II 

111TH CONGRESS 

2D SESSION S. 3080 

To provide for judicial determination of injury in certain cases involving 

dumped and subsidized merchandise imported into the United States, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 4, 2010 

Mr. SPECTER (for himself, Mr. CASEY, and Mr. BROWN of Ohio) introduced 

the following bill; which was read twice and referred to the Committee 

on Finance 

A BILL 

To provide for judicial determination of injury in certain 

cases involving dumped and subsidized merchandise imported into the United States, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Unfair Foreign Com5 petition Act of 2010’’. 

6 SEC. 2. JUDICIAL DETERMINATION OF INJURY. 

7 (a) IN GENERAL.—Title VII of the Tariff Act of 

8 1930 (19 U.S.C. 1671 et seq.) is amended by adding at 

9 the end the following new subtitle: 


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1 ‘‘Subtitle E—Judicial 

2 Determination of Injury 

3 ‘‘SEC. 791. CIVIL ACTION. 

4 ‘‘(a) INJURY DETERMINATION.—Notwithstanding 

5 any other provision of this title, in an antidumping or 

6 countervailing duty investigation initiated under section 

7 702 or 732, a petitioning party, may, not later than 30 

8 days after the date an investigation is initiated under such 

9 sections, elect to bring a civil action in a United States 

10 district court, for a determination that— 

11 ‘‘(1) an industry in the United States— 

12 ‘‘(A) is materially injured, or 

13 ‘‘(B) is threatened with material injury, or 

14 ‘‘(2) the establishment of an industry in the 

15 United States is materially retarded, 

16 by reason of imports, or sales (or the likelihood of sales) 

17 for importation, of the merchandise subject to the inves18 tigation, and that imports of the subject merchandise are 

19 not negligible. 

20 ‘‘(b) FIVE-YEAR REVIEWS.—Not later than 30 days 

21 after a 5-year review of an antidumping or countervailing 

22 duty order is initiated under section 751(c), a party, who 

23 was a petitioning party in the initial investigation that re24 sulted in the antidumping or countervailing duty order, 

25 may bring a civil action in a United States district court 


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1 for a determination of whether revocation of the anti2 dumping or countervailing duty order or termination of 

3 the investigation suspended under section 704 or 734 

4 would likely lead to continuation or recurrence of material 

5 injury based on the standards set forth in section 752. 

6 ‘‘(c) EFFECT OF ELECTION; RELIEF.— 

7 ‘‘(1) EFFECT OF ELECTION.— 

8 ‘‘(A) IN GENERAL.—An election under 

9 subsection (a) or (b) of this section shall be for 

10 a determination by the district court in lieu of 

11 a determination by the Commission under sec12 tion 703(a), section 733(a), section 705(b), sec13 tion 735(b), or chapter 1 of subtitle C, as the 

14 case may be. 

15 ‘‘(B) COMMISSION TO COMPILE RECORD.— 

16 If an election is made under this subtitle, the 

17 Commission shall conduct an investigation and 

18 compile evidence with respect to the petition in 

19 the same manner and to the same extent under 

20 this title as if an election had not been made. 

21 Any information compiled by the Commission 

22 shall be made available to the parties to the 

23 proceeding and furnished to the district court in 

24 a timely manner. 


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1 ‘‘(C) NOTIFICATION BY THE ADMIN2 ISTERING AUTHORITY AND COMMISSION.—If an 

3 election is made under this subtitle, any notifi4 cation the administering authority is required 

5 to provide the Commission under this title shall 

6 be provided to the district court and any notifi7 cation the Commission is required to provide 

8 the administering authority shall be provided to 

9 the district court. 

10 ‘‘(2) RELIEF.— 

11 ‘‘(A) IN GENERAL.—In an action brought 

12 under subsection (a) or (b), the district court 

13 shall apply the same standards and make the 

14 same determinations and findings, that would 

15 be made by the Commission under this title if 

16 an election had not been made. 

17 ‘‘(B) FINDINGS AND CONCLUSIONS.—The 

18 court shall issue findings of fact and conclu19 sions of law and any order issued by the court 

20 shall have the same effect as a determination of 

21 the Commission under this title. 

22 ‘‘(3) SPECIAL RULES.—The following rules 

23 shall apply to actions initiated under subsection (a) 

24 or (b): 


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1 ‘‘(A) APPEAL.—An order issued by a 

2 United States district court under this title 

3 shall be appealable to a United States Court of 

4 Appeals. 

5 ‘‘(B) ORDER NOT STAYED.—An order 

6 issued under this section shall not be stayed 

7 pending appeal to a United States Court of Ap8 peals. 

9 ‘‘(C) PRECEDENTIAL EFFECT OF DECI10 SIONS OF THE INTERNATIONAL TRADE COMMIS11 SION.—The decisions of the Commission in 

12 other investigations initiated under this title 

13 shall not be binding on the court. 

14 ‘‘(D) HEARINGS.—The court shall provide 

15 a petitioning party and any interested party an 

16 opportunity to file briefs and argue orally to the 

17 court based on the information compiled by the 

18 Commission. 

19 ‘‘(E) ATTENDANCE BY DEFENDANT.— 

20 There shall be no obligation on any defendant 

21 interested party to attend a meeting or hearing, 

22 and failure to do so shall not be prejudicial to 

23 that party’s case. 

24 ‘‘(F) DEFAULT JUDGMENTS.—The failure 

25 of an interested party, described in subparaVerDate Nov 24 2008 04:24 Mar 05, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3080.IS S3080

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1 graph (A) or (B) of section 771(9), to intervene 

2 in an action initiated under this section or oth3 erwise to participate in the proceedings shall 

4 not result in judgment by default. 

5 ‘‘(G) VENUE.—A civil action under this 

6 section may be brought in a judicial district 

7 where a manufacturing facility, sales office, or 

8 administrative headquarters of any plaintiff 

9 who is a petitioning party is located. 

10 ‘‘(d) SERVICE OF PROCESS.—Within 5 days of filing 

11 an action under subsection (a) or (b), the filing party shall 

12 notify all known interested parties described in subpara13 graphs (A) and (B) of section 771(9). Such notice shall 

14 include— 

15 ‘‘(1) a copy of the complaint; and 

16 ‘‘(2) notice that the party is entitled to partici17 pate in the proceedings pursuant to subsection (e) of 

18 this section. 

19 ‘‘(e) INTERVENTION AS OF RIGHT.—Any interested 

20 party described in subparagraphs (A) and (B) of section 

21 771(9) shall be entitled to intervene in an action initiated 

22 under this section. 

23 ‘‘(f) PRELIMINARY RELIEF.— 

24 ‘‘(1) IN GENERAL.—In an action brought under 

25 subsection (a), the court shall, upon motion, issue a 


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1 preliminary order that contains a determination of 

2 whether there is a reasonable indication that an in3 dustry in the United States is materially injured, or 

4 is threatened with material injury, or the establish5 ment of an industry in the United States is materi6 ally retarded, by reason of imports of the subject 

7 merchandise and that imports of the subject mer8 chandise are not negligible. The order shall include 

9 a description of the essential facts under consider10 ation which form the basis of the decision. 

11 ‘‘(2) EFFECT OF ORDER.—An order making an 

12 affirmative determination under paragraph (1) shall 

13 have the same effect as an affirmative preliminary 

14 determination by the Commission under section 

15 703(a) or 733(a). 

16 ‘‘(3) TIMING.—The court shall make a prelimi17 nary determination under this subsection within 45 

18 days after a complaint has been filed. 

19 ‘‘(g) EXPEDITED ACTION.— 

20 ‘‘(1) IN GENERAL.—An action brought under 

21 subsection (a) or (b) shall be advanced on the docket 

22 and expedited in every way practicable. 

23 ‘‘(2) FINAL DETERMINATION IN SUBSECTION

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1 tion regarding material injury in an action filed 

2 under subsection (a) before the later of— 

3 ‘‘(A) the 120th day after the date on which 

4 the administering authority makes an affirma5 tive preliminary determination under section 

6 703(b) or 733(b); or 

7 ‘‘(B) the 45th day after the day on which 

8 the administering authority makes an affirma9 tive final determination under section 705(a) or 

10 735(a). 

11 ‘‘(3) FINAL DETERMINATION IN FIVE-YEAR RE12 VIEWS.—The court shall make a final determination 

13 regarding the likelihood of continuation or recur14 rence of material injury under subsection (b) before 

15 the later of— 

16 ‘‘(A) the 360th day after the date on which 

17 the review is initiated under section 751(c)(2); 

18 or 

19 ‘‘(B) the 120th day after the date on 

20 which the final determination of the admin21 istering authority is published. 

22 ‘‘(4) EXTRAORDINARILY COMPLICATED

23 CASES.—If the court concludes that a case is ex24 traordinarily complicated, as defined in section 

25 703(c) or 733(c), the court may extend the time 


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1 under paragraphs (2) or (3) by an additional 30 

2 days. 

3 ‘‘(h) PROTECTION OF CONFIDENTIAL INFORMA4 TION.—The court shall make arrangements to protect the 

5 confidentiality of information designated as proprietary by 

6 an interested party pursuant to a judicial protective 

7 order.’’. 

8 (b) CHANGED CIRCUMSTANCES REVIEWS.—Section 

9 751(b) of the Tariff Act of 1930 (19 U.S.C. 1675(b)) is 

10 amended by adding at the end the following: 

11 ‘‘(5) CERTAIN CASES TO BE FILED IN UNITED

12 STATES DISTRICT COURT.—If the injury determina13 tion at issue was initially made by a United States 

14 district court, the court shall retain jurisdiction over 

15 the injury determination for purposes of this section. 

16 Any party seeking revocation of an order or termi17 nation of a suspended investigation shall seek review 

18 in the district court that made the original injury 

19 determination under section 791.’’. 

20 (c) CLERICAL AMENDMENT.—The table of contents 

21 for title VII of the Tariff Act of 1930 is amended by in22 serting after the item relating to section 783 the following: 

‘‘Subtitle E—Judicial Determination of Injury 

‘‘Sec. 791. Civil action.’’. 

23 (d) CONFORMING AMENDMENT.—Section 516A of 

24 the Tariff Act of 1930 (19 U.S.C. 1516a) is amended by 


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1 striking ‘‘Within 30 days’’ and inserting ‘‘Except in the 

2 case where an interested party makes an election under 

3 subtitle E of title VII for a judicial determination of in4 jury, within 30 days’’. 

5 (e) EFFECTIVE DATE.—The amendments made by 

6 this section apply to— 

7 (1) countervailing duty investigations initiated 

8 under section 702 of the Tariff Act of 1930 (19 

9 U.S.C. 1671a) on or after the date of the enactment 

10 of this Act; 

11 (2) antidumping duty investigations initiated 

12 under section 732 of the Tariff Act of 1930 (19 

13 U.S.C. 1673a) on or after the date of the enactment 

14 of this Act; and 

15 (3) reviews initiated under section 751 of the 

16 Tariff Act of 1930 (19 U.S.C. 1675) on or after the 

17 date of the enactment of this Act. 

18 SEC. 3. APPLICATION TO CANADA AND MEXICO. 

19 Pursuant to article 1902 of the North American Free 

20 Trade Agreement and section 408 of the North American 

21 Free Trade Agreement Implementation Act, the amend22 ments made by this Act shall apply with respect to goods 

23 from Canada and Mexico. 


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1 SEC. 4. NOTIFICATION TO WORLD TRADE ORGANIZATION. 

2 Not later than 30 days after the date of the enact3 ment of this Act, pursuant to the Agreement on Imple4 mentation of Article VI of the General Agreement on Tar5 iffs and Trade 1994 and the Agreement on Subsidies and 

6 Countervailing Measures, the Secretary of State shall no7 tify the appropriate officials of the World Trade Organiza8 tion of the amendments made by this Act and that the 

9 United States district courts shall be treated as competent 

10 authorities for purposes of injury determinations under 

11 title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et 

12 seq.). 

Æ 


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