[Federal Register Volume 62, Number 231 (Tuesday, December 2, 1997)]
[Notices]
[Pages 63740-63741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31524]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

[Docket No. WTO/D-23]


WTO Dispute Settlement Proceeding Regarding U.S. Antidumping 
Duties on Dynamic Random Access Semiconductors (DRAMS) of One Megabyte 
or Above From Korea

AGENCY: Office of the United States Trade Representative.

ACTION: Notice; request for comments.

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SUMMARY: Pursuant to section 127(b)(1) of the Uruguay Round Agreements 
Act (URAA) (19 U.S.C. 3537(b)(1), the Office of the United States Trade 
Representative (USTR) is providing notice that the government of Korea 
has requested the establishment of a dispute settlement panel under the 
Marrakesh Agreement Establishing the World Trade Organization (WTO) to 
examine the continuing imposition by the United States of antidumping 
duties on dynamic access memory semiconductors (DRAMS) of one megabyte 
or above from Korea. Specifically, on July 16, 1997, in its final 
determination in the administrative review of an antidumping order on 
DRAMS from Korea, the Department of Commerce determined not to revoke 
the order. 62 FR 39809 (July 24, 1997). Commerce declined to revoke the 
order because it found that one of the regulatory criteria for 
revocation had not been satisfied; namely, based on the evidence before 
it, Commerce was not satisfied that future dumping of DRAMS by the 
Korean producers in question was ``not likely.''

DATES: Although USTR will accept any comments received during the 
course of the dispute settlement proceedings, comments should be 
submitted on or before January 5, 1998, to be assured of timely 
consideration by USTR in preparing its first written submission to the 
panel.

ADDRESSES: Comments may be submitted to Ileana Falticeni, Litigation 
Assistant, Office of Monitoring and Enforcement, Room 501, Attn: Korea 
DRAMS Dispute, Office of the U.S. Trade Representative, 600 17th 
Street, N.W., Washington, DC 20508.

FOR FURTHER INFORMATION CONTACT:
William D. Hunter, Office of the General Counsel (202) 395-3582.

SUPPLEMENTARY INFORMATION: By letter dated November 6, 1997, the 
Government of Korea requested the establishment of a panel to examine 
the Department of Commerce's continuing imposition of an antidumping 
order on DRAMS of one megabyte or above from Korea. Although there 
currently are no scheduled meetings of the WTO Dispute Settlement Body 
(DSB) during the remainder of 1997, it is possible that a meeting could 
be scheduled during this time and that the DSB could establish a panel 
before the end of 1997. Under normal circumstances, 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 Government of Korea and Legal Basis of 
Complaint

    In its request for the establishment of a panel, the Government of 
Korea has identified as the measures at issue (1) the July 16 
determination by Commerce; and (2) the U.S. Tariff Act of 1930, as 
amended (19 U.S.C. 1673 et seq.) and the relevant Commerce regulations 
(19 CFR Part 353 (1997), both as applied and on their face. The 
Government of Korea alleges that these measures are inconsistent with 
several provisions of the WTO agreements, including the following 
specific allegations:
    <bullet> Commerce's final determination not to revoke the 
antidumping order, after findings of no or de minimis dumping margins, 
and respondent companies' certification that they would not dump in the 
future and agreement to reinstatement in the order in the event they 
were to dump the merchandise in the future, is inconsistent with 
Article 11 of the Antidumping Agreement and Article VI of GATT 1994;
    <bullet> The ``not likely'' criterion under Commerce's regulations 
gives Commerce wide discretion in deciding on revocation, and allows 
Commerce to maintain an order in an arbitrary and unjustifiable manner 
despite the absence of dumping for several years, respondents' 
certification not to dump in the future, and the agreement to 
reinstatement of the order in the event they dump DRAMS in the future. 
This criterion, both as applied in Commerce's final determination and 
on its face, is inconsistent with Article 11 of the Antidumping 
Agreement and Article VI of GATT 1994 and exceeds the scope of those 
agreements;
    <bullet> The negative standard of the ``not likely'' criterion and 
Commerce's practice as applied in the final determination shifted the 
burden of proof from the United States to the respondents in 
contradiction of Article II of the Antidumping Agreement;
    <bullet> The United States has failed to publish promptly, and in 
such a manner as to enable governments and traders to become acquainted 
with them, objective and specific factors regarding the ``not likely'' 
criterion, and Commerce impermissibly accepted and rejected data in a 
biased fashion inconsistent with Article X of GATT 1994 and Articles 11 
and 17 of the Antidumping Agreement;
    <bullet> The U.S. maintenance of the antidumping order on DRAMS 
without considering whether the injury to the U.S. industry would be 
likely to continue or recur if the duty were removed is inconsistent 
with Article 11 of the Antidumping Agreement;
    <bullet> Commerce's decision regarding the products subject to the 
order is inconsistent with Articles 2 and 3 of the Antidumping 
Agreement because it included products that were never found to have 
been dumped or to have caused injury, and it arbitrarily excluded 
products that were like products to those investigated;
    <bullet> Commerce's final determination not to revoke the order 
based on unverified information from the petitioner and mere conjecture 
without any substantial data, and Commerce's failure to give adequate 
consideration to information submitted by the Korean respondents in the 
administrative review is inconsistent with Articles 2, 6 and 17.6(I) of 
the Antidumping Agreement and Article VI of GATT 1994;
    <bullet> Commerce's selection of the period of review for the ``not 
likely'' criterion was improper and not objective, and therefore is 
inconsistent with Article 17.6(I) of the Antidumping Agreement and 
Article X of GATT 1994;
    <bullet> Commerce's final determination is inconsistent with 
Article I of GATT 1994 in that it denied to the Korean respondents the 
revocation of the antidumping order after three consecutive reviews 
finding no or de minimis dumping margins, and after those respondents 
certified that they would not dump in the future, and after they agreed 
to the reimposition of the order if dumping occurred, even though 
Commerce revoked antidumping orders in the same circumstances involving 
other Members;
    <bullet> Commerce's standard for determining whether to revoke 
antidumping orders is impossible to meet in proceedings involving 
cyclical industries such as the DRAMS industry, and, therefore, both on 
its face and as

[[Page 63741]]

applied in the final determination, is inconsistent with Article 11 of 
the Antidumping Agreement;
    <bullet> The margin of dumping established by the United States to 
be de minimis in administrative review proceedings is inconsistent with 
Article 5.8 of the Antidumping Agreement; and
    <bullet> The refusal by the United States to revoke the antidumping 
order in light of Korea's data collection proposal is inconsistent with 
Article I of GATT 1994, given the U.S. acceptance of such proposals and 
consequent revocation of antidumping orders in similar cases involving 
other Members.

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 submitted 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 in 
accordance with 15 CFR 2007. 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 that 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, 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-23 (``U.S.-Anti-
Dumping Duties on DRAMS from Korea'') 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.
Frederick L. Montgomery,
Chairman, Trade Policy Staff Committee.
[FR Doc. 97-31524 Filed 12-1-97; 8:45 am]
BILLING CODE 3190-01-M