Page:United States Statutes at Large Volume 102 Part 2.djvu/190

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PUBLIC LAW 100-000—MMMM. DD, 1988

102 STAT. 1194

PUBLIC LAW 100-418—AUG. 23, 1988 "(1) IN GENERAL.—For purposes of determining whether merchandise developed after an investigation is initiated under this title or section 303 (hereafter in this paragraph referred to as the 'later-developed merchandise') is within the scope of an outstanding antidumping or countervailing duty order issued under this title or section 303 as a result of such investigation, the administering authority shall consider whether— "(A) the later-developed merchandise has the same general physical characteristics as the merchandise with respect to which the order was originally issued (hereafter in this paragraph referred to as the 'earlier product'), "(B) the expectations of the ultimate purchcisers of the later-developed merchandise are the same as for the earlier product, "(C) the ultimate use of the earlier product and the laterdeveloped merchandise are the same, "(D) the later-developed merchandise is sold through the same channels of trade as the earlier product, and "(E) the later-developed merchandise is advertised and displayed in a manner similar to the earlier product. The administering authority shall take into account any advice provided by the Commission under subsection (e) before making a determination under this subparagraph. "(2) EXCLUSION FROM ORDERS.—The administering authority may not exclude a later-developed merchandise from a countervailing or antidumping duty order merely because the merchandise— "(A) is classified under a tariff classification other than that identified in the petition or the administering authority's prior notices during the proceeding, or "(B) permits the purchaser to perform additional functions, unless such additional functions constitute the primary use of the merchandise and the cost of the additional functions constitute more than a significant proportion of the total cost of production of the merchandise. "(e) COMMISSION ADVICE.— "(1) NOTIFICATION TO COMMISSION OF PROPOSED ACTION.—

Before making a determination— "(A) under subsection (a) with respect to merchandise completed or assembled in the United States (other than minor completion or assembly), "(B) under subsection (b) with respect to merchandise completed or assembled in other foreign countries, or "(C) under subsection (d) with respect to any later-developed merchandise which incorporates a significant technological advance or significant alteration of an earlier product, with respect to an antidumping or countervailing duty order or finding as to which the Commission has made an affirmative injury determination, the administering authority shall notify the Commission of the proposed inclusion of such merchandise in such countervailing or antidumping order or finding. Notwithstanding any other provision of law, a decision by the administering authority regarding whether any merchandise is within a category for which notice is required under this paragraph is not subject to judicial review.