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Courtney Brown — Tue, 03 May 2022 18:01:10 +0000

The unprovoked invasion of Ukraine by the Russian Federation has resulted in hundreds of billions of dollars of destruction across the country of Ukraine in terms of destroyed infrastructure, factories, buildings and more. With the Black Sea not accessible for Ukrainian exports and with the war seriously disrupting both agriculture and manufacturing, Ukraine has been dependent on assistance from countries and multilateral organizations for funds to keep the country functioning. The United States, European Union, IMF, World Bank and others have been providing billions in economic assistance and will likely need to continue to do so for many months to come.

On April 27, 2022, the European Commission proposed a one year suspension of customs duties and antidumping and safeguard duties on imports from Ukraine to bolster Ukraineʼs economy.

A summary of what is proposed is shown on page 1 of the draft regulation and is copied below.

“Therefore, the Commission is proposing a Regulation of the European Parliament and of the Council introducing trade-liberalising measures in the form of the three following measures, which should apply for a period of one year:

“– Temporary suspension of all outstanding tariffs under Title IV of the Association Agreement between the EU and Ukraine (hereinafter referred to as ʻthe Association Agreementʼ) establishing a deep and comprehensive free trade area (DCFTA). This concerns three categories of products:

“ industrial products subject to duty phase out by the end of 2022;

“ fruits and vegetables subject to the entry-price system;

“ agricultural products and processed agricultural products subject to tariff-rate quotas.

“– Temporary non-collection of anti-dumping duties on imports originating in Ukraine as of the date of entry into force of this Regulation; and

“– Temporary suspension of the application of the common rules for imports (safeguard)2 with respect of imports originating in Ukraine.

“These temporary and exceptional measures will contribute to supporting and fostering the existing trade flows from Ukraine to the Union. This is in line with one of the main objectives of the Association Agreement, which is to establish conditions for enhanced economic and trade relations leading towards Ukraineʼs gradual integration in the EU Internal Market.”

This type of trade assistance is obviously important to help keep Ukrainian businesses operating where possible and is appreciated by Ukraine during the challenging times they are living through.

For the European Union, the temporary suspension of remaining tariffs and existing antidumping and safeguard duties on Ukrainian goods would be done under the cover of a 2016 Free Trade Agreement with Ukraine (Associate Agreement). It is unclear what level of increased exports Ukraine is capable of sending to the EU in light of the massive destruction of assets within Ukraine. But hopefully if the proposal is adopted, it will facilitate improved economic performance in Ukraine on some products.

While many other trading partners donʼt have FTAs with Ukraine, expedited consideration of what temporary trade liberalization measures could be taken on Ukrainian imports could be important additional assistance to Ukraine in the months ahead.
For example, the United States has limited imports from Ukraine – just $1.856 billion in 2021. Much of the imports are in categories that are duty free (unless subject to trade remedies).

For example, HS 72 iron and steel mill products accounted for $1.021 billion. HS 73 articles of iron and steel accounted for $137.8 million in 2021. HS 72 is largely duty free in the U.S. and most of HS 73 is duty free as well although there are eight antidumping duty orders in place as well as Section 232 tariffs of 25% on steel products. While it is unlikely that the U.S. would eliminate antidumping duties and would likely need to limit quantities of steel to avoid the 25% 232 tariffs on Ukrainian imports, a temporary suspension of ordinary customs duties and agreement to limit steel imports as a way of voiding the 25% 232 duties would be helpful to Ukraine and would cost the U.S. very little. Indeed, customs duties reported on the US International Trade Commission data-web page for 2021 for all imports of goods from Ukraine were $52.4 million ($35.8 million on imports of HS 72 and 73 products). Perhaps a temporary modification of the U.S. Generalized System of Preferences to add Ukraine would be an approach that could be pursued by the Biden Administration and the Congress.

Helping Ukraine keep its trade flowing is an important step many countries can take in 2022. Letʼs hope that the European Commissionʼs proposal is adopted by the European Parliament and European Council quickly and used for inspiration by the U.S. and many others in the very near term.

Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, Current Thoughts on Trade.

To read the full commentary from Current Thoughts on Trade, please click here.

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Samantha Kromkowski — Wed, 16 Feb 2022 17:03:36 +0000

Dear Capitolisters,

Every once in a while, I’ll stop chasing news cycles and instead dig into lesser‐known areas of U.S. policy that deserve more attention. And so today we’re going to talk about “dumping”—a terrible‐sounding word used by a lot of politicians and domestic interest groups (manufacturers, unions, etc.), usually in reference to some dastardly foreign imports they’re trying to block. But if you look at the actual, legal definition of “dumping”—and the history of U.S. anti‐dumping law and policy—you’ll quickly realize that our most widely used “unfair trade” law actually has little to do with “unfair trade” at all, and almost everything to do with naked, costly protectionism. It also provides a cautionary tale for U.S. policy proposals that could establish similar systems today.

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Like a lot of protectionist policies in the United States, the U.S. anti‐dumping law dates back more than a century and has expanded far beyond its original scope and intent. As Dartmouth’s Doug Irwin explains in his book, Clashing Over Commerce, the original Antidumping Act of 1916 was intended to discipline anti‐competitive “predatory pricing”: In particular, it “made it illegal to sell imported goods at prices substantially lower than the market value in the exporting country ‘with the intent of destroying or injuring an industry in the United States.’” However, because proving foreign exporters’ “predatory intent” in U.S. courts was difficult and time‐consuming, the law was rarely used. So Congress, naturally, went back to the drawing board a few years later and, in the Antidumping Act of 1921, “changed matters considerably.”

Under this new version, which (along with the Tariff Act of 1930) is the foundation for today’s anti‐dumping law, there is no “predatory intent” requirement; AD cases moved from the courts to the bureaucracy; and AD duties simply police price discrimination. Thus, the treasury secretary could impose anti‐dumping duties on imports if an investigation determined that 1) they were sold in the United States at less than “fair value” (i.e., the price charged by the exporter in its home market) and 2) were injuring the U.S. industry making the same product. As Irwin notes, “a foreign exporter charging a lower price on its sales in the United States than in its own home market could be found guilty of dumping”—regardless of the exporters’ intent or any other circumstances. The difference between that home market price (say, $110 per widget) and the U.S. export price (say, $100 per widget) is the “dumping margin,” which is then converted to a final AD duty rate applied to subject imports by dividing the margin over the company’s U.S. sales: In our very simple example, (110–100)/100 equalsa 10 percent tariff—on top of any normal tariff the U.S. already applies on the product.

Thus arises the first problem with the anti‐dumping law and common allegations bodog online casino of “dumping”: Price discrimination alone is a horrible proxy for any sort of “unfair” or anticompetitive trading practice, including the most common ones today linked to “dumping”—i.e., predatory pricing or closed (“sanctuary”) home markets. As my Cato colleagues have written repeatedly, there are plenty of legitimate, commercial reasons why a company might charge a higher price in its home market than in an export market, and this kind of price discrimination happens every day in the United States—in international or interstate trade—in all sorts of industries. It’s totally normal stuff, yet it’s dutiable under the anti‐dumping law.

Subsequent revisions to the law define “dumping” as also occurring when a foreign company sells in the U.S. below its cost of production. This is closer to something that might indicate “unfair” trade (e.g., foreign subsidies or sanctuary markets), but there are still many normal (non‐predatory) reasons for why below‐cost sales might occur: For example, temporary “loss‐leader” sales in an important new market or for a new, untested product; financially weak companies selling off assets to pay creditors instead of declaring bankruptcy; severe recessions or currency problems in home markets; and so on. Economically, moreover, this type of “predatory” behavior is rarely—if ever—effective in killing off competitors and establishing market dominance. (See this Don Boudreaux essay for more.)

Regardless, the U.S. government has itself acknowledged that “The antidumping rules are not intended as a remedy for predatory pricing practices of firms or as a remedy for any other private anticompetitive practices typically condemned by competition laws.” So that settles that.

So why, then, does the U.S. anti‐dumping law even exist? As my former Cato colleague Dan Ikenson and others have explained, it was a simple political compromise: Developed countries—particularly the United States—agreed to lower their tariffs if they maintained the right to impose “trade remedies” restrictions on certain imports, i.e., anti‐dumping duties and those targeting subsidies (“countervailing duties” or “CVDs”) and global import surges (temporary “safeguards”). In the United States, Ikenson details how this compromise was primarily about placating Congress during past free trade agreement negotiations, particularly at the World Trade Organization (WTO) and its predecessor the General Agreement on Tariffs and Trade (GATT):

At the founding of the GATT, U.S. negotiators insisted that language permitting the use of antidumping be included. A view widely held—or at least the excuse given—by them at the time was that antidumping rules made deeper trade liberalization possible because they assured Congress that fallback contingencies were available if general tariff cutting exposed domestic industries to too much competition. Without antidumping, the argument went, Congress might not support general tariff liberalization.

Evidence that Congress was serious about preserving and protecting the U.S. antidumping law emerged during debate in the Kennedy Round over the implementation of this legislation. During the round, modest changes to domestic antidumping administration had been agreed upon. But Congress refused to accept the agreement’s disciplines on domestic antidumping laws and ultimately carved out those changes from being implemented in the legislation.

Thus, the final WTO agreements both codify non‐discriminatory tariff cuts and permit discriminatory trade remedies, subject to certain substantive and procedural disciplines enshrined therein.

But That Was Then …
At one time, this compromise may have been reasonable: According to Irwin, for example, anti‐dumping cases were rare in the years leading up to and following the GATT’s entry into force in 1947: “from 1934 to 1954, there were only seven findings of dumping” in the United States. And only a few countries used them at all, while even fewer used CVDs.

Since then, however, anti‐dumping has turned into a classic “Frankenstein’s Monster” economic policy, smashing trade villages around the world. Most notably, the U.S. Congress has repeatedly rewritten the law to make it easier to find “dumping” or “injury” where these requirements wouldn’t have previously existed. These changes include:

Transferring jurisdiction for AD/CVD investigations from Treasury (which looks after the entire U.S. economy) to the Commerce Department (which promotes the narrow interests of U.S. manufacturers).
Implementing numerous methodological changes since the 1970s that allowed Commerce to inflate dumping margins—and thus final duty rates—by essentially ignoring even the watered‐down “price comparison” objective. Today, for example, Commerce can disregard the financial data foreign exporters submit for sales, production costs, profits, and other items, and it can instead “construct” prices using partial data, “adjusted” figures (biased against the foreigners, of course), or even data from other countries that aren’t under investigation. The last bit of ridiculousness used to apply only to imports from China and other “non‐market economies” (basically, Vietnam), but changes snuck into 2015 legislation let Commerce today apply similar approaches for imports from obvious “market economies” like South Korea. The result: creating “dumping” out of thin air.
Relaxing the standards by which the International Trade Commission (ITC) can determine whether imports Commerce finds to be dumped or subsidized are “injuring” the domestic industry.
Establishing a convoluted “retrospective” system, under which final duties imposed on imports are calculated a year or more after those goods have entered the country—an additional, non‐tariff trade barrier that, per GAO and U.S. Customs and Border Patrol, confounds U.S. duty collection efforts.
Rejecting amendments to the law that would allow U.S. agencies to consider the “public interest” (e.g., consumers, broader national economic or foreign policy interests, or emergency situations) or to apply a “lesser duty” where doing so would remedy the “injury” suffered by the domestic producers. Jurisdictions like Canada and the EU apply these common‐sense rules, which sure would’ve been useful when the U.S. applied — in the middle of a global pandemic — AD/CVDs on lumber, fertilizer, intermodal chassis, and other critical goods.

As a result of these changes, past studies have repeatedly shown that U.S. anti‐dumping actions rarely (almost never) target anything even remotely close to anti‐competitive or predatory behavior by foreign exporters or “unfair” policies by their governments. In many cases, “dumping” has been found where foreign companies were actually selling in the U.S. well above the prices in their home markets. So it often doesn’t even target price discrimination!

As I wrote a few years ago, Congress has done similar things with the CVD law—including by changing the definition of a “subsidy” to allow for duties on softwood lumber back in the 1980s. Today’s CVD law isn’t as problematic as the AD law, but it’s also used much less frequently—about 75 percent of all U.S. cases are AD cases.

Meanwhile, decades of congressional pressure and industry lobbying have resulted in agencies that have been effectively “captured” by a handful of politically powerful companies and unions, especially the steel industry. For example–

According to interviews with former congressional and Commerce Department staff conducted by the Office of the Inspector General: “This [pro‐steel industry] bias is illustrated by the actions of career Commerce Department officials through whom must pass all Department of Commerce [antidumping] determinations in steel cases. The members and staff of the congressional Steel Caucus meet with them regularly to discuss ongoing antidumping and countervailing duty proceedings pending before the Department of Commerce. At some of these meetings, these officials have shared advance draft investigation results with the congressional Steel Caucus well before they were announced in final form, allowing the Steel Caucus to “comment” on them. Time and again high level officials within the agency have exerted pressure on lower level Department of Commerce staff conducting investigations of foreign steel producers to rerun calculations and alter methodologies, bodog online casino resulting in increased AD/CVD tariffs.

As of last week, almost half (311 of 649) of all U.S. AD/CVD orders in place were on iron and steel products—and it’s easy to see why.

Commerce has also resorted more often to using “facts available” data or the punitive “adverse facts available” (AFA), which again leads to higher duties. As I wrote last year, “lawyers report (quietly, of course) that Commerce’s AFA decisions are increasingly abusive—for example, by invoking AFA after establishing unreasonably short and rigid deadlines for providing mountains of information (that often must be translated); by applying … for minor and unintentional technical errors; or by throwing out all evidence submitted by foreign respondents (‘total AFA’) where only a small amount of data is in question.”

In other words, even where the rules might be facially neutral, the “refs” are making sure the game is rigged.

All of these developments have caused the United States’ use of anti‐dumping measures to skyrocket since the law’s early days. As noted above, the U.S. now has almost 650 AD/CVD orders in place—an increase of about 300 since just 2016 and a far cry from those seven in the 1940s and 1950s. About a third of these duties target imports from China. The United States is also the world’s top user of CVD actions and a close second to India in initiating (much more common) anti‐dumping cases since 1995:

Counting the Costs
Unsurprisingly, independent studies routinely show that these trade actions have imposed significant harms on the U.S. economy while failing to protect petitioning companies or workers over the long term. (Tellingly, the ITC’s periodic reports on “the economic effects of significant import restraints” don’t consider AD/CVD actions because the U.S. trade representative expressly excluded them from its original request.)

My 2017 paper has a lot of the economic history of U.S. trade remedies, but a few subsequent papers warrant mention. First, a July 2020 working paper from economists Alessandro Barattieri & Matteo Cacciatore examined the hundreds of U.S. AD/CVD actions initiated between 1994 and 2015 and found that duties 1) were concentrated in industrial inputs, especially steel; 2) depressed employment in downstream U.S. industries (e.g., steel‐using manufacturers); but 3) provided no long‐term benefit for jobs in the protected, upstream industries (e.g., steelmakers).

In a January 2021 paper, a trio of economists examined anti‐dumping measures on Chinese imports imposed between 1988 and 2016 and found that these duties 1) increased substantially over the period examined, and particularly during the height of the “China Shock” in the 2000s; 2) had large, negative effects (increased production costs and decreased employment, wages, sales, and investment) on downstream industries; but again 3) had no significant effect on blue‐collar jobs, wages, or sales in the protected industries. They estimate that the antidumping measures cost approximately 1.85 million U.S. jobs between 1988 and 2016, primarily in blue‐collar services industries:

They further find that duties were often politically motivated, with protection more likely when petitioning companies or workers were in U.S. swing states. (Separate research shows that the only folks who make out well from an AD/CVD case seem to be the protected companies’ CEOs.)

And just last week, Barattieri and Cacciatore released (with Cato’s help) a new version of their 2020 paper targeting just construction materials and U.S. home prices, both of which have increased dramatically in recent years. They find that 1) the United States has imposed numerous AD/CVD measures on a wide range of construction inputs, with median duty rates of 28 to 134 percent (Table 1 below); and 2) a U.S. trade remedy action causes domestic construction material prices to increase significantly and stay that way for a year or more (Figures 2 and 3).

The authors thus conclude:

Tariffs imposed by the U.S. government on materials used by the domestic construction sector cause a significant increase in the cost of those goods. These results suggest that lifting trade restrictions on intermediate inputs could help dampen recent increases in U.S. construction material costs. Addressing the ultimate impact of these trade barriers on skyrocketing U.S. housing prices is beyond the scope of this paper. Nevertheless, U.S. homebuilders report that they often pass on higher material costs to homebuyers, and previous research notes that many homes in the United States are priced close to their construction cost, of which materials (e.g., lumber) are a significant part. Our results therefore suggest that U.S. trade barriers affect home prices, at least in certain areas, and that this connection is an important avenue for future analysis and research.

Right on cue, the U.S. has now initiated new AD/CVD cases against nails from five different countries—a case that joins current duties on nails from China and several other countries. Good thing U.S. homebuilders don’t need those!

U.S. trade remedies policy also imposes other harms. Most notably, the tricks that the United States has for years employed when operating its trade remedies system have caught on in other countries, particularly developing ones like China, and are now used against American exporters in these rapidly growing markets. Adding insult to injury, the United States has vehemently resisted efforts to reform its abusive trade remedies practices– even after losing repeated WTO dispute settlement cases on the same issue!—or to engage in any WTO negotiations tightening the rules for applying these measures. As a result of this intransigence, major WTO negotiations have stalled out (including ones that might lead to better disciplines on Chinese transgressions); the entire dispute settlement system is on ice (blocked by the United States because it disagrees with past interpretations of trade remedies rules); U.S. exporters have little recourse for foreign trade remedies abuses targeting them; and—when combined with persistent U.S. farm subsidies—the United States has little, if any, high ground in global trade talks at the WTO or elsewhere.

Trade remedies cases have also been found to increase market power for domestic companies—something U.S. steel consumers know all too well—and to raise serious constitutional questions about whether Congress has delegated too much of its tariff powers to the relevant administering agencies. And instead of reforming these laws, Congress—in the America COMPETES Act the House just passed, for example—is looking to make them even worse.

Of course they are.

Broader Lessons
As you can probably tell, this type of stuff gets me pretty lathered up—a relic, I guess, of having spent a frustrating decade‐plus litigating AD/CVD cases here. But while anti‐dumping law and policy might seem arcane or boring for some of you, it still provides a teachable lesson for numerous other policies—including some in the aforementioned COMPETES Act—now under consideration. Most obviously, common claims that we need new American protectionism because we’ve for too long embraced “unfettered free trade” and “played by the rules” (or whatever) become patently ridiculous when U.S. AD/CVD policy is considered. Furthermore, new proposals for U.S. industrial policy—especially but not only those relating to trade—need to grapple more fully with the long and sordid history of the U.S. antidumping law (and others like it), which started out policing real anticompetitive behavior a century ago and has since slowly morphed into little more than a quiet means of using captured agencies to deliver economic rents to favored political constituencies under the guise of policing “unfair” trade. Indeed, as I wrote last year:

Commerce’s behavior—and the laws authorizing it — also serves as a warning about the perils of U.S. protectionism and industrial policy: even in systems administered by a “neutral” bureaucratic arbiter and designed to be insulated from the political process, the administering agency can become “captured” by powerful domestic interests and the rules can be corrupted by politicians eager to reward attentive constituents with highly technical changes hidden from the vast majority of the American public.

U.S. anti‐dumping policy also urges serious caution when considering new proposals to empower a bureaucratic agency to impose new penalties (taxes, fees, etc.) or subsidies based on highly complex determinations and calculations. For example, many folks (including bodog casino some in Congress) have proposed that any U.S. carbon tax system include a “border adjustment”(essentially a tariff) to be applied on imports according to their “carbon intensity” (basically equivalent to the amount of carbon regulation in their home markets). The idea, which has some theoretical basis, is that taxes are needed to offset possible competitive advantages exporters gain from being in lightly‐regulated markets (and to encourage those markets to adopt stricter carbon regulation).

In reality, however, our experience with U.S. antidumping law shows how a mechanism authorizing Commerce or another U.S. agency to police “carbon dumping” (or whatever) is rife with potential problems. And what might even start out as a legitimate proceeding could easily morph into yet another economy‐weakening vehicle for rent‐seeking. Maybe it won’t, but we should at the very least be aware of these pitfalls. Most advocates aren’t.

Or, in the U.S. steel industry’s case at least, they pretend not to be.

Scott Lincicome is the director of general economics and Cato’s Herbert A. Stiefel Center for Trade Policy Studies. He writes on international and domestic economic issues, including international trade; subsidies and industrial policy; manufacturing and global supply chains; and economic dynamism.

To read the full commentary by the CATO Institute, please click here.

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Jude Althagafi — Thu, 26 Aug 2021 13:13:07 +0000

According to numerous reports, skyrocketing global shipping prices and related transportation bottlenecks are hindering the U.S. economic recovery. Indeed, this “shipping crisis” is one of the summer’s most‐covered financial phenomena. Yet barely mentioned outside of a few industry publications is how brand new U.S. tariffs of more than 200 percent(!) are contributing to the problem. And U.S. trade law all but ensures that there’s little we – even the White House itself – can do about it.

American ports and rail terminals are struggling to cope with unprecedented surges of imports from Asia, a situation likely to continue into next year and contributing to both American companies’ supply chain woes and broader inflationary pressures. Shipping containers are piling up by the thousands, leading to port delays, higher shipping costs (both ocean and inland freight), and U.S. exporters – mainly of agricultural products – lacking the empty containers they need to send their goods abroad. Importers, meanwhile, are especially reeling. Firms like the Columbia Sportswear Company, Whirlpool, and Peloton have gone on the record about rising shipping costs and struggles to meet consumer demand. Small businesses are being hit particularly hard, facing the decision to pay three times the typical shipping rate for products that are unlikely to arrive in months. And peak shipping season has just begun. The disruption is such that the CEO of the American Apparel Association even urged consumers to do their Christmas shopping in the summer.

(Sorry, fellow procrastinators.)

Surely, a lot of the problem here is just the global pandemic – for example, a surge of Asian‐made consumer goods to meet an unexpected spike in U.S. demand, combined with still‐muted demand for U.S. products in countries with relatively few vaccinations – doing its thing. Until COVID-19 is under control around the world, supply chain hiccups (and more) will persist. Thus, many of these issues will simply take time to work themselves out – regardless of what the politicians might promise.

However, U.S. trade policy is also likely contributing to the current shipping crunch. In particular, the United States earlier this year imposed extremely high “trade remedy” duties on imports of truck chassis (which are used to haul containerized merchandise around the country) originating in China – by far the largest producer of such products. The duties resulted from antidumping (AD) and countervailing duty (CVD) investigations launched last year by the U.S. International Trade Commission (ITC) and Department of Commerce (DOC), the latter of which calculated for chassis produced by China International Marine Chassis (CIMC), the world’s largest chassis manufacturer, combined final duty of 221.37 percent (177.05 percent AD and 44.32 percent CVD). These estimated AD/CVD measures now apply to any Chinese chassis imports that have entered the from March 4 on. And they apply on top of the 25 percent tariffs that President Trump imposed on a wide range of Chinese imports in a separate “Section 301” case back in 2018.

(We say “estimated” duty rates here because, as discussed previously, the U.S. trade remedies system’s novel “retrospective” approach requires duties to be (1) adjusted periodically for imports that entered the United States during a previous period and (2) then assessed on those imports at the new, recalculated rate once the review is completed years later. This approach creates an additional “uncertainty disincentive” – as if a 221 percent duty weren’t enough! – to import from subject countries and companies. That said, usually rates change modestly during these reviews, so it’s unlikely that the current duty rates on Chinese chassis imports will be substantially lower anytime soon.)

According to importers and industry‐watchers, these duties are undoubtedly affecting the U.S. shipping market for two reasons:

First, chassis available to U.S. freighters have been “stretched to [the] limit” in recent months at most of the biggest transit hubs in the country, including the ports of Los Angeles/Long Beach and New York/New Jersey, and rail terminals in Dallas, Chicago, St. Louis, and elsewhere. Major chassis providers like TRAC Intermodal have also reported shortages in regions like the Seattle‐Tacoma area and throughout the Midwest, where this situation is especially sensitive. Indeed, back in July, chassis shortages contributed to creating a clog of shipments in Chicago that forced Union Pacific and BNSF Railway, two of the largest railroad companies in the country, to temporarily restrict shipments from ports in the West Coast to said hub. As one recent report put it, “[s]hipments from Asia to the U.S. are experiencing extreme difficulties in getting their cargo delivered, mainly due to the acute shortage of chassis to effect delivery of their containers on the U.S. side.” (emphasis ours)
Second, there simply isn’t enough non‐China chassis capacity to meet current U.S. demand. In particular, CIMC can produce 40,000–50,000 units per year, while the five North American chassis manufacturers that requested the U.S. AD/CVD investigations have admitted that it would take them “at least six to nine months” to increase their production to only 10,000–15,000 annual units, and that they would not be able to fulfill new orders until 2022. Refurbishing old chassis, moreover, isn’t possible because every usable unit in the country is being employed because of the current shortages.

As a result of these two market realities, the new U.S. duties will do only two things, neither of which is good for the U.S. shipping crunch: (1) further discourage importers and freighters from bringing new capacity online (thus maintaining the chassis shortage and related shipping bottlenecks); and/or (2) dramatically raise shipping costs, as freighters (importers, ocean carriers, truckers, etc.) suck it up and just buy Chinese chassis then pass on those costs to their customers. On the latter point, freight companies estimate that the new duties alone will add more than $25,000 to the price of each chassis they buy, effectively tripling their price. None of this is good for shipping‐reliant U.S. companies (or consumers) and current inflationary concerns – especially when these higher inland freight costs are combined with higher ocean freight costs brought on by the pandemic.

As one U.S. trucking company representative put it when the new duties were finalized this Spring, “The timing couldn’t be worse.”

Why, then, did the U.S. government (DOC/ITC) not take these unique factors into account when determining whether to apply the new duties? Why not perhaps hold off on implementing them, at least until the shipping crunch abates next year? Given that ports are likely to be jammed up for the foreseeable future and chassis pools are already stretched thin, it would make sense for the government to let freighters purchase additional units of chassis at relatively bodog poker review competitive prices, thereby easing the current chassis shortages, reducing the “detention and demurrage fees” (for holding goods until equipment becomes available) that U.S. consumers are already bearing, and alleviating some of the brutal price pressures and bottlenecks in the current domestic shipping market. Such results would surely be in the national economic interest.

They would also be consistent with the Biden administration’s own stated priorities in the shipping sector. In particular, President Biden issued a July 9 Executive Order targeting (among other things) the very “detention and demurrage” fees that may be exacerbated by a lack of available chassis to transport incoming shipments from ports to their inland destinations. The Federal Maritime Commission is also now fielding a complaint by the American Truckers Association over alleged anti‐competitive practices by ocean liners and chassis providers to restrict truckers’ choice over chassis to haul shipments.

Holding off on the new chassis duties thus seems like a total no‐brainer, right?

Alas, as discussed previously U.S. law prohibits the DOC and ITC from taking these important economic and policy issues into account when determining whether to apply trade remedy measures on subject imports. Instead, the U.S. system effectively runs on autopilot, delivering rents to a small number of well‐connected firms and labor unions regardless of current market conditions or how an agency decision might affect the long‐term health of the U.S. economy or other domestic policy priorities. Many other national trade remedy systems have just this type of “public interest” test; the United States unfortunately does not. And it’s undoubtedly a big reason why we’re one of the biggest users of AD/CVD measures in the world.

To be clear, none of this means that the Chinese government’s subsidization of domestic firms like CIMC must be condoned or ignored. And the United States, just like all other World Trade Organization members, has the right to use its trade remedy system to offset injury to domestic firms caused by dumped or subsidized imports (though of course we at Cato have long complained about these laws’ merits and implementation). But a system that requires U.S. administering agencies to blindly enact 221 percent tariffs (on top of 25 percent tariffs already in place!) on badly needed chassis, while the economy reels from a massive shock to the global and U.S. shipping systems caused by a once‐in‐a‐generation pandemic, makes zero sense – especially when it contradicts the White House’s own economic priorities. Moreover, chassis are relatively unsophisticated pieces of equipment, not jet fighters or nuclear reactors that might possibly raise credible national security concerns that warrant trade restrictions regardless of their economic costs.

A sane trade remedy system would allow for these and other considerations and permit the administering agencies to reduce, delay, or decline to impose duties where doing so would be in the public interest – for example during a shipping crisis that’s hindering the economic recovery and adding to already‐serious inflationary pressures.

Alas, the United States has no such thing.

Scott Lincicome is a senior fellow in economic studies. He writes on international and domestic economic issues, including international trade; subsidies and industrial policy; manufacturing and global supply chains; and economic dynamism.

To read the full commentary from the CATO Institute, please click here.

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Johnny Morris — Wed, 12 May 2021 13:46:28 +0000

At the core of President Biden’s Build Back Better initiative is economic recovery that drives wage growth and leads to better outcomes for all Americans. International trade is a key component this recovery, and in honor of World Trade Month, we’re taking a closer look at how the International Trade Administration (ITA) supports a fair, and rules-based system of trade that both defends and empowers American workers and manufacturers.

Many people know about ITA’s efforts to promote exports overseas, but ITA is also home to the Enforcement and Compliance (E&C) Unit, which administers trade remedies on imported products that are designed to rebalance the international trading system in the face of unfair trade practices like dumping or unfair pricing.

E&C teams are charged with the critical responsibility to take action when unfair trade practices threaten American competitiveness. The strongest tool that we use to maintain healthy competition in international trade is enforcing U.S. trade remedy statutes, which authorize E&C to investigate and, if necessary, apply antidumping (AD) and countervailing duties (CVD). But what, exactly, are antidumping and countervailing duties, how do they work, and why are they essential to a balanced system of global trade?

Antidumping duties are imposed when a foreign company undervalues its product when selling in the American market; countervailing duties are enacted when foreign governments provide unfair subsidies to an industry, which can result in artificially low prices for imports. These unfair trade practices have the potential to damage the competing U.S. industry. Some industries may be large enough to weather the damages caused by undervalued imports, but small and medium sized businesses are often unable to do so and therefore need effective relief from unfairly traded goods. The U.S. currently has AD/CVD duties in effect on 597 products from around the world – 37 percent of them cover products imported from China, and it is estimated that in recent years, the United States collected approximately $2.3 billion as a result of AD/CVDs. These trade remedies stabilize the market and hold foreign governments responsible for conducting trade in a fair and equitable manner.

Our trade remedy actions are bolstered by the work done by E&C’s Trade Agreements Negotiations and Compliance team which works with foreign governments on behalf of American companies to remove technical barriers to trade, and the Foreign-Trade Zones program which provides companies with a range of benefits, including streamlined customs procedures, to keep their business in the United States.

As our economy begins to rebound from the devastation brought on by the COVID-19 pandemic, trade remedies are essential component of building back better. They defend American jobs, help level the playing field for American businesses and industries, and contribute to a fair and equitable international trading system. If you’d like to learn more about the AD/CVD duties, please visit ITA’s webpage on U.S. Antidumping and Countervailing Duties.

Eric Anderson and Ava Jamerson are International Trade Specialists in the Enforcement & Compliance Office of Communications.

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Emily Kachinski — Fri, 19 Mar 2021 16:10:45 +0000

While the WTO has had a Trade and Environment Committee since 1995 and interest on the intersection between trade and environment predates the formation of the WTO (i.e., back in the GATT), there has been renewed calls by many Members for increased activity in the WTO on trade and environment issue as part of the future agenda. The WTO provides a short history of WTO involvement in the area. See WTO, Trade and Environment, https://www.wto.org/english/tratop_e/envir_e/envir_e.htm.

Ongoing talks on fisheries subsidies are aimed at helping make fishing sustainable and meeting one of the UN Sustainable Development Goals (SDG 14.6). See, e.g., WTO, Civil society call for fishing subsidies deal welcomed by Dr Ngozi and negotiations chair, 3 March 2021, https://www.wto.org/english/news_e/news21_e/fish_01mar21_e.htm. There is interest in addressing plastics in the oceans (circular economy issues) and for some, an interest in restarting the Environmental Goods Agreement negotiations. See WTO, Role of trade in promoting circular economy highlighted at WTO Environment Week, 27 November 2019, https://www.wto.org/english/news_e/news19_e/envir_03dec19_e.htm; WTO, Plastic waste, ‘blue economy’ among issues taken up at trade and environment committee, 28

In a New York Times article from Wednesday, there is interesting information on the effects of fish trawling on carbon release. See New York Times, Trawling for Fish May Unleash as Much Carbon as Air Travel, Study Says, March 1, 2021, https://www.nytimes.com/2021/03/17/climate/climate-change-oceans.html. The opening sentences of the article reads, “For the first time, scientists have calculated how much planet-warming carbon dioxide is released into the ocean by bottom trawling, the practice of dragging enormous nets along the ocean floor to catch shrimp, whiting, cod and other fish. The answer: As much as global aviation releases into the air.” The study referenced is an article that was published online by Nature on 17 March 2021 by 26 authors entitled “Protecting the global ocean for biodiversity, food and climate.” https://www.nature.com/articles/s41586-021-03371-z. The New York Times article notes that the study estimated that 1.9 million square miles square miles of the sea floor is scraped every year which can release the carbon that is stored in the sea floor and that would remain captured for thousands of years if left undisturbed. The NYT article continues, “The carbon released from the sea floor leads to more acidified water, threatening marine life, and reduces the oceans’ capacity to abosrob atmospheric carbon dioxide. China, Russia, Italy, the United Kingdom and Denmark lead the world in such trawling emissions.”

While carbon release from fish trawling is not presently part of the ongoing negotiations on fisheries subsidies nor a topic being discussed within the Committee on Trade and Environment (at least that I have seen), it would seem to be a topic that could meaningfully be examined within the WTO in an effort to have trade be sustainable and contribute to reducing carbon emissions. Some possible approaches within the WTO or by individual WTO Members could include identifying less environmentally damaging approaches (sharing experiences, best practices), potential negotiations to terminate or phase out such practices, review of such practices in trade policy reviews, inclusion within any carbon border adjustment plan adopted by Members.

Addressing the topic would appear to be an important opportunity to promote sustainable development as the world deals with and comes out of the pandemic. Let’s hope Members take an ambitious approach to the role the WTO can play on sustainable development.

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Caroline Hillier — Fri, 29 Jan 2021 16:42:09 +0000

On January 21, 2021, the WTO panel that had been composed back on 5 December 2018 issued its report in UNITED STATES – ANTI-DUMPING AND COUNTERVAILING DUTIES ON CERTAIN PRODUCTS AND THE USE OF FACTS AVAILABLE, WT/DS539/R. Korea had requested consultations on a series of antidumping and countervailing investigations and reviews on February 14, 2018 and a panel had been established on May 28, 2018. See WT/DS539/R at para. 1.1, 1.3 and 1.5.

Korea mounted a broad attack on the U.S. Department of Commerce’s use of facts available in a number of antidumping and countervailing duty proceedings largely pertaining to the same major Korean company with a long record of participation in various U.S. trade remedy cases.

For investigating authorities working under a statutory timeline and time limits existing within the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (“ADA”) and the Agreement on Subsidies and Countervailing Measures (“ASCM”), it is important that parties provide complete information in a timely manner. While WTO obligations require administering authorities to flag deficiencies and provide an opportunity to respondents to correct such deficiencies, administering authorities need the ability to cut off submissions and move to decision at a reasonably early period to permit all work to be done in verifying information (investigations), providing other parties a chance to comment and challenge information provided.

Where a party fails to provide information requested, the administering authority is authorized to use facts available. As stated in Article 6.8 of the ADA and Article 12.7 of the ASCM, “In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available.” Art. 6.8 of the ADA then adds, “The provisions of Annex II shall be observed in the application of this paragraph.” Similar language is not in Art. 12.7 of the ASCM (changes to the ADA during the Uruguay Round of negotiations were typically adopted in the ASCM as they related to trade remedy proceedings, although changes made at the end of the negotiations to the ADA were not brought into the ASCM due to timing limitations).

Annex II of the ADA consists of seven paragraphs and is copied below.

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“1. As soon as possible after the initiation of the investigation, the investigating authorities should specify in detail the information required from any interested party, and the manner in which that information should be structured by the interested party in its response. The authorities should also ensure that the party is aware that if information is not supplied within a reasonable time, the authorities will be free to make determinations on the basis of the facts available, including those contained in the application for the initiation of the investigation by the domestic industry.

“2. The authorities may also request that an interested party provide its response in a particular medium (e.g. computer tape) or computer language. Where such a request is made, the authorities should consider the reasonable ability of the interested party to respond in the preferred medium or computer language, and should not request the party to use for its response a computer system other than that used by the party. The authority should not maintain a request for a computerized response if the interested party does not maintain computerized accounts and if presenting the response as requested would result in an unreasonable extra burden on the interested party, e.g. it would entail unreasonable additional cost and trouble. The authorities should not maintain a request for a response in a particular medium or computer language if the interested party does not maintain its computerized accounts in such medium or computer language and if presenting the response as requested would result in an unreasonable extra burden on the interested party, e.g. it would entail unreasonable additional cost and trouble.

“3. All information which is verifiable, which is appropriately submitted so that it can be used in the investigation without undue difficulties, which is supplied in a timely fashion, and, where applicable, which is supplied in a medium or computer language requested by the authorities, should be taken into account when determinations are made. If a party does not respond in the preferred medium or computer language but the authorities find that the circumstances set out in paragraph 2 have been satisfied, the failure to respond in the preferred medium or computer language should not be considered to significantly impede the investigation.

“4. Where the authorities do not have the ability to process information if provided in a particular medium (e.g. computer tape), the information should be supplied in the form of written material or any other form acceptable to the authorities.

“5. Even though the information provided may not be ideal in all respects, this should not justify the authorities from disregarding it, provided the interested party has acted to the best of its ability.

“6. If evidence or information is not accepted, the supplying party should be informed forthwith of the reasons therefor, and should have an opportunity to provide further explanations within a reasonable period, due account being taken of the time-limits of the investigation. If the explanations are considered by the authorities as not being satisfactory, the reasons for the rejection of such evidence or information should be given in any published determinations.

“7. If the authorities have to base their findings, including those with respect to normal value, on information from a secondary source, including the information supplied in the application for the initiation of the investigation, they should do so with special circumspection. In such cases, the authorities should, where practicable, check the information from other independent sources at their disposal, such as published price lists, official import statistics and customs returns, and from the information obtained from other interested parties during the investigation. It is clear, however, bodog sportsbook review that if an interested party does not cooperate and thus relevant information is being withheld from the authorities, this situation could lead to a result which is less favourable to the party than if the party did cooperate.” (emphasis added).

Antidumping and countervailing duty proceedings in the United States are very transparent with full access to information on the record available to parties under administrative protective order and with many opportunities to submit comments, raise questions, seek clarification or respond to additional inquiries flowing from earlier responses. It is quite common for Commerce to receive requests for more time to respond to the initial questionnaire and to any supplemental requests flowing from developments. Responding parties can determine whether or not to submit all information, partial information or no information. Questionnaire responses are often incomplete or adopt interpretations of what has been requested to provide less than complete information. In antidumping investigations, it is not uncommon for respondent data bases to change during the course of the investigation, sometimes markedly. Briefing after the preliminary determination permits challenges to the preliminary determination by all parties, including challenges to use of facts available. While there are always legal issues that are briefed, facts available issues are fact-based issues flowing from whether parties cooperated, withheld information, failed to supply requested information, etc., and if so, what alternative information is available that can be used.

The ADA provides special provisions on dispute settlement in Article 17.6. The approach on review of facts is laid out in Article 17.6(i) of the ADA (there is no counterpart in the ASCM for the reason that Art. 17.6 of the ADA was added at the end of the Uruguay Round without chance to consider adopting a parallel provision in the ASCM). Art. 17.6(i) states:

“17.6 In examining the matter referred to in paragraph 5:

“(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;”

Article 17.6 was added to the ADA at the end of the Uruguay Round at the insistence of the United States which was interested in seeing that very complicated and detailed administrative proceedings were not second guessed by panels or the Appellate Body which would not have been involved in the proceeding or have access to all materials. Art. 17.6(i) deals with providing deference to administering authorities on facts. Art. 17.6(ii) does the same for legal interpretations for provisions subject to more than one meaning.

The panel report, following other panel and Appellate Body reports that have been problematic from the U.S. perspective, doesn’t view Art. 17.6(i) as being deferential to an investigating authority as long as the authority hasn’t conducted the investigation in a biased or non-objective manner or somehow established facts improperly. See WT/DS539/R at para. 7.23 – 7.36 (after a review of the meaning of ADA Art. 6.8 and Annex II, the panel sums its view of the panel’s task to be the following: “In sum, we consider that the terms of Article 6.8, interpreted in light of their context and object and purpose, require investigating authorities to select – in an unbiased and objective manner – those facts available that constitute reasonable replacements for the missing “necessary” information in the specific facts and circumstances of a given case. In doing so, investigating authorities must take into account all facts that are properly available to them. In selecting the replacement facts, Article 6.8 does not require investigating authorities to select those facts that are most ‘favourable’ to the non-cooperating party. Investigating authorities may take into account the procedural circumstances in which information is missing, but Article 6.8 does not condone the selection of replacement facts for the purpose of punishing interested parties.”).

In reading the panel report, the Commerce Department is not given deference for its decisions of what facts available should be used. Thus, that violations were found for how Commerce determined facts available in each of the six proceedings reflect the panel reaching a different conclusion than Commerce. But while the panel may have reached a different result than Commerce, that by itself does not constitute a basis under Art. 17.6(i) to find a violation.

Conclusion

The constant limiting by panel and Appellate Body reports of the ability to utilize trade remedy agreements is, of course, the main substantive concern that the United States has with the operation of the WTO’s Dispute Settlement system, although there are examples of the same problem in other areas covered by panel or AB reports as well. Last week’s panel report on Korea’s challenge to U.S. antidumping and countervailing duty proceedings on the use of facts available continues to undermine the legitimacy of WTO dispute settlement.

Accordingly, the Biden Administration should file an appeal from last week’s panel decision and ensure that any eventual resolution of the Appellate Body impasse includes a restoration of rights that have narrowed or eliminated under the trade remedy or trade defense agreements (ADA, ASCM and safeguard).

Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, bodog poker review|Most Popular_Congressional

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