There are six separate means by which a Section 201 investigation may be commenced: (1) a petition to the Commission by representatives of the allegedly injured domestic industry; (2) a request of the President; (3) a request of the United States Trade Representative; (4) a request of the House Ways and Means Committee; (5) a request of the Senate Finance Committee; or (6) upon initiation of the Commission itself. All but the first option are exceedingly rare. One of the few limitations on initiation of an investigation is that no investigation will commence, save for good cause shown, with respect to the same subject matter as a previous investigation unless one year has elapsed since the Commission made its report to the President in the prior investigation.

 

Looking specifically at petitions filed by representatives of the domestic industry, there is virtually no standing requirement to overcome before the Commission will initiate a Section 201 investigation. Unlike the AD and CVD laws, an entity is not required to account for a certain percentage of production (although Commission regulations request an accounting of such production within the petition). The statute merely provides that the Commission shall initiate an investigation upon receipt of a petition from an entity 'representative' of an industry, which might include a trade association, firm, union or group of workers. There are practical limitations to this loose standard, however, and no action should be anticipated if a majority of an industry opposes an investigation.

 

Industry apathy, however, has been treated somewhat differently. For example, in a Section 201 case involving lamb meat imports, the Commission found injury and recommended import relief based on a petition filed by two trade associations representing lamb feeders and growers, and only a few individual grower, feeder, and meat processing firms. Actual domestic industry participation in the investigation was low. The Commission achieved a questionnaire response rate for the domestic industry of little better than 50% from an extremely narrow cross-section of the industry, ultimately relying on data accounting for only 5% of the domestic lamb slaughter. No adverse inferences were drawn and the investigation eventually led to import relief.

 

The lamb meat case demonstrates how a minority of relatively motivated interests within an industry can secure import relief under the statute. There have been only rare instances in which a proceeding was not initiated by a petition from the private sector. Under intense and mounting pressure from the United States steel industry, labour unions and steel state lawmakers, on 22 June 2001 the United States Trade Representative requested the Commission to conduct a Section 201 investigation of steel imports. The action was taken only after the realization that a majority of the Senate Finance Committee was prepared to make the request itself. Fearing it would lose control of the process and important political leverage on steel and other issues, the Bush Administration elected to take the action.

 

Whether the steel action will promote greater activism in the Senate Finance Committee and House Ways and Means Committee with respect to requesting Section 201 investigations is uncertain. It proves, however, that government initiation of one variety or another is not beyond the realm of possibility. Taking lessons from the steel case, the situation probably has to be extreme. For example, it took over two years and the collapse of significant portions of the steel industry by 2001 before action was seriously threatened by the Finance Committee and USTR finally made its request. Given the political component of Section 201, any initiation effected by an arm of the government must be considered a significant victory for the domestic industry seeking relief and a major setback for interests opposed to that relief.

 

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