April 15, 2003: US Statements at DSB

A. UNITED STATES - SECTION 110(5) OF THE US COPYRIGHT ACT: STATUS REPORT BY THE UNITED STATES (WT/DS160/18/ADD.14)

· The United States provided an additional status report in this dispute on April 3, 2003, in accordance with Article 21.6 of the DSU. As noted in the report, the United States and the European Communities have been seeking a positive and mutually acceptable resolution of the dispute.

· The U.S. Administration is making good progress with the U.S. Congress on this issue with a view to concluding a mutually acceptable resolution consistent with WTO rules. We are hopeful that we and the European Communities will soon be notifying the DSB of additional information in this regard.

Item 1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB

B. UNITED STATES - ANTIDUMPING ACT OF 1916: STATUS REPORT BY THE UNITED STATES (WT/DS136/14/ADD.14 - WT/DS162/17/ADD.14)

· The United States provided an additional status report in this dispute on April 3, 2003, in accordance with Article 21.6 of the DSU.

· As noted in the report, legislation repealing the 1916 Act was introduced in the U.S. House of Representatives on March 4, 2003 (H.R. 1073).

· The U.S. Administration will continue to work with the U.S. Congress to achieve further progress in resolving this dispute with the European Communities and Japan.

Item 1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB

C. UNITED STATES - SECTION 211 OMNIBUS APPROPRIATIONS ACT OF 1998: STATUS REPORT BY THE UNITED STATES (WT/DS176/11/ADD.7)

· The United States provided a status report in this dispute on April 3, 2003, in accordance with Article 21.6 of the DSU.

· The U.S. Administration will continue to work with Congress with a view to resolving this dispute.

Item 1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB

D. UNITED STATES - ANTI-DUMPING MEASURES ON CERTAIN HOT-ROLLED STEEL PRODUCTS FROM JAPAN: STATUS REPORT BY THE UNITED STATES (WT/DS184/15/ADD.6)

· The United States provided a status report in this dispute on April 3, 2003, in accordance with Article 21.6 of the DSU.

· With respect to the recommendations and rulings of the DSB that were not addressed in the November 22, 2002, antidumping duty determination of the U.S. Department of Commerce, we continue to work with Congress to resolve this dispute.

· Yesterday, on April 14, 2003, Ambassador Zoellick and Secretary of Commerce Evans wrote to Congress supporting specific amendments to Section 735(c)(5) of the Tariff Act of 1930 to implement the DSB's recommendations and rulings. The U.S. Administration will work for passage of these amendments.

Item 3. UNITED STATES - SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA

· Mr. Chairman, at the outset, the United States notes that it is pleased to see that Argentina, as best we can discern from its panel request, has abandoned its claims concerning the initiation of sunset reviews and the de minimis standard applicable to sunset reviews.

· The United States has long maintained that these particular aspects of its sunset review system are consistent with U.S. WTO obligations, and in its report in the German Steel case, the Appellate Body agreed (WT/DS213/AB/R).

· We are, however, disappointed that Argentina has chosen to pursue this matter further by requesting the establishment of a panel to consider other claims. With respect to those claims the nature of which we can discern, we are confident that U.S. law - as such and as applied in the sunset review concerning OCTG from Argentina - will be found to be consistent with U.S. WTO obligations.

· Unfortunately, however, there are some claims the nature of which we cannot discern from Argentina's panel request. Because the Appellate Body has suggested that a Member may waive its right to object to a deficiency in a panel request if it does not raise its concerns when the DSB considers that request, the United States will at this time comment in some detail on the deficiencies it has identified in Argentina's panel request.

· The United States' principal problem is with the claims asserted by Argentina other than those claims appearing in sections A and B of Argentina's request for a panel.

· Specifically, in the first paragraph after section B.4 of Argentina's panel request, Argentina says that it is challenging "certain aspects" of certain U.S. laws, regulations, policies, and procedures. While Argentina goes on to identify the laws, regulations, policies, and procedures, it never identifies which aspects of these items it finds objectionable.

· To make matters worse, Argentina then alleges that these unidentified "aspects" of certain U.S. laws, regulations, policies, and procedures violate a host of articles of the Antidumping Agreement, the GATT 1994, and the WTO Agreement, most of said articles containing multiple and discrete obligations.

· Argentina never identifies which particular provisions of the U.S. materials violate which particular provisions of the cited WTO agreements.

· As a result, Members are left to wonder what this portion of Argentina's panel request is all about. Or, to put the problem in terms of Article 6.2 of the DSU, Members are left with the question: What is the legal basis of the complaint?

· The problem is less severe in the case of sections A and B of Argentina's panel request, because in most instances Argentina has adequately identified the measure in question and the particular subparagraphs of articles that allegedly have been violated by the measure. Unfortunately, however, that is not always the case.

· In sections B.1 and B.2, Argentina alleges a violation of Article 6 of the Antidumping Agreement in its entirety. Such a claim seems implausible, and the lack of precision seems unjustified given that elsewhere Argentina was able to identify the particular paragraphs of Article 6 which it considered to have been violated.

· Similarly, in section B.3, Argentina alleges a violation of Article 3 of the Antidumping Agreement in its entirety. This sweeping allegation, too, seems implausible and unjustified.

· The net result is that with respect to a large portion of Argentina's panel request, the United States simply cannot discern the legal basis of Argentina's complaint, and we believe that a panel will agree with us if a panel is established on the basis of the current panel request.

· Accordingly, an appropriate course of action would be for Argentina to withdraw its current panel request and submit a new request which complies with Article 6.2 of the DSU and which enables the United States and all other Members to adequately discern the legal basis of Argentina's complaint.

· Having said that, Mr. Chairman, the United States has another problem with Argentina's panel request. Put simply, certain of the instruments identified by Argentina do not constitute "measures" that may be challenged.

· the Statement of Administrative Action - or "SAA" - accompanying the Uruguay Round Agreements Act; and

· Because these two items already have been dealt with, or are in the process of being dealt with, by panels, we will not reiterate the U.S. position other than to state that we do not believe that these items constitute "measures."

· However, there is a third item that is not a "measure" that is properly the subject of a panel request. That item Argentina refers to as the "Determination to Expedite."
· Mr. Chairman, this Determination to Expedite - which Argentina classifies as a "measure" - is in reality nothing more than a preliminary, interlocutory decision made by a Department of Commerce official in the course of the sunset review on OCTG from Argentina. Indeed, as indicated in Argentina's panel request, the so-called "measure" is nothing more than an internal Commerce Department memorandum deciding to conduct an expedited review, as opposed to a full sunset review.

· As such, it is no different than any of the myriad types of decisions made in the course of an antidumping investigation or review, such as a decision to conduct onsite verification or not, extend the deadline for a preliminary or final determination, limit the number of exporters involved, etc., etc.

· Hundreds, perhaps thousands, of discrete preliminary decisions go into what eventually becomes an antidumping measure. However, paragraph 4 of Article 17 of the Anti-dumping Agreement makes clear that only certain specified types of measures may be the subject of a panel proceeding. These do not include preliminary decisions. Accordingly it is clear that Argentina may not challenge this "Determination to Expedite" as a measure in its own right.

· Finally, the United States notes that while Argentina purports to request the establishment of a panel with standard terms of reference, Argentina's panel request actually requests the DSB to establish a panel with terms of reference that appear to direct the panel "to find" that the alleged "measures" are inconsistent with U.S. WTO obligations. Remarkably, Argentina is asking the DSB for terms of reference that would prejudge the outcome of this dispute. These are not standard terms of reference.

· In summary, Mr. Chairman, Argentina's panel request is deficient because it is not sufficient in presenting the problem clearly, and because it purports to challenge things that are not "measures." In addition, the terms of reference sought by Argentina are not appropriate. Therefore, the United States cannot go along with the establishment of a panel.

Item 4. UNITED STATES - INVESTIGATION OF THE INTERNATIONAL TRADE COMMISSION IN SOFTWOOD LUMBER FROM CANADA

· The United States regrets that Canada has chosen to request the establishment of a panel.

· Following a thorough and careful analysis, the United States International Trade Commission concluded that an industry in the United States was threatened with material injury by reason of imports from Canada of softwood lumber. The basis for that conclusion is well documented in the Commission's Report. The Commission's determination and the means by which it was reached are fully in accordance with applicable WTO rules.

· We urge Canada to reconsider its position. We therefore believe it would be premature to establish a panel now, and thus we are not in a position to accept establishment of a panel at today's meeting.

Item 6. UNITED STATES - SUBSIDIES ON UPLAND COTTON

A. STATEMENT BY BRAZIL REGARDING ANNEX V OF THE SCM AGREEMENT

· Mr. Chairman, Brazil's decision to invoke in this dispute both the Agreement on Agriculture and the Agreement on Subsidies and Countervailing Measures prior to the expiration of the Peace Clause of the Agreement on Agriculture raises procedural questions that have not previously been faced by the DSB, particularly with respect to the interaction between the Peace Clause and provisions of the SCM Agreement.

· We have approached these issues in a spirit of cooperation and have proposed a sequence of events that would have allowed for an orderly and logical resolution of these issues without prejudice to either party's position.

· Brazil would like to use the Annex V procedures to develop information from the United States and third-country Members concerned for Brazil's serious prejudice claims. But the Peace Clause precludes bringing an action based on those claims unless Brazil can show that the Peace Clause is inapplicable.

· The Annex V procedures are available only to establish claims of serious prejudice under the Subsidies Agreement. Contrary to suggestions at the last DSB meeting by Brazil, they are not available to gather information for purposes of showing whether the Peace Clause applies under the Agriculture Agreement.

· Thus, it is the United States that would be prejudiced if we were required to develop and provide information relating to measures that are "exempt from actions based on" Articles 5 and 6 of the Subsidies Agreement pursuant to the Peace Clause.

· In trying to bridge the differences in our positions, we have proposed a pragmatic way to safeguard both parties' positions. Under our proposal, in the unlikely event the panel were to determine that the Peace Clause does not preclude Brazil's claims, the parties could then engage in the Annex V process.

· Brazil has not accepted this proposal. Instead, Brazil has submitted questions as though the Annex V process were available. In so doing, Brazil requests that Members undertake the burden of providing data that will, in light of the Peace Clause, be completely irrelevant to the panel proceedings.

· We hope for Brazil's cooperation in finding a way through the procedural issues raised. Our proposal to allow the Annex V process to run if the panel decides the Peace Clause is not applicable remains open.

· Also, in response to the last point made by the Brazilian delegate: Today's agenda item concerns only Brazil's statement concerning Annex V, not the appointment of the DSB representative under paragraph 4 of Annex V nor a decision by the DSB under paragraph 2 of Annex V to initiate the Annex V procedures.

· In any event, the United States continues to believe that it is premature to appoint a DSB representative at this meeting. As we explained at the March 31 DSB meeting and a few moments ago, Brazil is not entitled to use the Annex V procedures at this point.

We have proposed a pragmatic way to safeguard both parties' positions. We hope for the cooperation of Brazil in finding a way forwa