DEFINITIONS.

SEC. 222. DEFINITIONS. (a) Industry.— (1) In general.—Subparagraphs (A) and (B) of section 771(4) (19 U.S.C. 1677(4) (A) anti (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 production of the product. “(B) Related parties.— “(i) If a producer of a domestic like product and an exporter or importer of the subject merchandise are related parties, or if a producer of the domestic like product is also an importer of the subject merchandise, the producer may, in appropriate circumstances, be excluded from the industry. “(ii) For purposes of clause (i), a producer and an exporter or importer shall be considered to be related parties, if— “(I) the producer directly or indirectly controls the exporter or importer, “(II) the exporter or importer directly or indirectly controls the producer, “(III) a third party directly or indirectly controls the producer and the exporter or importer, or “(IV) the producer and the exporter or importer directly or indirectly control a third party and there is reason to believe that the relationship causes the producer to act differently than a nonrelated producer. For purposes of this subparagraph, a party shall be considered to directly or indirectly control another party if the party is legally or operationally in a position to exercise restraint or direction over the other party.”. (2) Regional industry.—Section 771(4)(C) (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. 4870producers within a region who are treated as a separate industry 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), and (B) by striking the period at the end of subclause (IV) and inserting “, and “(V) in a proceeding under subtitle B, the magnitude 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 domestic like product for the production of a downstream article and sell significant production of the domestic like product in the merchant market, and the Commission finds that— “(I) the domestic like product produced that is internally transferred for processing into that downstream article does not enter the merchant market for the domestic like product, “(II) the domestic like product is the predominant material input in the production of that downstream article, and “(III) the production of the domestic like product sold in the merchant market is not generally used in the production of that downstream article, then the Commission, in determining market share and the factors affecting financial performance set forth in clause (iii), shall focus primarily on the merchant market for the domestic like product.”. (3) Technical correction.—Section 771(7)(C)(iii) is amended by striking “subparagraph (B)(iii)” and inserting “subparagraph (B)(i)(III)”. (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 material injury by reason of imports (or sales for importation) of the subject merchandise, the Commission shall consider, among other relevant economic factors— “(I) if a countervailable subsidy is involved, such information as may be presented to it by the administering authority as to the nature of the subsidy (particularly as to whether the countervailable subsidy is a subsidy described in Article 3 or 6.1 of the Subsidies Agreement), and whether imports of the subject merchandise are likely to increase, “(II) any existing unused production capacity or imminent, substantial increase in production capacity in the exporting country indicating the likelihood of substantially increased imports of the 108 STAT. 4871subject merchandise into the United States, taking into account the availability of other export markets to absorb any additional exports, “(III) a significant rate of increase of the volume or market penetration of imports of the subject merchandise indicating the likelihood of substantially increased imports, “(IV) whether imports of the subject merchandise are entering at prices that are likely to have a significant depressing or suppressing effect on domestic prices, and are likely to increase demand for further imports, “(V) inventories of the subject merchandise, “(VI) the potential for product-shifting if production facilities in the foreign country, which can be used to produce the subject merchandise, are currently being used to produce other products, “(VII) in any investigation under this title which involves imports of both a raw agricultural product (within the meaning of paragraph (4)(E)(iv)) and any product processed from such raw agricultural product, the likelihood that there will be increased imports, by reason of product shifting, if there is an affirmative determination by the Commission under section 705(b)(l) or 735(b)(l) with respect to either the raw agricultural product or the processed agricultural product (but not both), “(VIII) the actual and potential negative effects on the existing development and production efforts of the domestic industry, including efforts to develop a derivative or more advanced version of the domestic like product, and “(IX) any other demonstrable adverse trends that indicate the probability that there is likely to be material injury by reason of imports (or sale for importation) of the subject merchandise (whether or not it is actually being imported at the time). “(ii) Basis for determination—The Commission shall consider the factors set forth in clause (i) as a whole in making a determination of whether further dumped or subsidized imports are imminent and whether material injury by reason of imports would occur unless an order is issued or a suspension agreement is accepted under this title. The presence or absence of any factor which the Commission is required to consider under clause (i) shall not necessarily give decisive guidance with respect to the determination. Such a determination may not be made on the basis of mere conjecture or supposition.”. (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) Negligible imports.— 108 STAT. 4872 “(A) In general.— “(i) Less than 3 percent.—Except as provided in clauses (ii) and (iv), imports from a country of merchandise corresponding to a domestic like product identified by the Commission are ‘negligible’ if such imports account for less than 3 percent of the volume of all such merchandise imported into the United States in the most recent 12-month period for which data are available that precedes— “(I) the filing of the petition under section 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 volume of imports of the merchandise from all countries described in clause (i) with respect to which investigations were initiated on the same day exceeds 7 percent of the volume of all such merchandise imported into the United States during the applicable 12-month period. “(iii) Determination of aggregate volume.—In determining aggregate volume under clause (ii) or (iv), the Commission snail not consider imports from any country specified in paragraph (7)(G)(ii). “(iv) Negligibility in threat analysis—Notwithstanding clauses (i) and (ii), the Commission shall not treat imports as negligible if it determines that there is a potential that imports from a country described in clause (i) will imminently account for more than 3 percent of the volume of all such merchandise imported into the United States, or that the aggregate volumes of imports from all countries described in clause (ii) will imminently exceed 7 percent of the volume of all such merchandise imported into the United States. The Commission shall consider such imports only for purposes of determining threat of material injury. “(B) Negligibility for certain countries in countervailing duty investigations.—In the case of an investigation under section 701, subparagraph (A) shall be applied to imports of subject merchandise from developing countries by substituting ‘4 percent’ for ‘3 percent’ in subparagraph (A)(i) and by substituting ‘9 percent’ for ‘7 percent’ in subparagraph (A)(ii). “(C) Computation of import volumes.—In computing import volumes for purposes of subparagraphs (A) and (B), the Commission may make reasonable estimates on the basis of available statistics. “(D) Regional industries.—In an investigation in which the Commission makes a regional industry determination under paragraph (4)(C), the Commission’s examination under subparagraphs (A) and (B) shall be based upon the volume of subject merchandise exported for sale in the regional market in lieu of the volume of all subject merchandise imported into the United States.”. 108 STAT. 4873 (e) Cumulation.—Section 771(7) (19 U.S.C. 1677(7)) is amended— (1) in subparagraph (F) by striking clause (iv), and (2) by adding at the end the 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 cumulatively assess the volume and effect of imports of the subject merchandise from all countries with respect to which— “(I) petitions were filed under section 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. “(ii) Exceptions.—The Commission shall not cumulatively assess the volume and effect of imports under clause (i)— “(I) with respect to which the administering authority has made a preliminary negative determination, unless the administering authority subsequently made a final affirmative determination with respect to those imports before the Commission’s final determination is made; “(II) from any country with respect to which the investigation has been terminated; “(III) from any country designated as a beneficiary country under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2701 et seq.) for purposes of making a determination with respect to that country, except that the volume and effect of imports of the subject merchandise from such country may be cumulatively assessed with imports of the subject merchandise from any other country designated as such a beneficiary country to the extent permitted by clause (i); or “(IV) from any country that is a party to an agreement with the United States establishing a free trade area, which entered into force and effect before January 1, 1987, unless the Commission determines that a domestic industry is materially injured or threatened with material injury by reason of imports from that country. “(iii) Records in final investigations.—In each final determination in which it cumulatively assesses the volume and effect of imports under clause (i), the Commission shall make its determinations based on the record compiled in the first investigation in which it makes a final determination, except that when the administering authority issues its final determination in a subsequently completed investigation, the Commission shall permit the parties in the subsequent 108 STAT. 4874investigation to submit comments concerning the significance of the administering authority’s final determination, and shall include such comments and the administering authority’s final determination in the record for the subsequent investigation. “(iv) Regional industry determinations.—In an investigation which involves a regional industry, and in which the Commission decides that the volume and effect of imports should be cumulatively assessed under this subparagraph, such assessment shall be based upon the volume and effect of imports into the region or regions determined by the Commission. The provisions of clause (iii) shall apply to such investigations. “(H) Cumulation for determining threat of material injury.—To the extent practicable and subject to subparagraph (G)(ii), for purposes of clause (i)(III) and (IV) of subparagraph (F), the Commission may cumulatively assess the volume and price effects of imports of the subject merchandise from all countries with respect to which— “(i) petitions were filed under section 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 at the end the following: “(I) Consideration of post-petition information.—The Commission shall consider whether any change in the volume, price effects, or impact of imports of the subject merchandise since the filing of the petition in an investigation under subtitle A or B is related to the pendency of the investigation and, if so, the Commission may reduce the weight accorded to the data for the period after the filing of the petition in making its determination of material injury, threat of material injury, or material retardation of the establishment of an industry in the United States.”. (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 from 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)(l). “(B) Transactions disregarded under section 773(f)(2).”. 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 the end the following: “(25) Subject merchandise.—The term ‘subject merchandise’ means the class or kind of merchandise that is within the scope of an investigation, a review, a suspension agreement, an order under this title 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 producer’ means the exporter of the subject merchandise, the producer of the subject merchandise, or both where appropriate. For purposes of section 773, the term ‘exporter or producer’ includes both the exporter of the subject merchandise and the producer of the same subject merchandise to the extent necessary to accurately calculate the total amount incurred and realized for costs, expenses, and profits in connection with production and sale of that merchandise. “(29) WTO agreement.—The term “WTO Agreement’ means the Agreement defined in section 2(9) of the Uruguay Round Agreements Act. “(30) WTO member and wto member country.—The terms ‘WTO member’ and ‘WTO member country’ mean a state, or separate customs territory (within the meaning of Article XII of the WTO Agreement), with respect to which the United States applies the WTO agreement. “(31) GATT 1994.—The term ‘GATT 1994’ means the General Agreement on Tariffs and Trade annexed to the WTO Agreement “(32) Trade representative.—The term Trade Representative’ means the United States Trade Representative. “(33) Affiliated persons.—The following persons shall be considered to be ‘affiliated’ or ‘affiliated persons’: “(A) Members of a family, including brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants. “(B) Any officer or director of an organization and such organization. “(C) Partners. “(D) Employer and employee. “(E) Any person directly or indirectly owning, controlling, or holding with power to vote, 5 percent or more of the outstanding voting stock or shares of any organization and such organization. “(F) Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person. “(G) Any person who controls any other person and such other person. 108 STAT. 4876For 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.”. (2) Exporter.—Paragraph (13) of section 771 (19 U.S.C. 1677(13)) is repealed.