Jeffrey Kessler and two International Trade Commission nominees discussed their views on trade remedies that would fall in their would-be agencies’ jurisdictions, including duty and Section 337 investigations.
President Donald Trump’s nominee for assistant secretary of Commerce for enforcement and compliance told senators on Tuesday that, if confirmed, he would “seriously consider” self-initiating antidumping and countervailing duty investigations, in step with current Commerce Department policy.
Commerce on Nov. 28 announced the self-initiation of AD and CV duty investigations of imports of common alloy aluminum sheet from China, the first self-initiated AD or CV duty cases in more than a quarter century.
The nominee, Jeffrey Kessler, said during a Senate Finance Committee confirmation hearing that his criteria for self-initiation would include cases in which a U.S. industry is expected to face retaliation as a result of petitioning for an AD/CV duties and self-initiation would mitigate the threat, as well as cases where a domestic industry has small companies or is fractured and members of that industry cannot meet the threshold necessary for bringing an AD or CV duty case.
He added that he wouldn’t adopt any hard-and-fast rule for self-initiating cases and that he would take into account industry requests to enter into negotiated settlements as a way to resolve underlying unfair trade concerns.
Kessler is a trade attorney at Wilmer Hale.
Randolph Stayin and Amy Karpel, nominees to be commissioners on the International Trade Commission, also testified during the hearing.
A trade attorney, Stayin founded U.S. Trade Advisor, a trade consultancy, in January 2011.
One of several cases he has litigated is an AD investigation of candles from China that started in 1984 and has been “unsuccessfully challenged many times, including six administrative reviews, nearly 100 scope reviews, two anticircumvention reviews, six customs investigations, two sunset reviews and four five-year reviews, in addition to appeals to the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit,” Stayin said in his written testimony.
The AD duty rose from 54 percent at its outset to 108 percent in 2008, Stayin wrote.
“This example is only one of the many U.S. products I have represented, and as you all are aware, it is only one of thousands of U.S. products we must ensure will not be injured by unfair trade practices,” he wrote.
Stayin also noted his litigation of several Section 201 global safeguard investigations, as well as investigations under Section 232 of the Trade Expansion Act of 1962, customs anticircumvention investigations and Generalized System of Preferences investigations.
Committee Chairman Orrin Hatch, R-Utah, asked Karpel and Stayin their opinions on the criticality of Section 337 investigations, which are firmly in the ITC’s jurisdiction.
Both nominees emphasized the importance of protecting U.S. intellectual property and voiced the importance of using Section 337 as a tool to that end.
Section 337 of the Tariff Act of 1930 declares infringement of a U.S. patent, copyright, registered trademark or mask work to be unlawful in import trade.
The provision also holds as unlawful other unfair methods of competition and unfair acts in the importation and subsequent sale of products in the United States, the threat or effect of which is to destroy or substantially injure a domestic industry, prevent establishment of such an industry, or restrain or monopolize U.S. trade and commerce.
If it finds violations under the statute, the ITC may issue orders prohibiting the importation of certain products into the United States.
“Years ago, there were not very many [Section 337] cases brought before the International Trade Commission, and then all of the sudden, over the last 10 to 15 years, there’s been a huge volume of unfair trade practices that are made with respect to patents and trademarks and copyrights,” Stayin said. “Vigorous enforcement there is very important, and I think that the agency has done very well in that respect.”
Commerce nominee backs AD/CVD self-initiations
