Commerce Still Considering Self-Initiating AD/CVD Cases, Agency Lawyer Says

The Commerce Department is still “in the process” of looking into self-initiation of antidumping and countervailing duty investigations, said Daniel Calhoun, assistant chief counsel for trade enforcement and compliance at Commerce, at an event hosted by Case Western Reserve University law school on Oct. 27. Should the agency “decide to do it,” self-initiation would allow investigations to occur in industries that are not well-placed to ask for duties, Calhoun said. Commerce Secretary Wilbur Ross in April said Commerce had “begun the process of self-initiating trade cases” (see 1704140002).

By beginning investigations without an industry petition, Commerce would remove the impediment of industry support requirements for AD/CV duty cases, and alleviate the financial burden of bringing trade cases for industries already suffering economic injury, Calhoun said. Some U.S. companies may have operations or investments in foreign countries, and may fear that filing a petition against those countries would cause their business deals to get quashed in retaliation, he said.

If and when Commerce self-initiates an AD/CVD case, some participation from domestic producers would still be required in the parallel International Trade Commission injury investigation, Calhoun said. While the burden mostly falls on foreign respondents to provide information in the Commerce dumping or subsidy investigation, domestic producers must provide evidence of injury in the ITC portion for the commission to find injury and clear the way for an AD/CVD order, he said.

Meanwhile, other trade cases with the potential for widespread trade restrictions may be winding down. A request by U.S. Steel for a Section 337 exclusion order on all imports of Chinese steel appears to be on its last legs after an ITC judge ruled against several of the company’s arguments, said Beau Jackson, a lawyer with Adduci Mastriani, which represents some of the companies involved in the case. U.S. Steel withdrew its trade secret misappropriation claims in the case, and did not appeal the denial of its false country of origin claim. Its third and last claim, on price fixing, is currently under review by the full commission after denial by an ITC judge. “So as it stands here today, the case is all but dead … unless the commission were to revitalize it with the antitrust aspect of it,” Jackson said.

Section 232 “national security” investigations on steel and aluminum products may also fall by the wayside, in part due to their complexity, said Neil Ellis of Sidley Austin. The Trump administration started getting “a lot of pushback” by other industries “on the idea of imposing significant import restraints on steel and aluminum products,” he said. After initial indications that the administration would move quickly, “at the moment we are just drifting along,” Ellis said. According to Ellis, Ross has said the administration may instead give the steel and aluminum industries relief through tax reform, “and kind of let the 232 investigation die.”