Other Trade Investigations Before the ITC

Other Trade Investigations Before the U.S. International Trade Commission

In addition to investigations under Section 337 of the Tariff Act of 1930, the United States International Trade Commission (“ITC” or “Commission”) conducts a broad range of investigations concerning imports, injury to United States industries, unfair trade practices, safeguard measures, and the economic effects of international trade.

The Commission's responsibilities include antidumping and countervailing duty investigations, five-year reviews of existing trade-remedy orders, safeguard investigations, and other investigations and studies conducted pursuant to federal trade statutes.

Antidumping Investigations

Antidumping (“AD”) investigations address allegations that foreign merchandise is being sold in the United States at less than fair value and that the dumped imports are causing or threatening material injury to a United States industry.

Responsibility for these investigations is divided between the U.S. Department of Commerce and the ITC. The Department of Commerce determines whether the imported merchandise is being sold at less than fair value and calculates the applicable dumping margin. The ITC separately determines whether a United States industry is materially injured, threatened with material injury, or, in appropriate circumstances, whether the establishment of an industry is materially retarded by reason of the imports under investigation.

If Commerce makes an affirmative dumping determination and the ITC makes the requisite affirmative injury determination, an antidumping duty order may be issued imposing additional duties on the subject merchandise.

Antidumping proceedings generally include both preliminary and final phases before the Commission and frequently involve extensive economic and industry data concerning imports, prices, market share, domestic production, capacity, employment, profitability, and other conditions of competition.

Countervailing Duty Investigations

Countervailing duty (“CVD”) investigations address imports that allegedly benefit from countervailable subsidies provided by foreign governments.

As in antidumping proceedings, responsibility is divided between the Department of Commerce and the ITC. Commerce determines whether countervailable subsidies exist and calculates the amount of the subsidy. The ITC determines whether the subsidized imports materially injure or threaten material injury to a United States industry, or materially retard the establishment of an industry.

When the necessary affirmative determinations are made, a countervailing duty order may be imposed to offset the effect of the foreign subsidy.

Antidumping and countervailing duty investigations are frequently conducted simultaneously when imports are alleged to be both dumped and subsidized.

Five-Year or “Sunset” Reviews

Antidumping and countervailing duty orders do not necessarily remain in effect indefinitely. Under United States trade law, existing AD and CVD orders generally are reviewed every five years. These proceedings are commonly known as five-year reviews or sunset reviews.

In a sunset review, Commerce considers whether revocation of an order would be likely to result in the continuation or recurrence of dumping or countervailable subsidization. The ITC separately considers whether revocation would be likely to lead to continuation or recurrence of material injury to the United States industry within a reasonably foreseeable time.

Depending upon the determinations of Commerce and the ITC, the existing trade remedy may either remain in place or be revoked.

Section 201 Global Safeguard Investigations

Section 201 of the Trade Act of 1974 establishes a separate form of import relief commonly known as the global safeguard or escape clause remedy.

Unlike antidumping, countervailing duty, and Section 337 proceedings, a Section 201 investigation does not require proof of an unfair trade practice. Instead, the Commission determines 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 of serious injury, to the domestic industry producing an article that is like or directly competitive with the imported article.

If the Commission makes an affirmative injury determination, it recommends appropriate relief to the President of the United States. The President makes the ultimate decision whether relief will be imposed and, if so, the nature and duration of that relief.

Possible safeguard measures can include increased tariffs, tariff-rate quotas, quantitative restrictions, and other measures intended to provide temporary protection while the affected domestic industry adjusts to increased import competition.

Section 201 therefore differs fundamentally from Section 337. Section 337 addresses unfair acts involving imported articles, frequently intellectual property infringement, while Section 201 provides a temporary safeguard against injurious increases in fairly traded imports.

Free Trade Agreement Safeguard Investigations

The Commission also conducts certain safeguard investigations pursuant to statutes implementing United States free trade agreements.

These proceedings generally examine whether increased imports resulting from tariff reductions or other obligations under a trade agreement have caused or threatened serious injury to a United States industry.

Where the applicable statutory requirements are satisfied, the Commission may recommend temporary relief to the President. Depending upon the governing agreement and implementing legislation, relief may include suspending further tariff reductions or temporarily restoring a higher rate of duty.

Other Import-Injury Proceedings

The Commission may also conduct other proceedings relating to existing trade remedies and changed circumstances.

These proceedings can involve questions concerning whether continued relief remains appropriate, the effects of changes in the relevant domestic industry or import market, and issues arising from judicial or administrative review of previous Commission determinations.

The particular procedures and legal standards depend upon the statute under which the Commission is acting.

Fact-Finding and Economic Investigations

The ITC also performs an important investigative and economic research function separate from its adjudicatory trade-remedy responsibilities.

Under Section 332 of the Tariff Act of 1930 and other statutory authorities, the Commission may conduct investigations and prepare reports concerning tariffs, international trade, competitiveness, foreign industries, supply chains, economic conditions, and the effects of trade policies on the United States economy.

These investigations may be requested by Congress, the President, or the United States Trade Representative, or undertaken under other statutory authority.

Unlike Section 337, antidumping, countervailing duty, and safeguard proceedings, these investigations ordinarily do not adjudicate private rights or result directly in exclusion orders or additional duties. Instead, they provide independent economic analysis and factual information for Congress and the Executive Branch in the formulation and administration of United States trade policy.

The ITC's Broader Role in U.S. Trade Law

The United States International Trade Commission occupies a distinctive position in the administration of United States international trade law.

Its responsibilities extend well beyond Section 337 intellectual property investigations. The Commission determines injury in antidumping and countervailing duty cases, conducts sunset reviews of existing trade remedies, investigates requests for safeguard protection from increased imports, and performs extensive economic and fact-finding investigations concerning international trade.

These responsibilities place the Commission at the intersection of international trade law, intellectual property law, customs and tariff policy, domestic industry protection, and United States international economic policy.