United Statea General Acconnthg OfRce Wtuhiwn, D.C. 20648 J s 9ckscJ B-278366 October 20, 1997 CongressionalRequesters Subject: AssistanceAvailable to U.S. Agricultural Producers Under U.S. Trade Law Your September22, 1997,letter to us expressedconcern that many F’lorida fi-uit and vegetable producers believe that existing import relief provisions of U.S. law do not adequatelyaddressthe problems they have experienced since the North American Free Trade Agreement (NAFTA) was implemented. As agreed with your offices, we have outlined (1) the tariff reductions negotiated and provisions for creation of a private dispute settlement mechanism for these products under NAFTA, (2) safeguardprovisions available to U.S. producers, and (3) U.S. antidumping and countervailing duty remedies available to combat other countries’unfair trade practices. We also discuss assistanceavailable to workers and communities under two NAFTA-relatedprograms: the NAFTA Transitional Adjustment Assistance(NAFTA-TM) program and the U.S. Community AcQustmentand Investment Program under the North American Development Bank. SUMMARY U.S. trade law provides extended tariff phaseout periods for U.S. producers of certain winter fruits and vegetables;and two means of assistancefor these producers who are injured by imports, dependingon the product, the volume of the imports, whether the imports are the result of an unfair trade practice, and other factors. The two types of assistanceare NAFI’A’s temporary relief Tom imports by government imposition of “safeguards,”and redress from “dumped” or improperly subsidizedproducts through increased duties on imports. NAFTA’s tariff reduction schedulesbuild in an extended tariff phaseout period for some products (such as fresh tomatoes) that are deemed especia;llyimport sensitive. These extended tariff phaseout periods provide additional time to allow farmers to adjust to international competition. GAO/NSIAD-98-49R Trade Law Assistancefor Agricultural Producers /5 Pv50 B-278366 U.S. producers of agricultural products injured by imports may petition the governmentfor relief in the form of safeguards. Safeguardsmay be applied globally, consistent with provisions of the GeneralAgreement on Tariffs and Trade (GATT), or within NAFTA under either general or special agricultural safeguards. In a safeguardaction, the International Trade Commission (lTC> determineswhether a U.S. industry has been seriously injured by increased imports and, if so, may recommendthat the President temporarily increase duties or impose quotas on those products. Expedited relief is available for perishable agricultural products. In addition, under NAFTA, a more limited bilateral safeguardmay be applied under certain circumstances. A NAFTA country imposing a bilateral safeguardon another NAFTA country must compensatethat country suflicient to redress the injury and help the industry adjust to competition. Finally, a special safeguard,in the form of a tariff-rate quota, applies to some specific, highly sensitive agricultural commodities, including two seasonsof tomat0es.l Second,a U.S. industry can obtain relief from the effects of imports if the governmentfinds that the imports are being sold below fair market value (“dumped”) or benefit from improper subsidiesand materially injure the U.S. industry. ITC determineswhether the injury has occurred, and the U.S. CommerceDepartment determineswhether and how much relief, in the form of increased duties on the imports, is warranted. In addition, NAFTA created two programs to help workers or communities that might be adverselyaffected. NAFTA-TAAprovides employment and other services to workers who lost their jobs due to an increase in imports from Me&o or Canada,or a shift in production to either country. However, NAFI’A- TAA does not require that NAFTA has causedthe job losses. Another program, the U.S. Community Adjustment and Investment Program under the North American DevelopmentBank, helps communities with job losses associated with NAFTA by providing loans and loan guaranteesto businessesseeking to locate or expand existing operationsin those areas. NAFTA’SAGRICULTUREPROVISIONS Under NAFTA, tariffs on some especiallysensitive agricultural goods-including fresh tomatoes-will be eliminated over a 5, lo-, or %-year transition period. In addition, there are plans to develop a NAFTA private dispute resolution system for problems arising in the fresh fruit and vegetabletrade. However, the plans have yet to be implemented. ‘A NAFTA tariff-rate quota allows a certain quantity of product to enter duty free, while anything over this amount will be subject to an overquota tariff. There are provisions for growth in this duty-free amount, and the over-quota tariff declines to zero over a lo- or &year period. 2 GAO/NSL4D-98-49R Trade Law Assistancefor Agricultural Producers B-278366 Agricultural Goods Tariff Schedule NAFTA contains provisions for eliminating tariffs and nontariff barriers for %zB agriculture! products, including import-sensitive commodities. Under NAFTA, the United States and Mexico negotiated a series of bilateral provisions2to phase out all tariffs and convert nontariff barriers to tariffs or tariff-rate quotas. Tariffs were either phased out upon NAFTA’simplementation on January 1, 1994,or will be over 5, lo-, or lbyear transition periods. These transition periods were agreedupon after U.S. negotiators obtained input from interested parties on the import sensitivity of various commodities. Those deemed especiallyimport sensitive were granted extendedphaseout periods, providing additional time to allow farmers to adjust to international competition. The negotiated tariff schedulesfor some agricultural commodities to some extent reflected seasonalproduction to coincide with the marketing period for domestic U.S. production. For example,prior to NAFTA, there were four separateseasonaltariff periods for fresh tomatoes, with two different tariff rates.3 According to Department of Agriculture officials, U.S. negotiators took steps to ensure that the longest phase out period would apply to the most sensitive season. Disuute Resolution Provisions Consistent with its objective of facilitating trade, NAFTA includes provisions designedto avoid commercial disputes or prevent them from escalating. For agricultural goods, NAFTA created an Advisory Committee on Private Commercial Disputes RegardingAgricultural Goods. The advisory committee’s mission is to recommend a system for resolving private commercial disputes that arise in connection with agricultural transactions. The benefit of such a system would be to avoid delays and other difficulties associatedwith the adjudication of international commercial transactions by domestic courts- particularly signi&ant to U.S. exporters of perishable commodities. The advisory committee’s initial efforts to develop an alternative dispute resolution system have focused on the fresh fruit and vegetabletrade. At its first meeting in February 1997,the advisory committee identified the basic elements necessaryfor a dispute resolution system and identified possible system designs. At a second meeting scheduledfor late October 1997,the 2Agricultural trade between Canadaand the United States continues to be governedby the provisions of the 1989U.S.-CanadaFree Trade Agreement. 3TheNAJ?I’AbaselineU.S. tariff rate for fresh tomatoes imported during the periods March 1July 14 and Septemberl-November 14 was 4.6 cents per kilogram, while the rate for the periods July &August 31 and November 16- February 28 was 3.3 cents. 3 GAO/NSIAD-98-49R Trade Law Assistancefor Agricultural Producers B-278356 advisory committee plans to finalize its recommendations. These will be presentedto the NAFTA Committee on Agricultural Trade for action at some future date, according to Department of Agriculture officials. The advisory committee may be reconstituted to addressother commodity interests once it has made recommendationsfor the developmentof a private dispute resolution system for the fresh fruit and vegetabletrade, these officials said. SAFEGUARDAND EMERGENCYACTION PROCEDURES A second type of assistanceavailableto U.S. agricultural producers is to get temporary relief from injurious imports through a “safeguard”action, which may result in an increase in tariffs. When an industry petitions the federal governmentfor safeguardrelief, ITC investigatesthe matter, and then the President may grant the relief based on l’lVs recommendation. Under a special NAFTA safeguardprovision, U.S. producers of certain highly sensitive fruits and vegetablesare provided relief for a period of tune by limits on the amount of imports that enter the United States subject to the lowest NAFTA tariff. GeneralSafeguards The safeguardclause in article XIX of the GATT allows GATT members to obtain relief when increasedimports of a product are found to cause or threaten to cause serious injury to domestic producers of like or competitive products. The World Trade Organization(WTO) Agreement on Safeguards, negotiated during the Uruguay Round negotiations, establishesspecial rules for the application of safeguardmeasures. Under U.S. implementing legislation, LTC conducts these investigations,generally on the basis of a petition filed by a U.S. industry. In making its determination, ITC is required to take into account all relevant economic factors.4 For example,in determining serious injury, ITC must consider whether (1) productive facilities in the industry have been significantly idIed, (2) a significant number of firms have been unable to operate at a reasonablelevel of profit, and (3) significant unemployment or underemploymenthas occurred within the industry. In determining the threat of serious injury, ITC must consider, among other specified factors, whether there is a decline in sales or market share; a higher and growing inventory of the product; and a downward trend in production, profits, wages,productivity, or employment in the industry. ITC is required to consider the condition of the domestic industry over the course of the relevant businesscycle and to examine factors other than imports that may be the cause of the serious injury or the threat of serious injury to the domestic industry. There is no requirement that the increase in imports or serious injury be attributable to an unfair trade practice. 419U.S.C. 2252(c) 4 GAO/NSIAD-98-49R Trade Law Assistancefor Agricultural Producers B-273366 If ITC makes an affirmative injury determination, it is required to recommend the action that would addressthe serious injury or threat to the domestic industry and that would be most effective in facilitating industry efforts to make a positive adjustment to import competition.’ ITC is authorized to recommend to the President relief in the form of new or increasedtariffs, quotas, trade adjustment assistanceto workers, or a combination of these measures. The President may then take action consistent with the ITC recommendation or other action deemedappropriate.6 The Fresident, after taking into account certain factors that he must consider, may then take action consistent with the ITC recommendation,other action deemedappropriate, or no action. The President must report to Congresson the action he has taken. If he takes action that differs from that recommendedby ITC or pursues no action at all, Congressmay, through a joint resolution, direct the President to proclaim the action recommendedby FIX. In two types of situations, a U.S. industry may obtain preliminary relief from imports pending completion of the ITC investigative or presidential review process. An industry producing a perishable agricultural product may request such “provisional”relief if ITC has had in place a monitoring investigation under section 332 of the Tariff Act of 1930,as amended,with respect to that product for at least 90 days prior to the filing of the request. If this monitoring has been underway for the requisite period and the industry requestsprovisional relief in its petition, ITC has 21 days to make a provisional relief determination. If the ITC determination is affirmative, the President has 7 days to decide what, if any, action to take. In the second situation, provisional relief may also be provided when critical circumstancesare found to exist7 If an industry alleges critical circumstances,lTC has 60 days to determine whether the critical circumstances exist and, if so, to make a recommendationto the President. The President has 30 days to decide what, if any, action to take. Requestsbased on critical circumstances are not restricted to perishable agricultural products. ‘19 U.S.C. 2262(e). ‘%I addition to these recommendations,ITC may also recommend that (1) the President initiate international negotiationsto addressthe underlying cause of the increase in imports of the article or otherwise to alleviate the injury or threat or (2) the President implement any other action authorized under law that is likely to facilitate positive adjustment to import competition. (19 U.S.C. 2252(e)(4).) , 7Critical circumstancesexist if a substantial increase in imports (either actual or relative to domestic production) over a relatively short period has led to circumstancesin which a delay in taking action would cause harm that would significantly impair the effectivenessof such action. (19 U.S.C. 2262(b)(3)(B).) 6 GAO/IWhAD-93-49R Trade Law Assistancefor Agricultural Producers B-278356 These safeguardsare global safeguards;that is, generally they must be applied to products from all sourceswithout discriminating against any particular country. NAFTA countries retain their rights under GATT article XIX to use global safeguards,although NAFTA limits the ability of a NAFTA country to apply a global safeguardto another NAFTA country. A NAFTA country that wishes to apply a global safeguardto another NAFTA country must find that the imports from the NAFTA country account for a substantial share of worldwide imports of the product in question. It must also fmd that the NAFI‘A country’s imports contribute importantly to the serious ir@ry or threat to domestic industry causedby the imports in question. NAFTA Bilateral EknergencvAction Procedures NAFTA provides for a separatebilateral safeguardaction in case of injury due to the reduction or elimination of duties under NAFTA.’ Under U.S. NAFTA implementing legislation, the process for seekingrelief is similar procedurally to that for global safeguardinvestigations. An industry petitions ITC for relief, and ITC conducts the investigations. If ITC finds that, as a result of reduction or elimination of a duty provided for under NAFI’A’a product from Canadaor Mexico is being imported into the United States in such increased quantities and under such conditions that imports of the product, alone, constitute a substantial cause of serious injury, or the threat of serious injury, to the domestic industry producing a like or directly comparableproduct, it makes a recommendationto the President. The President is responsible for making the tinal decision on whether to grant relief; availablerelief is limited to an increase in duty to the lesser of the pre-NAFTArate or the current most-favored-nation (MFN) rate. Unlike the global safeguardprovision under GATT, NAFTA requires that a party taking such action provide mutually agreedcompensation in the form of concessionshaving substantially equivalenttrade effects or the equivalentvalue of the additional duties expected to result from the relief action. Provisional relief is availableunder these bilateral emergencyaction procedures. NAFTA’s Suecial Provisions for Certain Agricultural Products In addition to NAFTA’s bilateral emergencyaction safeguards,which are not product specific, NAFTA provides for a “special safeguard”in the form of a tariff-rate quota on specific, highly sensitive commodities. These commodities include two seasonsof tomatoes, eggplant,onions and shallots, chili peppers, squash,and watermelon. During the NAFTA tariff phaseoutperiod, the United Statesis to allow a cert&.n amount of these imports (quotas generally based upon recent import levels) to enter under preferential tariffs, while the amounts “As a generalrule, these bilateral actions may be taken only during NAFTA’s transitional period (that is, the lo-16 year period during which duties are being phased out). 6 GAO/NSIAD-98-49R Trade Law Assistancefor Agricultural Producers R-273366 imported in excess of the quotas will be assessedthe lowest of the prevailing MFN tariff rate or the MFN tariff rate as of July 1, 1991. The tariff rate quota level, which will gradually increase,does not restrict trade under normal cfrcumastances but is in place to cushion the impact of a sudden surge in imports. NAJTI’Aprohibits NAFTA countries from simultaneously applying both an overquota tariff under this special agricultural safeguardprovision and any other safeguard(that is, a global or NAFTA bilateral safeguard). The U.S.-CanadaFree Trade Agreementprovides conditional, temporary tariffs to protect importing countries against surgesin low-priced fruits and vegetables ( “snapback”tariffs). An essential difference between the NAFTA safeguardand U.S.-CanadaFree Trade Agreementsnapbackmechanismsis that the former is triggered on the basis of import volume, while the latter is triggered by import price and crop acreage. One of the reasonsnegotiators decided to base NAFTA’s special agricultural safeguardprovision trigger on import volume was becauseMexico does not have adequatedata collecting processesin place for monitoring prices and acreage.’ Section 316 Monitoring Reauirements Under NAFTA’s implementing legislation, ITC is required to monitor imports of certain perishable agricultural products in order to make provisional relief determinations within statutory deadlines. Under section 316 of the NAFTA Implementation Act, ITC must monitor U.S. imports of fresh or chilled tomatoes and fresh or chilled chili peppers.” This monitoring requirement, which will continue until January 1, 2009,avoids the need for tomato and bell pepper growers seeking provisional relief to formahy request monitoring and also avoids the X-yearstatutory sunset provision related to ITC monitoring investigations. If ITC requests,the Secretary of Agriculture and the Commissionerof Customs are required to provide information to lTC relevant to this monitoring effort. U.S. ANTIDUMl’ING AND COUNTERVAILINGDUTY LAWS U.S. trade.law also allows U.S. industry, including agricultural goods producers, to petition the governmentto impose additional duties on imports that the government determines are either dumped or that benefit from improper foreign government subsidies and that injure the U.S. industry. @Some U.S. agriculture industry representatives,however, pressed for continuance of the import price strategy becauseof concerns that the safeguard will not protect U.S. fruit and vegetableproducers from downward price pressuresresulting from the lowering of tariffs. ‘O19U.S.C. 3381. 7 GAO/NSIAD9349RTrade Law Assistancefor Agricultural Producers B-278366 Antidumping Investiaations Dumping is generally defined as the sale of an exported product at a price lower than that chargedfor the same or a similar product in the “home”market of the exporter or at a price below cost. U.S. antidumping law seeks to redress dumping as a form of unfair price discrimination. The most common antidumpingprocess is under title VII of the Tariff Act of 1930,as amended.” Under this provision, private parties can petition the Department.of Commerceand ITC on behalf of a U.S. industry to determine whether a class or kind of merchandiseis being sold in the United States at dumped prices and whether those imports are injurious. Commerceis to determine whether sales are at “less than fair value”by calculating the difference between the normal value of the product (for example, the price in the home market) and the export price (for example, the price in the United States). In a parallel investigation, ITC determineswhether a U.S. industry is materially injured or threatenedwith material injury or whether establishment of an industry in the United Statesis materially retarded by reason of the imports determinedby Commerceto have been dumped, using criteria specified in the a&l2 If the agenciesfind that both dumping and the requisite injury exist, Commercethen calculatesthe amount of duties imposed on each importer to offset the price difference between the U.S. price and the normal value of the imported merchandise. Some aspectsof U.S. antidumping law have recently been modified as a result of the Uruguay Round antidumping agreement,which applies to all NAFTA countries. The Uruguay Round antidumping agreementrequired greater transparencyfor antidumping actions and establishednew methodological and procedural rules to govern dumping investigations by national governments. Important changesinvolve both the method of calculating the export price of the product under investigation and the method of determining the normal value to which that export price is compared. The new rules also provide a standard of review that WTO panels must apply when reviewing challengesto a member’santidumping measuresunder the WTO’s dispute settlement procedures. Countervailina Dutv Investigations Subsidiesprovided by a governmentor public body may confer benefits on the recipient that provide an unfair advantagein international trade, such as allowing a producer to sell his or her products at a lower price than that of the “19 U.S.C. 1673et seq. I219U.S.C. 1677. 8 GAOMSIAD-98-49R Trade Law Assistancefor Agricultural Producers B-278366 competition. U.S. countervailing duty laws seek to redress the adverse effects to a U.S. industry that seeks such relief. The Tariff Act of 1930,as amended,provides for the imposition of countervailing duties whenever certain prohibited subsidies are bestowed by a foreign government or public entity within a foreign country upon the manufacture, production, or export of any article that is subsequentlyimported into the United States firstname.lastname@example.orgSubtitle A of title VII of the Tariff Act of 1930,as amended,applies to imports from WTO member countries or from countries that have assumedobligations substantially equivalentto those of the Uruguay Round SubsidiesAgreement.14 The process for countervailing duty investigationsis similar to that for dumping. Commercemust determine whether a country is providing certain prohibited subsidiesto its industry or group of industries, either directly or indirectly. If Commercefinds that a prohibited subsidy exists and ITC determinesthat a U.S. industry is materially injured or threatenedwith material injury or whether the establishmentof an industry in the United Statesis materially retarded by reason of the subsidizedproduct, Commercethen calculates the amount of duties to be imposed on each importer to offset the subsidiesprovided for the manufacture, production, or export of that product. Like antidumping law, U.S. countervailing duty law and procedures have recently changedas a result of the Uruguay Round subsidies agreement,which all NAFTA countries have signed. The subsidiesagreementset forth the definition of a subsidy and the conditions that must exist in order for action to be taken. The agreementcreated three categoriesof subsidies:(1) prohibited subsidies; (2) actionable subsidies,for example, permissible subsidies against which remedies can be sought if they are shown to cause adversetrade effects; and (3) nonactionable subsidies,such as those for research and development. Countervailing duties may only be unposedwith respect to prohibited or actionable subsidies as defined in the subsidiesagreement. 1319U.S.C. 1671. 1419U.S.C. 1671et seq. 9 GAO/N&ID-98-49RTrade Law Assistancefor Agricultural Producers B-278366 NAFTA’SJOB DISLOCATIONPROGRAMS NAFTA’s implementing legislation created two programs to help U.S. workers dislocated by trade with or investment in Mexico or Canada.16The NAFTA-TM program was designedto assist workers in companiesaffected by U.S. imports from Mexico or Canadaor by shifts in U.S. production to either of these countries. NAFTA-TAAbenefits include basic readjustment services such as employment services;training; job search allowances;relocation allowances; and-the feature that most distinguishesthe program from basic unemployment insurance-income support for up to 52 weeks after exhaustion of unemploymentinsurance when enrolled in training. NAFTA-TAAis authorized to continue until September30, 1998. The responsibility for investigating and making a determination on a NAFI’A- TAA petition is coordinated by the Governor of the state where the workers’ company is located and the U.S. Department of Labor in Washington,D.C. NAFTA-TAApetitions, which can be filed by a group of three or more workers, are first reviewed by the Governor of the state where the workers’company is located. The Department of Labor makes the final determination to approve or deny these petitions and issues certifications for approvedpetitions. As of September4, 1997,NAFTA-TAAcerti%zationshad been issued for 1,206worker groups located in 48 states. The three states with the most NAFTA-TAA certifications were Texas (12,797),Pennsylvania(12,788),and North Carolina (12,001). Under the NAFTA-TAAprogram, workers may be certified based in part upon a determination that an increase in imports from Mexico or Canadacontributed importantly to the workers’separationor threat of separation. Alternatively, workers may be certified if they become separatedor are threatened to become separatedand there has been a shift in production by the workers’firm or subdivision to Mexico or Canadaof like or directly competitive items. In either case,there is no requirementthat the separationor threatened separation be caused by NAFTA. A second program to deal with NAFTA’sjob dislocation effects establishedby the NAFTA implementing legislation is the U.S. Community Adjustment and Investment Program under the North American DevelopmentBank. The program was designedto provide loans and loan guarantees(up to $22.6 million, according to the authorizing legislation) to businessesseeking to locate 16Wehave work ongoing regarding NAFTA-TM worker certification for the SenateCommittee on Commerce,Science,and Transportation, and work on broader NAFTA-TAAissues for RepresentativeEvans and Lipinski. In addition, NAFI’A-TAA was discussedin more detail in recent testimony. See North American Free Trade Agreement: Imuacts and Implementation (GACW-NSUD- 97-256,Sept. 11, 1997). 10 GAO/NSIAD-98-49R Trade Law Assistancefor Agricultural Producers ._ k- ._. .. B278356 or expand existing operations in communities with job losses caused by NAFTA. It was to be implemented by a program office in Los Angeles,two advisory committees, and an ombudsmanappointed by the President.” SCOPEAND METHODOLOGY To develop this report, we reviewed relevant laws; interviewed officials at ITC and the Commerceand Agriculture Departments;and relied on past GAO work on NAFTA, the Uruguay Round WTO Agreements,and U.S. trade remedy laws. We have agreedto meet with your staff regarding additional support we can provide you on this issue. Pleasecontact me at (202) 61243984 if you or your staff have any questions concerning this letter. Major contributors to this letter were Elizabeth Sirois, Anthony Moran, David Genser,Kay Halpern, Richard Burkard, and MaureenMurphy. JayEtta q Heckediate Director International Relations and Trade Issues ‘GTheTreasury Department issued its first designationof qualifying communities on August 1, 1997. That announcementdeclared 35 communities in 19 states eligible for businessloans and loan guarantees. However, during the first 3-I/2 years of NAFI’A, no loans were approved under the program. 11 GAO/NSIAD-9849RTrade Law Assistancefor Agricultural Producers B-278366 LIST OF REQUESTERS The Honorable Bob Graham The Honorable Connie Mack United States Senate The Honorable Michael Bilirakis The Honorable Allen Boyd The Honorable Corrine Brown The Honorable CharlesCanady The Honorable Jim Davis The Honorable Peter Deutsch The Honorable Mark Foley The Honorable Tillie K Fowler The.Honorable Porter J. Goss The Honorable Carrie P. Meek The Honorable Ileana Ros-Lehtien The Honorable Joe Scarborough The Honorable E. Clay Shaw, Jr. The Honorable Karen L. Thurman The Honorable Dave Wedon The Honorable Robert Wexler House of Representatives (711307) 12 GAO/NSIAD-98-49R Trade Law Assistancefor Agricultural Producers Ordering Information The first copy of each GAO report and testimony is free. Additional copies are $2 each. 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Assistance Available to U.S. Agricultural Producers Under U.S. Trade Law
Published by the Government Accountability Office on 1997-10-20.
Below is a raw (and likely hideous) rendition of the original report. (PDF)