Grunfeld, Desiderio, Lebowitz & Silverman - Comments on Proposed FR Summarization

COMMENTS REGARDING PROPOSAL TO MODIFY FORMAT OF ANTIDUMPING/COUNTERVAILING DUTY FEDERAL REGISTER NOTICES

These comments are submitted on behalf of Grunfeld, Desiderio, Lebowitz & Silverman LLP, a law firm engaged in representing numerous parties in antidumping and countervailing duty proceedings before the International Trade Administration ("ITA"). We submit these comments pursuant to the ITA's invitation for public comment published in the Federal Register on August 21, 1998 (63 Fed. Reg. 44837).

SUMMARY OF COMMENTS

We object to the ITA's proposal to modify the format of its AD/CVD Federal Register notices because the potential for hindering or delaying access by interested parties to the ITA's reasoning is not justified by the comparatively small benefit sought by the ITA through its reduction in publication costs.

THE ITA'S PROPOSAL COULD HINDER OR DELAY ACCESS BY INTERESTED PARTIES TO THE ITA'S REASONING SUPPORTING ITS DECISIONS

The cornerstone of any party's ability to participate meaningfully in a proceeding before the ITA is its ability to comment on the reasoning behind the ITA's decisions. Without complete and timely access to the ITA's underlying reasoning, a party is unable to comment on the decisions made by the ITA, and it is effectively denied meaningful participation in the review or investigation. Accordingly, the statute imposes strict deadlines on the ITA to publish its determinations in the Federal Register, and these determinations are expected to include the underlying facts and conclusions used by the agency. If the ITA creates two separate documents for (1) its decision in a proceeding and (2) its reasoning to support that decision, then the statutory deadlines could potentially be satisfied by the publication of the "decision" alone without the reasoning to justify it. While the ITA has stated that the "Issues and Decisions Memorandum" will be posted on its Web page simultaneously with any published decision notice, it is possible that the posting of this memorandum could be delayed, for example, due to technical difficulties. Under such a scenario, a party could be denied timely access to the ITA's reasoning while the agency's "decision" is still published in a timely fashion to avoid the consequences of the untimely publication of a determination. See, e.g., 19 U.S.C. § 1673b(d)(3).

Additionally, the ITA's decisions do not stand in a vacuum. A party cannot comment fully on the ITA's reasoning in a particular decision unless it has the ability to compare that reasoning to the precedent of prior decisions. Currently, several private services gather all Federal Register notices published by the ITA and provide their subscribers with the ability to search the entire canon of notices by topic. Furthermore, the results of such a search may be easily cited by reference to the Federal Register volume, issue number and page number on which the language appears. This system has proven to be an efficient method for parties to discuss the ITA's reasoning in any case within the context of prior practice. If the ITA's proposal in any way hinders the ability to research future decisions by subject matter or to cite the results of these searches in a uniform fashion, then the proposal will seriously impede the ability of all parties to participate meaningfully in the ITA's proceedings and to advocate their positions.

THE POTENTIAL FOR THESE PROBLEMS IS NOT JUSTIFIED BY THE COMPARATIVELY SMALL BENEFIT SOUGHT BY THE ITA

While the problems discussed above are merely potential consequences of the ITA's proposal, they are serious enough that their mere possibility should favor rejecting the ITA's proposal unless good cause can be shown for adopting the modified format.

The ITA has stated that it wishes to modify its Federal Register notices to reduce its publication costs, which are approximately $900,000.00. Although this is not a small sum of money, it pales in comparison to the millions of dollars at stake in most antidumping or countervailing duty proceedings. If the ITA's proposal were to cause any undue complication or delay in the resolution of some of these proceedings, then the additional amount of interest payable for estimated duties (either payable to the government or owed by the government) could well exceed the savings in publication costs. Furthermore, if the ITA's only concern is publication costs, then the problem could be more directly remedied through an increase in the Federal Register's subscription price. A one-year subscription for the paper edition of the Federal Register is currently $550, which is an insignificant amount compared to some of the other staggering costs associated with AD and CVD proceedings. Therefore, it seems far more prudent to raise the subscription cost as necessary rather than risk the monetary costs of the problems discussed above.

For these reasons, we respectfully object to the ITA's proposal to modify its format for AD and CVD Federal Register notices.

Respectfully submitted,

GRUNFELD, DESIDERIO,

LEBOWITZ & SILVERMAN LLP

Mark E. Pardo