05-12484. WTO Dispute Settlement Proceeding Regarding Investigation of the International Trade Commission in Softwood Lumber From Canada

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, at the request of Canada, the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) has established a dispute settlement panel under the Marrakesh Agreement Establishing the WTO. The panel is to examine whether the United States has implemented the recommendations and rulings of the DSB in a dispute involving a U.S. International Trade Commission (ITC) injury investigation of certain softwood lumber products from Canada. On April 26, 2004, the DSB adopted the findings of the panel in that dispute, which found that “in light of the totality of the factors considered and the reasoning in the USITC's determination, [it could not] conclude that the finding of a likely imminent substantial increase in imports is one which could have been reached by an objective and unbiased investigating authority.” In response to the DSB's recommendations and rulings, the ITC issued a new determination in November 2004, which found that “an industry in the United States is threatened with material injury by reason of imports of softwood lumber from Canada found to be subsidized and sold in the United States at less than fair value (‘LTFV’).” In December 2004, the U.S. antidumping and countervailing duty orders on softwood lumber from Canada were amended to reflect the new determination. Canada subsequently requested the establishment of a dispute settlement panel, alleging that the United States had failed to implement the DSB's recommendations and rulings. 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 June 27, 2005, to be assured of timely consideration by USTR.

ADDRESSES:

Comments should be submitted (i) electronically, to [e-mail], Attn: “Lumber Injury Dispute (DS277)” in the subject line, or (ii) by fax, to Sandy McKinzy at 202-395-3640, with a confirmation copy sent electronically to the e-mail address above.

FOR FURTHER INFORMATION CONTACT:

Theodore R. Posner, Associate General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), the panel, which will hold its meetings in Geneva, Switzerland, is expected to issue a report on its findings and recommendations in September 2005.

Prior WTO Proceedings

On April 26, 2004, the WTO DSB adopted the report of a dispute settlement panel in a dispute brought by Canada challenging the ITC's final threat of material injury determination in its investigation of softwood lumber imports from Canada. The panel rejected certain of Canada's claims but ultimately found that “in light of the totality of the factors considered and the reasoning in the USITC's determination, [it could not] conclude that the finding of a likely imminent substantial increase in imports is one which could have been reached by an objective and unbiased investigating authority.” The dispute settlement panel report is publicly available in the USTR reading room and on the WTO Web site http://www.wto.org.

Article 21.5 Proceeding

Pursuant to the rules of the DSU, the United States and Canada agreed that the United States would have until January 26, 2005, to implement the recommendations and rulings of the DSB. To implement these recommendations and rulings, the ITC undertook a four-month process that involved reopening its administrative record in the Softwood Lumber from Canada investigation to gather additional information, holding a public hearing, providing interested parties three opportunities to submit written comments, and engaging in additional analysis. That process concluded with a new determination in November 2004, which found that “an industry in the United States is threatened with material injury by reason of imports of softwood lumber from Canada found to be subsidized and sold in the United States at less than fair value (‘LTFV’).” In December 2004, the U.S. antidumping and countervailing duty orders on softwood lumber from Canada were amended to reflect the new determination. On February 14, 2005, Canada alleged that the United States had not properly implemented the recommendations and rulings and requested the establishment of a dispute settlement panel under Article 21.5 of the DSU to review this implementation. The panel was established on February 25, 2005.

In its request under Article 21.5, Canada alleges that the ITC failed to implement the recommendations and rulings of the DSB by (1) failing to make a determination of threat of material injury based on facts; (2) failing to demonstrate a causal relationship between allegedly dumped and subsidized imports of softwood lumber from Canada and threatened injury to the domestic industry; and (3) failing to examine in an unbiased and objective manner any and all known factors other than the allegedly dumped and subsidized imports that were injuring or threatening to injure the domestic industry.

The specific measures identified by Canada as inconsistent with U.S. WTO obligations under the AD Agreement and SCM Agreement are: (1) Section 129 Consistency Determination, Softwood Lumber from Canada, (24 Nov. 2004), Inv. Nos. 701-TA-414 and 731-TA-928; and (2) Notice of Amendment to Antidumping and Countervailing Duty Orders on Certain Softwood Lumber Products From Canada (20 Dec. 2004), 69 FR 75917 (Dep't. Commerce, December 20, 2004).

The European Communities and the People's Republic of China have indicated their interest to participate in the dispute as third parties.

Public Comment: Requirements for Submissions

Interested persons are invited to submit written comments concerning the issues raised in this dispute. Persons submitting comments may either send one copy by fax to Sandy McKinzy at [phone], or transmit a copy electronically to [e-mail], Attn: “Lumber Injury Dispute (DS277)” in the subject line. For documents sent by fax, USTR requests that the submitter provide a confirmation copy to the electronic mail address listed above.

Comments must be in English. USTR encourages the submission of documents in Adobe PDF format, as attachments to an electronic mail. Interested persons who make submissions by electronic mail should not provide separate cover letters; information that might appear in a cover letter should be included in the submission itself. Similarly, to the extent possible, any attachments to the submission should be included in the same file as the submission itself, and not as separate files.

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 of the submission.

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 submitting person believes that information or advice may qualify as such, the submitting person—

(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 each page of the cover page and each succeeding page; 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 panel; and, if applicable, the report of the Appellate Body. An appointment to review the public file (Docket No. WT/DS-277, Lumber Injury Dispute) may be made by calling the USTR Reading Room at [phone]. The USTR Reading Room is open to the public from 9:30 a.m. to noon and 1 p.m. to 4 p.m., Monday through Friday.

Daniel E. Brinza,

Assistant United States Trade Representative for Monitoring and Enforcement.