2013-06187. WTO Dispute Settlement Proceeding Regarding United States-Anti-Dumping Measures on Certain Shrimp From Vietnam

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 the Socialist Republic of Vietnam (“Vietnam”) has requested the establishment of a dispute settlement panel under the Marrakesh Agreement Establishing the World Trade Organization (“WTO Agreement”). That request may be found at www.wto.org contained in a document designated as WT/DS429/3. 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 April 16, 2013 to be assured of timely consideration by USTR.

ADDRESSES:

Public comments should be submitted electronically to www.regulations.gov,, docket number USTR-2012-0003. If you are unable to provide submissions at 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:

Matthew P. Jaffe, Assistant General Counsel, Office of the United States Trade Representative, 600 17th Street NW., Washington, DC 20508, [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, USTR is providing notice that a dispute settlement panel has been established pursuant to the WTO Dispute Settlement Understanding (“DSU”). The panel will hold its meetings in Geneva, Switzerland.

Major Issues Raised by Vietnam

In its January 17, 2013 panel request, Vietnam makes a number of allegations relating to certain antidumping administrative reviews and a sunset review conducted by the Department of Commerce on certain frozen warmwater shrimp from Vietnam. Specifically, Vietnam challenges: the imposition of antidumping duties and cash deposit requirements pursuant to the final results of the fourth administrative review for the period from February 1, 2008, to January 31, 2009, in Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 75 FR 4771 (August 9, 2010); the fourth administrative review of Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam insofar as it did not revoke the antidumping duty order with respect to certain respondents requesting such revocation; the imposition of antidumping duties and cash deposit requirements pursuant to the final results of the fifth administrative review for the period from February 1, 2009, through January 31, 2010, in Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 76 FR 56158 (September 12, 2011); the fifth administrative review of Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam insofar as it did not revoke the antidumping duty order with respect to certain respondents requesting such revocation; the imposition of anti-dumping duties and cash deposit requirements pursuant to the final results of the USDOC's sixth administrative review for the period from February 1, 2010 through January 31, 2011, in Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 77 FR 55800 (September 11, 2012); the sixth administrative review of Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam insofar as it did not revoke the anti-dumping duty order with respect to certain respondents eligible for such revocation; the final results of the sunset review in which the Department of Commerce determined that revocation of the antidumping duty order would be likely to lead to the continuation or recurrence of dumping, Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Final Results of the First Five-year “Sunset” Review of the Antidumping Duty Order, 75 FR. 75965 (December 7, 2010); and any other ongoing or future antidumping administrative reviews, and the preliminary and final results thereof, related to the imports of certain frozen warmwater shrimp from Vietnam (DOC case A-552-802), as well as any assessment instructions, cash deposit requirements, and revocation determinations issued pursuant to such reviews. Vietnam also challenges certain laws, regulations, and written statements, including: Section 129 of the URAA, codified as 19 U.S.C. 3538, and the Statement of Administrative Action accompanying the URAA, H.R. Doc. No. 103-316 (1994), vol 1, reprinted in 1994 U.S.C.C.A.N. 4040; the Tariff Act of 1930, as amended, sections 751, 752, 771(18)(C)(i), 771(35)(A), 776(a)(2), 776(b), and 777A(c)(2)(B); implementing regulations of the Department of Commerce, 19 CFR 351.204, 351.408, and 351.414; the Import Administration Antidumping Manual, Chapter 10, “Non-Market Economies”; and Import Administration Policy Bulletin 98.3, “Policies Governing the Conduct of Five-Year (“Sunset”) Reviews of Antidumping and Countervailing Duty Orders,” 63 FR 18871 (April 16, 1998).

Vietnam alleges that the United States has acted inconsistently with Articles VI:1, and VI:2 of the General Agreement on Tariffs and Trade 1994; Articles 1, 2, 2.1, 2.4, 2.4.2, 6.8, 6.10, 6.10.2, 9, 9.1, 9.2, 9.3, 9.4, 11, 11.1, 11.2, 11.3, 11.4, 18.1, 18.3, 18.4, and Annex II of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement); Article XVI:4 of the WTO Agreement; and Part I.2 of the Protocol of Accession of the Socialist Republic of Vietnam, WT/L/662, 15 November 2006 and Paragraphs 254, 255, and 527 of the Report of the Working Party on Accession of Vietnam, WT/ACC/VNM/48, 27 October 2006.

Vietnam appears to allege that the United States acted inconsistently with the provisions identified above by not allowing non-dumped sales to offset the amount of dumping with respect to other sales; by applying a Vietnam-wide entity rate based on adverse facts available throughout the antidumping proceedings identified above; by individually investigating or reviewing a limited number of the largest exporters throughout the antidumping proceedings at issue; by applying certain methodologies in the sunset review; by not revoking the applicable antidumping duty order with respect to certain individual respondents having zero or de minimis margins of dumping; and through the application of section 129 of the URAA.

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 www.regulations.gov docket number USTR-2012-0003. If you are unable to provide submissions by www.regulations.gov,, please contact Sandy McKinzy at [phone] to arrange for an alternative method of transmission.

To submit comments via www.regulations.gov,, enter docket number USTR-2012-0003 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 and click on the link entitled “Comment Now!” (For further information on using the 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 www.regulations.gov Web site allows users to provide comments by filling in a “Type Comments” field, or by attaching a document using an “Upload File” field. 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 “Type Comments”field.

A person requesting that information contained in a comment that he/she submitted, 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 www.regulations.gov. The non-confidential summary will be placed in the docket and will be open to public inspection.

USTR may determine that information or advice contained in a comment submitted, other than business confidential information, is 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. A non-confidential summary of the confidential information must be submitted to www.regulations.gov. The non-confidential summary will be placed in the docket and will be open to public inspection.

Pursuant to section 127(e) of the Uruguay Round Agreements Act (19 U.S.C. 3537(e)), USTR will maintain a docket on this dispute settlement proceeding, docket number USTR-2012-0003, accessible to the public at www.regulations.gov.

The public file will include non-confidential comments received by USTR from the public regarding the dispute. If a dispute settlement panel is convened, or in the event of an appeal from such a panel, the following documents will be made available to the public at www.ustr.gov the United States' submissions, any non-confidential submissions received from other participants in the dispute, and any non-confidential summaries of submissions received from other participants in the dispute. In the event that a dispute settlement panel is convened, or in the event of an appeal from such a panel, and, if applicable, the report of the Appellate Body, will also be available on the Web site of the World Trade Organization, at www.wto.org. Comments open to public inspection may be viewed at www.regulations.gov.

Juan Millan,

Assistant United States Trade Representative for Monitoring and Enforcement.