Commerce Issues Final Rule on Discipline for Attorney Misconduct in AD/CVD Proceedings
The Commerce Department issued a final rule amending its regulations to provide for disciplinary actions against attorney and non-attorney representatives if they have been found to have engaged in misconduct in antidumping or countervailing duty proceedings. The rule makes no changes from a June 2012 proposal (see 12062521), despite comments expressing unease with some provisions (see 12081505). Sanctions include placing attorneys found to have engaged in misconduct on a public list of barred and suspended attorneys.
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The final rule will apply to all submissions on or after May 17.
Rule Provides for Suspending & Barring Attorneys; Creates Public Register
Commerce is creating new 19 CFR 351.313, “Attorneys or representatives,” which says “any attorney or representative practicing before the Department, or desiring so to practice, may for good cause be suspended or barred from practicing before the Department, or have imposed upon him lesser sanctions (e.g., public or private reprimand) as the Secretary deems appropriate, but only after he has been accorded an opportunity to present his views on the matter.”
The section provides for the creation of a public register of attorneys and representatives suspended or barred from practice. In comments on the proposed rule, the Customs and International Trade Bar Association and law firms Kelley Drye and Jeffrey M. Winton argued a procedure should be included in the regulation for attorneys to defend themselves from allegations. Commerce declined to include such a provision, but left open the possibility that it may change its mind in the future: “The agency intends to develop specific procedures for handling misconduct allegations as it proceeds and expects to refine such procedures as it gains experience with misconduct claims.”
No Applications or List Requirement, but Commerce May Require Proof of “Acceptability”
The final rule continues to say that no application for admission to practice is required, but it does provide that “any person desiring to appear as attorney or representative before the Department may be required to show to the satisfaction of the Secretary his acceptability in that capacity.” Finally, Commerce’s rule says no list of attorneys or representatives who may practice before the agency in AD/CVD proceedings is maintained.
Commerce Contact -- Michele Lynch (202) 482-2879
(Federal Register 04/17/13)