WTO Consultations Regarding Section 337 of the Tariff Act of 1930

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 European Communities (“EC”) has requested consultations with the United States under the Marrakesh Agreement Establishing the World Trade Organization (WTO), regarding section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) and the related rules of practice and procedure of the International Trade Commission contained in chapter II of Title 19 of the U.S. Code of Federal Regulations. The EC alleges that section 337 is inconsistent with Article III of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”) and Articles 2 (in conjunction with Article 2 of the Paris Convention), 3, 9 (in conjunction with Article 5 of the Berne Convention), 27, 41, 42, 49, 50, and 51 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”). A first round of consultations with the EC was held on February 28, 2000, in Geneva, Switzerland. The Government of Canada and the Government of Japan participated as third parties. 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 30 to be assured of timely consideration by USTR.

ADDRESSES:

Comments may be submitted to the Monitoring and Enforcement Unit, Office of the General Counsel, Attn: Section 337 Dispute, Office of the United States Trade Representative, 600 17th Street, NW, Washington, DC 20508, (202) 395-3582.

FOR FURTHER INFORMATION CONTACT:

Rhonda K. Schnare, Associate General Counsel, Office of the General Counsel, Office of the United States Trade Representative, 600 17th Street, NW, Washington, DC, (202) 395-3150.

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 by the EC concerning whether section 337 of the Tariff Act of 1930 is inconsistent with the United States' obligations under GATT 1994 and the TRIPS Agreement. The EC has not requested the establishment of a dispute settlement panel. If the EC decides to proceed to a dispute settlement panel, under normal circumatances, the panel, which will hold its meetings in Geneva, Switzerland, would be expected to issue a report detailing its findings and recommendations within six to nine months after it is established.

Major Issues Raised by the European Communities

Section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) addresses unfair methods of competition and unfair acts in the importation and sale of products in the United States, the threat or effect of which is to destroy or substantially injure a domestic industry, prevent the establishment of such an industry, or restrain or monopolize trade and commerce in the United States. However, in cases of alleged infringement of a valid and enforcable U.S. patent, registered trademark, copyright, or mask work, there is no injury requirement.

In 1989, a GATT panel established at the request of the EC concluded that section 337 was inconsistent with GATT Article III. Subsequently, section 337 was amended by the URAA to bring it into conformity with the findings of the GATT panel report.

In January 2000, the EC requested consultations with the United States under certain WTO agreements regarding section 337. The EC's consultation request alleged that the amendments to section 337 failed to bring it into compliance with the GATT and that section 337 continues to provide less favorable treatment to imported goods than to domestic goods in violation of GATT Article III. The EC's consultation request also alleged that section 337 is inconsistent with Articles 2 (in conjunction with Article 2 of the Paris Convention), 3, 9 (in conjunction with Article 5 of the Berne Convention), 27, 41, 42, 49, 50, and 51 of the TRIPS Agreement. A first round of consultations with the EC was held in February 2000 in Geneva, Switzerland. The EC has not requested the establishment of a dispute settlement panel, but maintains the right to do so.

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, NW., Washington, DC 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-186, Section 337 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.