19 U.S.C. § 2252 : US Code - Section 2252: Investigations, determinations, and recommendations by Commission

Search 19 U.S.C. § 2252 : US Code - Section 2252: Investigations, determinations, and recommendations by Commission

(a) Petitions and adjustment plans
(1) A petition requesting action under this part for the purpose
of facilitating positive adjustment to import competition may be
filed with the Commission by an entity, including a trade
association, firm, certified or recognized union, or group of
workers, which is representative of an industry.
(2) A petition under paragraph (1) -
(A) shall include a statement describing the specific purposes
for which action is being sought, which may include facilitating
the orderly transfer of resources to more productive pursuits,
enhancing competitiveness, or other means of adjustment to new
conditions of competition; and
(B) may -
(i) subject to subsection (d)(1)(C)(i) of this section,
request provisional relief under subsection (d)(1) of this
section; or
(ii) request provisional relief under subsection (d)(2) of
this section.
(3) Whenever a petition is filed under paragraph (1), the
Commission shall promptly transmit copies of the petition to the
Office of the United States Trade Representative and other Federal
agencies directly concerned.
(4) A petitioner under paragraph (1) may submit to the Commission
and the United States Trade Representative (hereafter in this part
referred to as the "Trade Representative"), either with the
petition, or at any time within 120 days after the date of filing
of the petition, a plan to facilitate positive adjustment to import
competition.
(5)(A) Before submitting an adjustment plan under paragraph (4),
the petitioner and other entities referred to in paragraph (1) that
wish to participate may consult with the Trade Representative and
the officers and employees of any Federal agency that is considered
appropriate by the Trade Representative, for purposes of evaluating
the adequacy of the proposals being considered for inclusion in the
plan in relation to specific actions that may be taken under this
part.
(B) A request for any consultation under subparagraph (A) must be
made to the Trade Representative. Upon receiving such a request,
the Trade Representative shall confer with the petitioner and
provide such assistance, including publication of appropriate
notice in the Federal Register, as may be practicable in obtaining
other participants in the consultation. No consultation may occur
under subparagraph (A) unless the Trade Representative, or his
delegate, is in attendance.
(6)(A) In the course of any investigation under subsection (b) of
this section, the Commission shall seek information (on a
confidential basis, to the extent appropriate) on actions being
taken, or planned to be taken, or both, by firms and workers in the
industry to make a positive adjustment to import competition.
(B) Regardless whether an adjustment plan is submitted under
paragraph (4) by the petitioner, if the Commission makes an
affirmative determination under subsection (b) of this section, any
-
(i) firm in the domestic industry;
(ii) certified or recognized union or group of workers in the
domestic industry;
(iii) State or local community;
(iv) trade association representing the domestic industry; or
(v) any other person or group of persons,
may, individually, submit to the Commission commitments regarding
actions such persons and entities intend to take to facilitate
positive adjustment to import competition.
(7) Nothing in paragraphs (5) and (6) may be construed to provide
immunity under the antitrust laws.
(8) The procedures concerning the release of confidential
business information set forth in section 332(g) of the Tariff Act
of 1930 [19 U.S.C. 1332(g)] shall apply with respect to information
received by the Commission in the course of investigations
conducted under this part, part 1 of title III of the North
American Free Trade Agreement Implementation Act [19 U.S.C. 3351 et
seq.], title II of the United States-Jordan Free Trade Area
Implementation Act, title III of the United States-Chile Free Trade
Agreement Implementation Act, title III of the United States-
Singapore Free Trade Agreement Implementation Act, title III of
the United States-Australia Free Trade Agreement Implementation
Act, title III of the United States-Morocco Free Trade Agreement
Implementation Act, title III of the Dominican Republic-Central
America-United States Free Trade Agreement Implementation Act [19
U.S.C. 4051 et seq.], and title III of the United States-Bahrain
Free Trade Agreement Implementation Act. The Commission may request
that parties providing confidential business information furnish
nonconfidential summaries thereof or, if such parties indicate that
the information in the submission cannot be summarized, the reasons
why a summary cannot be provided. If the Commission finds that a
request for confidentiality is not warranted and if the party
concerned is either unwilling to make the information public or to
authorize its disclosure in generalized or summarized form, the
Commission may disregard the submission.
(b) Investigations and determinations by Commission
(1)(A) Upon the filing of a petition under subsection (a) of this
section, the request of the President or the Trade Representative,
the resolution of either the Committee on Ways and Means of the
House of Representatives or the Committee on Finance of the Senate,
or on its own motion, the Commission shall promptly make an
investigation to determine whether an article is being imported
into the United States in such increased quantities as to be a
substantial cause of serious injury, or the threat thereof, to the
domestic industry producing an article like or directly competitive
with the imported article.
(B) For purposes of this section, the term "substantial cause"
means a cause which is important and not less than any other cause.
(2)(A) Except as provided in subparagraph (B), the Commission
shall make the determination under paragraph (1) within 120 days
(180 days if the petition alleges that critical circumstances
exist) after the date on which the petition is filed, the request
or resolution is received, or the motion is adopted, as the case
may be.
(B) If before the 100th day after a petition is filed under
subsection (a)(1) of this section the Commission determines that
the investigation is extraordinarily complicated, the Commission
shall make the determination under paragraph (1) within 150 days
(210 days if the petition alleges that critical circumstances
exist) after the date referred to in subparagraph (A).
(3) The Commission shall publish notice of the commencement of
any proceeding under this subsection in the Federal Register and
shall, within a reasonable time thereafter, hold public hearings at
which the Commission shall afford interested parties and consumers
an opportunity to be present, to present evidence, to comment on
the adjustment plan, if any, submitted under subsection (a) of this
section, to respond to the presentations of other parties and
consumers, and otherwise to be heard.
(c) Factors applied in making determinations
(1) In making determinations under subsection (b) of this
section, the Commission shall take into account all economic
factors which it considers relevant, including (but not limited to)
-
(A) with respect to serious injury -
(i) the significant idling of productive facilities in the
domestic industry,
(ii) the inability of a significant number of firms to carry
out domestic production operations at a reasonable level of
profit, and
(iii) significant unemployment or underemployment within the
domestic industry;
(B) with respect to threat of serious injury -
(i) a decline in sales or market share, a higher and growing
inventory (whether maintained by domestic producers, importers,
wholesalers, or retailers), and a downward trend in production,
profits, wages, productivity, or employment (or increasing
underemployment) in the domestic industry,
(ii) the extent to which firms in the domestic industry are
unable to generate adequate capital to finance the
modernization of their domestic plants and equipment, or are
unable to maintain existing levels of expenditures for research
and development,
(iii) the extent to which the United States market is the
focal point for the diversion of exports of the article
concerned by reason of restraints on exports of such article
to, or on imports of such article into, third country markets;
and
(C) with respect to substantial cause, an increase in imports
(either actual or relative to domestic production) and a decline
in the proportion of the domestic market supplied by domestic
producers.
(2) In making determinations under subsection (b) of this
section, the Commission shall -
(A) consider the condition of the domestic industry over the
course of the relevant business cycle, but may not aggregate the
causes of declining demand associated with a recession or
economic downturn in the United States economy into a single
cause of serious injury or threat of injury; and
(B) examine factors other than imports which may be a cause of
serious injury, or threat of serious injury, to the domestic
industry.
The Commission shall include the results of its examination under
subparagraph (B) in the report submitted by the Commission to the
President under subsection (e) of this section.
(3) The presence or absence of any factor which the Commission is
required to evaluate in subparagraphs (A) and (B) of paragraph (1)
is not necessarily dispositive of whether an article is being
imported into the United States in such increased quantities as to
be a substantial cause of serious injury, or the threat thereof, to
the domestic industry.
(4) For purposes of subsection (b) of this section, in
determining the domestic industry producing an article like or
directly competitive with an imported article, the Commission -
(A) to the extent information is available, shall, in the case
of a domestic producer which also imports, treat as part of such
domestic industry only its domestic production;
(B) may, in the case of a domestic producer which produces more
than one article, treat as part of such domestic industry only
that portion or subdivision of the producer which produces the
like or directly competitive article; and
(C) may, in the case of one or more domestic producers which
produce a like or directly competitive article in a major
geographic area of the United States and whose production
facilities in such area for such article constitute a substantial
portion of the domestic industry in the United States and
primarily serve the market in such area, and where the imports
are concentrated in such area, treat as such domestic industry
only that segment of the production located in such area.
(5) In the course of any proceeding under this subsection, the
Commission shall investigate any factor which in its judgment may
be contributing to increased imports of the article under
investigation. Whenever in the course of its investigation the
Commission has reason to believe that the increased imports are
attributable in part to circumstances which come within the purview
of subtitles A and B of title VII [19 U.S.C. 1671 et seq., 1673 et
seq.] or section 337 [19 U.S.C. 1337] of the Tariff Act of 1930, or
other remedial provisions of law, the Commission shall promptly
notify the appropriate agency so that such action may be taken as
is otherwise authorized by such provisions of law.
(6) For purposes of this section:
(A)(i) The term "domestic industry" means, with respect to an
article, the producers as a whole of the like or directly
competitive article or those producers whose collective
production of the like or directly competitive article
constitutes a major proportion of the total domestic production
of such article.
(ii) The term "domestic industry" includes producers located in
the United States insular possessions.
(B) The term "significant idling of productive facilities"
includes the closing of plants or the underutilization of
production capacity.
(C) The term "serious injury" means a significant overall
impairment in the position of a domestic industry.
(D) The term "threat of serious injury" means serious injury
that is clearly imminent.
(d) Provisional relief
(1)(A) An entity representing a domestic industry that produces a
perishable agricultural product or citrus product that is like or
directly competitive with an imported perishable agricultural
product or citrus product may file a request with the Trade
Representative for the monitoring of imports of that product under
subparagraph (B). Within 21 days after receiving the request, the
Trade Representative shall determine if -
(i) the imported product is a perishable agricultural product
or citrus product; and
(ii) there is a reasonable indication that such product is
being imported into the United States in such increased
quantities as to be, or likely to be, a substantial cause of
serious injury, or the threat thereof, to such domestic industry.
(B) If the determinations under subparagraph (A)(i) and (ii) are
affirmative, the Trade Representative shall request, under section
332(g) of the Tariff Act of 1930 [19 U.S.C. 1332(g)], the
Commission to monitor and investigate the imports concerned for a
period not to exceed 2 years. The monitoring and investigation may
include the collection and analysis of information that would
expedite an investigation under subsection (b) of this section.
(C) If a petition filed under subsection (a) of this section -
(i) alleges injury from imports of a perishable agricultural
product or citrus product that has been, on the date the
allegation is included in the petition, subject to monitoring by
the Commission under subparagraph (B) for not less than 90 days;
and
(ii) requests that provisional relief be provided under this
subsection with respect to such imports;
the Commission shall, not later than the 21st day after the day on
which the request was filed, make a determination, on the basis of
available information, whether increased imports (either actual or
relative to domestic production) of the perishable agricultural
product or citrus product are a substantial cause of serious
injury, or the threat thereof, to the domestic industry producing a
like or directly competitive perishable product or citrus product,
and whether either -
(I) the serious injury is likely to be difficult to repair by
reason of perishability of the like or directly competitive
agricultural product; or
(II) the serious injury cannot be timely prevented through
investigation under subsection (b) of this section and action
under section 2253 of this title.
(D) At the request of the Commission, the Secretary of
Agriculture shall promptly provide to the Commission any relevant
information that the Department of Agriculture may have for
purposes of making determinations and findings under this
subsection.
(E) Whenever the Commission makes an affirmative preliminary
determination under subparagraph (C), the Commission shall find the
amount or extent of provisional relief that is necessary to prevent
or remedy the serious injury. In carrying out this subparagraph,
the Commission shall give preference to increasing or imposing a
duty on imports, if such form of relief is feasible and would
prevent or remedy the serious injury.
(F) The Commission shall immediately report to the President its
determination under subparagraph (C) and, if the determination is
affirmative, the finding under subparagraph (E).
(G) Within 7 days after receiving a report from the Commission
under subparagraph (F) containing an affirmative determination, the
President, if he considers provisional relief to be warranted and
after taking into account the finding of the Commission under
subparagraph (E), shall proclaim such provisional relief that the
President considers necessary to prevent or remedy the serious
injury.
(2)(A) When a petition filed under subsection (a) of this section
alleges that critical circumstances exist and requests that
provisional relief be provided under this subsection with respect
to imports of the article identified in the petition, the
Commission shall, not later than 60 days after the petition
containing the request was filed, determine, on the basis of
available information, whether -
(i) there is clear evidence that increased imports (either
actual or relative to domestic production) of the article are a
substantial cause of serious injury, or the threat thereof, to
the domestic industry producing an article like or directly
competitive with the imported article; and
(ii) delay in taking action under this part would cause damage
to that industry that would be difficult to repair.
(B) If the determinations under subparagraph (A)(i) and (ii) are
affirmative, the Commission shall find the amount or extent of
provisional relief that is necessary to prevent or remedy the
serious injury. In carrying out this subparagraph, the Commission
shall give preference to increasing or imposing a duty on imports,
if such form of relief is feasible and would prevent or remedy the
serious injury.
(C) The Commission shall immediately report to the President its
determinations under subparagraph (A)(i) and (ii) and, if the
determinations are affirmative, the finding under subparagraph (B).
(D) Within 30 days after receiving a report from the Commission
under subparagraph (C) containing an affirmative determination
under subparagraph (A)(i) and (ii), the President, if he considers
provisional relief to be warranted and after taking into account
the finding of the Commission under subparagraph (B), shall
proclaim, for a period not to exceed 200 days, such provisional
relief that the President considers necessary to prevent or remedy
the serious injury. Such relief shall take the form of an increase
in, or the imposition of, a duty on imports, if such form of relief
is feasible and would prevent or remedy the serious injury.
(3) If provisional relief is proclaimed under paragraph (1)(G) or
(2)(D) in the form of an increase, or the imposition of, a duty,
the President shall order the suspension of liquidation of all
imported articles subject to the affirmative determination under
paragraph (1)(C) or paragraph (2)(A), as the case may be, that are
entered, or withdrawn from warehouse for consumption, on or after
the date of the determination.
(4)(A) Any provisional relief implemented under this subsection
with respect to an imported article shall terminate on the day on
which -
(i) if such relief was proclaimed under paragraph (1)(G) or
(2)(D), the Commission makes a negative determination under
subsection (b) of this section regarding injury or the threat
thereof by imports of such article;
(ii) action described in section 2253(a)(3)(A) or (C) of this
title takes effect under section 2253 of this title with respect
to such article;
(iii) a decision by the President not to take any action under
section 2253(a) of this title with respect to such article
becomes final; or
(iv) whenever the President determines that, because of changed
circumstances, such relief is no longer warranted.
(B) Any suspension of liquidation ordered under paragraph (3)
with respect to an imported article shall terminate on the day on
which provisional relief is terminated under subparagraph (A) with
respect to the article.
(C) If an increase in, or the imposition of, a duty that is
proclaimed under section 2253 of this title on an imported article
is different from a duty increase or imposition that was proclaimed
for such an article under this section, then the entry of any such
article for which liquidation was suspended under paragraph (3)
shall be liquidated at whichever of such rates of duty is lower.
(D) If provisional relief in the form of an increase in, or the
imposition of, a duty is proclaimed under this section with respect
to an imported article and neither a duty increase nor a duty
imposition is proclaimed under section 2253 of this title regarding
such article, the entry of any such article for which liquidation
was suspended under paragraph (3) may be liquidated at the rate of
duty that applied before provisional relief was provided.
(5) For purposes of this subsection:
(A) The term "citrus product" means any processed oranges or
grapefruit, or any orange or grapefruit juice, including
concentrate.
(B) A perishable agricultural product is any agricultural
article, including livestock, regarding which the Trade
Representative considers action under this section to be
appropriate after taking into account -
(i) whether the article has -
(I) a short shelf life,
(II) a short growing season, or
(III) a short marketing period,
(ii) whether the article is treated as a perishable product
under any other Federal law or regulation; and
(iii) any other factor considered appropriate by the Trade
Representative.
The presence or absence of any factor which the Trade
Representative is required to take into account under clause (i),
(ii), or (iii) is not necessarily dispositive of whether an
article is a perishable agricultural product.
(C) The term "provisional relief" means -
(i) any increase in, or imposition of, any duty;
(ii) any modification or imposition of any quantitative
restriction on the importation of an article into the United
States; or
(iii) any combination of actions under clauses (i) and (ii).
(e) Commission recommendations
(1) If the Commission makes an affirmative determination under
subsection (b)(1) of this section, the Commission shall also
recommend the action that would address the serious injury, or
threat thereof, to the domestic industry and be most effective in
facilitating the efforts of the domestic industry to make a
positive adjustment to import competition.
(2) The Commission is authorized to recommend under paragraph (1)
-
(A) an increase in, or the imposition of, any duty on the
imported article;
(B) a tariff-rate quota on the article;
(C) a modification or imposition of any quantitative
restriction on the importation of the article into the United
States;
(D) one or more appropriate adjustment measures, including the
provision of trade adjustment assistance under part 2 of this
subchapter; or
(E) any combination of the actions described in subparagraphs
(A) through (D).
(3) The Commission shall specify the type, amount, and duration
of the action recommended by it under paragraph (1). The
limitations set forth in section 2253(e) of this title are
applicable to the action recommended by the Commission.
(4) In addition to the recommendation made under paragraph (1),
the Commission may also recommend that the President -
(A) initiate international negotiations to address the
underlying cause of the increase in imports of the article or
otherwise to alleviate the injury or threat; or
(B) implement any other action authorized under law that is
likely to facilitate positive adjustment to import competition.
(5) For purposes of making its recommendation under this
subsection, the Commission shall -
(A) after reasonable notice, hold a public hearing at which all
interested parties shall be provided an opportunity to present
testimony and evidence; and
(B) take into account -
(i) the form and amount of action described in paragraph
(2)(A), (B), and (C) that would prevent or remedy the injury or
threat thereof,
(ii) the objectives and actions specified in the adjustment
plan, if any, submitted under subsection (a)(4) of this
section,
(iii) any individual commitment that was submitted to the
Commission under subsection (a)(6) of this section,
(iv) any information available to the Commission concerning
the conditions of competition in domestic and world markets,
and likely developments affecting such conditions during the
period for which action is being requested, and
(v) whether international negotiations may be constructive to
address the injury or threat thereof or to facilitate
adjustment.
(6) Only those members of the Commission who agreed to the
affirmative determination under subsection (b) of this section are
eligible to vote on the recommendation required to be made under
paragraph (1) or that may be made under paragraph (3). Members of
the Commission who did not agree to the affirmative determination
may submit, in the report required under subsection (f) of this
section, separate views regarding what action, if any, should be
taken under section 2253 of this title.
(f) Report by Commission
(1) The Commission shall submit to the President a report on each
investigation undertaken under subsection (b) of this section. The
report shall be submitted at the earliest practicable time, but not
later than 180 days (240 days if the petition alleges that critical
circumstances exist) after the date on which the petition is filed,
the request or resolution is received, or the motion is adopted, as
the case may be.
(2) The Commission shall include in the report required under
paragraph (1) the following:
(A) The determination made under subsection (b) of this section
and an explanation of the basis for the determination.
(B) If the determination under subsection (b) of this section
is affirmative, the recommendations for action made under
subsection (e) of this section and an explanation of the basis
for each recommendation.
(C) Any dissenting or separate views by members of the
Commission regarding the determination and any recommendation
referred to in subparagraphs (A) and (B).
(D) The findings required to be included in the report under
subsection (c)(2) of this section.
(E) A copy of the adjustment plan, if any, submitted under
section 2251(b)(4) of this title.
(F) Commitments submitted, and information obtained, by the
Commission regarding steps that firms and workers in the domestic
industry are taking, or plan to take, to facilitate positive
adjustment to import competition.
(G) A description of -
(i) the short- and long-term effects that implementation of
the action recommended under subection (!1) (e) of this section
is likely to have on the petitioning domestic industry, on
other domestic industries, and on consumers, and
(ii) the short- and long-term effects of not taking the
recommended action on the petitioning domestic industry, its
workers and the communities where production facilities of such
industry are located, and on other domestic industries.
(3) The Commission, after submitting a report to the President
under paragraph (1), shall promptly make it available to the public
(with the exception of the confidential information obtained under
subsection (a)(6)(B) of this section and any other information
which the Commission determines to be confidential) and cause a
summary thereof to be published in the Federal Register.
(g) Expedited consideration of adjustment assistance petitions
If the Commission makes an affirmative determination under
subsection (b)(1) of this section, the Commission shall promptly
notify the Secretary of Labor and the Secretary of Commerce of the
determination. After receiving such notification -
(1) the Secretary of Labor shall give expedited consideration
to petitions by workers in the domestic industry for
certification for eligibility to apply for adjustment assistance
under part 2 of this subchapter; and
(2) the Secretary of Commerce shall give expedited
consideration to petitions by firms in the domestic industry for
certification of eligibility to apply for adjustment assistance
under part 3 of this subchapter.
(h) Limitations on investigations
(1) Except for good cause determined by the Commission to exist,
no investigation for the purposes of this section shall be made
with respect to the same subject matter as a previous investigation
under this part, unless 1 year has elapsed since the Commission
made its report to the President of the results of such previous
investigation.
(2) No new investigation shall be conducted with respect to an
article that is or has been the subject of an action under section
2253(a)(3)(A), (B), (C), or (E) of this title if the last day on
which the President could take action under section 2253 of this
title in the new investigation is a date earlier than that
permitted under section 2253(e)(7) of this title.
(3)(A) Not later than the date on which the Textiles Agreement
enters into force with respect to the United States, the Secretary
of Commerce shall publish in the Federal Register a list of all
articles that are subject to the Textiles Agreement. An
investigation may be conducted under this section concerning
imports of any article that is subject to the Textiles Agreement
only if the United States has integrated that article into GATT
1994 pursuant to the Textiles Agreement, as set forth in notices
published in the Federal Register by the Secretary of Commerce,
including the notice published under section 3591 of this title.
(B) For purposes of this paragraph:
(i) The term "Textiles Agreement" means the Agreement on
Textiles and Clothing referred to in section 3511(d)(4) of this
title.
(ii) The term "GATT 1994" has the meaning given that term in
section 3501(1)(B) of this title.
(i) Limited disclosure of confidential business information under
protective order
The Commission shall promulgate regulations to provide access to
confidential business information under protective order to
authorized representatives of interested parties who are parties to
an investigation under this section.