Lack of Authority of the Office of the United States Trade
   Representative to Represent Private Industry in Proceedings
    Before the United States International Trade Commission
T he O ffice o f th e U nited S lates Trade R epresentative lacks authority under the T rade A ct o f 1974
    o r its ow n organic statute to provide legal representation to a private dom estic industry in adm inis­
    trative p roceedings before the United S tates International Trade C om m ission.

                                                                                                   September 24, 1998


                       L e t t e r O p i n io n f o r t h e D e p u t y G e n e r a l C o u n s e l
                      O f f ic e o f t h e U n it e d S t a t e s T r a d e R e p r e s e n t a t iv e


   This letter responds to your request for our opinion regarding the authority of
the Office of the United States Trade Representative ( “ USTR” ) to provide legal
representation to a private domestic industry in an administrative investigation
before the United States International Trade Commission (“ ITC” ).1 Specifically,
you have asked whether USTR attorneys may serve as legal counsel to a domestic
industry in the context o f an investigation to determine whether that industry is
eligible for relief under section 202 of the Trade Act of 1974, as amended, 19
U.S.C. § 2252. We conclude that USTR is not authorized by the pertinent statutes
to provide such representation.
   Pursuant to 19 U.S.C. §§2251—2254 (1994), the President has the authority to
take certain actions, including raising tariffs and imposing quotas, to benefit a
domestic industry where the ITC determines that imports are a substantial cause
of serious injury to the industry. Before such presidential action may be taken,
the ITC must conduct an investigation (known as a “ section 201 investigation” ),
make a determination that imports constitute a substantial cause (or threat) of
serious harm to the industry, and recommend the action that would address the
injury. See 

(b), (e). In addition, with respect to any such determina­
tion by the ITC, an interagency trade organization chaired by the United States
Trade Representative is directed to recommend “ what action the President should
take” to grant relief to the industry. 

   The statutory scheme providing for section 201 investigations and relief from
import competition does not explicitly or implicitly provide for legal representa­
tion of a private domestic industry by USTR. Indeed, the specific roles that are
mandated for USTR in that scheme make it clear that Congress did not con­
template such representation by USTR attorneys.
   Under 19 U.S.C. § 2252(a)(1), a petition for relief may be filed with the ITC
by “ an entity, including a trade association, firm, certified or recognized union,
or group of workers, which is representative of an industry.” The statute directs

  1 Letter for Randolph Moss, A cting Assistant Attorney General, Office of Legal Counsel, from Kenneth P Freiberg,
Deputy General Counsel, Office o f the United States Trade Representative (Sept 10, 1998)


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Lack o f A uthonty o f the Office o f the United States Trade Representative to Represent Private Industry
               in Proceedings Before the United States International Trade Commission

that the ITC “ shall promptly transmit copies of the petition to [USTR] and other
Federal agencies directly concerned.” 

The petitioner may also
submit to the ITC and USTR a plan to facilitate positive adjustment to import
competition. 

Before submitting such a plan, the petitioner and
other entities representative of the industry may consult with USTR, or with any
agency considered appropriate by USTR, to evaluate the adequacy of proposals
in the plan. 

The statute directs USTR, upon receiving a
request for such consultations, to “ confer with the petitioner and provide such
assistance, including publication of appropriate notice in the Federal Register, as
may be practicable in obtaining other participants in the consultation.” 

With respect to perishable agricultural and citrus products, peti­
tioners may request USTR to make a provisional determination of injury due to
imports, which triggers a request to the ITC for monitoring and investigation under
a separate statute, 19 U.S.C. § 1332(g) (1994). See 

  The statutory scheme also mandates a specific role for the interagency trade
organization established under 19 U.S.C. § 1872(a) (1994), the chairperson of
which is the United States Trade Representative. Specifically, the statute provides
that that organization shall, with respect to each determination of import injury
by the ITC, “ make a recommendation to the President as to what action the Presi­
dent should take.” 

Among the factors that the President is
to take into account in determining what action to take are various considerations
involving the affected domestic industry, as well as considerations involving other
industries, firms, and the U.S. economy generally. See 

   In short, the section 201 scheme gives USTR specific duties involving consulta­
tion with representatives of the affected industry and recommendations to the
President as to what corrective action is appropriate. Because those statutory duties
involve considerations beyond the interests of the industry, we believe that they
are inconsistent with a role for USTR that would entail actual legal representation
of the industry seeking relief. Moreover, neither this statute nor any other of which
we are aware provides for dual roles for USTR that would include providing legal
counsel for a private domestic industry in a section 201 proceeding.
  Finally, nothing in USTR’s organic statute, 19 U.S.C. §2171 (1994), provides
for this type of legal representation by USTR. Section 2171 sets forth the powers
and duties of the United States Trade Representative—including developing,
coordinating, and advising the President on international trade policy, conducting
international trade negotiations, and issuing policy guidance to agencies on inter­
national trade— but does not include any power or duty that can be construed
as a general authorization for providing the legal representation contemplated in
your request.


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                   Opinions of the Office o f Legal Counsel in Volume 22


  For these reasons, we conclude that USTR is not authorized to have its attorneys
serve as legal counsel to a private domestic industry in the context of a section
201 investigation.

                                                        RANDOLPH D. MOSS
                                                   Acting Assistant Attorney General
                                                        Office o f Legal Counsel




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