WTO Dispute Settlement: Status of U.S. Compliance in Pending Cases
WTO Dispute Settlement:
Status of U.S. Compliance in Pending Cases
Updated January 7, 2008
Jeanne J. Grimmett
American Law Division
WTO Dispute Settlement:
Status of U.S. Compliance in Pending Cases
Although the United States has complied with adverse rulings in many past
World Trade Organization (WTO) disputes, there are currently eight cases in which
rulings have not yet been implemented or the United States has taken action and the
dispute has not been fully resolved. A WTO Member found to have violated a WTO
obligation will generally be given a reasonable period of time to comply. While the
Member is expected to remove the offending measure, compensation and temporary
retaliation are available if the Member has not complied by the established deadline.
The United States has not yet settled disputes with the European Communities
(EC) regarding a music copyright statute and a trademark provision affecting
property confiscated by Cuba. H.R. 217, H.R. 624, H.R. 2819, S. 1673, and S. 1806
would repeal the trademark statute; H.R. 1306 and S. 749 would amend the law.
Also unresolved is a dispute with Japan over an antidumping (AD) law provision.
While the WTO-inconsistent Continued Dumping and Subsidy Offset Act was
repealed in 2006 (P.L. 109-171), complainants EC, Canada, Japan, and Mexico, who
had retaliated in the case, have expressed concerns over continued payments during
a statutory transition period; the EC and Japan are maintaining sanctions. P.L. 109-
171 also repealed a WTO-inconsistent cotton program at issue in Brazil’s dispute
over U.S. cotton subsidies. Other U.S. programs were also faulted and in December
2007 a compliance panel requested by Brazil ruled against the United States. In May
2007, WTO Members adopted a compliance panel report finding that the United
States had not complied in Antigua’s challenge of U.S. cross-border gambling
restrictions. As a result of the case, the United States has modified its schedule under
the General Agreement on Trade in Services to indicate that it had not made
commitments on gambling services. Antigua, Australia, Canada, Costa Rica, EC,
India, Japan, and Macao requested consultations with the United States regarding
compensation for the U.S. action; to date the United States has settled with Canada,
the EC, Japan, and reportedly Australia. A WTO arbitrator in the underlying WTO
case ruled in December 2007 that Antigua may request authorization to suspend a
maximum $21 million annually in obligations owed the United States under the
WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Two cases involve administrative action under existing authorities. At issue is
the practice of zeroing, under which non-dumped sales are disregarded in the
calculation of dumping margins, the practice having been challenged by the EC and
Japan. In response to the EC zeroing decision, the Commerce Department
discontinued use of zeroing in original AD investigations when applying its most
commonly used price comparison methodology and recalculated dumping margins
in specific AD investigations cited by the EC. A compliance panel has been
established at the request of the EC. The United States was expected to comply by
December 24, 2007, in Japan’s zeroing challenge, which concerns uses of zeroing
beyond those involved in the EC case; the United States took no specific action by
this date, however. Pending antidumping disputes with Argentina, Mexico, and
Ecuador appear to have been settled. This report will be updated.
WTO Dispute Settlement Procedures..................................1
Uruguay Round Agreements Act (URAA): Statutory Requirements
for Implementing WTO Decisions.................................4
Section 102 of the URAA: Domestic Legal Effect of WTO Decisions.....4
Preclusion of Private Remedies...............................7
Domestic Implementation of WTO Decisions Involving
Section 123 of the URAA: WTO Cases Involving
Section 129 of the URAA: WTO Cases Involving
Trade Remedy Proceedings..............................9
Implementation of WTO Rulings in Pending Cases......................15
Pending Cases Involving Legislative Action........................17
Section 110(5)(B) of the Copyright Act (Music Copyrights)
Section 211 of the Omnibus Appropriations Act of 1998
(Trademark Exclusion Involving Property
Confiscated by Cuba) (DS176)..........................19
Antidumping Measures on Hot-Rolled Steel Products
from Japan (DS184)...................................20
Continued Dumping and Subsidy Offset Act
Subsidies on Upland Cotton (DS267).........................30
Measures Affecting Cross-Border Supply of Gambling
and Betting Services (DS285)...........................37
Pending Cases Involving Administrative Action.....................46
Laws, Regulations and Methodology for Calculating
Dumping Margins (“Zeroing”) (DS294)...................46
Measures Relating to Zeroing and Sunset Reviews
WTO Dispute Settlement:
Status of U.S. Compliance
in Pending Cases
This report provides a summary of the status of U.S. compliance efforts in
pending World Trade Organization (WTO) disputes that have resulted in adverse
rulings against the United States.1 Although the United States has complied with
adverse rulings in many past WTO disputes, 11 cases are currently pending in which
the United States has not fully implemented adopted WTO panel and Appellate Body
reports or the United States has taken action but the dispute has not been definitively
resolved. In some cases, original or subsequently extended compliance deadlines
have expired; in others, the original deadline will lapse in 2007 or has not yet been
determined. Compliance in these cases may implicate either legislative or
administrative action by the United States.
The report begins with an overview of WTO dispute settlement procedures,
focusing on the compliance phase of the process, followed by a discussion of U.S.
laws relating to WTO dispute proceedings. The report then lists pending WTO
disputes in the compliance phase, with a brief discussion of major issues and the U.S.
compliance history in each.
WTO Dispute Settlement Procedures
WTO disputes are conducted under the terms of the WTO Understanding on the
Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement
Understanding or DSU).2 The DSU, which entered into force with the establishment
1 The case histories in this report are primarily based on WTO documents, available at
[http://www.wto.org], or the WTO dispute settlement website indicated below. This report
does not address cases in which the United States has implemented adverse reports to the
satisfaction of the complaining party and the dispute has been fully settled, nor does it
discuss the compliance history of other WTO Members. For further information on WTO
disputes, see Office of the U.S. Trade Representative, “WTO Dispute Settlement,” at
[http://www.ustr.gov/ T r ade_Agreements/Monitoring_Enforcement/Section_Index.html ]
(includes briefs filed by the United States in individual WTO dispute settlement
proceedings); the annual Trade Policy Agenda and Annual Report of the President of the
United States on the Trade Agreements Program, at [http://www.ustr.gov] (search under
“Reports”); and WTO, Update of WTO Dispute Settlement Cases (updated regularly) at
2 For further information on WTO dispute settlement procedures, see “Dispute settlement,”
at [http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm], and CRS Report RS20088,
of the World Trade Organization on January 1, 1995, carries forward and expands
upon dispute settlement practices developed under the General Agreement on Tariffs
and Trade (GATT). The DSU is administered by the WTO Dispute Settlement Body
(DSB), which is composed of all WTO Members. Where individual WTO
agreements contain special or additional dispute settlement rules that differ from
those in the DSU, the former will prevail. A list of these agreements and rules (e.g.
special timelines for subsidy disputes in the Agreement on Subsidies and
Countervailing Measures) is contained in Appendix 2 of the DSU.
WTO dispute settlement may be characterized as a three-stage process: (1)
consultations; (2) panel and, if requested, Appellate Body (AB) proceedings; and (3)
implementation. Within this framework, the DSB establishes panels; adopts panel
and appellate reports; authorizes countermeasures when requested; and monitors the
implementation of dispute settlement results. The establishment of panels, adoption
of panel and AB reports, and authorization of countermeasures are decisions that are
subject to a “reverse consensus” rule under which the DSB agrees to the proposed
action unless all DSB Members object. In effect, these decisions are virtually
After the DSB adopts an adverse panel and any Appellate Body report, the
defending Member must inform the DSB of its compliance plans. If it is
impracticable for the Member to comply immediately, the Member will be allowed
a “reasonable period of time” to do so. Where a timeframe proposed by the Member
is not approved by the DSB, the disputing parties may negotiate a compliance period;
if this fails, the period will be arbitrated. A WTO Member found to have violated
WTO obligations is expected to comply by withdrawing the offending measure, with
compensation and temporary retaliation available to the prevailing party as
alternative remedies. Full compliance is the preferred outcome, however, so as to
ensure that negotiated rights and obligations are preserved and maintained.
Article 22 of the DSU provides that if the prevailing Member in a dispute
believes that the other Member has not implemented the WTO rulings and
recommendations by the end of the compliance period, it may request the other
Member to negotiate a compensation agreement or may ask the DSB for
authorization to suspend WTO concessions (usually to impose higher tariffs on items
from the other country). The Member may choose the latter option without first
seeking compensation. Generally, a Member should seek to suspend concessions in
the same sector in which the WTO violation was found, but if the Member finds that
this is not “practicable or effective,” it may seek to suspend concessions in other
sectors in the same agreement. If, however, the Member finds that this alternative
would also be impracticable or ineffective and that “the circumstances are serious
enough,” it may seek to suspend obligations under another WTO agreement or, in
other words, “cross-retaliate.”
Under the DSU, the DSB is to authorize the retaliation request, subject to the
reverse consensus rule, within 30 days after the compliance period expires. If the
Dispute Settlement in the World Trade Organization: An Overview, by Jeanne Grimmett.
defending Member objects to the request, however, the proposed retaliation will be
arbitrated and the 30-day deadline for approving the retaliation request effectively
extended. The objection may relate to the level of nullification or impairment of
benefits involved or whether DSU rules as to the choice of retaliatory measures have
been followed. Under the DSU, the arbitration is to be carried out by the original
panel, if members are available, or by an arbitrator appointed by the WTO Director
General. The arbitration is ordinarily to be completed within 60 days after the
compliance period expires. The DSB then meets to authorize the retaliation request
to the extent the proposed retaliation is consistent with the arbitrator’s decision.
In addition, Article 21.5 of the DSU provides for further dispute settlement
proceedings in the event the disputing parties disagree as to whether the defending
Member has implemented the WTO rulings and recommendations in a particular
case. Once a compliance panel is convened, it has 90 days to issue a report; the
report may then be appealed. Since the DSU fails to incorporate Article 21.5
proceedings into the 30-day period for approving countermeasures and the timeframe
for any subsequent arbitration, a procedural problem, referred to as “sequencing,” has
resulted. Members have often filled the gap, however, by entering into ad hoc
bilateral agreements. Such agreements may provide, for example, that the prevailing
party will request authorization to impose countermeasures, the defending party will
request arbitration of the proposal, and the arbitration will be suspended until the
compliance panel procedure is completed.3
The DSU provides that any suspension of concessions or other obligations is
temporary and may only be applied by the prevailing Member until the WTO-
inconsistent measure is removed, the defending Member provides a solution to any
trade injury at issue, or a mutually satisfactory resolution of the dispute is reached.4
Moreover, if a prevailing Member is ultimately authorized to impose
countermeasures, the Member is not required to implement them and, as shown in
3 See Sylvia A. Rhodes, The Article 21.5/22 Problem: Clarification Through Bilateral
Agreements?, 3 J. Int’l Econ. L. 553 (2000).
4 The DSU does not expressly set out a procedure for obtaining the removal of
countermeasures, though Members may obtain a ruling on whether continued imposition is
warranted either through a compliance panel or a new dispute settlement proceeding. The
issue of removing such measures has arisen with respect to the continued levying of
increased tariffs on EC products by the United States and Canada, the increases having been
originally imposed in response to the EC’s failure to comply with a WTO decision faulting
European Union (EU) import restrictions on beef produced with growth hormones
(DS26/DS48). The EC filed a complaint in the WTO in November 2004 in which it argued
that the higher tariffs should be removed on the ground that the EU had taken adequate
compliance measures in the beef hormone dispute by adopting a new Directive on the matter
in 2003. The panel established at the EC’s request in 2005 reportedly issued a preliminary
report with mixed results at the end of July 2007. Interim WTO Ruling Faults EU Hormone
Ban, U.S., Canada Sanctions, Inside U.S. Trade, August 17, 2007, at 3; WTO Ruling Said
to Aid U.S., Canada in Beef-Hormone Disputes with Europe, 24 Int’l Trade Rep. (BNA)
1112 (August 2, 2007). For a procedural history of the dispute, see Request for the
Establishment of a Panel by the European Communities, United States — Continued
Suspension of Obligations in the EC-Hormones Dispute, WT/DS320/6 (January 14, 2005).
the cases below, Members may manage disputes in a variety of ways at the
compliance phase, short of imposing sanctions.
Uruguay Round Agreements Act (URAA): Statutory
Requirements for Implementing WTO Decisions
The legal effect of Uruguay Round agreements and WTO dispute settlement
results in the United States is comprehensively dealt with in the Uruguay Round
Agreements Act (URAA), P.L. 103-465, which addresses the relationship of WTO
agreements to federal and state law and prohibits private remedies based on alleged
violations of WTO agreements.5 The statute also requires the United States Trade
Representative (USTR) to keep Congress informed of disputes challenging U.S. laws
once a dispute panel is established, any U.S. appeal is filed, and a panel or Appellate
Body report is circulated to WTO Members.6 In addition, the URAA places
requirements on regulatory action taken to implement WTO decisions and contains
provisions specific to the implementation of panel and appellate reports that fault
U.S. actions in trade remedy proceedings.
Section 102 of the URAA: Domestic Legal Effect
of WTO Decisions
Section 102 of the URAA and its legislative history establish that domestic law
supersedes any inconsistent provisions of the Uruguay Round agreements and that
congressional or administrative action, as the case may be, is required to implement
adverse decisions in WTO dispute settlement proceedings.
Federal Law. Section 102(a)(1), 19 U.S.C. § 3512(a)(1), provides that “[n]o
provision of any of the Uruguay Round Agreements, nor the application of any such
provision to any person or circumstance, that is inconsistent with any law of the
United States shall have effect.” The URAA further provides, at § 102(a)(2), 19
U.S.C. § 3512(a)(2), that nothing in the statute “shall be construed ... to amend or
modify any law of the United States ... or ... to limit any authority conferred under
any law of the United States ... unless specifically provided for in this act.”
As explained in Statement of Administrative Action (SAA) accompanying the
Uruguay Round agreements when they were submitted to Congress in 1994, “[i]f
there is a conflict between U.S. law and any of the Uruguay Round agreements,
section 102(a) of the implementing bill makes clear that U.S. law will take
5 For background discussions regarding the effect of treaties and international agreements
in domestic law, see CRS Report RL32528, International Law and Agreements: Their Effect
Upon U.S. Law, by Michael John Garcia; Ronald A. Brand, Direct Effect of International
Economic Law in the United States and the European Union, 17 Nw. J. Int’l L. & Bus. 556
(1996-97); and John H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy
Analysis, 86 Am. J. Int’l L. 310 (1992).
6 Uruguay Round Agreements Act (URAA), § 123(d)-(f), 19 U.S.C. § 3533(d)-(f).
precedence.”7 Moreover, section 102 is further intended to clarify that all changes
to U.S. law “known to be necessary or appropriate” to implement the WTO
agreements are incorporated in the URAA and that any unforeseen conflicts between
U.S. law and the WTO agreements “can be enacted in subsequent legislation”8
Congress has traditionally treated potential conflicts with prior GATT agreements
and free trade agreements in this way, treatment that it also deems to be “consistent
with the Congressional view that necessary changes in Federal statutes should be
specifically enacted, not preempted by international agreements.”9
This approach carries over into the implementation of WTO dispute settlement
results, a situation explained as follows in URAA legislative history:
Since the Uruguay Round agreements as approved by the Congress, or any
subsequent amendments to those agreements, are non-self-executing, any dispute
settlement findings that a U.S. statute is inconsistent with an agreement also
cannot be implemented except by legislation approved by the Congress unless10
consistent implementation is permissible under the terms of the statute.
State Law. Where a state law is at issue in a WTO dispute, the URAA
provides for federal-state cooperation in the proceeding and limits any domestic legal11
challenges to the law to the United States. The act’s general preclusion of private
7 Uruguay Round Agreements, Statement of Administrative Action, H.Doc. 103-316(I) at
659 (1994)[hereinafter cited as Uruguay Round SAA]. The SAA, which was expressly
approved in the URAA, is “regarded as an authoritative expression by the United States
concerning the interpretation and application of the Uruguay Round Agreements and ... [the
URAA] in any judicial proceeding in which a question arises concerning such interpretation
or application.” URAA, § 102(d), 19 U.S.C. § 3512(d).
8 H.Rept. 103-826(I), at 25; see also S.Rept. 103-412, at 13.
9 H.Rept. 103-826(I), at 25; see also S.Rept. 103-412, at 13.
10 H.Rept. 103-826(I), at 25; see also S.Rept. 103-412, at 13, and the Uruguay Round SAA,
supra note 7, at 1032-33. The latter states as follows:
Reports issued by panels or the Appellate Body under the DSU have no binding
effect under the law of the United States and do not represent an expression of
U.S. foreign or trade policy. They are no different in this respect than those
issued by GATT panels since 1947. If a report recommends that the United
States change federal law to bring it into conformity with a Uruguay Round
agreement, it is for the Congress to decide whether any such change will be
11 In the current challenge by Antigua and Barbuda to both federal and state laws affecting
the cross-border supply of gambling and betting services, the United States prevailed on the
issue of whether the state measures infringed market access obligations under the General
Agreement on Trade in Services (GATS). The WTO Appellate Body found that the panel
had erred in considering whether the eight laws at issue violated the Agreement because the
complainant had not presented sufficient evidence and legal arguments to establish a prima
facie case. United States — Measures Affecting the Cross-Border Supply of Gambling and
Betting Services, WT/DS285. See infra text accompanying notes 152-89 for further
discussion of this case.
remedies (discussed below) further centralizes the response to adverse WTO
decisions involving state law in the federal government.12
Section 102(b) provides as follows:
No State law, or the application of a such a State law, may be declared invalid
as to any person or circumstance on the ground that the provision or its
application is inconsistent with any of the Uruguay Round Agreements, except
in an action brought by the United States for the purposes of declaring such law13
or application invalid.
According to legislative history, the provision “makes clear that the Uruguay Round
agreements do not automatically preempt State laws that do not conform to their
provisions, even if a WTO dispute settlement panel or the Appellate Body were to
determine that a particular State measure was inconsistent with one or more of the
Uruguay Round agreements.”14 The statute also contains certain restrictions in any
such legal action brought by the United States, including that the report of the WTO
dispute settlement panel or the Appellate Body may not be considered binding or
otherwise accorded deference.15 Any such suit by the United States is expected to be
A challenge by Brazil to Florida’s equalizing excise tax on processed orange and
grapefruit products (WT/DS250) was resolved in 2004 without panelists having been
appointed after Florida amended its statute. Notification of Mutually Agreed Solution,
United States — Equalizing Excise Tax Imposed by Florida on Processed Orange and
Grapefruit Products, WT/DS250/3 (June 2, 2004); U.S. Brazil Settle Long-standing Dispute
Over Florida Tax to Promote Citrus Products, 21 Int’l Trade Rep. (BNA) 945 (2004).
12 For further discussion, see Uruguay Round SAA, supra note 7, at 676.
13 URAA, § 102(b)(2)(A), 19 U.S.C. § 3512(b)(2)(A). The term “State law” is defined to
include “any law of a political subdivision of a State, as well as any State law that regulates
or taxes the business of insurance.” URAA, § 102(b)(3), 19 U.S.C. § 3512(b)(3). The term
is intended to encompass “any provision of a state constitution, regulation, practice or other
state measure.” Uruguay Round SAA, supra note 7, at 674.
14 S.Rept. 103-412, at 15; see also H.Rept. 103-826(I), at 25, and Uruguay Round SAA,
supra note 7, at 670.
15 URAA, § 102(b)(2)(B), 19 U.S.C. § 3512(b)(2)(B). In addition, the United States will
have the burden of proving that the State law or its application is inconsistent with the WTO
agreement in question; any State whose interests may be impaired or impeded by the suit
will have the unconditional right to intervene as a party, and the United States will be
entitled to amend its complaint to include a claim or cross-claim concerning the law of a
State that does intervene; and any State law that is declared invalid will not be considered
to have been invalid in its application during any period before the court’s judgment
becomes final and all timely appeals are exhausted. The statute also requires the United
States Trade Representative to notify Congress before bringing any such suit. URAA, §
16 Uruguay Round SAA, supra note 7, at 674; H.Rept. 103-826(I), at 26; S.Rept. 103-412,
at 15. The SAA states, inter alia, that the Attorney General “will be particularly careful in
considering recourse to this authority where the state measure involved is aimed at the
Preclusion of Private Remedies. Private remedies are prohibited under
§ 102(c)(1) of the URAA, 19 U.S.C. § 3512(c)(1), which provides that “[n]o person
other than the United States ... shall have a cause of action or defense under any of
the Uruguay Round Agreements or by virtue of congressional approval of such an
agreements” or “may challenge, in any action brought under any provision of law,
any action or inaction by any department, agency, or other instrumentality of the
United States, any State, or any political subdivision of a State, on the ground that
such action or inaction is inconsistent with such agreement.”
Congress has additionally stated in § 102(c)(2) of the URAA, 19 U.S.C. §
to occupy the field with respect to any cause of action or defense under or in
connection with any of the Uruguay Round Agreements, including by precluding
any person other than the United States from bringing any action against any
State or political subdivision thereof or raising any defense to the application of
State law under or in connection with any of the Uruguay Round Agreements —
(A) on the basis of a judgment obtained by the United States in an action
brought under any such agreement; or
(B) on any other basis.
The House Ways and Means Committee report on the URAA discusses the
rationale and implications of § 102(c) as follows:
For example, a private party cannot bring an action to require, preclude, or
modify government exercise of discretionary or general “public interest”
authorities under other provisions of law. These prohibitions are based on the
premise that it is the responsibility of the Federal Government, and not private
citizens, to ensure that Federal or State laws are consistent with U.S. obligations17
under international agreements such as the Uruguay Round agreements.
The SAA notes, however, that § 102(c) “does not preclude any agency of
government from considering, or entertaining argument on, whether its action or
proposed action is consistent with the Uruguay Round agreements, although any
change in agency action would have to be authorized by domestic law.”18 In addition,
federal courts have not viewed the provision as precluding them from considering
protection of human, animal, or plant health or of the environment or the state measure is
a state tax of a type that has been held to be consistent with the requirements of the U.S.
Constitution. In such a case, the Attorney General would entertain use of this statutory
authority only if consultations between the President and the Governor of the State
concerned failed to yield an appropriate alternative.” Uruguay Round SAA, supra note 7,
17 H.Rept. 103-826(I), at 26.
18 Uruguay Round SAA, supra note 7, at 676.
U.S. WTO obligations in challenges to agency actions implicating WTO
agreem ent s . 19
Domestic Implementation of WTO Decisions Involving
In addition to the URAA provisions that limit the direct effect of WTO rules and
decisions in U.S. law, the URAA also places requirements on agencies in their
implementation of WTO panel and Appellate Body reports. These provisions apply
to regulatory action in general and to new agency determinations in response to WTO
decisions involving trade remedy proceedings.
Section 123 of the URAA: WTO Cases Involving Regulatory Action.
Section 123(g) of the URAA, 19 U.S.C. § 3533(g), provides that in any WTO case
in which a departmental or agency regulation or practice has been found to be
inconsistent with a WTO agreement, the regulation or practice may not be rescinded
or modified in implementation of the decision “unless and until” the USTR and
19 E.g., SNR Roulements v. United States, 341 F.Supp.2d 1334, 1341 (Ct. Int’l Trade 2004);
Timken v. United States, 240 F.Supp. 2d 1228, 1238 (Ct. Int’l Trade 2002); Gov’t of
Uzbekistan v United States, 2001 WL 1012780, at *3 (Ct. Int’l Trade August 30, 2001). As
stated in Timken, which reviewed a challenge to a final Department of Commerce dumping
determination: “[Foreign producer] Koyo ... is not bringing this action under any WTO
agreement; rather, Koyo is arguing that the Department’s application and interpretation of
U.S. law violates its international obligations pursuant to a WTO agreement. Koyo is
certainly ‘free to argue that Congress would never have intended to violate an agreement it
generally intended to implement, without expressly saying so.’” 240 F.Supp. at 1238,
quoting Gov’t of Uzbekistan, supra, at *3.
For discussions of the relationship of WTO decisions and U.S. administrative and
judicial actions, see Patrick C. Reed, Relationship of WTO Obligations to U.S. International
Trade Law: Internationalist Vision Meets Domestic Reality, 38 Geo. J. Int’l L. 209 (2006);
John J. Barceló, The Paradox of Excluding WTO Direct and Indirect Effect in U.S. Law, 21
Tul. Eur. & Civ. L. F. 147 (2006); James Thuo Gathii, Foreign Precedents in the Federal
Judiciary: The Case of the World Trade Organization’s DSB Decisions, 34 Ga. J. Int’l
Comp. L. 1 (2005); Dan Nichols, Use of WTO Panel Decisions in Judicial Review of
Administrative Action under U.S. Antidumping Law, 1 Int’l L. & Mgmt. Rev. 237 (2005);
Gregory Husisian, When a New Sheriff Comes to Town: The Impending Showdown Between
the U.S. Trade Courts and the World Trade Organization, 17 St. John’s J. Legal Comment.
457 (2003); Roger P. Alford, Federal Courts, International Tribunals, and the Continuum
of Deference, 43 Va. J. Int’l L. 675, 731-46 (2003); Julie Dunne, Delverde and the WTO’s
British Steel Decision Foreshadow More Conflict Where the WTO Subsidies Agreement,
Privatization, and United States Countervailing Duty Law Intersect, 17 Am. U. Int’l L. 79
(2001); Michael F. Williams, Charming Betsy, Chevron, and the World Trade Organization:
Thoughts on the Interpretive Effect of International Trade Law, 32 Law & Pol’y Int’l Bus.
677 (2001); Jane A. Restani and Ira Bloom, Interpreting International Trade Statutes: Is the
Charming Betsy Sinking?, 24 Fordham Int’l L. J. 1533 (2001), Sixteenth Annual Judicial
Conference of the United States Court of Appeals for the Federal Circuit, 193 F.R.D. 263,
403-416 (1999); Thirteenth Annual Judicial Conference of the United States Court of
Appeals for the Federal Circuit, 166 F.R.D. 515, 609-638 (1995). Note also Brief for the
Federal Respondents in Opposition, Corus Staal BV and Corus Steel USA, Inc. v. Dep’t of
Commerce, No. 05-364 (U.S. petition for cert. filed September 15, 2005), cert. denied, 546
U.S. 1089 (2006).
relevant agencies meet congressional consultation and private sector advice
requirements, the proposal has been published in the Federal Register with a request
for public comment, and the final rule or other modification has been published in
the Federal Register.20 Section 123(g) does not apply to any regulation or practice
of the U.S. International Trade Commission.
Regarding congressional consultation, the USTR is required to consult with “the
appropriate congressional committees” regarding the proposed contents of the final
rule or other modification. Along with the general condition stated above, § 123(g)
provides that the final rule or other modification may not take effect until 60 days
after the USTR has begun committee consultations, unless the President determines
that an earlier effective date is in the national interest. The House Ways and Means
Committee and the Senate Finance Committee may vote to indicate the disagreement
of the committee with the proposed action during the 60-day period. Any such vote
is not binding on the agency or department involved.21
Section 129 of the URAA: WTO Cases Involving Trade Remedy
Proceedings. Section 129 of the URAA, 19 U.S.C. § 3538, sets forth authorities
and procedures under which the U.S. International Trade Commission (ITC) and the
Department of Commerce (DOC) may issue new determinations in implementation
of adverse WTO decisions involving U.S. safeguards, antidumping, and
countervailing duty proceedings. Section 129 does not authorize the ITC and DOC
to issue new determinations on their own motion, but instead grants the United States
Trade Representative (USTR) the discretion to direct the agency to do so in a given
In antidumping and countervailing duty investigations, which are carried out
under authorities in Title VII of the Tariff Act of 1930, the Department of Commerce
(DOC) determines the existence and level of dumping or subsidization, as the case
may be, and the ITC determines whether the dumped or subsidized imports cause
20 The provision first came into play in 1996 when the United States took regulatory action
to comply with the adverse WTO decision in United States — Standards for Reformulated
and Conventional Gasoline, WT/DS2, WT/DS4. See World Trade Organization (WTO)
Decision on Gasoline Rule (Reformulated and Conventional Gasoline), 61 Fed. Reg. 33703
(1996). The U.S. Court of Appeals for the District of Columbia Circuit upheld the final
issued by EPA to resolve the dispute, finding, inter alia, that the agency was not statutorily
precluded from considering factors other than air quality in issuing rules under the
antidumping provision of the Clean Air Act and could thus consider the effect of the
proposed rule on U.S. treaty obligations. George E. Warren Corp. v. U.S. Environmental
Protection Agency, 159 F.3d 616 (D.C.Cir. 1998).
21 Two 110th Congress bills would place restrictions on the use of § 123 authorities. S. 364
(Rockefeller) would amend § 123 to provide that any regulatory modification or final rule
proposed under the section could only enter into force if approved by joint resolution
enacted into public law. The bill would also rescind certain § 123 regulatory modifications
that have already taken effect. S. 1919 (Baucus) would establish a WTO Dispute Settlement
Review Commission to evaluate WTO decisions under statutory criteria and prohibit a
domestic regulatory modification under § 123 from taking effect unless and until Congress
receives the Commission’s report on the WTO decision involved. To date, no action has
been taken on either of these bills.
material injury, or a threat of material injury, to domestic industries. Under U.S.
safeguards law, set forth in Title II of the Trade Act of 1974, the ITC conducts
investigations to determine whether or not increased imports, whether or not they are
fairly traded, are a substantial cause of serious injury to a domestic industry. If the
ITC makes an affirmative injury determination, it recommends remedial measures
to the President, who ultimately determines whether or not to take action.
Implemented Section 129 determinations in antidumping and countervailing
duty cases are reviewable in the U.S. Court of International Trade and by binational
panels established under Chapter 19 of the North American Free Trade Agreement
(NAFTA).22 Chapter 19 panels are available to review final agency determinations
in antidumping and countervailing duty investigations involving NAFTA countries
in lieu of judicial review in the country in which the determination is made.
U.S. International Trade Commission. If an interim WTO panel report
or a WTO Appellate Body report concludes that an action by the ITC in connection
with a trade remedy proceeding is inconsistent with U.S. obligations under the WTO
Antidumping Agreement, the Agreement on Subsidies and Countervailing Measures,
or the Agreement on Safeguards, the USTR may request the ITC to issue an advisory
report on whether U.S. antidumping, countervailing duty, or safeguards law, as
appropriate, allows the ITC to take steps with respect to the proceeding at issue that
would render its action “not inconsistent with” the panel or AB findings.23
The ITC is to report to the USTR within 30 calendar days of the USTR’s request
where an interim report is involved, and within 21 calendar days in case of an AB
report.24 These deadlines are aimed at ensuring that the USTR will receive the
requested advice in time to decide whether to appeal a panel’s interim report or to
22 URAA, § 129(e), adding Tariff Act of 1930, § 516A(a)(2)(B)(vii), 19 U.S.C. §
The Uruguay Round SAA states the following regarding the legal implications of
possible parallel judicial proceedings regarding the same agency determinations:
Since implemented determinations under section 129 may be appealed, it
is possible that Commerce or the ITC maybe in the position of simultaneously
defending determinations in which the agency reached different conclusions. In
such situations, the Administration expects that courts and binational panels will
be sensitive to the fact that under the applicable standard of review, as set forth
in statute and case law, multiple permissible interpretations of the law and the
facts may be legally permissible in any particular case, and the issuance of a
different determination under section 129 does not signify that the initial
determination was unlawful.
Uruguay Round SAA, supra note 7, at 1027.
23 URAA, § 129(a)(1), 19 U.S.C. § 3538(a)(1).
24 URAA, § 129(a)(2), 19 U.S.C. § 3538(a)(2).
implement an adverse report, and to estimate how long of a period for implementing
the WTO decision may be needed.25
If a majority of the Commissioners have found that action may be taken under
existing law, the USTR must consult with the House Ways and Means Committee
and the Senate Finance Committee and may request the ITC in writing to issue a new
determination in the underlying proceeding that would render the ITC action “not
inconsistent with” the WTO findings.26 The new determination must be issued
within 120 days of the USTR’s request.27 The time limitation is intended to allow
the USTR to propose a reasonable period of time for implementation to the WTO
once a panel and any appellate report is adopted.28
Further Action in Antidumping and Countervailing Duty Proceedings. If the
ITC issues a new negative injury or threat of injury determination and the
antidumping or countervailing duty order must thus be revoked in whole or in part
because it is no longer supported by an affirmative ITC determination, the USTR is
authorized to direct DOC to revoke the order to the extent needed.29 The USTR must
consult with the House Ways and Means and Senate Finance Committees before the
ITC’s new determination is implemented.30
Section 129(c)(1) provides that determinations that are implemented under this
authority apply prospectively, that is, to unliquidated entries of the subject
merchandise that are entered, or withdrawn from warehouse for consumption, on or
after the date on which the USTR directs the Commerce Department to revoke the
order in question.31 Notices of the implementation of Section 129 determinations
must be published in the Federal Register.32
The Uruguay Round SAA explains the operation of § 129(c)(1), which sets an
implementation date both for ITC and DOC determinations, as follows:
25 Uruguay Round SAA, supra note 7, at 1023.
26 URAA, § 129(a)(3),(4), 19 U.S.C. § 3538(a)(3),(4).
27 ITC authority to issue a new determination is granted “notwithstanding any provision of
Tariff Act of 1930 ... or title II of the Trade Act of 1974.” The Uruguay Round SAA
explains that “[m]any of the ITC’s proceedings are time-limited by statute, and the ITC
cannot revisit its actions in those proceedings in the absence of the authority provided by
subsection (a)(4) or a remand.” Uruguay Round SAA, supra note 7, at 1024.
29 URAA, § 129(a)(6), 19 U.S.C. § 3538(a)(6).
30 URAA, § 129(a)(3),(5), 19 U.S.C. § 3538(a)(3),(5).
31 URAA, § 129(c)(1), 19 U.S.C. § 3538(c)(1). Unliquidated entries are those for which the
Customs Service has not ascertained a final rate and amount of duty. U.S. Customs and
Border Protection, Importing into the United States; A Guide for Commercial Importers
32 URAA, § 129(c)(2), 19 U.S.C. § 3538(c)(2).
Consistent with the principle that GATT panel recommendations apply only
prospectively, subsection 129(c)(1) provides that where determinations by the
ITC or Commerce are implemented under subsections (a) or (b), such
determinations have prospective effect only. That is, they apply to unliquidated
entries of merchandise entered, or withdrawn from warehouse, for consumption
on or after the date on which the Trade Representative directs implementation.
Thus, relief available under subsection 129(c)(1) is distinguishable from relief
available in an action brought before a court or a NAFTA binational panel,
where, depending on the circumstances of the case, retroactive relief may be
available. Under 129(c)(1), if implementation of a WTO report should result in
the revocation of an antidumping or countervailing duty order, entries made prior
to the date of Trade Representative’s direction would remain subject to potential33
Further Action in Safeguards Proceedings. Where a safeguard proceeding is at
issue, the President is authorized, after receiving a new ITC determination, to reduce,
modify, or terminate the safeguard notwithstanding other statutory requirements
regarding changes in existing safeguard measures.34 The President is required to
consult with the House Ways and Means Committee and Senate Finance Committee
before acting under this authority.35 The USTR must publish a notice of the
implementation of any ITC determination in the Federal Register.36
Department of Commerce. A procedure for USTR and agency interaction,
including congressional consultation requirements, is also set forth with respect to
DOC determinations in antidumping and countervailing duty proceedings, though
without the requirement for an initial agency advisory report regarding the extent of
its statutory discretion. Instead, promptly after the issuance of a WTO panel or
appellate report finding that a DOC action in an antidumping or countervailing duty
proceeds is inconsistent with U.S. obligations under the WTO Antidumping
Agreement or the SCM Agreement, the USTR is to consult with DOC and the House
Ways and Means and Senate Finance Committees, and may request DOC in writing
to issue a determination in connection with the underlying proceeding that would
33 Uruguay Round SAA, supra note 7, at 1026. See also H.Rept. 103-826(I), at 39; S.Rept.
34 URAA, § 129(a)(7), 19 U.S.C. § 2254(b)(3).
36 URAA, § 129(c)(2)(B), 19 U.S.C. § 3538(c)(2)(B).
render its action “not inconsistent with” the panel or appellate findings.37 DOC must
issue a determination within 180 days of the request.38
After consulting with DOC and the above-named congressional committees,
USTR may direct DOC to implement its determination in whole or in part.39 As is
the case with implemented ITC determinations, DOC determinations under § 129
also apply prospectively, that is, to unliquidated entries of the subject merchandise
that are entered, or withdrawn from warehouse for consumption, on or after the date
on which the USTR directs the Commerce Department to implement the
Legal Challenges to § 129 of the URAA. Canada unsuccessfully
challenged § 129(c)(1) in a WTO dispute settlement proceeding, where it argued that
the provision violated the WTO Dispute Settlement Understanding and various WTO
antidumping and countervailing duty obligations in effectively prohibiting the United
States from refunding estimated duties deposited with Customs and Border
Protection — that is, duties on entries that were unliquidated at the time the Section
129 determination was implemented or the antidumping or countervailing duty order
revoked — in the event a determination in the underlying investigation had been
found to be inconsistent with WTO obligations.
In response, the United States maintained that § 129(c)(1) addresses only the
treatment of imports entered after the implementation date and does not govern the
treatment of prior entries for which final duties have not yet been calculated, referred
to in the dispute as “prior unliquidated entries.” The United States further argued
that, as such, the statute does not mandate any particular treatment of prior
unliquidated entries and that the United States has other legal options for dealing
with these entries, including establishing a new dumping or subsidy margin by using41
a WTO-consistent methodology in an administrative review of the entries or, in the
37 URAA, § 129(b)(1),(2), 19 U.S.C. § 3538(b)(1),(2). Senate legislative history indicates
that USTR is expected to “consult closely with Commerce in order to ensure that it benefits
from Commerce’s expertise with respect to both the panel or Appellate Body reports and
the appropriate implementing action (if any), including the implications of any such action
on the administration of the antidumping or countervailing duty law.” S.Rept. 103-412, at
27. The Senate Finance Committee has further stated that it “expects to be consulted closely
by the Administration throughout this process, and to be informed and provided an
explanation should USTR decide to implement an adverse panel or Appellate Body decision
notwithstanding a contrary recommendation by Commerce.” Id. If USTR directs
Commerce to implement the new determination, “Commerce may do so even if litigation
is pending with respect to the initial agency determination.” H.Rept. 103-826(I), at 39.
38 URAA, § 129(b)(2), 19 U.S.C. § 3538(b)(2).
39 URAA, § 129(b)(3),(4), 19 U.S.C. § 3538(b)(3),(4).
40 URAA, § 129(c)(1), 19 U.S.C. § 3538(c)(1).
41 An administrative review is a mechanism used by the Department of Commerce to
administer the U.S. “retrospective” system of duty assessment. Under a retrospective
system, final liability for antidumping and countervailing duties is determined after goods
are imported. Ordinarily, the amount of duties owed by an importer is determined in an
event the duty order or orders were revoked as a result of the WTO proceeding,
revising the duty rate in response to a domestic court decision involving the earlier
In a report issued in July 2002, the WTO panel concluded that Canada failed to
establish that the statute either required WTO-inconsistent action on the part of the
United States or precluded the United States from taking action in accordance with
its WTO obligations.43 Canada did not appeal, and the panel report was adopted by
the DSB in late August 2002.
Canada and Canadian lumber producers subsequently challenged the
Administration’s use of an affirmative threat of injury determination rendered by the
ITC under § 129 to maintain antidumping and countervailing duty orders on
softwood lumber imports from Canada, notwithstanding the existence of an earlier
“no threat” determination issued by the ITC at the direction of the NAFTA binational
panel. In January 2005, plaintiffs filed suit in the U.S. Court of International Trade
(USCIT) arguing that the USTR’s order to DOC to implement the new ITC Section
129 determination was ultra vires (i.e., beyond the scope of USTR’s authority under
the statute). Plaintiffs argued that § 129 authorizes the USTR to order only the
revocation of an AD or CVD order in response to a new negative ITC determination,
and thus, where a new determination does not legally undermine an existing order,
no further administrative action is authorized.
On July 21, 2006, the USCIT ruled in Tembec, Inc. v. United States (Tembec I)
that the USTR was not authorized to issue the order to DOC to implement the ITC’s
affirmative Section 129 determination and that, as a result, the May 2002
antidumping and countervailing duty orders on softwood lumber were not supported
by an affirmative finding of injury or threat thereof, a requirement for imposing and
collecting such duties.44 In Tembec, Inc. v. United States (Tembec II), a decision on
remedies issued October 13, 2006, the day following the effective date of the
agreement between the United States and Canada settling their dispute over softwood
lumber trade, the USCIT ruled that all unliquidated softwood entries were to be
administrative review, which is an annual review of imports for a specified 12-month period
to determine the existence and amount of dumping or subsidization, as the case may be,
involving the subject merchandise for this period. Trade Act of 1974, § 751(a), 19 U.S.C.
§1675(a), 19 C.F.R, § 351.212(a), 351.213. The rate determined in the administrative
review is also the rate at which estimated duties on imports entered during the succeeding
year are assessed and will apply until any subsequent administrative review produces a new
42 Second Written Submission of the United States, United States — Section 129(c)(1) of the
Uruguay Round Agreements Act, paras. 17-20, WT/DS221 (March 8, 2002), available at
[http://www.ustr.gov/assets/Trade_Agr eements/Monitoring_ En forcement/Dispute_
Settlement/WT O/Dispute_Settlement _Listings /asset_upload_file327_6455.pdf].
43 Panel Report, United States — Section 129(c)(1) of the Uruguay Round Agreements Act,
WT/DS221/R (July 15, 2002).
44 Tembec, Inc. v. United States, 441 F.Supp.2d 1302 (Ct. Int’l Trade 2006), available at
[ h t t p : / / www.ci t .uscour t s .gov/ s l i p_op/ Sl i p_op06/ 06-109.pdf ] .
liquidated in accordance with the final negative decision of the NAFTA injury panel
and thus without the imposition of the duties.45 The USCIT later vacated its
judgment (but not its decision) in Tembec II on the ground that the U.S.-Canada
agreement, which ultimately resulted in liquidation of all softwood lumber entries
without regard to antidumping or countervailing duties, provided the plaintiffs with
the relief they sought.46
Implementation of WTO Rulings in Pending Cases
Six WTO dispute proceedings that involve federal statutes are in the compliance
phase — that is, panel and appellate reports adverse to the United States have been
adopted by the DSB and compliance issues have not yet been fully resolved. At
issue are challenges to the following:
!§ 110(5)(B) of the Copyright Act, a statute affecting music licensing;
!§ 211 of the Omnibus Appropriations Act of 1998, a statute affecting
trademarks affecting property confiscated by Cuba;
!a provision of antidumping law involving the calculation of dumping
rates for producers and exporters who are not individually
investigated by the Commerce Department;
!the now repealed Continued Dumping and Subsidy Offset Act
(CDSOA), which required the distribution of collected antidumping
and countervailing duties to petitioners and interested parties in the
underlying trade proceedings, and whose repeal legislation mandates
45 Tembec, Inc. v. United States, 461 F.Supp.2d 1355 (Ct. Int’l Trade 2006), available at
[ h t t p : / / www.ci t .uscour t s .gov/ s l i p_op/ Sl i p_op06/ 06-152.pdf ] .
46 Tembec, Inc. v. United States, No. 05-00028, 2007 WL 609736 (Ct. Int’l Trade February
28, 2007), available at [http://www.cit.uscourts.gov/slip_op/Slip_op07/07-28.pdf]. On
October 12, 2006, the Department of Commerce retroactively revoked the antidumping and
countervailing duty orders at issue, ordering that all entries made on or after May 22, 2002,
be liquidated without regard to antidumping duties except for certain entries for which
liquidation was then enjoined. Also on October 12, 2006, Canada stipulated to the dismissal
of its complaint in the USCIT proceeding and the United States filed a motion to dismiss on
the ground that retroactive revocation and liquidation in accordance with the revocation
rendered the action moot. The United States subsequently asked the court to vacate its
October 13 decision. The injunction cited in the revocation order was later modified and,
on October 31, 2006, Customs instructed that the all entries be liquidated without regard to
antidumping duties. Because an injunction relating to some of the covered imports existed
on the day of the October 13 USCIT decision, the court decided that there was a live case
or controversy as of that date and thus refused to withdraw its decision, as the U.S.
Government had requested. For further information on this case, the previously discussed
WTO proceeding involving § 129, and NAFTA and other WTO proceedings involving the
U.S. softwood duty orders, see CRS Report RL33752, Softwood Lumber Imports from
Canada: Issues and Events, by Ross W. Gorte and Jeanne J. Grimmett.
the distribution of duties on goods entered through September 30,
!statutes providing subsidies to U.S. cotton producers and exporters;
!federal laws governing the remote supply of gambling services.
While the WTO proceeding involving U.S. cotton subsidies, United States —
Subsidies on Upland Cotton (WT/DS267), also implicates regulatory action by the
United States, this report focuses on statutory aspects of U.S. compliance.
Two pending cases involve regulatory action in antidumping proceedings under
existing statutory authorities, each involving DOC’s use of “zeroing” (i.e., the
exclusion of non-dumped sales) in determining dumping margins in antidumping
investigations and reviews of existing antidumping orders.
Two cases involving an antidumping order on oil country tubular goods, appear
to have been settled in 2007 with the revocation of the challenged measure.47 In the
first case, United States — Sunset Review of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina (WT/DS268), the United States and Argentina jointly
requested in June 2007 that the arbitral panel examining Argentina request to impose
$44 million in annual retaliation suspend its work. In the second, United States —
Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico
(WT/DS282), Mexico in July 2007 asked that the compliance panel that it had
requested the previous April suspend its activity. While the parties do not appear to
have formally notified the WTO of a settlement in either dispute, no further action
appears to have been taken with respect to either of the suspended proceedings.
A third case, Anti-Dumping Measure on Shrimp from Ecuador (DS335), also
appears to have been settled in 2007 with revocation of the underlying antidumping
order. This case involved the use of zeroing in the original antidumping
investigation, Ecuador claiming that similar application of zeroing had already been
found to be inconsistent with the Antidumping Agreement in two earlier WTO
dispute proceedings. The United States and Ecuador entered into a procedural
agreement in which, inter alia, the United States agreed to comply within six months
of the adoption of the expected adverse panel report, i.e. by August 20, 2007.48 The
Department initiated a Section 129 proceeding in which dumping rates were
calculated without the use of zeroing, resulting in new rates that were either zero or
de minimis; the antidumping order was consequently revoked, effective August 15,
47 Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico; Revocation
of Antidumping Duty Orders Pursuant to Second Five-Year (Sunset Review), 72 Fed. Reg.
48 Agreement on Procedures between Ecuador and the United States, United States — Anti-
Dumping Measure on Shrimp from Ecuador, WT/DS335/8 (October 25, 2006).
49 Implementation of the Findings of the WTO Panel in United States Antidumping Measure
Japan has raised questions during the past year regarding U.S. implementation
of an adverse WTO decision rendered in 2000 involving the Antidumping Act of
1916, formerly 15 U.S.C. § 72, which provided a private cause of action and criminal
penalties for dumping.50 The United States responded to the WTO ruling by
prospectively repealing the act in late 2004 (P.L. 108-429, § 2006) and considered
that by virtue of this action it had complied in the case; Japan stated at the time that
it preferred retroactive repeal, given that suits were pending against several Japanese
companies, and that it was reserving its rights under the DSU.51 Although Japan did
not raise the issue for some time thereafter, it has since questioned whether the
United States has fully complied, citing litigation against a Japanese firm that was
pending at the time of the repeal and subsequently resulted in a substantial monetary
judgment against the company.52
Pending Cases Involving Legislative Action
Section 110(5)(B) of the Copyright Act (Music Copyrights) (DS160).
This dispute involves legislation enacted in 1998 (17 U.S.C. § 110(5)(b), as added
by P.L. 105-298, § 202(a)), which provides that it is not a copyright infringement for
bars and restaurants and other retail outlets to play radio and television music without
authorization from the copyright holder or the payment of fees so long as the
establishments meet certain size limitations or equipment requirements.53
Challenged by the EC in 1999, this so-called “small business” exemption was found
to be an improper rights limitation in violation of Article 13 of the Agreement on
Trade-Related Intellectual Property Rights (TRIPS).
In the absence of U.S. legislative action by the end of the initial compliance
period (July 27, 2001), complainant EC agreed to extend the period to the end of
2001, and to consider U.S. compensation for the EC music industry based on an
amount of trade injury determined by arbitration under Article 25 of the DSU, a free-
on Shrimp from Ecuador, 72 Fed. Reg. 48257 (August 23, 2007).
50 United States — Anti-dumping Act of 1916 (DS136 (EC) and DS162 (Japan)).
51 E.g., Dispute Settlement Body, Minutes of Meeting, December 17, 2004, at 14,
WT/DSB/M/180 (February 1, 2005). Regarding pending litigation, see also Yamaha,
Honda, Suzuki Among Japanese Firms Sued Under 1916 Act, Inside U.S. Trade, December
10, 2004, at 1; Federal Jury Awards U.S. Firm Damages under 1916 Dumping Act, 20 Int’l
Trade Rep. (BNA) 2072 (2003). See also Japan, Ministry of Economy, Trade and Industry,
FTA/EPA, and BIT; Executive Summary 4, 6 (2007), at [http://www.meti.go.jp/english/
52 Dispute Settlement Body, Minutes of Meeting, January 23, 2007, at 12-13,
WT/DSB/M/225 (March 8, 2007)[hereinafter DSB Minutes (January 23, 2007)]; Dispute
Settlement Body, Minutes of Meeting, July 19, 2006, at 12-15, WT/DSB/M/217 (September
53 For further discussion of this provision, see CRS Report RS21107, Copyright Law’s
“Small Business Exception”: Public Performance Exemptions for Certain Establishments,
by Todd B. Tatelman.
standing arbitration provision. A November 9, 2001, arbitral award determined that
some $1.1 million in EC trade benefits are affected annually.
Notwithstanding the arbitration, the EC on January 7, 2002, requested
authorization to impose countermeasures on the ground that the United States had not
fully complied by the extended deadline, proposing to suspend concessions under the
TRIPS Agreement by “levying a special fee from US nationals in connection with
border measures concerning copyright goods.” While the United States asked for
arbitration of the proposal, the United States and the EC on February 26, 2002, asked
that the arbitration be suspended, with the understanding that it could be reactivated
by either party after March 1, 2002.
In April 2003, Congress appropriated $3.3 million for a “one-time only, lump-
sum payment” to the EC to cover a three-year period of nullification and impairment
of benefits in the dispute (P.L. 108-11).54 The parties notified the WTO in late June
2003 that the payment, which will be made into a fund for EC performers, constitutes
a temporary settlement of the dispute.55 They also agreed that the EC may request
that the suspended arbitration be resumed any time after December 20, 2004, or if the
United States fails to pay within 45 days after being notified that the fund has been
Recent Developments. Shortly before the three-year U.S.-EC agreement
expired, the EC complained to the DSB that the United States had taken only
minimal steps to secure the passage of legislation that would bring the United States56
into full compliance in the case. The EC regularly raises the issue of U.S.
noncompliance at DSB meetings,57 with the United States continuing to report to the
54 See H.Rept. 108-76 at 33, 92. As does the House report on the enacted appropriation, the
House report on the House-passed FY2004 appropriation for the USTR (H.R. 2799) points
out that approval of the payment was intended as a “one-time only” funding measure and
further states that “[t]here is a long-established practice of using suspension of tariff
concessions to resolve trade disputes and the Committee does not intend to appropriate
funds to settle these matters.” H.Rept. 108-221 at 65. In addition, the Committee “cautions
U.S. negotiators that there should be no commitments made within trade agreements to use
funds from the U.S. Treasury that have neither been requested nor appropriated to resolve
trade disputes.” Id.
55 Notification of a Mutually Satisfactory Temporary Arrangement, United States — Section
56 Dispute Settlement Body, Minutes of Meeting, November 24 and 26, 2004, at 7,
WT/DSB/M/178 (January 17, 2005). The continued existence of the provision is also
routinely cited in annual European Union reports on foreign trade barriers. See, e.g.,
European Commission, United States Barriers to Trade and Investment; Report for 2006,
at 14-15 (February 2007), at [http://trade.ec.europa.eu/doclib/docs/2007/february/
tradoc_133290.pdf]. Note also European Commission, Directorate-General for Trade,
General Overview of Active WTO Dispute Settlement Cases Involving the EC as
Complainant or Defendant, 26 October 2007, at 17, at [http://trade.ec.europa.eu/doclib/
57 E.g., Dispute Settlement Body, Minutes of Meeting, July 24, 2007, at 6, WT/DSB/M/234
(July 24, 2007) [hereinafter DSB Minutes (July 24, 2007)], as corrected,
DSB that it is working with Congress on the matter.58 While the EC has noted that
it has reserved the right to reactivate the arbitration on its retaliation request at any
time,59 the disputing parties have also appeared to indicate interest in possible
discussions on a mutually satisfactory resolution of the matter.60
Section 211 of the Omnibus Appropriations Act of 1998 (Trademark
Exclusion Involving Property Confiscated by Cuba) (DS176). This case
involves a statute (P.L. 105-277, 112 Stat. 2681-88), which prohibits the registration
or enforcement in the United States, without the consent of the original owner or
successors, of a trademark that is the same or substantially the same as one used in
connection with a business or assets confiscated by the Cuban government.
Challenged by the EC in 1999, the law was ultimately found to violate national
treatment and most-favored-nation obligations in the TRIPS Agreement in that it
limited the prohibition on registration and enforcement of rights to rights asserted by
Cuba and Cuban nationals or their successors-in-interest. Panel and Appellate Body
reports in the case were adopted January 2, 2002.61
The original compliance period, as agreed upon by the United States and the
EC, expired December 31, 2002; it was extended four times, also by agreement, most
recently to June 30, 2005.62 The United States did not comply by this date. Instead
of agreeing to an extension of the deadline or, alternatively, requesting authorization
to retaliate, the EC entered into an agreement with the United States regarding rights63
and procedures involving any future EC retaliation request. The EC agreed not to
request authorization from the DSB to suspend concessions for the time being, but
has pledged to notify and consult with the United States before making any such
request in the future. For its part, the United States has agreed not to block any
retaliation request by the EC on the ground that the request is outside the 30-day
window provided for in Article 22.6 of the DSU; the United States also retains the
right to object to a proposed retaliation request and to refer the matter to arbitration.
WT/DSB/M/234/Corr.1 (August 22, 2007).
58 E.g., DSB Minutes (July 24, 2007), at 5; see also Status Report by the United States,
Addendum, United States — Section 110(5) of the US Copyright Act, WT/DS160/24/Add.36
(December 7, 2007).
59 E.g., Dispute Settlement Body, Minutes of Meeting, September 28, 2006, at 5-6,
WT/DSB/M/220 (November 2, 2006)[hereinafter DSB Minutes (September 28, 2006)].
60 See, e.g., Dispute Settlement Body, Minutes of Meeting, June 20, 2007, at 6,
WT/DSB/M/234 (July 23, 2007), as corrected, WT/DSB/M/234/Corr.1 (August 22, 2007).
61 For more detailed information on the legal issues involved in this case, see CRS Report
RS21764, Restricting Trademark Rights of Cubans: WTO Decision and Congressional
Response, by Margaret Mikyung Lee.
62 Modification of the Agreement under Article 21.3(b) of the DSU, United States —
Section 211 Omnibus Appropriations Act of 1998, WT/DS176/15 (December 21, 2004).
63 Understanding between the European Communities and the United States, United States
— Section 211 Omnibus Appropriations Act of 1998, WT/DS176/16 (July 1, 2005).
Recent Developments. As the EC, Cuba, and other WTO Members
continue to raise the issue of U.S. noncompliance at DSB meetings,64 the United
States has been reporting to the DSB that legislative proposals that would implement
the WTO ruling have been introduced in the House and Senate and that it is working65
with the Congress on legislative vehicles to resolve this matter.
Various 110th Congress bills would either repeal or amend § 211. H.R. 217
(Serrano) and H.R. 624 (Rangel) would repeal § 211, as well as remove the current
trade embargo on Cuba. H.R. 2819 (Rangel) and S. 1673 (Baucus) would repeal the
statute along with removing certain other restrictions on trade with Cuba. S. 1806
(Leahy) would repeal the statute and require the Secretary of the Treasury to issue
regulations as are necessary to carry out the repeal within 30 days after enactment.
H.R. 1306 (Wexler) and S. 749 (Nelson) would amend § 211 to apply to all persons
claiming rights in trademarks confiscated by Cuba, whatever their nationality.
Antidumping Measures on Hot-Rolled Steel Products from Japan
(DS184). This case involves a challenge to preliminary and final agency
determinations issued in 1998 and 1999 in an antidumping investigation of hot-rolled
steel products from Japan. The panel, as upheld by the Appellate Body, found that
the United States was in violation of the WTO Antidumping Agreement because (1)
U.S. law, specifically § 735(c)(5)(A) of the Tariff Act of 1930, requires the
Commerce Department to include dumping margins based in part on “facts
available,” including those contained in petitions, in calculating the antidumping duty
rate for companies not investigated individually in a case (all-others rate); (2) the
Commerce Department improperly applied facts available in calculating dumping
64 E.g., DSB Minutes (July 24, 2007), supra note 57, at 2-4. As with DS160, discussed
earlier, the continued existence of § 211 is routinely cited in annual European Union reports
on foreign trade barriers. See European Commission, United States Barriers to Trade and
Investment; Report for 2006, at 15 (February 2007), at [http://trade.ec.europa.eu/doclib/
docs/2007/february/tradoc_133290.pdf]. Note also European Commission, Directorate-
General for Trade, General Overview of Active WTO Dispute Settlement Cases Involving
the EC as Complainant or Defendant, 26 October 2007, at 17-18, at [http://trade.ec.europa.
65 See, e.g., Status Report by the United Status, Addendum, United States — Section 211
Omnibus Appropriations Act of 1998, WT/DS176/11/Add.61 (December 7, 2007).th
Bills to repeal or amend the provision were also introduced in the 109 Congress. Like
the recently introduced S. 749 and H.R. 1306, S. 691 (Domenici) and H.R. 1689 (Feeney)
would have amended § 211 to remove the prohibition on claims by Cuba , Cuban nationals,
and their successors-in-interest. See 151 Cong. Rec. S3153 (daily ed. April 4,th
2005)(remarks of Mr Domenici). Two other 109 Congress bills would have repealed the
provision (H.R. 3372 [Flake] and S. 1604 [Craig]). S. 328 (Craig) and H.R. 719 (Moran)
would have repealed § 211 along with enacting various Cuba-related trade facilitation
provisions. An amendment to S. 600, foreign relations authorization legislation for FY2006th
and FY2007, would have done the same (S.Amdt. 281 [Baucus]). Other 109 Congress
legislation would have repealed § 211 along with removing the current trade embargo on
Cuba (H.R. 208 [Serrano]; H.R. 579 [Paul]). No action was taken on any of the legislation.
The Senate Judiciary Committee held a hearing on Section 211 issues on July 13, 2004. See
An Examination of Section 211 of the Omnibus Appropriations Act of 1998, at
[http://judiciary.senate.gov/hearing.cfm?id=1261] for witness lists, testimony and Members
margins for specific producers; and (3) the Department had improperly excluded
from the calculation of the normal value of the products under investigation certain
home market sales to parties affiliated with the exporter involved.66 The Appellate
Body also ruled against the United States with respect to the ITC’s injury
determination, reversing panel findings that the ITC had properly applied a captive
production provision and that the agency had found a causal link between the
dumped imports and material injury to the industry involved. With regard to Japan’s
causation claim, however, the AB found that there was an insufficient factual record
to allow completion of the required analysis.67
The arbitrated compliance period in the case expired November 23, 2002.
While Japan had threatened trade retaliation earlier in November because it found it
unlikely that the United States would comply with each element of the ruling by this
deadline, the deadline was extended until December 31, 2003, or the end of the 108th
Congress, 1st Session (whichever was earlier), to comply fully with the panel and
appellate reports in the case.68
Administrative Compliance. In partial implementation of the WTO rulings,
the Commerce Department modified the test that it uses to determine which
transactions are made by an exporter or producer to an affiliate at arm’s length and
are therefore “in the ordinary course of trade.”69 The panel, as upheld by the
Appellate Body, found that the test that the United States had applied in the dumping
investigation at issue violated Article 2.1 of the Antidumping Agreement, which
provides that a product “is to be considered dumped, i.e. introduced into the
commerce of another country at less than its normal value, if the export price of the
product exported from one country to another is less than the comparable price, in the
ordinary course of trade, for the like product when destined for consumption in the
66 Panel Report, United States — Anti-dumping Measures on Certain Hot-Rolled Steel
Products from Japan, WT/DS184/R (February 28, 2001) [hereinafter Hot-Rolled Steel Panel
Report]; Appellate Body Report, United States — Anti-dumping Measures on Certain Hot-
Rolled Steel Products from Japan, WT/DS184/AB/R (July 24, 2001) [hereinafter Hot-
Rolled Steel AB Report].
67 Hot-Rolled Steel AB Report, supra note 66, at paras. 235-236.
68 After consultations with Japan, the United States requested that deadline be extended to
the dates noted; the DSB approved the extension on December 5, 2002. See Status Report
by the United States, Addendum, United States — Anti-dumping Measures on Certain Hot-
Rolled Steel Products from Japan, WT/DS184/15/Add.3 (December 9, 2002).
The United States and Japan had reportedly been in disagreement regarding
implementation of the ruling as it relates to the ITC’s application of the statutory captive
production provision. See Japan Threatens Retaliation Against U.S. For Hot-Rolled Steel
Antidumping Duties, 19 Int’l Trade Rep. (BNA) 1965 (2002); U.S. Response Leaves WTO
Ruling on Hot-Rolled Injury Claims Untouched, Inside U.S. Trade, November 15, 2002, at
December 6, 2002, at 13. No action has been taken by the ITC in response to the WTO
69 Antidumping Proceedings: Affiliated Party Sales in the Ordinary Course of Trade, 67 Fed.
Reg. 69186 (November 15, 2002)[hereinafter Modification of Antidumping Methodology].
See also Antidumping Proceedings: Affiliated Party Sales in the Ordinary Course of Trade,
exporting country.”70 Sales that are outside the “ordinary course of trade” are thus
to be excluded by national authorities when calculating normal value.
Under past practice, the Department considered sales of a product to an affiliate
to be at arm’s length if the prices charged were on average at least 99.5% of the
prices charged to unaffiliated comparison market customers. The Department’s new
test provides that for affiliate sales to be considered, the sales prices “must fall, on
average, within a defined range, or band, around sales prices of the same or
comparable merchandise sold by that exporter or producer to all unaffiliated
customer’s. The band applied for this purpose will provide that the overall ratio
calculated for an affiliate be between 98 percent and 102 percent, inclusive, of prices
to unaffiliated customers....”71
According to the Department, the regulatory revision “is consistent with the
view, expressed by the WTO Appellate Body, that rules aimed at preventing the
distortion of normal value through sales between affiliates should reflect, ‘even-
handedly,’ that ‘both high and low-price sales between affiliates might not be ‘in the
ordinary course of trade.’”72 The Department stated that the new methodology would
be used to implement the WTO findings regarding the Japan hot-rolled steel AD
proceeding, and applied in all investigations and reviews initiated on or after
November 23, 2002.73
On December 3, 2002, the Department announced a new dumping determination
in the AD proceeding at issue, stating that in implementation of the WTO rulings and
recommendations, it had recalculated dumping margins for three affected Japanese
producers using the new methodology; addressed issues related to the use of adverse
facts available; and recalculated the all-others rate based on the new rates for the
respondent companies.74 The recalculations resulted in reduced dumping margins for
the three companies as well for all other exporters.
Legislative Compliance. As noted earlier, the dispute panel, as upheld by
the Appellate Body, concluded that the United States was in violation of its WTO
obligations because of its use of dumping margins based in part on facts available in
determining the all-others rate in antidumping proceedings. Article 9.4 of the WTO
Antidumping Agreement provides, in pertinent part, that the all-others rate may not
exceed the weighted average margin established with respect to individually
70 Hot-Rolled Steel Panel Report, supra note 66, at paras. 7.91-7.120, Hot-Rolled Steel AB
Report, supra note 66, at paras.131-173.
71 Modification of Antidumping Methodology, supra note 69, 67 Fed. Reg. at 69186. The
Department noted that its modification was the same as that proposed in August 2002, “with
the exception of comparing prices of ‘similar’ products where an identical comparison
product was not sold to unaffiliated parties....” Id. at 69187.
74 Notice of Determination Under Section 129 of the Uruguay Round Agreements Act:
Antidumping Measures on Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products
from Japan, 67 Fed. Reg. 71936 (December 3, 2002).
investigated producers or exporters, excluding any zero and de minimis margin and
“margins established under the circumstances referred to in” Article 6.8 of the
Agreement, that is, “made on the basis of facts available.”75 Section 735(c)(5)(A)
of the Tariff Act of 1930, 19 U.S.C. § 1673d(c)(5)(A) states that, for purposes of
preliminary and final dumping determinations, the estimated dumping rate for
producers not investigated individually “shall be an amount equal to the weighted
average of the estimated weighted average dumping margins established for exporters
and producers individually investigated, excluding any zero and de minimis margins,
and any margins determined entirely under section 776.”76 Section 776 of the Tariff
Act governs the use of facts available by the DOC and ITC in making dumping,
subsidy, and injury determinations.77 The WTO panel, as affirmed on appeal,
concluded that § 735(c)(5)(A) is inconsistent with Article 9.4 because it requires
DOC to consider dumping margins based in part on facts available in determining
the all-others rate, while the cited WTO article was found to require the exclusion of
dumping margins based either in whole or in part on such facts.78
75 Article 6.8 provides, in full text, as follows:
In cases in which any interested party refuses access to, or otherwise does not
provide, necessary information within a reasonable period or significantly
impedes the investigation, preliminary and final determinations, affirmative or
negative, may be made on the basis of facts available. The provisions of Annex
II shall be observed in the application of this paragraph.
Annex II, titled “Best Information Available in Terms of Paragraph 8 or Article 6,” provides
guidelines for the collection and use of information by investigating authorities in
76 Emphasis added.
77 The Tariff Act generally directs the Commerce Department and the International Trade
Commission to use “the facts otherwise available” in reaching their subsidy, dumping, and
injury determinations if: (1) necessary information is not available on the record or (2) an
interested party or any other person withholds requested information, fails to provide such
information by the deadline or in the form and manner requested, significantly impedes an
antidumping or countervailing duty proceeding, or provides information that cannot be
verified. Tariff Act of 1930, § 776(a), 19 U.S.C. § 1677e(a). Before using “facts available,”
however, the agencies must enable a person submitting information in response to an agency
request to remedy or explain any deficiencies in the original response. Tariff Act of 1930,
§ 782(d), 19 U.S.C. § 1677m(d). The agencies are allowed to use adverse inferences in
selecting from fact available where an interested party “has failed to cooperate by not acting
to the best of its ability” to comply with an agency information request.” Tariff Act of 1930,
§ 776(b), 19 U.S.C. § 1677e(b). As noted by the U.S. Court of International Trade, the
ability of an agency to use “facts available” in an investigation acts as “an inducement for
respondents to provide complete and accurate information in a timely manner.” Maui
Pineapple Company v. United States, 264 F.Supp. 2d 1244, 1257 (Ct. Int’l Trade 2003).
78 Emphasis added. See Hot-Rolled Steel Panel Report, supra note 66, at paras. 7.83-7.90,
Absent legislative compliance by the United States, the December 2003 deadline
referred to earlier was extended twice, most recently to July 31, 2005.79 The deadline
lapsed without U.S. action; in an understanding between the disputing parties reached
earlier in the month, Japan stated that it would not request authorization to retaliate
at the time but might choose to do so in the future.80
Recent Developments. H.R. 2473 (Shaw), introduced in the 109th Congress,
would have amended § 735(c)(5) of the Tariff Act of 1930 to remove the word
“entirely” each time it appears in the provision. Although the text of H.R. 2473 wasth81
listed for possible inclusion in 109 Congress miscellaneous tariff legislation, the
bill was not made part of the tariff legislation nor was it acted upon as stand-alone
Japan continues to seek legislative action on the issue,82 as the United States
continues to state its support for legislative amendments that would achieve full83
compliance in the case. The United States has also submitted a proposal to the
Doha Round Negotiating Group on Rules that Article 9.4 of the Antidumping84
Agreement be clarified to allow the invalidated practice. No revisions or
79 See Dispute Settlement Body, Minutes of Meeting, August 31, 2004, at 6-7,
WT/DSB/M/175 (Sept 24, 2004).
80 Understanding between Japan and the United States, United States — Anti-dumping
Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/19 (July 28, 2005).
The United States has agreed not to block any retaliation request on the ground that the 30-
day period for requesting authorization to suspend concessions in Article 22.6 has expired,
but has reserved the right to have any retaliation request referred to arbitration.
81 Comments submitted to the Trade Subcommittee of the House Ways and Means
Committee on the possible inclusion of this legislation in a future bill are available at
[http://waysandmeans.house.gov/ hearings .asp?formmode=comment&hearing=440].
82 E.g, DSB Minutes (July 24, 2007), supra note 57, at 5.
83 Id.; Status Report by the United States, Addendum, United States — Anti-dumping
Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/15/Add.61
(December 7, 2007).
84 U.S. Seeks to Reverse WTO Ruling on ‘Facts Available’ Dumping Rates, 21 Int’l Trade
Rep. (BNA) 1540 (2004); Negotiating Group on Rules, All-Others Rate (Article 9.4 ADA);
Communication from the United States, TN/RL/GEN/16 (September 15, 2004), as corrected
[hereinafter U.S. Communication]. See also Negotiating Group on Rules, Identification of
Certain Major Issues Under the Anti-Dumping and Subsidies Agreements; Submission by
the United States, TN/RL/W/72, at 2-3 (March 19, 2003).
In presenting its proposal to WTO negotiating partners, the United States has explained
that it interpreted Article 9.4 of the Antidumping Agreement as providing that only margins
based entirely on facts available are to be excluded from calculating the all-others rate
ceiling because “the United States believed that this was a reasonable interpretation of the
statute and because, in the United States’ experience, some level of facts available is often
necessary to determine a company’s dumping margin.” U.S. Communication, supra, at 1.
In the U.S. view, whether the “facts available” data used with respect to a firm are small or
substantial, “the resulting margin represents the best estimate of the level of dumping by that
particular company” and it is thus “appropriate to use such a margin when establishing a
duty rate for unexamined firms based on the dumping found to exist for firms actually
clarifications of Article 9.4, however, were included in the draft text of proposed
revisions to the Antidumping Agreement issued by the Chair of the Negotiating
Group in late November 2007.85
Continued Dumping and Subsidy Offset Act (DS 217/DS234). The
Continued Dumping and Subsidy Offset Act (CDSOA), 19 U.S.C. § 1675c, also
known as the Byrd Amendment, required the annual disbursement of antidumping
and countervailing duties to petitioners and interested parties in the underlying trade
remedy proceedings.86 The EC and ten other WTO members challenged the October
2000 statute shortly after enactment as violative of the WTO Antidumping
Agreement, the WTO Agreement on Subsidies and Countervailing Measures (SCM
Agreement), and other WTO obligations. The complainants based their argument in
part on the prohibitions in Article 18.1 of the Antidumping Agreement and Article
dumping and subsidization, respectively, except for action taken in accordance with87
the GATT 1994 as interpreted by the respective Agreement.
The WTO panel found that the CDSOA did create an impermissible “specific
action against” dumping and subsidization and that it provided a financial incentive
for domestic producers to file or support antidumping and countervailing duty
petitions, thereby undermining the industry support requirements in the Antidumping
and SCM Agreements. At the same time, the panel rejected complainants’ argument
that the act would make it more difficult for the United States to enter into subsidy
and price undertakings with foreign governments allowing the suspension of
investigations (“suspension agreements”), along with Mexico’s claim that the act88
constituted a subsidy in and of itself. The Appellate Body upheld the panel’s
finding that the statute created a “specific action against” dumping and subsidization
not allowed under WTO agreements, but reversed the panel on its conclusion
examined.” Id. It continued: “We therefore interpreted the Agreement as distinguishing
those situations from situations in which a firm’s data are so flawed or unreliable that it is
necessary to base its antidumping duty entirely on facts available.” Id.
85 See Negotiating Group on Rules, Draft Consolidated Chair Text of the AD and SCM
Agreements, at 21, TN/RL/W/213 (November 30, 2007)[hereinafter Draft Rules Text].
86 For more detailed examination of the statute and additional discussion of the WTO
proceeding, see CRS Report RL33045, The Continued Dumping and Subsidy Offset Act
(“Byrd Amendment”), by Jeanne J. Grimmett and Vivian C. Jones. See also U.S.
Government Accountability Office, International Trade: Issues and Effects of Implementing
the Continued Dumping and Subsidy Offset Act (September 2005)(GAO-05-979).
87 Article 18.1 of the Antidumping Agreement had been successfully used by EC and Japan
in their WTO challenges of the U.S. Antidumping Act of 1916, 15 U.S.C. § 72, which
provided a private right of action and criminal penalties against dumping. See Appellate
Body Report, United States — Anti-Dumping Act of 1916, paras. 103-138,
WT/DS136/AB/R, WT/DS162/AB/R (August 28, 2000)(adopted September 26, 2000). See
also text at supra notes 50-52.
88 Panel Report, United States — Continued Dumping and Subsidy Offset Act, WT/DS217/R,
WT/DS234/R (September 16, 2002).
regarding industry support requirements.89 The reports were adopted January 27,
2003, and the compliance period was subsequently determined by arbitration to
expire December 27, 2003.90
Because the United States did not comply by the December 2003 deadline, eight
complaining Members — Brazil, Chile, EC, India, Japan, Korea, Canada, and
Mexico — asked the WTO in January 2004 for authorization to impose retaliatory
measures.91 The United States objected to the requests, sending them to arbitration.92
The remaining three complainants — Australia, Indonesia, and Thailand — agreed
to give the United States until December 27, 2004, to comply.93
In awards issued August 31, 2004, the WTO Arbitrator (a panel of three)
determined that each of the eight Members could impose countermeasures on an
annual basis in an amount equal to 72% of the CDSOA disbursements for the most
recent year for which official U.S. data are available relating to antidumping and
countervailing duties paid on imports from the Member at that time.94 The Arbitrator
stated that the disbursements “operate, in economic terms, as subsidies that may
generate import substitution production”95 and used an economic model to determine
the level of nullification or impairment of benefits, or what the arbitrator
characterized as “a value of trade” affected by application of the CDSOA.96 The
arbitrator also made clear that each Member would need to ensure that the total value
of U.S. trade subject to the proposed duty increase does not exceed the total value of
trade determined to constitute the level of nullification or impairment or else propose
other forms of suspending concessions to the DSB that are less likely to have trade
effects exceeding this level in terms of value of U.S. exports to the country involved.
89 Appellate Body Report, United States — Continued Dumping and Subsidy Offset Act,
paras. 224-299, WT/DS217/AB/R, WT/DS234/AB/R (January 16, 2003).
90 Award of the Arbitrator, United States — Continued Dumping and Subsidy Offset Act of
2000; WT/DS217/14, WTDS234/22 (June 13, 2003). The arbitrator emphasized in his
award that it was for the United States to decide on the manner of implementation, which
might be through repeal or modification of the law. Id. at para. 50.
91 See WTO documents WT/DS217/20 (Brazil); WT/DS217/21 (Chile); WT/DS217/22
(EC); WT/DS217/23 (India); WT/DS217/24 (Japan); WT/DS217/25 (Korea); WT/DS234/25
(Canada); WT/DS234/26 (Mexico).
92 See Dispute Settlement Body, Minutes of Meeting, January 26, 2004, WT/DSB/M/164
(March 12, 2004).
93 See WTO documents WT/DS217/17 (Thailand); WT/DS217/18 (Australia); and
94 E.g., Decision by the Arbitrator, Recourse to Arbitration by the United States under
Article 22.6 of the DSU; United States — Continued Dumping and Subsidy Offset Act of
WT/DS217/ARB/EEC (August 31, 2004).
95 Id. at para. 3.41.
96 Id. at paras. 3.72, 3.80-3.151, 4.7.
The eight complainants received formal authorization from the DSB to impose
retaliatory measures in late 2004.97 The EC and Canada began to impose
countermeasures in the form of higher tariffs and surcharges on selected U.S.
products, respectively, as of May 1, 2005.98 Mexico began to impose $20.9 million
in retaliatory tariffs effective August 18, 2005.99 In addition, Japan imposed
additional tariffs of 15% on 15 categories of U.S. goods as of September 1, 2005.100
Recent Developments. A provision repealing the CDSOA, but providing
for the distribution of “duties on entries of goods made and filed before October 1,
2007,” was enacted in the Deficit Reduction Act of 2005, signed by the President on
February 8, 2006 (P.L. 109-171).101 While the United States informed the WTO that
97 Absent action to repeal or modify the statute by December 27, 2004, the compliance
deadline agreed to by Australia, Indonesia, and Thailand, the three Members entered into
entered into new agreements with the United States in which they reserved the right to take
further action against U.S. goods in the future. See WTO documents WT/DS217/44
(Australia), WT/DS217/45 (Thailand), and WT/DS217/46 (Indonesia).
98 Communication from the European Communities, United States — Continued Dumping
and Subsidy Offset Act, WT/DS217/47 (May 4, 2005); Canada Implements Retaliatory
Surtax on U.S. Goods Due to Byrd Amendment, 22 Int’l Trade Rep. (BNA) 796 (2005).
99 Mexico Announces $20.9 Million in Byrd Retaliation Against U.S. Exports, Inside U.S.
Trade, August 19, 2005, at 1.
100 Communication from Japan, United States — Continued Dumping and Subsidy Offset Act
of 2000, WT/DS217/48 (August 19, 2005); Japan, Ministry of Economy, Trade and
Industry, “US Byrd Amendment: Japan Decides to Start Retaliation,” Press Release, August
[hereinafter METI Press Release]; Japan OKs Countervailing Duties on 15 U.S. Products
Because of Byrd Amendment, 22 Int’l Trade Rep. (BNA) 1344 (2005). According to Japan,
the level of retaliation would not exceed $52 million, which, it stated, was the amount
authorized by the WTO based on the amount of CDSOA disbursements involving Japanese
goods in fiscal 2004. METI Press Release, supra.
101 The repeal, contained in § 7601(a) of the act, is to be effective “upon the date of
enactment.” Section 7701 of the act provides that Title VII, which contains the CDSOA-
related provisions, “shall take effect as if enacted on October 1, 2005.” The provision for
future duty distributions, set forth at § 7601(b), states as follows:
All duties on entries of goods made and filed before October 1, 2007, that would,
but for subsection (a) of this section, be distributed under section 754 of the
Tariff Act of 1930, shall be distributed as if section 754 of the Tariff Act of 1930
had not been repealed by subsection (a).
At the same time Congress again directed the International Trade Administration of
the Department of Commerce and USTR to conduct negotiations in the WTO “to recognize
the right of members to distribute monies collected from antidumping and countervailing
duties” in the Science, State, Justice, Commerce and Related Agencies Appropriations Act,
2006, P.L. 109-108, 119 Stat. 2306-07, marking the third time that such a requirement
appeared in statute. The appropriation was extended for FY2007 with the same provisos.
See Revised Continuing Appropriations Resolution, 2007, P.L. 110-5.
The President’s signing statement on P.L. 109-108 appeared to indicate that the
Executive Branch would treat the provision, inasmuch as it affected the Commerce
it had taken the actions necessary to implement the WTO rulings, and complaining
Members expressed support for the repeal, Members also stated their concerns that
the provision requiring the continued distribution of duties through 2007 and possibly
afterward would prevent the United States from complying fully with its WTO
obligations in the case.102
In April 2006, the U.S. Court of International Trade ruled that the CDSOA did
not apply to imports from Canada or Mexico,103 and on September 28, 2006, Customs
Department, as “advisory” on the ground that it interfered with the President’s foreign
affairs authority. The statement provides in pertinent part:
The executive branch shall construe as advisory the provisions of the Act that
purport to direct or burden the Executive’s conduct of foreign relations,
including the authority to ... negotiate international agreements on behalf of the
United States.... These provisions include... language under the headings
[Department of Commerce] “International Trade Administration, Operations and
In 2004, the USTR had submitted a proposal regarding the recognition of a right to
distribute antidumping and countervailing duties to the Doha Round Negotiating Group on
Rules, which is negotiating on antidumping and countervailing duty issues. Communication
from the United States, Three Issues Identified for Discussion by the Negotiating Group on
Rules, at 2, TN/RL/W/153 (April 26, 2004). A provision of this type was not included in
the draft negotiating text released by the Chairman of the Negotiating Group at the end of
November 2007. See Negotiating Group on Rules, Draft Consolidated Chair Texts of the
AD and SCM Agreements, TN/RL/W/213 (November 30, 2007).
102 Dispute Settlement Body, Minutes of Meeting, February 17, 2006, at 5-10,
WT/DSB/M/205 (March 31, 2006).
103 Canadian Lumber Trade Alliance v. United States, 425 F.Supp.2d 1321 (Ct. Int’l Trade
2006). Canada and Canadian industry groups had challenged CDSOA distributions based
on goods from Canada, arguing that, because of a provision in the NAFTA Implementation
Act stating after the NAFTA enters into force for the United States, an amendment that is
made to Title VII of the Tariff Act of 1930 may apply to goods from a NAFTA country only
to the extent specified in the amendment, the CDSOA, in not expressly referring to Canada,
did not apply to imports of Canadian products. The provision is set out at P.L. 103-182, §
the USCIT agreed with industry plaintiffs that the statutory provision applied to the
CDSOA, which is contained in Title VII of the 1930 act along with authorities for U.S.
antidumping and countervailing duty investigations. Since the CDSOA did not refer either
to Canada or Mexico, the court ruled that imports from both countries were exempt. On
July 14, 2006, the court permanently enjoined CBP from making any CDSOA payments to
the extent they derive from duties imposed on softwood lumber and two other Canadian
products. Canadian Lumber Trade Alliance v. United States, 2006 WL 2168520 (Ct. Int’l
Trade July 14, 2006), at [http://www.cit.uscourts.gov/slip_op/Slip_op06/06-48.pdf]; see also
CIT Issues Permanent Injunction On Some Byrd Amendment Distributions, 23 Int’l Trade
Rep. (BNA) 1108 (2006).
Canadians had been concerned that antidumping and countervailing duties collected
on softwood lumber imports, which had at the time of the suit totaled over $4 billion and
whose underlying duty orders had been heavily litigated by Canada, might eventually be
and Border Protection announced that it was withholding FY2006 and subsequent
years’ distributions on imports from the two countries pending the outcome of any
appeal.104 Canada allowed its retaliatory tariffs to terminate as of April 30, 2006.105
Mexico, after a month’s lapse, imposed increased tariffs on U.S. dairy products from
September 18 through October 31, 2006.106 These tariffs have not been reimposed.
The EC and Japan are continuing to impose retaliatory tariffs, which, according
to the earlier WTO arbitration, may not exceed 72 percent of the antidumping and
countervailing duties on EC and Japanese products, respectively, disbursed for the
most recent year for which data is available. On May 1, 2007, the EC increased its
level of retaliation from the $36.91 million applied since May 1, 2006, to $81.19
million. The EC made its existing 15% import surcharge applicable to 32 additional
products, including different types of paper products, plastic furniture, textile
products, pens, footwear, and mobile homes.107 Japan also imposed a 15% tariff
surcharge on selected products, which it has extended for one year, ending August
31, 2008; its current level of retaliation is $48.18 million, a decrease from the $55.93
million imposed during the previous year.108 Japan’s surcharge applies to conveyor
belts, steel products, fork-lift trucks, printing machines, tool holders, ball and roller
bearings, and navigational instruments.
Although collection of antidumping and countervaiilng duties for purposes of
CDSOA disbursal ceased as of October 1, 2007, duties will continue to be available
for disbursement until all entries before this date are liquidated, i.e. the final
assessment of duties on these entries is made. WTO Members regularly state at DSB
meetings that, by including a transition period in the statutory repeal, the United
distributed to U.S. lumber producers. For further information on the U.S.-Canada softwood
lumber dispute, which was settled in 2006, see CRS Report RL33752, Softwood Lumber
Imports from Canada: Issues and Events, by Ross W. Gorte and Jeanne J. Grimmett.
104 Notice of Withholding of Certain Distributions on Continued Dumping and Subsidy
Offset to Affected Producers, 71 Fed. Reg. 57000 (September 28, 2006).
105 Canada’s tariff surcharge expired April 30, 2006 and was not renewed. See Canada,
Dept. of Foreign Affairs and International Trade, Dispute Settlement: Questions and
Answers - Expiration of Retaliatory Measures, at [http://www.dfait-maeci.gc.ca/tna-
106 U.S. Dairy Industry Expects Hit from Short-term Mexican Byrd Retaliation, Inside U.S.
Trade, October 6, 2006; DSB Minutes (September 28, 2006), supra note 59, at 9.
107 European Commission, EU Publishes revised smart sanctions to counter US Byrd
Amendment (April 17, 2007), at [http://ec.europa.eu/trade/issues/respectrules/dispute/
pr170407_en.htm]. See also European Commission, Products that will be subject to a 15%
additional import duty as from May 2007 (April 17, 2007), at [http://trade.ec.europa.eu/
108 Communication from Japan, United States — Continued Dumping and Subsidy Offset Act
of 2000, WT/DS217/52 (August 27, 2007); Japan Notifies WTO of $48 Million in Duties
That Remain on U.S. Imports in Byrd Dispute, 24 Int’l Trade Rep. (BNA) 1247 (September
States has not fully complied with its WTO obligations in the case.109 No Member
has formally challenged the compatibility of the 2006 statute with U.S. obligations,
In addition, Congress for the past several years has directed the Commerce
Department and the USTR to conduct negotiations in the WTO “to recognize the
right of members to distribute monies collected from antidumping and countervailing
duties.”110 While the USTR submitted a proposal of this type to the Doha Round
Negotiating Group on Rules, a provision addressing this issue was not included in
the draft negotiating text released by the Chairman of the Negotiating Group in late
Subsidies on Upland Cotton (DS267). In September 2002, Brazil
requested consultations with the United States regarding U.S. statutes and programs
that it claimed provided prohibited and actionable subsidies to U.S. producers, users,
and exporters of upland cotton. Brazil alleged violations of the Agreement on
Subsidies and Countervailing Measures (SCM Agreement), the Agreement on112
Agriculture, and national treatment obligations in the GATT, adding in its
subsequent panel request in February 2003 a claim based on subsidy obligations in113
GATT Article XVI.
Members have made commitments in the WTO Agreement on Agriculture to
reduce, and in some cases eliminate, domestic support programs in favor of
agricultural producers and export subsidies on agricultural products. A Member’s
109 See, e.g., DSB Minutes, July 24, 2007, supra note 57, at 6-8.
110 The mandate appears in the Science, State, Justice, Commerce and Related Agencies
Appropriations Act, 2006, P.L. 109-108, 119 Stat. 2306-07, marking the third time that such
a requirement appeared in statute. The appropriation was extended for FY2007 with the
same provisos. See Revised Continuing Appropriations Resolution, 2007, P.L. 110-5.
The President’s signing statement on P.L. 109-108 appeared to indicate that the
Executive Branch would treat the provision, inasmuch as it affected the Commerce
Department, as “advisory” on the ground that it interfered with the President’s foreign
affairs authority. The statement provides in pertinent part:
The executive branch shall construe as advisory the provisions of the Act that
purport to direct or burden the Executive’s conduct of foreign relations,
including the authority to ... negotiate international agreements on behalf of the
United States.... These provisions include... language under the headings
[Department of Commerce] “International Trade Administration, Operations and
111 See Communication from the United States, Three Issues Identified for Discussion by
the Negotiating Group on Rules, at 2, TN/RL/W/153 (April 26, 2004), and Draft Rules Text,
supra note 85.
112 Request for Consultations by Brazil, United States — Subsidies on Upland Cotton,
WT/DS267/1 (October 3, 2002).
113 Request for the Establishment of a Panel by Brazil, United States — Subsidies on Upland
Cotton, WT/DS267/7 (February 7, 2003).
commitments are listed in a Schedule that is attached to the Agreement.114 The
Agreement as a whole applies to products listed in Annex I of the Agreement.
Article 6 of the Agriculture Agreement sets out obligations regarding Members’
domestic support reduction commitments, with Annex 2 of the Agreement setting out
criteria for domestic measures that are not subject to such commitments. The
commitments are expressed in terms of Total Agreement Measurement of Support
(AMS) and Annual and Final Bound Commitment Levels. A Member will be
considered to be in compliance with its domestic support reduction commitments in
any year in which its domestic support for agricultural producers expressed in terms
of Current Total AMS does not exceed the corresponding annual or final bound
commitment level specified in its Schedule. Members agree in Article 3.2 of the
Agreement not to provide support in favor of domestic producers in excess of the
these specified commitment levels.
Article 9.1 expressly lists export subsidies that are subject to reduction
commitments under the Agreement. Members agree in Article 3.3 not to provide
Article 9.1 subsidies regarding agricultural products or groups of products specified
in the Member’s Schedule (“scheduled products”) in excess of the budgetary outlay
and quantity commitments specified in the Schedule.115 Moreover, a Member may
not provide Article 9.1 export subsidies with respect to any agricultural product that
is not specified in the Schedule (“unscheduled products”).116 In addition, Article 10.1
of the Agreement provides, in pertinent part, that export subsidies that are not listed
in Article 9.1 “shall not be applied in a manner which results in, or which threatens
to lead to, circumvention of export subsidy commitments....”
Agricultural subsidies may be challenged under the SCM Agreement, which
prohibits export subsidies and subsidies contingent on the use of domestic over
imported products (“import substitution” subsidies) (Art. 3) and makes any subsidy
“actionable” if it is alleged to cause certain types of trade injury to the Member’s
interests, including what the Agreement deems “serious prejudice” (Art. 5).117 The
United States argued in the case that certain of its agricultural programs were covered
by the now-expired Article 13 of the WTO Agreement on Agriculture — the so-
called Peace Clause — which provided that certain domestic support measures and
export subsidies that conformed fully with specified Agreement requirements were
“exempt from actions” under specified subsidy-related provisions in the GATT 1994
and the SCM Agreement through the end of 2003.
In a panel report issued September 8, 2004, the panel found that the United
States was maintaining prohibited export and import substitution subsidies as well
114 Agreement on Agriculture, Art. 3.1.
115 Agreement on Agriculture, Art. 3.3.
117 Agreement on Subsidies and Countervailing Measures (SCM Agreement), at
as actionable subsidies that caused serious prejudice to the interests of Brazil.118
First, the panel found that three U.S. export credit guarantee programs — as they
applied to exports of upland cotton and other unscheduled agricultural commodities
supported under the programs, and to exports of rice (a scheduled commodity) — are
export subsidies applied in a manner that illegally circumvents U.S. export subsidy
commitments in the Agriculture Agreement.119 The three programs are the
Commodity Credit Corporation (CCC) Export Credit Guarantee Program (GSM
102), providing export credit guarantees for up to three years; the CCC Intermediate
Export Credit Guarantee Program (GSM 103), providing export credit guarantees for
up to 10 years; and the Supplier Credit Guarantee Program (SCGP). As these
programs did not conform fully to export subsidy obligations in the SCM Agreement,
they were found not to be covered by the Peace Clause and thus subject to
challenge.120 The panel went on to find that these programs are prohibited export
subsidies under Article 3.1(a) of the SCM Agreement.121
Second, the panel found that § 1207(a) of the Farm Security and Rural
Investment Act of 2002, 7 U.S.C. § 7937(a), or the so-called Step 2 program, to the
extent that it provides for payments to exporters for their purchase of higher priced
upland cotton, constitutes an export subsidy for that product that was not scheduled
by the United States, and therefore inconsistent with U.S. obligations under the
Agreement on Agriculture.122 As such, this part of the Step 2 program was also
found not to be covered by the Peace Clause, to be subject to challenge, and, as
further found by the panel, to constitute a prohibited export subsidy under the Article
insofar as it provides for payments to domestic users of upland cotton, constitutes an
import substitution subsidy prohibited under Article 3.1(b) of the SCM Agreement.124
Third, the panel found that various U.S. domestic support programs, including
counter-cyclical payments, market loss assistance payments, market loan program
payments, and Step 2 payments for U.S. cotton producers, granted support to a
“specific commodity in excess of that decided during the 1992 marketing year” and
thus were not covered by a provision of the Peace Clause that could be invoked only
118 Panel Report, United States — Subsidies on Upland Cotton, WT/DS267/R (September
8, 2004)[hereinafter Cotton Panel Report]. For further information on the agricultural
programs at issue and the bases for the panel and Appellate Body findings, see CRS Report
RL32571, Brazil's WTO Case Against the U.S. Cotton Program, by Randy Schnepf. See
also Eliza Patterson, The WTO Decision on U.S. Cotton Subsidies, ASIL Insight (March
119 Cotton Panel Report, supra note 118, at paras. 7.787-7.948, 8.1(d)(i).
120 Id. at paras. 7.943-7.944, 8.1(d)(i).
121 Id. at paras. 7.946-7.948, 8.1(d)(i).
122 Id. at paras. 7.692-7.749, 8.1(e)(i).
123 Id. at paras. 7.751-7.761, 8.1(e)(ii)-(iii).
124 Id. at paras. 7.1030-7.1098, 8.1(f).
if such support was not being provided.125 The panel then found that the four above-
cited programs — characterized as mandatory price-contingent subsidies — caused
serious prejudice to Brazil’s interests for purposes of Article 5(c) of the SCM
Agreement, in the form of significant price suppression in the world upland cotton
market.126 Among other things, the panel also found that an agricultural program
could be challenged in the WTO even though it had expired so long as the program
was in force during the nine-year Agreement implementation period beginning in
1995 and continued to have an adverse effect on the complaining Member,127 a
finding that allowed Brazil to challenge flexibility contract payments (FCP) and
market loss assistance payments, the legislative basis of which had expired in 2002.
Brazil was unable, however, to show serious prejudice from the FCP program.
The panel recommended that the prohibited subsidies be removed “without
delay” and specified that this be done at the latest within six months of the date of
adoption of the panel report or July 1, 2005, whichever was earlier.128 The panel
cited Article 4.7 of the SCM Agreement, which requires that where an export subsidy
is found, the panel recommend expeditious removal and specify a time period for
such action. The panel also recommended that the adverse effects of the actionable
subsidies, or alternatively, the subsidies themselves, be removed, as provided in
Article 7.8 of the SCM Agreement.129 The United States appealed, and the Appellate
Body, in a March 5, 2005, report, largely upheld the panel.130 The reports were
adopted at the DSB meeting of March 21, 2005.131
Along with the deadline for removal of the prohibited subsidies, the finding of
serious prejudice implicated a deadline for actionable subsidies provided for in
Article 7.9 of the SCM Agreement. This provision accords a prevailing Member the
right to request authorization to retaliate with regard to an actionable subsidy in the
event the defending Member “has not taken appropriate steps to remove the adverse
effects of the subsidy or withdraw the subsidy within six months” after the date the
panel or Appellate Body report is adopted, or, in this case September 21, 2005,
provided there is no agreement between the disputing parties on compensation.132
125 Id. at paras. 7.415-7.608, 8.1(c).
126 Id. at paras. 7.1109-7.1416, 8.1(g)(i).
127 Id. at paras. 7.528-7.530.
128 Id. at para. 8.3(b)-(c). Article 4.7 of the SCM Agreement provides that, in the event a
panel finds that a prohibited subsidy exists, the panel “shall recommend that the subsidizing
Member withdraw its measure without delay” and “shall specify in its recommendation the
time-period within which the measure must be withdrawn.”
129 Id. at para. 8.3(d).
130 Appellate Body Report, United States — Subsidies on Upland Cotton, WT/DS267/AB/R
(March 3, 2005).
131 Dispute Settlement Body, Minutes of Meeting, March 21, 2005, at 7-13, WT/DSB/M/186
(April 14, 2005).
132 Article 7.9 further provides that the DSB “shall grant authorization to the complaining
Member to take countermeasures, commensurate with the degree and nature of the adverse
The United States told the Dispute Settlement Body on April 20, 2005, that it
would implement the WTO rulings, but that it would need a reasonable period to
comply and that it had begun to consider its options for doing so.133 Brazil
complained that the U.S. statement was not sufficiently detailed and made reference
to the panel’s recommended compliance date.134 The EC noted that because the
subsidies at issue were found to infringe both the SCM Agreement and the
Agreement on Agriculture, the United States was entitled to a reasonable period to
comply with the latter.135
In response to the WTO finding that fees charged by the Commodity Credit
Corporation (CCC) guarantee programs be risk-based, the United States Department
of Agriculture (USDA) announced that as of July 1, 2005, CCC would use a risk-
based fee structure for both the GSM-102 and SCGP program, and that CCC would
no longer accept applications for payment guarantees under the GSM-103 program.136
In addition, USDA announced that to further comply with the WTO decision, it was
sending proposed statutory changes to Congress to eliminate the Step 2 cotton
program, to remove a 1% cap on fees that can be charged under the export credit
programs, and to terminate the GSM-103 program.137 According to USDA, repealing
the Step 2 program “would remove both the export subsidies and import substitution
subsidies that the WTO cited and address issues related to suppression of cotton
prices in world markets.”138
Because prohibited export subsidies had not been removed by July 1, 2005,
Brazil requested that the DSB meet on July 15 to consider its request for
authorization to impose countermeasures against the United States. Brazil proposed
to suspend tariff concessions as well as obligations under the WTO Agreement on
Trade-Related Intellectual Property Rights (TRIPS) and the General Agreement on
Trade in Services (GATS) until the United States withdrew the exports subsidies
identified by the WTO, in an amount corresponding to (1) the Step 2 payments made
in the most recent concluded marketing year and (2) the total of exporter applications
received under the GSM-102, GSM-103 and SGCP programs, for all unscheduled
affects determined to exist,” subject to the reverse consensus rule. Article 7.10 of the SCM
Agreement provides that if arbitration is requested, the arbitrator is to determine “whether
the countermeasures are commensurate with the degree and nature of the adverse effects
determined to exist.”
133 Dispute Settlement Body, Minutes of Meeting, April 20, 2005, at 7, WT/DSB/M/188
(May 18, 2005)[hereinafter DSB Minutes (April 20, 2005)].
134 Id. at 8.
commodities and for rice, for the most recent concluded fiscal year.139 Brazil
estimated the annual total for both to be $3 billion.140
On July 5, 2005, Brazil and the United States notified the DSB that they had
entered into a procedural agreement which, along with specifying steps that could or
could not be taken by the disputing parties in the implementation phase of the
dispute, recognized the changes to the CCC programs announced June 30, 2005, and
the legislative proposal that had been sent to Congress to repeal the Step 2
program.141 Pursuant to the agreement, the United States requested arbitration of
Brazil’s retaliation proposal; the DSB referred the matter to arbitration at the July 15
meeting of the DSB;142 and the two countries, on August 17, 2005, requested that the
arbitration be suspended.143 The agreement also provides that Brazil may request an
Article 21.5 compliance panel at any time after the July 15 meeting.
Further, because the United States had not complied with its WTO obligations
regarding the actionable subsidies by September 21, 2005, Brazil on October 6
proposed to suspend tariff concessions as well as obligations under the Agreement
on TRIPS and the GATS in the annual amount of $1.037 billion until the United
States withdrew the four domestic subsidies enumerated above or removed their
139 Recourse to Article 4.10 of the SCM Agreement and Article 22.2 of the DSU by Brazil,
United States — Subsidies on Upland Cotton, WT/DS267/21 (July 5, 2005).
140 Brazil stated that this amount represented “Step 2 payments estimated for marketing year
2004-2005 and total amount of applications received for export credit guarantees under
GSM 102, GSM 103, and SGCP during fiscal year 2004.” Id. at 2, note 1.
141 Understanding between Brazil and the United States Regarding Procedures under Articles
21 and 22 of the DSU and Article 4 of the SCM Agreement, United States — Subsidies on
Upland Cotton, WT/DS267/22 (July 8, 2005). It was agreed, among other things, that Brazil
would make its retaliation request at the July 15 DSB meeting; the United States would
object to the retaliation request (thus sending it to arbitration); the two would request shortly
thereafter that the arbitration be suspended; Brazil would be entitled to request an Article
21.5 compliance panel, which either party could appeal; were the United States found to be
out of compliance, Brazil could request that the arbitration of its retaliation request be
resumed; if the United States were found to be in compliance, Brazil would withdraw its
retaliation request; and a mutually agreed solution, if reached, would be notified to the DSB,
whereupon Brazil would withdraws its retaliation request, an action that would terminate
142 Dispute Settlement Body, Minutes of Meeting, July 15, 2005, WT/DSB/M/193 (July 28,
143 See Communication from the Arbitrator, Recourse by the United States to Article 22.6
of the DSU and Article 4.11 of the SCM Agreement, United States — Subsidies on Upland
Cotton, WT/DS267/25 (August 18, 2005). Regarding possible future action by Brazil, see
With U.S. Inaction on Parts of WTO Ruling Brazil May Restart Cotton Subsidy Dispute,
Daily Rep. for Executives (BNA) No. 13, at A-1 (January 20, 2006); Brazil Threatens to
Renew WTO Arbitration Proceeding on Cotton, Inside U.S. Trade, January 20, 2006, at 1.
adverse effects.144 The United States objected to the proposal on October 17,145 and
the matter was referred to arbitration at the DSB meeting held the following day.146
On November 21, 2005, the parties requested that the arbitration be suspended,
“noting that the United States reaffirmed” at the November 18 DSB meeting “its
commitment to implement the recommendations and rulings of the DSB in this
disputes, and in light of the preference for WTO-consistent solutions mutually
acceptable to the parties to a dispute set out in DSU Article 3.7.”147 The parties also
agreed that if either desired to resume the arbitration, that party would inform the
other 30 days before making such a request.148
Recent Developments. The Step 2 program faulted by the Appellate Body149
was repealed effective August 1, 2006. Brazil requested a compliance panel later
that month, claiming WTO violations stemming from the U.S. failure to repeal the
Step 2 program as of the implementation period (i.e., September 21, 2005), the
continued existence of the marketing loan and counter-cyclical payments programs,
and continued WTO-related defects in the export credit guarantee programs at issue
in the case.150 The panel publicly issued a final ruling adverse to the United States
144 Recourse to Article 7.9 of the SCM Agreement and Article 22.2 of the DSU by Brazil,
United States — Subsidies on Upland Cotton, WT/DS267/26 (October 7, 2005).
145 Request by the United States for Arbitration under Article 22.6 of the DSU and Article
7.10 of the SCM Agreement, United States — Subsidies on Upland Cotton, WT/DS267/27
(October 18, 2005).
146 See Note by the Secretariat, Constitution of the Arbitrator, Recourse by the United States
to Article 22.6 of the DSU and Article 7.10 of the SCM Agreement, United States —
Subsidies on Upland Cotton, WT/DS267/29 (December 7, 2005).
147 See Communication from the Arbitrator, Recourse by the United States to Article 22.6
of the DSU and Article 7.10 of the SCM Agreement, United States — Subsidies on Upland
Cotton, WT/DS267/29 (December 7, 2005).
148 See Senate Agriculture Narrowly Approves $3 Billion in Cuts to Agriculture Spending,
Daily Rep. for Executives (BNA) No. 202, at A-23 (October 20, 2005); House Agriculture
Committee Approves $3.7 Billion in Cuts for Reconciliation Plan, Daily Rep. for Executives
(BNA) No. 209, at A-12 (October 31, 2005).
149 See § 1103 of P.L. 109-171, the Deficit Reduction Act of 2005, signed by the President
on February 8, 2006. For further information on U.S. actions taken in response to the WTO
decision, see CRS Report RS22187, Brazil's WTO Case Against the Cotton Program: A
Brief Overview, by Randy Schnepf.
150 Request for the Establishment of a Panel, Recourse to Article 21.5 of the DSU by Brazil,
United States — Subsidies on Upland Cotton, WT/DS267/30 (August 21, 2006).
In its panel request, Brazil states that entry into effect of the repeal of the Step 2
program after the compliance deadline resulted in the lack of a U.S. compliance measure in
the interim and cites the failure of the United States to take any compliance measures
involving the U.S. marketing loan and counter-cyclical payments programs under the Farm
Security and Rural Investment Act of 2002. Brazil claims that as a result the United States
has not removed the adverse effects of or withdrawn the subsidies as required by the WTO
decision. The continued existence of the programs, Brazil alleges, has caused two adverse
effects — significant price suppression in the world market for upland cotton and an
increase in the U.S. share in the world market for upland cotton in marketing year 2005 —
on December 18, 2007.151 Either party may appeal the final panel report on issues of
law and legal interpretation within 60 days after this date.
Measures Affecting Cross-Border Supply of Gambling and Betting
Services (DS285). In a March 21, 2003, complaint, Antigua and Barbuda
(Antigua) requested consultations with the United States regarding federal, state, and
local laws affecting the remote supply of gambling and betting services, alleging that
the overall effect of these laws was to prevent the supply of gambling and betting
services from the territory of one WTO Member into the United States in violation
of U.S. market access commitments in Article XVI of the General Agreement on
Trade in Services (GATS).152 Article XVI(a) of the GATS prohibits a WTO
Member, in sectors where it undertakes market access commitments, from
maintaining or adopting, unless specified in its Schedule, “limitations on the number
of service suppliers whether in the form of numerical quotas, monopolies, exclusive
service suppliers or the requirements of an economic needs test.” Article XVI(c)
prohibits a Member, in any such sectors, from maintaining or adopting, unless
specified in its Schedule, “limitations on the total number of service operations or on
the total quantity of service output expressed in terms of designated numerical units
in the form of quotas or the requirement of an economic needs test.”
While the United States did not expressly identify gambling and betting services
in its Schedule of Specific Commitments to the GATS, the WTO panel, in its
November 2004 report, interpreted the services sub-sector titled “Other Recreational
Services (except sporting)” as including gambling and betting services, and
concluded that the United States, by not placing any limitations on the supply of such
services from the territory of one WTO Member into the United States, had made
each of which constitute “serious prejudice” for purposes of Article 6.3 of the SCM
Agreement. Brazil further argues that even with the repeal of the Step 2 program the
adverse effects resulting from the existence of the other two programs continue.
Regarding the export credit guarantee (ECG) programs, Brazil claims that the United
States has not fully withdrawn the prohibited subsidies related to these programs as called
for by the WTO decision and as a result maintains prohibited export subsidies in violation
of the Agreement on Agriculture and the SCM Agreement. Brazil argues the GSM102 and
Supplier Credit Guarantee programs fulfil the definition of an export subsidy for purposes
of the SCM Agreement, and moreover fail to impose premium rates sufficient to cover the
long-term operating costs of the programs for purposes of the Illustrative List of Export
Subsidies contained in the SCM Agreement. Brazil also argues that the ECGs under the
programs have been applied to circumvent U.S. export subsidy commitments for purposes
of Article 10 of the Agreement on Agriculture, citing concerns that ECGs have been
provided after July 1, 2005, the deadline for removing the prohibited export subsidies, to
support the export of upland cotton and other agricultural products in excess of U.S.
reduction commitments levels for those products.
151 Report of the Panel, Recourse to Article 21.5 of the DSU by Brazil, United States —
Subsidies on Upland Cotton, WT/DS267/RW (December 18, 2007).
152 Request for Consultations by Antigua and Barbuda, United States — Measures Affecting
the Cross-Border Supply of Gambling and Betting Services, WT/DS285/1 (March 27, 2003).
market access commitments in the area.153 The panel then found that three federal
statutes and provisions of four state laws conflicted with these obligations. The
federal statutes were the Wire Act, the Travel Act, and the Illegal Gambling Business
Act (IGBA);154 the state laws were those of Louisiana, Massachusetts, South Dakota,
and Utah. The panel found that by preventing one, several, or all means of delivering
gambling and betting services, the statutes constituted impermissible market access
limitations on the number of service suppliers for purposes of Article XVI:2(a) of the
GATS or, alternatively, on the total number of total number or service operations or
total quantity of service output for purposes of Article XVI:2(c).
The panel further found that, with regard to the federal laws, the United States
could not successfully invoke exceptions in GATS Article XIV for “measures
necessary to protect public morals or to maintain public order” (Article XIV(a)) or
for “measures necessary to secure compliance with” GATS-consistent laws and
regulations (Article XIV(c)) because the United States had not shown that the
measures were “necessary” to achieve the stated end or that they were consistent with
the Article XIV proviso, which requires that measures justified under the exception
not be applied “in a manner which would constitute a means of arbitrary or
unjustifiable discrimination between countries where like conditions prevail.” Under
WTO jurisprudence, discrimination may occur not only between the different
exporting Members but also between an exporting Member and the importing
Member and thus in this case between foreign and domestic providers of Internet
On appeal, the WTO Appellate Body, using a different mode of analysis than
the panel, nonetheless determined that the United States had made sectoral
commitments regarding gambling and betting services.156 Though the AB upheld the
153 Panel Report, United States — Measures Affecting the Cross-Border Supply of Gambling
and Betting Services, WT/DS285/R (November 10, 2004) [hereinafter Gambling Panel
Each Party to the General Agreement on Trade in Services (GATS) submits a Schedule
of Specific Commitments to the Agreement, in which it inscribes the service sectors for
which it is making commitments and lists any terms, limitations, and conditions on the
supply of services in these sectors for each of four modes of service supply, including
supply from the territory of one Member into the territory of any other Member, which is
the mode of supply at issue in this case. GATS obligations regarding market access (Article
XVI) and national treatment (Article XVII) are applicable only with respect to scheduled
commitments, subject to the terms, limitations and conditions outlined in the Member’s
Schedule. Other GATS obligations apply to all services-related measures maintained by a
154 The Wire Act, P.L. 87-216, § 2, as amended, 18 U.S.C. § 1084, prohibits the transmission
of wagering information. The Travel Act, P.L. 87-228, § 1(a), as amended, 18 U.S.C. §
1952, prohibits interstate and foreign travel or transportation in aid of certain unlawful
activities, including business enterprises involving gambling in violation of U.S. or state
law. The Interstate Gambling Business Act, P.L. 91-452, § 803(a), as amended, 18 U.S.C.
§ 1955, prohibits illegal gambling businesses, as defined in the statute.
155 See Gambling Panel Report, supra note 153, at para. 6.578.
156 Appellate Body Report, United States — Measures Affecting the Cross-Border Supply
panel’s finding of a violation of GATS market access obligations,157 it reversed the
panel on its finding that the United States could not justify the federal measures
under GATS exceptions.158 The AB also reversed the panel’s finding that four state
laws were inconsistent with the GATS, finding that because Antigua had not made
a prima facie case that eight state measures violated the Agreement, the panel had
improperly examined their GATS-consistency.159
With respect to the GATS exceptions, the AB found that the panel had
erroneously concluded that the three federal statutes could not be considered
“necessary” for purposes of Articles XIV(a) and XIV(c) because the United States
had not entered into consultations with Antigua to find a less trade-restrictive
alternative. The AB ultimately found that statutes were “necessary to protect public
morals or to protect public order” for purposes of Article XVI(a) and that they thus
fell within the scope of this exception.160 At the same time, the AB also found that,
in light of a provision in the Interstate Horseracing Act (IHA) that might facially
continue to allow the remote supply of wagering on horseracing by domestic firms,
the United States had not shown that the Wire Act, the Travel Act, and the IGBA
were being applied consistently with the Article XVI proviso, that is, that they may
possibly be used to prosecute foreign, but not domestic, providers of remote
horserace gambling services.161
Antigua had based its argument that the United States was applying the three
statutes inconsistently with the Article XIV proviso on two aspects of the IHA, a
statute allowing the acceptance of interstate off-track wagers provided certain
conditions are met, making violators civilly liable for damages to named entities,
including the state in which the subject horserace takes place, and authorizing certain
civil suits against violators.162 First, Antigua cited § 5 of the act, which it
characterized as expressly allowing an interstate off-track wager to be accepted by
of Gambling and Betting Services, paras. 158-213,373(B),WT/DS285/AB/R (April 7,
157 Id. at paras. 214-265, 373(C)(i)-(ii). Inter alia, the AB stated that “limitations amounting
to a zero quota are quantitative limitations and fall within the scope of Article XVI:2(a)” and
that prohibitions on service supply “amount to a ‘zero quota’ on service operations or output
with respect to such services ... [and a]s such fall within the scope of Article XVI:2(c).” Id.
at paras. 238, 251.
158 Id. at paras. 300-327, 335-336, 373(D)(iii)(b),(iv)(a).
159 Id. at paras. 133-155, 373(A)(iii),(C)(iii).
160 Because it had found that the U.S. statutes were “necessary” for purposes of XVI(a), the
AB did not address whether the statutes fulfilled the “necessity” test of Article XIV(c). Id.
at paras. 337, 373(D)(iv)(b).
161 Id. at paras. 338-372, 373(v),(vi).
162 Interstate Horseracing Act of 1978 (IHA), P.L. 95-515, 15 U.S.C §§ 3001-3006. See
Gambling AB Report, supra note 156, at para. 361.
an off-track betting system, where consent is obtained from certain organizations.163
Second, it cited the statutory definition of “interstate off-state wager,” which, in
pertinent part, includes pari-mutuel wagers “placed or transmitted by an individual
in one State via telephone or other electronic media and accepted by an off-track
betting system in the same or another State,” provided the wagers are lawful in the
States involved.164 In the words of the AB, Antigua thus argued that:
the IHA, on its face, authorizes domestic service suppliers, but not foreign
service suppliers, to offer remote betting services in relation to certain horse
races. To this extent, in Antigua’s view, the IGHA “exempts” domestic service165
suppliers from the prohibitions of the Wire Act, the Travel Act, and the IGBA.
As further described by the AB, “[t]he Panel found that the evidence provided by the
United States was not sufficiently persuasive to conclude that, as regards wagering
on horseracing, the remote supply of such services by domestic firms continues to be166
prohibited notwithstanding the plain language of the IHA.” The AB concluded that
the panel did not err in making this finding.
The Appellate Body report and the panel report, as modified by the AB, were167
adopted April 20, 2005. The United States reported at the May 19, 2005, meeting
of the DSB that it intended to implement the rulings and had begun to consider168
options for doing so, but that it would need a reasonable period to comply.
After the disputing parties had failed to agree on a reasonable period of time for
compliance, Antigua requested that the compliance period be arbitrated.169 In its
submission to the Arbitrator, the United States stated that compliance would be
achieved “by further clarifying the relationship between the IHA and preexisting
federal criminal laws” and that “U.S. authorities intend to seek further clarification
163 Section 4 of the IHA, 15 U.S.C. § 3003, prohibits a person from accepting an “interstate
off-track wager” except as provided in the act. Section 5(a) of the IHA, 15 U.S.C. §
3004(a), states that “[a]n interstate off-track wager may be accepted by an off-track betting
system only if consent is obtained from — (1) the host racing association ...; (2) the host
racing commission; (3) the off-track racing commission.”
164 IHA, § 3(3), 15 U.S.C § 3002(3).
165 Gambling AB Report, supra note 156, at para. 361 (footnotes omitted)(emphasis in
166 Id. at para. 364 (emphasis in original).
167 DSB Minutes (April 20, 2005), supra note 133, at 15.
168 Dispute Settlement Body, Minutes of Meeting, May 19, 2005, at 9, WT/DSB/M/189 (June
169 Request from Antigua and Barbuda for Arbitration under Article 21.3(c) of the DSU,
United States — Measures Affecting the Cross-Border Supply of Gambling and Betting
Services, WT/DS285/11 (June 9, 2005).
170 Submission of the United States, Arbitration under Article 21.3 of the DSU, United States
— Measures Affecting the Cross-Border Supply of Gambling and Betting Services,
The United States sought a 15-month compliance period, stressing that such
legislative action would be “technically complex.”171 In an award made public
August 19, 2005, the Arbitrator determined that the compliance period would last 11
months and two weeks from the date of adoption of the panel and AB reports, thus
expiring April 3, 2006.172
Legislative action was not taken before the deadline; instead, the United States
stated in a status report to the DSB that it had complied in the case based on the
WT/DS285, July 12, 2005, at 4, at [http://www.ustr.gov/assets/Document_Library/Reports_
Publications/2007/2007_T rade_Policy_ Agenda/asset_upload_file639_10625.pdf?ht=].
171 The United States argued as follows regarding the complexity of the foreseen legislative
... It requires consideration of the relationship between the IHA and three
different federal criminal statutes — the Wire Act, the Travel Act, and the Illegal
Gambling Business statute The Appellate Body has made no finding as to
whether the activity that is prohibited by these statutes is permitted under the
IHA. Instead the Appellate Body has emphasized the need to “demonstrate that
— in the light of the existence of the Interstate Horseracing Act — the Wire Act,
the Travel Act, and the Illegal Gambling Business Act are applied consistently
with the requirements of the [Article XIV] chapeau.” Accordingly a reasonable
legislative option would have the effect of clarifying that relevant U.S. federal
laws entail no discrimination between foreign and domestic service suppliers in
the application of measures prohibiting remote supply of gambling and betting
... There will be ample room for reasonable and principled disagreements among
legislators as to precisely how to achieve such a clarification in the context of
... A legislative clarification will be further complicated by the fact that , startingth
in the 105 Congress (1997-98), and continuing in each subsequent Congressth
through the 108 Congress (2003-04), U.S. federal lawmakers have considered
a wide range of proposals to address Internet gambling. Members of Congress
are actively considering introduction of Internet gambling bills in the currentth
109 Congress (2005-2006), and will undoubtedly find it necessary to consider
the need for compliance with the DSB’s recommendations and rulings in the
context of this continuing debate, and the variety of broader proposals already
supported by different groups of legislators. The issue of how to achieve
compliance with the DSB’s recommendations and rulings is thus further
complicated by its potential to affect, and be affected by, elements of an already
complex legislative debate that has gone unresolved over the past four
Id. at 5-7.
172 Award of the Arbitrator, Arbitration under Article 21.3 of the Understanding on Rules
and Procedures Governing the Settlement of Dispute, United States — Measures Affecting
the Cross-Border Supply of Gambling and Betting Services, WT/DS285/13 (August 19,
position of the Department of Justice (DOJ) regarding remote gambling on horse
racing, articulated as follows in April 5 DOJ testimony before a House committee:
The Department of Justice views the existing criminal statutes as prohibiting the
interstate transmission of bets or wagers, including wagers on horse races. The
Department is currently undertaking a civil investigation relating to a potential
violation of law regarding this activity. We have previously stated that we do not
believe that the Interstate Horse Racing Act, 15 U.S.C. §§ 3001-3007, amended173
the existing criminal statutes.
Antigua disagreed that the United States was in compliance, and in May 2006, the
parties entered into a procedural agreement regarding the possible seeking by Antigua174
of a compliance panel and countermeasures in the case.
Antigua requested a compliance panel in July 2006, claiming that the United
States had failed to bring the Wire Act, the Travel Act and the Illegal Gaming
Business Act into conformity with U.S. GATS obligations and that then-pending
legislation — H.R. 4777 and H.R. 4411 — was “expressly contrary “to the WTO
ruling in that each bill “would further institutionalise the discriminatory effect” of the
three cited statutes. It also questioned whether the DOJ statement was a “measure”
or a “measure taken to comply” for purposes of the DSU, noting that the same
position had been maintained by the United States during the course of the dispute
and was subsequently rejected by the panel and Appellate Body. Antigua further
argued that regardless of the nature of the DOJ statement for purposes of the DSU,
the United States remained out of compliance with the GATS because of, inter alia,
the existence of reasonable technical alternatives to prohibitions on remote gambling
and betting services and governmental enforcement problems regarding domestic
173 Status Report by the United States, Addendum, United States — Measures Affecting the
Cross-Border Supply of Gambling and Betting Services, WT/DS285/15/Add.1 (April 11,
2006). See Statement of Testimony of Bruce G. Ohr, Chief, Organized Crime and
Racketeering Section, Criminal Division, U.S. Department of Justice, Before the Committee
of the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, U.S. House
of Representatives, Concerning H.R. 4777, the “Internet Gambling Prohibition Act,”
presented on April 5, 2006, at 2, at [http://judiciary.house.gov/media/pdfs/ohr040506.pdf].
174 Agreement between Antigua and Barbuda and the United States Regarding Procedures
under Articles 21 and 22 of the DSU, United States — Measures Affecting the Cross-Border
Supply of Gambling and Betting Services, WT/DS285/16 (May 26, 2006)[hereinafter
Antigua — United States Procedural Agreement]. Note also Dispute Settlement Body,
Minutes of Meeting, April 21, 2006, at 8-10, WT/DSB/M/210 (May 30, 2006).
and cross-border service providers.175 The compliance panel was established July 19,
Recent Developments. On March 30, 2007, the compliance panel issued
a report adverse to the United States, finding that the United States had not taken any
measures to comply in the case and thus left the statutory ambiguity cited by the
panel unresolved.176 The panel noted that legislation was not the only means of
compliance in the proceeding and that “other forms of administrative action, or
judicial action, [could be used] to bring the measures into conformity.”177 The United
States did not appeal the report, which was adopted by the DSB on May 22, 2007.
Earlier in the month, the Office of the USTR announced that the United States
intended to invoke Article XXI of the GATS “in order to clarify its commitment
involving ‘recreational services,’” in order to bring the United States into compliance178
in the dispute and to resolve the dispute permanently. With Antigua’s subsequent
175 Request for the Establishment of a Panel, Recourse to Article 21.5 of the DSU by
Antigua and Barbuda, United States — Measures Affecting the Cross-Border Supply of
Gambling and Betting Services, WT/DS285/18 (July 7, 2006). Antigua also made separate
arguments regarding the inconsistency of the then-pending bills with U.S. GATS
obligations, faulting in particular their exclusions for transactions made in accordance with
the Interstate Horseracing Act (IHA), intrastate transactions, and remote gambling
conducted by Native American tribes in accordance with existing federal laws applicable
to Native American gaming.
In October 2006, the President signed into law the SAFE Port Act, which contains an
Internet gambling title that generally following the House-reported language of H.R. 4411.
Unlawful Internet Gambling Enforcement Act (UIGEA), P.L. 109-347, Title VIII. The
statute prohibits gambling business from accepting checks, credit cards, electronic transfers
and similar forms of payment in connection with illegal Internet gambling, while exempting
intrastate and intratribal Internet gambling operations that include age and location
verification requirements imposed as a matter of law. The legislation also leaves unresolved
questions as to the extent to which the Interstate Horseracing Act restrains the reach of other
federal statutes. For further information, see CRS Report RS22749, Unlawful Internet
Gambling Enforcement Act and Regulations Proposed for Its Implementation, by Charles
Doyle; CRS Report RS21984, Internet Gambling: An Abridged Overview of Federal
Criminal Law, by Charles Doyle.
176 Panel Report, Recourse to Article 21.5 of the DSU by Antigua and Barbuda, United
States — Measures Affecting the Cross-Border Supply of Gambling and Betting Services,
WT/DS285/RW (March 30, 2007)[hereinafter Gambling Compliance Report]. Among other
things, the panel concluded that enactment of the UIGEA, see supra note 175, did not
resolve any of the issues involved in the dispute, citing the statute’s express exclusion of
activities allowed under the Interstate Horseracing Act and its “sense of Congress” statement
that UIGEA “is not intended to resolve any existing disagreements over how to interpret the
relationship between the IHA and other Federal statutes.” Gambling Compliance Report,
supra, at paras. 6.130-6.135.
177 Id. at para. 6.90
178 Press Release, Office of the U.S. Trade Representative, Statement of Deputy United
States Trade Representative John K. Veroneau Regarding U.S. Actions under GATS Article
XXI (May 4, 2007), at [http://www.ustr.gov/Document_Library/Press_Releases/2007/May/
S t a t e me n t _ o f _ D e p u t y_United_States_T r ade_Representative_J ohn_K _V eroneau_R e ga r d
ing_US_Actions_under_GATS_Article_XXI.html] (hereinafter USTR Press Release, May
pursuit of retaliation in the underlying WTO dispute, the United States is currently
engaged in two WTO proceedings, one involving negotiations with various WTO
Members regarding modification of its GATS Schedule under Article XXI and the
other involving arbitration of Antigua’s request to impose countermeasures.
GATS Article XXI Negotiations. Article XXI allows a WTO Member to modify
or withdraw any commitment in its GATS Schedule and also permits a WTO
Member whose GATS benefits may be affected by the proposed modification or
withdrawal to negotiate a compensation agreement with the Member making the
change.179 Any such agreement “should maintain a general level of mutually
advantageous commitments not less favourable to trade than that provided for in
Schedules of Specific Commitments prior to such negotiations.” In its May
announcement, USTR stated that in negotiating the GATS, the United States “did not
make it clear” that its international commitments to open its market to recreational
services did not extend to gambling and that since “no WTO Member either
bargained for or reasonably could have expected the United States to undertake a
commitment on gambling, there would be very little, if any basis for ...
Antigua, Australia, Canada, Costa Rica, EC, India, Japan, and Macao requested
consultations with the United States regarding Article XXI compensation.181 As
provided in GATS procedural rules, negotiations on compensation were originally
envisioned to have been completed within three months, i.e. toward the end of
September 2007, but were later extended twice by mutual agreement, most recently
to December 14, 2007.182 On December 17, the United States and the EC announced
4, 2007); Press Release, U.S. Mission to the United Nations in Geneva , Statements by the
United States at the WTO Dispute Settlement Body Meeting, Geneva, May 22, 2007, at
[http://www.us-mission.ch/ Press2007/0522DSB.html ].
179 Compensatory adjustments under Article XXI are to be made on an MFN basis. Further,
in the absence of an agreement between the parties before “the period provided for
negotiations,” the affected Member may refer the issue to arbitration. Any Member wishing
to enforce its right to compensation must participate in the arbitration. The modifying
Member may not change modify or withdraw its GATS commitment until it has provided
compensation in accordance with the arbitral findings. If the modifying Member
implements its change without complying with these findings, any affected Member
participating in the arbitration “may modify or withdraw substantially equivalent benefits
in conformity with the those findings.” Any such change by the affected Member may be
implemented so as to apply only to the modifying Member notwithstanding the general
MFN obligation in GATS Article II.
180 USTR Press Release, May 4, 2007, supra note 178.
181 Australia, Canada, Costa Rica, Macao Request Talks with U.S. in Gambling Dispute;
EU, Antigua Request Compensation from the U.S. in WTO Gambling Case, Inside U.S.
Trade, June 22, 2007, at 9.
182 U.S. Extends Gambling Negotiations on Compensation with Claimants, Inside U.S.
Trade, October 26, 2007, at 9 [hereinafter U.S. Extends Negotiations]. See WTO Council
on Trade in Services, Procedures for the Implementation of Article XXI of the General
that they had reached a bilateral compensation agreement providing EC service
suppliers with improved market access in the U.S. postal and courier, research and
development, warehouse, and technical testing services sectors.183 The United States
also announced that it had reached agreement with Canada and Japan as well.184 It
has also been reported that Australia has settled outstanding issues with the United
States and is no longer participating in the negotiations.185
Under GATS rules, the remaining claimants may now may request arbitration
and have 45 days after the end of the last negotiating period to do so. A panel would
be expected to issue its report within three months after it is appointed.186 Under
GATS rules, the United States would not be permitted to modify its Services
Schedule until it had made compensatory adjustments in conformity with the
arbitration. If the United States were to implement its change without so complying,
any affected Member participating in the arbitration would be able to modify or
withdraw substantially equivalent benefits in conformity with the arbitral findings.
GATS rules would allow any such change by the affected Member to be implemented
so as to apply only to the United States notwithstanding the general MFN obligation
in GATS Article II. If arbitration were not requested, however, the United States
would be free to implement the modification as originally proposed.
Antigua’s Retaliation Request. In the WTO dispute itself, Antigua has requested
authorization from the DSB to impose $ 3.4 billion in countermeasures against the
United States for non-compliance, primarily by suspending obligations owed the
United States under the Agreement on Trade-Related Intellectual Property Rights.187
Agreement on Trade in Services (GATS)(Modification of Schedules), para. 4, S/L/80
(October 29, 1999)[hereinafter GATS Article XXI Procedures].
183 Statement by USTR Spokeswoman Gretchen Hamel on Gambling, December 17, 2007,
by_USTR_Spokeswoman_Gretchen_Hamel_on_Gambling_printer.html] [hereinafter USTR
Gambling Statement]; EU and US Agree on Compensation in WTO for Loss of Trade
Opportunities in US Gambling Sector, News Release No. 128/17, December 17, 2007, at
[ h t t p : / / www.eur uni on.or g/ News/ p r e ss/ 2007/ 20070128.ht m] .
184 USTR Statement on Gambling, supra note 183.
185 U.S. Extends Negotiations, supra note 182; U.S. Japan Reach WTO Settlement on
Compensation for Gambling Claim, Daily Report for Executives (BNA), September 28,
Inside U.S. Trade, at August 24, 2007, at 1.
186 Regarding GATS procedural rules on arbitration, see GATS Article XXI Procedures,
supra note 182, at paras. 7-19.
187 Recourse by Antigua and Barbuda to Article 22.2 of the DSU, United States — Measures
Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/22 (June
22, 2007). Along with obligations under the Agreement on Trade Related Intellectual
Property Rights, Antigua has also proposed possible suspension of GATS concessions
involving telecommunications services. Antigua argues in its request that imposing tariff
surcharges on U.S. products (the most commonly used form of retaliation) or placing added
restrictions on U.S. services would have a “disproportionate adverse impact” on Antigua
The United States objected to the request, challenging both the level of suspension
of concessions and Antigua’s compliance with DSU principles and procedures
governing a WTO Member’s consideration of which concessions to suspend.188
Because of the U.S. objection, Antigua’s proposal was sent to arbitration. In a ruling
issued December 21, 2007, the Arbitrator determined that Antigua may request
authorization from the DSB to suspend concessions under the TRIPS agreement at
a level not to exceed $21 million annually.189 The amount was based on the
Arbitrator’s assumption that the United States would have complied with the ruling
by opening its market to Antiguan providers of remote gambling on horseracing.
Pending Cases Involving Administrative Action
Laws, Regulations and Methodology for Calculating Dumping
Margins (“Zeroing”) (DS294). In June 2003, the EC requested consultations with
the United States over the use of zeroing by the Commerce Department in
determining dumping margins, arguing that the practice as it relates to original
investigations and subsequent (i.e., administrative, new shipper, changed
circumstances, and sunset) reviews was “as such” inconsistent with provisions of the
Agreement on Antidumping and the GATT 1994 and that the United States had acted
inconsistently with its WTO obligations in applying zeroing in 31 specific cases,
because any such fees or restrictions would make the goods and services “materially more
expensive” to Antiguan citizens and would have little or no impact on the United States.
Antigua also argues that retaliating solely under the GATS would prevent it from recovering
the full amount of trade damage caused by the U.S. measures.
188 Request by the United States for Arbitration under Article 22.6 of the DSU, United States
— Measures Affecting the Cross-Border Supply of Gambling and Betting Services,
WT/DS285/23 (July 24, 2007). The United States has challenged the economic data used
by Antigua and its measurement of losses against the hypothetical legalization of all remote
gambling in the United States instead of the legalization of remote gambling on horseracing.
The United States argues that by its calculations Antigua’s trade injury should amount to
$500,000 per year and, in any event, no more than $3.3 million per year. Written
Submission of the United States, United States - Measures Affecting the Cross-Border
Supply of Gambling and Betting Services — Arbitration Pursuant to Article 22.6 of the
DSU, WT/DS285 (September 19, 2007), available at [http://www.ustr.gov/assets/Trade_
Agr e e me n t s /Monitoring_Enforcemen t/Dispute_Settlement/WTO/Di s p u t e _ Settlement_
189 Decision by the Arbitrator, Recourse to Arbitration by the United States for Arbitration
under Article 22.6 of the DSU, United States — Measures Affecting the Cross-Border
Supply of Gambling and Betting Services, WT/DS285/ARB (December 21, 2007).
including 15 original investigations and 16 administrative reviews.190 A panel was
established at the EC’s request in March 2004.191
Zeroing is a practice used by the Commerce Department in the calculation of
dumping margins under which, in comparing export prices to normal value, it assigns
a zero value to non-dumped sales (i.e., sales at prices that are equal to or greater than
normal value). The Department is authorized under U.S. law to make three types of
price comparisons in determining a dumping margin in an original antidumping
investigation, each of which is recognized in Article 2.4.2 of the Antidumping
Agreement: (1) weighted average of normal values to weighted average of export
prices for comparable merchandise; (2) normal values of individual transactions to
export prices of individual transactions for comparable merchandise; and (3) under
certain defined circumstances, aimed at identifying so-called “targeted dumping,”
weighted average of normal values to export prices of individual transactions for
comparable merchandise.192 The DOC ordinarily uses weighted-average-to-
weighted-average comparisons in original investigations,193 as was the case in the
original investigations cited in the EC’s complaint. In annual administrative reviews,
where DOC assesses the actual antidumping duties to be imposed on entries of the
merchandise involved,194 the Department calculates the duty owed by an importer by
comparing the price of each individual export transaction with a monthly weighted-
average normal value.195 The practice of zeroing is said to inflate dumping margins
by not allowing dumped sales to be weighed against non-dumped sales, whereas
others argue that the practice combats masked dumping and that actual dumping may
190 Request for Consultations by the European Communities, United States — Laws,
Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/1
(June 19, 2003) and WT/DS294/1/Add.1 (September 15, 2003). An “as such” claim
challenges the existence of a measure of another Member, as opposed to its application in
a particular case. Such claims “assert that a Member’s conduct — not only in a particular
instance that has occurred, but in future situations as well — will necessarily be inconsistent
with that Member’s WTO obligations.” Appellate Body Report, United States — Sunset
Review of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, para.
191 Request for the Establishment of a Panel by the European Communities, United States
— Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”),
WT/DS294/7 (February 6, 2004) and WT/DS294/7/Rev.1 (February 19, 2004).
192 Tariff Act of 1930, § 777A(d), 19 U.S.C. § 1677f-1(d). Targeted dumping comparison
methodology is rarely used but may be employed where the other comparison methodologies
“cannot account for a pattern of prices that differ significantly among purchasers, regions,
or time periods.” Uruguay Round SAA, supra note 7, at 843; see also Targeted Dumping
in Antidumping Investigations; Request for Comments, 72 Fed. Reg. 60651 (October 25,
2007). Targeting dumping would occur when an exporter sold a product at a dumped price
in certain areas or to certain customers, while masking these sales with non-dumped exports
193 Dept. of Commerce, Import Administration Antidumping Manual, ch. 6, at 7 (1997 ed.),
at [http://ia.ita.doc.gov/admanual][hereinafter DOC AD Manual].
194 Regarding administrative reviews generally, see supra note 41.
195 DOC AD Manual, supra note 193, ch. 18, at 24; see Tariff Act of 1930, § 777A(d)(2),
be remedied notwithstanding that exporters may not sell all products at dumped
prices in a particular national market. Neither the WTO Antidumping Agreement nor
federal laws expressly address the use of zeroing in antidumping investigations and
reviews; U.S. courts have ruled, however, that DOC’s interpretation of U.S.
antidumping law to allow, but not require, the practice is a reasonable one.196
The WTO panel, in a report issued October 31, 2005, found that zeroing, as
applied in the weighted-average-to-weighted average price comparisons made in the
specific original investigations cited in the EC’s complaint, is inconsistent with
Article 2.4.2 of the Antidumping Agreement, which provides in part that “[s]ubject
to the provisions governing fair comparison in paragraph 4, the existence of margins
of dumping during the investigation phase shall normally be established on the basis
of a comparison of weighted-average normal value of prices of all comparable export
transactions or by a comparison of normal value and export prices on a transaction-
to-transaction basis.”197 The panel based its conclusion on earlier Appellate Body
rulings, including a ruling against the United States regarding its use of zeroing in
calculating dumping margins on softwood lumber from Canada (DS264), that “when
a margin of dumping is calculated on the basis of multiple averaging by model type,
the margin of dumping for the product in question must reflect the results of all such
comparisons, including weighted average export prices that are above the normal
value for individual models.”198 The panel also found that zeroing, as it relates to
196 Corus Staal BV v. Department of Commerce, 395 F.3d 1343, 1347 (Fed. Cir. 2005), cert
denied, 126 S.Ct. 1023 (2006); Timken Co. v. United States, 354 F.3d 1334, 1341-42 (Fed.
Cir.), cert denied sub nom., Koyo Seiko Co. v. United States, 543 U.S. 976 (2004).
197 Panel Report, United States — Laws, Regulations and Methodology for Calculating
Dumping Margins (“Zeroing”), WT/DS294/R (October 31, 2005)[hereinafter Zeroing Panel
198 Id., at para. 7.31. The application of zeroing by the Department of Commerce in
weighted-average-to-weighted-average comparisons, referred to by the EC in the case as
“model zeroing,” was described by the panel as follows:
... The investigating authority, as well as determining the overall product scope
of the proceeding ... will in applying the weighted average-to-weighted average
comparison method, identify those sales of sub-products in the United States
considered “comparable”, and will include such sales in an “averaging group.”
An averaging group consists of merchandise that is identical or virtually identical
in all physical characteristics.... The weighted-average-to-weighted-average
comparison between normal value and export price is made within each
averaging group. The amount by which normal value exceeds export price is
considered by the United States to be a “dumping margin” or dumped amount
— referred to by the United States as the Potentially Uncollectible Dumping
Duties, or PUDD. If export price exceeds normal value (the margin is negative),
the “dumping margin” or dumped amount or PUDD for that averaging group is
considered to be zero. The margin of dumping for the overall product is
calculated by combining the averaging group results. The total of the dumped
amounts or PUDDs (excluding the negative amounts or treating them as zero) is
expressed as a percentage of the total export prices (including all averaging
original investigations, is a norm that could be challenged in a WTO dispute even
though it is not in written form, and that, with respect to its use in weighted-average-
to-weighted-average price comparisons in original investigations, the norm as such
is inconsistent with Article 2.4.2.
The panel rejected the EC’s claims regarding §§ 771(35)(A) and (B), 731, and
777A(d) of the Tariff Act of 1930, concluding that they did not address the issue of
zeroing. These sections, respectively, define the terms “dumping margin” and
“weighted average dumping margin,” establish the basic authority for imposing
antidumping duties, and authorize the price comparison methodologies discussed
The panel also upheld the United States on its use of zeroing in the specific
administrative reviews cited by the EC as well as on the use of zeroing “as such” in
administrative reviews, new shipper reviews, changed circumstances reviews, and
sunset reviews. One dissenting panelist, however, would have struck down the use
of the practice in proceedings other than original investigations. The report was
appealed by the United States and the EC.
On April 18, 2006, the Appellate Body found, although on different grounds
from the panel, that the zeroing methodology could be challenged “as such” as it
relates to original investigations and upheld the panel’s finding that the practice is
inconsistent with Article 2.4.2 of the Antidumping Agreement.199
The AB reversed the panel, however, in finding that the United States was in
compliance with its WTO obligations in using zeroing in the administrative reviews
cited by the EC. The AB found instead that the application of zeroing in these
reviews violated Article 9.3 of the Antidumping Agreement and Article VI:2 of the
GATT 1994 since the practice resulted in antidumping duties that exceeded the
exporters’ or producers’ dumping margins. Article 9.3, which sets out obligations
regarding the assessment of antidumping duties, provides that the “amount of the
anti-dumping duty” imposed by a WTO Member “shall not exceed the margin of
dumping as established under Article 2” of the Agreement. Article VI:2 of the
GATT 1994 provides that a WTO Member may impose an antidumping duty on a
dumped product “no greater in amount than the margin of dumping in respect of such
Regarding use of the practice in the cited administrative reviews, the Appellate
Body stated that
Id. at para. 2.3 (citations omitted)(emphasis in original). The Commerce Department
defines the term PUDD as the amount of dumping duties that would have been collected
from the U.S. sales under investigation had an AD order been in effect before the
investigation began; for further discussion, see DOC AD Manual, supra note 193, ch. 6, at
199 Appellate Body Report, United States — Laws, Regulations and Methodology for
Calculating Dumping Margins (“Zeroing”), WT/DS294/AB/R (April 18, 2006).
... the USDOC assessed the anti-dumping duties according to a methodology in
which, for each individual importer, comparisons were carried out between the
export price of each individual transaction made by the importer and a
contemporaneous average normal value. The results of these multiple
comparisons were then aggregated to calculate the anti-dumping duties owed by
each individual importer. If, for a given individual transaction, the export price
exceeded the contemporaneous average normal value, the USDOC, at the
aggregation stage, disregarded the result of this individual comparison. Because
results of this type were systematically disregarded, the methodology applied by
the USDOC in the administrative reviews at issue resulted in amounts of
assessed anti-dumping duties that exceeded the foreign producers’ or exporters’
margins of dumping with which the anti-dumping duties had to be compared
under Article 9.3 of the Antidumping Agreement and Article VI:2 of the GATT
1994. Accordingly, the zeroing methodology, as applied by the USDOC in the
administrative reviews at issue, is inconsistent with Article 9.3 of the Anti-200
Dumping Agreement and Article VI:2 of the GATT 1994.
The AB report, which also addressed other issues, and the modified panel report201
were adopted on May 9, 2006. While the United States vigorously disputed the
Appellate Body decision,202 it stated at a subsequent DSB meeting that it intended to203
comply. The disputing parties later agreed on an implementation deadline of April
Shortly before the AB report was issued, the DOC had announced in the Federal
Register that in response to the WTO panel report it would abandon the use of
zeroing in weighted-average-to-weighted-average comparisons in antidumping
investigations and was seeking comments on alternative approaches that might be
appropriate in future investigations.205 The Department noted that it had not appealed
the panel’s finding that, with respect to the specific antidumping investigations
challenged by the EC, the use of zeroing in such comparisons was inconsistent with
Article 2.4.2 of the Antidumping Agreement.
200 Id. at para. 133.
201 Dispute Settlement Body, Minutes of Meeting, May 9, 2006, at 7-13, WT/DSB/M/211
(June 12, 2006).
202 Along with criticizing the Appellate Body report at DSB meetings, the United States took
the uncommon step of circulating detailed critiques of the decision to WTO Members. See
Communication from the United States, United States — Laws, Regulations and
Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/16 (May 17,
2006); Communication from the United States, United States — Laws, Regulations and
Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/18 (June 19,
203 Dispute Settlement Body, Minutes of Meeting, May 30, 2006, at , WT/DSB/M/213
(June 21, 2006).
204 Agreement under Article 21.3(b) of the DSU, United States — Laws, Regulations and
Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/19 (August 1,
205 Antidumping Proceedings: Calculation of the Weighted Average Dumping Margin
During an Antidumping Duty Investigation, 71 Fed. Reg. 11189 (March 6, 2006).
Recent Developments. On December 26, 2006, the Department, pursuant
to § 123 of the URAA, published a Federal Register notice stating that it was
modifying its methodology as announced earlier, noting that the modification would
be used in implementing the findings of the WTO panel pursuant to § 129 of the
URAA with regard to the specific antidumping investigations challenged by the EC
in the dispute and, moreover, that it would apply the modification in all current and
future antidumping investigation as of the effective date, which at the time was206
planned for January 16, 2007. The Department later extended the date to January
23, 2007, and then to February 22, 2007, noting each time that it was acting “[a]fter
further consultations with Congress and in order to afford adequate time for
The Department also announced on February 22, 2007, that it was initiating
Section 129 proceedings in which it would implement the WTO ruling with respect
to 12 of the15 antidumping investigations cited by the EC, three of the cited AD208
orders having been revoked. On April 9, 2007, the Department of Commerce
issued new Section 129 determinations in 11 of the proceedings using average-to-
average comparisons in which offsets were provided, two of which resulted in
206 Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin
During an Antidumping Duty Investigation; Final Modification, 71 Fed. Reg. 77722
(December 27, 2006).
207 Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin
During an Antidumping Duty Investigation; Change in Effective Date of Final Modification,
72 Fed. Reg. 1704 (January 16, 2007); Antidumping Proceedings: Calculation of the
Weighted-Average Dumping Margin During an Antidumping Duty Investigation; Change
in Effective Date of Final Modification, 72 Fed. Reg. 3783 (January 26, 2007).
Representative Rangel, Chairman of the House Ways and Means Committee, and
Senator Baucus, Chairman of the Senate Finance Committee, had written to the Secretary
of Commerce and the USTR on January 19, 2007, requesting that DOC postpone its decision
whether to modify the practice to March 31, 2007, to give Committee members additional
time to consider the issue. The letter stated that the 60-day consultation period, which in
this case ended in mid-January, was insufficient given the limited actual time for
consultation, the complexity of the matter, and the controversial nature of the ruling. Text
of letter available at [http://finance.senate.gov/press/Bpress/2007press/prb012207.pdf]. The
House Ways and Means Committee went on to solicit comments on the DOC action. See
Advisory from the Committee on Ways and Means, FC-7 (January 31, 2007), at
In mid-December 2006, 11 Senators signed a letter to the same Administration
recipients in which they took issue with the Appellate Body decision in DS294, favorably
referred to several earlier GATT and WTO panels that had ruled differently, and expressed
their disagreement with any modification of the U.S. practice. Text of December 2006
letter and of USTR memo to Congress under § 123 regarding the modification available at
Inside U.S. Trade, December 15, 2006, at 19-21.
208 See Department of Commerce Federal Register notice and fact sheet at
[http://ia.ita.doc.gov/ia-highlights-and-news.html]. The Department stated in its Federal
Register notice that since a Section 129 determination is implemented prospectively, the
date on which the USTR directs the Commerce Department to implement the determination
“will necessarily be after the effective date of the revocation” of the AD orders in the three
referenced cases and that “[a]s a result, the Department is not conducting section 129
proceedings with respect to the three investigations.”
findings of no dumping; the DOC postponed its determination in the 12th
investigation, a proceeding involving stainless steel products from Italy, as it was
investigating a possible clerical error in the original investigation alleged by the
respondent.209 Recalculations were done without the use of zeroing as provided in
the modification originally announced in December 2006.210 Regarding the
administrative reviews at issue in the dispute, the United States has stated that since
they have been superseded by new administrative reviews, it does not need to take
any further action to bring these reviews into compliance with the WTO decision.211
The USTR instructed DOC to implement the new determinations on April 23,
While the United States considered itself in compliance,213 the EC questioned
the prospective nature of the new determinations (that is, that they do not cover duties
on goods entered before the date the Section 129 determinations were implemented),
claimed that the DOC had “massively increased the ‘all others’ rate (applicable to
exporters who do not have an individual duty rate, notably new exporters),” and
stated that the United States was obligated to review the dumping margins in the 16
challenged administrative reviews, arguing that to its knowledge the United States
has not taken any action to bring these reviews into compliance with the WTO
On May 4, 2007, the United States and the EC entered into a procedural
agreement regarding possible Article 21.5 compliance panel proceedings and the
sequencing of a possible retaliation request in the event the United States is found not
to have complied in the case.215 The EC requested consultations with the United
States under Article 21.5 in July 2007.216 DOC issued a new determination in the
209 Department of Commerce, Issues and Decision Memorandum for the Final Results of the
Section 129 Determination (April 9, 2007), at [http://ia.ita.doc.gov/download/zeroing/
ze roing-sec-129-final-decision-me mo-20070410.pdf].
210 See Implementation of the Findings of the WTO Panel in US-Zeroing (EC): Notice of
Determinations Under Section 129 of the Uruguay Round Agreements Act and Revocations
and Partial Revocations of Certain Antidumping Duty Orders, 72 Fed. Reg. 25261 (May 4,
211 Status Report by the United States, Addendum, United States — Laws, Regulations and
Methodology for Calculating Dumping Margins (“Zeroing”), at 2, WT/DS294/20/Add.2
(April 13, 2007)[hereinafter Zeroing Status Report].
212 See May 2007 Implementation Notice, supra note 210.
213 Zeroing Status Report, supra note 211.
214 European Commission, EU response to US action on WTO zeroing judgement (April 12,
215 Understanding between the United States and the European Communities Regarding
Procedures under Articles 21 and 22 of the DSU, United States — Laws, Regulations and
Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/21 (May 9, 2007).
216 Request for Consultations, Recourse to Article 21.5 of the DSU by the European
Communities, United States — Laws, Regulations and Methodology for Calculating
Dumping Margins (“Zeroing”), WT/DS294/22 (July 12, 2007).
outstanding antidumping case, finding that the alleged clerical errors were not raised
in the WTO dispute and thus were outside the scope of the Section 129 proceeding;
the final antidumping margins were 2.11 percent for the individually investigated
producer and 2.11 for all other exporters and producers, the same as the preliminary
margins, each a reduction from an original margin of 11.23 percent.217 A compliance
panel was established at the EC’s request in September 2007.218 The WTO Director-
General appointed panelists on November 30, 2007; reportedly a replacement is
being sought for a panelist who has become unable to serve.219 As discussed at the
end of the following section, the use of zeroing in certain circumstances has been
addressed in a Doha Round draft negotiating text released at the end of November
Measures Relating to Zeroing and Sunset Reviews (DS322).
Following a consultation request in November 2004, Japan requested that a panel be
established to examine whether, in original antidumping investigations,
administrative reviews (referred to in the case as “periodic reviews”), new shipper
reviews, sunset reviews, and changed circumstances reviews, the application of
zeroing in comparing normal value and export price in order to determine the overall
dumping margin for the product as a whole as such violated various obligations220
under the WTO Antidumping Agreement. Japan also challenged as inconsistent
with the Agreement subsequent USITC injury determinations based on dumping
margins determined in this manner and made additional Agreement claims regarding
sunset reviews and changed circumstances reviews in which determinations were
In addition, the EC has initiated a new dispute proceeding with the United States in
which it is challenging the use of zeroing in 18 antidumping proceedings, including 37
administrative reviews, 11 sunset reviews, and four original investigations, involving steel
products, pasta, and chemicals imported from EC member countries (DS350). A panel was
established in the case on June 4, 2007; a panel report is expected in September 2008. See
Request for the Establishment of a Panel by the European Communities, United States —
Continued Existence and Application of Zeroing Methodology, WT/DS350/6 (May 11,
2007); Communication from the Chairman of the Panel, United States — Continued
Existence and Application of Zeroing Methodology, WT/DS350/10 (December 20, 2007).
217 Implementation of the Findings of the WTO Panel in US-Zeroing (EC); Notice of
Determination Under Section 129 of the Uruguay Round Agreements Act: Antidumping
Duty Order on Stainless Steel Sheet and Strip from in Coils from Italy, 72 Fed. Reg. 54640
(September 29, 2007); Department of Commerce, Issues and Decision Memorandum for the
Final Results of the Section 129 Determination (August 20, 2007), at [http://ia.ita.doc.gov/
218 Request for the Establishment of a Panel, Recourse to Article 21.5 of the DSU by the
European Communities, United States — Laws, Regulations and Methodology for
Calculating Dumping Margins (“Zeroing”), WT/DS294/25 (September 14, 2007).
219 Note from the Secretariat, Constitution of the Panel Established at the Request of the
European Communities, Recourse to Article 21.5 of the DSU by the European Communities,
United States — Laws, Regulations and Methodology for Calculating Dumping Margins
(“Zeroing”), WT/DS294/26 (December 4, 2007); Two Zeroing Rulings Delayed Due to
Changes in Lineup of Panelists, 24 Int’l Trade Rep. (BNA) 1728 (December 6, 2007).
220 Request for the Establishment of a Panel, United States — Measures Relating to Zeroing
and Sunset Reviews, WT/DS322/8 (February 7, 2005).
based on earlier determined dumping margins obtained through zeroing. Japan also
challenged zeroing as applied in 15 specific antidumping proceedings, including one
original investigation, 12 administrative reviews, and two sunset reviews. The panel
was established February 28, 2005.
In a report circulated September 20, 2006, the panel concluded that zeroing,
when used by DOC in weighted-average-to-weighted-average comparisons in
original antidumping investigations and consequently, the use of zeroing in the one
original investigation cited by Japan, were inconsistent with Article 2.4.2 of the
Antidumping Agreement.221 As in DS294, discussed above, zeroing was found to be
a norm that could be challenged in a WTO dispute settlement proceeding.
The panel rejected Japan’s claims that the use of use zeroing in transaction- to-
transaction comparisons and in weighted-average-to-transaction comparisons was
inconsistent with WTO obligations. It also rejected claims that the use of zeroing in
administrative reviews and new shipper reviews, and the application of zeroing in the
11 administrative reviews cited by Japan was violative of WTO obligations. In
addition, the panel found that Japan had failed to make a prima facie case that the
United States was in violation of its WTO obligations by using zeroing procedures
in changed circumstances reviews and sunset reviews. The panel also determined
that the United States did not act inconsistently with Antidumping Agreement
provisions in relying on dumping margins calculated in previous proceedings in the
two sunset reviews cited by Japan. Both Japan and the United States appealed the
In a ruling issued January 9, 2007, the Appellate Body upheld the panel’s
finding that zeroing was a norm that could be challenged as such but reversed the
panel in a number of significant respects.222
Contrary to the panel, the Appellate Body found that, in maintaining zeroing
procedures in transaction-to-transaction comparisons in original investigations, the
United States is in violation of Articles 2.4 of the Antidumping Agreement, which
requires overall that a “fair comparison ... be made between the export price and the
normal value,” and Article 2.4.2 of the Agreement, which as noted earlier, provides
that “[s]ubject to the provisions governing fair comparison in paragraph 4, the
existence of margins of dumping during the investigation phase shall normally be
established on the basis of a comparison of weighted-average normal value of prices
of all comparable export transactions or by a comparison of normal value and export
prices on a transaction-to-transaction basis.”
The Appellate Body further found that by maintaining zeroing procedures in
administrative reviews, the United States acts inconsistently with Article 2.4 of the
Antidumping Agreement, Article 9.3 of the Agreement, which provides that amount
of the antidumping duty actually assessed “shall not exceed the margin of dumping”
221 Panel Report, United States — Measures Relating to Zeroing and Sunset Reviews,
WT/DS322/R (September 20, 2006).
222 Appellate Body Report, United States — Measures Relating to Zeroing and Sunset
Reviews, WT/DS322/AB/R (January 9, 2007).
as determined under Article 2 of the Agreement, and Article VI:2 of the GATT 1994,
which provides that a WTO Member may impose an antidumping duty on a dumped
product “no greater in amount than the margin of dumping in respect of such
The Appellate Body also found that, by using zeroing in new shipper reviews,
the United States is out of compliance with Articles 2.4 and 9.5 of the Antidumping
Agreement, the latter setting out requirements for such reviews.
In addition, the United States was found to have acted inconsistently with
Articles 2.4 and 9.3 of the Antidumping Agreement and Article VI:2 of the GATT
The Appellate Body also determined that, in relying on dumping margins
previously determined with the use of zeroing in the two cited sunset reviews, the
United States had acted inconsistently with Article 11.3, which requires that duties
be terminated after five years unless authorities determine in a review “that the expiry
of the duty would be likely to lead to continuation or recurrence of dumping and
Recent Developments. The Appellate Body report and the panel report, as223
modified, were adopted by the DSB at its January 23, 2007, meeting. The United
States, while once again disputing the Appellate Body’s reasoning, told the DSB on
February 20, 2007, that it intended to comply with its WTO obligations in the case
and that it needed a reasonable period of time to do so.224 It later circulated a critical225
analysis of the Appellate Body decision to WTO Members. While Japan had
originally requested the compliance period be arbitrated,226 the parties have since227
agreed upon a compliance period ending December 24, 2007. In its December 7,
2007 WTO status report on the case, the United States made reference to the
modification adopted by the Commerce Department in February 2007 under which
zeroing would no longer be used in weighted average-to-weighted average
223 DSB Minutes (January 23, 2007), supra note 52, at 15-22.
224 Dispute Settlement Body, Minutes of Meeting, February 20, 2007, at 7, WT/DSB/M/226
(March 26, 2007); see also DSB Minutes (January 23, 2007), supra note 52, at 15-17, and
Administration, Congress Explore Zeroing Compliance Options, Inside U.S. Trade,
February 9, 2007, at 1.
225 Communication from the United States, United States — Measures Relating to Zeroing
and Sunset Reviews, WT/DS322/16 (February 26, 2007). On June 1, 2007, the United States
submitted a proposal to the WTO Negotiating Committee on Rules asking that negotiators
evaluate the reasoning of the WTO panels that have examined the issue of zeroing and
stating its view that “the proper resolution of this issue requires clear text providing that
margins of dumping may be determined without offsets for non-dumped transactions,
consistent with the long-held concept of dumping.” Communication from the United States,
Offsets for Non-Dumped Comparisons, TN/RL/W/208 (June 5, 2007).
226 Request by Japan for Arbitration under Article 21.3(c) of the DSU, United States —
Measures Relating to Zeroing and Sunset Reviews, WT/DS322/17 (March 30, 2007).
227 Agreement under Article 21.3(b) of the DSU, United States — Measures Relating to
Zeroing and Sunset Reviews, WT/DS322/20 (May 8, 2007).
comparisons in original investigations and stated only that is was “continually to
consult internally on steps to be taken with respect to the other DSB
recommendations and rulings.”228 The United States took no specific action,
however, by the compliance deadline.229
The use of zeroing has been addressed in the draft negotiating text issued by the
Chairman of the Doha Negotiating Group on November 30, 2007.230 According to
the text, a WTO Member would not be allowed to use zeroing in weighted average-
to-weighted average comparisons in original antidumping investigations (the practice
abandoned by the Commerce Department in February 2007), but could employ the
zeroing at the investigation stage when making transaction-to-transaction
comparisons and when comparing export prices of individual transactions to
weighted-average normal values, a method of comparison used when targeted
dumping is alleged.231 The text would also permit a WTO Member to use zeroing in
administrative and sunset reviews using any of the three types of price
com p ari s ons. 232
228 Status Report by the United States, United States — Measures Relating to Zeroing and
Sunset Reviews, WT/DS322/Add.1 (December 7, 2007).
229 See generally U.S. Fails to Comply with WTO Challenge on Zeroing by Deadline, Inside
U.S.Trade, January 4, 2008, at 1.
230 Draft Rules Text, supra note 85.
231 Id. at 6, proposing new paras. 2.4.3(i)-(ii) to the WTO Antidumping Agreement.
232 Draft Rules Text, supra note 85, at 6, proposing new para. 2.4.3(iii) to the Antidumping