03-18464. WTO Dispute Settlement Proceeding Regarding Offsets to Calculated Dumping Margins for Instances of Non-Dumping

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 June 12, 2003, the United States received from the European Communities (“EC”) a request for consultations under the Marrakesh Agreement Establishing the World Trade Organization (“WTO Agreement”) regarding offsets to calculated dumping margins for instances of non-dumping. The EC asserts that various U.S. statutes, regulations, methodologies and determinations are inconsistent with Articles 1, 2.4, 5.8, 9.3, 9.5, 11, 18.3 and 18.4 of the Agreement on Implementation of Article VI of the General Agreements on Tariffs and Trade 1994 (“AD Agreement”), Articles VI:1 and VI:2 of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”), and Article XVI:4 of the WTO Agreement. 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 August 28, 2003, to be assured of timely consideration by USTR.

ADDRESSES:

Comments should be submitted (i) electronically, to [e-mail], with “Dumping Margin Offset” in the subject line, or (ii) by fax to Sandy McKinzy at [phone], with a confirmation copy sent electronically to the address above, in accordance with the requirements for submission set out below.

FOR FURTHER INFORMATION CONTACT:

William D. Hunter, Associate General Counsel, Office of the United States Trade Representative, [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 the EC

With respect to the measures at issue, the EC's request for consultations refers to the following:

• The Tariff Act of 1930, in particular sections 751, 771(35)(A) and 771(35)(B);
• The implementing regulations of the U.S. Department of Commerce (“DOC”), 19 CFR Part 351, in particular section 351.414(c)(2);
• The methodology of the DOC for determining the dumping margin in investigations on the basis of the comparison of a weighted average normal value with a weighted average export price;
• The methodology of the DOC for determining the dumping margin in reviews;
• The determinations of dumping by the DOC, the determinations of injury by the U.S. International Trade Commission (“ITC”), and the DOC notices for the imposition of the antidumping duty in the following investigations: ^[1]

• Certain hot-rolled carbon steel from the Netherlands, DOC Case No. A-421-807, ITC Case No. A-903;
• Stainless steel bar from France, DOC Case No. A-427-820, ITC Case No. A-913;
• Stainless steel bar from Germany, DOC Case No. A-428-830, ITC Case No. A-914;
• Stainless steel bar from Italy, DOC Case No. A-475-829, ITC Case No. A-915;
• Stainless steel bar from the United Kingdom, DOC Case No. A-412-822, ITC Case No. A-918; and
• The final results of the administrative reviews by the DOC in the following proceedings: ^[2]

• Industrial nitrocellulose from France, DOC Case No. A-427-009, 66 FR 54213 (Oct. 26, 2001);
• Industrial nitrocellulose from the United Kingdom, DOC Case No. A-412-803, 67 FR 77747 (Dec. 19, 2002);
• Stainless steel plate in coils from Belgium, DOC Case No. A-423-808, 67 FR 64352 (Oct. 18, 2002);
• Certain pasta from Italy, DOC Case No. A-475-818, 66 FR 300 (Jan. 3, 2002), amended 67 FR 5088 (Feb. 4, 2002);
• Certain pasta from Italy, DOC Case No. A-475-818, 68 FR 6882 (Feb. 11, 2003);
• Stainless steel sheet and strip in coils from Italy, DOC Case No. A-475-824, 67 FR 1715 (Jan. 14, 2002);
• Stainless steel sheet and strip in coils from Italy, DOC Case No. A-475-824, 68 FR 6719 (Feb. 10, 2003);
• Granular polytetrafluoenthylene [sic] from Italy, DOC Case No. A-475-703, 67 FR 1960 (Jan. 15, 2002);
• Granular polytetrafluoenthylene [sic] from Italy, DOC Case No. A-475-703, 68 FR 2007 (Jan. 15, 2003);
• Stainless steel sheet and strip in coils from France, DOC Case No. A-427-814, 67 FR 6493 (Feb. 12, 2002), amended 67 FR 12522 (March 19, 2002);
• Stainless steel sheet and strip in coils from France, DOC Case No. A-427-814, 67 FR 78773 (Dec. 26, 2002), amended 68 FR 4171 (Jan. 28, 2003);
• Stainless steel sheet and strip in coils from Germany, DOC Case No. A-428-825, 67 FR 7668 (Feb. 20, 2002), amended 67 FR 15178 (March 29, 2002);
• Stainless steel sheet and strip in coils from Germany, DOC Case No. A-428-825, 68 FR 6716 (Feb. 10, 2003);
• Ball bearings from France, DOC Case No. A-427-801, 67 FR 55780 (Aug. 30, 2002);
• Ball bearings from Italy, DOC Case No. A-475-801, 67 FR 55780 (Aug. 30, 2002);
• Ball bearings from the United Kingdom, DOC Case No. A-412-801 (Aug. 30, 2002).

With respect to the claims of WTO-inconsistency, the EC request for consultations refers to the following:

• In new investigations, the comparison of export prices and normal values on a weighted average to weighted average basis without any offset for instances of non-dumping;
• In reviews, the comparison of export prices and normal values on a weighted average to transaction basis and without any offset for instances of non-dumping in circumstances other than those specified in Article 2.4.2. of the AD Agreement;
• The impact of not offsetting calculated dumping margins with instances of non-dumping in the determination of “dumped imports” in the injury investigation;
• The determination of dumping margins above the de minimis level as a result of the absence of an offset to calculated dumping margins for instances of nondumping, and the consequent imposition, continuation or collection of an antidumping duty; and
• With respect to the investigations and administrative reviews identified above, the level of the dumping margins determined in the absence of an offset to calculated dumping margins for instances of non-dumping.

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], with “Dumping Margin Offset (DS294)” in the subject line. For documents sent by fax, USTR requests that the submitter provide a confirmation copy electronically. 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 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 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 of the submission; 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-294, Dumping Margin Offset (DS294)) 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 12 noon and 1 p.m. to 4 p.m., Monday through Friday.

Daniel E. Brinza,

Assistant United States Trade Representative for Monitoring and Enforcement.

Footnotes

1.  For the precise EC description of these determinations and notices, including the dates of publication in the Federal Register, see Annex I of the EC's consultation request, which is available on the WTO Web site's document distribution facility as document “WT/DS294/1”.

2.  For the precise EC description of these final results, see Annex II of the EC's consultation request, which is available on the WTO Web site's document distribution facility as document “WT/DS294/1”.