[Congressional Record Volume 151, Number 110 (Wednesday, September 7, 2005)]
[Extensions of Remarks]
[Pages E1769-E1770]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               UNITED STATES TRADE RIGHTS ENFORCEMENT ACT

                                 ______
                                 

                               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

[[Page E1770]]

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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