ITC Commissioner Offers Tips for Counsel Appearing in Injury Proceedings
NEW YORK -- International Trade Commissioner Rhonda Schmidtlein recommended that counsel arguing before the commission more clearly articulate the source of alternative data used in injury proceedings and submit contemporaneous data before hearings, where possible. Speaking at the Court of International Trade's 22nd Judicial Conference Oct. 10 during a panel discussion on the state of trade-related agencies, Schmidtlein offered tips to arguing counsel on how to best capture the attention of the commissioners and ensure more seamless and robust hearings.
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The commissioner noted the increased use of "alternative data" in injury proceedings, whereby parties submit data not found in the ITC staff report. Schmidtlein said that parties seeking to use that data should be "very clear" in identifying its source and what adjustments the parties have made to the data in relation to the data found in the staff report. The commissioner said parties are asking the ITC to rely on different information, but "it's not really clear" why certain adjustments were chosen or where certain pieces of information came from.
Schmidtlein said that contemporaneous data, which the commissioner said is most often submitted by petitioners regarding pricing pressure, is often not submitted until after the hearing. While she noted that there may be "strategic" reasons for delaying the submission of this data, the commissioner said this "can be a dangerous approach, because a lot of times those communications or internal documentation is not exactly clear." In that case, "it's very likely the commission won't be able to rely on it," Schnmidtlein said, encouraging the submission of the data in pre-hearing briefs.
Arguing counsel also should not assume that commissioners have the evidentiary record in a given case "at their fingertips," given the current workload at the ITC, Schmidtlein said. Due to this workload, she said, submitting written testimony and slides "even a day in advance" is "incredibly helpful." The ITC has constant problems with its microphones and acoustics in the hearing room, making written testimony invaluable, particularly where remote witnesses are called, Schmidtlein said.
The commissioner added that counsel should address "the weakest points" in their case, noting that she has often been surprised that one side will fail to address their opponents' main arguments head on. In many cases, the points are "central enough where they will have to be addressed in the opinion," she said.
Regarding substantive issues before the ITC, Schmidtlein noted two new developments in the commission's decision-making. The first is the commission's increasing trend of finding critical circumstances. Schmidtlein noted one case in which the "majority was really breaking new ground" in focusing on the total value and not just the increase of the imports at issue. She noted that she dissented in the matter.
Another proceeding in which she dissented involved the commission's decision to revoke the antidumping and countervailing duty orders on cold-rolled steel flat products from Brazil in a sunset review on the orders on the basis that Section 232 duties created a condition of competition (see 2208110062). Schmidtlein noted that she dissented because she thought "the majority was conflating the question of injury with the question of whether there's a different condition of competition." The commissioner said she imagines that "there was some surprise out there when the commission revoked those orders and doing so based on the different condition of competition, not adverse impact."