Bifurcation without Dedication: The United States International Trade Commission and the Question of Petitioner Standing in Antidumping and Countervailing Duty Cases
Madaj, Edwin J., Nalls, Charles H., Law and Policy in International Business
In the intricate administrative machinery Congress has erected over the years for dumping and contervailing duty cases, one unique feature is the allocation of responsibility to two agencies otherwise independent of one another, the Commerce Department and the ITC.... Naturally the specifics as to who does what is for dispute and discussion. (1)
In the Tariff Act of 1930 (Tariff Act or Statute), (2) Congress bifurcated the responsibilities for implementing the antidumping and countervailing duty laws between two federal agencies (Agencies). Congress made the United States Department of Commerce (Commerce or Commerce Department) the "administering authority" under this act, (3) granting it the power to initiate antidumping and countervailing duty investigations, (4) to determine whether the relevant goods were being dumped or subsidized, (5) and to publish any resulting orders. (6) Congress granted Commerce the power to determine once a petition is filed whether a class or kind of merchandise described in the petition is being dumped or subsidized. (7) The Commission, on the other hand, determines whether the domestic industry is materially injured or threatened with material injury by reason of the imports under investigation, or whether the imports being investigated are materially retarding the establishment of the domestic industry. (8)
On its face this seems to be a relatively straightforward division of authority. However, experience demonstrates that the potential for conflict and controversy over the proper roles of the agencies is great. Particularly intriguing is the question of which agency should decide a party's standing to petition for relief under the antidumping or countervailing duty laws. On one hand, the existing case law indicates that only the Commerce Department has the authority to terminate investigations when the petitioner lacks standing. (9) On the other hand, the Tariff Act charges the Commission, not the Commerce Department, with defining the relevant domestic industry and assessing whether that industry has been materially injured. (10) This appears to be an anomaly, because the Commission, the agency with the most detailed information about a particular industry, is precluded from evaluating a party's standing to petition on behalf of that industry. As a result, it could be argued that the Tariff Act cannot have granted the Commerce Department the sole authority to determine standing questions and that the Commission must also have such authority.
This Article will assess which of the Agencies should decide questions of petitioner standing. In making this determination, this Article addresses three fundamental questions: (1) what provision of the statute grants the authority to terminate an investigation for lack of standing by the petitioner; (2) does the Commission have implicit or inherent authority to make standing determinations; and (3) assuming the Commission has the implicit authority to make standing determinations, should it exercise that authority.
This Article concludes that the statutory power to make standing determinations rests exclusively with the Commerce Department. Therefore, the Commission lacks both the explicit and implicit authority to render standing determinations. Moreover, this Article determines that even if the Commission had the implicit authority to make such standing determinations, the role of the agencies under the Statute counsels against the Commission's use of such authority. Finally, the Article examines some of the practical problems posed by the Commission's refusal to make standing determinations and offers suggestions for mitigating the problems created by the bifurcation of responsibility and authority between the two different agencies. (11)
THE PROVISIONS OF THE STATUTE THAT GRANT AUTHORITY TO
TERMINATE AN INVESTIGATION FOR LACK OF STANDING BY THE
Neither the antidumping nor countervailing provisions of the Tariff Act contains an explicit standing requirement. …