WTO Dispute Settlement Proceeding Regarding the United States International Trade Commission Final Determination of Material Injury in the Investigation Concerning Hard Red Spring Wheat 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 the Government of Canada has requested establishment of a dispute settlement panel to examine the United States International Trade Commission (“ITC”) final determination of material injury with respect to red hard spring wheat from Canada. The panel request alleges that the ITC's determination is inconsistent with Article VI of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”) and various provisions of the Agreement on Implementation of Article VI of GATT 1994 (“Anti-Dumping Agreement”) and the Agreement on Subsidies and Countervailing Measures (“SCM 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 September 15, 2004 to be assured of timely consideration by USTR.

ADDRESSES:

Comments should be submitted (i) electronically, to FR0434@ustr.gov, Attn: “Canada Wheat Injury (DS310)” 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:

Mikhail S. Zeldovich, Assistant General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, (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 submits or receives a request for the establishment of a WTO dispute settlement panel. If a dispute settlement panel is established pursuant to the WTO Dispute Settlement Understanding (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 and Legal Basis of the Complaint

In its determination of October 3, 2003, published in the Federal Register on October 23, 2002, the ITC found that imports of red hard spring wheat from Canada, which the U.S. Department of Commerce found to be subsidized and sold at less than fair value, caused material injury to an industry in the United States. The reasons for the ITC's determination are set forth in USITC Publication No. 3639 (October 2003).

On June 11, 2004, Canada submitted a request that a dispute settlement panel be established regarding the ITC's determination. That request may found at www.wto.org contained in a document designated as WT/DS310/2.

In its request, Canada alleges that the United States has violated Article VI:6(a) of the GATT 1994, Articles 1, 3, and 18.1 of the Anti-Dumping Agreement, and Articles 10, 15, 19.1, and 32.1 of the SCM Agreement. Canada alleges that these violations stem from certain errors in the ITC's determination. In particular, Canada claims that the United States:

(i) “Violated Article 3.1 of the Anti-Dumping Agreement and Article 15.1 of the SCM Agreement by * * * failing to conduct an objective examination of both (a) the volume of the dumped and subsidized imports and the effect of those imports on prices in the domestic market for like products, and (b) the consequent impact of those imports on domestic producers of such products;”

(ii) “violated Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement by failing to properly consider the effect of the dumped and subsidized imports on prices, including whether there had been a significant price undercutting by the dumped and subsidized imports and whether the effect of those imports was otherwise to depress prices to a significant degree;”

(iii) “violated Article 3.4 of the Anti-Dumping Agreement and Article 15.4 of the SCM Agreement by failing to properly examine the impact of the dumped and subsidized imports on the domestic industry concerned;”

(iv) “violated Article 3.5 of the Anti-Dumping Agreement and Article 15.5 of the SCM Agreement” by “failing to demonstrate a causal relationship between the dumped and subsidized imports and the injury to the domestic industry” and “failing to examine known factors other than the dumped and subsidized imports which were injuring the domestic industry and further failing to ensure that the injuries caused by these other factors were not attributed to the dumped and subsidized imports;”

(v) “{i}n making a final determination of injury * * * violated Articles 1 and 18.1 of the Anti-Dumping Agreement, Articles 10, 19.1, and 32.1 of the SCM Agreement and Article VI:6(a) of the GATT 1994.”

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 (202) 395-3640, or transmit a copy electronically to FR0434@ustr.gov, with “Canada Wheat Injury (DS310)” 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.

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 “Submited 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-310, Canada Wheat Injury Dispute may be made by calling the USTR Reading Room at (202) 395-6186. 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.