[Federal Register Volume 69, Number 49 (Friday, March 12, 2004)]
[Notices]
[Pages 11925-11927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5588]


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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 the Government of Mexico has 
requested the establishment of a dispute settlement panel 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, 5, 6, 8, 9, 10, 11, 12, 18 and Annex II of 
the Agreement of Implementation of Article VI of the General Agreements 
on Tariffs and Trade 1994 (``AD Agreement''), Articles 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.

[[Page 11926]]


DATES: Although USTR will accept any comments received during the 
course of the dispute settlement proceedings, comment should be 
submitted on or before April 22, 2004, to be assured of timely 
consideration by USTR.

ADDRESSES: Comments should be submitted (i) electronically, to 
[email protected], with ``Mexico Cement Dispute'' in the subject line, or 
(ii) by fax, to Sandy McKinzy at (202) 395-3640, 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, 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, USTR is providing notice that 
Mexico has requested the establishment of a dispute settlement panel 
pursuant to the WTO Dispute Settlement Understanding (``DSU''). The WTO 
Dispute Settlement Body (``DSB'') has accepted Mexico's request and 
established a panel. The panelists, which will hold their meetings in 
Geneva, Switzerland, are currently being selected and would be expected 
to issue a report on its findings and recommendations within six to 
nine months from the date on which they are selected.

Major Issues Raised by Mexico

    With respect to the measures at issue, Mexico's panel request 
refers to the following:
     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);
     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 order on cement 
from Mexico (65 FR 68979 (November 15, 2000));
     The dismissal by the ITC of a request for the 
institution of a changed circumstances review of the ITC's affirmative 
antidumping determination on cement from Mexico (66 FR 65740 (December 
20, 2001));
     Sections 736, 737, 751, 752 and 778 of the 
Tariff Act of 1930;
     The URAA Statement of Administrative Action, 
H.R. Doc. No. 103-316, vol. 1 (1994);
     Commerce's Sunset Policy Bulletin (63 FR 18871 
(April 16, 1998));
     Commerce's sunset review regulations, 19 CFR 
351.218;
     The ITC's sunset review regulations, 19 CFR 
207.60-69; and
     Portions of Commerce's regulations governing the 
calculation of dumping margins, 19 CFR 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 panel 
request refers to the following:
     With regard to the administrative reviews and 
Commerce's sunset review:
     Commerce's failure to revoke the antidumping 
duty order;
     Commerce's failure to establish domestic 
industry support for the imposition of antidumping duties; and
     Commerce's failure to otherwise bring the 
antidumping measures into conformity with U.S. WTO obligations.
     With regard to the sunset review conducted by 
the ITC:
     The ITC's ``likely'' standard, as such and as 
applied;
     The statutory requirements that the ITC 
determine whether revocation of the order would be likely to lead to 
continuation or recurrence of material injury ``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 as such and as 
applied;
     The ITC's finding that ``all or almost all'' of 
the producers in the ``Southern Tier'' of the United States would 
suffer material injury in the event of the antidumping duty order being 
revoked;
     The ITC's failure to determine the ``exceptional 
circumstances'' and its incorrect determination that the appropriate 
region for purpose of analysing the effects of imports from Mexico was 
the grouping of states denominated the ``Southern Tier'';
     The ITC's failure to conduct an ``objective 
examination'' of the record based on ``positive evidence'';
     The ITC's failure to base its determination on a 
proper analysis of dumped imports, their effect on prices in the 
domestic market, and the consequent impact of the dumped imports on the 
domestic industry;
     The ITC's failure to evaluate all relevant 
economic factors and indices having a bearing on the state of the 
domestic industry;
     The ITC's failure to consider ``any known 
factors other than the dumped imports''; and
     The ITC's improper consideration of the WTO-
inconsistent margin reported by Commerce.
     With regard to the sunset review conducted by 
Commerce:
     Commerce's ``likely'' standard, its 
determination in this regard, and Commerce's calculation of the likely 
dumping margin reported to the ITC, as such and as applied;
     Commerce's standard for determining the 
``likely'' dumping margin, its reliance on that margin, and its 
reporting of that margin to the ITC, as such and as applied; and
     Commerce's standard relating to duty absorption, 
its reliance on the dumping margin based on duty absorption, and its 
reporting of that margin to the ITC, as such and as applied.
     With regard to the ITC's determination to not 
initiate a changed circumstances review, the ITC's refusal to initiate 
the review after an interested party presented positive information 
substantiating the need for a review.
     With regard to Commerce's dumping margin 
calculation methodologies:
     Commerce's exclusion of domestic sales of 
identical Type II and Type V, LA cement;
     Commerce's comparison of sales of bagged and 
bulk cement;
     Commerce's calculation of a dumping margin 
without having compared the export price and the normal value on a 
weighted average basis or on a transaction-to-transaction basis;
     Commerce's use of ``zeroing'' with respect to 
so-called ``negative dumping margins'';
     Commerce's determination to levy antidumping 
duties on Mexican cement consigned for final consumption outside the 
``Southern Tier Region'';
     Commerce's application of the so-called ``arm's 
length'' test to determine whether sales to related customers were in 
the ordinary course of trade;
     Commerce's improper application of the facts 
available by (i) failing to take account of cost-related evidence when 
making ``difmer'' adjustments; and (ii)

[[Page 11927]]

by calculating the dumping margin in the Seventh Administrative Review 
by using the facts available;
     Commerce's ``amalgamation'' of the firms 
Cementos de Chihuahua, S.A. de C.V. and CEMEX S.A. de C.V. in order to 
calculate a single weighted average dumping margin; and
     Commerce's ``duty absorption'' standard and the 
use of that finding in the calculation of the dumping margin reported 
to the ITC, as such and as applied.
     With regard to the imposition of antidumping 
duties on imports of cement from Mexico:
     The U.S. retrospective duty assessment system; 
and
     The U.S. requirement that interest be paid over 
and above the amount of the dumping margin.
     With regard to failure on the part of Commerce 
and the ITC to apply U.S. antidumping laws, regulations, decisions and 
rulings in a uniform, impartial and reasonable manner:
     Commerce's imposition of additional requirements 
on foreign parties, greater than those imposed on domestic parties, in 
response to Commerce's sunset initiation notice;
     Commerce's imposition of a more stringent 
standard on foreign parties than on the regional industry for assessing 
the adequacy of participation in sunset review process;
     The ITC's verification of information submitted 
by CEMEX and the failure to verify information submitted by members of 
the regional industry;
     Commerce's ``below cost'' investigations;
     The ITC's failure to require producers to 
provide sufficient detail to permit exporters to have a reasonable 
understanding of the substance of the information in the record.

Requirements for Submissions

    Interested person are invited to submit written comments concerning 
the issues raised in this dispute. Persons submitting the comments may 
either send one copy by fax to Sandy McKinzy at (202) 395-3640, or 
transmit a copy electronically to [email protected]. with ``Mexico Cement 
Dispute'' in the subject line. For documents sent by fax, USTR requests 
that the submitter provide a confirmation copy electronically, to the 
electronic mail address listed above.
    USTR encourages the submission of documents in Adobe PDF format, as 
attachments to an electronic mail. Comments must be in English. 
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 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 ``SUBMITTED 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, D.C. 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 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. 04-5588 Filed 3-11-04; 8:45 am]
BILLING CODE 3190-W3-M