Domestic Implementation of WTO

Trade Remedy Decisions in the

United States of America
UDBHAV TIWARI
(INTERNATIONAL TRADE TEAM)

INTERNSHIP PRESENTATION

NOVEMBER, 2015

Trade Remedies
Permissible import restraints that otherwise would be

contrary to WTO principles

essentially, exceptions to the bedrock WTO rules of binding tariffs

and MFN (most favored nation) treatment

Designed to allow relief from imports deemed unfair,

or adjustment from a surge in imports

often called the safety valve to allow further trade liberalization in

developing economies

WTO identifies three primary types:

safeguards (temporary relief from import surges)

countervailing duties (counteracting subsidies)
antidumping (counteracting unfairly low prices)

Trade Remedy Investigations in the USA

Antidumping and Countervailing Duty investigations

are carried out under authorities in Title VII of the

Tariff Act of 1930 in the USA.
Commerce
Department

International Trade
Commission

Existence of Dumping or
Subsidization

Material Injury from Dumped

or Subsidized Import

Level of Dumping or
Subsidization

Threat of Material Injury from

Dumped or Subsidized Import

Trade Remedies at the WTO

AD and CVD Tariffs
counteract unfair trade
practices
[AD & CVD Agreements]

Safeguards protect from

serious impact of
unforeseen imports
[Safeguards Agreement]

(AD) and (CVD)

Imports imply
Unfair Trading

All imports are

considered fairly
traded, just
wrongly timed.

Allegation of
unfairness &
tariffs must target
individual country

All sources
(countries) are
included bar few
exceptions (Dev.
Nations, etc.)

Domestic Implementation & the WTO

Trade Remedy Agreements allow

WTO DSU governed enforcement.
Minimum
Procedural
and
Substantive
Requirements
Enforceable at the
WTO

Three stage process at

the WTO:
(1) Consultations
(2) Panel & AB
Reports &
(3)Compliance
Proceedings

Adverse DSB Reports

require the defending
Member to initiate
compliance plans or
face
alternative
retaliatory measures
from
affected
nation/s.

Uruguay Round Agreement Act

Uruguay Round Agreements Act (URAA)

passed by the U.S Congress in 1994
Relationship of WTO Agreements to Federal and State
U.S law and details remedies based on alleged
violations of WTO agreement
Intended to bring U.S. law fully into compliance with U.S.
obligations under the WTO Agreements.
Harshly Restricted by Section 123 & 129 for Court and
Regulatory Agency Proceedings

Section 129 Regulatory Agency Determinations in

Trade Remedy Implementation Proceedings
Sec. 129 - Authorities and procedures under which

regulatory authorities may issue new determinations

to implement adverse WTO decisions.
United States Trade Representative has sole
discretion to invoke Section 129 Determinations
Department of Commerce (DOC) and/or the U.S.
International Trade Commission (ITC) conduct
accelerated investigations in a flexible procedure
Congressional Committee consultations are required
by the USTR at almost every stage to ensure oversight

Pre-Initiation Section 129 Determination Procedures

USTR must carry out

Congressional and
Public Consultations
for almost all actions
of the USA at the
WTO, including Trade
Reviews & DSU
Proceedings.

During DSU
Proceedings, Section
127 Requires the USTR
to inform and consult
with : (1) Congressional
Committees (2)
Affected Domestic
Producers and (3) Issue
a Notice for Public
Participation

Even in the event of an

adverse WTO Decision
the USTR must also
consult with
Congressional
Committees before
initiating Section 129
implementations.

Possible Administrative Actions Following WTO

Decisions in the USA
United States Trade
Representative
[Sole Discretionary
Power]

Congressional
Consultations Sec
122 & Others.

Department of
Commerce 129 (b)
[Existence & Margin
of Unfair Imports]

International Trade
Commission 129 (a)
[Injury caused by
Unfair Trade Imports]

Simultaneous Section 129 Administrative Actions in

US Carbon Steel (India)

US Carbon Steel
(India)

Simultaneous
Administrative Actions

Rare and possibly

unique in Sec. 129
History

WTO Anti Dumping

Case, in favour of
India.
United States has
initiated Section 129
Determination,

USTR
instructed
Dept. of Commerce
to
initiate
determination
of
dumping. [Sec. 129
(b)]
Simultaneously,
asked the USTR to
issue an advisory
report on possible
future actions. [Sec.
129 (a)]

The DoC and the ITC

both
look
into
separate areas of
dumping claims.
Therefore, in most
situations, the DoC is
asked to determine if
dumping is occurring
in the first place
before
ITCs
involvement in Sec.
129 Proceedings.

Section 129 Determinations Sequence of Events

1.Adverse ruling by
the DSB at the WTO
against the USA

2. USTR enters into

consultations with
DoC and Cong.
Commit. for possible
future actions.
3. Based on these
consultations, the
USTR decides
between Sec. 129
measures or alt.
measures including
accepting retaliation.

6. If the DoC is
involved, the DoC is
must re-conduct
investigations t to
ensure compliance.
[180 days]

7. The procedure for

both DoC and the ITC
is largely flexible and
uncodified, to expedite
the process
[Elaborated in Next
Slide]

5. If the ITC is
involved, the ITC is
requested to issue an
advisory report on
future actions.
[21 days]

8. Once the USTR

receives the new
determination, it has
complete discretion on
how & when to
implement them
domestically in the USA

4. Upon a positive
advisory report, the
ITC must re-conduct
investigations t to
ensure compliance
[120 days]

9. If the USTR decides to

implement the new
ruling, it must be
published in the Federal
Register. Further, the
new determination only
applies prospectively.

Section 129 Determinations Uncodified Procedure for

Investigations
1. For both DoC and
ITC investigations, a
Public Notice is filled
in the Federal
Register.

6. Interested parties
(and optionally other
third parties ) may
issued questionnaires for
factual information

7. Preliminary Results of
the Determination are
issued based on WTO
decision and comments
are requested from
parties and the public

2. Interested Parties file

Letters of Appearance
and a Administrative
Protective Order for
information
confidentiality

5. These questioners
and all future
information is available
publicly at the DoC as
well as on ACCESS for
public viewing.

8. Then, parties may be

given an opportunity to
file a written brief and
hold hearings, including
rebuttals to all
information submitted.

3. Once LoA and AoC are

approved, interested
parties are given login to
ACCESS, an online
document & filling
interface.

4. All further actions

and information is
usually governed by
subjective formats and
time deadlines based on
Admin Rev. procedures

9. On the basis of the

information received,
public comments and the
WTO Decision, the DoC
and/or ITC issue their
new duty to the USTR.

Post Section 129 Proceedings Domestic Avenues