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Enforcement Pick Says Self-Initiation of AD/CV Cases a Possibility

Thursday, June 14, 2018
Sandler, Travis & Rosenberg Trade Report

Jeffrey Kessler, nominee to serve as assistant secretary of commerce for enforcement and compliance, told a Senate Finance Committee confirmation hearing June 12 that he would “seriously consider” self-initiating antidumping and countervailing duty investigations in that position.

According to press reports, Kessler said he does not have a “hard and fast rule” for determining whether and when to self-initiate such probes. However, he noted that he would consider self-initiating when doing so would help a domestic industry avoid the threat of retaliation from a foreign country if it pursued an AD or CV duty investigation. Another category “would be if an industry has small companies or is fractured” and is thus unable to meet the statutory threshold for bringing an AD or CV duty case.

The DOC’s International Trade Administration has the authority to self-initiate AD and CV duty investigations whenever it determines, based on the information available to it, that a formal investigation is warranted and that special circumstances exist to justify a self-initiation. However, U.S. law requires evidence of dumping or the necessary legal elements of a countervailable subsidy as well as evidence that the U.S. industry is suffering injury caused by the dumped or subsidized imports, requirements that can take substantial resources to meet. The ITA has previously said that its enforcement and compliance division is working to build capacity to more fully utilize self-initiation when it may be appropriate; e.g., when shifting production sources, duty evasion or circumvention, fragmented domestic industry, or the threat of retaliation by the exporting country might make it more difficult for U.S. companies to bring AD or CV duty cases on their own.

The ITA self-initiated AD/CV cases on common alloy aluminum sheet from China in November 2017, the first time in 25 years it had taken such a step, and said it would self-initiate additional investigations where warranted “to facilitate the application of the appropriate trade remedy for U.S. industries.”

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