PUBLIC VERSION
V.
THE DOMESTIC INDUSTRY IS SUFFERING SERIOUS INJURY AND IS THREATENED WITH FURTHER SERIOUS INJURY
A.
Legal Framework The second of the three statutory criteria concerns whether the domestic industry is seriously injured or threatened with serious injury. Section 202( c)( 6)( C) of the Trade Act defines the term“ serious injury” as“ a significant overall impairment in the position of a domestic industry,” and Section 202( c)( 6)( D) defines the term“ threat of serious injury " as“ serious injury that is clearly imminent.” 94 With respect to serious injury, the Commission considers:
( i) the inability of a significant number of firms to carry out domestic production operations at a reasonable level of profit,
( ii) the significant idling of productive facilities in the domestic industry, and
( iii) significant unemployment or underemployment within the domestic industry. 95
With respect to threat of serious injury, the Commission considers:
( 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, 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, and
( 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. 96
94 See 19 U. S. C. § 2252( c)( 6)( C), 2252( c)( 6)( D). 95 Id. § 2252( c)( 1)( A). 96 Id. § 2252( c)( 1)( B).
35