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

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:

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;

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;

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;

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;

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;

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;

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;

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;

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;

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;

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

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