Abuse of Discretion: Time to Fix the Administration of the U.S. Antidumping Law

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Administration of the U.S. antidumping law has been asignificant source of friction in international trade in recentyears. Since the establishment of the World Trade Organization in1995, various aspects of U.S. antidumping practice have beensubject to dispute settlement in 26 different cases. Most of theissues raised in those cases concern the discretionary practices ofthe U.S. Import Administration, an agency within the Department ofCommerce that administers part of the antidumping law.

At present, the United States remains noncompliant with severalWTO determinations that certain U.S. antidumping methodologiesviolate the rules established by WTO members. Compliance in some ofthose cases could be achieved simply by changing the offendingdiscretionary practices and would require no actions by the U.S.Congress.

IA routinely exploits gray areas in the law to favor thedomestic interests that seek protection – and, according to theverdicts of U.S. courts, sometimes violates the law in the process​.In the 18‐​month period ending in June 2005, IA published 19antidumping redeterminations pursuant to court orders to revise itsassumptions or calculations to become compliant with the law. In 14of those redeterminations, the revised antidumping rates were lowerthan those originally calculated. The imposition of antidumpingorders and the inflation of antidumping duty rates based onerroneous judgments have profound adverse effects on trade andtrade relations.

It is time for U.S. antidumping policy to be brought into thefold of broader U.S. trade policy objectives. Its administrationmust be disciplined and calibrated with the efforts of other U.S.agencies to open markets abroad and to demonstrate that the UnitedStates believes in the merits of free trade. Accordingly,policymakers should consider the merits of establishing anoversight board, comprising representatives from various agencieswith jurisdiction over trade policy, to review IA’s antidumpingdeterminations before they are published. Such a body could helpbuffer antidumping decisions from the results orientation andpoliticization to which they are currently so prone.