Foreign Trade Remedy Investigations of U.S. Agricultural Products

Foreign Trade Remedy Investigations of U.S. Agricultural Products

Foreign Trade Remedy Investigations of
November 10, 2020
U.S. Agricultural Products
Anita Regmi
Foreign countries appear to be making greater use of punitive measures affecting U.S.
Specialist in Agricultural
agricultural exports. These measures, corresponding to duties the United States has long imposed
Policy
on imports found to be traded unfairly and injuring U.S. industries, have the potential to reduce

the competitiveness of U.S. agricultural exports in some foreign markets. Recent changes in U.S.
Nina M. Hart
agricultural policy, including several large ad hoc domestic spending programs —valued at up to
Legislative Attorney
$60.4 billion—in response to international trade retaliation in 2018 and 2019, and to eco nomic

disruption caused by the Coronavirus Disease (COVID-19) pandemic in 2020, may increase the
likelihood of foreign measures that adversely affect U.S. agricultural trade.
Randy Schnepf
Specialist in Agricultural
The imposition of anti-dumping and countervailing duties is governed by the rules of the World
Policy
Trade Organization (WTO) and of WTO’s 1995 Agreement on Agriculture (AoA). Under the

AoA, member countries agreed to reform their domestic agricultural support policies, increase

access to imports, and reduce export subsidies. The AoA spells out the rules to determine
whether policies are potentially trade distorting. If a trading partner believes that imported
agricultural products are sold below cost (“dumped”) or benefit from unfair subsidies, it may impose anti-dumping (AD) or
countervailing duties (CVD) on those imports to eliminate the unfair price advantage.
In recent years, a number of trading partners have challenged imports of U.S. agricultural products, even initiating repeated
or multiple investigations into the same products. Moreover, since 2004, trading partners have expanded the scope of U.S.
subsidies that they consider subject to punitive duties. In some cases, programs other than those that the United States reports
to the WTO have been the subject of foreign government investigations. These have included subsidies for ethanol, export
credit guarantees, farm ownership and operating loans, and export promotion programs. Some investigations have argued that
subsidies to raw inputs (such as corn) be considered as part of subsidies to the investigated product such as ethanol or poultry
meat. The trade aid program in 2018 and 2019, and ad hoc payment programs in response to the COVID-19 pandemic, have
raised new questions from some WTO members about whether these payments provide an unfair advantage for the U.S.
agricultural sector.
The U.S. government and the affected industries have multiple avenues to challenge these investigations. They may
participate in an investigation to present evidence, for example, that certain subsidies are permissible under WTO rules or
that the imposition of duties is not justified. U.S. exporters may also challenge an AD or CVD ruling under certain free trade
agreements or bring a claim via the WTO dispute settlement process. However, the WTO Appellate Body, which hears
appeals of cases from WTO dispute settlement panels, currently lacks a sufficient number of members to adjudicate disputes
because the United States has blocked the appointment of members to replace those whose terms have expired.
The United States and other members have indicated an interest in WTO institutional reform that could address dispute
settlement, as well as other issues pertinent to agricultural trade. Congress could consider oversight on whether U.S.
negotiating objectives adequately balance maintaining multilateral disciplines on agriculture subsidies, a lo ngtime U.S.
objective, with protecting U.S. agricultural exports from potentially damaging AD and CVD investigations initiated by U.S.
trading partners. Congress might also consider whether the practices in U.S. investigations should be modified to minimize
their exposure to analogous challenges in the future.
Additionally, Congress might review whether U.S. farm program spending fully complies with U.S. spending commitments
under the AoA. In this regard, options for Congress might include limiting the Administration’s use of its spending authority
under the Commodity Credit Corporation Charter Act, which was used to make the large ad hoc payments during 2018
through 2020, primarily without congressional input or oversight.
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Contents
Introduction ................................................................................................................... 1
Trade Remedies Under the WTO ....................................................................................... 1
WTO Agreement on Agriculture and U.S. Farm Subsidies ..................................................... 2
Domestic Support Commitments Defined by AoA .......................................................... 3
U.S. Domestic Support Commitments Under AoA..................................................... 4
Increasing U.S. Farm Support Since 2018 ................................................................ 4
AD and CVD Investigations into U.S. Agriculture................................................................ 6
Mexico .................................................................................................................... 6
Canada..................................................................................................................... 7
China....................................................................................................................... 8
European Union ...................................................................................................... 10
Peru....................................................................................................................... 10
Challenges to U.S. Agricultural Products: A Broader View .................................................. 11
Issues for Congress ....................................................................................................... 13

Figures
Figure 1. U.S. Compliance with WTO Spending Limit, 1995-2020 ......................................... 5

Contacts
Author Information ....................................................................................................... 14

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Foreign Trade Remedy Investigations of U.S. Agricultural Products

Introduction
Foreign countries appear to be making greater use of trade measures to address al eged dumping
and subsidization of U.S. agricultural exports. These measures could reduce the competitiveness
of U.S. agricultural exports in some foreign markets. Recent changes in U.S. agricultural policy,
including several large ad hoc domestic spending programs—valued at up to $60.4 bil ion—in
response to international trade retaliation in 2018 and 2019, and to economic disruption caused by
the coronavirus disease pandemic in 2020,1 may increase the likelihood of foreign measures that
adversely affect U.S. agricultural trade.
Trade remedy measures, primarily in the form of anti-dumping and countervailing duties, is
governed by the World Trade Organization (WTO). This report describes the relevant WTO rules
and explains how the large ad hoc support payments may have made the United States more
vulnerable to foreign government trade actions. It then describes several recent foreign measures
affecting U.S. exports of certain agricultural products. A concluding section discusses potential
options for Congress in addressing concerns that such measures could affect U.S. exporters.
Trade Remedies Under the WTO
Under the WTO agreements, importing countries can use their domestic procedures to investigate
whether imports from the United States are being traded unfairly and are injuring domestic
industries. If the answer in both cases is affirmative, the WTO permits the trading partner to levy
additional duties (known as trade remedies) on the imported products that are causing the injury.
These actions to protect domestic producers do not require the country initiating the investigation
to ask the WTO to investigate or resolve the dispute.2
Two main types of remedies are involved:
1. Anti-dumping duties (ADs) may be imposed on an imported product found to be
sold for “less than its normal value” and injuring or threatening injury to a
domestic industry. The WTO defines normal value as the comparable price for
the “like product” in the ordinary course of trade when destined for domestic
consumption in the exporting country.3 ADs may be levied for a maximum of
five years and re-imposed if a review finds a likelihood of continued threat of
injury to a domestic industry.4 WTO members had 1,919 AD measures in force as
of June 30, 2019.5
2. Countervailing duties (CVDs) may be imposed on imported products found to be
unfairly subsidized and to be injuring or threatening injury to a domestic
industry.6 WTO rules require that a country terminate any CVDs no later than
five years after they are first imposed. However, the duties can be extended if a
subsequent review determines that the foreign subsidy stil exists and is causing

1 See CRS Report R46577, U.S. Farm Support: Outlook for Compliance with WTO Commitments, 2018 to 20 20.
2 However, countries are required to notify the WTO of such actions under Article 25.11 of the Agreement on
Subsidies and Countervailing Measures (SCM Agreement).
3 Agreement on Implementation of Article VI of the General Agreement on T ariffs and T rade, 1994, Article 2.1.
4 Ibid., Article 11.3.
5 WT O, Report of the Committee on Anti-Dumping Practices, G/L/1344, G/ADP/26, November 21, 2019.
6 WT O, General Agreement on T ariffs and T rade, 1994, Article VI.
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or likely to cause injury to a domestic industry.7 WTO members had 195 CVD
measures in force on June 30, 2019.8
As an alternative to an AD or CVD investigation, a country claiming to be affected by dumping
or unfair subsidies may file a complaint with the WTO. Such a complaint may be adjudicated by
a WTO legal panel. The United States has taken this approach frequently. Through April 2019, it
had brought 46 cases on agriculture to the WTO, of which 34 were decided fully or partial y in
favor of the United States.9 However, the WTO’s Appel ate Body, which hears appeals of panel
findings, has effectively become non-functional due to the United States’ decision to block the
nomination of members to the Appel ate Body. This deprives the Appel ate Body of a quorum and
effectively renders it unable to resolve disputes.10
The WTO rules concerning trade remedies apply to merchandise imports in general. However,
special provisions apply in considering what types of government assistance to the agricultural
sector are considered to be “subsidies” in CVD investigations or WTO proceedings. In particular,
although agriculture subsidies are covered by the Agreement on Subsidies and Countervailing
Measures (SCM Agreement), they are also disciplined by the Agreement on Agriculture (AoA).
WTO Agreement on Agriculture and U.S. Farm
Subsidies
The AoA established a multilateral y agreed-upon set of trade rules concerning national
agricultural policies—including domestic farm support, agricultural export subsidies, and
restrictive import controls—for the first time. Under the agreement, reached in 1995, WTO
member countries pledged to reform their domestic agricultural support policies, increase access
to imports, and reduce export subsidies. To accomplish this, countries were to freeze (“bind”)
protection and subsidies at base-period levels and then institute annual reductions from those
bound levels.11
WTO commitments varied across three member groupings: developed, developing, and least-
developed countries. Article 15 of the AoA recognized the special needs of developing and least-
developed countries by granting them special rights or extra leniency—termed Special and
Differential Treatment—in the implementation of their policy commitments.12 The United States
has designated itself a developed country in the WTO. The AoA required developed countries to
implement reforms over a six-year period (1995-2000). Developing countries received special

7 SCM Agreement, Article 21.3.
8 WT O, Report of the Committee on Subsidies and Countervailing Measures, G/L/1341, G/SCM/155, November 20,
2019.
9 Extracted from WT O, “ Disputes by Member,” case total reported as of April 23, 2019, at https://www.wto.org/
english/tratop_e/dispu_e/dispu_by_country_e.htm.
10 For more on this, see CRS Legal Sidebar LSB10385, The WTO’s Appellate Body Loses Its Quorum: Is This the
Beginning of the End for the “Rules-Based Trading System”?, by Brandon J. Murrill.
11 See CRS Report R46456, Reforming the WTO Agreement on Agriculture, by Anita Regmi, Nina M. Hart, and Randy
Schnepf; and WT O, AoA, Legal T ext, 1995, https://www.wto.org/english/docs_e/legal_e/14-ag_01_e.htm.
12 T he WT O does not have specific and transparent criteria for designating a country as “developing” or “developed.”
Instead, member countries may self-designate. For the definition of least-developed countries, see WT O,
Understanding the WT O: T he Organization, “Least-Developed Countries,” at https://www.wto.org/english/thewto_e/
whatis_e/tif_e/org7_e.htm.
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treatment, with a longer, 10-year implementation period (1995-2004) and less stringent
reductions.13
Peace Clause
During the AoA’s early years, Article 13, known as the Peace Clause or “due restraint” clause,
protected member countries from chal enging one another’s domestic support and export subsidy
measures through countervailing duty (CVD) actions—provided that these measures complied
with certain requirements set out in the AoA.14 However, these measures have been open to
chal enge since the Peace Clause expired in 2004.15
Domestic Support Commitments Defined by AoA
With respect to domestic support, WTO member countries agreed to (1) categorize and report
domestic support spending programs according to the degree that they distort market conditions
and (2) to implement disciplines—including limitations and gradual reductions—on domestic
agricultural subsidies, especial y on the most trade-distorting policies.16 The AoA spel s out the
rules for countries to determine whether their policies are potential y trade distorting; how to
calculate the costs of any distortion using a special y defined indicator, the “Aggregate Measure
of Support” (AMS); and how to report those costs to the WTO in a public and transparent
manner.17 While the AMS is subject to a spending limit that must be reported (known as a
country’s “amber box” support), the AoA provides four potential exemptions from the AMS
spending limit:
1. If a program’s outlays are considered to be minimal y trade distorting or non-
trade distorting (in accordance with specific criteria listed in Annex 2 of the
AoA), then it may qualify as a “green box” program and not be included in the
AMS.
2. If program spending is trade-distorting but has offsetting features that limit the
production associated with support payments, then the programs may qualify as
“blue box” programs and not be included in the AMS.
3. If AMS outlays for a specific commodity are sufficiently smal relative to the
output value of that commodity (product-specific de minimis), they may be
exempted.
4. If aggregate AMS outlays are smal relative to the value of total agricultural
production (non-product-specific de minimis)—then they may be exempted.

13 Many developed countries have questioned the authenticity of several self-designated “developing” countries and
recommend that a more formal procedure be established before a country is able to benefit from developing country
status.
14 Exemption was allowed if cumulative outlays on such measures did not grant support to a specific commodity in
excess of that decided during the 1992 marketing year.
15 WT O, AoA, 1995, Article 1.f. T here has never been a definitive statement as to when the Peace Clause expired, with
the only WT O panel to address it finding that, at the earliest, it expired January 1 , 2004, but could have expired at later
points in 2004.
16 WT O provisions dealing with domestic support are discussed in more detail in the following section of this report,
“Domestic Support Commitments Defined by AoA.”
17 For more information, see CRS Report R45940, U.S. Farm Support: Compliance with WTO Commitments, by Randy
Schnepf.
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Any AMS left over after applying these four exemptions constitutes the “amber box.”
U.S. Domestic Support Commitments Under AoA
Under the AoA, the United States has committed to limit its spending on amber box programs
(i.e., outlays on the types of programs deemed most market distorting) to $19.1 bil ion per year.
Farm program outlays are cumulative, and compliance is based on annual aggregate spending on
program payments that do not qualify for one of the four exemptions discussed above.18
Farm support programs can potential y violate WTO commitments in two principal ways: first, by
exceeding the amber box spending limit, and second, by generating market distortions that spil
over into the international marketplace and cause significant adverse effects for other market
participants. In general, U.S. farm support outlays should be evaluated against both of these
criteria when assessing whether the United States may be in violation of its WTO commitments.
This discussion focuses on the first potential pathway for a violation: excessive spending.19
Since the WTO’s establishment, the United States has met its WTO amber box spending
commitment. However, U.S. compliance during the years 1998, 1999, and 2000 hinged on
judicious use of the de minimis exemptions, which permit the exclusion of certain spending from
being considered under the amber box limit (Figure 1).
Increasing U.S. Farm Support Since 2018
Since 2018, U.S. AMS spending has received a big boost from several large ad hoc spending
programs (Figure 1). The U.S. government initiated these new programs in response to
international trade retaliation in 2018 and 2019 in response to U.S. tariff increases on certain
imports from China and other countries,20 and to the economic disruption caused by the
Coronavirus Disease (COVID-19) pandemic in 2020.21 These include trade relief programs
implemented by the U.S. Department of Agriculture (USDA) to partial y offset the estimated
trade damage from retaliatory tariffs—the 2018 Market Facilitation Program (MFP), valued at
$8.6 bil ion, and the 2019 MFP, valued at $14.5 bil ion. USDA also initiated several COVID-19
relief programs, that partial y offset estimated sales losses and additional marketing costs,
including two Coronavirus Food Assistance Programs (CFAP) in 2020 (CFAP-1 and CFAP-2),
valued at up to $16.0 bil ion and up to $14.0 bil ion, respectively; and the 2020 Paycheck
Protection Program’s (PPP’s) forgivable loans to agricultural interests, valued at $7.3 bil ion.22

18 See CRS Report R45305, Agriculture in the WTO: Rules and Limits on U.S. Domestic Support, by Randy Schnepf.
19 For a discussion of the second pathway—market distortions—see CRS Report RS22522, Potential Challenges to
U.S. Farm Subsidies in the WTO: A Brief Overview.
20 For more on U.S. government assistance in response to retaliatory tariffs, see CRS Report R45310, Farm Policy:
USDA’s 2018 Trade Aid Package, by Randy Schnepf et al.
21 See CRS Report R46577, U.S. Farm Support: Outlook for Compliance with WTO Commitments, 2018 to 2020 , by
Randy Schnepf.
22 Outlays under the CFAP-1 and CFAP-2 are not finalized, but are expected to be less than the available funding levels
(actual outlays are estimated at $11 billion and $13.3 billion, respectively). Recipients of Paycheck Protection Program
(PPP) loans must meet certain criteria to qualify for “ loan forgiveness.” U.S. Department of Agriculture (USDA)
anticipates that $5.8 billion out of $7.3 billion (79.5%) of PPP loans to agricultural interests will be forgiven. USDA
has not yet notified domestic support spending for 2018-2020, nor has it indicated how it will classify outlays under
these new ad hoc spending programs. T hese classifications can be critical to determining compliance with the spending
limit. For details, see CRS Report R46577, U.S. Farm Support: Outlook for Com pliance with WTO Com m itm ents, 2018
to 2020).
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Together, these ad hoc programs provide up to an additional $60.4 bil ion in payments to
agricultural producers in addition to traditional farm support programs.
CRS analysis indicates that U.S. domestic farm support outlays were likely within the agreed-to
WTO spending limit of $19.1 bil ion in 2018, but may have exceeded the limit in 2019 depending
on how USDA chooses to calculate the amount of subsidies for that year when it reports them to
the WTO. In 2020, U.S. domestic support outlays that are not exempted from AMS limitations
appear likely to surpass the spending limit if USDA follows precedent in how it calculates and
notifies agricultural subsidies.23
Figure 1. U.S. Compliance with WTO Spending Limit, 1995-2020
Actual Notifications for 1995-2017; CRS Projections for 2018-2020

Source: Compiled by CRS from official USDA notifications to the WTO for 1995 -2017. USDA has not
announced its notification of farm spending for 2018 through 2020. Instead, CRS has compiled USDA spending
projections for those years from USDA Farm Service Agency payment data as of March 12, 2020, USDA Risk
Management Agency crop insurance premium subsidy data as of September 21, 2020, and FAPRI, Baseline Update
for U.S. Farm Income and the Farm Balance Sheet, University of Missouri, Report #05-30, September 2020. See
CRS Report R46577, U.S. Farm Support: Outlook for Compliance with WTO Commitments, 2018 to 2020.
Notes: WTO=World Trade Organization; PS=Product Specific; NPS=Non-product Specific. The two de
minimis exemptions are PS=product specific and NPS=non-product-specific. Official USDA domestic support
outlays and their WTO classification for 2018-2020 wil not be known until USDA makes an official notification
for those years to the WTO. The data presented in this figure assume that USDA notification wil adhere to
historical precedent, and are an approximation based on crop prices, harvested values, and market conditions as
of September 11, 2020. As market conditions change, and new payment data become available, these forecasts
can be expected to change.
As an increasing amount of subsidies is paid to producers by USDA—whether into exempt or
non-exempt categories—they are more likely to come under greater scrutiny for their distortive
impacts on international markets. This could lead to chal enges within the WTO dispute

23 CRS Report R46577, U.S. Farm Support: Outlook for Compliance with WTO Commitmen ts, 2018 to 2020.
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settlement system, or countries could use their own domestic trade remedy procedures to limit
imports found to cause injury to their domestic producers.
Certain types of subsidies described in Annex 2 of the AoA—including general subsidies
al ocated to research, assistance to disadvantaged regions, assistance to promote adaptation to
new environmental regulations, and other non-specific payments—were declared exempt from
countervailing duty actions under the Peace Clause. It is uncertain whether these subsidies
continue to remain non-actionable given that the Peace Clause has expired.24
AD and CVD Investigations into U.S. Agriculture
This section provides several examples of anti-dumping (AD) and countervailing duty (CVD)
investigations that major U.S. trading partners have conducted into U.S. agricultural products.
While the Peace Clause exempted CVD actions on agricultural subsidies, countries have tended
to initiate both CVD and AD investigations simultaneously on the same product. The use of AD
and CVD investigations reveal the potential conflicts confronting U.S. agriculture in the
international marketplace. They also il ustrate the steps that the United States and U.S. industry
may take to chal enge such investigations.
Mexico
Between 1997 and 2002, Mexico conducted AD investigations into several U.S. agricultural
exports, including high fructose corn syrup, live swine, beef, long-grain white rice, and certain
Red Delicious and Golden Delicious apples. Each of these cases resulted in affirmative
determinations that the U.S. products were being sold in Mexico at less-than-fair value (i.e., were
being “dumped”) and that this “dumping” had injured Mexico’s domestic industries.
Consequently, Mexico imposed ADs on each of these products.
In response to the Mexican investigations (except with respect to apples), the United States
initiated WTO proceedings to chal enge the ADs Mexico imposed. In each case, the United States
al eged that the investigating authority violated the WTO Anti-Dumping Agreement25 by
committing several procedural errors (e.g., failure to explain sufficiently how prices of domestic
and exported goods were compared) and substantive errors (e.g., failure to calculate the sale price
of domestic and exported goods at the same level of trade).26 The WTO found that Mexico
violated the Anti-Dumping Agreement during investigations of high-fructose corn syrup and
long-grain white rice.27 Following these determinations, Mexico removed the duties on rice.

24 WT O, “ Subsidies and Countervailing Measures: Overview,” notes 1 and 2, December 31, 1999, at
https://www.wto.org/english/tratop_e/scm_e/subs_e.htm.
25 Article VI of the General Agreement on T ariffs and T rade of 1994 outlines the general basis for imposing ADs. A
more detailed agreement on the subject, the Agreement on Implementation of Article VI of the General Agreement on
T ariffs and T rade, 1994 (known as the An ti-Dumping Agreement), sets forth substantive and procedural rules that
apply to these duties.
26 WT O, Mexico-Definitive Anti-Dumping Measures on Beef and Rice, Request for the Establishment of a Panel by the
United States, WT /DS295/2, Sept ember 19, 2003; WT O, Mexico-Measures Affecting Trade in Live Swine, Request for
Consultations by the United States, WT /DS203/1 , July 13, 2000; WT O, Mexico-Anti-Dum ping Investigation of High-
Fructose Corn Syrup (HFCS) from the United States, Request for the Establishment of a Panel by the United States,
WT /DS132/2, Oct ober 14, 1998; WT O, Mexico-Anti-Dumping Investigation of High-Fructose Corn Syrup (HFCS)
from the United States, Request for Consultations by the United States, WT /DS101/1 , Sept ember 15, 1997.
27 WT O, Mexico-Definitive Anti-Dumping Measures on Beef and Rice, Appellate Body Report, para. 350(b)-(c),
WT /SD295/AB/R, December 20, 2005. Although the name of the case includes beef, the United States’ complaint
about the anti-dumping investigations was limited to rice. See also WT O, Mexico-Anti-Dum ping Investigation of High-
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However, Mexico refused to remove the duties on high-fructose corn syrup until U.S. exporters
prevailed in a dispute chal enging these duties under the North American Free Trade Agreement
(NAFTA).28 The United States’ claims with regard to live swine did not proceed beyond the initial
request for consultations.29
In addition, U.S. exporters chal enged Mexico’s ADs on Red Delicious and Golden Delicious
apples under NAFTA. The NAFTA panel concluded that the investigating authority erred by,
among other things, relying on industry information from eight years prior to the investigation,
which did not indicate whether the products were stil being dumped or injuring the Mexican
industry.30 After conducting a second investigation, the Mexican authority determined there was
insufficient evidence to demonstrate injury and terminated the ADs.31 However, Mexican
producers continued to express concerns with imports of U.S. apples. In 2014, Mexico opened
another anti-dumping investigation into U.S. apples but terminated it in 2016 after finding that,
despite some price discrimination that favored U.S. apples, such discrimination did not cause
material injury to the domestic industry.32
Canada
In 2005, Canada’s investigating authorities, the Canadian Border Services Agency and Canadian
International Trade Tribunal, opened AD and CVD investigations into imports of unprocessed
grain corn from the United States.
These authorities issued preliminary affirmative findings of dumping and subsidization, injury,
and causation.33 With regard to the CVD investigation, the Canadian Border Services Agency
determined that the following U.S. farm programs34—al managed by USDA—provided subsidies

Fructose Corn Syrup (HFCS) from the United States, Panel Report, paras. 8.1-8.2, WT/DS132/R, February 24, 2000.
28 Food and Agriculture Organization of the United Nations, FAO Rice Market Monitor, vol. IX, no. 3, September
2006, 21, at http://www.fao.org/tempref/docrep/fao/009/ag040e/ag040e00.pdf; U.S. International T rade Commission,
The Year in Trade 2002: Operation of the Trade Agreem ents Program , August 2003, p. 134, note 92,
https://www.usitc.gov/publications/332/pub3630.pdf.
29 WT O, Mexico-Measures Affecting Trade in Live Swine, DS203, accessed January 21, 2020, at https://www.wto.org/
.english/tratop_e/dispu_e/cases_e/ds203_e.htm.
30 NAFT A Binational Panel Report, In the Matter of the Review of the Final Determination of the Anti-dumping Duty
Investigation on Im ports of Certain Red Delicious Apples and Golden Delicious Apples from the United States of
Am erica, paras. 54-55, MEX-USA-2006-1904-2, October 15, 2009.
31 USDA, Foreign Agricultural Service (FAS), SE Eliminates Duties on U.S. Apples, March 2, 2010, at
https://apps.fas.usda.gov/newgainapi/api/Report/DownloadReportByFileName?fileName=
SE%20Eliminates%20Duties%20on%20U.S.%20Apples_Mexico_Mexico_3 -2-2010.
32 FAS, Mexico Revokes Anti-Dumping Duties on U.S. Apples, June 7, 2016, at https://apps.fas.usda.gov/newgainapi/
api/Report/DownloadReportByFileName?fileName=Mexico%20Revokes%20Anti-
dumping%20Duties%20on%20U.S.%20Apples_Mexico_Mexico_6 -7-2016.
33 Canadian International T rade T ribunal, Statement of Reasons, Unprocessed Grain Corn: Preliminary Injury
Inquiries, November 30, 2005, at https://decisions.citt -tcce.gc.ca/citt-tcce/a/en/353633/1/document.do; Canadian
Border Services Agency, Statem ent of Reasons Concerning the Making of a Final Determ in ation of Dum ping and
Subsidizing Respecting Unprocessed Grain Corn, Excluding Seed Corn (for Reproductive Purposes), Sweet Corn, and
Popping Corn, Originating in or Exported from the United States of Am erica , para. 5, nos. 4214-10 and 4218-20,
March 30, 2006, at https://www.cbsa-asfc.gc.ca/sima-lmsi/i-e/ad1347/ad1347f-eng.html#12.
34 For more on this issue, see CRS Report R45525, The 2018 Farm Bill (P.L. 115-334): Summary and Side-by-Side
Com parison, coordinated by Mark A. McMinimy.
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to producers: direct and counter-cyclical payments, non-recourse marketing assistance loans and
loan deficiency payments, and federal crop insurance premium support.35
Following these initial findings, the United States filed a request for consultations at the WTO. It
al eged that the Canadian International Trade Tribunal violated the Anti-Dumping Agreement and
SCM Agreement by failing to address factors that it was required to consider, such as the volume
of imports. Additional y, the Canadian International Trade Tribunal al egedly improperly relied on
a “supposed correlation between past injury to the Canadian domestic industry and an al eged
decline in US domestic price” to prove causation.36
After a hearing and receiving submissions from interested parties, including U.S. industry
representatives and the Office of the U.S. Trade Representative,37 the Canadian International
Trade Tribunal issued a negative injury and causation finding. Specifical y, it found that currency
fluctuations caused domestic price changes, and therefore the imported grain corn did not injure
or threaten to injure the domestic industry.38 The United States did not take any further action on
its WTO request.
China
In 2009, China initiated AD and CVD investigations into U.S. broiler products, which included
various chicken parts. In its AD investigation, China concluded that U.S. producers were sel ing
at less-than-fair value and injuring Chinese producers. Based on these findings, China imposed
ADs.39 During its CVD investigation, China determined that direct subsidies to U.S. producers of
broiler products injured Chinese producers. Further, it determined that U.S. subsidies to producers
of corn and soybeans indirectly subsidized U.S. producers of broiler products (i.e., “pass through”
subsidies) and injured Chinese producers. China concluded that the subsidies for corn and
soybeans financial y benefitted U.S. producers of broiler products because such subsidies reduced
the cost of feed for the poultry, thereby reducing the cost of production of U.S. broiler products. 40
The United States chal enged these duties at the WTO, claiming China acted inconsistently with
the Anti-Dumping Agreement and SCM Agreement. With regard to the Anti-Dumping
Agreement, the United States first al eged several procedural errors during the investigation,
including China’s failure to disclose how it adjusted U.S. producers’ records, which al egedly
contained mistakes, when calculating the normal value of the exported broiler products. Second,
it al eged substantive errors, including that the investigating authority improperly disregarded
U.S. producers’ records to calculate the imported product’s normal value.41 As to the SCM
Agreement, the United States al eged that China failed to require the petitioners who asked China

35 For more on this issue, see CRS Report R43448, Farm Commodity Provisions in the 2014 Farm Bill (P.L. 113-79),
coordinated by Randy Schnepf; Canadian Border Services Agency, Unprocessed Grain Corn, para. 77, Nos. 4214-10
and 4218-20.
36 WT O, Request for Consultations by the United States, WT /DS/338/1, March 22, 2006.
37 Canadian International T rade T ribunal, Unprocessed Grain Corn: Statement of Reasons, paras. 8-11, May 3, 2006, at
https://decisions.citt -tcce.gc.ca/citt-tcce/a/en/353480/1/document.do.
38 Canadian International T rade T ribunal, Unprocessed Grain Corn: Statement of Reasons, paras. 103-106.
39 WT O, China-Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, Panel
Report, WT /DS427/R, September 25, 2013.
40 WT O, China-Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, para.
7.257, note 423.
41 WT O, China-Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, Request
for the Establishment of a Panel by the United States, WT /DS427/2 , December 9, 2011.
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to initiate the investigation to provide non-confidential summaries of any confidential information
included in their submissions to the investigating authority.42 The United States also al eged that
China improperly calculated the subsidy amount for several U.S. producers, thereby violating the
SCM Agreement, which prohibits imposing CVDs “in excess of the amount of the subsidy found
to exist, calculated in terms of subsidization per unit.”43 In particular, the United States objected
to China calculating the size of the pass-through subsidy by multiplying the subsidy by the
quantity of corn and soybeans purchased by the broiler product producers. According to the
United States, this overstated the size of the pass-through subsidy because the broiler product
producers also used the corn and soybeans purchased to feed chickens that did not qualify as
“broiler products.”44
A WTO panel agreed with the United States and ordered China to conduct a new investigation.45
After this reinvestigation, the United States requested a WTO compliance panel, al eging that
China again failed to conduct the investigation in conformity with the Anti-Dumping Agreement
and SCM Agreement.46 The compliance panel found in favor of the United States, after which
China withdrew the duties.47
In February 2018, China initiated AD and CVD investigations into U.S. sorghum.48 As part of the
CVD investigation, China indicated it would assess whether the following programs provided
subsidies: (1) crop insurance, (2) price loss protections, (3) agricultural risk protections, (4)
marketing assistance loans, (5) export credit guarantees, (6) market access programs, and (7) the
foreign market development partner program.49 In May 2018, China decided to terminate the
investigation, finding that imposing duties “does not conform to the public interest” because it
would negatively affect Chinese consumers of livestock products that are raised using U.S.
sorghum as feed.50

42 WT O, China-Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, Panel
Report, para. 7.26.
43 Ibid., para. 7.236 (quoting Article 19.4 of SCM Agreement).
44 Ibid., paras. 7.238-7.242.
45 Ibid., paras. 8.1-8.3.
46 WT O, China-Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, DSU
Panel Report, WT /DS427/RW, para. 1.4, art. 21.5, February 28, 2018.
47 FAS, China Withdraws AD CVD Measures on U.S. Poultry, GAIN Report No. 18006, March 2, 2018, at
http://www.agriexchange.apeda.gov.in/MarketReport/Reports/
China_Withdraws_AD_CVD_Measures_on_U.S._Poultry_Beijing_China_Peoples_Republic_of_3 -2-2018.pdf.
48 FAS administers foreign market development and promotion programs, which USDA does not consider to be trade
distorting.
49 China Ministry of Commerce, MOFCOM Announcement No. 13 of 2018 on Countervailing Investigation Against
Im ports of Grain Sorghum Originating in the United States, February 4, 2018, at http://english.mofcom.gov.cn/article/
policyrelease/buwei/201802/20180202710853.shtml.
50 China Ministry of Commerce, MOFCOM Announcement No. 44 on Terminating the Anti-Dumping and
Countervailing Investigation Against Im ports of Grain Sorghum Originating in the United States, May 19, 2018, at
http://english.mofcom.gov.cn/article/policyrelease/buwei/201805/20180502746783.shtml; FAS, MOFCOM Drops AD
and CVD Investigations of Im ports of U.S. Sorghum , May 18, 2018, at https://apps.fas.usda.gov/newgainapi/api/Report/
DownloadReportByFileName?fileName=
MOFCOM%20T erminates%20AD%20and%20CVD%20Investigations%20on%20U.S.%20Sorghum_Beijing_China%
20-%20Peoples%20Republic%20of_5-18-2018.
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European Union
In 2013, the European Union (EU) imposed ADs on bioethanol from the United States, finding
that the imported bioethanol was being dumped in the EU and injured EU producers. Because the
EU lacked information sufficient to determine how much each ethanol producer’s price was
below cost, it applied a single AD on al U.S. producers.51
A group of U.S. trade associations chal enged the EU’s decision to impose a single AD before the
EU courts. The EU General Court invalidated the EU’s decision, stating that it had sufficient
information from four U.S. producers to establish individual AD rates for those producers.52 On
appeal, the European Court of Justice (ECJ), which serves as the court of last resort for the EU,
set aside the General Court’s determination on procedural grounds.53 After the ECJ issued its
judgment, the EU performed a review of the anti-dumping duties, which were set to expire. It
found a “lack of a likelihood of recurrence of dumped exports” and terminated the duties.54
Peru
In October 2007, Peru initiated a CVD investigation into U.S. cotton.55 However, in 2009, Peru’s
investigating authority concluded that there were no grounds on which to impose duties, as the
U.S. imports did not cause serious injury to the domestic industry.56
In 2017, Peru launched a CVD investigation into imports of ethanol from the United States.57
INDECOPI identified 33 federal and state programs as subsidies for the production of ethanol and
for the main input of ethanol—corn. These programs included direct transfers and tax benefits for
ethanol producers and direct transfers of funds to corn producers, the latter of which INDECOPI
classified as pass-through subsidies to ethanol producers.58 INDECOPI then found that, during
the period of investigation, the market share and profits for Peruvian ethanol producers decreased
even though the national market for ethanol expanded. Based on these indicators, INDECOPI
concluded that the U.S. subsidies, which gave U.S. producers an advantage in the market, injured

51 Official Journal of the European Union, “Council Implementing Regulation (EU) 157/2013 of 18 February 2013
Imposing a Definitive Anti-Dumping Duty on Imports of Bioethanol Originating in the United States of America,” O.J.
(L49) 10, February 22, 2013.
52 Case T -276/13, Growth Energy and Renewable Fuels Ass’n v. Council of the European Union,
ECLI:EU:T :2016:340, paragraph 245, June 9, 2016.
53 Case C-465/16, Council of the European Union v. Growth Energy and Renewable Fuels Ass’n,
ECLI:EU:C:2019:155, February 28, 2019.
54 Official Journal of the European Union, “Commission Implementing Regulation of 14 May 2019 Repealing the
Anti-Dumping Duty on Imports of Bioethanol Originating in the United States of America and T erminating the
Proceedings in Respect of Such Imports, Following an Expiry Review Pursuant to Article 11(2) of the Regulation (EU)
2016/1036 of the European Parliament and of the Council,” O.J. (L126) 4, May 14, 2019.
55 Semi-Annual Report under Article 25.11 of the Agreement: Peru, G/SCM/N/178/PER, September 2, 2008 (notifying
the investigation to the WTO’s Committee on Subsidies and Countervailing Measures).
56 Semi-Annual Report under Article 25.11 of the Agreement: Peru, G/SCM/N/195/PER, September 15, 2009; FAS,
Peru: Cotton Update, December 15, 2009, at https://apps.fas.usda.gov/newgainapi/api/Report/
DownloadReportByFileName?fileName=Cotton%20Update_Lima_Peru_12-15-2009.
57 FAS, Biofuels Annual, December 11, 2019, at https://apps.fas.usda.gov/newgainapi/api/Report/
DownloadReportByFileName?fileName=Biofuels%20Annual_Lima_Peru_11-04-2019.
58 T echnical Secretariat of the Supervision Commission of Dumping and Subsidies, Informe No. 036-2018/CDB-
INDECOPI, Oct ober 31, 2018, para. 432, at https://www.indecopi.gob.pe/documents/51763/356074/Inf+036-2018+-
+Informe+Final+Etanol+-+VERSI%c3%93N+P%c3%9aBLICA.pdf/b0d217a5-d36a-c211-82a2-8f5b7443f533.
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Peru’s domestic industry and therefore imposed CVDs.59 The United States is appealing this final
determination. During the investigation, the Office of the U.S. Trade Representative “worked
with U.S. industry to provide critical input for [Peru’s] investigation that mitigated the potential
harm to U.S. ethanol exports to Peru.”60
Peru also opened an investigation into U.S. yel ow corn in July 2018. INDECOPI assessed the
effects of nine federal programs—al managed by USDA—that al egedly constituted subsidies:
(1) export credit guarantees, (2) agriculture risk coverage, (3) price loss coverage, (4) marketing
assistance loans, (5) federal crop insurance, (6) supplemental coverage option, (7) farm
ownership loans, (8) operating loans, and (9) guaranteed farm loans.61 Peru then issued a
preliminary finding that its domestic industry suffered injury from the significant increase in
yel ow corn imports from the United States. The injury was determined to have resulted from
both the imports’ increased market share and a sales price that was lower than what domestic
producers could offer.62 Further, after evaluating other economic factors that might be harming
the domestic industry (e.g., limited access to credit), INDECOPI determined that the evidence
suggested that the injury to Peru’s industry was caused by imports of U.S. yel ow corn.63 In
January 2020, however, INDECOPI determined that the significant increases in imports of yel ow
corn did not significantly impede increases in domestic sales prices or cause significant
deterioration in the economic and financial performance of the domestic producers. As it found
no injury to the domestic producers, INDECOPI recommended that the investigation conclude
without imposing CVDs.64
Challenges to U.S. Agricultural Products:
A Broader View
These AD and CVD disputes highlight several patterns and nuances to trade remedy cases
involving agricultural products.
First, U.S. trading partners began conducting the CVD actions against U.S. products in 2005,
soon after the expiration of the Peace Clause (Article 13 of the AoA), which had exempted trade-
distorting agricultural subsidies from CVD actions if the subsidies met certain conditions.65 CVD
actions against non-agricultural products were common prior to 2005, but the Peace Clause’s
expiration has increased the number of such actions concerning agriculture. Moreover, the United

59 T echnical Secretariat of the Supervision Commission of Dumping and Subsidies, Informe No. 036-2018/CDB-
INDECOPI, paras. 10-14.
60 Office of the U.S. T rade Representative, 2020 Trade Policy Agenda and 2019 Annual Report of the President of the
United States on the Trade Agreem ents Program , February 2020, at https://ustr.gov/sites/default/files/
2020_T rade_Policy_Agenda_and_2019_Annual_Report.pdf .
61 T echnical Secretariat of the Supervision Commission of Dumping and Subsidies, Informe No. 026-2018/CDB-
INDECOPI, July 12, 2018, para. 7, note 7, and para. 107, at https://www.indecopi.gob.pe/documents/1902049/
4099489/INFORME+026-2018.PDF.pdf/3df6d1c7-49d3-d75c-0a16-29e7aaa435bd.
62 Ibid., paras. 212-18.
63 Ibid., paras. 255-57.
64 T echnical Secretariat of the Supervision Commission of Dumping and Subsidies, Informe No. 002-202/CDB-
INDECOPI, January 8, 2020, paras. 926-39, at https://www.indecopi.gob.pe/documents/1902049/3783049/
INFORME+002-2020CDB.PDF/a5e8ad0c-5c66-e00f-db19-36ea17644a9f.
65 Note that the expiration of the Peace Clause affected countervailing actions because agricultural subsidies were no
longer protected after its expiration. Anti-dumping actions are not based on subsidized exports and are not affected by
the expiration of Peace Clause.
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States, Japan, and the EU account for the bulk of global government outlays to support
agriculture. Many emerging economies and developing countries do not have notable outlays of
trade-distorting support to their farm sectors and may see developed-country agricultural-support
practices as endangering the wel -being of their domestic farm sectors. This dynamic may be seen
in the CVD cases discussed above that Peru, a developing country, initiated.
Second, trade remedy actions against U.S. imports often involve repeated or multiple
investigations into the same U.S. products (e.g., Mexican investigations into apples and the
Peruvian and Canadian investigations into corn) and reflect long-standing tensions between
trading partners about perceived advantages that producers from some countries have over others.
Third, as seen in Peru’s investigations into ethanol and China’s into broiler products, at least
some WTO members have argued that subsidies to raw inputs (such as corn) should be
considered part of the subsidies to the investigated products (i.e., pass-through subsidies). The
United States has used the concept of pass-through subsidies in its CVD investigations in the
past, and trading partners have complained about this in several WTO disputes.66
Fourth, national investigating authorities, at the request of domestic industries, often open both
AD and CVD investigations into a product at or near the same time (e.g., China’s investigation
into broiler products). This may reflect uncertainty as to whether perceived injury to domestic
producers results from subsidies provided by a government or public body or rather from industry
practices that lead to sales at less-than-normal value or price discrimination. It may also reflect a
litigation strategy designed to maximize a domestic industry’s chances of obtaining more
favorable market conditions by imposing ADs, CVDs, or both.
Fifth, the United States and its industries may chal enge ADs and CVDs imposed on their
products through multiple avenues. When a country conducts an AD or CVD investigation, the
United States and its industries may seek to represent their interests by participating in the
investigation. During the proceedings, the U.S. government or domestic industry may provide
evidence justifying mitigation of the duties ultimately imposed or the imposition of no duties.
U.S. exporters may also chal enge finalized AD and CVD measures under NAFTA (where
relevant), or, if it enters into force, the United States-Mexico-Canada Agreement. The United
States could also bring a claim via the WTO dispute settlement process, al eging violations of the
Anti-Dumping Agreement or the SCM Agreement. However, as mentioned above, the WTO’s
Dispute Settlement Body currently lacks a quorum of members on its Appel ate Body, and thus it
cannot hear appeals of panel decisions.
Sixth, the legal issues raised by the United States about how foreign investigating authorities have
conducted their AD and CVD investigations may raise questions about the United States’ own
practices. For example, some of the practices that China used to investigate U.S. broiler products,
including China’s decision to ignore historical cost al ocation from foreign producers, were
“modeled on U.S. [Department of Commerce] practices.”67
The United States is not the only WTO member to face questions about, and chal enges to, its
agricultural programs. The United States has initiated several AD/CVD investigations into the

66 See, for example, WT O, “ United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products
from China,” Appellate Body Report, WT /DS379/AB/R, March 25, 2011; and WT O, “ United States—Final
Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada ,” Appellate Body Report,
WT /DS257/AB/R, February 17, 2004.
67 T homas J. Prusa and Edwin Vermulst, “China—Anti-Dumping and Countervailing Duty Measures on Broiler
Products from the United States: How the Chickens Came Home to Roost ,” World Trade Review, vol.14, no. 2 (2015),
pp. 287, 332.
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agricultural programs of other WTO members, including hard red spring wheat from Canada, ripe
olives from Spain, and tomatoes from Mexico.68
The U.S. CVD case against Spanish olives may raise concerns about U.S. practices. The EU has
expressed concerns that even when the EU has followed its WTO commitments regarding
agricultural subsidies, its major trading partner—the United States—has questioned its use of
non-trade-distorting subsidies. It further warns that, “US duties could open a Pandora’s box in
connection with domestic support and pave the way for further unilateral measures on agricultural
imports from the EU. The United States itself is an important user of similar agricultural s upport
schemes, such as the Environmental Quality Incentives Program and direct payments by the Farm
Service Agency, as notified to the WTO.”69 In other words, the EU is suggesting that U.S.
payments for conservation programs, outside the United States’ WTO amber box commitments,
could be subject to CVD investigations.
Issues for Congress
Since December 2019, the WTO dispute settlement system has been limited in its ability to
adjudicate disputes due to an insufficient number of members serving on the Appel ate Body. As a
result, U.S. trading partners may be further inclined to use their domestic trade remedies to
address their concerns instead of raising the issues in direct chal enges before the WTO. For
example, instead of chal enging a subsidy as violating WTO commitments, a WTO member may
choose to chal enge the effects of such a subsidy through a domestic CVD investigation. In
particular, given increasing levels of U.S. support for the farm sector, U.S. farm support programs
may increasingly become a target for CVD investigations.
A country might also justify relying on its national AD and CVD procedures because of cost
considerations. The cost of bringing a case before domestic legal institutions might be
considerably less than initiating a chal enge through the WTO’s dispute settlement process. While
any national authority’s AD and CVD investigations can be chal enged before the WTO, a
national authority can easily find itself spending significant resources defending its
determinations in addition to the resources expended during the domestic investigation process.
The United States and other members have indicated an interest in WTO institutional reform that
could address dispute settlement, as wel as other issues pertinent to agricultural trade. First,
Congress may consider oversight on whether U.S. negotiating objectives adequately balance
maintaining multilateral disciplines on agriculture subsidies, a longtime U.S. objective, with
protecting U.S. agricultural exports from potential y damaging AD and CVD investigations
initiated by U.S. trading partners.
Second, Congress could consider whether the U.S. approach to AD and CVD investigations
should be revised. As mentioned above, some of the practices for AD or CVD investigations of
agricultural imports adopted by U.S. trading partners—and that the United States has successfully
chal enged before the WTO—are similar to U.S. practices. Congress may consider whether the

68 See Request for the Establishment of a Panel by Canada, United States-Determination of the International Trade
Com m ission in Hard Red Spring Wheat from Canada , WT O Doc. WT /DS310/2 (June 11, 2004) (alleging violations of
Anti-Dumping and SCM Agreements); Request for Establishment of a Panel by the European Union, United States-
Anti-Dum ping and Countervailing Duties on Ripe Olives from Spain, WT O Doc. WT /DS577/3, May 17, 2019 (alleging
violations of GAT T Article VI and the SCM Agreement); “ Fresh T omatoes from Mexico: Suspension of Anti-
Dumping Duty Investigation,” 84 Federal Register 49,987, Sept ember 24, 2019.
69 European Parliament, “ US Duties on Imports of Spanish Ripe Olives,” March 2019, at
http://www.europarl.europa.eu/RegData/etudes/AT AG/2019/635558/EPRS_AT A(2019)635558_EN.pdf.
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practices in U.S. investigations should be modified to minimize their exposure to analogous
chal enges in the future.
Third, the United States, Canada, and Mexico have created a third method of settling disputes
over AD and CVD determinations in NAFTA and its successor, the United States-Mexico-Canada
Agreement. This arrangement, unique among the United States’ trade agreements, involves
binational panels that have authority to issue binding decisions. This system, which came about
due to concerns that domestic courts hearing chal enges to AD/CVD determinations might be
biased in favor of their own countries’ industries, has its critics.70 Congress could consider
whether a binational panel review system would be desirable in future trade agreements.
Fourth, Congress might review whether U.S. farm program spending fully complies with U.S.
spending commitments under the AoA. In this regard, one option for Congress could be to limit
the Administration’s use of its spending authority under the Commodity Credit Corporation
Charter Act,71 which was used to make large, ad hoc payments to the U.S. farm sector during
2018, 2019, and 2020, with minimal congressional input or oversight.72

Author Information

Anita Regmi
Randy Schnepf
Specialist in Agricultural Policy
Specialist in Agricultural Policy

Nina M. Hart

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
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copy or otherwise use copyrighted material.

70 See, for example, John S. Baker Jr. and Lindsey Keiser, “ NAFT A/USMCA Dispute Settlement Mechanisms and the
Constitution,” University of Miam i Inter-Am erican Law Review, vol. 50, no. 1 (2019).
71 For more on this issue, see CRS Report R44606, The Commodity Credit Corporation: In Brief, by Megan Stubbs.
72 T he 2018 and 2019 MFP programs were entirely at the discretion of USDA, while the CFAP -1, CFAP-2, and PPP
programs had broadly worded congressional authorization. See CRS Report R46347, COVID-19, U.S. Agriculture, and
USDA’s Coronavirus Food Assistance Program (CFAP).
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