The Continued Dumping and Subsidy Offset Act ("Byrd Amendment")
CRS Report for Congress
The Continued Dumping and Subsidy Offset Act
Updated February 2, 2006
Jeanne J. Grimmett
American Law Division
Vivian C. Jones
Analyst in International Trade and Finance
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜ The Library of Congress
The Continued Dumping and Subsidy Offset Act
The Continued Dumping and Subsidy Offset Act (CDSOA), commonly known
as the “Byrd Amendment,” is a U.S. law providing for the distribution of import
duties collected as a result of antidumping (AD) or countervailing duty (CVD) orders
to petitioners and other interested parties in the investigations that resulted in the
orders. CDSOA disbursements amounted to $231 million in FY2001, $330 million
in FY2002, $190 million in FY2003 (with an additional $50 million held in reserve
pending the outcome of a legal challenge), and $284 million in FY2004. The
CDSOA was successfully challenged in a World Trade Organization (WTO) dispute
proceeding brought by 11 WTO Members including Canada, the European Union,
and Japan. In late 2004, eight of the complaining parties were authorized to “suspend
concessions” (retaliate) until the United States complies, most readily by repealing
the law. Canada and the European Union began retaliating on May 2, 2005, by
placing a 15% additional import duty on selected U.S. exports. Mexico imposed
higher tariffs on U.S. milk products, wine, and chewing gum as of August 18, and
Japan placed an additional tariff of 15% on 15 steel and industrial products as of
September 1. Canada is particularly concerned that more than $4 billion in AD and
CV duty deposits on softwood lumber may eventually be available for distribution
to U.S. lumber producers under the CDSOA.
Despite strong congressional support for the CDSOA in both chambers, a
provision seeking to repeal the measure (while allowing distributions under the Act
to continue on all subject merchandise entering the United States through October 1,
2007) was included the conference report accompanying S. 1932, the Deficit
Reduction Act of 2005. The legislation has passed both Houses, with final House
action having taken place on February 1, 2006.
Another bill seeking to repeal the statute H.R. 1121 (Ramstad), was suggested
for possible inclusion in House miscellaneous duty suspension legislation. In
addition, two proposals related to the CDSOA were offered by Senator Grassley as
amendments to Commerce and Justice Department appropriations legislation.
S.Amdt. 1680 would have limited implementation of the CDSOA, while S.Amdt
1681 would have struck a provision in the Senate-reported bill requiring WTO
negotiations aimed at preserving the CDSOA. These amendments were not
considered on the floor.
Controversy over the CDSOA is part of a larger ongoing debate in Congress,
and in the country as a whole, on the future direction of U.S. trade policy. As a
result, trade remedy issues are expected to receive continued attention in second
session of the 109th Congress. This report will be updated as events warrant.
In troduction ......................................................1
Analysis of Prior CDSOA Distributions................................5
Domestic and International Legal Challenges............................8
Domestic Court Cases..........................................8
WTO Panel and Appellate Body Decisions.....................10
Request to Suspend Concessions.............................13
Actions to Implement Authorized Retaliation...................15
The CDSOA and the U.S.-Canada Softwood Lumber Dispute..........16
Administration and Congressional Response.......................18
Budget Reconciliation Bill..................................20
Debate on Pros and Cons of Repeal...................................22
WTO and Other Trade Concerns.................................27
Dispute Panels Overreached?...............................27
Discourages Suspension Agreements.........................28
Concern of Emulation.....................................28
Doha Development Agenda Negotiations......................29
Other Trade Agreements and Issues..........................30
Conclusion and Options for Congress.................................31
List of Tables
Table 1. Ratio of CDSOA Claims to Amounts Disbursed,
Table 2. CDSOA Disbursements by Top 10 Industry Sectors, FY2004.......6
Table 3. Top 10 CDSOA Disbursements by Company, FY2004.............7
Table 4. Top 10 States Receiving CDSOA Disbursements, FY2004..........8
The Continued Dumping and Subsidy Offset
Act (“Byrd Amendment”)
The Continued Dumping and Subsidy Offset Act (CDSOA, 19 U.S.C. 1675c),1
commonly known as the “Byrd Amendment,” requires that duties collected due to
antidumping or countervailing duty orders must be distributed to petitioners and
interested parties in the investigations that resulted in the imposition of the orders.
Eight countries successfully challenged the CDSOA in a World Trade
Organization (WTO) dispute settlement proceeding, and in August 2004 a WTO
arbitrator determined the level of “suspension of concessions” (retaliation) that the
co-complainants may claim until the United States complies with the WTO ruling.
In late November 2004, the European Union, Japan, Korea, India, Brazil, Mexico,
Canada, and Chile received formal authorization to retaliate. After warnings by the
co-complainants of unified retaliation by July 2005, four have imposed increased
tariffs on selected U.S. goods. The European Union and Canada have been imposing
tariff surcharges since May 2, 2005; Mexico began doing so on August 18, 2005, and2
Japan introduced its measures effective September 1, 2005.
Congressional action is required in order for the United States to comply with
the WTO determinations, and, notwithstanding the strong congressional support3
enjoyed by the CDSOA in both chambers, several efforts to repeal or amend the
measure were introduced in the 109th Congress, first session. Most recently, repeal
of the CDSOA was included in S. 1932, the Deficit Reduction Act of 2005, which
was passed by the Senate on November 3, 2005, and by the House on November 18.
In conference, language was negotiated that would repeal the CDSOA as of the date
of enactment of the Deficit Reduction Act, while allowing distribution of duties on
all subject merchandise entered before October 1, 2007. The conference report, with
the CDSOA language included, subsequently passed the House on December 19,
2005, and the Senate on December 21. A point of order upheld in the Senate against
inclusion of Medicare and Medicaid language in a budget bill caused a slightly
different version of the conference report to be passed in the Senate; therefore, the
House will need to consider the measure once again in 2006.
1 P.L. 106-387 (Title X, § 1002), 114 Stat. 1549.
2 See infra notes 54-60 and accompanying text.
3 For example, more than 70 Senators indicated their support for retaining current law in the
week following adoption of the panel and Appellate Body reports in the case by the WTO
Dispute Settlement Body. See infra note 75 and accompanying text.
There have been three other efforts to repeal the CDSOA in the 109th Congress.
In mid-September 2005, two amendments offered by Senator Grassley to H.R. 2862,
a bill that included appropriations for the Office of the United States Trade
Representative, would have limited implementation of the CDSOA (S.Amdt. 1680)
and removed a negotiation requirement in the Senate-reported bill aimed at
preserving the statute (S.Amdt. 1681). Neither was voted upon, however. H.R. 1121
(Ramstad), a bill that would repeal the measure, was proposed for inclusion in a
larger miscellaneous duty suspension bill now expected to be considered later in
In Congress, the controversy over the Byrd Amendment is one component of a
larger debate over the future direction of U.S. trade policy. Although many in
Congress acknowledge that benefits are received through liberalizing trade, there is
sometimes disagreement over the proper balance between these benefits and the costs
incurred to domestic industries, firms, and workers by the resulting increase in global
competition — especially if unfair foreign competition is perceived or found to be
the cause of job losses and plant closings. An overall assessment of the United
States’ WTO membership, including issues of U.S. compliance with certain WTO
dispute settlement rulings deemed controversial by some, has already received
significant attention in the 109th Congress.
This report discusses the controversy over the CDSOA in three parts. First, it
covers briefly the background of the law, its effects, and the WTO dispute settlement
case. Second, it discusses the congressional debate on the pros and cons of repealing
the measure. Third, options for Congress are discussed.
Antidumping (AD) and countervailing duty (CVD) investigations are triggered
by a petition filed by an interested party on behalf of an industry4 alleging that the
industry is injured or threatened with material injury by reason of imports that are,
respectively, sold in the U.S. market at less than fair value (dumped), or subsidized.
In order for the industry to obtain relief, two things must happen: (1) the International
Trade Administration (ITA), an agency of the Department of Commerce, must find
dumping or subsidization and (2) the International Trade Commission (ITC) must
find that the domestic industry is materially injured or threatened with material injury
due to the dumped or subsidized imports. These agencies conduct preliminary and
final investigations in a detailed administrative process with specific time lines.5
According to the findings in the CDSOA, the legislative intent of the act is to
address the issue of foreign products which continue to be dumped or subsidized
4 Defined in 19 U.S.C. 1677(9)(C)-(G) as manufacturers, producers, wholesalers, certified
union or group of workers representative of an industry, trade or business association, or
producers and growers.
5 For a more thorough discussion of U.S. antidumping and countervailing duty laws and
administrative procedures, see CRS Report RL32371, Trade Remedies: A Primer, by Vivian
sales to the U.S. market after an AD or CV duty has already been assessed, and, in
so doing, to strengthen the remedial purpose of antidumping and countervailing duty
laws. One of the findings underlying the law stated that continued dumping or
actionable subsidies “can frustrate the remedial purpose of the [trade remedy] laws
by preventing market prices from returning to fair levels” which can lead to domestic
producers’ reluctance to rehire employees or otherwise invest in the business in order
to remain competitive.6
The CDSOA is also somewhat unique as a trade policy concept because it holds
that “the revenue from unfair trade should be used to help those hurt by trade.”7 Prior
to its enactment, revenue collected as a result of AD or CVD orders was deposited
in the General Fund of the U.S. Treasury. Instead, the CDSOA directs the Bureau
of Customs and Border Protection of the Department of Homeland Security (CBP)
to disburse these duties directly to petitioners and interested parties in the
investigations that resulted in the orders. Many find the measure controversial,
therefore, because they believe that it adds a level of “protection” on subject U.S.
products in addition to the ameliorative action afforded by trade remedies.
Some also find the measure controversial because it was enacted without
committee or floor amendment in either House. The measure was inserted into the
Agriculture, Rural Development, Food and Drug Administration, and Related
Agencies Appropriations Act 2001 (P.L. 106-387) by Senator Robert Byrd, a
conferee to the appropriations bill. Similar legislation had been introduced in the
842, Regula; S. 61, DeWine), but these bills died in committee. When President
Clinton signed the appropriations measure, he noted the insertion of the amendment,
saying “this bill will provide select U.S. industries with a subsidy above and beyond
the protection level needed to counteract foreign subsidies,” and called on Congress
to repeal or amend the provision.8
The CDSOA requires CBP to distribute all duties collected pursuant to AD or
CVD orders to “affected domestic producers,” defined in the act as any manufacturer,
producer, farmer, rancher, or worker representative (including associations of these
individuals) that was (1) a petitioner or interested party in support of a petition that
resulted in an AD or CVD order, and (2) remains in operation.9
Distributions under the act may be used to offset “qualifying expenditures”
within the following categories that the domestic producer incurred between the
issuing of an AD or CVD order and its termination: (1) manufacturing facilities; (2)
6 19 U.S.C. 1675c note.
7 149 Cong. Rec. S8234 (daily ed. June 19, 2003)(remarks of Sen. Snowe).
8 Statement on Signing the Agriculture, Rural Development, Food and Drug Administration,
and Related Agencies Appropriations Act, 2001. Public Papers of the Presidents, William
J. Clinton — 2000, Vol. 3, pp. 2359-2361.
9 19 U.S.C. 1675c(b)(1).
equipment, (3) research and development; (4) personnel training; (5) acquisition of
technology; (6) health care benefits for employees paid by the employer; (7) pension
benefits for employees paid by the employer; (8) environmental equipment, training,
or technology; (9) acquisition of raw materials and other inputs; or (10) working
capital or other funds needed to maintain production.10
In the first stage of the CDSOA distribution process, the International Trade
Commission sends a list to CBP of petitioners and interested parties in support of
each investigation (generally indicated by letter of support for AD or CVD petitions
or through affirmative responses to ITC questionnaires). CBP then publishes a notice
of intent to distribute the offset, along with a list of affected domestic producers
eligible for distributions and the estimated amount available to them at least 30 days
prior to the offset distribution date.11 In order to receive a payment, each company
on the list must demonstrate that it is eligible to receive an offset disbursement, and
must certify that it has qualifying expenditures incurred for which distributions have
not yet been paid.12
CBP places all estimated antidumping and countervailing duties that are
deposited with CPB directly into “Clearing Accounts.” An account is assigned
individually to each antidumping or countervailing duty order under which duties are
collected.13 When the goods are liquidated and the duty is finally paid, the funds are
distributed into “Special Accounts,” also identified by the individual AD or CVD
orders, from which offset payment to individual claimants are paid. The total amount
of offset payments disbursed is limited by the total amount of duties in the Special
Account for each case.14 As a consequence of this limitation, the actual payments
made often cover only a minimal portion of each claim involved. For example, in
FY2004, more than $1.9 trillion in claims from certified interested parties were
received, while $284 million, or 0.01% of the total claims, was available for
disbursement (see Table 1).
10 19 U.S.C. 1675c(b)(4).
11 19 C.F.R. 159.62.
12 19 C.F.R. 159.63.
13 19 C.F.R. 159.64(a)(2).
14 19 U.S.C. 1675c(d)(3). If the certified net claims exceed the amount available in the
corresponding Special Account, the payment will be made on pro rata basis based on each
producer’s total certified claim. 19 C.F.R. 159.64(c)(2).
Table 1. Ratio of CDSOA Claims to Amounts Disbursed,
Total certified Total amount
Fiscal yearclaimsdisbursed% disbursed
2001 $1,189,592,904,866 $231,201,891 0.02
2002 $1,416,828,122,356 $329,871,464 0.02
2003 $1,187,504,594,797 $190,247,425 0.02
2004 $1,948,769,519,521 $284,044,599 0.01
Source: U.S. Department of Homeland Security. Bureau of Customs and Border Protection.
Continued Dumping and Subsidy Offset Act Disbursement Report for FY 2004. FY2005 data are
available on the CBP website ([http://www.cbp.gov]) and will be presented and discussed in a
The CBP is required to distribute annual offset payments within 60 days of the15
first day of the next fiscal year. A final annual report, listing all claims and
disbursements, is made available after all payments have been completed for the16
Analysis of Prior CDSOA Distributions
Pursuant to the act, CBP collected and distributed about $231 million in
FY2001, $330 million in FY2002, $190 million in FY2003 (an additional $50
million in FY2003 funds was held in reserve pending resolution of a legal challenge),
and $284 million in FY2004. FY2005 amounts available to distribute per case were
published on June 1, 2005.17
U.S. industries that received the largest CDSOA disbursements in FY2004
included producers of ball bearings, steel, petroleum wax candles, cement, food
products (including pineapple, crawfish, honey, pasta, and mushrooms), computer
chips, polyester fiber, pencils, softwood lumber, and industrial belts, representing
about 93 percent of total disbursements (see Table 2).18
15 19 U.S.C. 1675c(c).
16 19 C.F.R. 159.64(g). CDSOA Annual Reports are available on the CBP website at
[ h t t p : / / www.cbp.gov/ xp/ cgov/ i mpor t / a dd_cvd / c ont _dump/ ] .
17 See CBP website [http://www.cbp.gov/xp/cgov/import/add_cvd/cont_dump/].
18 U.S. Department of Homeland Security, Customs and Border Protection. Continued
Dumping and Subsidy Offset Act, FY2004 Annual Disbursement Report at
Table 2. CDSOA Disbursements by Top 10 Industry Sectors,
Polyester fiber/film products $10.2
Source: U.S. Department of Homeland Security. Bureau of Customs and Border Protection.
Continued Dumping and Subsidy Offset Act Disbursement Report for FY2004. FY2005 data are
available on the CBP website ([http://www.cbp.gov]) and will be presented and discussed in a
Continued dumping of some commodities — bearings and steel products in
particular — may indicate that firms who continue to export products subject to AD
or CV orders are multinational firms moving factors of production across borders to
U.S. affiliates. In any case, in order for U.S. sales of an item to continue to be
profitable despite the assessment of additional AD or CV duties, the price of the
targeted good or end-use product must still be competitive in the receiving market,
and/or there must continue to be demand for the product. These factors may cause
the importer to decide to absorb the additional duties as a cost of doing business, as
opposed to pursuing other alternatives such as purchasing the similar U.S. product
or ordering from a foreign supplier not subject to the AD or CV order.
Individual companies that received disbursements of over $10 million each in
FY2004 were the Timken Company and associated businesses, producers of
bearings; Lancaster Colony Corporation, producers of petroleum wax candles;
Micron Technology, semiconductor manufacturers; Emerson Power Transmission,
bearings manufacturers; and the International Steel Group (see Table 3).19
Table 3. Top 10 CDSOA Disbursements by Company, FY2004
Company P roducts (millions)
The Timken CompanyaBearings$65.9
Lancaster Colony Corp.Candles$26.2
International Steel GroupSteel products$10.4
Home Fragrance HoldingsCandles$8.4
Wellman, Inc.Polyester staple fibers $7.9
United States Steel Corp.Steel products$7.1
AK SteelSteel products$6.8
Holcim U.S., Inc.Grey portland cement$4.7
Source: U.S. Department of Homeland Security. Bureau of Customs and Border Protection.
Continued Dumping and Subsidy Offset Act Disbursement Report for 2004. FY2005 data are
available on the CBP website ([http://www.cbp.gov]) and will be presented and discussed in a
a. Includes Timken US Corporation of CT, Timken Company of OH, and MPB Corporation of NH.
By state, domestic companies in Ohio received the largest amount in CDSOA
funds in FY2004,20 followed by Connecticut, Pennsylvania, New York, Texas, and
New Hampshire (see Table 4). Some other states received much less; for example,
a Vermont received only $1,130.81, which went to a honey producer. No companies
in Nevada or New Mexico received CDSOA offset payments.21
20 U.S. Customs and Border Protection. Disbursement Report for 2004, March 2005.
21 U.S. Department of Homeland Security. Bureau of Customs and Border Protection.
CDSOA - Amount Paid by State.
Table 4. Top 10 States Receiving CDSOA Disbursements,
Ohio$72.8Bearings, Steel and associated products, Petroleum
wax candles, industrial belts
Connecticut$33.8Bearings, steel, paper products
Pennsylvania$23.1Steel and associated products, foundry coke, apple
New York$18.7Bearings, steel and associated products, petroleum
wax candles, honey
Texas$15.9Grey portland cement, steel and associated products,
petroleum wax candles, softwood lumber, honey
New$13.2Bearings, softwood lumber, cast iron pipe fittings
Idaho$12.1Softwood lumber, honey
New Jersey$11.6Steel and associated products, petroleum wax
candles, foundry coke, pasta, cased pencils, honey
Louisiana$8.5Crawfish tail meat, steel and associated products,
softwood lumber, honey
Illinois$7.8Steel and associated products, softwood lumber,
cased pencils, television receivers
California$6.1Steel and associated products, grey portland cement,
honey, softwood lumber, preserved mushrooms, fresh
Source: U.S. Department of Homeland Security. Bureau of Customs and Border Protection.
Continued Dumping and Subsidy Offset Act Disbursement Report for 2004. FY2005 data are
available on the CBP website ([http://www.cbp.gov]) and will be presented and discussed in a
Domestic and International Legal Challenges
Domestic Court Cases
The CDSOA has been subject to challenges in U.S. courts on constitutional
grounds as well as on issues of statutory interpretation. A suit alleging that the
CDSOA violates the First Amendment is pending in the U.S. Court of International
Trade, where the plaintiff is arguing that the statute infringes free speech rights by
conditioning eligibility for CDSOA funds on support of the relevant antidumping or
countervailing duty investigation, thus placing an unconstitutional condition on the
receipt of a government benefit.22 A claim that the CDSOA turned statutory
antidumping provisions into a penal law, thereby granting the plaintiff a Fifth
Amendment right to a neutral judicial hearing before antidumping duties could be
imposed, was rejected by the U.S. Court of Appeals for the Federal Circuit in March
In July 2004, the Federal Circuit held that a company that opposed an
antidumping investigation may not make CDSOA claims on behalf of an otherwise
qualified producer that the company has acquired.24 At issue was 19 U.S.C. §
1675c(b)(1), which provides that “companies, businesses or persons ... who have
been acquired by a company or business that is related to a company that opposed the
investigation shall not be an affected domestic producer.” Characterizing the
provision as “hardly a model of clarity,”25 the court nonetheless found that the
purpose of the law was “quite clear — to bar opposers of antidumping investigations
from securing payments either directly or through the acquisition of supporting
parties.”26 As a result, the court concluded that the provision should be interpreted
to “bar claims on behalf of a company that was acquired by a company that opposed
the investigation or, broadly, a company acquired by any ‘business’ related to such
In March 2005, the Federal Circuit held that the CDSOA did not supersede the
confidentiality provisions of § 777 of the Tariff Act of 1930, 19 U.S.C. § 1677f,
which generally prohibit the ITC from disclosing information deemed business
proprietary by the person submitting it without that person’s consent.28 Plaintiff
companies had been denied distributions under the Byrd Amendment based on duties
collected on petroleum wax candles from China in 2000 and 2001 as they had not
submitted requests in a timely fashion. The court upheld the ITC’s interpretation of
the statute, finding that the Commission had properly excluded plaintiffs from its list
of “affected domestic producers” for the periods in question because the firms had
claimed confidentiality for their support for the petition and had not consented to
release of this information for these time frames.
On April 19, 2005, Canada, along with Canadian industry groups, filed suit
against the United States in the U.S. Court of International Trade alleging that the
CDSOA, as it applies to Canada, is in violation of § 408 of the North American Free
22 PS Chez Sidney, L.L.C. v. U.S. International Trade Commission, No. 02-00635 (Ct. Int’l
Trade); “Trade Court Considers Constitutionality of Byrd Law,” Inside U.S. Trade, June 6,
23 Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369 (Fed. Cir 2003), aff’g 201
F.Supp.2d 1351 (Ct. Int’l Trade 2002).
24 Candle Corp. of America v. U.S. Int’l Trade Comm’n, 374 F.3d 1087 (Fed. Cir. 2004).
25 Ibid. at 1093.
26 Ibid. at 1094.
27 Ibid. at 1093, 1094.
28 Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352 (Fed. Cir. 2005).
Trade Agreement (NAFTA) Implementation Act, P.L. 103-182, 19 U.S.C. § 3438.29
This provision states, in pertinent part, that “any amendment ... that is made to ...
title VII of the Tariff Act of 1930” enacted after the NAFTA entered into force for
the United States “shall apply to goods from a NAFTA country only to the extent
specified in the amendment.” The plaintiffs are arguing that because the CDSOA
was enacted as a provision of Title VII and does not specify that it applies to
Canadian goods, the United States acted unlawfully when it applied the CDSOA to
distribute antidumping and countervailing duties assessed on imports from Canada
to U.S. producers.30
Eleven WTO Members, the largest group of co-complainants in WTO history,
initiated a WTO dispute settlement proceeding against the CDSOA shortly after it
was enacted. The statute was found to violate WTO agreements and, absent U.S.
action to comply with the WTO rulings by the December 2003 compliance deadline,
eight of the Members received authorization to impose retaliatory measures based on
a formula determined in an earlier WTO arbitration. The European Union and
Canada have been imposing retaliatory tariffs on certain U.S. products since May 2,
2005,31 and Mexico began doing so as of August 18, 2005.32 In addition, Japan
increased tariffs on selected items on September 1, 2005.33
WTO Panel and Appellate Body Decisions. In December 2000, the
European Communities (EC), along with Australia, Brazil, Chile, India, Indonesia,
Japan, Korea, and Thailand, requested WTO consultations with the United States on
the CDSOA, arguing that it violated the WTO Antidumping Agreement, the
Agreement on Subsidies and Countervailing Measures (SCM Agreement), and other
WTO obligations. Canada and Mexico filed a separate complaint in May 2001. The
complainants based their argument in part on provisions in the Antidumping and
SCM Agreements prohibiting WTO Members from maintaining any “specific action
29 “Canadian Government, Industry Groups Launch Attacks on Byrd Law,” Inside U.S.
Trade, May 6, 2005, at 5; “Canada, Lumber Groups File Lawsuit Against U.S. for Applying
Byrd Amendment,” 22 Int’l Trade Rep. 752 (BNA 2005).
30 For example, Complaint at 4-5, 8-9, Government of Canada v. United States, No. 05-
00327 (Ct. Int’l Trade). The United States and various other parties have since filed
motions to dismiss the action.
Section 408 of the NAFTA Implementation Act was enacted to implement Article
1902 of the NAFTA, which provides that each NAFTA Party reserves the right to change
or modify its antidumping or countervailing duty law, provided that in case of an
amendment certain requirements must be met, including that the amendment will apply to
goods from another Party only if the amending statute specifically states that it so applies,
and that the amendment as it applies to the other Party is “not inconsistent with” specified
GATT and now WTO obligations. See NAFTA Statement of Administrative Action,
H.Doc. 103-159, vol. 1, at 652.
31 See infra notes 54-55 and accompanying text.
32 See infra note 57-58 and accompanying text.
33 See infra notes 59-60 and accompanying text.
against” dumping and subsidization, as the case may be, except for action taken in
accordance with the GATT 1994, as interpreted by the respective Agreement.34 The
complainants also argued that the payments provided “a strong incentive to the
domestic producers to file or support petitions for anti-dumping or anti-subsidy
measures, thereby distorting the application of the standing requirements” in the
Antidumping and SCM Agreements.35 These provisions require a specified level of
domestic industry support for an antidumping or countervailing petition before an
investigation may be initiated. Complainants further argued that the CDSOA “makes
it more difficult for exporters subject to an antidumping or countervailing duty order
to secure an undertaking with the competent authorities [i.e. suspension agreement],
since the affected domestic producers will have a vested interest in opposing such
undertakings in favor of the collection of anti-dumping or countervailing duties.”36
In addition to the arguments just described, Mexico also challenged the statute
“as such,” claiming that the payments distributed under the act constituted “specific
subsidies” as defined in Article 1 of the SCM Agreement, which may cause “adverse
effects” to Mexico’s interests in the form of nullification and impairment of
benefits.37 Article 5 of the SCM Agreement allows WTO Members to challenge so-
called “actionable” subsidies, that is, subsidies other than those prohibited under the
Agreement where the subsidy is shown to be specific to an industry and causes the
type of “adverse effects” specified in the Article.38
34 Request for the Establishment of a Panel by Australia, Brazil, Chile, the European
Communities, India, Indonesia, Japan, Korea and Thailand, United States — Continued
Dumping and Subsidy Offset Act of 2000; at 1, WT/DS217/5 (July 13, 2001)[hereinafter
CDSOA Panel Request by Australia et al.]. See also Panel requests by Canada
(WT/DS234/12)(Aug. 10, 2001) and Mexico (WT/DS234/13)(Aug. 10, 2004).
Previously, the prohibition on specific actions against dumping contained in Art. 18.1
of the Antidumping Agreement had been successfully used by the EC and Japan in
challenges filed in 1998 and 1999, respectively, to the U.S. Antidumping Act of 1916, which
allowed criminal penalties and a private right of action against dumping (WT/DS136 and
WT/DS162). The statute was repealed in late 2004; the repeal was prospective, that is, it
does not apply to any suits that were pending on the date of enactment. P.L. 108-429, §
35 CDSOA Panel Request by Australia et al., supra note 34, at 1-2.
36 Id. at 2. A suspension agreement is an agreement made by administrative authorities to
suspend an AD or CV investigation if certain commitments are made by exporters or the
exporting country. See 19 U.S.C. 1671c(b),(c), 1673c(b),(c).
37 Request for the Establishment of a Panel by Mexico, United States — Continued
Dumping and Subsidy Offset Act of 2000, at 2, WT/DS234/13 (Aug. 10, 2001).
38 The SCM Agreement prohibits export subsidies and subsidies contingent on the use of
domestic over foreign goods. Where actionable subsidies are alleged, “adverse effects”
may take the following forms: (1) injury to the WTO Member’s domestic industry, (2)
nullification or impairment of benefits accruing to the Member under the GATT 1994, in
particular, benefits accruing from bound tariff concessions, or (3) serious prejudice (e.g.,
displacement of imports of another WTO Member into the subsidizing Members’s market
or an increase in the world market share of the subsidizing Member in a particular primary
product or commodity).
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.39 At the same time, the panel rejected complainants’
argument that the act would make it more difficult for the United States to enter into
suspension agreements, along with Mexico’s claim that the act itself constituted a
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 regarding industry support
requirements.40 The Appellate Body concluded that a “specific action against”
dumping and subsidization existed for purposes of Article 18.1 of the Antidumping
Agreement and Article 32.1 of the SCM Agreement because the statute fulfilled two
basic elements of the above-quoted phrase. First, the CDSOA constituted “specific”
action because offset payments were found to be “inextricably linked to, and strongly
correlated with a determination of dumping ... or a determination of a subsidy” or,
as alternatively characterized by the AB, the payments “can be made only following
a determination that the constituent elements of dumping or subsidization are
present.”41 Second, the AB stated that a measure would be considered to be an action
“against” dumping or subsidization if it “has the effect of dissuading the practice of
dumping or the practice of subsidization, or creates an incentive to terminate such
practices.”42 The AB found that, given its “design and structure,” the CDSOA
“effects a transfer of financial resources from the producers/exporters to their
domestic competitors” and as a result the requisite incentives are created.43 Since the
CDSOA did not take the form of the responses to dumping or subsidization permitted
under WTO agreements, the AB concluded that the statute fell within the scope of
the prohibitions in above-cited articles.44 The Appellate Body recommended only
that the United States “bring the CDSOA into conformity with its obligations” under
39 Panel Report, United States — Continued Dumping and Subsidy Offset Act of 2000,
WT/DS217/R, WT/DS234/R)(Sept. 16, 2002)[hereinafter CDSOA Panel Report].
40 Appellate Body Report, United States — Continued Dumping and Subsidy Offset Act of
2000, WT/DS217/AB/R, (WT/DS234/AB/R (Jan. 6, 2003 [hereinafter CDSOA Appellate
41 Id. ¶ 242.
42 Id. ¶ 254.
43 Id. ¶ 256.
44 Id. ¶¶ 264-274. The AB stated that three responses to dumping were allowed under
Article VI of the GATT and the Antidumping Agreement: definitive antidumping duties;
provisional measures (i.e., a provisional duty or security imposed in the event of a
preliminary affirmative dumping determination); and price undertakings (suspension
agreements). Id. ¶ 264. The AB found that four responses to a countervailable subsidy were
permitted under GATT Article VI and the SCM Agreement: definitive countervailing
duties; provisional measures; price undertakings; and multilaterally-sanctioned
countermeasures under the WTO dispute settlement system. Id. ¶ 269.
WTO agreements and did not follow the panel’s broader recommendation that the
statute be repealed.
The appellate and modified panel reports were adopted January 27, 2003, and
the compliance period was subsequently determined by arbitration to expire
December 27, 2003. The Arbitrator emphasized that it is for the United States to
decide on the manner of implementation, which may be through modification or
repeal of the law.45
Request to Suspend Concessions. Under the WTO Dispute Settlement
Understanding, complainants in a dispute proceeding may seek authorization to
suspend WTO concessions or other obligations — or retaliate — if the defending
Member has not withdrawn its measure by the end of the agreed upon compliance
period.46 Countermeasures, which generally take the form of duty surcharges on
products imported from the defending country, may be imposed until the Member has
complied or a mutually agreed upon settlement of the dispute has been reached.47
Since 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 Dispute Settlement Body (DSB) for authorization to
impose retaliatory measures. The United States objected to the requests, sending
them to arbitration. The remaining three complainants — Australia, Indonesia, and
Thailand — agreed to give the United States until December 27, 2004, to comply.
Under Article 22.4 of the Dispute Settlement Understanding, the level of
suspension of concessions or other obligations authorized by the DSB must be
equivalent to the level of the nullification or impairment of WTO benefits caused by
the infringing measures. Each of the eight Members seeking to retaliate proposed the
suspension of concessions or obligations in an amount to be determined each year
that was equal to: (1) the amount of offset payments attributable to antidumping and
countervailing duties collected on the Member’s products and (2) except for Chile,
a proportionate amount of the balance of offset payments less those attributed to the
products of the other Members authorized to retaliate.48 The United States contested
45 Award of the Arbitrator, United States — Continued Dumping and Subsidy Offset Act of
46 WTO Understanding on Rules and Procedures Governing the Settlement of Disputes
(DSU), art. 22.1.
47 Id. art. 22.8.
48 Regarding the measures the complainants intended to take, Brazil, Chile, the EC, India,
Japan, and Korea each stated that retaliation would take the form of additional import duties
on a final list of U.S. products (see WTO documents WT/DS217/20 through
WT/DS217/25). Canada stated that it intended either to place additional import duties on
U.S. products or to suspend the application of specified obligations under the WTO
Antidumping Agreement and the WTO SCM Agreement “to determine that the effect of
dumping or subsidization of products from the United States is to cause or threaten material
injury to an established domestic injury [sic], or is to retard materially the establishment of
a domestic industry,” or to do both (WT/DS234/25). In other words, Canada also proposed
to suspend the material injury test in antidumping and countervailing duty investigations
the requests on the ground that the proposed retaliation was not based on actual harm
to the complainants’ exports and noted as particularly troublesome the use of the
amount of duties imposed on goods of countries that were not party to the WTO
proceeding as a basis for determining the amount of permissible retaliation.49
Retaliation Authorized. 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 data are available relating
to antidumping and countervailing duties paid on imports from the Member at that50
time. The Arbitrator stated that the disbursements “operate, in economic terms, as
subsidies that may generate import substitution production” 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 the51
CDSOA. 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 did 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
were less likely to have trade effects exceeding this level in terms of value of U.S.
exports to the country involved. For example, of the $190 million collected in
FY2003, about $121 million was collected (and distributed pursuant to the CDSOA)
in duties on imports of the co-complainants. Based on the formula determined by the
Arbitrator, $87.12 million in FY2003 funds was available to be distributed among
the eight parties.52
Seven of the complainants — the European Union, India, Japan, Korea, Brazil,
Canada, and Mexico — requested and received formal authorization to impose
retaliatory measures in late November 2004; Chile was authorized to retaliate in
December 2004. In contrast, Thailand, Indonesia, and Australia have entered into
agreements with the United States under which they will not seek authorization to
involving imports from the United States. Mexico requested authorization to “to suspend
the application to the United States of obligations in the trade in goods sector”
49 WTO Dispute Settlement Body, Minutes of Meeting, January 26, 2004, ¶ 23,
WT/DSB/M/164 (Mar. 12, 2004); “U.S. Initiates WTO Arbitration on Byrd Sanctions, Hits
Out at Trading Partners,” 21 Int’l Trade. Rep. 204 (BNA 2004).
50 See, 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
2000 (Original Complaint by the European Communities), ¶¶ 5.1-5.2, WT/DS217/ARB/EEC
(Aug. 31, 2004).
51 Id. ¶¶ 3.41, 3.72, 3.80-3.151, 4.7.
52 U.S. Customs and Border Protection CDSOA FY2004 Annual Disbursement
R e p o r t ,[ ht t p : / / www.cbp.gov/ xp/ cgov/ i mpor t / a dd_cvd / c ont _d u mp / c d s o a _04/
suspend concessions at this time, but retain the right to pursue retaliation in the
Actions to Implement Authorized Retaliation. On April 25, 2005, the
Council of the European Union adopted a Council Regulation establishing additional
customs duties of 15 percent on certain products from the United States. As of May
1, 2005, these duties applied to U.S. exports of certain apparel, binders and
notebooks, crane trucks, sweet corn, and wire spectacle frames from the United54
States. On May 5, 2005, the Canadian government issued a final order
implementing a 15% surtax on live swine, ornamental fish, oysters, certain cigarettes,55
and certain fish items, effective May 1, 2005.
On June 3, 2005, representatives of all eight complaining parties met with the
Deputy United States Trade Representative (USTR) to express concerns about the
statute and, in a memorandum to the USTR, conveyed their view of “the urgency of
the repeal of the CDSOA.” They noted that the six remaining members were
contemplating the imposition of retaliatory measures by July 2005 and that as a result
“a broad range of U.S. industries will be subject to increased duties by major U.S.56
On August 1, 2005, Japan announced that it would impose additional tariffs of
tariffs was approved by the Prime Minister’s cabinet on August 12. According to
Japan, the level of retaliation would not exceed $52 million, which, it stated, is the
amount authorized by the WTO based on the amount of CDSOA disbursements
involving Japanese goods in fiscal 2004.58 The products that will be subject to the
tariff are: seven types of ball bearings, three types of flat-rolled steel products;
navigational instruments; machinery accessories; printing machines; forklift trucks;
and industrial belts.
53 “Australia, Indonesia, Thailand Delay Seeking Sanctions on U.S. Imports in Byrd
Dispute,” 22 Int’l Trade Rep. 42 (BNA 2005); “U.S. Strikes Byrd Retaliation Agreement
with Three WTO Members,” Inside U.S. Trade, January 14, 2005, at 7.
54 Council of the European Union. Council Regulation (EC) No. 63/2005 of 25 April 2005
Establishing Additional Customs Duties on Imports of Certain Products Originating in the
United States of America. Official Journal, L110, 30/04/2005, pp. 0001-0005.
55 Government of Canada. Order Suspending the Application of Concessions on Imports of
Certain Products Originating in the United States. Canada Gazette, 139:9, May 4, 2005.
56 Embassies of Brazil, Canada, Chile, India, Japan, Korea, Mexico, and Delegation of the
Embassy of the European Commission, Aide Mémoire, June 3, 2005, at [http://www.dfait-
maeci.gc.ca/tna-nac/disp/byr d-ma in-e n.asp].
57 Communication from Japan, United States — Continued Dumping and Subsidy Offset Act
of 2000, WT/DS217/48 (Aug. 19, 2005); Japan, Ministry of Economy, Trade and Industry,
“US Byrd Amendment: Japan Decides to Start Retaliation,” Press Release, August 1, 2005,
METI Press Release]; “Japan OKs Countervailing Duties on 15 U.S. Products Because of
Byrd Amendment,” 22 Int’l Trade Rep. 13424 (BNA 2005).
58 METI Press Release, supra note 57.
In addition, Mexico began imposing $20.9 million in retaliatory tariffs effective
August 18, 2005, placing a tariff of 30% on certain prepared milk products, 20% on
wine, and 9% on chewing gum.59 The official Mexican Government notice states that
the tariff decree will remain in effect for 12 months, and that it will no longer apply
when the Ministry of the Economy places a notice in the Diario Oficial that the
United States has complied with the WTO decision, at which time tariffs will return
to their original rates.60
The CDSOA and the U.S.-Canada Softwood Lumber Dispute
For Canada, the CDSOA is also tied to the longstanding U.S.-Canadian dispute
over trade in softwood lumber, which itself has resulted in WTO and NAFTA
complaints by Canada challenging U.S. agency actions. The dispute has also been
the subject of negotiations between the two countries.61 The United States has been
imposing antidumping and countervailing duties on imports of softwood lumber from
Canada since May 2002, with over $4 billion in estimated duties having been
deposited with Customs and Border Protection as of October 1, 2005,62 and
additional duty deposits accumulating since. Canada has contested the final
Department of Commerce dumping and subsidy determinations and the final
International Trade Commission (ITC) threat of injury determination in WTO dispute
settlement proceedings and before binational panels established under Chapter
Nineteen of the North American Free Trade Agreement (NAFTA), an option
available in lieu of judicial review in the United States.
Among other decisions, WTO and NAFTA panels ruled against the original ITC
affirmative threat of injury determination, with the NAFTA panel having directed the
ITC to issue a “no threat” determination and the ITC doing so, but under protest, in
September 2004. The United States appealed the NAFTA panel decision to a
NAFTA Extraordinary Challenge Committee (ECC), which upheld the panel
59 “Decreto por el que se modifica temporalmente el artículo 1 del Decreto por el que se
establece la Tasa Aplicable durante 2003, del Impuesto General de Importación, para las
mercancías originarias de América del Norte, publicado el 31 de diciembre de 2002, por lo
que respecta a las mercancías originarias de América del Norte, publicado el 31 de
diciembre de 2002, por lo que respecta a las mercancías originarias de EE.UU.,” Diario
Oficial, 17 de agosto de 2005, as printed in [http://www.insidetrade.com][hereinafter
Decreto]; “Mexico Announces $20.9 Million in Byrd Retaliation Against U.S. Exports,”
Inside U.S. Trade, August 19, 2005, at 1.
60 Decreto, supra note 59, “Transitorios.”
61 For further information on the dispute, including Canada’s trade complaints, see CRS
Issue Brief IB10081, Softwood Lumber Imports from Canada: Issues and Events, by Ross
Gorte and Jeanne J. Grimmett, and CRS Report RL32014, WTO Dispute Settlement: Status
of U.S. Compliance in Pending Cases, by Jeanne J. Grimmett.
62 See FY2005 Clearing Account Balances as of October 1, 2005, in U.S. Customs and
Border Protection, CDSOA FY2005 Annual Report, Section III, at [http://
www. c u s t o ms .gov/ xp/cgov/import/add_cvd/cont_dump/cdsoa_05/fy2005_annual_report/].
decision in an August 10, 2005, ruling.63 At the same time, the ITC continued to find
threat of material injury in response to the WTO decision and, in November 2004,
issued a determination to this effect under § 129 of the Uruguay Round Agreements
Act (Section 129 determination).64 In February 2005, Canada requested that a WTO
compliance panel review the Section 129 determination65 and also sought
authorization from the WTO Dispute Settlement Body to impose sanctions against
the United States in the amount of $4.25 billion (Can.), an amount based on
accumulated softwood duty deposits, if the United States is ultimately found not to
have complied.66 A panel report issued in November 2005 upheld the U.S. threat
determination.67 Canada has appealed the report.68
Canada maintains that as a result of the affirmative ECC decision in the NAFTA
proceeding, the United States has no legal basis for maintaining the antidumping and
countervailing duty orders on softwood lumber and must thus revoke them.69
63 Opinion and Order of the Extraordinary Challenge Committee, In the Matter of Certain
Softwood Lumber from Canada, Secretariat File No. ECC-2004-1904-01USA (Aug. 10,
64 See Amendment to Antidumping and Countervailing Duty Orders on Certain Softwood
Lumber Products from Canada, 69 Fed.Reg. 75916 (2004). Section 129 of the Uruguay
Round Agreements Act, P.L. 103-465, 19 U.S.C. § 3538, establishes authorities and
procedures to be used by the Executive Branch in responding to adverse WTO decisions
involving agency determinations in antidumping and countervailing duty proceedings.
65 Recourse to Article 21.5 of the DSU by Canada, United States — Investigation of the
International Trade Commission in Softwood Lumber from Canada, WT/DS277/8 (Feb. 15,
66 Recourse to Article 22.2 of the DSU by Canada, United States — Investigation of the
International Trade Commission in Softwood Lumber from Canada, WT/DS277/9 (Feb. 15,
2005). Canada stated in its retaliation request that its proposal represents the total amount
of antidumping and countervailing duty cash deposits collected and not refunded as a result
of the United States’ failure to revoke the May 2002 CVD and antidumping duty orders,
which Canada views as proper implementation of the WTO ruling. The DSU requires that
the level of retaliation authorized by the WTO be “equivalent” to the level of nullification
or impairment of benefits suffered by the complaining country. Because the United States
objected to the request, it was automatically sent to arbitration, as also required under the
DSU. Under an agreement between the parties, however, the arbitration has been suspended
until the compliance panel process is concluded. It may be revived by either party if the
United States is ultimately found not to have complied in the case. See WT/DS277/10 (Feb.
67 Panel Report, Recourse to Article 21.5 of the DSU by Canada, United States —
Investigation of the International Trade Commission in Softwood Lumber from Canada,
WT/DS277/RW (Nov. 15, 2005).
68 Notification of an Appeal by Canada, Recourse to Article 21.5 of the DSU by Canada,
United States — Investigation of the International Trade Commission in Softwood Lumber
from Canada, WT/DS277/16 (Jan. 16, 2005).
69 See Canada, Dep’t of Foreign Affairs and Int’l Trade, “ECC Rules No Justification for
Softwood Lumber Duties,” News Release No. 145, August 10, 2005 at [http://www.dfait-
However, Canada is also concerned that even if the orders are ultimately revoked, the
United States will not refund the accumulated duty deposits and instead will make
them available for distribution to U.S. lumber producers under the CDSOA.70 To
date, the United States has resisted agreeing to a return of these funds.71 Moreover,
the United States is maintaining that, notwithstanding the ECC decision, the
September 2004 negative threat of injury determination has been superseded by the
affirmative Section 129 determination issued in November 2004 and that, with
implementation of the latter, the United States may continue to collect antidumping
and countervailing duties on dumped and subsidized softwood lumber.72 Canada and
Canadian producers have filed a suit in the U.S. Court of International Trade
(USCIT) in which, in light of the NAFTA panel ruling, they are challenging the
United States Trade Representative’s direction to the Department of Commerce to
implement the November 2004 ITC determination.73
Administration and Congressional Response
The Bush Administration proposed repeal of the CDSOA in the FY2004-
FY2006 budget requests. In addition, then-U.S. Trade Representative (USTR)
Robert B. Zoellick notified WTO officials in late 2004 that the United States intends
to comply with the WTO ruling, but that “complex issues like these often take
At the same time, there is considerable opposition in Congress to repealing the
CDSOA. On February 4, 2003, shortly after the WTO panel and Appellate Body
reports were adopted by the WTO Dispute Settlement Body, a letter signed by 70
Senators was sent to the White House urging negotiations with U.S. trading partners
70 See, e.g., “Backgrounder: The Byrd Amendment,” as attached to Canada, Dep’t of Foreign
Affairs and Int’l Trade, “Byrd Amendment: Canada to Retaliate Against United States,”
News Release No. 56, March 31, 2005, at [http://www.dfait-maeci.gc.ca/tna-nac/disp/byrd-
main-en.asp]; “U.S., Canada Set to Resume Lumber Talks with NAFTA Decision
Looming,” Inside U.S. Trade, July 15, 2005, at 1, 17 [hereinafter “Lumber Talks”].
71 “Lumber Talks,” supra note 70, at 17; “U.S. Canada Reengage in Lumber Talks, Industry
Meeting Planned,” Inside U.S. Trade, April 1, 2005, at 6; “Difficulties Seen with Canada
WTO Request for Lumber Sanctions,” Inside U.S. Trade, February 11, 2005, at 1; “Aldonas
Says U.S. Will Not Return Lumber Duty Deposits Without Deal,” Inside U.S. Trade,
January 28, 2005, at 1.
72 Office of the United States Trade Representative, Statements of Spokesperson Neena
Moorjani of August 10, 2005, and August 12, 2005, at [http://www.ustr.gov].
73 E.g., Complaint, Tembec Inc. v. United States, No. 05-00028 (Ct. Int’l Trade January 19,
2005). Canadian producer Tembec also requested NAFTA binational panel review of the
Section 129 determination. Panel review was stayed as of March 22, 2005, pending the
outcome of the Extraordinary Challenge Committee proceeding, and to date has not been
reactivated. North American Free Trade Agreement (NAFTA); Article 1904 Binational
Panel Review: Corrected Notice of Stay of Panel Review, 70 Fed. Reg. 20104 (2005).
74 United States Trade Representative, Press Release, November 10, 2004.
to find a positive resolution rather than making any attempt to change the law. The
letter said that the CDSOA’s “continued operation is critical to preserve jobs that will
be otherwise lost as the result of illegal dumping or unfair subsidies and to maintain
the competitiveness of American industry.”75
Also, in response to the Bush Administration’s efforts to repeal the law in the
FY2004 and 2005 budgets, more than half of the members of the Senate
Appropriations Committee, including Senator Byrd, sent letters (dated June 4, 2003
and June 1, 2004, respectively) to the chairman and ranking member of the Senate
Transportation, Treasury, and General Government Subcommittee warning them
against any attempt to repeal the law.76
CDSOA supporters in Congress also inserted provisions in the Consolidated
Appropriations Acts, 2004 (P.L. 108-199, signed January 23, 2004) and 2005 (P.L.
108-447, signed December 8, 2004) directing the USTR and the Department of
Commerce to initiate WTO negotiations aimed at recognizing the right of WTO
members to distribute monies collected from antidumping and countervailing
duties.77 On April 26, 2004, U.S. negotiators complied, in part, by proposing in a
submission to the WTO Negotiating Group on Rules that negotiators should consider
addressing “the right of WTO members to distribute monies collected from
antidumping and countervailing duties” as part of its work in the Doha Round.78 The
agencies were directed to continue negotiations on the issue in their appropriation act
for FY2005, P.L. 108-447.79 H.R. 2862, 109th Cong., 1st Sess. (2005), the Science,
State, Justice, Commerce, and Related Agencies Appropriations Act, 2006, as
reported in and passed the Senate, also contains a CDSOA negotiation requirement
for USTR and the Department of Commerce for FY2006.80
Congressional support for the CDSOA is not unanimous, however. Some
Members introduced legislation in the 108th Congress seeking to repeal the measure.
S. 1299 (Snowe, introduced June 19, 2003) sought to repeal the CDSOA and use AD
and CVD duties to establish a trust fund to aid communities negatively impacted by
trade. H.R. 3933 (Ramstad, introduced March 10, 2004) sought to repeal the act and
75 Letter to President George W. Bush, signed by seventy Senators, including Robert C.
Byrd, Max Baucus, and Mike DeWine, February 4, 2003.
76 Letter to Senators Richard C. Shelby and Patty Murray signed by Senators Mike DeWine,
Robert C. Byrd, and 13 other members of the Senate Committee on Appropriations, June 4,
2003. Letter to Senators Richard C. Shelby and Patty Murray signed by Senators Mike
DeWine, Robert C. Byrd, and 13 other members of the Senate Committee on
Appropriations, June 1, 2004.
77 U.S. Congress, House, Making Further Appropriations for the Fiscal Year Ending
September 30, 2004, and for Other Purposes, report to accompany H.R. 2673, H.Rept. 108-
78 WTO Negotiating Group on Rules, Three Issues Identified for Discussion by the
Negotiating Group on Rules; Submission of United States, TN/RL/W/153 (Apr. 26, 2004).
79 See H.Rept. 108-792, pp. 65, 67-68, 780, 782. See also S.Rept. 108-344, pp. 70, 73.
80 151 Cong. Rec. S9762 (daily ed. Sept. 8, 2005).
direct that any special accounts established under the law be deposited in the general
fund of the U.S. Treasury.
In the 109th Congress, on July 25, 2005, H.R. 1121 (Ramstad, introduced March
3, 2005, co-sponsored by Ways and Means Trade Subcommittee Chairman Clay
Shaw), a bill seeking to repeal the CDSOA, was included in a long list of bills that
may be included in a miscellaneous duty suspension and technical corrections trade
package proposed by the Ways and Means Trade Subcommittee.81
In addition, on September 9, 2005, Senate Finance Committee Chairman
Grassley introduced two amendments to the Senate version of H.R. 2862 related to
the CDSOA. S.Amdt. 1680 would have directed the USTR to determine and report
to Congress as to whether distribution of CDSOA funds is consistent with U.S. WTO
obligations, and, if found not to be, would prohibit the distribution of CDSOA funds
unless USTR later found and reported that changed circumstances rendered such
distributions not inconsistent with these obligations.82 S.Amdt. 1681 would have
struck the CDSOA negotiation requirement in Senate-reported H.R. 2862 noted
above.83 Neither amendment was voted upon during Senate consideration of the
Budget Reconciliation Bill. On October 26, 2005, a provision repealing the
CDSOA was included in a House Ways and Means Committee-approved budget84
reconciliation resolution. The Entitlement Reconciliation Recommendations for
Fiscal Year 2006 (approved in committee, as amended, by a vote of 22-17) was
referred to the House Budget Committee and subsequently included in H.R. 4241, the
Deficit Reduction Act of 2005 (Nussle, introduced November 7, 2005). Since the
measure provides that any remaining money in AD and CVD accounts and all future
duties will be deposited in the general fund of the Treasury, the Congressional
Budget Office (CBO) estimated that CDSOA repeal would save the government $3.2
billion over five years.85
S. 1932, the Senate version of the budget reconciliation bill, passed on
November 3, 2005. The Senate bill did not include CDSOA repeal, and any move
to include the measure faced swift opposition in the Senate. In a letter to Senate
Majority Leader Bill Frist, 25 Senators expressed that “we do not believe that the
budget reconciliation process should be used to substantively change U.S. trade
81 U.S. Congress, Committee on Ways and Means, Subcommittee on Trade, Shaw
Announces Request for Written Comments on Technical Corrections to U.S. Trade Laws and
Miscellaneous Duty Suspension Bills, Advisory No. TR-3, July 25, 2005.
82 151 Cong. Rec. S9887 (daily ed. Sept. 9, 2005).
84 Subtitle G, Section 8701 of the Chairman’s Amendment in the Nature of a Substitute to
Entitlement Reconciliation Recommendations for Fiscal Year 2006,
85 Congressional Budget Office. “Estimated Budgetary Impact of House Reconciliation
Recommendations (H.R. 4241), at [http://www.cbo.gov/publications/collections/
law.”86 An additional letter, signed by Senators Baucus, Byrd, Conrad, and Inouye
(ranking members of the Senate Finance, Appropriations, Budget, and Commerce
committees, respectively), asked Senator Frist to “make certain that the Senate not
accede to any provision to repeal or modify CDSOA that may be unwisely included
by the House in its reconciliation package.”87 Senator Grassley, in favor of repeal,
stated that the budget reconciliation package was the only possible vehicle in the
Senate for repealing the CDSOA in the 109th Congress.88 Despite strong support for
the measure, he predicted that, if the CDSOA were ultimately included in a budget
reconciliation measure, many senators would not be likely to vote against the entire
bill over that one provision.
On November 18, 2005, the House inserted the text of H.R. 4241 into S. 1932,
and passed an amended version of S. 1932 — including the CDSOA repeal measure
— by a vote of 217-215 (recorded vote number 601). Despite a motion to instruct
Senate conferees to insist that CDSOA repeal not be included in the S. 1932
conference report,89 House and Senate conferees agreed to include a CDSOA
provision that would repeal the measure as of the date of enactment of S. 1932, but
would allow the disbursement of duties on all subject merchandise entering the
United States before October 1, 2007.90 On December 19, 2005, the House passed
the conference report by a vote of 212-206.
During Senate debate on the S. 1932 conference report, Senator Craig
participated in a colloquy on his behalf and that of Senator Burns clarifying that “the
bill requires distribution of all antidumping and countervailing duties finally
determined, ultimately assessed on any and all imports of merchandise that are
entered, or withdrawn from warehouse for consumption by the deadline of October
1, 2007,” and that “liquidation or assessment of duties need not occur prior to the
deadline of October 1, 2007 as a condition of distribution and that the duties
ultimately assessed will be distributed regardless of the date on which they are finally
determined and collected.” 91 Senator Craig also stated his understanding that “the
CDSOA shall operate ‘as if’ there had been no repeal; meaning that Customs will
maintain all existing aspects of the program codified at 19 U.S.C. §1675c and
86 Letter to Senate Majority Leader Bill Frist signed by Senators Mike DeWine, Larry E.
Craig, and 24 others, November 4, 2005.
87 Letter to Senate Majority Leader Bill Frist signed by Senators Max Baucus, Robert E.
Byrd, Kent Conrad, and Daniel K. Inouye, November 4, 2005.
88 “‘Byrd’ — To Continue to Be or Not,” Washington Trade Daily, November 9, 2005, p.
89 Motion was sponsored by Senator DeWine. 151 Cong. Rec. S13523 (daily ed. Dec. 14,
90 S. 1932, § 7601, as contained in H.Rept. 109-362, 151 Cong. Rec. H12679 (daily ed. Dec.
18, 2005). Regarding continued disbursements, section 7601(b) of the bill provides as
follows: “All duties on entries of goods made and filed before October 1, 2007, that would,
but for subsection (a) of this section [repealing the CDSOA], 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).”
91 167 Cong. Rec. S14206 (daily ed. Dec. 21, 2005)(statement of Sen. Craig).
contained in accompanying regulations ....”92 Senate Majority Leader Frist agreed
that “it is my understanding that my colleague is correct in his interpretation of the
language agreed to by the conferees,” adding that “duties collected on products
entering on or after October 1, 2007, will be deposited with the U.S. Treasury.”93
The Senate ultimately approved the S. 1932 conference report in a 51-50 vote,
with Vice President Dick Cheney casting the deciding vote. However, due to a point
of order upheld in the Senate that any bill language dealing with Medicare and
Medicaid should not be considered as part of a budget bill, the Senate-passed version
of the conference report was slightly different from the House version — meaning
that the House needed to consider the conference report once again. The House took
final action approving the legislation on February 1, 2006, with a vote of 216-214.94
Debate on Pros and Cons of Repeal
The Byrd Amendment controversy is one component of a larger debate in
Congress concerning the overall direction of U.S. trade policy. Although many
Members acknowledge that there are benefits received by liberalizing trade flows,
there is sometimes disagreement on the proper balance between these benefits and
the transition costs incurred to domestic industries, firms, and workers by increased
global competition. Because the added welfare from trade tends to be diffused over
the population as a whole, while losses fall disproportionately on import-competing
industries and regions, Members’ perceptions of free market policies differ. With
regard to the CDSOA, supporters maintain that the measure helps level the playing
field by compensating U.S. producers adversely affected by unfair trading practices.
Now that some co-complainants have assessed WTO-authorized retaliatory duties on
U.S. exports, however, Congress may later face as much pressure to repeal the
measure from U.S. exporters as it does from the domestic producers who benefit
from the measure.
The debate over CDSOA compliance is also related to the issue of differing
viewpoints in Congress on the merits of WTO membership, a topic which has also95
been addressed in the 109th Congress. As an international organization designed
93 Ibid. (statement of Sen. Frist).
94 152 Cong. Rec. H68 (daily ed. Feb. 1, 2006).
95 Section 125 of the Uruguay Round Agreements Act, P.L. 103-465, requires the U.S. Trade
Representative to present to Congress a report that includes an analysis of the costs and
benefits of U.S. participation in the WTO beginning March 1, 2000, and every five years
thereafter. Congress may also vote on a joint resolution disapproving U.S. participation in
the WTO at this time. See CRS Report RL32700, Seeking Withdrawal of Congressional
Approval of the WTO Agreement: Background, Legislative Procedure, and Practical
Consequences, by Vladimir Pregelj; and CRS Report RL32918, World Trade Organization
(WTO): Issues in the Debate on U.S. Participation, by Ian F. Fergusson and Lenore Sek.thst
Withdrawal Resolution H.J.Res. 27, 109 Cong., 1 Sess, (2005), was defeated in the House
to ensure that global trade flows more easily, predictably and freely, the WTO serves
as a forum for multilateral trade negotiations and the settlement of disputes.96
Questions may arise as to the overall benefit of WTO dispute settlement, which the
United States has used to ensure that U.S. exporters receive open access and fair
treatment in foreign markets,97 but which has also resulted in rulings that various U.S.
laws, regulations, and regulatory actions, particularly in the trade remedy area, are
violative of WTO agreements.98
U.S. trade policy is also inextricably related to U.S. foreign policy interests.
Some observers are concerned that U.S. leadership in this arena could be
compromised by U.S. noncompliance with certain WTO obligations and may cause
strains in U.S. relations with nations that are essential for achieving other foreign
This section provides an analysis of issues Congress is likely to consider as it
debates the pros and cons of repealing the CDSOA from these perspectives.
Trade remedy actions in general are a source of controversy among economists
and other policy makers. Some believe that the CDSOA increases the level of
economic inefficiency brought about by these actions, while others assert that the
small amount of inefficiency brought about by the measure is worth the cost of
preserving U.S. industries and jobs adversely affected by unfair trading practices.
What follows is an analysis of the economic arguments by both supporters and
opponents of the CDSOA.
Opposing Viewpoints. Most economists support the most efficient
allocation of resources in an economy. Therefore, they believe that trade
liberalization provides for optimal domestic and global economic welfare because
nations are able to specialize in the production and export of products in which they
have a comparative advantage in terms of costs and resources, and buy or import
products for which they do not have an advantage. Economic theory indicates that
these benefits accrue even if a country unilaterally lowers its barriers to trade, and
on June 9, 2005.
96 CRS Report 98-928, The World Trade Organization: Background and Issues, by Lenore
97 See, e.g., Office of the United States Trade Representative, 2005 Trade Policy Agenda
and 2004 Annual Report, pp. 101-110 (2005), at [http://www.ustr.gov/Document_Library/
Reports_Publications/2005/2005_T rade_P olicy_Agenda/Section_Index.html ].
98 For a discussion of recent WTO cases with rulings adverse to the United States, see CRS
Report RL32014, WTO Dispute Settlement: Status of U.S. Compliance in Pending Cases,
by Jeanne J. Grimmett.
that countries that impose trade barriers are the ones that are harmed the most
Therefore, most economists believe that trade remedy actions (the vast majority
of which are AD or CVD cases) in and of themselves introduce inefficiencies in both
domestic and international economies that result in decreased economic welfare.
Some economists hold that if other countries and firms decide to subsidize or dump
goods at lower cost in the U.S. market, it amounts to an additional benefit to the U.S.
economy in the long run, especially if the practice continues over time.
Most analysts, however, acknowledge that allowances for a certain amount of
inefficiency resulting from trade remedies must be made in order to maintain public
support for trade liberalization. Others argue that efficiency is secondary when
preserving industries considered critical to U.S. national and economic security
interests. However, opponents of the CDSOA assert that the measure provides a type
of “double” remedy to domestic producers, thus enhancing the economic inefficiency
of AD and CVD actions.
Injury to Downstream Industries. Trade remedy actions often lead to price
increases on targeted goods — many of which are industrial inputs used by other
domestic industries. To the extent that the CDSOA encourages domestic producers
to file additional AD or CVD claims, the measure also contributes to these price
increases. Downstream industries (for example, the automobile and housing
industries which use steel and lumber to manufacture their products) bear the cost of
trade remedies in the form of higher-cost inputs for their products. As a result, these
industries may have to raise the price of their goods. At a recent House Small
Business Committee hearing, for example, a manufacturer of specialty automotive
parts complained that inflated prices for steel inputs, brought about in part by trade
remedy actions, caused unintended “collateral damage” which threatened his
In addition, since the EU and Canada have already begun retaliating against U.S.
exports, products targeted for increased duties may also become uncompetitive in the
receiving market. Therefore, many economists contend that the CDSOA, while
providing a benefit to many domestic firms injured by dumping or subsidies, may
in turn cause injury to U.S. downstream producers, exporters, and ultimately,
Distribution of Benefits. According to a Congressional Budget Office
(CBO) memorandum on the CDSOA, the statute may lead to unequal distribution of
99 Baghwati, Jagdish, “Free Trade: Old and New Challenges,” Economic Journal, Mar.
100 U.S. Congress, House Committee on Small Business, Trade Fairness Hearing: How We
Can Make Our Trade Laws Work for America’s Small Businesses, Remarks of Mr. Wallace
Smith, E & E Manufacturing Company, Inc.
benefits within an industry that could give some firms an advantage over domestic,
as well as global, competitors.101
First, according to the CDSOA, only the firms in support of an AD or CVD
petition resulting in an AD or CV duty order are eligible to receive disbursements.
Therefore, even though all companies in an industry that producing the targeted
product may benefit from the remedial effect of trade remedy action, companies are
only eligible for CDSOA payments if they are able to certify that they supported the
initial investigation. Those producers within the industry who decide not to support
the trade remedy action could be placed at a disadvantage vis a vis their domestic
Additionally, due to the considerable transaction costs involved in filing and
supporting trade remedy petitions (estimated to range from $500,000 for the simplest
case to millions of dollars for more complex ones), it is possible that more efficient
firms in an industry might be less likely to support a trade remedy petition. Thus,
opponents argue the CDSOA mechanism could adversely affect the more efficient
firms in a domestic industry, while more inefficient firms receive a benefit.103
For these reasons, the decisions of U.S. manufacturers in some industries to
pursue AD or CVD investigations have caused intense and vocal debate within the
domestic industry as a whole. For example, when some U.S. furniture makers and
worker unions decided to file a petition on wooden bedroom furniture from China,
many larger furniture retailers strongly objected, saying that they would lose jobs and
business on the retail side if the petition went forward, while producers maintained
that far more manufacturing jobs were being lost than would be lost on the retail side
of the business.104 In this particular case, many U.S. furniture manufacturers in
support of the investigation speculated that the cost of lost business from U.S.
retailers in retaliation for their support may well exceed the combined benefit of the
AD order and CDSOA disbursements.105
According to the CBO, CDSOA payments may also reduce the receiving
industry’s incentive to take the necessary steps to remain competitive, such as
changing the product mix or developing more efficient methods of production. Since
the affected industry only qualifies for disbursements as long as it manufactures a
particular product, firms may decide to produce the good longer than it is efficient
to do so, rather than allocating resources to producing alternative products that could
101 Economic Analysis of the Continued Dumping and Subsidy Act of 2000. Congressional
Budget Office, March 2, 2004. [http://www.cbo.gov].
104 See Notice of Amended Final Determination of Sales at Less Than Fair Value and
Antidumping Duty Order: Wooden Bedroom Furniture from the Peoples’ Republic of
China, 70 Fed. Reg. 329 (2005).
105 Becker, Denise. “Government Delays Ruling on Tariffs; the Furniture Industry Must
Wait Until June 17 for Action, if Any, on China,” Greensboro News and Record, April 13,
help firms return to competitiveness.106 Because CDSOA payments are also linked
to production costs, firms may be encouraged to increase output beyond the levels
signaled by market incentives, ultimately driving down the cost of the product.107
Supporting Viewpoints. Many Members have witnessed the substantial
benefits that the CDSOA has conferred on industries and workers in their states and
congressional districts. In a February 2005 hearing before the U.S.- China Economic
and Security Review Commission, some Members testified that the CDSOA enabled
U.S. firms — many of them small, family-run companies — to purchase new
machinery, hire more workers, and compete head-to-head with unfairly traded108
imports from China.
Supporters of the CDSOA believe that U.S. producers are facing an uneven
playing field due to price discrimination and artificial competitive advantage brought
about by unfairly dumped or subsidized imports. Continued dumping of the targeted
merchandise causes U.S. products to remain less competitive, despite additional
duties assessed. Therefore, supporters believe that the CDSOA creates an additional
disincentive for foreign exporters to continue dumping and compensates domestic
producers with financial resources that can be used to maintain competitiveness.
Proponents of this view believe that trade remedies, combined with the added
benefit provided by the CDSOA, are worth the cost of the economic inefficiency
because they promote trade fairness, restore competitive balance, and preserve
critical U.S. industries and jobs. Supporters believe that many countries limit outside
competition in their economies by creating “sanctuary markets” — limiting both
domestic and international competition — thus enabling chosen firms to charge
higher prices for goods at home to offset the lower prices charged in the foreign
market — at the expense of industries abroad that produce similar merchandise.
Therefore, some supporters believe that trade remedy actions, combined with the
CDSOA may actually encourage international trade by providing an “interface109
mechanism” between two radically different economic systems.
Some recent economic research also suggests that the CDSOA could actually
lead to higher welfare for the domestic economy, as well as lower overall
antidumping duties, if the goal of administrative authorities is to provide affected
domestic industries with higher CDSOA payments. According to this theory, since
the CDSOA gives the duty revenue to the domestic industry, the affected industry is
interested in receiving the proceeds from AD or CVD action as well as profits. If
administrative authorities and policy makers are, in turn, concerned about the
106 Economic Analysis of the Continued Dumping and Subsidy Act of 2000. Congressional
Budget Office, March 2, 2004. [http://www.cbo.gov].
108 U.S.-China Economic and Security Review Commission. Hearing on China and the
WTO: Assessing and Enforcing Compliance. February 3-4, 2005 [http://www.uscc.gov/
hearings /2005hearings /hr05_02_3_4.htm] .
109 Mastel, Greg, Antidumping Laws and the U.S. Economy. Armonk, NY: M.E. Sharpe,
affected industry, they may actually choose to assess lower AD or CV duties so that
imports of the subject merchandise will continue. Thus, greater revenues could be
collected by the industry, and lower trade remedy duties could reduce the overall
economic inefficiency of the actions.110 However, since the congressional intent of
the CDSOA and trade remedy actions in general seems to be to discourage, rather
than encourage, continued dumping of subject merchandise, modifications to the
existing statutes would be required if increased duty proceeds were desired.
WTO and Other Trade Concerns
Many policymakers believe that a multilateral, rules-based trading system that
enhances predictability and progressively reduces barriers to trade is desirable. Many
also believe that the WTO dispute settlement mechanism, of which the United States
was a primary architect, is a unique and effective means toward achieving that end,
because it helps ensure that WTO members’ trade practices are consistent with their
GATT/WTO commitments. Those who share this view believe that U.S. compliance
with WTO rulings is an important demonstration of U.S. credibility and leadership
in the global economy, and will in turn generate increased confidence in the
multilateral trading system.
Dispute Panels Overreached? Although CDSOA supporters do not
necessarily disagree with the value of the WTO or its dispute settlement mechanism,
some believe that in the CDSOA ruling, WTO panels overreached by creating
obligations for the United States beyond those agreed to. According to this view, the
panels violated Article 3.2 of the WTO Dispute Settlement Understanding (DSU),
which states that recommendations and rulings of the Dispute Settlement Body
cannot add to or diminish rights and obligations in the covered agreements. These
supporters believe that the WTO panels infringed on U.S. sovereignty by mandating
an uncalled-for change to U.S. laws, and in addition encroached on the constitutional
authority of the U.S. Congress to decide how government revenues should be
spent.111 Moreover, supporters argue that since the complaining parties were unable
to demonstrate sufficiently that their economies suffered “nullification or
impairment” through CDSOA implementation, the measure should have been found112
to be in compliance with WTO obligations.
Those who favor CDSOA repeal respond that the United States, along with
other WTO members, agreed voluntarily to limit the means by which they would
shield affected industries from the effects of import competition (including unfair
trade) when they agreed to join the WTO. Furthermore, as the Appellate Body report
states, the DSU provides that where a violation of any WTO agreement is found,
110 Collie, David R. and Vandenbussche, Hylke. Antidumping Duties and the Byrd
Amendment. London: Center for Economic Policy Research, Discussion Paper 4780,
December 2004 [http://www.cepr.org/pubs/new-dps/dplist.asp?dpno=990].
111 U.S.-China Economic and Security Review Commission. Hearing on China and the
WTO: Assessing and Enforcing Compliance. Testimony of Senator Robert Byrd, February
112 U.S.-China Economic and Security Review Commission. Hearing on China and the
WTO: Assessing and Enforcing Compliance. Testimony of Alan Wolff, February 3, 2005.
there is normally a presumption that the violation has an adverse impact on other
parties to the agreement. Thus, they say, the panel properly found that the CDSOA
nullifies or impairs benefits accruing to the complaining parties even if they could not
demonstrate actual economic impairment.113
Discourages Suspension Agreements. Some who favor CDSOA repeal
also believe that the law may discourage administrative authorities from accepting
alternative arrangements to trade remedy actions, such as mutually agreed-upon
suspension agreements or quantitative restrictions — also called “price undertakings”
in the WTO agreements. These observers believe that if the affected industry expects
to receive CDSOA disbursements, petitioners might put pressure on administrative
authorities not to negotiate or accept suspension agreements.
Such alternative arrangements are favored by many WTO members because they
seem to inflict a lesser amount of economic damage on the exporting industry, and
by many economists because they may reduce the overall level of economic114
inefficiency in the global trading system. The United States, for example, has in
force ten such agreements (known in U.S. law as suspension agreements), including
alternative measures on hot-rolled steel imports from Brazil and Russia; cut-to-length
carbon steel plate from Russia and Ukraine; and tomatoes imported from Mexico.115
Some of the complaining parties in the WTO dispute argued that the United
States violated this provision in the WTO agreements. However, the dispute
settlement panel rejected their arguments on the grounds that both the Antidumping
and SCM Agreements stipulate that member countries’ acceptance of such alternative
measures is strictly voluntary. Additionally, WTO panels found that U.S. law
requires the consideration of the interests of all parties, including downstream
industries and consumers, before accepting such an agreement.116
Concern of Emulation. When the CDSOA was enacted, some supporters
of trade liberalization predicted that the availability of CDSOA disbursements would
provide a direct incentive for U.S. import-competing industries to file AD and CVD
113 CDSOA Appellate Body Report, supra note 40, at 104; CDSOA Panel Report, supra note
In cases where there is an infringement of the obligations assumed under a
covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment. This means that there is normally a presumption that
a breach of the rules has an adverse impact on other Members parties to that
covered agreement, and in such cases, it shall be up to the Member against whom
the complaint has been brought to rebut the charge.
114 Increased use of price undertakings is a focal point during discussions of proposals to
amend the Antidumping Agreement in the Doha Development Agenda. See WTO
Negotiating Group on Rules, Compilation of Issues and Proposals Identified by Participants
in the Negotiating Group on Rules, at 46-48, TN/RL/W/143 (Aug. 22, 2003).
115 U.S. International Trade Administration. “Suspension Agreements in Effect.”
116 CDSOA Panel Report, supra note 39, at 318.
petitions in a country that was already one of the most aggressive users of trade
remedies.117 Initially, it seemed as if this prediction might be accurate, as U.S. AD
and CVD initiations jumped from 54 in 2000 to 94 in 2001. However, U.S.
initiations actually dropped in 2002 to 39, and the number was only slightly higher
in 2003 with 41 initiations.118 Therefore, there is little evidence to suggest that the
CDSOA, in itself, has led to an escalation of total U.S. AD or CVD petitions.
One reason that the number of U.S. trade remedy initiations has not increased
may be that, for most industries, the transaction costs involved in filing AD and CVD
petitions far outweigh the additional benefits received, even if CDSOA payments are
factored in. Although a few businesses have received millions of dollars in annual
payments (including the roller bearings, steel, seafood, pineapple, and candle
industries), the vast percentage of companies received much less. For example, of
the more than 500 companies that received CDSOA payments in FY2004, only about
100 received more than $100,000. A few companies that filed for disbursements in
FY2004 found that they had been overpaid in previous years and were liable to pay
back the difference.
Some observers have also expressed concern that other countries might follow
the U.S. example and establish similar laws, thus exacerbating an already apparent
increase in trade remedy actions worldwide prior to 2001. In this view, such increases
could be harmful to U.S. exports and increase the decline in international economic
welfare already brought about by trade remedy actions. However, to date, no other
WTO member has adopted similar laws, and AD and CVD initiations have declined
worldwide, from a total of 393 in 2001, to 319 in 2002, and to 246 in 2003.119 Some
observers believe that the decline in trade remedy actions is only temporary, however,
and attribute it to international restraint pending talks on trade remedies in the Doha
Doha Development Agenda Negotiations. Some believe that it may be
in the U.S. interest to comply with the Byrd Amendment ruling in view of larger U.S.
goals in the ongoing Doha round of WTO multilateral negotiations, especially if the
United States seeks to fend off major modifications to the Antidumping or SCM
Agreements. Since many countries regard trade remedy reform as a “make or break”
issue in terms of their acceptance of any final Doha Development Agenda (DDA)
agreement, some observers believe that lack of action on CDSOA repeal could
weaken the U.S. position in the ongoing trade remedy negotiations. This could be
problematic because the gap in negotiating positions between the United States and
other WTO countries on trade remedies is large and may be difficult to narrow.
Some in Congress are also concerned about the ability of the USTR to negotiate
on trade remedy modifications in a manner favorable to their manufacturing
117 Economic Analysis of the Continued Dumping and Subsidy Act of 2000. Congressional
Budget Office, March 2, 2004, [http://www.cbo.gov], p. 5.
118 For a more complete discussion of AD statistics worldwide, see CRS Report RL32810,
WTO: Antidumping Issues in the Doha Development Agenda, by Vivian C. Jones.
119 World Trade Organization statistics on trade remedy action,
[ h t t p : / / www.wt o.or g/ engl i s h/ t r at op_e/ a dp_e/ a dp_e.ht m# st at i s t i c s] .
constituents, because they believe that the USTR did not expend very much effort in
attempting to keep trade remedy negotiations off the table in the DDA.120 This
perception, combined with the Bush Administration’s repeatedly declared support for
CDSOA repeal, may have contributed to increased resistance in of some in Congress
toward WTO rulings and proposals that might weaken U.S. trade remedy laws in
general, and repeal of the CDSOA in particular.
Many CDSOA supporters favor seeking a negotiated change to the Antidumping
Agreement in DDA talks that would permit all WTO members to distribute duties
collected pursuant to AD or CVD action.121 This is the approach Congress instructed
the Bush Administration to take as part of the 2004 and 2005 Omnibus
Appropriations. Many CDSOA supporters believe that this is the proper approach
to follow if there is genuine concern that dispute settlement panels created additional
obligations for the United States in the CDSOA ruling.
Other Trade Agreements and Issues. The United States has entered into
free trade agreements (FTAs) with four of the complaining parties in the CDSOA
dispute — Canada, Mexico, Australia, and Chile — and is actively pursuing trade
agreements with others, including Thailand. U.S. trade remedy policy in general, and
the CDSOA in particular, might dampen the economic welfare effects accruing to
U.S. businesses, investors, and consumers from these FTAs due to higher costs
brought about by the measure (and eventual retaliation), even as these FTAs have led
to significant tariff reductions on both sides. With respect to Canada, the possible
availability for disbursement to U.S. lumber producers of several billion dollars in
antidumping and countervailing duties on Canadian softwood lumber has added
complexities to the resolution of the ongoing dispute between the United States and
Canada over lumber trade.
Secondly, the Bush Administration has often used access to the U.S. market in
general, and trade agreements, in particular, to promote economic growth and
development in lesser developed countries. Preferential market access is provided
to many countries, including some of the complaining parties in the CDSOA dispute,
through the Generalized System of Preferences (GSP) and other programs with a
view toward fostering economic and governmental stability. For example, Indonesia
and Thailand, both complainants in the CDSOA dispute, are also countries that the
terrorist groups. Although it is unclear that these or other nations have actually
suffered monetary “nullification or impairment” as a result of the CDSOA, the act
is seen by some as potentially counterproductive to U.S. economic development
goals in some developing nations.
120 “Rockefeller Attacks Zoellick for Doha, Failure to Appear at Markup,” Inside U.S. Trade,
December 14, 2001.
121 U.S.-China Economic and Security Review Commission. Hearing on China and the
WTO: Assessing and Enforcing Compliance. Testimony of Senator Mike DeWine,
February 3, 2005.
122 National Commission on Terrorist Attacks Upon the United States, Final Report, July 22,
Conclusion and Options for Congress
The adoption of WTO panel and Appellate Body reports by the WTO Dispute123
Settlement Body cannot in itself effect a change in U.S. law. In this case a statute
has been found to be in violation of WTO agreements. Since the Executive Branch
cannot amend or remove the measure under existing statutory authorities,
congressional action would be needed to do so. Under WTO rules, withdrawal of a
violative measure is ordinarily the main objective of a WTO dispute settlement
proceeding. Nevertheless, a defending Member may choose to seek other avenues
of resolving a dispute. If the Member does not comply by the end of an established
compliance period, however, it may also become subject to sanctions until the
measure is removed. According to WTO rules, however, any retaliation must be
temporary, lasting only as long as a Member is not in compliance or until a mutually
satisfactory arrangement is reached.
If the CDSOA remains in force in its current form, it will continue to be a part
of U.S. trade remedy law, and import-competing industries that are parties to
successful AD and CVD petitions will continue to receive benefits under the act.
However, since two of the complaining parties (accounting for a large percentage of
U.S. exports) have already taken steps toward retaliation, U.S. exporters could begin
to experience the effects of retaliation in mid-to-late 2005. These exporters may then
begin to lobby Congress for CDSOA repeal.
Were the statute to be repealed, the United States would be in compliance with
the WTO rulings and any retaliation that has begun would need to cease. At the same
time, CDSOA repeal could lead to additional, if temporary, instability to import-
competing industries already identified as vulnerable because they may have become
dependent on CDSOA disbursements to some degree. Were Congress to consider
a gradual reduction of benefits over time, complaining parties may still view the
remaining benefits as WTO-inconsistent and may continue to retaliate as long as the
amended measure remains in place. However, the Administration might be able to
negotiate a mutually satisfactory arrangement with the complaining parties, provided
full repeal of the measure were assured at the end of the process. Repeal of the
CDSOA itself would do nothing to affect other U.S. AD or CVD laws, procedures
or actions, and domestic industries would continue to benefit from these measures.
In the event the CDSOA were repealed, Congress might at the same time
establish another program in its place that would deal in some other way with the
adverse effects of international trade on firms, workers, and communities in a way
that might be considered WTO-compliant. S. 1299 (Snowe), the “TRADE for
America’s Communities Act,” introduced in the 108th Congress, sought to repeal the
CDSOA and deposit the duties instead into a “Community Trade Readjustment and
Development Enhancement Trust Fund” that would assist communities adversely
affected by unfair trade. Many CDSOA supporters maintained that this approach
(along with similar proposals to expand Trade Adjustment Assistance for firms and
workers with AD and CV duties) was not acceptable, however, because protection
123 For further discussion, see CRS Report RS22154, WTO Decisions and Their Effect in
U.S. Law, by Jeanne J. Grimmett.
afforded by the CDSOA could keep firms operating and workers in the jobs they
currently have, rather than reacting to job losses and economic dislocation after
damage had occurred.
As evident in recent appropriations legislation, Congress has also favored
negotiations leading to recognition of the existing right of WTO Members to
distribute collected AD and CV duties in a manner similar to the CDSOA. This
course of action is favored by many import-competing business associations,
according to industry sources.124 If WTO Members agreed, the United States, along
with all other Members, would have the option, expressly supported by the WTO, of
disbursing AD or CV duties to affected companies or earmarking them for other uses.
Many economists are concerned, however, that replication of the measure by other
countries could lead to a multiplication of inefficient trade remedy actions
124 “White House Quiet on Plans for Complying with WTO Byrd Decision,” Inside U.S.
Trade, January 14, 2005, at 1.