II 110th CONGRESS 1st Session S. 1440 IN THE SENATE OF THE UNITED STATES May 21, 2007 Mr. Specter (for himself, Mr. Rockefeller, and Mr. Casey) 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.

Short title

This Act may be cited as the Unfair Foreign Competition Act of 2007.

2.

Judicial determination of injury

(a)

In general

Title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et seq.) is amended by adding at the end the following new subtitle: E

Judicial determination of injury

791.

Civil action

(a)

Injury determination

Notwithstanding any other provision of this title, in an antidumping or countervailing duty investigation initiated under section 702 or 732, a petitioning party, may, not later than 30 days after the date an investigation is initiated under such sections, elect to bring a civil action in a United States district court, for a determination that— (1)an industry in the United States— (A)is materially injured, or (B)is threatened with material injury, or (2)the establishment of an industry in the United States is materially retarded, by reason of imports, or sales (or the likelihood of sales) for importation, of the merchandise subject to the investigation, and that imports of the subject merchandise are not negligible.(b)

Five-year reviews

Not later than 30 days after a 5-year review of an antidumping or countervailing duty order is initiated under section 751(c), a party, who was a petitioning party in the initial investigation that resulted in the antidumping or countervailing duty order, may bring a civil action in a United States district court for a determination of whether revocation of the antidumping or countervailing duty order or termination of the investigation suspended under section 704 or 734 would likely lead to continuation or recurrence of material injury based on the standards set forth in section 752. (c)

Effect of election; relief

(1)

Effect of election

(A)

In general

An election under subsection (a) or (b) of this section shall be for a determination by the district court in lieu of a determination by the Commission under section 703(a), section 733(a), section 705(b), section 735(b), or chapter 1 of subtitle C, as the case may be. (B)

Commission to compile record

If an election is made under this subtitle, the Commission shall conduct an investigation and compile evidence with respect to the petition in the same manner and to the same extent under this title as if an election had not been made. Any information compiled by the Commission shall be made available to the parties to the proceeding and furnished to the district court in a timely manner. (C)

Notification by the administering authority and Commission

If an election is made under this subtitle, any notification the administering authority is required to provide the Commission under this title shall be provided to the district court and any notification the Commission is required to provide the administering authority shall be provided to the district court. (2)

Relief

(A)

In general

In an action brought under subsection (a) or (b), the district court shall apply the same standards and make the same determinations and findings, that would be made by the Commission under this title if an election had not been made. (B)

Findings and conclusions

The court shall issue findings of fact and conclusions of law and any order issued by the court shall have the same effect as a determination of the Commission under this title. (3)

Special rules

The following rules shall apply to actions initiated under subsection (a) or (b): (A)

Appeal

An order issued by a United States district court under this title shall be appealable to a United States Court of Appeals. (B)

Order not stayed

An order issued under this section shall not be stayed pending appeal to a United States Court of Appeals. (C)

Precedential effect of decisions of the international trade commission

The decisions of the Commission in other investigations initiated under this title shall not be binding on the court. (D)

Hearings

The court shall provide a petitioning party and any interested party an opportunity to file briefs and argue orally to the court based on the information compiled by the Commission. (E)

Attendance by defendant

There shall be no obligation on any defendant interested party to attend a meeting or hearing, and failure to do so shall not be prejudicial to that party's case. (F)

Default judgments

The failure of an interested party, described in subparagraph (A) or (B) of section 771(9), to intervene in an action initiated under this section or otherwise to participate in the proceedings shall not result in judgment by default. (G)

Venue

A civil action under this section may be brought in a judicial district where a manufacturing facility, sales office, or administrative headquarters of any plaintiff who is a petitioning party is located. (d)

Service of process

Within 5 days of filing an action under subsection (a) or (b), the filing party shall notify all known interested parties described in subparagraphs (A) and (B) of section 771(9). Such notice shall include— (1)a copy of the complaint; and (2)notice that the party is entitled to participate in the proceedings pursuant to subsection (e) of this section. (e)

Intervention as of right

Any interested party described in subparagraphs (A) and (B) of section 771(9) shall be entitled to intervene in an action initiated under this section. (f)

Preliminary relief

(1)

In general

In an action brought under subsection (a), the court shall, upon motion, issue a preliminary order that contains a determination of whether there is a reasonable indication that an industry in the United States is materially injured, or is threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of the subject merchandise and that imports of the subject merchandise are not negligible. The order shall include a description of the essential facts under consideration which form the basis of the decision. (2)

Effect of order

An order making an affirmative determination under paragraph (1) shall have the same effect as an affirmative preliminary determination by the Commission under section 703(a) or 733(a). (3)

Timing

The court shall make a preliminary determination under this subsection within 45 days after a complaint has been filed. (g)

Expedited action

(1)

In general

An action brought under subsection (a) or (b) shall be advanced on the docket and expedited in every way practicable. (2)

Final determination in subsection (a) cases

The court shall make a final determination regarding material injury in an action filed under subsection (a) before the later of— (A)the 120th day after the date on which the administering authority makes an affirmative preliminary determination under section 703(b) or 733(b); or (B)the 45th day after the day on which the administering authority makes an affirmative final determination under section 705(a) or 735(a). (3)

Final determination in five-year reviews

The court shall make a final determination regarding the likelihood of continuation or recurrence of material injury under subsection (b) before the later of— (A)the 360th day after the date on which the review is initiated under section 751(c)(2); or (B)the 120th day after the date on which the final determination of the administering authority is published. (4)

Extraordinarily complicated cases

If the court concludes that a case is extraordinarily complicated, as defined in section 703(c) or 733(c), the court may extend the time under paragraphs (2) or (3) by an additional 30 days. (h)

Protection of confidential information

The court shall make arrangements to protect the confidentiality of information designated as proprietary by an interested party pursuant to a judicial protective order.

. (b)

Changed circumstances reviews

Section 751(b) of the Tariff Act of 1930 (19 U.S.C. 1675(b)) is amended by adding at the end the following: (5)

Certain cases to be filed in United States district court

If the injury determination at issue was initially made by a United States district court, the court shall retain jurisdiction over the injury determination for purposes of this section. Any party seeking revocation of an order or termination of a suspended investigation shall seek review in the district court that made the original injury determination under section 791. . (c)

Clerical Amendment

The table of contents for title VII of the Tariff Act of 1930 is amended by inserting after the item relating to section 783 the following: Subtitle E—Judicial determination of injury Sec. 791. Civil action. . (d)

Conforming Amendment

Section 516A of the Tariff Act of 1930 (19 U.S.C. 1516a) is amended by striking Within 30 days and inserting Except in the case where an interested party makes an election under subtitle E of title VII for a judicial determination of injury, within 30 days. (e)

Effective date

The amendments made by this section apply to— (1)countervailing duty investigations initiated under section 702 of the Tariff Act of 1930 (19 U.S.C. 1671a) on or after the date of the enactment of this Act; (2)antidumping duty investigations initiated under section 732 of the Tariff Act of 1930 (19 U.S.C. 1673a) on or after the date of the enactment of this Act; and (3)reviews initiated under section 751 of the Tariff Act of 1930 (19 U.S.C. 1675) on or after the date of the enactment of this Act.

3.

Application to Canada and Mexico

Pursuant to article 1902 of the North American Free Trade Agreement and section 408 of the North American Free Trade Agreement Implementation Act, the amendments made by this Act shall apply with respect to goods from Canada and Mexico.

4.

Notification to World Trade Organization

Not later than 30 days after the date of the enactment of this Act, pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 and the Agreement on Subsidies and Countervailing Measures, the Secretary of State shall notify the appropriate officials of the World Trade Organization of the amendments made by this Act and that the United States district courts shall be treated as competent authorities for purposes of injury determinations under title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et seq.).