Following our phone conversation yesterday, I assembled a variety of materials which I hope will be useful to you in examining the constitutional issues raised by the Canada-U.S. Free Trade Agreement. I have included a wide assortment of materials to help you become acquainted with the procedures used in antidumping and countervailing duty investigations and appeals. I have also included more detailed information which you may need when performing a more detailed analysis of the issues. The materials included are described below. General Overviews: - 1) Overview and Compilation of U.S. Trade Statutes, Chapter 2, Ways and Means Committee Print WMCP 100-1 (1987) This summarizes the entire procedures used in antidumping and countervailing duty investigations and appeals. 2) Summary of Statutory Provisions Related to Import Relief, USITC Publication 1972 (April 1987) This U.S. International Trade Commission publication briefly summarizes all of the trade laws administered by the Commission, including the antidumping and countervailing duty laws. 3) Citizen's Guide to the Statutory Procedures of the United States International Trade Commission Pamphlet which provides a tabular summation of the investiagtions performed by the Commission. Materials Describing the Commission 4) 1986 Annual Report of the United States International Trade Commission, USITC Publication 1935 (1987) Contains information about Commission investigations performed in fiscal year 1986. On pages 6-7, the Annual Report contains two diagrams showing the administrative deadlines used in antidumping and countervailing duty investigations. 6) Certain Malleable Cast-Iron Pipe Fittings From Thailand, Investigation No. 731-TA-348 (Final), USITC Publication 2004 (August 1987) A copy of the public determination in a final Commission antidumping investigation. A copy of the final Department of Commerce determination is included in the Appendix A, at pages A-49 to A-51. that in the section of the report titled "Information Obtained in the Investigation" which begins on page A-1, all confidential business information obtained during the investigation has been deleted. Note A 7) Certain Bimetallic Cylinders From Japan, Investigation No. 731-TA-383 (Preliminary), USITC Publication 2017 (September 1987) copy of the public determination in a preliminary Commission antidumping investigation. 7) Certain Granite from Italy and Spain, Investigations No. 701-TA-288-289 (Preliminary) and 731-TA-381-382 (Preliminary), USITC Publication 2016 (September 1987) - A copy of the public determination in a preliminary Commission antidumping and countervailing duty investigation involving two countries. Statutes and Legislative Histories Trade Agreements Act of 1979, P.L. 96-39 (1979) The basic act describing all of the procedures used for antidumping and countervailing duty investigations and appeals. House version of 9) H.R. Rep. 317, 96th Cong., 1st Sess. (1979) the legislative history of the Trade Agreements Act of 1979. Senate version of 10) S. Rep. 249, 96th Cong., 1st Sess. (1979) the legislative history of the Trade Agreements Act of 1979. - The only 11) Trade and Tariff Act of 1984, P.L. 98-573 (1984) major amendments to the law governing antidumping and countervailing duty investigations and appeals. 12) H.R. Rep. 1156, 98th Cong., 2d Sess. (1984) Conference Committee Report accompanying the Trade and Tariff Act of 1984. Miscellaneous 13) The Commission's Rules of Practice and Procedure, 19 C.F.R. Chapter II (1987) The rules governing antidumping and countervailing duty investigations and appeals are contained in §§ 207.1-207.51. 14) Bibliography of Law Journal Articles on Statutes Administered By the United States International Trade Commission and Related Subjects (September 1987) A list of law review articles dealing with the Commission's investigations and appeals. This list may be helpful for 15) Sample Protective Order issued by the U.S. Court of International Trade The protective order was issued in Citrosuco Paulista, S.A. v. United States, Court No. 87-06-00703 (CIT 1987). protective order illustrates how the CIT goes about protecting confidential business information obtained during an antidumping or countervailing duty investigation. The 16) Taylor & Vermulst, Disclosure of Confidential Information in Antidumping and Countervailing Duty Proceedings Under United States Law: A Framework for the European Communities, 21 Int'l Lawyer 43 (1987) A law review article summarizing present U.S. procedures for safeguarding confidential business information obtained during an antidumping or countervailing duty investigation. 17) Kennedy, Judicial Review of Commerce Department Antidumping Duty Determinations: Deference or Abdication?, 11 N.C.J. Int'l & Com. Reg. 19 (1986) A law review article describing judicial review of Commerce's determinations in antidumping investigations. 18) Kennedy, A Proposal to Abolish the U.S. Court of International Trade, 4 Dickinson J. Int'l Law 13 (1985) A law review article describing the CIT and its jurisdiction, and expressing the view that it could be abolished. The materials described above should help you familiarize yourself with the constitutional issues and problems which may be raised by the Canada-U.S. Free Trade Agreement. You may also wish to look at 28 U.S.C. §§ 251(a), 1585 (creating the CIT as an Article III court with full legal and equitable powers) and 19 U.S.C. § 1516a (describing the procedures for judicial review of antidumping and countervailing duty determinations by the Commission and the department of Commerce). If you need further information about the Commission or about judicial review of the administrative determinations, please call me at 523-0074. Sincerely, Pristian Anderson Kristian Anderson Attorney-Advisor Congressman Peter W. Rodino, Jr. February 19, 1988 Dear Mr. Chairman: The undersigned are primarily practitioners of trade and customs law. Most are members of the bar of the Court of International Trade and the Court of Appeals for the Federal Circuit. Others are engaged in related disciplines involving international transactions. Several are former government officials with direct experience in the administration of the statutes under which antidumping and countervailing duties are imposed on U.S. imports. We regularly appear before the International Trade Administration of the U.S. Commerce Department and the U.S. International Trade Commission, representing both American and foreign interests in antidumping and countervailing duty proceedings. Many of us represent U.S. and nonU.S. parties in court. Some of our colleagues have written to you opposing on various grounds the provisions of the Canada-United States Free Trade Agreement creating a binational panel to review final antidumping and countervailing duty orders issued by the U.S. or Canadian authorities. In our view this opposition is unfounded and ill advised. We support the FTA and believe the panel review provisions to be sound constitutionally and, while some have reservations, a worthwhile Mr. Chairman attempt to seek new ways of addressing controversial national trade decisions. The FTA, if ratified and implemented by the United States and Canada, will be of enormous economic and political importance to the parties and, potentially, an example for multilateral negotiations. Since it is clear that the panel review procedure was an intensely bargained for provision of the FTA, those who oppose it bear a heavy burden of demonstrating that its alleged flaws are of such significance and are so detrimental to the interests of the United States that they outweigh the substantial benefits that will result from implementation of the FTA. It is especially appropriate that the burden of persuasion is on those opposing these provisions, since the panels, in all likelihood, will deal only with a miniscule share of the total trade between the U.S. and Canada. That burden has not been met. You have already been advised by a number of government agencies, including the General Counsel's Offices of the Department of Commerce, the United States Trade Representative, and the U.S. International Trade Commission, as well as the American Law Division of the Congressional Research Service, that there is no constitutional bar to the panel procedures which the FTA would establish. We agree with those conclusions. We believe that the Supreme Court's decision in Dames & Moore v. Reagan, 453 U.S. 654 (1981), sustaining a binding |