01-25277. WTO Dispute Settlement Proceeding Brought by Brazil Pertaining to Certain Measures Regarding Antidumping Methodology

AGENCY:

Office of the United States Trade Representative.

ACTION:

Notice; request for comments.

SUMMARY:

The Office of the United States Trade Representative (USTR) is providing notice that on September 21, 2001, the United States received from Brazil a request for consultations under the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) pertaining to certain measures regarding antidumping methodology as applied by the U.S. Department of Commerce (DOC). Brazil alleges that:

• Current U.S. methodology pursuant to which the DOC applies a de minimis standard of 0.5 percent in “sunset” reviews is inconsistent with Articles 5, 11 and 18 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Antidumping Agreement, or ADA), insofar as these provisions allegedly require a 2 percent de minimis standard to be applied to both investigations and reviews; and
• The DOC's practice of “zeroing”, when calculating the dumping margin, is disallowed under Articles 2 and 9 of the ADA, as interpreted in a prior case by a panel and the Appellate Body, in reviews as well as in investigations.

USTR invites written comments from the public concerning the issues raised in this dispute.

DATES:

Although USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before October 20, 2001 to be assured of timely consideration by USTR.

ADDRESSES:

Submit comments to Sandy McKinzy, Monitoring and Enforcement Unit, Office of the General Counsel, Room 122, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, Attn: Brazil Antidumping Dispute. Telephone [phone].

FOR FURTHER INFORMATION CONTACT:

Katharine J. Mueller, Assistant General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC [phone].

SUPPLEMENTARY INFORMATION:

Section 127(b) of the Uruguay Round Agreements Act (URAA) (19 U.S.C. 3537(b)(1)) requires that notice and opportunity for comment be provided after the United States submits or receives a request for the establishment of a WTO dispute settlement panel. Consistent with this obligation, but in an effort to provide additional opportunity for comment, USTR is providing notice that consultations have been requested pursuant to the WTO Dispute Settlement Understanding (DSU). If such consultations should fail to resolve the matter and a dispute settlement panel is established pursuant to the DSU, such panel, which would hold its meetings in Geneva, Switzerland, would be expected to issue a report on its findings and recommendations within six to nine months after it is established.

Major Issues Raised by Brazil

Section 213 of the URAA (amending section 733(b)(3) of the Tariff Act of 1930) provides, in accordance with Article 5.8 of the ADA, that, for purposes of antidumping investigations, a dumping margin less than or equal to 2 percent is de minimis. However, § 351.106(c) of the DOC's regulation, 19 CFR 351.106(c), applies a 0.5 percent de minimis standard in the case of “sunset” reviews, which are conducted for purposes of determining whether an antidumping duty order should be revoked. Brazil claims that the DOC de minimis standard for reviews is inconsistent with the ADA because, according to Brazil, a 2 percent standard must be used in both investigations and reviews.

Brazil also argues that the United States practice of “zeroing,” according to which negative dumping margins are counted as “zero” in both investigations and reviews, is inconsistent with the principle of fair comparison set out in Article 2 of the ADA. Brazil points out that the panel in European Communities—Anti-Dumping on Imports of Cotton-Type Bed Linen from India, WT/DS141/R, concluded that “zeroing” is inconsistent with the ADA, and that this finding was affirmed by the Appellate Body, WT/DS141/AB/R.

Public Comment: Requirements for Submissions

Interested persons are invited to submit written comments concerning the issues raised in the dispute. Comments must be in English and provided in fifteen copies. A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the commenter. Confidential business information must be clearly marked, “BUSINESS CONFIDENTIAL” in a contrasting color ink at the top of each page of each copy.

Information or advice contained in a comment submitted, other than business confidential information, may be determined by USTR to be confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information or advice may qualify as such, the submitter—

(1) Must so designate the information or advice;

(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE”

in a contrasting color ink at the top of each page of each copy; and

(3) Is encouraged to provide a non-confidential summary of the information or advice.

Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR will maintain a file on this dispute settlement proceeding, accessible to the public, in the USTR Reading Room, which is located at 1724 F Street, NW., Washington, DC 20508. The public file will include non-confidential comments received by USTR from the public with respect to the dispute; if a dispute settlement panel is convened, the U.S. submissions to that panel, the submissions, or non-confidential summaries of submissions, to the panel received from other participants in the dispute, as well as the report of the pane; and, if applicable, the report of the Appellate Body. An appointment to review the public file (Docket WTO/DS-239, Brazil Antidumping Dispute) may be made by calling Brenda Webb, [phone]. The USTR Reading Room is open to the public from 9:30 a.m. to 12 noon and 1 p.m. to 4 p.m., Monday through Friday.

A. Jane Bradley,

Assistant United States Trade Representative for Monitoring and Enforcement.