[Federal Register: January 23, 2009 (Volume 74, Number 14)]
[Notices]
[Page 4265-4268]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja09-109]
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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
[Docket No. USTR-2008-0036]
Modification of Action Taken in Connection With WTO Dispute
Settlement Proceedings on the European Communities' Ban on Imports of
U.S. Beef and Beef Products
AGENCY: Office of the United States Trade Representative.
ACTION: Notice and modification of action.
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SUMMARY: The United States Trade Representative (``Trade
Representative'') has decided to modify the action taken in July 1999
in connection with the World Trade Organization (``WTO'') authorization
to the United States in the EC-Beef Hormones dispute to suspend
concessions and related obligations with respect to the European
Communities (``EC''). In particular, as described in this notice and
its annex, the Trade Representative has decided: (1) To remove some
products from the list of products currently subject to 100 percent ad
valorem duties; (2) to impose 100 percent ad valorem duties on some new
products from certain EC member States; (3) to modify the coverage with
respect to particular EC member States; and (4) to raise the level of
duties on one of the products that is being maintained on the product
list. The trade value of the products subject to the modified action
continues not to exceed the $116.8 million per year level authorized by
the WTO in July 1999.
DATES: Effective Date: The modifications described in the Annex to this
notice shall be effective with respect to products that are entered, or
withdrawn from warehouse, for consumption on or after March 23, 2009.
Any merchandise subject to increased duties under this determination
that is admitted to U.S. foreign-trade zones on or after March 23, 2009
must be admitted as ``privileged foreign status'' as defined in 19 CFR
146.41.
FOR FURTHER INFORMATION CONTACT: Roger Wentzel, Director, Agricultural
Affairs, (202) 395-6127 or David Weiner, Director for the European
Union, (202) 395-4620 for questions concerning the EC-Beef Hormones
dispute; or William Busis, Associate General Counsel and Chair of the
Section 301 Committee, (202) 395-3150, for questions concerning
procedures under Section 301.
SUPPLEMENTARY INFORMATION:
A. The EC-Beef Hormones Case
The EC bans the import of beef and beef products produced from
animals to which any of six hormones \1\ have been administered for
growth promotion purposes. The effect of the EC ban is to prohibit the
import of substantially all U.S.-produced beef and beef products. In
February 1998, the WTO Dispute Settlement Body (``DSB'') found that the
EC ban was inconsistent with EC obligations under the WTO Agreement. In
July 1999, a WTO arbitrator determined that the EC import ban on U.S.
beef and beef products has nullified or impaired U.S. benefits under
the WTO Agreement in the amount of $116.8 million each year. On July
26, 1999, the DSB authorized the United States to suspend the
application to the EC, and member States thereof, of WTO tariff
concessions and related obligations covering trade in an amount of
$116.8 million per year. Pursuant to that authorization, the Office of
the United States Trade Representative (``USTR'') announced a list of
EC products that would be subject to a 100 percent rate of duty
effective with respect to products entered, or withdrawn from
warehouse, for consumption on or after July 29, 1999. See 64 FR 40638.
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\1\ The six hormones at issue are estradiol 17-[beta],
testosterone, progesterone, zeranol, trenbolone acetate (``TBA'')
and melengestrol acetate (``MGA'').
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Since that time, the United States and the EC have continued to
consult in an effort to resolve this dispute. Those discussions include
the possibility of an interim agreement that would provide meaningful
market access for U.S. beef products produced without growth-promoting
hormones, in return for a suspension of the increased duties on EC
products.
The EC argues that EC legislation of 2003 amending the import ban
on beef and beef products produced from animals treated with certain
hormones brought the EC into compliance with its WTO obligations. In
January 2005, the EC requested the establishment of a WTO dispute
settlement panel to consider the EC claim that the United States was no
longer authorized to suspend concessions as a result of the EC's
adoption of the new legislation amending the import ban. (See 70 FR
8655 for a description of this dispute brought by the EC.)
On October 16, 2008, the WTO Appellate Body issued a report
rejecting the EC claim and confirming that the July 1999 DSB
authorization to suspend concessions remains in effect unless and until
the DSB rules that the EC has brought its measures into compliance
[[Page 4266]]
with its WTO obligations. The DSB adopted its recommendations and
rulings on November 14, 2008. On December 22, 2008, the EC took steps
towards initiating another WTO proceeding by requesting consultations
with the United States regarding the EC view that it has brought its
measures into compliance with the 1998 WTO recommendations and rulings.
The decision by the Trade Representative to modify the July 1999
action should not be construed as a determination with respect to
whether or not the EC legislation of 2003 amending the import ban on
beef and beef products is consistent with WTO rules. Rather, the
purpose of modifying the action is to increase its effectiveness in
terms of promoting a resolution of this dispute, including through the
possible conclusion of an interim agreement that would provide
meaningful market access for U.S. beef producers, taking into account
the economic impact of the action on the United States.
B. Section 307 of the Trade Act of 1974, as Amended
Section 307 of the Trade Act of 1974, as amended, provides for a
review of actions taken under Section 301, including actions taken in
connection with a WTO dispute settlement proceeding. In particular,
Section 307 provides for the Trade Representative to conduct a review
of--
(A) the effectiveness in achieving the objectives of section 301
of--
(i) such action, and
(ii) other actions that could be taken (including actions against
other products or services), and
(B) the effects of such actions on the U.S. economy, including
consumers.
C. Section 306 of the Trade Act of 1974, as Amended
Section 306(b)(2)(B) of the Trade Act provides for the periodic
review and revision of Section 301 actions taken in the course of a WTO
dispute settlement proceeding. Section 306(b)(2)(B)(ii) provides
exceptions in the event that (1) the USTR and the Section 301
petitioner (or, if USTR self-initiated the Section 301 investigation,
the affected U.S. industry) agree that changing the action under
Section 301 is unnecessary, or (2) resolution of the case is imminent.
Section 306 provides that the standard for revising actions is to
select changes that are most likely to result in implementation of the
DSB recommendations, or in achieving some other satisfactory resolution
of the dispute. The provision also requires that lists of products
subject to increased duties--both initially and after each of the
periodic changes--include reciprocal goods of the U.S. industries
affected by the measure at issue in the WTO dispute.
The USTR and the affected U.S. industry had agreed that changes in
the action taken under Section 301 in connection with the EC-Beef
Hormones dispute have been unnecessary; accordingly, the exception
under Section 306(b)(2)(B) has been in effect.
In response to the November 6, 2008 request for public comments
(see below), the affected industry expressed the view that a different
approach may be needed in order to obtain a resolution of this dispute.
D. Prior Notice and Comment
In order to assist in a possible modification to the action in
accordance with Section 306 of the Trade Act, and to provide
information in connection with a review under Section 307 of the Trade
Act, USTR published a notice on behalf of the Section 301 Committee
seeking public comments regarding a possible modification to the July
1999 action. See 73 FR 66,066 (November 6, 2008). The notice requested
that comments be submitted by December 8, 2008.
The Section 301 Committee sought comments with respect to: (i)
Whether maintaining or imposing increased duties on particular products
would be practicable or effective in terms of encouraging a favorable
resolution of the dispute, and (ii) whether maintaining or imposing
increased duties on particular products would cause disproportionate
economic harm to U.S. interests, including small- or medium-size
businesses and consumers. In addition, the Section 301 Committee
requested comments on whether actions with respect to particular
products should be taken with respect to products of all member States
of the European Communities, or whether action should be taken with
respect to products of one or more particular member States of the
European Communities.
Approximately 600 public comments were received in response to the
November 6, 2008 notice. Taking account of the public comments, the
Section 301 Committee--considering the effects on the U.S. economy,
including consumers--prepared a recommendation for a modified action
that would be more effective in terms of achieving the objectives of
Section 301.
E. Determination and Action
The Trade Representative, taking account of the effects of such
action on the U.S. economy, including consumers, has accepted the
recommendation of the Section 301 Committee to modify the July 1999
action so as to increase its effectiveness. The modified action further
implements the authorization granted by the DSB to the United States
under Article 22 of the DSU, and is taken pursuant to the authority
granted to the Trade Representative under sections 306 and 307 of the
Trade Act. The trade value of the products subject to the modified
action remains at or below the $116.8 million per year level authorized
by the WTO in July 1999.
The Trade Representative has decided: (1) To remove some products
from the list of products currently subject to 100 percent ad valorem
duties (specifically, the articles provided for in HTS subheadings
9903.02.31, 9903.02.33, 9903.02.35, 9903.02.37, 9903.02.38, 9903.02.39,
9903.02.40, 9903.02.41, 9903.02.42 and 9903.02.47); (2) to impose 100
percent ad valorem duties on some new products from certain EC member
States; (3) to modify the coverage with respect to particular EC member
States; and (4) to raise the level of duties on one of the products
that is being maintained on the product list. The modified action
pursuant to the Trade Representative's determination is set out in
Annex A to this notice. Annex B to this notice deletes the chapter 99
subheadings established in July 1999 for the purpose of implementing
the prior action.
The Trade Representative's determination shall be effective with
respect to articles that are entered, or withdrawn from warehouse, for
consumption on or after March 23, 2009. Any merchandise that is subject
to increased duties under part A of the Annex that is admitted to a
U.S. foreign trade zone (U.S. FTZ) on or after March 23, 2009 must be
admitted with ``privileged foreign status,'' as defined in 19 CFR
146.41. In addition, any merchandise that is no longer subject to
increased duties as a result of the Trade Representative's
determination to modify the July 1999 action is no longer subject to
the requirement that it must be admitted to a U.S. FTZ with
``privileged foreign status.''
William L. Busis,
Chair, Section 301 Committee.
Annex
A. Effective with respect to articles entered, or withdrawn from
warehouse for consumption, on or after March 23, 2009, the
Harmonized Tariff Schedule of the United States (HTS) is modified by
adding in numerical sequence the following superior text and
subheadings to subchapter III of chapter 99 to the HTS. The superior
text and
[[Page 4267]]
subheadings are set forth in columnar format, and material in such
columns is inserted in the columns of the HTS designated ``Heading/
Subheading,'' ``Article Description,'' and ``Rates of Duty 1--
General,'' respectively:
``Articles the product of Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland,
Portugal, Romania, Slovakia, Slovenia, Spain or Sweden:
Meat of bovine animals, fresh or chilled (provided for in heading 0201):
9903.02.48.............................. Articles of subheading 0201.10.05, 0201.10.10, 0201.20.02, 100%
0201.20.04, 0201.20.06, 0201.20.10, 0201.20.30, 0201.20.50,
0201.30.02, 0201.30.04, 0201.30.06, 0201.30.10, 0201.30.30
or 0201.30.50.
9903.02.49.............................. Articles of subheading 0201.10.50, 0201.20.80 or 0201.30.80.. 100%
Meat of bovine animals, frozen (provided for in heading 0202):
9903.02.50.............................. Articles of subheading 0202.10.05, 0202.10.10, 0202.20.02, 100%
0202.20.04, 0202.20.06, 0202.20.10, 0202.20.30, 0202.20.50,
0202.30.02, 0202.30.04, 0202.30.06, 0202.30.10, 0202.30.30
or 0202.30.50.
9903.02.51.............................. Articles of subheading 0202.10.50, 0202.20.80 or 0202.30.80.. 100%
9903.02.52.............................. Meat of swine, fresh or chilled (provided for in subheading 100%
0203.11, 0203.12 or 0203.19).
9903.02.53.............................. Carcasses and half-carcasses of swine, frozen (provided for 100%
in subheading 0203.21).
9903.02.54.............................. Hams, shoulders, and cuts thereof, with bone in, of swine, 100%
frozen (provided for in subheading 0203.22).
9903.02.55.............................. Processed meat of swine, frozen, other than carcasses and 100%
half-carcasses of swine and other than hams, shoulders, and
cuts thereof, with bone in (provided for in subheading
0203.29.20).
9903.02.56.............................. Edible offal of bovine animals, fresh or chilled (provided 100%
for in subheading 0206.10).
9903.02.57.............................. Edible offal of bovine animals, frozen (provided for in 100%
subheading 0206.21, 0206.22 or 0206.29).
9903.02.58.............................. Meat and edible offal, of the poultry of heading 0105, fresh, 100%
chilled or frozen (provided for in heading 0207).
9903.02.59.............................. Hams, shoulders, and cuts thereof, with bone in, of swine, 100%
salted, in brine, dried or smoked (provided for in
subheading 0210.11).
9903.02.60.............................. Meat of bovine animals, salted, in brine, dried or smoked 100%
(provided for in subheading 0210.20).
9903.02.61.............................. Meat of poultry of heading 0105, salted, in brine, dried or 100%
smoked (provided for in subheading 0210.99.20).
9903.02.62.............................. Roquefort cheese (provided for in subheading 0406.40.20 and 300%
0406.40.40).
9903.02.63.............................. Foliage, branches and other parts of plants, without flowers 100%
or flower buds, and grasses, being goods of a kind suitable
for bouquets or for ornamental purposes, fresh, dried or
bleached (provided for in subheading 0604.91 or 0604.99.30).
9903.02.64.............................. Truffles, fresh or chilled (provided for in subheading 100%
0709.59.10).
9903.02.65.............................. Rolled or flaked grains of oats (provided for in subheading 100%
1104.12).
9903.02.66.............................. Grains of oats, hulled, pearled, sliced, kibbled or otherwise 100%
worked, not elsewhere specified or included (provided for in
subheading 1104.22).
9903.02.67.............................. Sausages and similar products of beef, and food preparations 100%
based on these products, in airtight containers (provided
for in subheading 1601.00.40).
9903.02.68.............................. Other prepared or preserved meat, meat offal or blood, of 100%
liver of any animal (provided for in subheading 1602.20).
9903.02.69.............................. Other prepared or preserved meat, meat offal or blood, of 100%
poultry of heading 0105 (provided for in subheading 1602.31,
1602.32, 1602.39).
9903.02.70.............................. Other prepared or preserved meat, meat offal or blood, of 100%
bovine animals (provided for in subheading 1602.50).
9903.02.71.............................. Chewing gum, whether or not sugar-coated, not containing 100%
cocoa (provided for in subheading 1704.10).
9903.02.72.............................. Chocolate and other food preparations containing cocoa, in 100%
blocks, slabs or bars, filled, weighing 2 kg or less each
(provided for in subheading 1806.31).
9903.02.73.............................. Lingonberry and raspberry jams (provided for in subheading 100%
2007.99.05).
9903.02.74.............................. Pears, otherwise prepared or preserved, whether or not 100%
containing added sugar or other sweetening matter or spirit,
not elsewhere specified or included (provided for in
subheading 2008.40).
9903.02.75.............................. Peaches, excluding nectarines, otherwise prepared or 100%
preserved, whether or not containing added sugar or other
sweetening matter or spirit, not elsewhere specified or
included (provided for in subheading 2008.70.20).
Articles the product of Finland, France, Ireland, the Netherlands or Sweden:
9903.02.76.............................. Meat of swine, frozen, not processed, other than carcasses 100%
and half-carcasses of swine and other than hams, shoulders,
and cuts thereof, with bone in (provided for in subheading
0203.29.40).
Articles the product of France:
9903.02.77.............................. Chestnuts (Castanea spp.), fresh or dried, whether or not 100%
shelled or peeled (provided for in subheading 0802.40).
9903.02.78.............................. Wool grease (other than crude wool grease) and fatty 100%
substances derived from wool grease (including lanolin)
(provided for in subheading 1505.00.90).
Articles the product of Austria, Cyprus, France or Poland:
9903.02.79.............................. Grape juice (including grape must), not fortified with 100%
vitamins or minerals, unfermented and not containing added
spirit, whether or not containing added sugar or other
sweetening matter (provided for in subheading 2009.61 or
2009.69).
9903.02.80.............................. Juice of any other single fruit, not elsewhere specified or 100%
included, not fortified with vitamins or minerals,
unfermented and not containing added spirit, whether or not
containing added sugar or other sweetening matter (provided
for in subheading 2009.80.60).
9903.02.81.............................. Mixtures of juices, other than mixtures of vegetable juices, 100%
not fortified with vitamins or minerals, unfermented and not
containing added spirit, whether or not containing added
sugar or other sweetening matter (provided for in subheading
2009.90.40).
[[Page 4268]]
Articles the product of Italy:
9903.02.82.............................. Mineral waters and aerated waters, not containing added sugar 100%
or other sweetening matter nor flavored (provided for in
subheading 2201.10).
B. Effective with respect to articles entered, or withdrawn from
warehouse for consumption, on or after March 23, 2009, subchapter
III of chapter 99 of the Harmonized Tariff Schedule of the United
States (HTS) is modified by deleting the following HTS subheadings:
9903.02.21, 9903.02.22, 9903.02.23, 9903.02.24, 9903.02.25,
9903.02.26, 9903.02.27, 9903.02.28, 9903.02.29, 9903.02.30,
9903.02.31, 9903.02.32, 9903.02.33, 9903.02.34, 9903.02.35,
9903.02.36, 9903.02.37, 9903.02.38, 9903.02.39, 9903.02.40,
9903.02.41, 9903.02.42, 9903.02.43, 9903.02.44, 9903.02.45,
9903.02.46 and 9903.02.47.
[FR Doc. E9-1257 Filed 1-22-09; 8:45 am]
BILLING CODE 3190-W9-P