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 respect to a product (hereafter in this section referred to as an “input product”) that is used in the same country as the authority in the manufacture or production of merchandise which is the subject of a countervailing duty proceeding;
(2)in the judgment of the administering authority 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 subdivisions, 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 subsidy is provided by the customs union.
(b) Determination of competitive benefit
(1) In general
Except as provided in paragraph (2), the administering authority shall decide that a competitive benefit has been bestowed when the price for the input product referred to in subsection (a)(1) of this section for such use is lower than the price that the manufacturer or producer of merchandise which is the subject of a countervailing duty proceeding would otherwise pay for the product in obtaining it from another seller in an arms-length transaction.
If the administering authority has determined in a previous proceeding that a countervailable subsidy is paid or bestowed on the input product that is used for comparison under paragraph (1), the administering authority may
(A) where appropriate, adjust the price that the manufacturer or producer of merchandise which is the subject of such proceeding would otherwise pay for the product to reflect the effects of the countervailable subsidy, or
(B) select in lieu of that price a price from another source.
(c) Inclusion of amount of countervailable subsidy
If the administering authority decides, during the course of a countervailing duty proceeding that an upstream countervailable subsidy is being or has been paid or bestowed regarding the subject merchandise, the administering authority shall include in the amount of any countervailing duty imposed on the merchandise an amount equal to the amount of the competitive benefit referred to in subparagraph (1)(B), except that in no event shall the amount be greater than the amount of the countervailable subsidy determined with respect to the upstream product.
 So in original. Probably should be “subsection (a)(2) of this section,”.
1994—Subsec. (a). Pub. L. 103–465, § 268, inserted introductory provisions and struck out former introductory provisions which read as follows: “The term ‘upstream subsidy’ means any subsidy described in section
1677(5)(B)(i), (ii), (iii), or (iv) of this title by the government of a country that—”, and in concluding provisions, inserted “countervailable” before “subsidy”.
Subsec. (a)(1). Pub. L. 103–465, § 268(1), added par. (1) and struck out former par. (1) which read as follows: “is paid or bestowed by that government with respect to a product (hereafter referred to as an ‘input product’) that is used in the manufacture or production in that country of merchandise which is the subject of a countervailing duty proceeding;”.
Subsec. (b)(2). Pub. L. 103–465, § 270(a)(1)(K), inserted “countervailable” before “subsidy” in two places.
Pub. L. 103–465, § 270(a)(1)(L), (c)(3), inserted “countervailable” after “upstream” and substituted “the countervailable subsidy determined” for “subsidization determined”.
Pub. L. 103–465, § 233(a)(5)(GG), substituted “subject merchandise” for “merchandise under investigation”.
1986—Subsec. (a). Pub. L. 99–514substituted “(ii), (iii), or (iv)” for “(ii), or (iii)” in introductory provisions.
Effective Date of 1994 Amendment
Amendment by Pub. L. 103–465effective, except as otherwise provided, on the date on which the WTO Agreement enters into force with respect to the United States [Jan. 1, 1995], and applicable with respect to investigations, reviews, and inquiries initiated and petitions filed under specified provisions of this chapter after such date, see section 291 ofPub. L. 103–465, set out as a note under section
1671 of this title.
Section effective Oct. 30, 1984, see section 626(a) ofPub. L. 98–573, set out as an Effective Date of 1984 Amendment note under section
1671 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. 99–514require 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 ofPub. L. 99–514, as amended, set out as a note under section
401 of Title
26, Internal Revenue Code.
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