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“UNITED STATES TRADE RIGHTS ENFORCEMENT ACT” mentioning the U.S. Dept. of Commerce was published in the Extensions of Remarks section on pages E1769-E1770 on Sept. 7, 2005.
The publication is reproduced in full below:
UNITED STATES TRADE RIGHTS ENFORCEMENT ACT
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speech of
HON. BENJAMIN L. CARDIN
of maryland
in the house of representatives
Wednesday, July 27, 2005
Mr. CARDIN. Mr. Speaker, I would like to address some of the comments made during the colloquy between the gentleman from Pennsylvania, Mr. English, and the gentlemen from Utah, Mr. Bishop, regarding H.R. 3283. In particular, I would like to respond to my colleagues' assertions concerning the application of section 3(b )(2) of the Act, which states that when applying the U.S. countervailing duty law to nonmarket economies, the Department of Commerce ``shall ensure that . . . the application [of the law] is consistent with the international obligations of the United States.'' Mr. Speaker, despite my colleagues' efforts to provide reassurance about this provision, I remain deeply concerned following their exchange--and in some ways, even more so.
First, the exchange between Mr. Bishop and Mr. English provides no comfort to those like me that have raised concerns that section 3(b)(2) of the Act will have a chilling effect on the application of U.S. countervailing duty law. The provision clearly creates a special burden on the U.S. Department of Commerce in cases involving subsidies in nonmarket economy countries like China by requiring Commerce to make a determination about the WTO consistency of the law prior to applying it.
In every other trade remedy case, the Department of Commerce must apply U.S. law as enacted by Congress. The law is presumed to be consistent with WTO obligations unless the WTO finds otherwise.
Under Mr. English's bill, Commerce could not apply countervailing duty laws to China and other nonmarket economies to the fullest extent authorized by Congress, but rather could apply the law only to the extent to which Commerce makes a separate determination that the law would pass muster in the WTO. As a result, it is likely that Commerce would not apply the law as intended by Congress, thereby denying American workers and businesses a remedy authorized by both WTO rules and U.S. law.
Second, and even more importantly, section 3(b)(2) of the English bill raises Constitutional issues. After the provision has been applied in a CVD investigation and were a WTO panel to rule against some aspect of the provision, the English bill would create the first directive under U.S. law that WTO decisions are to be self-implementing.
The English bill creates this self-implementing provision by directing Commerce to ``ensure that the application [of the provision] is consistent'' with WTO rules. In all other cases under U.S. AD/CVD law, the Uruguay Round Agreements Act of 1994 (section 129) creates a procedure for congressional consultation prior to Commerce or USTR taking any action to alter U.S. law, regulation or practice. While Congress technically would not have to approve a change to regulation or practice, in practice, neither the Clinton nor Bush administrations has ever even suggested that it would make such a change absent
(bicameral and bipartisan) congressional approval.
The inclusion language in the English bill authorizing, if not directing, Commerce to change regulation or practice even absent Congressional approval undermines the broader statutory scheme carefully established in 1994, shifts the balance of action for implementing WTO decisions that affect one provision of the AD/CVD laws toward the Administration, and erodes further congressional authority over the unfair trade laws.
In simple terms, section 3(b)(2) of the English bill authorizes Commerce to take action to align U.S. law with the decisions of a WTO panel or Appellate Body--without the assent of Congress as provided under existing U.S. law (in the case of Commerce, changes to regulation or practice).
Mr. Speaker, section 3(b)(2) of H.R. 3283 is bad policy and may be unconstitutional as a matter of law. By requiring the Department of Commerce to ensure WTO compliance before acting on Chinese subsidies, the bill would prevent the Administration from vigorously enforcing our trade laws. In addition, the provision violates traditional notions of separation of powers by specifically directing the Department of Commerce to take steps to alter the application of U.S. law without an act of Congress.
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