits, productivity, return on investments, and utilization of capacity,’’. Par. (7)(C)(iv)(I) to (III). Pub. L. 114–27, § 503(c), in- serted ‘‘and’’ at end of subcl. (I), struck out ‘‘and’’ after comma at end of subcl. (II), and struck out subcl. (III) which read as follows: ‘‘the production of the domestic like product sold in the merchant market is not gen- erally used in the production of that downstream arti- cle,’’. Par. (7)(J). Pub. L. 114–27, § 503(a), added subpar. (J). Par. (15)(C). Pub. L. 114–27, § 504(a), added subpar. (C). 1996—Par. (16)(C)(i). Pub. L. 104–295, § 20(b)(7), which directed substitution of ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of the investiga- tion’’ in subpar. (B)(i), was executed by making the substitution in subpar. (C)(i) to reflect the probable in- tent of Congress. Par. (30). Pub. L. 104–295, § 20(b)(14), substituted ‘‘Agreement’’ for ‘‘agreement’’ after ‘‘applies the WTO’’. 1994—Par. (1). Pub. L. 103–465, § 233(b)(2), substituted ‘‘Secretary of Commerce’’ for ‘‘Secretary of the Treas- ury’’. Par. (4)(A). Pub. L. 103–465, § 222(a)(1), amended head- ing and text of subpar. (A) generally. Prior to amend- ment, text read as follows: ‘‘The term ‘industry’ means the domestic producers as a whole of a like product, or those producers whose collective output of the like product constitutes a major proportion of the total do- mestic production of that product; except that in the case of wine and grape products subject to investiga- tion under this subtitle, the term also means the do- mestic producers of the principal raw agricultural product (determined on either a volume or value basis) which is included in the like domestic product, if those producers allege material injury, or threat of material injury, as a result of imports of such wine and grape products.’’ Par. (4)(B). Pub. L. 103–465, § 222(a)(1), amended head- ing and text of subpar. (B) generally. Prior to amend- ment, text read as follows: ‘‘When some producers are related to the exporters or importers, or are themselves importers of the allegedly subsidized or dumped mer- chandise, the term ‘industry’ may be applied in appro- priate circumstances by excluding such producers from those included in that industry.’’ Par. (4)(C). Pub. L. 103–465, § 270(c)(2), in concluding provisions, substituted ‘‘dumped imports or imports of merchandise benefiting from a countervailable sub- sidy’’ for ‘‘subsidized or dumped imports’’ in two places. Pub. L. 103–465, §§ 222(a)(2), 233(a)(3)(A)(i), substituted ‘‘domestic like product’’ for ‘‘like product’’ in cl. (i) and concluding provisions, and inserted at end of con- cluding provisions ‘‘The term ‘regional industry’ means the domestic producers within a region who are treated as a separate industry under this subparagraph.’’ Par. (4)(D). Pub. L. 103–465, §§ 233(a)(3)(A)(i), 270(c)(2), substituted ‘‘domestic like product’’ for ‘‘like product’’ wherever appearing and ‘‘dumped imports or imports of merchandise benefiting from a countervailable sub- sidy’’ for ‘‘subsidized or dumped imports’’ in two places. Pars. (5) to (5B). Pub. L. 103–465, § 251(a), added pars. (5) to (5B), and struck out former par. (5) which defined ‘‘subsidy’’. Par. (6). Pub. L. 103–465, § 251(b), inserted ‘‘countervailable’’ before ‘‘subsidy’’ wherever appearing in heading and text. Par. (7)(B)(i)(I). Pub. L. 103–465, § 233(a)(5)(BB), sub- stituted ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of the investigation’’. Par. (7)(B)(i)(II), (III), (C)(ii)(I). Pub. L. 103–465, § 233(a)(3)(B), substituted ‘‘domestic like products’’ for ‘‘like products’’. Par. (7)(C)(iii). Pub. L. 103–465, § 222(b)(3), substituted ‘‘subparagraph (B)(i)(III)’’ for ‘‘subparagraph (B)(iii)’’ in introductory provisions. Par. (7)(C)(iii)(IV). Pub. L. 103–465, § 233(a)(3)(A)(ii), substituted ‘‘domestic like product’’ for ‘‘like product’’. Par. (7)(C)(iii)(V). Pub. L. 103–465, § 222(b)(1), added subcl. (V). Par. (7)(C)(iv). Pub. L. 103–465, § 222(b)(2), added cl. (iv) and struck out former cl. (iv) which directed that Com- mission cumulatively assess volume and effect of im- ports from two or more countries of like products sub- Page 394 TITLE 19—CUSTOMS DUTIES § 1677 ject to investigation if such imports compete with each other and with like products of domestic industry in United States market, with an exception for imports which are products of country designated as beneficiary country under Caribbean Basin Economic Recovery Act. Par. (7)(C)(v). Pub. L. 103–465, § 222(d)(1), struck out heading and text of cl. (v). Prior to amendment, text read as follows: ‘‘The Commission is not required to apply clause (iv) or subparagraph (F)(iv) in any case in which the Commission determines that imports of the merchandise subject to investigation are negligible and have no discernable adverse impact on the domestic in- dustry. For purposes of making such determination, the Commission shall evaluate all relevant economic factors regarding the imports, including, but not lim- ited to, whether— ‘‘(I) the volume and market share of the imports are negligible, ‘‘(II) sales transactions involving the imports are isolated and sporadic, and ‘‘(III) the domestic market for the like product is price sensitive by reason of the nature of the product, so that a small quantity of imports can result in price suppression or depression. For purposes of this clause, the Commission may treat as negligible and having no discernable adverse impact on the domestic industry imports that are the product of any country that is a party to a free trade area agreement with the United States which entered into force and effect before January 1, 1987, if the Commis- sion determines that the domestic industry is not being materially injured by reason of such imports.’’ Par. (7)(E)(i). Pub. L. 103–465, § 266, amended heading and text of cl. (i) generally. Prior to amendment, text read as follows: ‘‘In determining whether there is a threat of material injury, the Commission shall con- sider such information as may be presented to it by the administering authority as to the nature of the subsidy (particularly as to whether the subsidy is an export subsidy inconsistent with the Agreement) provided by a foreign country and the effects likely to be caused by the subsidy.’’ Par. (7)(F)(i), (ii). Pub. L. 103–465, § 222(c), amended cls. (i) and (ii) generally, substituting present provi- sions for provisions which listed factors in determining as well as basis for determining that an industry is threatened with material injury by reason of imports (or sales for importation) of the subject merchandise. Par. (7)(F)(iii)(I), (II). Pub. L. 103–465, § 233(b)(1)(A), in subcl. (I), substituted ‘‘WTO member’’ for ‘‘GATT mem- ber’’, and in subcl. (II), substituted ‘‘WTO member’’ for ‘‘GATT member’’ in heading and text before ‘‘market’’, and ‘‘WTO member.’’ for ‘‘signatory to The Agreement on Implementation of Article VI of the General Agree- ment on Tariffs and Trade (relating to antidumping measures).’’ Par. (7)(F)(iv). Pub. L. 103–465, § 222(e)(1), struck out heading and text of cl. (iv). Prior to amendment, text read as follows: ‘‘To the extent practicable and subject to subparagraph (C)(iv)(II) and (v), for purposes of clause (i)(III) and (IV) the Commission may cumula- tively assess the volume and price effects of imports from two or more countries if such imports— ‘‘(I) compete with each other, and with like prod- ucts of the domestic industry, in the United States market, and ‘‘(II) are subject to any investigation under section 1303, 1671, or 1673 of this title.’’ Par. (7)(G), (H). Pub. L. 103–465, § 222(e)(2), added sub- pars. (G) and (H). Par. (7)(I). Pub. L. 103–465, § 222(f), added subpar. (I). Par. (8). Pub. L. 103–465, § 270(e), amended heading and text of par. (8) generally. Prior to amendment, text read as follows: ‘‘The terms ‘Agreement on Subsidies and Countervailing Measures’ and ‘Agreement’ mean the Agreement on Interpretation and Application of Articles VI, XVI, and XXIII of the General Agreement on Tariffs and Trade (relating to subsidies and counter- vailing measures) approved under section 2503(a) of this title.’’ Par. (9)(A). Pub. L. 103–465, §§ 222(g)(1), 233(a)(5)(CC), substituted ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of an investigation under this sub- title’’ and inserted ‘‘producers, exporters, or’’ before ‘‘importers’’. Par. (9)(B). Pub. L. 103–465, § 222(g)(2), inserted ‘‘or from which such merchandise is exported’’ after ‘‘man- ufactured’’. Par. (9)(C) to (F). Pub. L. 103–465, § 233(a)(3)(A)(iii), substituted ‘‘domestic like product’’ for ‘‘like product’’. Par. (10). Pub. L. 103–465, § 233(a)(3)(A)(iii), substituted ‘‘domestic like product’’ for ‘‘like product’’ in heading and text. Par. (11). Pub. L. 103–465, § 221(b), inserted ‘‘, including a determination under section 1675 of this title,’’ after ‘‘determination by the Commission’’ in in- troductory provisions. Par. (13). Pub. L. 103–465, § 222(i)(2), struck out head- ing and text of par. (13). Text read as follows: ‘‘For the purpose of determining United States price, the term ‘exporter’ includes the person by whom or for whose ac- count the merchandise is imported into the United States if— ‘‘(A) such person is the agent or principal of the ex- porter, manufacturer, or producer; ‘‘(B) such person owns or controls, directly or indi- rectly, through stock ownership or control or other- wise, any interest in the business of the exporter, manufacturer, or producer; ‘‘(C) the exporter, manufacturer, or producer owns or controls, directly or indirectly, through stock ownership or control or otherwise, any interest in any business conducted by such person; or ‘‘(D) any person or persons, jointly or severally, di- rectly or indirectly, through stock ownership or con- trol or otherwise, own or control in the aggregate 20 percent or more of the voting power or control in the business carried on by the person by whom or for whose account the merchandise is imported into the United States, and also 20 percent or more of such power or control in the business of the exporter, man- ufacturer, or producer.’’ Par. (15). Pub. L. 103–465, § 222(h), substituted ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of an investigation’’ and inserted at end ‘‘The admin- istering authority shall consider the following sales and transactions, among others, to be outside the ordi- nary course of trade: ‘‘(A) Sales disregarded under section 1677b(b)(1) of this title. ‘‘(B) Transactions disregarded under section 1677b(f)(2) of this title.’’ Par. (16). Pub. L. 103–465, § 233(a)(4), substituted ‘‘For- eign like product’’ for ‘‘Such or similar merchandise’’ as heading and ‘‘foreign like product’’ for ‘‘such or similar merchandise’’ in introductory provisions. Par. (16)(A). Pub. L. 103–465, § 233(a)(5)(DD), sub- stituted ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of an investigation’’. Par. (16)(B)(i). Pub. L. 103–465, § 233(a)(5)(EE), which directed the substitution of ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of an investigation’’, was executed by making the substitution for text which contained the words ‘‘the investigation’’ rather than ‘‘an investigation’’, to reflect the probable intent of Congress. Par. (17). Pub. L. 103–465, § 233(a)(5)(FF), substituted ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of the investigation’’. Par. (24). Pub. L. 103–465, § 222(d)(2), added par. (24). Pars. (25) to (34). Pub. L. 103–465, § 222(i)(1), added pars. (25) to (34). Par. (35). Pub. L. 103–465, § 229(b), added par. (35). Par. (36). Pub. L. 103–465, § 267, added par. (36). 1993—Pars. (18), (21). Pub. L. 103–182, § 412(b)(1), redes- ignated par. (18), relating to United States-Canada Agreement, as (21). Par. (22). Pub. L. 103–182, § 412(b)(2), added (22). Par. (23). Pub. L. 103–182, § 637(b), added par. (23). 1990—Par. (7)(C)(iv). Pub. L. 101–382, § 224(a), amended cl. (iv) generally. Prior to amendment, cl. (iv) read as Page 395 TITLE 19—CUSTOMS DUTIES § 1677 follows: ‘‘For purposes of clauses (i) and (ii), the Com- mission shall cumulatively assess the volume and ef- fect of imports from two or more countries of like prod- ucts subject to investigation if such imports compete with each other and with like products of the domestic industry in the United States market.’’ Par. (7)(F)(iv). Pub. L. 101–382, § 224(b), substituted ‘‘(C)(iv)(II) and (v)’’ for ‘‘(C)(v)’’. Par. (20)(A). Pub. L. 101–382, § 139(a)(3), substituted ‘‘chapter 98 of the Harmonized Tariff Schedule’’ for ‘‘schedule 8 of the Tariff Schedules’’. 1988—Par. (4)(E). Pub. L. 100–418, § 1326(a), added sub- par. (E). Par. (5). Pub. L. 100–418, § 1312, amended par. (5) gen- erally. Prior to amendment, par. (5) read as follows: ‘‘The term ‘subsidy’ has the same meaning as the term ‘bounty or grant’ as that term is used in section 1303 of this title, and includes, but is not limited to, the fol- lowing: ‘‘(A) Any export subsidy described in Annex A to the Agreement (relating to illustrative list of export subsidies). ‘‘(B) The following domestic subsidies, if provided or required by government action to a specific enter- prise or industry, or group of enterprises or indus- tries, whether publicly or privately owned, and whether paid or bestowed directly or indirectly on the manufacture, production, or export of any class or kind of merchandise: ‘‘(i) The provision of capital, loans, or loan guar- antees on terms inconsistent with commercial con- siderations. ‘‘(ii) The provision of goods or services at pref- erential rates. ‘‘(iii) The grant of funds or forgiveness of debt to cover operating losses sustained by a specific indus- try. ‘‘(iv) The assumption of any costs or expenses of manufacture, production, or distribution.’’ Par. (7)(B). Pub. L. 100–418, § 1328(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘In making its determinations under sections 1671b(a), 1671d(b), 1673b(a), and 1673d(b) of this title, the Commission shall consider, among other factors— ‘‘(i) the volume of imports of the merchandise which is the subject of the investigation, ‘‘(ii) the effect of imports of that merchandise on prices in the United States for like products, and ‘‘(iii) the impact of imports of such merchandise on domestic producers of like products.’’ Par. (7)(C). Pub. L. 100–418, § 1328(2), in heading sub- stituted ‘‘relevant factors’’ for ‘‘volume and of price ef- fects’’, in cl. (ii)(I) substituted ‘‘underselling’’ for ‘‘un- dercutting’’, and in cl. (iii) inserted ‘‘domestic’’ in heading and amended text generally. Prior to amend- ment, text of cl. (iii) read as follows: ‘‘In examining the impact on the affected industry, the Commission shall evaluate all relevant economic factors which have a bearing on the state of the industry, including, but not limited to— ‘‘(I) actual and potential decline in output, sales, market share, profits, productivity, return on invest- ments, and utilization of capacity, ‘‘(II) factors affecting domestic prices, and ‘‘(III) actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment.’’ Par. (7)(C)(v). Pub. L. 100–418, § 1330(b), added cl. (v). Par. (7)(F)(i)(IX). Pub. L. 100–418, § 1326(b), which di- rected that par. (7)(F) be amended by adding subcl. (IX), was executed by adding subcl. (IX) to par. (7)(F)(i) to reflect the probable intent of Congress. Par. (7)(F)(i)(X). Pub. L. 100–418, § 1329(1)–(3), added subcl. (X). Par. (7)(F)(iii). Pub. L. 100–418, § 1329(4), added cl. (iii). Par. (7)(F)(iv). Pub. L. 100–418, § 1330(a), added cl. (iv). Par. (9)(G). Pub. L. 100–418, § 1326(c), added subpar. (G). Par. (18). Pub. L. 100–449 temporarily added par. (18) relating to United States-Canada Agreement. See Ef- fective and Termination Dates of 1988 Amendment note below. Pub. L. 100–418, § 1316(b), added par. (18) relating to nonmarket economy country. Par. (19). Pub. L. 100–647 redesignated par. (19), relat- ing to application to governmental importations, as (20). Pub. L. 100–418, § 1335, added par. (19) relating to appli- cation to governmental importations. Pub. L. 100–418, § 1327, added par. (19) relating to equivalency of leases to sales. Par. (20). Pub. L. 100–647 redesignated par. (19), relat- ing to application to governmental importations, as (20). 1986—Par. (7)(F)(i). Pub. L. 99–514 substituted ‘‘the merchandise’’ for ‘‘any merchandise’’ in introductory provisions and ‘‘final orders’’ for ‘‘find orders’’ in subcl. (VIII). 1984—Par. (4)(A). Pub. L. 98–573, § 612(a)(1), inserted provision that in the case of wine and grape products subject to investigation under this subtitle, the term also means the domestic producers of the principal raw agricultural product (determined on either a volume or value basis) which is included in the like domestic product, if those producers allege material injury, or threat of material injury, as a result of imports of such wine and grape products. Par. (7)(C)(iv). Pub. L. 98–623, § 612(a)(2)(A), added cl. (iv). Par. (7)(F). Pub. L. 98–573, § 612(a)(2)(B), added subpar. (F). Par. (9)(F). Pub. L. 98–573, § 612(a)(3), added subpar. (F). Par. (14)(A), (B). Pub. L. 98–573, § 612(a)(4), substituted ‘‘in commercial quantities’’ for ‘‘at wholesale’’. Par. (17). Pub. L. 98–573, § 612(a)(5), substituted ‘‘com- mercial quantities’’ for ‘‘wholesale quantities’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Commissioner of U.S. Customs and Border Protec- tion’’ substituted for ‘‘Commissioner of Customs’’ in two places in par. (18)(E) on authority of section 802(d)(2) of Pub. L. 114–125, set out as a note under sec- tion 211 of Title 6, Domestic Security. EFFECTIVE DATE OF 2020 AMENDMENT Amendment by Pub. L. 116–113 effective on the date on which the USMCA enters into force (July 1, 2020), but not applicable to certain determinations under sec- tion 1516a of this title or binational panel reviews under NAFTA, see section 432 of Pub. L. 116–113, set out as a note under section 1516a of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 effective, except as otherwise provided, on the date on which the WTO Agreement enters into force with respect to the United States (Jan. 1, 1995), and applicable with respect to in- vestigations, reviews, and inquiries initiated and peti- tions filed under specified provisions of this chapter after such date, see section 291 of Pub. L. 103–465, set out as a note under section 1671 of this title. EFFECTIVE DATE OF 1993 AMENDMENT Amendment by section 412(b) of Pub. L. 103–182 effec- tive on the date the North American Free Trade Agree- ment enters into force with respect to the United States [Jan. 1, 1994], but not applicable to any final de- termination described in section 1516a(a)(1)(B) or (2)(B)(i), (ii), or (iii) of this title, notice of which is pub- lished in the Federal Register before such date, or to a determination described in section 1516a(a)(2)(B)(vi) of this title, notice of which is received by the Govern- ment of Canada or Mexico before such date, or to any binational panel review under the United States-Can- ada Free-Trade Agreement, or to any extraordinary challenge arising out of any such review that was com- menced before such date, see section 416 of Pub. L. 103–182, formerly set out as an Effective Date note under former section 3431 of this title. Page 396 TITLE 19—CUSTOMS DUTIES § 1677–1 EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–382, title II, § 224(c), Aug. 20, 1990, 104 Stat. 660, provided that: ‘‘The amendments made by sub- sections (a) and (b) [amending this section] apply with respect to investigations (including investigations re- garding products of Canadian origin) initiated under section 702 or 732 of the Tariff Act of 1930 [19 U.S.C. 1671a, 1673a] on or after the date of the enactment of this Act [Aug. 20, 1990].’’ EFFECTIVE AND TERMINATION DATES OF 1988 AMENDMENT Amendment by Pub. L. 100–647 applicable as if such amendment took effect on Aug. 23, 1988, see section 9001(b) of Pub. L. 100–647, set out as a note under sec- tion 58c of this title. Amendment by Pub. L. 100–449 effective on date United States-Canada Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to have effect on date Agreement ceases to be in force, see section 501(a), (c) of Pub. L. 100–449, set out in a note under section 2112 of this title. Amendment by sections 1312, 1316(b), 1326(a)–(c), and 1327–1329 of Pub. L. 100–418 applicable with respect to investigations initiated after Aug. 23, 1988, and to re- views initiated under section 1673e(c) or 1675 of this title after Aug. 23, 1988, see section 1337(b) of Pub. L. 100–418, set out as an Effective Date of 1988 Amendment note under section 1671 of this title. Amendment by section 1330 of Pub. L. 100–418 applica- ble with respect to investigations initiated after Aug. 23, 1988, see section 1337(c) of Pub. L. 100–418. Amendment by section 1335 of Pub. L. 100–418 applica- ble with respect to entries, and withdrawals from ware- house for consumption, that are liquidated on or after Aug. 23, 1988, see section 1337(e) of Pub. L. 100–418. EFFECTIVE AND TERMINATION DATES OF 1984 AMENDMENT Amendment by Pub. L. 98–573 applicable with respect to investigations initiated by petition or by the admin- istering authority under parts I and II of this subtitle, and to reviews begun under section 1675 of this title, on or after Oct. 30, 1984; but provisions of this subtitle not to be interpreted to prevent refiling of a petition under section 1671a or 1673a of this title that was filed before Oct. 30, 1984, if the purpose of refiling was to avail peti- tioner of amendment of par. (4)(A) of this section by Pub. L. 98–573, and such amendment of par. (4)(A) inap- plicable to petitions filed (or refiled) under section 1671a or 1673a of this title after Sept. 30, 1986, see sec- tion 626(b)(1), (c)(1), (2) of Pub. L. 98–573, as amended, set out as an Effective Date of 1984 Amendment note under section 1671 of this title. EFFECTIVE DATE Part effective Jan. 1, 1980, see section 107 of Pub. L. 96–39, set out as a note under section 1671 of this title. TRANSFER OF FUNCTIONS For transfer of functions, personnel, assets, and li- abilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Sec- retary of Homeland Security, and for treatment of re- lated references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of Novem- ber 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Se- curity, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended gen- erally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6. EFFECT OF TERMINATION OF USMCA COUNTRY STATUS For provisions relating to effect of termination of USMCA country status on sections 401 to 432 of Pub. L. 116–113, see section 4601 of this title. PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989 For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1801–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of Title 26, Internal Revenue Code. Executive Documents TRANSFER OF FUNCTIONS All functions of the Secretary of the Treasury under this subtitle were transferred to the Secretary of Com- merce pursuant to Reorg. Plan No. 3 of 1979, § 5(a)(1)(C), 44 F.R. 69275, 93 Stat. 1381, eff. Jan. 2, 1980, as provided by section 1–107(a) of Ex. Ord. No. 12188, Jan. 2, 1980, 45 F.R. 993, set out as notes under section 2171 of this title, except that the Customs Service of the Depart- ment of the Treasury was to accept such deposits, bonds, or other security as deemed appropriate by the Secretary of Commerce, assess and collect such duties as directed by the Secretary of Commerce, and furnish such of its important records or copies thereof as re- quested by the Secretary incident to the functions transferred. URUGUAY ROUND AGREEMENTS: ENTRY INTO FORCE The Uruguay Round Agreements, including the World Trade Organization Agreement and agreements an- nexed to that Agreement, as referred to in section 3511(d) of this title, entered into force with respect to the United States on Jan. 1, 1995. See note set out under section 3511 of this title. § 1677–1. Upstream subsidies (a) ‘‘Upstream subsidy’’ defined The term ‘‘upstream subsidy’’ means any countervailable subsidy, other than an export subsidy, that— (1) is paid or bestowed by an authority (as defined in section 1677(5) of this title) with re- spect to a product (hereafter in this section re- ferred to as an ‘‘input product’’) that is used in the same country as the authority in the man- ufacture or production of merchandise which is the subject of a countervailing duty pro- ceeding; (2) in the judgment of the administering au- thority bestows a competitive benefit on the merchandise; and (3) has a significant effect on the cost of manufacturing or producing the merchandise. In applying this subsection, an association of two or more foreign countries, political subdivi- sions, dependent territories, or possessions of foreign countries organized into a customs union outside the United States shall be treated as being one country if the countervailable sub- sidy is provided by the customs union. (b) Determination of competitive benefit (1) In general Except as provided in paragraph (2), the ad- ministering authority shall decide that a com- petitive benefit has been bestowed when the price for the input product referred to in sub- section (a)(1) for such use is lower than the price that the manufacturer or producer of merchandise which is the subject of a counter-