E9-28903. WTO Dispute Settlement Proceeding Regarding China-Measures Related to the Exportation of Various Raw Materials

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 November 4, 2009, in accordance with the Marrakesh Agreement Establishing the World Trade Organization (“WTO Agreement”), the United States requested that the WTO Dispute Settlement Body establish a dispute settlement panel to review the U.S. claims concerning restraints on the export from China of various forms of bauxite, coke, fluorspar, magnesium, manganese, silicon carbide, silicon metal, yellow phosphorus, and zinc (the “materials”). That request may be found at http://www.wto.org contained in a document designated as WT/DS394/7. 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 January 19, 2010 to be assured of timely consideration by USTR.

ADDRESSES:

Public comments should be submitted electronically to http://www.regulations.gov,, docket number USTR-2009-0016. If you are unable to provide submissions by http://www.regulations.gov,, please contact Sandy McKinzy at [phone] to arrange for an alternative method of transmission. If (as explained below), the comment contains confidential information, then the comment should be submitted by fax only to Sandy McKinzy at [phone].

FOR FURTHER INFORMATION CONTACT:

Shubha Sastry, Assistant General Counsel, or Katherine Tai, Associate General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, [phone] or [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to Section 127(b) of the Uruguay Round Agreements Act (“URAA”) (19 U.S.C. 3537(b)(1)), USTR is providing notice that the United States has requested the WTO Dispute Settlement Body to establish a dispute settlement panel pursuant to the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”). Such panel, which would hold its meetings in Geneva, Switzerland, would be expected to issue a report on its findings and recommendations within approximately nine months after it is established.

Major Issues Raised by the United States

China imposes restraints on the export from China of various forms of bauxite (“bauxite” includes but is not limited to items falling under the following ten-digit Chinese Commodity Codes, as listed in Attachment 1 of Notice “2009 Export Licensing Management Commodities List” (Ministry of Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) (“2009 Export Licensing List”) and/or the following eight-digit HS numbers as listed in Table 7 of Notice Regarding the 2009 Tariff Implementation Program (State Council Tariff Policy Commission, shuiweihui (2008) No. 40, January 1, 2009) (“2009 Export Duty List”): 2508300000/25083000, 2606000000/26060000, 26204000), coke (“coke” includes but is not limited to items falling under the following ten-digit Chinese Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List: 2704001000/27040010), fluorspar (“fluorspar” includes but is not limited to items falling under the following ten-digit Chinese Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List: 2529210000/25292100, 2529220000/25292200), magnesium (“magnesium” includes but is not limited to items falling under the following ten-digit Chinese Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List: 81041100, 81041900, 81042000), manganese (“manganese” includes but is not limited to items falling under the following ten-digit Chinese Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List: 26020000, 8111001010/81110010, 8111001090/81110010), silicon carbide (“silicon carbide” includes but is not limited to items falling under the following ten-digit Chinese Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List: 2849200000, 3824909910), silicon metal (“silicon metal” includes but is not limited to items falling under the following ten-digit Chinese Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List: 28046900), yellow phosphorus (“yellow phosphorus” includes but is not limited to items falling under the following ten-digit Chinese Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List: 28047010), and zinc (“zinc” includes but is not limited to items falling under the following ten-digit Chinese Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List: 2608000001/26080000, 2608000090/26080000, 790111111000/790111100, 7901119000/79011190, 7901120000/79011200, 7901200000/79012000, 79020000, 26201100, 26201900).

These restraints include: quantitative restrictions in the form of quotas on the export of bauxite, coke, fluorspar, silicon carbide, and zinc; and export duties on bauxite, coke, fluorspar, magnesium, manganese, silicon carbide, silicon metal, yellow phosphorus, and zinc. Additional restraints in connection with the export of the materials include, but are not limited to: restrictions on the right of Chinese enterprises as well as foreign enterprises and individuals to export; requirements that foreign-invested enterprises must satisfy in order to export; non-automatic export licensing; excessive fees and formalities in connection with exportation; requiring that prices for the materials meet or exceed a minimum price before they may be exported. China administers certain of these export restraints through its ministries and other organizations under the State Council, as well as chambers of commerce and industry associations, in a manner that is not uniform, impartial, and reasonable. China also does not publish certain measures pertaining to requirements, restrictions, or prohibitions on exports.

USTR believes that these export restraints are inconsistent with China's obligations under Article VIII:1(a) and VIII:4, Article X:1 and X:3(a), and Article XI of the General Agreement on Tariffs and Trade 1994; paragraphs 2(A)2, 5.1, 5.2, 8.2, and 11.3 of Part I of the Protocol on the Accession of the People's Republic of China (“Accession Protocol”); and the provisions of paragraph 1.2 of Part I of the Accession Protocol (which incorporates commitments in paragraphs 83, 84, 162, and 165 of the Report of the Working Party on the Accession of China).

Public Comment: Requirements for Submissions

Interested persons are invited to submit written comments concerning the issues raised in this dispute. Persons may submit public comments electronically to http://www.regulations.gov docket number USTR-2009-0016. If you are unable to provide submissions by http://www.regulations.gov,, please contact Sandy McKinzy at [phone] to arrange for an alternative method of transmission.

To submit comments via http://www.regulations.gov,, enter docket number USTR-2009-0016 on the home page and click “search”. The site will provide a search-results page listing all documents associated with this docket. Find a reference to this notice by selecting “Notice” under “Document Type” on the left side of the search-results page, and click on the link entitled “Submit a Comment.” (For further information on using the http://www.regulations.gov Web site, please consult the resources provided on the website by clicking on “How to Use This Site” on the left side of the home page.)

The http://www.regulations.gov site provides the option of providing comments by filling in a “General Comments” field, or by attaching a document. It is expected that most comments will be provided in an attached document. If a document is attached, it is sufficient to type “See attached” in the “General Comments” field.

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 submitter. Confidential business information must be clearly designated as such and the submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page. Any comment containing business confidential information must be submitted by fax to Sandy McKinzy at [phone]. A non-confidential summary of the confidential information must be submitted to http://www.regulations.gov. The non-confidential summary will be placed in the docket and open to public inspection.

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 clearly so designate the information or advice;

2. Must clearly mark the material as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page; and

3. Must provide a non-confidential summary of the information or advice.

Any comment containing confidential information must be submitted by fax to Sandy McKinzy at [phone]. A non-confidential summary of the confidential information must be submitted to http://www.regulations.gov or by fax. The non-confidential summary will be placed in the docket and open to public inspection.

USTR will maintain a docket on this dispute settlement proceeding, accessible to the public. 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 or in the event of an appeal from such a panel, the U.S. submissions, any non-confidential submissions, or non-confidential summaries of submissions, received from other participants in the dispute; the report of the panel; and, if applicable, the report of the Appellate Body.

Comments will be placed in the docket and open to public inspection pursuant to 15 CFR 2006.13, except confidential business information exempt from public inspection in accordance with 15 CFR 2006.15 or information determined by USTR to be confidential in accordance with 19 U.S.C. 2155(g)(2). Comments open to public inspection may be viewed on the http://www.regulations.gov Web site.

Daniel Brinza,

Assistant United States Trade Representative for Monitoring and Enforcement.