eBearing - U.S. Antidumping Act of 1916

United States Antidumping Act of 1916
modification to the Revenue Act of 1916

The U.S. Antidumping Act of September 8, 1916 (15 U.S.C. Section 72) stipulates to the effect that the importation or sales of imported goods within the U.S. market in certain circumstances (if the goods are imported or sold at a price substantially less than the actual market value or wholesale price in the principal markets of the country of their production or of third countries with the intention of destroying or doing damage to the U.S. industry) are unlawful, constituting either or both civil and/or criminal offenses and penalties, pursued via the U.S. Federal Court system. It also provides for treble damages and criminal penalties.

• the Antidumping Act of 1916

The 1916 act should have been displaced by U.S. membership in the World Trade Organization, as WTO rules supercede. A European Union investigation and WTO investigation both concluded that the 1916 Antidumping Act was in breach of the anti-dumping rules of the WTO. The U.S. failed to respond, however, and the EU forced WTO consultations with the U.S. on July 29, 1998. The U.S. refused to consider the matter, however, and the EU then pursued its next option under the WTO, a panel. On February 15, 2000, the panel found that the 1916 Antidumping Act does indeed violate WTO rules.

The U.S. response to every WTO challenge of the 1916 law has been to argue that the 1916 Antidumping Act is not really an antidumping law but instead has been interpreted by the courts as an anti-trust statute. Therefore, they claim, it is not subject to WTO rules.

The WTO has not been swayed by the U.S. arguments, however, repeatedly finding against the U.S. and the 1916 law. WTO rulings have noted that the anti-trust argument is not plausible, and the Act operates without the required WTO involvement. Also, regardless of its status, the 1916 law violates several WTO Antidumping Agreement statutes and probably violates three separate articles of the General Agreement on Tariffs and Trade (GATT): First, it does not require the supposedly injured party to establish material injury; second, it violates WTO rules about duties being the sole dumping remedy; third, it does not comply with WTO procedural requirements regarding the represented proportion of an industry being involved in the complaint.

28 February, 2001
In Geneva, WTO Appellate Body Judge A.V. Ganesan gave the U.S. until July 26, 2001 to comply with the numerous WTO rulings that the Antidumping Act of 1916 violated WTO rules. He rejected claims by the U.S. that it would need at least until the end of 2001 to repeal the act.

25 July, 2001
On July 24, two days before the deadline, the United States asked the European Union for an extension. On July 25, the day before the deadline, the European Union agreed to allow the U.S. until the end of December 2001 to implement the WTO ruling and act through Congress to repeal the Antidumping Act of 1916.

EU Trade Commissioner Pascal Lamy said, "I note with satisfaction that the U.S. intends to comply fully with the WTO rulings - and, in this context, we are ready to give them a little more time if that is needed to resolve this question."

• the WTO press release about the time extension

20 December, 2001
On this last day of the, "reasonable time" allowed by the WTO for the U.S. to adopt legislation to repeal the Act, U.S. Congress introduced a bill to repeal the Act. However, the bill was never brought to the floor for discussion and died in committee.

7 January, 2002
The European Community, enraged by the U.S. manuvering, officially petitioned the WTO for suspension of obligations against the U.S. The U.S. then complained to WTO arbitrators that the level of obligations that the E.C. seeks to suspend are disproportionate with any possible damages.

An arbitration panel was established, then suspended after U.S. trade representatives promised Congress would quickly move to repeal the Antidumping Act.

2002
The U.S. Congress introduces two other bills to repeal the Antidumping Act of 1916. Neither is acted upon, and the 107th Congress adjourns, killing all bills in process.

2003
The 108th U.S. Congress introduced three bills to repeal the Antidumping Act of 1916. None receive attention beyond their formal introduction.

However, the vehicle for the antidumping act's repeal is introduced on March 4, 2003, as the Miscellaneous Trade and Technical Corrections Act of 2003. It survives 2003 in committee and later becomes the Act of 2004.

3 December, 2004 -- REPEAL --
In mid-2004, repeal of the Antidumping Act of 1916 is added as Section 2006 to the Miscellaneous Trade and Technical Corrections Act of 2004 (H.R. 1047, Public Law 108-429).

Passed by the U.S. Senate on November 19, the Act is signed into law by President Bush on December 3, 2004.

• Library of Congress full legislative texts of all versions of H.R. 1047
Section 2006 was added in a house - senate conference committee. "Conferees agreed to include a provision to repeal the antidumping provision of the Revenue Act of 1916. The basis for the legislative language is H.R. 1073 from the 108th Congress. This legislation is necessary in order to bring the United States into compliance with its World Trade Organization obligations."

The text of H.R. 1047, Section 2006:

Sec. 2006.
REPEAL OF ANTIDUMPING PROVISION OF REVENUE ACT OF 1916.

(a) REPEAL. -- Section 801 of the Act entitled "An Act to increase the revenue, and for other purposes", approved September 8, 1916 (15 USC 72), is repealed.

(b) EFFECT OF REPEAL. -- The repeal made by subsection (a) shall not affect any action under section 801 of the Act referred to in subsection (a) that was commenced before the date of the enactment of this Act and is pending on such date.

The U.S. immediately notified the WTO that this action, "brought the U.S. into compliance with the DSB's recommendations and rulings."

However, as with most trade legislation, the bill is not retroactive and in fact explicitly leaves open all complaints already filed and active under the Antidumping Act.

The European Union expressed some satisfaction to the WTO for the U.S. repeal, but said this should not be understood as an end to the dispute.

In 2003, the European Union adopted a legislation (EC 2238/2003) prohibiting enforcement of any U.S. court decision under the Antidumping Act of 1916 and allowing any EU company sued under the Act to counter-sue in the EU for damages.

Japan also formally welcomed the action to the WTO, but officially expressed regret that the U.S. failed to make the action retroactive, which leaves a Japanese printing press company responsible for USD $30 million in damages awarded by a Federal District Court in Iowa in May 2004.

In retaliation, Japan's parliament enacted a bill directly countering the Antidumping Act. Set to take effect December 8, 2004, the Japanese Ministry of Economy, Trade and Industry (METI) said it allows a Japanese company subject to privately-initiated antidumping claims to countersue in Japan to counter any damages awarded by U.S. courts to a U.S. company. Essentially, this move covers only the printing press dispute, opening the U.S. printing press company to a retaliatory $30 million claim in Japan.