E9-28904. WTO Dispute Settlement Proceeding Regarding United States-Certain Country of Origin Labeling (COOL) Requirements

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 19, 2009, the World Trade Organization Dispute Settlement Body established a dispute settlement panel at the request of Canada and Mexico under the Marrakesh Agreement Establishing the World Trade Organization (“WTO Agreement”) concerning certain mandatory country of origin labeling (COOL) requirements. Those requests may be found at http://www.wto.org contained in documents designated as WT/DS384/8 for Canada and WT/DS386/7 for Mexico. USTR invites written comments from the public concerning the issues raised in these disputes.

DATES:

Although USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before January 8, 2010, to be assured of timely consideration by USTR.

ADDRESSES:

Comments should be submitted electronically to www.regulations.gov,, docket number USTR-2009-0004. 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:

Probir J. Mehta, Associate General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, (202) 395-3150.

SUPPLEMENTARY INFORMATION:

USTR is providing notice that a dispute settlement panel has been established pursuant to the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”). If a dispute settlement panel is established, the panel, which would hold its meetings in Geneva, Switzerland, would be expected to issue a report on its findings and recommendations within nine months after it is established.

Major Issues Raised by Canada

In its request for the establishment of a panel, Canada challenges provisions of the Agricultural Marketing Act of 1946, as amended by the Farm, Security and Rural Investment Act of 2002 (2002 Farm Bill), and Food, Conservation, and Energy Act, 2008 (2008 Farm Bill), the U.S. Department of Agriculture (“USDA”) Interim Final Rule on COOL published on August 1, 2008 and on August 28, 2008, respectively, the USDA Final Rule on COOL published on January 15, 2009, and a February 20, 2009 letter issued by the Secretary of Agriculture.

Canada alleges that the COOL requirements are inconsistent with the General Agreement on Tariffs and Trade 1994 (“GATT 1994”), Articles III:4, IX:2, IX:4, and X:3(a), the Agreement on Technical Barriers to Trade (“TBT Agreement”), Articles 2.1, 2.2, and 2.4, or in the alternative, the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”), Articles 2, 5, and 7, and the Agreement on Rules of Origin, Articles 2(b), 2(c), 2(e), and 2(j). Additionally, Canada alleges these violations nullify or impair the benefits accruing to Canada under those Agreements and further appear to nullify or impair the benefits accruing to Canada in the sense of GATT 1994, Article XXIII:1(b).

Major Issues Raised by Mexico

In its request for establishment of a panel, Mexico challenges the Agricultural Marketing Act of 1946, as amended by the 2002 and 2008 Farm Bills, the U.S. Department of Agriculture (“USDA”) Interim Final Rule on COOL published on August 1, 2008 and August 28, 2009, respectively, the USDA Final Rule on COOL published on January 15, 2009, and a February 20, 2009 letter issued by the Secretary of Agriculture.

Mexico alleges that the U.S. measures are inconsistent with the GATT 1994, Articles III:4, IX:2, IX:4, and X:3(a), the TBT Agreement, Articles 2.1, 2.2, 2.4, 12.1, and 12.3, or, in the alternative, the SPS Agreement, Articles 2, 5, and 7, and the Agreement on Rules of Origin, Articles 2(b), 2(c), 2(d), and 2(e). Additionally, Mexico alleges these violations nullify or impair the benefits accruing to Mexico under those Agreements and further appear to nullify or impair the benefits accruing to Mexico within the meaning of the GATT 1994, Article XXIII:1(b).

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-2009-0004. 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-2009-0004 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 Web site 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.