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ITA Cracks Down on Misconduct in AD/CV Proceedings

Wednesday, April 17, 2013
By Shawn McCausland
Sandler, Travis & Rosenberg Trade Report

The International Trade Administration has issued a final rule that, effective May 17, will amend its regulations in an effort to strengthen the accountability of attorneys and non-attorney representatives who appear before the ITA in antidumping and countervailing duty proceedings. This rule provides that both attorneys and non-attorney representatives will be subject to disciplinary action for misconduct in such proceedings based on good cause.

The ITA notes that it is adopting this rule as proposed without changes despite some objections from commenters. For example, some pointed out that the rule subjects practitioners to potentially punitive sanctions “at the whim of government officials” without clear guidelines or safeguards, while others asserted that there is no separate need for the ITA to discipline attorneys because appropriate bar counsel and associations are responsible for such discipline. There were concerns that the “good cause” standard for the application of sanctions for misconduct, as well as the definition of “improper conduct,” are too vague. Several commenters also took issue with the plan to maintain a public register of attorneys and representatives who may be suspended or barred from practice before the ITA, noting among other things that in today’s Internet age “publicizing violators’ names will survive long after the temporary nature of any suspension.”

While the ITA declined to change the final rule in response to any of these concerns, it did specify that “clearly improper conduct” includes, but is not limited to: knowingly providing incorrect information to the ITA; knowingly making misrepresentations of fact or law; knowingly making false accusations in a proceeding; failing to engage in reasonable diligence, including failure to exercise such diligence in the preparation and/or review of submissions; and assisting an attorney or non-attorney representative who has been suspended or disbarred from practicing before the ITA during such disbarment or suspension to work on matters pending before the agency.

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