UNITED STATES – CONTINUED DUMPING
AND SUBSIDY OFFSET ACT OF 2000
Request
for Consultations by Australia, Brazil, Chile,
the
European Communities, India, Indonesia, Japan, Korea and Thailand
The
following communication, dated 21 December 2000, from the Permanent Missions of
Australia, Brazil, Chile, India, Indonesia, Japan, Korea and Thailand, and the
Permanent Delegation of the European Communities, to the Permanent Mission of
the United States and to the Chairman of the Dispute Settlement Body, is
circulated in accordance with Article 4.4 of the DSU.
_______________
On
behalf of Australia, Brazil, Chile, the European Communities (the EC), India,
Indonesia, Japan, Korea and Thailand, we, acting jointly and severally, each in
the exercise of the rights accruing to it as a member of the WTO, hereby
request consultations with the United States of America pursuant to Article 4 of
the Understanding on Rules and Procedures Governing the Settlement of Disputes,
Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (the GATT),
Article 17.2 and Article 17.3 of the Agreement on implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 (the ADA) and
Articles 7.1 and 30 of the Agreement on Subsidies and Countervailing Measures
(the ASCM) regarding the amendment to the Tariff Act of 1930 signed on 28
October 2000 with the title of "Continued Dumping and Subsidy Offset Act
of 2000" (the Act).
The
express purpose of the Act is to remedy the "continued dumping or
subsidization of imported products after the issuance of antidumping orders or
findings or countervailing duty orders".
With that objective, the Act mandates the US customs authorities to
distribute on an annual basis the duties assessed pursuant to a countervailing
duty order, an anti-dumping order or a finding under the Antidumping Act of
1921 to the "affected domestic producers" for their "qualifying
expenses". The "affected
domestic producers" are the petitioners or interested parties who
supported the petition. "Qualifying
expenses" include the expenditure incurred with respect to
"manufacturing facilities, equipment, acquisition of technology,
acquisition of raw material or other inputs".
The
Act leaves no discretion to the competent authorities. They must pay the "offsets"
whenever the conditions stipulated in the Act are present. Therefore, the Act constitutes mandatory
legislation, which can itself be subject to dispute settlement.
The "offsets" constitute a specific action
against dumping and subsidization which is not contemplated in the GATT, the
ADA or the ASCM. Moreover, the
"offsets" provide 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 provided for in the ADA
and the ASCM. In addition, the Act makes
it more difficult for exporters subject to an anti‑dumping or countervailing
duty order to secure an undertaking with the competent authorities, since the
affected domestic producers will have a vested interest in opposing such
undertakings in favour of the collection of anti-dumping or countervailing
duties. In the view of Australia,
Brazil, Chile, the EC, India, Indonesia, Japan, Korea and Thailand, this is not
a reasonable and impartial administration of the US laws and regulations
implementing the provisions of the ADA and the ASCM regarding standing
determinations and undertakings.