WTO Consultations Regarding Measures Treating Export Restraints as Subsidies

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 May 19, 2000, Canada requested consultations with the United States under the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement), regarding U.S. measures that treat a restraint on exports of a product as a subsidy to other products made using or incorporating the restricted product if the domestic price of the restricted product is affected by the restraint. The measures identified by Canada in its consultation request are those provisions of the Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act (URAA) (H.R. 5110, H.R. Doc. 316, Vol. I, 103d Cong., 2d Sess., 656, in particular at 925-926 (1994)) and the Explanation of the Final Rules (the Explanation), U.S. Department of Commerce, Countervailing Duties, Final Rule (63 Federal Register 65,348, 65,349-51 (November 25, 1998)) interpreting section 771(5) of the Tariff Act of 1930 (19 U.S.C. 1677(5)), as amended by the URAA. Canada alleges that the SAA and the Explanation are inconsistent with Article 1.1, 10 (as well as Articles 11, 17 and 19, as they relate to the requirements of Article 10), and 32.1 of the WTO Agreement on Subsidies and Countervailing Measures (SCM Agreement). Canada also alleges that by maintaining these measures, the United States violates Article 32.5 of the SCM Agreement and Article XVI:4 of the WTO Agreement. Pursuant to Article 4.3 of the WTO Dispute Settlement Understanding (“DSU”), consultations are to take place within a period of 30 days from the date of receipt of the request, or within a period otherwise mutually agreed between the United States and Canada. USTR invites written comments from the public concerning the issues raised in this dispute.

DATES:

Although the USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before June 12 to be assured of timely consideration by USTR.

ADDRESSES:

Comments may be submitted to Sandy McKinzy, Litigation Assistant, the Monitoring and Enforcement Unit, Office of the General Counsel, Room 122, Attn: Export Restraint Dispute, Office of the United States Trade Representative, 600 17th Street, N.W., Washington, D.C. 20508, (202) 395-3582.

FOR FURTHER INFORMATION CONTACT:

William D. Hunter, Associate General Counsel, Office of the United States Trade Representative, 600 17th Street, N.W., Washington, D.C., (202) 395-3582.

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 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 . 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 Canada

In its consultation request, Canada alleges that the SAA and the Explanation are measures that treat an export restraint as a subsidy. Because Canada appears to allege that an export restraint cannot be considered to be a subsidy within the meaning of Article 1.1 of the SCM Agreement, Canada claims that the SAA and the Explanation are inconsistent with Articles 1.1, 10, 11, 17, 19 and 32.1 of the SCM Agreement. Canada also appears to allege that due to the existence of the SAA and the Explanation, the United States has failed to ensure that its laws, regulations and administrative procedures are in conformity with its WTO obligations as required by Article 32.5 of the SCM Agreement and Article XVI:4 of the WTO Agreement.

Public Comment: Requirements for Submissions

Interested persons are invited to submit written comments concerning the issues raised in the dispute. Comments must be in English and provided in fifteen copies. 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 commenter. Confidential business information must be clearly marked “BUSINESS CONFIDENTIAL” in a contrasting color ink at the top of each page of each copy.

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 so designate the information or advice;

(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” in a contrasting color ink at the top of each page of each copy; 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: Room 101, Office of the United States Trade Representative, 600 17th Street, N.W., Washington, D.C. 20508. The public file will include a listing of any comments received by USTR from the public with respect to the proceeding; the U.S. submissions to the panel in the proceeding, 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 dispute settlement panel, and, if applicable, the report of the Appellate Body. An appointment to review the public file (Docket WTO/D-194, Export Restraint Dispute) may be made by calling Brenda Webb, (202) 395-6186. 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.