Scheme Nickname: 
Anti-dumping/Countervailing Duties

The ITC and the Department of Commerce conduct anti-dumping (AD) and countervailing duty/subsidy (CVD) investigations under the Tariff Act of 1930. Interested parties representing U.S. industries may petition both agencies for relief from dumping import practices (goods sold in the U.S. at less than fair value) and from certain subsidization practices regarding foreign exports to the United States. Each agency addresses a different question in the process. Commerce determines whether the alleged dumping or subsidizing is happening, and if so, at what margin. The ITC determines whether the U.S. industry is materially injured or threatened due to the import practices under investigation. If BOTH agencies reach final affirmative determinations on their questions, then Commerce issues an antidumping duty or countervailing duty order.

This ITC adjudication scheme is a Type B adjudication scheme because regulations call for an evidentiary process, but specifically exclude application of the APA. See 19 C.F.R. 207.24(b). Despite the use of the term "investigation," these ITC decisions have a legal effect on the parties' interests in their claims under federal trade programs. The ITC determination of material injury is a necessary step in the process for the Department of Commerce to issue an AD/CVD order, and Commission determinations are largely reviewable by the U.S. Court of International Trade. All this suggests that ITC AD/CVD determinations are "adjudications" for the purposes of our Project.

Process: For Final Determinations on whether a domestic injury is materially injured/threatened due to dumping/subsidized import practices, private "interested" parties (e.g. producers, consumers, trade associations, unions, etc.) file petitions with the ITC, alleging the elements necessary for the imposition of a duty. There are often multiple "respondents" involved in a proceeding, in addition to the petitioner(s). See, e.g., Multilayered Wood Flooring, Inv. Nos. 701-TA-476 and 731-TA-1179, USITC Pub. 4430 (Oct. 2013) (Final), at 2013 ITC LEXIS 1550. If the ITC decides to investigate the petition, there are procedures for before, during, and after the hearing.

Before the hearing, in the "preliminary determination" phase (no adjudications made), the parties may submit arguments and conference with the ITC Director of Operations. 19 C.F.R. 207.15. The Director submits a staff report to the Commission. Assuming the Commission makes an "affirmative preliminary determination" (i.e. decides to move forward with the case), the parties must submit pre-hearing briefs. 19 C.F.R. 207.23. The Director submits a pre-hearing staff report. Then, the Commission holds a hearing, with a "presiding official" presiding (probably one or more Commissioners or their delegates). See 19 C.F.R. 207.24 - 207.25; 201.13(b). After the hearing but before the final decision, the Director issues a final staff report for the record. The Commission then issues the Final Determination (on the question of material injury). 19 C.F.R. 207.29. If the Commission releases new info after post-hearing briefs, parties have an opportunity to comment on that info to supplement the record. 19 C.F.R. 207.30.

In addition, most reviews of existing anti-dumping/countervailing duty orders (to determine whether revoking the order would threaten injury), including Five-Year "Sunset" reviews, follow the same procedures to reach Final Determinations as the original orders. See 19 C.F.R. §§ 207.66; 207.45(d); 207.46(d).

Comments/Notes on Adjudication Structure: 
NOTE: Although the parties may submit briefs to, and conference with, the ITC's Director of Operations, that is in the preliminary phase of an anti-dumping/countervailing duty investigation. 19 C.F.R. 207.15. Parties can provide written witness testimony, and the Director can request appearance of witnesses, etc., but this part of the process is not an adjudicatory hearing because the only end result is the Director's staff report, which the Commission has no obligation to adopt. NOTE: AD/CVD hearings are conducted by a "presiding official." See 19 C.F.R. 207.25. A general ITC rule state that a "presiding official" in a "nonadjudicative investigation" is "the Commission or ... one or more Commissioners." 19 C.F.R. § 201.13(b). The Commission may also designate other agency employees to conduct the hearings. See id. Hearings in AD/CVD cases are probably "nonadjudicative investigations" because the formal APA adjudication procedures do not apply as they do in section 337 unfair importation cases. See 19 U.S.C. 1337(c). But for the purposes of our Project, the AD/CVD proceedings are probably Type B adjudications.
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