This is from trade lawyers John Veroneau and Shara Aranoff:
Congress should expand its use of Section 332 beyond general investigations by enabling the ITC to issue Trade Enforcement Advisory Opinions regarding specific allegations of trade violations. The process would work like this: A qualified U.S. company would file a detailed petition with the Senate Finance Committee and the House Ways & Means Committee requesting the ITC to determine whether a foreign country has violated a trade agreement in a specific way. The committees would review the petition and, upon agreement between the chairs and ranking members, would send the petition to the ITC to determine whether there is a “reasonable basis” to conclude that such a violation occurred. The ITC would review the claim, including providing opportunity for comment by the foreign government and other stakeholders and issue a determination within 120 days. All submitted materials and ITC determinations would be public, and the ITC’s determination would be advisory only, so it would not obligate the administration to initiate an enforcement action against a trading partner.
Enabling the ITC to issue Trade Enforcement Advisory Opinions would serve several purposes. First, it would provide Congress with an enhanced but still appropriately limited role in trade enforcement. Lawmakers would still not be able to force the administration to undertake enforcement proceedings, but they would be able to petition the ITC to investigate specific allegations of trade violations. Since the ITC is an independent agency that would conduct its proceeding in a transparent manner, any finding of a “reasonable basis” for asserting a trade violation would pressure USTR to take action, even if it is politically damaging to the administration. Furthermore, the ITC’s reputation for neutrality would enhance USTR’s authority to press our trading partners over alleged trade violations.
Second, it would provide U.S. companies with an opportunity to obtain timely and independent assessments of whether there is a credible claim of a trade violation, so that they can make more informed decisions about how to respond to trade problems.
Finally, even if the ITC finds no reasonable basis to support a trade violation claim, such findings will help identify where trade agreements could be strengthened. For instance, if a foreign country denies U.S. companies access to its market in ways that are discriminatory but not in violation of an existing trade obligation, an ITC finding could help identify a hole in the current agreement to be addressed in a future negotiation.
Here's one potential flaw with this approach. By setting out publicly the basis on which you think a foreign government's measures violate a trade agreement, you give that government extra time to put together a defense in any litigation that results.
