19 USC 1677 - Definitions; special rules

U.S Code last checked for updates: Nov 22, 2024

§ 1677.

Definitions; special rules

For purposes of this subtitle—

(1)

Administering authority

(2)

Commission

(3)

Country

(4)

Industry

(A)

In general

(B)

Related parties

(i)

If a producer of a domestic like product and an exporter or importer of the subject merchandise are related parties, or if a producer of the domestic like product is also an importer of the subject merchandise, the producer may, in appropriate circumstances, be excluded from the industry.

(ii)

For purposes of clause (i), a producer and an exporter or importer shall be considered to be related parties, if—

(I)

the producer directly or indirectly controls the exporter or importer,

(II)

the exporter or importer directly or indirectly controls the producer,

(III)

a third party directly or indirectly controls the producer and the exporter or importer, or

(IV)

the producer and the exporter or importer directly or indirectly control a third party and there is reason to believe that the relationship causes the producer to act differently than a nonrelated producer.

For purposes of this subparagraph, a party shall be considered to directly or indirectly control another party if the party is legally or operationally in a position to exercise restraint or direction over the other party.

(C)

Regional industries

In appropriate circumstances, the United States, for a particular product market, may be divided into 2 or more markets and the producers within each market may be treated as if they were a separate industry if—

(i)

the producers within such market sell all or almost all of their production of the domestic like product in question in that market, and

(ii)

the demand in that market is not supplied, to any substantial degree, by producers of the product in question located elsewhere in the United States.

In such appropriate circumstances, material injury, the threat of material injury, or material retardation of the establishment of an industry may be found to exist with respect to an industry even if the domestic industry as a whole, or those producers whose collective output of a domestic like product constitutes a major proportion of the total domestic production of that product, is not injured, if there is a concentration of dumped imports or imports of merchandise benefiting from a countervailable subsidy into such an isolated market and if the producers of all, or almost all, of the production within that market are being materially injured or threatened by material injury, or if the establishment of an industry is being materially retarded, by reason of the dumped imports or imports of merchandise benefiting from a countervailable subsidy. The term “regional industry” means the domestic producers within a region who are treated as a separate industry under this subparagraph.

(D)

Product lines

(E)

Industry producing processed agricultural products

(i)

In general

Subject to clause (v), in an investigation involving a processed agricultural product produced from any raw agricultural product, the producers or growers of the raw agricultural product may be considered part of the industry producing the processed product if—

(I)

the processed agricultural product is produced from the raw agricultural product through a single continuous line of production; and

(II)

there is a substantial coincidence of economic interest between the producers or growers of the raw agricultural product and the processors of the processed agricultural product based upon relevant economic factors, which may, in the discretion of the Commission, include price, added market value, or other economic interrelationships (regardless of whether such coincidence of economic interest is based upon any legal relationship).

(ii)

Processing

For purposes of this subparagraph, the processed agricultural product shall be considered to be processed from a raw agricultural product through a single continuous line of production if—

(I)

the raw agricultural product is substantially or completely devoted to the production of the processed agricultural product; and

(II)

the processed agricultural product is produced substantially or completely from the raw product.

(iii)

Relevant economic factors

For purposes of clause (i)(II), in addition to such other factors it considers relevant to the question of coincidence of economic interest, the Commission shall—

(I)

if price is taken into account, consider the degree of correlation between the price of the raw agricultural product and the price of the processed agricultural product; and

(II)

if added market value is taken into account, consider whether the value of the raw agricultural product constitutes a significant percentage of the value of the processed agricultural product.

(iv)

Raw agricultural product

(v)

Termination of this subparagraph

(5)

Countervailable subsidy

(A)

In general

(B)

Subsidy described

A subsidy is described in this paragraph in the case in which an authority—

(i)

provides a financial contribution,

(ii)

provides any form of income or price support within the meaning of Article XVI of the GATT 1994, or

(iii)

makes a payment to a funding mechanism to provide a financial contribution, or entrusts or directs a private entity to make a financial contribution, if providing the contribution would normally be vested in the government and the practice does not differ in substance from practices normally followed by governments,

to a person and a benefit is thereby conferred. For purposes of this paragraph and paragraphs (5A) and (5B), the term “authority” means a government of a country or any public entity within the territory of the country.

(C)

Other factors

(D)

Financial contribution

The term “financial contribution” means—

(i)

the direct transfer of funds, such as grants, loans, and equity infusions, or the potential direct transfer of funds or liabilities, such as loan guarantees,

(ii)

foregoing or not collecting revenue that is otherwise due, such as granting tax credits or deductions from taxable income,

(iii)

providing goods or services, other than general infrastructure, or

(iv)

purchasing goods.

(E)

Benefit conferred

A benefit shall normally be treated as conferred where there is a benefit to the recipient, including—

(i)

in the case of an equity infusion, if the investment decision is inconsistent with the usual investment practice of private investors, including the practice regarding the provision of risk capital, in the country in which the equity infusion is made,

(ii)

in the case of a loan, if there is a difference between the amount the recipient of the loan pays on the loan and the amount the recipient would pay on a comparable commercial loan that the recipient could actually obtain on the market,

(iii)

in the case of a loan guarantee, if there is a difference, after adjusting for any difference in guarantee fees, between the amount the recipient of the guarantee pays on the guaranteed loan and the amount the recipient would pay for a comparable commercial loan if there were no guarantee by the authority, and

(iv)

in the case where goods or services are provided, if such goods or services are provided for less than adequate remuneration, and in the case where goods are purchased, if such goods are purchased for more than adequate remuneration.

For purposes of clause (iv), the adequacy of remuneration shall be determined in relation to prevailing market conditions for the good or service being provided or the goods being purchased in the country which is subject to the investigation or review. Prevailing market conditions include price, quality, availability, marketability, transportation, and other conditions of purchase or sale.

(F)

Change in ownership

(5A)

Specificity

(A)

In general

(B)

Export subsidy

(C)

Import substitution subsidy

(D)

Domestic subsidy

In determining whether a subsidy (other than a subsidy described in subparagraph (B) or (C)) is a specific subsidy, in law or in fact, to an enterprise or industry within the jurisdiction of the authority providing the subsidy, the following guidelines shall apply:

(i)

Where the authority providing the subsidy, or the legislation pursuant to which the authority operates, expressly limits access to the subsidy to an enterprise or industry, the subsidy is specific as a matter of law.

(ii)

Where the authority providing the subsidy, or the legislation pursuant to which the authority operates, establishes objective criteria or conditions governing the eligibility for, and the amount of, a subsidy, the subsidy is not specific as a matter of law, if—

(I)

eligibility is automatic,

(II)

the criteria or conditions for eligibility are strictly followed, and

(III)

the criteria or conditions are clearly set forth in the relevant statute, regulation, or other official document so as to be capable of verification.

For purposes of this clause, the term “objective criteria or conditions” means criteria or conditions that are neutral and that do not favor one enterprise or industry over another.

(iii)

Where there are reasons to believe that a subsidy may be specific as a matter of fact, the subsidy is specific if one or more of the following factors exist:

(I)

The actual recipients of the subsidy, whether considered on an enterprise or industry basis, are limited in number.

(II)

An enterprise or industry is a predominant user of the subsidy.

(III)

An enterprise or industry receives a disproportionately large amount of the subsidy.

(IV)

The manner in which the authority providing the subsidy has exercised discretion in the decision to grant the subsidy indicates that an enterprise or industry is favored over others.

In evaluating the factors set forth in subclauses (I), (II), (III), and (IV), the administering authority shall take into account the extent of diversification of economic activities within the jurisdiction of the authority providing the subsidy, and the length of time during which the subsidy program has been in operation.

(iv)

Where a subsidy is limited to an enterprise or industry located within a designated geographical region within the jurisdiction of the authority providing the subsidy, the subsidy is specific.

For purposes of this paragraph and paragraph (5B), any reference to an enterprise or industry is a reference to a foreign enterprise or foreign industry and includes a group of such enterprises or industries.

(5B)

Categories of noncountervailable subsidies

(A)

In general

(B)

Research subsidy

(i)

In general

Except for a subsidy provided on the manufacture, production, or export of civil aircraft, a subsidy for research activities conducted by a person, or by a higher education or research establishment on a contract basis with a person, shall be treated as noncountervailable, if the subsidy covers not more than 75 percent of the costs of industrial research or not more than 50 percent of the costs of precompetitive development activity, and such subsidy is limited exclusively to—

(I)

the costs of researchers, technicians, and other supporting staff employed exclusively in the research activity,

(II)

the costs of instruments, equipment, land, or buildings that are used exclusively and permanently (except when disposed of on a commercial basis) for the research activity,

(III)

the costs of consultancy and equivalent services used exclusively for the research activity, including costs for bought-in research, technical knowledge, and patents,

(IV)

additional overhead costs incurred directly as a result of the research activity, and

(V)

other operating costs (such as materials and supplies) incurred directly as a result of the research activity.

(ii)

Definitions

For purposes of this subparagraph—

(I)

Industrial research

(II)

Precompetitive development activity

(iii)

Calculation rules

(I)

In general

(II)

Total eligible costs

(C)

Subsidy to disadvantaged regions

(i)

In general

A subsidy provided, pursuant to a general framework of regional development, to a person located in a disadvantaged region within a country shall be treated as noncountervailable, if it is not specific (within the meaning of paragraph (5A)) within eligible regions and if the following conditions are met:

(I)

Each region identified as disadvantaged within the territory of a country is a clearly designated, contiguous geographical area with a definable economic and administrative identity.

(II)

Each region is considered a disadvantaged region on the basis of neutral and objective criteria indicating that the region is disadvantaged because of more than temporary circumstances, and such criteria are clearly stated in the relevant statute, regulation, or other official document so as to be capable of verification.

(III)

The criteria described in subclause (II) include a measurement of economic development.

(IV)

Programs provided within a general framework of regional development include ceilings on the amount of assistance that can be granted to a subsidized project. Such ceilings are differentiated according to the different levels of development of assisted regions, and are expressed in terms of investment costs or costs of job creation. Within such ceilings, the distribution of assistance is sufficiently broad and even to avoid the predominant use of a subsidy by, or the provision of disproportionately large amounts of a subsidy to, an enterprise or industry as described in paragraph (5A)(D).

(ii)

Measurement of economic development

For purposes of clause (i), the measurement of economic development shall be based on one or more of the following factors:

(I)

Per capita income, household per capita income, or per capita gross domestic product that does not exceed 85 percent of the average for the country subject to investigation or review.

(II)

An unemployment rate that is at least 110 percent of the average unemployment rate for the country subject to investigation or review.

The measurement of economic development shall cover a 3-year period, but may be a composite measurement and may include factors other than those set forth in this clause.

(iii)

Definitions

For purposes of this subparagraph—

(I)

General framework of regional development

(II)

Neutral and objective criteria

(D)

Subsidy for adaptation of existing facilities to new environmental requirements

(i)

In general

A subsidy that is provided to promote the adaptation of existing facilities to new environmental requirements that are imposed by statute or by regulation, and that result in greater constraints and financial burdens on the recipient of the subsidy, shall be treated as noncountervailable, if the subsidy—

(I)

is a one-time nonrecurring measure,

(II)

is limited to 20 percent of the cost of adaptation,

(III)

does not cover the cost of replacing and operating the subsidized investment, a cost that must be fully borne by the recipient,

(IV)

is directly linked and proportionate to the recipient’s planned reduction of nuisances and pollution, and does not cover any manufacturing cost savings that may be achieved, and

(V)

is available to all persons that can adopt the new equipment or production processes.

(ii)

Existing facilities

(E)

Notified subsidy program

(i)

General rule

(ii)

Exception

Notwithstanding clause (i), a subsidy shall be treated as countervailable if—

(I)

the Trade Representative notifies the administering authority that a determination has been made pursuant to Article 8.4 or 8.5 of the Subsidies Agreement that the subsidy, or the program pursuant to which the subsidy was provided, does not satisfy the conditions and criteria of Article 8.2 of the Subsidies Agreement; and

(II)

the subsidy is specific within the meaning of paragraph (5A).

(F)

Certain subsidies on agricultural products

(G)

Provisional application

(i)

Subparagraphs (B), (C), (D), and (E) shall not apply on or after the first day of the month that is 66 months after the WTO Agreement enters into force, unless the provisions of such subparagraphs are extended pursuant to section 3572(c) of this title.

(ii)

Subparagraph (F) shall not apply to imports from a WTO member country at the end of the 9-year period beginning on January 1, 1995. The Trade Representative shall determine the precise termination date for each WTO member country in accordance with paragraph (i) of Article 1 of the Agreement on Agriculture and such date shall be notified to the administering authority.

(6)

Net countervailable subsidy

For the purpose of determining the net countervailable subsidy, the administering authority may subtract from the gross countervailable subsidy the amount of—

(A)

any application fee, deposit, or similar payment paid in order to qualify for, or to receive, the benefit of the countervailable subsidy,

(B)

any loss in the value of the countervailable subsidy resulting from its deferred receipt, if the deferral is mandated by Government order, and

(C)

export taxes, duties, or other charges levied on the export of merchandise to the United States specifically intended to offset the countervailable subsidy received.

(7)

Material injury

(A)

In general

(B)

Volume and consequent impact

In making determinations under sections 1671b(a), 1671d(b), 1673b(a), and 1673d(b) of this title, the Commission, in each case—

(i)

shall consider—

(I)

the volume of imports of the subject merchandise,

(II)

the effect of imports of that merchandise on prices in the United States for domestic like products, and

(III)

the impact of imports of such merchandise on domestic producers of domestic like products, but only in the context of production operations within the United States; and

(ii)

may consider such other economic factors as are relevant to the determination regarding whether there is material injury by reason of imports.

In the notification required under section 1671d(d) or 1673d(d) of this title, as the case may be, the Commission shall explain its analysis of each factor considered under clause (i), and identify each factor considered under clause (ii) and explain in full its relevance to the determination.

(C)

Evaluation of relevant factors

For purposes of subparagraph (B)—

(i)

Volume

(ii)

Price

In evaluating the effect of imports of such merchandise on prices, the Commission shall consider whether—

(I)

there has been significant price underselling by the imported merchandise as compared with the price of domestic like products of the United States, and

(II)

the effect of imports of such merchandise otherwise depresses prices to a significant degree or prevents price increases, which otherwise would have occurred, to a significant degree.

(iii)

Impact on affected domestic industry

In examining the impact required to be considered under subparagraph (B)(i)(III), the Commission shall evaluate all relevant economic factors which have a bearing on the state of the industry in the United States, including, but not limited to—

(I)

actual and potential decline in output, sales, market share, gross profits, operating profits, net profits, ability to service debt, productivity, return on investments, return on assets, and utilization of capacity,

(II)

factors affecting domestic prices,

(III)

actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment,

(IV)

actual and potential negative effects on the existing development and production efforts of the domestic industry, including efforts to develop a derivative or more advanced version of the domestic like product, and

(V)

in a proceeding under part II of this subtitle, the magnitude of the margin of dumping.

The Commission shall evaluate all relevant economic factors described in this clause within the context of the business cycle and conditions of competition that are distinctive to the affected industry.

(iv)

Captive production

If domestic producers internally transfer significant production of the domestic like product for the production of a downstream article and sell significant production of the domestic like product in the merchant market, and the Commission finds that—

(I)

the domestic like product produced that is internally transferred for processing into that downstream article does not enter the merchant market for the domestic like product, and

(II)

the domestic like product is the predominant material input in the production of that downstream article,

then the Commission, in determining market share and the factors affecting financial performance set forth in clause (iii), shall focus primarily on the merchant market for the domestic like product.

(D)

Special rules for agricultural products

(i)

The Commission shall not determine that there is no material injury or threat of material injury to United States producers of an agricultural commodity merely because the prevailing market price is at or above the minimum support price.

(ii)

In the case of agricultural products, the Commission shall consider any increased burden on government income or price support programs.

(E)

Special rules

For purposes of this paragraph—

(i)

Nature of countervailable subsidy

(ii)

Standard for determination

(F)

Threat of material injury

(i)

In general

In determining whether an industry in the United States is threatened with material injury by reason of imports (or sales for importation) of the subject merchandise, the Commission shall consider, among other relevant economic factors—

(I)

if a countervailable subsidy is involved, such information as may be presented to it by the administering authority as to the nature of the subsidy (particularly as to whether the countervailable subsidy is a subsidy described in Article 3 or 6.1 of the Subsidies Agreement), and whether imports of the subject merchandise are likely to increase,

(II)

any existing unused production capacity or imminent, substantial increase in production capacity in the exporting country indicating the likelihood of substantially increased imports of the subject merchandise into the United States, taking into account the availability of other export markets to absorb any additional exports,

(III)

a significant rate of increase of the volume or market penetration of imports of the subject merchandise indicating the likelihood of substantially increased imports,

(IV)

whether imports of the subject merchandise are entering at prices that are likely to have a significant depressing or suppressing effect on domestic prices, and are likely to increase demand for further imports,

(V)

inventories of the subject merchandise,

(VI)

the potential for product-shifting if production facilities in the foreign country, which can be used to produce the subject merchandise, are currently being used to produce other products,

(VII)

in any investigation under this subtitle which involves imports of both a raw agricultural product (within the meaning of paragraph (4)(E)(iv)) and any product processed from such raw agricultural product, the likelihood that there will be increased imports, by reason of product shifting, if there is an affirmative determination by the Commission under section 1671d(b)(1) or 1673d(b)(1) of this title with respect to either the raw agricultural product or the processed agricultural product (but not both),

(VIII)

the actual and potential negative effects on the existing development and production efforts of the domestic industry, including efforts to develop a derivative or more advanced version of the domestic like product, and

(IX)

any other demonstrable adverse trends that indicate the probability that there is likely to be material injury by reason of imports (or sale for importation) of the subject merchandise (whether or not it is actually being imported at the time).

(ii)

Basis for determination

(iii)

Effect of dumping in third-country markets

(I)

In general

(II)

WTO member market

(III)

European Communities

(G)

Cumulation for determining material injury

(i)

In general

For purposes of clauses (i) and (ii) of subparagraph (C), and subject to clause (ii), the Commission shall cumulatively assess the volume and effect of imports of the subject merchandise from all countries with respect to which—

(I)

petitions were filed under section 1671a(b) or 1673a(b) of this title on the same day,

(II)

investigations were initiated under section 1671a(a) or 1673a(a) of this title on the same day, or

(III)

petitions were filed under section 1671a(b) or 1673a(b) of this title and investigations were initiated under section 1671a(a) or 1673a(a) of this title on the same day,

if such imports compete with each other and with domestic like products in the United States market.

(ii)

Exceptions

The Commission shall not cumulatively assess the volume and effect of imports under clause (i)—

(I)

with respect to which the administering authority has made a preliminary negative determination, unless the administering authority subsequently made a final affirmative determination with respect to those imports before the Commission’s final determination is made;

(II)

from any country with respect to which the investigation has been terminated;

(III)

from any country designated as a beneficiary country under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2701 et seq.) for purposes of making a determination with respect to that country, except that the volume and effect of imports of the subject merchandise from such country may be cumulatively assessed with imports of the subject merchandise from any other country designated as such a beneficiary country to the extent permitted by clause (i); or

(IV)

from any country that is a party to an agreement with the United States establishing a free trade area, which entered into force and effect before January 1, 1987, unless the Commission determines that a domestic industry is materially injured or threatened with material injury by reason of imports from that country.

(iii)

Records in final investigations

(iv)

Regional industry determinations

(H)

Cumulation for determining threat of material injury

To the extent practicable and subject to subparagraph (G)(ii), for purposes of clause (i)(III) and (IV) of subparagraph (F), the Commission may cumulatively assess the volume and price effects of imports of the subject merchandise from all countries with respect to which—

(i)

petitions were filed under section 1671a(b) or 1673a(b) of this title on the same day,

(ii)

investigations were initiated under section 1671a(a) or 1673a(a) of this title on the same day, or

(iii)

petitions were filed under section 1671a(b) or 1673a(b) of this title and investigations were initiated under section 1671a(a) or 1673a(a) of this title on the same day,

if such imports compete with each other and with domestic like products in the United States market.

(I)

Consideration of post-petition information

(J)

Effect of profitability

(8)

Subsidies Agreement; Agreement on Agriculture

(A)

Subsidies Agreement

(B)

Agreement on Agriculture

(9)

Interested party

The term “interested party” means—

(A)

a foreign manufacturer, producer, or exporter, or the United States importer, of subject merchandise or a trade or business association a majority of the members of which are producers, exporters, or importers of such merchandise,

(B)

the government of a country in which such merchandise is produced or manufactured or from which such merchandise is exported,

(C)

a manufacturer, producer, or wholesaler in the United States of a domestic like product,

(D)

a certified union or recognized union or group of workers which is representative of an industry engaged in the manufacture, production, or wholesale in the United States of a domestic like product,

(E)

a trade or business association a majority of whose members manufacture, produce, or wholesale a domestic like product in the United States,

(F)

an association, a majority of whose members is composed of interested parties described in subparagraph (C), (D), or (E) with respect to a domestic like product, and

(G)

(i)

processors,

(ii)

processors and producers, or

(iii)

processors and growers,

but this subparagraph shall cease to have effect if the United States Trade Representative notifies the administering authority and the Commission that the application of this subparagraph is inconsistent with the international obligations of the United States.

(10)

Domestic like product

(11)

Affirmative determinations by divided Commission

If the Commissioners voting on a determination by the Commission, including a determination under section 1675 of this title, are evenly divided as to whether the determination should be affirmative or negative, the Commission shall be deemed to have made an affirmative determination. For the purpose of applying this paragraph when the issue before the Commission is to determine whether there is—

(A)

material injury to an industry in the United States,

(B)

threat of material injury to such an industry, or

(C)

material retardation of the establishment of an industry in the United States,

by reason of imports of the merchandise, an affirmative vote on any of the issues shall be treated as a vote that the determination should be affirmative.

(12)

Attribution of merchandise to country of manufacture or production

(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 quantities, or

(B)

in the ordinary course of trade to one or more selected purchasers in commercial quantities at a price which fairly reflects the market value of the merchandise,

without regard to restrictions as to the disposition or use of the merchandise by the purchaser except that, where such restrictions are found to affect the market value of the merchandise, adjustment shall be made therefor in calculating the price at which the merchandise is sold or offered for sale.

(15)

Ordinary course of trade

The term “ordinary course of trade” means the conditions and practices which, for a reasonable time prior to the exportation of the subject merchandise, have been normal in the trade under consideration with respect to merchandise of the same class or kind. The administering authority shall consider the following sales and transactions, among others, to be outside the ordinary course of trade:

(A)

Sales disregarded under section 1677b(b)(1) of this title.

(B)

Transactions disregarded under section 1677b(f)(2) of this title.

(C)

Situations in which the administering authority determines that the particular market situation prevents a proper comparison with the export price or constructed export price.

(16)

Foreign like product

The term “foreign like product” means merchandise in the first of the following categories in respect of which a determination for the purposes of part II of this subtitle can be satisfactorily made:

(A)

The subject merchandise and other merchandise which is identical in physical characteristics with, and was produced in the same country by the same person as, that merchandise.

(B)

Merchandise—

(i)

produced in the same country and by the same person as the subject merchandise,

(ii)

like that merchandise in component material or materials and in the purposes for which used, and

(iii)

approximately equal in commercial value to that merchandise.

(C)

Merchandise—

(i)

produced in the same country and by the same person and of the same general class or kind as the subject merchandise,

(ii)

like that merchandise in the purposes for which used, and

(iii)

which the administering authority determines may reasonably be compared with that merchandise.

(17)

Usual commercial quantities

(18)

Nonmarket economy country

(A)

In general

(B)

Factors to be considered

In making determinations under subparagraph (A) the administering authority shall take into account—

(i)

the extent to which the currency of the foreign country is convertible into the currency of other countries; 1

 So in original. The semicolon probably should be a comma.

(ii)

the extent to which wage rates in the foreign country are determined by free bargaining between labor and management,

(iii)

the extent to which joint ventures or other investments by firms of other foreign countries are permitted in the foreign country,

(iv)

the extent of government ownership or control of the means of production,

(v)

the extent of government control over the allocation of resources and over the price and output decisions of enterprises, and

(vi)

such other factors as the administering authority considers appropriate.

(C)

Determination in effect

(i)

Any determination that a foreign country is a nonmarket economy country shall remain in effect until revoked by the administering authority.

(ii)

The administering authority may make a determination under subparagraph (A) with respect to any foreign country at any time.

(D)

Determinations not in issue

(E)

Collection of information

(19)

Equivalency of leases to sales

In determining whether a lease is equivalent to a sale for purposes of this subtitle, the administering authority shall consider—

(A)

the terms of the lease,

(B)

commercial practice within the industry,

(C)

the circumstances of the transaction,

(D)

whether the product subject to the lease is integrated into the operations of the lessee or importer,

(E)

whether in practice there is a likelihood that the lease will be continued or renewed for a significant period of time, and

(F)

other relevant factors, including whether the lease transaction would permit avoidance of antidumping or countervailing duties.

(20)

Application to governmental importations

(A)

In general

(B)

Exceptions

Merchandise imported by, or for the use of, the Department of Defense shall not be subject to the imposition of countervailing or antidumping duties under this subtitle if—

(i)

the merchandise is acquired by, or for use of, such Department—

(I)

from a country with which such Department had a Memorandum of Understanding which was in effect on January 1, 1988, and has continued to have a comparable agreement (including renewals) or superceding agreements, and

(II)

in accordance with terms of the Memorandum of Understanding in effect at the time of importation, or

(ii)

the merchandise has no substantial nonmilitary use.

(21)

United States-Canada Agreement

(22)

USMCA

(23)

Entry

(24)

Negligible imports

(A)

In general

(i)

Less than 3 percent

Except as provided in clauses (ii) and (iv), imports from a country of merchandise corresponding to a domestic like product identified by the Commission are “negligible” if such imports account for less than 3 percent of the volume of all such merchandise imported into the United States in the most recent 12-month period for which data are available that precedes—

(I)

the filing of the petition under section 1671a(b) or 1673a(b) of this title, or

(II)

the initiation of the investigation, if the investigation was initiated under section 1671a(a) or 1673a(a) of this title.

(ii)

Exception

(iii)

Determination of aggregate volume

(iv)

Negligibility in threat analysis

(B)

Negligibility for certain countries in countervailing duty investigations

(C)

Computation of import volumes

(D)

Regional industries

(25)

Subject merchandise

(26)

Section 1303

(27)

Suspension agreement

(28)

Exporter or producer

(29)

WTO Agreement

(30)

WTO member and WTO member country

(31)

GATT 1994

(32)

Trade representative

(33)

Affiliated persons

The following persons shall be considered to be “affiliated” or “affiliated persons”:

(A)

Members of a family, including brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants.

(B)

Any officer or director of an organization and such organization.

(C)

Partners.

(D)

Employer and employee.

(E)

Any person directly or indirectly owning, controlling, or holding with power to vote, 5 percent or more of the outstanding voting stock or shares of any organization and such organization.

(F)

Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person.

(G)

Any person who controls any other person and such other person.

For purposes of this paragraph, a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person.

(34)

Dumped; dumping

(35)

Dumping margin; weighted average dumping margin

(A)

Dumping margin

(B)

Weighted average dumping margin

(C)

Magnitude of the margin of dumping

The magnitude of the margin of dumping used by the Commission shall be—

(i)

in making a preliminary determination under section 1673b(a) of this title in an investigation (including any investigation in which the Commission cumulatively assesses the volume and effect of imports under paragraph (7)(G)(i)), the dumping margin or margins published by the administering authority in its notice of initiation of the investigation;

(ii)

in making a final determination under section 1673d(b) of this title, the dumping margin or margins most recently published by the administering authority prior to the closing of the Commission’s administrative record;

(iii)

in a review under section 1675(b)(2) of this title, the most recent dumping margin or margins determined by the administering authority under section 1675a(c)(3) of this title, if any, or under section 1673b(b) or 1673d(a) of this title; and

(iv)

in a review under section 1675(c) of this title, the dumping margin or margins determined by the administering authority under section 1675a(c)(3) of this title.

(36)

Developing and least developed country

(A)

Developing country

(B)

Least developed country

The term “least developed country” means a country which the Trade Representative determines is—

(i)

a country referred to as a least developed country within the meaning of paragraph (a) of Annex VII to the Subsidies Agreement, or

(ii)

any other country listed in Annex VII to the Subsidies Agreement, but only if the country has a per capita gross national product of less than $1,000 per annum as measured by the most recent data available from the World Bank.

(C)

Publication of list

The Trade Representative shall publish in the Federal Register, and update as necessary, a list of—

(i)

developing countries that have eliminated their export subsidies on an expedited basis within the meaning of Article 27.11 of the Subsidies Agreement, and

(ii)

countries determined by the Trade Representative to be least developed or developing countries.

(D)

Factors to consider

(E)

Limitation on designation

(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.)

cite as: 19 USC 1677

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