IMPORT RELIEF

Statutory

Provisions

Related

to

Summary 

of

USITC Publication 2944January 1996
iii

PREFACEThis summary describes several import relief provisions and provides contacts forfurther information. Because this is only a summary, the reader is strongly advised toconsult the statutes and regulations referenced before attempting to file apetition or complaint under any of these provisions or otherwise make use ofthese provisions.The U.S. International Trade Commission’s Rules of Practice and Procedure, which

set forth the procedures for Commission investigations, are published in chapter II oftitle 19 of the Code of Federal Regulations (19 CFR Chap. II), which is republishedin revised form annually. Copies of the Commission’s Rules are also available from:

SecretaryU.S. International Trade Commission500 E Street, SWWashington, DC 20436Telephone: 202–205–2000
v

CONTENTS

Page

Preface iii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Countervailing Duty and Antidumping Investigations 1 . . . . . . . . . Investigations of Infringements of Patents, Trademarks, 

Copyrights, or Mask Works, and Other Unfair Practices in Import Trade 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Investigations of Injury to U.S. Industries from 

Increased Imports 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Investigations with Respect to Imports from a NAFTA

Country 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Investigations of Market Disruption by Imports from 

Communist Countries 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Investigations Under the Agricultural Adjustment Act 26 . . . . . . . . . General Investigations of Trade and Tariff Matters 28 . . . . . . . . . . . . Investigations Under Other Statutes Not Administered 

in Whole or in Part by the Commission 29 . . . . . . . . . . . . . . . . . . . 

Investigations of Denial of U.S. Rights Under Trade 

Agreements and Other Unjustifiable, Unreasonable, or Discriminatory Acts by Foreign Countries 29 . . . . . . . . . . . . 

Investigations of Impact of Imports on National Security 29 . . . Trade Adjustment Assistance 30 . . . . . . . . . . . . . . . . . . . . . . . . . 
Initiation ofCountervailingDuty or Antidumping DutyInvestigations

1 2

 Antidumping

 title VII of the Tariff Act of 1930, as added by

reements Act of 1979 (19 U.S.C. § 1671 et seq.)

ently amended, provides that countervailing du

mposed when two conditions are met: (a) the

ment of Commerce (Commerce) determines that

ent of a country or any public entity within the

a country is providing, directly or indirectly, a

ble subsidy with respect to the manufacture, pro

xport of the subject merchandise that is imported

kely to be sold) for importation into the United

b), in the case of merchandise imported from a

greement country,1 the U.S. International Trade

(Commission) determines that an industry in the

 is materially injured or threatened with material

at the establishment of an industry is materially

reason of imports of that merchandise.

 determines that a countervailable subsidy is be

 upon merchandise imported from a country that

sidies Agreement country, a countervailing duty

d on the merchandise in the amount of the net

ble subsidy without a Commission determination

njury.

 title VII of the Tariff Act of 1930, as added by

reements Act of 1979 (19 U.S.C. § 1673 et seq.)

ently amended, provides that antidumping duties

sed when two conditions are met: (a) Commerce

hat the foreign subject merchandise is being, or is

sold in the United States at less than fair value,

Commission determines that an industry in the

 is materially injured or threatened with material

World Trade Organization (WTO) member country, (2) a coun

umed obligations with respect to the United States that are sub

he Subsidies Agreement, i.e. the Agreement on Subsidies and

ruguay Round of multilateral trade negotiations, or (3) a coun

 the determinations specified in §19 U.S.C. 1671(b)(3). The

on of countervailing and antidumping duties parallel in many

T 1947, i.e. the General Agreement on Tariffs and Trade dated

injury, or that the establishment of an industry is materiallyretarded, by reason of imports of that merchandise.2Figure 1 on the next page illustrates the timetable for countervailing duty and antidumping duty investigations.Countervailing duty or antidumping duty investigations areconducted either on the basis of a petition filed with Commerce and the Commission on behalf of a domestic industry,or by Commerce upon its own initiative. Eligible petitionersinclude manufacturers, producers, or wholesalers of a productthat is like the investigated imports, or unions, other groups ofworkers, or certain other associations of such manufacturers,producers, or wholesalers. A petitioner may allege both asubsidy and sales at less than fair value in regard to the samemerchandise.As soon as a petition is filed or an investigation is begun uponthe initiative of Commerce, the Commission begins to investigate whether there is a reasonable indication that an industryin the United States is materially injured or threatened withmaterial injury, or the establishment of an industry in theUnited States is materially retarded, by reason of imports ofthe merchandise which is the subject of the investigation.Meanwhile, if the proceedings are begun by petition, Commerce determines within 20 days whether the petition accurately and adequately alleges material injury or threat to adomestic industry by reason of subsidized imports (in a countervailing duty investigation) or imports sold at less than fairvalue (in an antidumping duty investigation), whether thepetition includes information reasonably available to the petitioner supporting the allegations, and whether the petition hasbeen filed by or on behalf of the industry.3 If Commerce’sdetermination is negative, the proceedings end. If its deter2 In a related provision added by section 1317 of the Omnibus Trade and Competitiveness Act of 1988

(Public Law 100–418), a domestic industry producing a product that is like or directly competitive with aproduct manufactured in another country may submit a petition to the Office of the United States Trade Representative (USTR) alleging that dumping of the foreign product is occurring in a third country under the Agreement on Implementation of Article VI of the GATT 1994 and that the dumping is causing injury or threat ofinjury to the U.S. industry. The petition would request the USTR to submit an application with the countryunder article XII of the Agreement on Implementation of Article VI of the GATT 1994, requesting that thecountry take appropriate antidumping action. Further, as provided by the Uruguay Round Agreements Act(Public Law 103–465; 19 U.S.C. §1677n), the government of a WTO member may file a petition with theUSTR requesting that an investigation be conducted to determine if imports from another country are beingsold in the United States at less than fair value and that an industry in the petitioning country is materiallyinjured by reason of those imports. 3 If Commerce must poll the industry or otherwise determine its support for the petition, it may take amaximum of 40 days to make its determination. The domestic producers or workers supporting the petitionmust account for at least 25 percent of total production of the product and more than 50 percent of productionof those supporting or opposing the petition.
3 4

PreliminaryDeterminations

ntheses, total days from the filing of the petition. There will

 time lags in having ITA determinations published in the

ministration, U.S. Department of Commerce; ITC= U.S.

llowed for it to initiate an investigation from 20 days for up

me is needed to determine industry support for the petition.

e for the ITC’s preliminary determination and all following

e extension. 

terminations are authorized when “short life cycle” mer

iff act of 1930). In such cases the schedule following the

ned by either 40 or 60 (in the case of multiple offenders)

of petitioner or on ITA’s motion.

gation; extended on ITA’s motion.

y allegation; extended on ITA’s motion.

etitioner, extend the date for its final subsidy determination

n simultaneously filed AD cases. 

vestigation after its preliminary determination for the pur

gation. In such cases the schedule followng ITA’s prelimi

ays in a normal case or 150 days in a complicated case. 

egative, add 30 days (to incremental total of 75) to ITC’s

CVD/AD

petition

ITC

preliminary

A

al

ITA

Final

ITA

Final

ITA

Final

ITA

Final

C 

al ITC Final ITC Final ITC Final ITC Final 

VII SCHEDULES1

Antidumping (AD)

45 (45)2

310)6 115 (160)3 165 (210)4

85) 75 (235)9 135 (295)10

(7)

75 (285)9 135 (345)10

0)11 45(280)11 45(340)11 45(330)11 45(390)11

ITA

iminary

ITA

preliminary

ITA

preliminary

mination is affirmative, Commerce initiates an investigationto determine whether there is a subsidy or sales at less thanfair value and the Commission continues its investigation.Within 45 days after a petition is filed or an investigation isbegun by Commerce upon its own initiative, the Commissionmakes its preliminary determination.4 The Commission determines, on the basis of the information available to it at the

time, whether there is a reasonable indication that an industryin the United States is materially injured or threatened withmaterial injury, or the establishment of an industry in theUnited States is materially retarded, by reason of imports ofthe merchandise which is the subject of the investigation andthat imports of the subject merchandise are not negligible.5,6

If the determination is negative or if the Commission determines that imports of the subject merchandise are negligible,the proceedings end.If the Commission’s determination is affirmative, Commercemakes its preliminary determination. Commerce determines,on the basis of the information available to it at the time,whether there is a reasonable basis to believe or suspect that acountervailable subsidy or sales at less than fair value exist.If Commerce finds a reasonable basis, in a countervailingduty investigation, it estimates a subsidy margin for each firmor country investigated and Commerce makes this determination within 65 days after it initiates an investigation. If, however, the petitioner requests or if the case is extraordinarilycomplicated, this determination can be made within 130 days.In an antidumping investigation, Commerce estimates theweighted-average dumping margin, the amount by which thenormal value of the foreign like product exceeds the exportprice (or constructed export price) of the subject merchandise.Commerce makes this determination within 140 days after itinitiates the investigation or, if the petitioner requests or if thecase is extraordinarily complicated, within 190 days.7

4 If Commerce has extended its deadline for initiating the investigation, the Commission must make its

preliminary determination within 25 days after Commerce informs the Commission of the initiation of theinvestigation. 5 With exceptions, imports shall be generally deemed “negligible” if they amount to less than 3 percent ofall such merchandise imported into the United States in the most recent 12-month period preceding the filingof the petition for which data are available . 6 The Commission generally holds a staff conference in the course of a preliminary investigation.

7 Certain domestic entities may petition the Commission to establish a product category for particular

“short life cycle merchandise,” as defined by statute. In certain antidumping investigations concerning merchandise contained in such a product category established by the Commission, Commerce makes its preliminary determination within either 80 or 100 days.
5 6

CriticalCircumstancesIssuance ofCountervailingDuty or Antidumping Orders

e’s preliminary determination is affirmative,

a) suspends liquidation8 of the investigated sub

dise subsequently entered into the United States

 from warehouse, (b) requires bonds or cash de

posted for each entry of the merchandise in an

l to the estimated net subsidy or dumping mar

) continues its investigation. In addition, the

institutes a final investigation concerning injury,

ardation. If Commerce’s preliminary determina

ve, Commerce’s investigation simply continues.

ays after its preliminary determination, Com

 a final determination as to whether a subsidy is

ed or sales at less than fair value are being made.

mping investigation, this determination can be

135 days upon request of exporters if the prelim

ination was affirmative or upon request of peti

preliminary determination was negative. If the

nation of Commerce is negative, the proceedings

suspension of liquidation is terminated, bonds or

y are released, and deposits are refunded. Before

al determination, Commerce must hold a hearing

 of any party to the proceeding.

’s final determination is affirmative, suspension

n, if not yet ordered, is ordered. In addition, the

makes a final determination as to whether a do

ry is being materially injured or threatened with

ry, or its establishment materially retarded, by

bsidized imports or imports sold at less than fair

ommerce’s preliminary determination was affir

Commission makes its final determination before

a) the 120th day after Commerce makes its affir

minary determination, or (b) the 45th day after

makes its affirmative final determination. If

preliminary determination was negative, the

s final determination is made within 75 days af

ce’s affirmative final determination. Before

n of entry of goods and includes a final determination of the

ation, disregard any weighted-average dumping margin that is

t specific rate for the subject merchandise, i.e., any de minimis

making a final determination, the Commission must hold ahearing upon request of any party to the proceeding.10If the final determination of the Commission is affirmative,Commerce issues a countervailing duty or antidumping dutyorder, within seven days of notification of the Commission’sdetermination, requiring imposition of duties in the amount ofthe net subsidy or dumping margin.11 In the usual case, the

order requires the deposit of an estimated countervailing orantidumping duty at the same time as other estimated customsduties are deposited on the merchandise, pending calculationof the final countervailing or antidumping duty. If the finaldetermination of the Commission is negative, no countervailing or antidumping duties are imposed, and any suspension ofliquidation is terminated, bonds or other security are released,and deposits are refunded.In an investigation, the petitioner may allege the existence ofcritical circumstances. If so, in a countervailing duty investigation Commerce must determine promptly whether there isa reasonable basis to believe or suspect that the alleged countervailable subsidy is inconsistent with the Subsidies Agreement and that massive imports of the merchandise have occurred over a relatively short period. In an antidumping dutyinvestigation, Commerce must determine promptly (a) whether there is a reasonable basis to believe or suspect either thatthere is a history of dumping and material injury by reason ofdumped imports in the United States or elsewhere, or that theimporter knew or should have known that the exporter wasselling the merchandise at less than fair value and that therewas likely to be material injury by reason of such sales; and(b) whether massive imports of the merchandise have occurred over a relatively short period. If Commerce makes anaffirmative finding, it extends retroactively any suspension ofliquidation to include unliquidated entries of merchandise entered into the United States or withdrawn from warehouse inthe 90 days before the suspension of liquidation was first ordered.

10 In countervailing duty cases, the time period for Commerce’s preliminary and final determination may

be extended if Commerce determines that there is a reasonable basis to believe or suspect that “upstream subsidies,” as defined by statute, are being provided. In addition, if countervailing and antidumping duty investigations are initiated simultaneously and concern imports of the same class or kind of merchandise, the petitioner can request Commerce to extend the date for a final countervailing duty determination to coincide withthe date of the final antidumping determination. 11 As it must when making its preliminary determination, Commerce must disregard any de minimis

weighted-average dumping margin.
Agency Review

7 8

not this initial determination is affirmative, if

final determination as to subsidy or sales at less

ue is affirmative, Commerce will include with

nation a final determination concerning critical

s, if alleged. If the final determination regarding

mstances is affirmative, retroactive suspension of

f not yet ordered, is ordered. In addition, in its

nation, the Commission decides whether the im

ly to undermine seriously the remedial effect of

f this determination is affirmative, any counter

idumping duty order shall apply to the goods for

ctive suspension of liquidation had been ordered.

etermination of Commerce or the Commission as

cumstances is negative, any retroactive suspen

dation is terminated.

tion can be suspended prior to a final determina

merce as to subsidies or sales at less than fair

exporters accounting for substantially all of the

e merchandise under investigation, or in the case

the government alleged to be providing the sub

o eliminate the subsidy or dumping margin, to

ffset the net subsidy, or to cease exports of the

to the United States, within six months after sus

e investigation; (2) extraordinary circumstances

nd the government or exporters described above

 action that will completely eliminate the injuri

the imports of the merchandise under investiga

ase of subsidies this may include a quantitative

reed to with the foreign government); or (3) the

 concerns alleged sales at less than fair value

market economy country and that country agrees

ports of the merchandise to the United States.

days in advance of any suspension, Commerce

parties to the proceeding and consult with peti

e same time as it suspends a proceeding, Com

ssue an affirmative preliminary determination as

 sales at less than fair value, if such a determina

already been made. If, within 20 days of the date

n of the notice of suspension, certain interested

ountry alleged to be providing a subsidy request

 the suspended investigation must be continued.

e, if the final determination by Commerce or the

Commission is negative, the agreement has no effect and theinvestigation is terminated.If, within 20 days of the date of publication of the notice ofsuspension, the Commission receives a petition for review ofa suspension issued under (2) above, it determines within 75days whether the injurious effect of imports is eliminatedcompletely by the agreement. If the Commission determinesthat the injurious effect is not eliminated, then the investigation, if not yet completed, is resumed. In addition, if Commerce determines that an agreement reached under (1) or (2)above is being violated or no longer satisfies certain otherstatutory criteria, then the investigation, if not yet completed,is resumed.If requested, Commerce must review and determine, as oftenas every 12 months, the amount of the net countervailablesubsidy or dumping margin for merchandise under an outstanding countervailing or antidumping duty order. If the request concerns a suspended investigation, Commerce must review the status of and compliance with the agreement as wellas the underlying net countervailable subsidy or dumpingmargin. In addition, when requested or upon its own initiative, Commerce or the Commission may review certain determinations or agreements for changed circumstances. If requested by an interested party, a hearing must be held in connection with either of the reviews described above. Basedupon a review, Commerce may revoke a countervailing orantidumping duty order, in whole or in part, or terminate asuspended investigation.The Uruguay Round Agreements Act amended the antidumping and countervailing duty laws to require that Commerceand the Commission conduct “sunset reviews” no later thanfive years after issuance of an order, suspension of an investigation, or changed circumstances review. Such review determines whether revocation of the relevant order would belikely to lead to continuation or recurrence of dumping orcountervailable subsidies and material injury. If the Commission determines that revocation of an order or termination of asuspended investigation would not be likely to lead to continuation or recurrence of material injury within a reasonablyforeseeable time, the order will be revoked or the suspendedinvestigation terminated.
9 10

cumstances, Commerce may include within the

outstanding countervailing or antidumping duty

nal merchandise in order to prevent circumven

rder. Such additional merchandise may include

omponent parts used to create a finished product

t to an order, (2) merchandise completed or as

 third country, (3) merchandise altered in minor

 (4) later developed merchandise. Except in the

handise altered in minor respects, if the Commis

de a prior affirmative injury determination con

riginal merchandise, the statute provides for con

tween the Commission and Commerce over

proposed inclusion would be inconsistent with

mmission determination.

sion or Commerce, as the case may be, releases

prietary information submitted to it only under

e protective order to authorized representatives

parties that are parties to a proceeding.12 Ex

release under protective order are privileged in

lassified information, and information which

ar and compelling need to withhold from disclo

submitting to the Commission or Commerce in

at is covered by an administrative protective or

must serve such information upon all parties that

e protective order.13

d party adversely affected by a determination by

r the Commission may appeal the determination

 States Court of International Trade in New York

erminations involving subject merchandise from

om Mexico, an interested party may forgo judi

or binational panel review pursuant to the North

ee Trade Agreement.

he Commission’s Rules of Practice and Proce

rth procedures for Commission investigations

ountervailing and antidumping duties. Part 201

s of general application.

rietary information to the public if the person submitting it con

ed to identify operations of a particular person. 

Act of 1990 (Public Law 101–382) places certain limits on the

rative protective order.

For further information, contact:

(1) Office of Investigations

International Trade AdministrationU.S. Department of Commerce14th Street and Constitution Avenue, NWWashington, DC 20230Telephone: 202–482–5497

(2) Secretary

U.S. International Trade Commission500 E Street, SWWashington, DC 20436Telephone: 202–205–2000
GeneralProcedures

ConfidentialBusinessInformationRemedial Orders

11 12

ngements of Patents, 

ts, or Mask Works, and 

 in Import Trade

of the Tariff Act of 1930 (19 U.S.C. § 1337)

wful:

ortation, sale for importation, or sale after im

the owner, importer, or consignee of articles that

alid and enforceable United States patent, or a

demark, copyright, or mask work, for which an

ts or is in the process of being established in the

s, and

ethods of competition and unfair acts in importa

by the owner, importer, or consignee of articles,

ods or acts have the threat or effect of destroying

lly injuring an industry in the United States, of

he establishment of such an industry, or of re

monopolizing trade and commerce in the United

ernational Trade Commission is authorized, upon

a complaint or on its own initiative, to investigate

tions of section 337 and to determine whether

ns exist. In lieu of a determination, the Commis

minate an investigation, in whole or in part, on

 consent order or an agreement between the pri

to the investigation, including an agreement to

matter for arbitration. In appropriate circum

Commission may issue limited or general exclu

which direct that certain goods be denied entry

ed States, and/or may issue cease and desist or

enjoin a person from further violation of section

ission has reason to believe that a complaint or

 under section 337 is based solely on alleged

under the antidumping or countervailing duty

ommission must decline to institute or must

s the case may be, its investigation under

d Competitiveness Act of 1988 (Public Law 100–418; Aug. 23,

nant show injury in regard to acts listed in paragraph (a) above.

h respect to other types of unfair acts.

section 337. If the complaint or investigation before theCommission is based in part on section 337 and in part on theantidumping or countervailing duty laws, the Commissionmay institute or continue an investigation.All Commission investigations under section 337 are conducted on the record after publication of notice and with opportunity for a hearing in conformity with the adjudicativeprovisions of the Administrative Procedure Act (5 U.S.C.§ 551 et seq.).For complaints that were filed prior to January 1, 1995, theCommission is required to conclude an investigation undersection 337 and make its determination at the earliest practicable time, but not later than one year (18 months in morecomplicated cases) from the date of publication in the Federal Register of notice of the investigation. For those filed afterJanuary 1, 1995, there are no statutory deadlines for final determinations. However, the Commission is required to conclude such investigations at the earliest practicable time. Topromote expeditious adjudication, the Commission is required, within 45 days after an investigation is instituted, toestablish a target date for issuing its final determination.Information that is properly designated as confidential in accordance with the Commission’s rules will not be disclosedwithout the consent of the person submitting it to the Commission, with certain exceptions. Such information will onlybe disclosed to Government employees who are directly involved in an investigation, in Presidential review of an order,or in implementation of an exclusion order, or to authorizedpersons under administrative protective order.If at the completion of the investigation the Commission determines that there has been a violation of section 337, it maydirect that the foreign articles be excluded from entry into theUnited States. In addition to or in lieu of an exclusion order,the Commission may prohibit further violation of section 337by issuance of a cease and desist order. The Commissionmay refuse to issue an exclusion or cease and desist orderafter considering the public interest factors listed above. Following the issuance by the Commission of a temporary orfinal exclusion or cease and desist order, the President maydisapprove “for policy reasons” the Commission’s determination within 60 days after notification of the determination, inwhich case the Commission’s order will have no effect.
Appeal of CommissionDeterminations

13 14

sion may issue a general exclusion order applica

s from all countries in a contested case if neces

nt circumvention of an exclusion order limited to

named persons, or there is a pattern of violation

7 and it is difficult to identify the source of in

orts. The Commission may issue a general ex

r applicable to imports from all countries in an

case if a violation of section 337 is established by

eliable, and probative evidence and either a gen

n order is necessary to prevent circumvention of

 order limited to products of named persons or

tern of violation of section 337 and it is difficult

he source of infringing products.

 of an investigation under section 337, the Com

 issue temporary exclusion or cease and desist

th, if it determines that there is reason to believe

a violation of section 337. In the case of a tem

sion order, entry of goods is to be permitted un

d the Commission may also require the com

ost a bond. If a complainant requests a tempo

on or cease and desist order, the Commission

whether to issue such an order within 90 days

itution of the investigation, or within 150 days if

ore complicated. The Commission may refuse to

orary order after consideration of the public inter

sted above.

if a complainant under section 337 seeks relief

particular respondent who fails to appear in the

ut good cause, the Commission is required to pre

ts as alleged by the complainant and, upon re

e an exclusion order or cease and desist order or

 to the particular respondent. The Commission

o issue a general or limited order described above

ring the effect of such an order on the public

elfare, competitive conditions in the U.S. econo

uction of like or directly competitive articles in

tates, and U.S. consumers.

 a Commission cease and desist order is subject

alty of up to the greater of $100,000 per day or

mestic value of the articles concerned for each

day the articles are entered or sold in violation of the order.The Commission may direct that goods imported in violationof an exclusion order be seized and forfeited to the UnitedStates in certain circumstances. The goods may be seized andforfeited if the owner, importer, consignee, or the agent ofany such person, had entry of the goods previously deniedbecause of the exclusion order and was given a written warning that further attempts at importation would result in forfeiture.Persons adversely affected by a Commission determinationmay appeal the determination to the United States Court ofAppeals for the Federal Circuit.Part 210 of the Commission’s Rules of Practice and Procedure sets forth procedures related to Commission investigations under section 337. Part 211 pertains to enforcementprocedures. Part 201 contains rules of general application.For further information, contact:

SecretaryU.S. International Trade Commission500 E Street, SWWashington, DC 20436Telephone: 202–205–2000
15 16

Disclosure ofConfidentialBusinessInformation

y to U.S. Industries From 

 to 204 of the Trade Act of 1974 (19 U.S.C.

254) concern investigations by the U.S. Interna

Commission as to whether an article is being

 the United States in such increased quantities as

antial cause of serious injury, or the threat there

estic industry. (See also the section of this Sum

g to injury to U.S. industries from increased im

NAFTA country, p. 22 infra.)

ssion makes an affirmative determination, it rec

the President the action that will facilitate posi

ent by the industry to import competition. After

he Commission’s recommendation, the President

ion in the form recommended by the Commis

take certain other action.15 Sections 201 to 204

for the filing of industry adjustment plans and

s in connection with an investigation, for provi

pending completion of the full investigative pro

ase of perishable agricultural articles or critical

s, for Commission monitoring of relief actions

Commission investigations and determinations

xtension of relief actions, and for Commission

e effectiveness of the relief actions taken.

sion conducts investigations upon receipt of a

m an entity, including a trade association, firm,

recognized union, or group of workers, that is

e of an industry; upon request from the President

 States Trade Representative (USTR); upon res

e U.S. House Committee on Ways and Means or

nate Committee on Finance; or upon its own

ssion makes an affirmative injury determination,

mmend action to the President in the form of an

r imposition of a duty, a tariff-rate quota, modifi

ns provide a basis for the President to take an action under ar

 and Trade (GATT), the so-called GATT escape clause, which

al obligations when certain conditions are present. Article XIX

ions are taken under article XIX may suspend certain conces

ward the country taking the actions.

cation or imposition of a quantitative restriction, one or moreappropriate adjustment measures including the provision oftrade adjustment assistance, or any combination of such actions. In addition, the Commission may also recommend thatthe President initiate international negotiations to address theunderlying cause of the increase in imports or otherwise toalleviate the injury or threat, or that he implement any otheraction authorized under law that is likely to facilitate positiveadjustment to import competition. For the purpose of assisting the President in determining whether to exclude a NAFTAcountry from a relief action, the Commission also must makea finding concerning whether imports from a NAFTA countryaccount for a substantial share of total imports and are contributing importantly to the serious injury or threat of seriousinjury.Except when critical circumstances are alleged to exist (seespecial timing procedure below), the Commission must makeits injury determination within 120 days of receipt of the petition, request, resolution, or institution on its own motion (150days in more complicated cases). The Commission mustcomplete its investigation and submit to the President a reportthat includes the Commission’s findings and any recommendations for Presidential action not later than 180 days afterreceipt of the petition, request, resolution, or institution on itsown motion. The Commission must hold a public hearing inconnection with the injury phase of its investigation and musthold a second hearing on the question of remedy if it makesan affirmative injury determination.Except for good cause found to exist, the Commission maynot reinvestigate the same subject matter within one year ofcompleting a prior investigation. An article that has been thesubject of prior relief under these sections may not be thesubject of a new action unless a period of time equal to theperiod of the prior relief has elapsed since termination of thatrelief. For example, if relief was in effect for the three-yearperiod February 1, 1992, to February 1, 1995, no new reliefcould be provided by the President until February 1, 1998, atthe earliest. However, a special exception applies in the caseof a relief action in effect for 180 days or less.The Commission releases confidential business informationsubmitted to it only under administrative protective order toauthorized representatives of interested parties that are partiesto a proceeding. Excepted from release under protective
17 18

CongressionalAction

vileged information, classified information, and

which there is a clear and compelling need to

m disclosure. When submitting to the Commis

tion that is covered by an administrative protec

party must serve such information upon all par

under the protective order.

may submit to the Commission an adjustment

itate positive adjustment to import competition

time that the petition is filed or within 120 days

of the petition. Before doing so, the petitioner

n the industry may consult with the USTR and

er Federal agency designated by the USTR for

f evaluating the adequacy of the proposals being

or inclusion in the plan.

f whether such a plan is submitted, in the course

gation any firm, certified or recognized union or

kers, trade association representing the industry,

person or group of persons may individually sub

ommission commitments regarding action such

entities intend to take to facilitate positive adjust

ort competition. The Commission, in determin

ion to recommend, and the President, in deter

action to take, are to take into account any plan

ments.

ays of receipt of a report from the Commission

n affirmative injury determination and remedy

tion (50 days if provisional relief is in place as a

termination that critical circumstances exist), the

o take “all appropriate and feasible action within

hich the President determines will facilitate ef

domestic industry to make a positive adjustment

mpetition and provide greater economic and so

than costs.” In determining what action to take,

esident is to take into account the Commission’s

try efforts being made or to be implemented to

ive adjustment to import competition, factors re

national economic interest of the United States,

ther statutory factors.

t may take action by proclaiming an increase in

n of a tariff, a tariff-rate quota, or a modification

n of a quantitative restriction; negotiating agreements; auctioning import licenses; initiating international negotiations; submitting legislative proposals to Congress; taking any other appropriate and feasible action otherwise authorized; or any combination of the above actions. Action may be taken for a period of up to four years and may be extended one or more times, but the overall period of re- lief, including extensions, may not exceed eight years. No tariff may be increased to a level that is more than 50 percent ad valorem above the rate existing before the proclamation of action. Any quantitative restriction imposed must allow entry of at least that quantity or value of imports entered during the most recent three years that the President finds is representa- tive of imports of such article, unless the President finds that the importation of a different quantity or value is clearly justi- fied in order to prevent or remedy serious injury. Any action in the form of a duty, tariff-rate quota or quantitative restric- tion that has an effective period of more than one year is to be phased down at regular intervals. If the Commission finds injury or threat of injury, the Secretary of Labor is to give expedited consideration to petitions by workers for certifica- tion of eligibility to apply for adjustment assistance; the Sec- retary of Commerce is to do the same regarding such petitions from firms. The President is to exclude imports from a NAFTA country or countries from a relief action if he determines that imports from such country or countries do not account for a substan- tial share of total imports or do not contribute importantly to the serious injury or threat of serious injury found by the Commission. The President may at a later date include the excluded imports in the relief action if he determines that a surge of imports from a NAFTA country or countries is un- dermining the effectiveness of the action. Under section 312(c) of the North American Free Trade Agreement Act (19 U.S.C. § 3372(c)), any entity representative of an industry for which such action is being taken may request the Commis- sion to conduct an investigation of the surge in such imports. The President must report to Congress on the action that he is taking, and if he takes action that differs from that recom- mended by the Commission or takes no action at all, Con- gress may, through a joint resolution within 90 days, direct the President to proclaim the action recommended by the Commission.
19 20

Monitoring,Modification, or Extension of Action

gricultural products. An entity representing a

dustry that produces a perishable agricultural

also petition the Commission for provisional re

 that such product has been the subject of import

y the Commission for at least 90 days prior to

the request for provisional relief. Requests for

ing are made to the USTR, which is authorized

at the Commission monitor imports of a perish

ural product.

ng of a petition that contains a request for provi

the Commission has 21 days in which to deter

r increased imports of a perishable agricultural

a substantial cause of serious injury or threat to

industry producing a like or directly competitive

ticle and whether the serious injury is likely to

o repair or cannot be timely prevented through a

investigation. If it makes an affirmative finding,

ion is required to recommend relief to the Presi

would generally be in the form of a tariff. The

 seven days in which to consider the Commis

mendation and provide any provisional relief.

ould generally remain in effect pending comple

Commission’s investigation. The Commission

 investigation regardless of whether its prelimi

nation is affirmative or negative. The 21-day

elief phase of the investigation is counted as part

ay injury phase.

umstances. A petitioner may allege in its petition

circumstances exist. Critical circumstances are

 exist if (1) there is clear evidence that increased

e article are a substantial cause of serious injury,

hereof, to the domestic industry, and (2) delay in

 would cause damage to that industry that would

o repair. Within 60 days of the filing of the peti

ng such a request, the Commission is required to

hether such circumstances exist and, if so, find

end to the President appropriate provisional re

eceiving a Commission report containing such a

n and recommendation, the President has 30 days

etermine what, if any, provisional relief action to

rovisional relief would generally be in the form

The Commission continues its investigation re

whether its preliminary determination is affirmative or negative. It begins the 120-day injury phase of a sec- tion 202 investigation only after it has completed the critical circumstances phase (that is, the 60-day critical circumstances phase is not counted as part of the 120-day phase). Provisional relief terminates if the Commission subsequently makes a negative injury determination; when the President takes a more permanent action after receiving the Commis- sion’s report at the end of the 180-day investigation; when the President, after receiving that report, determines that he will not take any action; or when the President determines that, because of changed circumstances, relief is no longer war- ranted. Provisional relief may not exceed 200 days. The Commission monitors developments in industries for which action has been taken under these provisions and, when the relief action exceeds three years, submits a report to the President and the Congress on the results of such monitoring not later than the midpoint of the relief period. The Commis- sion holds a hearing in the course of preparing each such re- port. Upon request of the President, the Commission advises the President on the probable economic effect of the reduction, modification, or termination of action. After taking into ac- count a Commission report or advice and after seeking advice from the Secretaries of Commerce and Labor, the President may reduce, modify, or terminate action if he determines that changed circumstances so warrant. Upon request of the President, or upon receipt of a petition from the industry concerned filed with the Commission not earlier than nine months or later than six months before a relief action is scheduled to terminate, the Commission is to investigate and determine whether action continues to be nec- essary to prevent or remedy serious injury and whether there is evidence that the industry is making a positive adjustment to import competition. The Commission holds a hearing in the course of each such investigation and reports its deter- mination to the President not later than 60 days before the action is scheduled to terminate. The President, after receiv- ing an affirmative determination from the Commission, may extend the period of relief if he determines that the action continues to be necessary to prevent or remedy serious injury and there is evidence that the domestic industry is making a positive adjustment to import competition.
21 22

cluded action, the Commission must hold a hear

e a report on the effectiveness of the action.

procedures regarding the above provisions are

part 206 of the Commission’s Rules of Practice

re. Part 201 contains rules of general applica

nformation, contact:

SecretaryU.S. International Trade Commission500 E Street, SWWashington, DC 20436Telephone: 202–205–2000

Investigations with Respect to Imports from a NAFTA Country

Under section 302 of the North American Free Trade Agreement Implementation Act (19 U.S.C. § 3352), the U.S. International Trade Commission conducts investigations to determine whether, as a result of a reduction or elimination of aduty provided for under the NAFTA, a Canadian article or aMexican article is being imported into the United States insuch increased quantities (in absolute terms) and under suchconditions so that imports of the article, alone, constitute asubstantial cause of serious injury, or (except in the case ofCanada) threat of serious injury, to the domestic industry producing an article that is like or directly competitive with theimported article. If the Commission makes an affirmativedetermination, it makes a relief recommendation to the President. The Commission has 120 days from the date of institution of its investigation to complete the injury phase of theinvestigation, and, if the injury determination is affirmative orif the Commissioners are equally divided on the question ofinjury, an additional 30 days to complete the remedy phaseand to report to the President.Under section 304 of the Act, the President has an additional30 days in which to decide what, if any, action to take. Ingeneral, the remedy options open to the President include thesuspension of any further reduction in duties provided underthe U.S.-Canada Free Trade Agreement (CFTA) or NAFTA,as appropriate, with respect to the NAFTA country or an increase in the rate of duty imposed on such article to the lesserof (1) the U.S. most-favored-nation (MFN) rate of duty forsuch article, or (2), in the case of a Canadian article, the MFNrate of duty in effect on December 31, 1988, or in the case ofa Mexican article, the MFN rate of duty for such article ineffect on December 31, 1993.Such investigations are similar procedurally in many respectsto Commission investigations under sections 201–204 of theTrade Act of 1974. For example, the Commission wouldconsider the same economic factors relating to injury set forthin section 202(c) of the Trade Act and a petitioner may seekprovisional relief pending completion of a Commission investigation as if the petition had been filed under section 202(d)of the Trade Act. However, the maximum period of relief isgenerally three years.
23 24

Investigationsby theCommissionActions by thePresident

of the NAFTA Implementation Act provides for

ermination of this relief authority after December

he case of Canadian articles, and after December

the case of most Mexican articles. In general,

r this authority may be taken with respect to im

ose countries after those dates only with the per

he Government of Canada or Mexico, as ap

sion’s rules concerning the filing of petitions and

of investigations under section 302 are set forth

f its Rules of Practice and Procedure. Part 201

s of general application.

nformation, contact:

SecretaryU.S. International Trade Commission500 E Street, SWWashington, DC 20436Telephone: 202–205–2000

Investigations of Market Disruption by Importsfrom Communist Countries

Under section 406 of the Trade Act of 1974 (19 U.S.C.§ 2436), the U.S. International Trade Commission conductsinvestigations to determine whether imports of an article produced in a Communist country are causing market disruptionwith respect to a domestically produced article. Market disruption exists when imports of an article like or directly competitive with an article produced by a domestic industry areincreasing rapidly, either absolutely or relatively, so as to be asignificant cause of material injury, or threat of material injury, to the domestic industry. The term “Communist country”means any country dominated or controlled by communism.The Commission conducts investigations under section 406 atthe request of the President or the United States Trade Representative (USTR); upon resolution of either the U.S. HouseCommittee on Ways and Means or the U.S. Senate Committee on Finance; upon the filing of a petition by an entity, including a trade association, firm, certified or recognizedunion, or group of workers, which is representative of an industry; or upon its own motion. Most investigations undersection 406 are conducted on the basis of petitions filed by anentity representative of an industry. The Commission musthold a public hearing in the course of the investigation andmust complete its investigation within three months.If the Commission finds that market disruption exists, it findsthe amount of duty or other import restriction necessary toprevent or remedy the market disruption. The President has60 days after receiving such a recommendation from theCommission to advise Congress as to what, if any, relief hewill proclaim. The President may increase or impose a duty,proclaim a tariff-rate quota, modify or impose a quantitativerestriction, negotiate an agreement, or take any combinationof the above actions. Action may last for up to five years,with the possibility of an extension of up to three years. Notariff may be increased to a level that is more than 50 percentad valorem above the rate existing before the proclamation ofaction. Any quantitative restriction imposed must allow entryof at least that quantity or value of imports entered during themost recent period that the President finds is representative ofimports of the article. Relief may apply only to imports fromthe subject Communist country or countries. The President
25 26

r terminate relief if he finds that such action is in

interest.

nt must report to Congress on the action he is

f he takes action that differs from that recom

the Commission or takes no action at all,

y, through a joint resolution within 90 days, di

dent to proclaim the action recommended by the

an investigation and determination by the Com

President may take action described above if he

ble grounds to believe that market disruption ex

temporary emergency action is necessary.

sion’s rules concerning the filing of petitions and

of investigations under section 406 are set forth

f its Rules of Practice and Procedure. Part 201

s of general application.

nformation, contact:

SecretaryU.S. International Trade Commission500 E Street, SWWashington, DC 20436Telephone: 202–205–2000

Investigations Under the Agricultural Adjustment Act

Under the provisions of section 22 of the Agricultural Adjustment Act (7 U.S.C. § 624), if the Secretary of Agriculture hasreason to believe that an article is being imported into theUnited States under such conditions and in such quantities asto render or tend to render ineffective or materially interferewith any program or operation undertaken by the UnitedStates Department of Agriculture (USDA), or to reduce substantially the amount of any product processed in the UnitedStates from any agricultural commodity covered by a USDAprogram, the Secretary so advises the President.If the President agrees that there is reason for such belief, herequests the U.S. International Trade Commission to investigate the matter. The Commission must hold a public hearingin the course of an investigation. The Commission reports tothe President the findings of its investigation and any recommendations as to appropriate action. Following receipt of theCommission’s report, the President may impose either an import fee of up to 50 percent ad valorem or a quantitative restriction reducing allowable imports of the article by up to 50percent below the amount imported in a representative periodas determined by the President. However, no fee or quantitative restriction may be imposed with respect to any articlethat is the product of a member of the World Trade Organization.Following advice by the Secretary and an investigation by theCommission, the President may modify, suspend, or terminaterelief due to changed circumstances. In addition, if the Secretary of Agriculture determines and reports to the Presidentthat a condition exists requiring emergency treatment, thePresident may take immediate action under section 22, pending the report of the Commission and any action by the President based on the report. Requests for investigations undersection 22 are normally filed with the Secretary of Agriculture.Part 204 of the Commission’s Rules of Practice and Procedure sets forth procedures for Commission investigations under the Agricultural Adjustment Act. Part 201 contains rulesof general application.
27 28

nformation, contact:

Administrator

Foreign Agricultural ServiceU.S. Department of Agriculture14th Street and Independence Avenue, SWWashington, DC 20250Telephone: 202–720–3935

Secretary

U.S. International Trade Commission500 E Street, SWWashington, DC 20436Telephone: 202–205–2000

General Investigations of Trade and Tariff Matters

Under section 332 of the Tariff Act of 1930 (19 U.S.C.§ 1332), the U.S. International Trade Commission conductsinvestigations into trade and tariff matters upon request of thePresident, the U.S. House Committee on Ways and Means,the U.S. Senate Committee on Finance, either branch of theCongress, or upon the Commission’s own initiative. TheCommission has broad authority to investigate matters pertaining to the customs laws of the United States, foreign competition with domestic industries, and international trade relations.Unlike other investigations by the Commission, there is noestablished procedure for the initiation of investigations undersection 332 by public petition. However, in the course of aninvestigation under section 332, the Commission generallyseeks written submissions and participation in hearings by thepublic. In general, the Commission makes its reports undersection 332 available to the public, with the exception of confidential business information or reports (or portions of reports) classified as confidential under national security criteria.General rules concerning the submission of documents andparticipation in hearings are set forth in part 201 of the Commission’s Rules of Practice and Procedure.

For further information, contact:

SecretaryU.S. International Trade Commission500 E Street, SWWashington, DC 20436Telephone: 202–205–2000
29 30

Workers

Other Statutes not 

e or in Part by the 

ons of Denial of U.S. Rights Under

eements and Other Unjustifiable, 

able, or Discriminatory Acts 

n Countries

f title III of the Trade Act of 1974 (19 U.S.C.

) (“section 301”) concerns investigations by the

United States Trade Representative (USTR) into

hat foreign countries are denying benefits to the

s under trade agreements or are otherwise en

ustifiable, unreasonable, or discriminatory acts

r restrict U.S. commerce. In general, the USTR

investigations upon petition by any interested

on its own initiative.

concerning the procedures described above may

15 CFR Part 2006.

nformation, contact:

Chair, Section 301 CommitteeOffice of The United States Trade Representative600 17th Street, NWWashington, DC 20506Telephone: 202–395–3432

ons of Impact of Imports on

Security

n 232 of the Trade Expansion Act of 1962

 1862), the Secretary of Commerce conducts in

o determine whether articles are being imported

ed States in such quantities or under such cir

s to threaten to impair national security. On the

port by the Secretary, the President has authority

n to “adjust imports” of the article in question.

or investigations under section 232 are set out in

 359.

For further information, contact:

Deputy Assistant Secretary for Strategic Industry and Economic SecurityRoom 3878U.S. Department of Commerce14th Street and Constitution Avenue, NWWashington, DC 20230Telephone: 202–482–4506

Trade Adjustment AssistanceChapter 2 of title II of the Trade Act of 1974 (19 U.S.C.§ 2271 et seq.) concerns trade adjustment assistance for eligible workers in the United States in the form of trade readjustment allowances, training and other reemployment services,and relocation and job search allowances. This is a two-stepprocess. First, a group of workers or their certified or recognized union or representative must file a petition with the Department of Labor’s Office of Trade Adjustment Assistancefor certification of eligibility to apply for assistance. Second,once certified as eligible to apply, the individual worker mustbe approved for benefits by the State agency—ordinarily theState employment security agency—that is administering thebenefits provisions as an agent of the United States. Requirements for this approval vary according to the type ofassistance sought. To receive a trade readjustment allowance,a certified worker must ordinarily have exhausted unemployment insurance benefits and be enrolled in or have completedan approved training program.For further information, contact:

(1) State employment security agency

or

(2) Office of Trade Adjustment Assistance

Employment and Training AdministrationU.S. Department of Labor200 Constitution Avenue, NWWashington, DC 20210Telephone: 202–219–5555
31

f title II of the Trade Act of 1974 (19 U.S.C.

q.) concerns the provision of technical assistance

mestic firms. This is also a two-step process.

m must petition the Secretary of Commerce for

of eligibility to apply for assistance. Second,

d as eligible to apply, the firm must submit to the

adjustment proposal that describes in detail the

gy for recovery and the technical assistance the

ng. Following acceptance of the firm’s adjust

al, the firm may apply for technical assistance to

he recovery strategy.

nformation, contact:

Trade Adjustment Assistance DivisionEconomic Development AdministrationU.S. Department of Commerce14th Street and Constitution Avenue, NWWashington, DC 20230Telephone: 202–482–4031