Significant Changes Wanted in ITA Proposal on Factual Information in AD/CV Cases
The International Trade Administration’s proposed changes to the definition of factual information and time limits for its submission in antidumping and countervailing duty proceedings would limit the ability of both foreign respondents and domestic interested parties “to provide accurate information and meaningful comment, and to correct errors,” said trade attorney Jeffrey Winton in comments on the ITA’s July 10 proposed rule. Comments were generally opposed to the proposal as it currently stands, particularly those by representatives of domestic industry.
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The ITA’s proposed rule would set specific time limits for submissions of factual information in antidumping and countervailing duty proceedings. It would define the specific types of factual information the ITA accepts in AD/CV proceedings, and would set specific deadlines for each type of information instead of the current general deadline for submissions of factual information. Comments were originally due by Aug. 24, but the ITA pushed the deadline to Sept. 24 in response to an extension request. (See ITT’s Online Archives 12070928 for summary of the proposed rule.)
The Committee to Support U.S. Trade Laws (CSUSTL) was vociferous in its opposition to the proposed rule. The proposal would “not only place domestic interested parties at a fundamental disadvantage, but it would also deprive the Department of a great deal of relevant factual information and, in the process, result in less accurate AD and CVD determinations,” it said.
CSUSTL especially took issue with the ITA’s proposal to eliminate the general deadline for submitting factual information and replace it with response-specific deadlines. Domestic parties in AD/CV proceedings don’t know which facts will be relevant and in contention until the record has been developed through later submissions, CSUSTL said. For example, the domestic parties may not decide to challenge a specific aspect of an initial questionnaire response until it sees whether the ITA has decided to get more information on the issue in later supplemental questionnaires. Tying specific time periods to specific submissions would “severely restrict the ability of domestic interested parties to place relevant factual information on the record,” CSUSTL said.
The proposed deadlines don’t give domestic parties enough time to respond either, and are unfair to domestic parties, said CSUSTL. The proposed 14-day deadline for factual information submissions rebutting foreign respondents’ initial questionnaire responses can be difficult to meet because the questionnaire responses can be thousands of pages long. Also, foreign respondents would have a longer period of 30 days to compile their responses, and are often given extensions. The deadlines for rebuttals would “severely prejudice” the ability of domestic interested parties to provide relevant factual information, CSUSTL said.
The strict time limits proposed by the ITA are meant to streamline AD/CV proceedings, said Kelley Drye. But the problems of AD/CV proceedings are rooted in more complex circumstances, it said. Department staffing has become more stretched, and extensions are routinely granted to respondents for submitting their questionnaire responses. Proposals such as the specific time limits, limiting factors of production submissions to before the preliminary determination or results, and providing only respondents with the ability to file a surrebuttal, would further incentivize incomplete submissions by foreign respondents and “represent a significant restriction on the ability of parties, particularly domestic parties, to meaningfully participate in developing the administrative record, without meeting the intended goals of the Department to streamline that process,” Kelley Drye said.
Trade lawyer Winton was also concerned about the effect of shortened deadlines for foreign respondents. Respondents can’t just take existing information to respond to questionnaires, but must instead work in a manner that “is often the antithesis of their normal accounting practices.” Company accounting systems are designed to aggregate data, but the ITA asks for disaggregation to the level of individual sales transactions and sales-related costs, Winton said. Allowing respondents only 30 days to complete this task is inadequate, he said.
Comments on the ITA's proposal are available here.