Mid-term monitoring investigation

Section 201 includes some checks on the domestic industries that have successfully secured relief. There is at least some degree of oversight of industry efforts to make a positive adjustment to import competition, with the risk of losing relief before the full term of relief is completed.

In any investigation that results in action exceeding three years, the Commission is required to conduct a mid-term review of the action to investigate and report to the White House on the developments related to the domestic industry and the industry's efforts to make a positive adjustment to import competition. A similar review takes place if an extension of the action is granted beyond three years. The report is due not later than the mid-point of the initial period in which the action is in effect, and of each such extension during which the action is in effect. Upon the request of the President, the Commission shall also advise the President of its judgement on the probable economic effect on the industry concerned of any reduction, modification, or termination of the action which is under consideration.

For practical purposes, a mid-term review is always conducted, as it has been the practice of the White House to grant initial relief for a period of three years and one day. The review itself is not unlike an original Section 201 investigation in that the Commission will issue questionnaires and a staff report, hold a hearing and entertain submissions and testimony from interested parties. The Commission recently instituted APO procedures for mid-term reviews, allowing counsel access to confidential information.

Upon receipt of the Commission mid-term review report, the President may reduce, modify or terminate the action. His decision may be based on changed. circumstances related to domestic industry adjustment efforts (or lack thereof) or other developments that have rendered the action ineffective. Likewise, a majority of the representatives can petition the President for reduction, modification or termination.

The mid-term review process under existing United States law has a limited history. There is some indication that the degree of scrutiny applied by the Commission is limited, and the review perfunctory. Until June 2001, relief had been terminated early as a result of a mid-term review in only one instance, and only after the domestic industry involved failed to even participate in the proceeding. This may change over time, but in the handful of actions reviewed the outcome has been continued relief even when significant doubts were raised about the continued efficacy of the action. For parties opposing continued relief, any effort made during the mid-term review is often viewed as an investment toward blocking any extension of the action when the initial relief expires.

Extension investigation

As stated earlier, any initial action taken under Section 201 can last no longer than four years. To extend the period, an interested party must petition the Commission or convince the President to make the request himself. In response to the petition or request, the Commission shall investigate whether the action continues to be necessary to prevent or remedy serious injury and whether there is evidence that the industry is making a positive adjustment to import competition. The petition or request must take place within nine months of and no later than six months before the date of the original action under Section 201 is scheduled to terminate. The Commission, in turn, must issue a report regarding the investigation no later than 60 days before the original action is set to expire. Once again, the process involves a hearing, with the Commission affording interested parties an opportunity to appear, present testimony and offer other submissions. Based on the report findings, the President has the authority to extend the action for a period not to exceed eight years in the aggregate from the date of the original action.

Judicial review

Judicial review is extremely limited in the context of Section 201 cases. While procedural irregularities at the Commission might be a basis for challenge, where the President is involved the courts have historically shown extreme deference. Since there is no explicit statutory authorization to appeal, it is unlikely a court would agree to hear the case or reverse a Presidential decision.

Source: Business Guide to Trade Remedies in the United States: Anti-dumping, countervailing and safeguards legislation practices and procedures