Trade Law Panel Talks New Commerce Regs, ITC Challenges

Lawyers gave feedback this week on recently issued Commerce Department antidumping and countervailing duty regulations, with at least one attorney saying the changes were mostly positive for petitioners. They also discussed challenges faced by different parties during International Trade Commission investigations, and they said they sided with the ITC in its ongoing defense of its treatment of confidential information at the Court of International Trade.

The lawyers, along with a Commerce and an ITC official, were speaking on a May 22 panel during a conference hosted by Georgetown University's Law Center. Scott McBride, associate deputy chief counsel for trade enforcement at Commerce, used the panel to discuss the Commerce regulations' major changes (see 2403270072) and discussed the “not-so-sexy” filing updates being implemented by the agency. For example, parties seeking to cite Commerce-authored publications can cite those publications without placing them on the record as long as they include those publications’ ACCESS barcode numbers.

Jessica DiPietro, a lawyer with Wiley Rein, said she and her colleagues are “really looking forward” to seeing new cases on those issues to better advise clients about what documents to maintain and what situations to keep an eye on in other countries’ news. They will also be “really closely monitoring” Commerce’s application of the more procedural changes, she said.

“We need to know that our documents are complying with the Commerce regulations, and there's really something very annoying about getting a document bounced because you didn't put an ACCESS barcode in there,” she said.

Roop Bhatti, a Cassidy Levy lawyer, said that she was “very impressed” with Commerce. She said the rules will have a positive impact on petitioners, especially those allowing the department to look into the price and cost impacts of foreign governments’ inaction regarding, for example, labor rights.

She described working on a case involving shrimp from Vietnam in which Commerce chose to use Bangladesh as a surrogate in calculating a respondents’ costs. Even though Bangladesh’s pervasive poor labor practices were well-known, she said, Commerce refused to consider the potential impacts those practices could have on the surrogate's costs. Instead, they would just “raise their hands up and say, ‘We don’t touch these socioeconomic and political issues, we just take the values as they are,’” she said.

CIT remanded the case and asked Commerce to consider those factors anyway, which it did, she said. She said she's glad the department plans to continue doing so in the future.

She also said she’s happy it's finally considering transnational subsidies, citing the Chinese government’s Belt and Road Initiative.

“The EU has already taken action in 2019 and 2020,” she said. “They have several cases where they're attributing subsidies by the government of China to the governments of Egypt and Indonesia. I guess I'll just say that it's unfortunate that the EU is sort of leading the way in trade remedies.”

Panelists also talked about challenges faced by petitioners, respondents and the ITC itself during injury investigations.

Nannette Christ, director of investigations for the commission, said the two biggest difficulties the ITC faces during its inquiries are unclear scopes and analyses that require more countries. The former requires substantially larger questionnaires, and the latter “mushrooms” the amount of data analysis required for a proper result, she said.

Bhatti said she doesn’t think it’s helpful to always have a round of comments on draft questionnaires immediately after the preliminary phase, as petitioners aren’t always prepared to provide them, and suggested moving that time frame elsewhere. She also said it might be worth building in a second, limited round for such comments.

She also said she would like to see the ITC audit the questionnaire responses of foreign as well as domestic producers.

DiPietro said she agrees. She also noted that there “is always a question on how to report capacity,” saying that that remains an issue.

The panelists also discussed the ITC's defense of its treatment of confidential information at CIT (see 2405100022). They all agreed with the ITC, calling the court’s push for less redaction concerning.

Bhatti said that her clients are the ones who decide what information they want to be made public in court documents; even if those records also appear in, say, SEC filings, “that’s just not how our proceedings work,” she said. She said there are still dangers involved.

“That is one of the assurances to the companies submitting their questionnaire responses to [get them to] actually participate in these proceedings where they could ultimately be subpoenaed if they don't, that their information will be kept confidential from the competition,” DiPietro said. “They’re submitting them to the same pool as the companies that filed this petition against them. And their importers, or competitive importer, a customer, could look at a response and say ‘Why is this person paying that? And I’m paying this?’”