[Federal Register Volume 68, Number 44 (Thursday, March 6, 2003)]
[Notices]
[Pages 10768-10770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5331]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

[Docket No. WTO/DS-281]


WTO Dispute Settlement Proceeding Regarding Antidumping Measures 
on Cement From Mexico

AGENCY: Office of the United States Trade Representative.

ACTION: Notice; request for comments.

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SUMMARY: The Office of the United States Trade Representative 
(``USTR'') is providing notice that on January 31, 2003, the United 
States received from Mexico a request for consultations under the 
Marrakesh Agreement Establishing the World Trade Organization (``WTO 
Agreement'') regarding various measures relating to the antidumping 
duty order on gray portland cement and cement clinker (``cement'') from 
Mexico. Mexico alleges that determinations made by U.S. authorities 
concerning this product, and certain related matters, are inconsistent 
with Articles 1, 2, 3, 4, 6, 8, 9, 10, 11, 12 and 18 of the Agreement 
on Implementation of Article VI of the General Agreements on Tariffs 
and Trade 1994 (``AD Agreement''), Articles III, VI and X 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 March 28, 2003, to be assured of timely 
consideration by USTR.

ADDRESSES: Comments should be submitted (i) electronically, to 
[email protected], or (ii) by mail, to Sandy McKinzy, Office of the 
United States Trade Representative, 600 17th Street, NW., Washington, 
DC 20508, Attn: Mexico Cement Dispute, with a confirmation copy sent 
electronically to the address above, or by fax to (202) 395-3640, 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, 600 17th 
Street, NW., Washington, DC (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 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 meeting 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 Mexico

    With respect to the measures at issue, Mexico's request for 
consultations refers to the following:
    [sbull] The final results of the fifth through eleventh 
administrative reviews of the antidumping duty order on cement from 
Mexico, such reviews collectively covering the time period from August 
1, 1994 to July 31, 2001. These final results, which were made by the 
U.S. Department of Commerce (``Commerce'') are published at 62 FR 17148 
(April 9, 1997); 63 FR 12764 (March 16, 1998); 64 FR 13148 (March 17, 
1999); 65 FR 13943 (March 15, 2000); 66 FR 14889 (March 14, 2001; 67 FR 
12518 (March 19, 2002); and 67 FR 12518 (January 14, 2003);
    [sbull] The final sunset review determinations on cement from 
Mexico by Commerce (65 FR 41049 (July 3, 2000)), and the U.S. 
International Trade Commission (``ITC'') (USITC Publication No. 3361 
(October 2000) and 65 FR 65327 (November 1, 2000)), as well as the 
resulting continuation by Commerce of the antidumping duty order on 
cement from Mexico (65 FR 68979 (November 15, 2000));
    [sbull] The dismissal by the ITC of a request for the institution 
of a changed circumstances review of the antidumping duty order on 
cement from Mexico (66 FR 65740 (December 20, 2001));
    [sbull] Sections 736, 737, 751, 752 and 778 of the Tariff Act of 
1930;

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    [sbull] The URAA Statement of Administrative Action, H.R. Doc. No. 
103-316, vol. 1 (1994);
    [sbull] Commerce's Sunset Policy Bulletin (63 FR 18871 (April 16, 
1998));
    [sbull] Commerce's sunset review regulations, 19 CFR Sec.  351.218;
    [sbull] The ITC's sunset review regulations, 19 CFR Sec. Sec.  
207.60-69; and
    [sbull] Portions of Commerce's regulations governing the 
calculation of dumping margins, 19 CFR Sec. Sec.  351.102, 351.212(f), 
351.213(j), 351.403, and 351.414(c)(2).
    With respect to the claims of WTO-inconsistency, Mexico's request 
for consultations refers to the following:
    [sbull] With regard to the sunset review conducted by Commerce:
    [sbull] Commerce's misapplication of the standard of ``would be 
likely to lead to'';
    [sbull] The basis of Commerce's determination of the likelihood of 
dumping;
    [sbull] Commerce's failure to disclose the ``essential facts under 
consideration which form the basis for the decision'';
    [sbull] U.S. laws, regulations and procedures relating to duty 
absorption, both per se and as applied; and
    [sbull] Commerce's reliance on a presumption in favor of 
maintaining the anti-dumping measures.
    [sbull] With regard to the sunset review conducted by the ITC:
    [sbull] The ITC's misapplication of the ``would be likely to lead 
to'' principle;
    [sbull] The ITC's failure to compile sufficient information on the 
existence of either a domestic industry or regional industries;
    [sbull] The ITC's determination to the effect that ``all or almost 
all'' U.S. producers from the southern United States would suffer 
material injury in the event of the antidumping duty order being 
revoked;
    [sbull] The ITC's failure to conduct an ``objective examination'' 
of the record based on ``positive evidence'';
    [sbull] The ITC's failure to base its determination of injury on 
the ``effects of dumping'' on the domestic industry and to consider 
whether injury was caused by ``any known factors other than the dumped 
imports''; and
    [sbull] The statutory requirements that the ITC determine whether 
injury would be likely to continue or recur ``within a reasonably 
foreseeable time'' and that the ITC ``shall consider that the effects 
of revocation or termination may not be imminent, but may manifest 
themselves only over a longer period of time'', both per se and as 
applied.
    [sbull] With regard to the ITC's determination to reject the 
request of the Mexican producers for the initiation of a changed 
circumstances review:
    [sbull] The ITC's failure to consider the positive evidence which 
justified the need for a changed circumstances review and its failure 
to initiate such a review;
    [sbull] The ITC's failure to initiate a changed circumstances 
review to ensure that the antidumping duty order only applied to a 
regional industry in exceptional circumstances; and.
    [sbull] The ITC's failure to disclose the necessary evidence for 
and adequately substantiate its decision.
    [sbull] With regard to the administrative reviews:
    [sbull] Commerce's improper exclusion of domestic sales of 
identical Type II and Type V LA cement;
    [sbull] Commerce's comparison of sales of bagged cement with sales 
of cement in bulk;
    [sbull] Commerce's failure to make a ``fair comparison'' on the 
basis of weighted average values, and its failure to make the required 
determinations regarding the use of alternative methodologies;
    [sbull] Commerce's use of the practice known as ``zeroing'' for 
negative dumping margins;
    [sbull] The levying of antidumping duties on the products consigned 
outside the area defined in the seventh to tenth administrative 
reviews;
    [sbull] Commerce's use of an ``arm's length'' review to determine 
whether sales to related customers were ``in the ordinary course of 
trade'';
    [sbull] Commerce's request that the Mexican respondent parties 
report downstream sales by affiliated to unaffiliated customers, and 
Commerce's calculation of dumping margins on the basis of these 
downstream sales;
    [sbull] Commerce's failure to take account of cost-related evidence 
in the record in relation to differences in merchandise which affected 
price comparability, and its application of the ``facts available'' 
when making difference in merchandise adjustments;
    [sbull] Commerce's failure to deduct certain pre-sale warehousing 
costs;
    [sbull] Commerce's determination to ``amalgamate'' two Mexican 
companies and to calculate a single weighted average margin and 
establish a single importer-specific rate applicable to both companies; 
and
    [sbull] The imposition by Commerce of an unreasonable burden of 
proof on the Mexican respondent parties in the determination of duty 
absorption.
    [sbull] Commerce's failure to establish that there was adequate 
support from the regional industry for continued imposition of the 
antidumping duty.
    [sbull] With regard to the U.S. retrospective duty assessment 
system:
    [sbull] The failure to notify importers of the application of final 
or definitive anti-dumping duties;
    [sbull] The application of a rate of antidumping duty that is 
sometimes higher than the rate applicable at the time of entry; and
    [sbull] The collection of interest payments over and above the 
amount of the applicable antidumping margin.
    [sbull] The application of Section 129(c)(1) of the URAA to 
currently unpaid amounts in respect of cement from Mexico.
    Mexico also alleges that the claims described above reveal that the 
U.S. antidumping measures in question resulted in less favorable 
treatment being accorded to Mexican cement than to the U.S. like 
product in a manner inconsistent with Article III.4 of the GATT 1994. 
In addition, Mexico alleges that these claims, viewed cumulatively, 
establish a violation of Article X:3(a) of the GATT 1994 and Articles 1 
and 18 of the AD Agreement

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 U.S. mail, first class, postage 
prepaid, to Sandy McKinzy at the address listed above, or transmit a 
copy electronically to [email protected], with ``Mexico Cement Dispute'' 
in the subject line. For documents sent by U.S. mail, USTR requests 
that the submitter provide a confirmation copy, either electronically, 
to the electronic mail address listed above, or by fax to (202) 395-
3640. 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. Comments must be 
in English. 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 submitting 
person. 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

[[Page 10770]]

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'' 
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, 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-281, Mexico Cement 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 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.
[FR Doc. 03-5331 Filed 3-5-03; 8:45 am]
BILLING CODE 3190-01-M