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| Statements by Ambassador Linnet F. Deily Item 1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB A. UNITED STATES – ANTI-DUMPING ACT OF 1916: STATUS REPORT BY THE UNITED STATES (WT/DS136/14/ADD.25 - WT/DS162/17/ADD.25) The United States provided an additional status report in these disputes on April 7, 2004, in accordance with Article 21.6 of the DSU. As noted in the report, legislation repealing the 1916 Act is pending in both the U.S. Senate and U.S. House of Representatives. On January 29, 2004, HR 1073, which would repeal the 1916 Act, was reported favorably out of the Committee on the Judiciary of the U.S. House of Representatives. The U.S. Administration is continuing to work with Congress to achieve further progress in resolving these disputes with the European Communities and Japan.
B. UNITED STATES – SECTION 211 OMNIBUS APPROPRIATIONS ACT OF 1998: STATUS REPORT BY THE UNITED STATES (WT/DS176/11/ADD.18) The United States provided a status report in this dispute on April 7, 2004, in accordance with Article 21.6 of the DSU. The United States Administration is continuing to work with the U.S. Congress concerning appropriate statutory measures that would resolve this matter.
C. UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN HOT-ROLLED STEEL PRODUCTS FROM JAPAN: STATUS REPORT BY THE UNITED STATES (WT/DS184/15/ADD.18) The United States provided a status report in this dispute on April 7, 2004, in accordance with Article 21.6 of the DSU. The Administration is continuing to work with the U.S. Congress with respect to the recommendations and rulings of the DSB that were not addressed by November 23, 2002.
E. UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: STATUS REPORT BY THE UNITED STATES (WT/DS217/16/ADD.3 – WT/DS234/24/ADD.3) The United States provided a status report on April 7, 2004, in accordance with Article 21.6 of the DSU. As noted in the report, on June 19, 2003, legislation to bring the Continued Dumping and Subsidy Offset Act into conformity with U.S. WTO obligations was introduced in the U.S. Senate (S. 1299). On March 10, 2004, legislation repealing the CDSOA was introduced in the U.S. House of Representatives (H.R. 3933). In addition, on February 2, 2004, the U.S. Administration once
again proposed repeal of the CDSOA, in its budget proposal for
fiscal year 2005.
A. REPORT OF THE APPELLATE BODY (WT/DS246/AB/R) AND REPORT OF THE PANEL (WT/DS246/R) Madam Chairperson, the United States participated in this proceeding because of the importance of the issues presented from a systemic perspective, particularly for the operation and continued viability of GSP programs generally. These programs are important to developed and developing Members alike. In this regard, the United States had been concerned with some of the overly broad findings of the Panel. We are therefore pleased that the Appellate Body recognized this overbreadth, and that it reversed the panel’s finding that the Enabling Clause requires developed countries under their GSP programs to provide identical tariff preferences to all developing countries. At the same time, however, we are concerned about the Appellate Body’s finding that it was incumbent upon India to raise the Enabling Clause, but that the EC bore the burden of proving that the Drug Arrangements are consistent with the Enabling Clause. We do not see the legal foundation for this hybrid approach. Moreover, this new approach could lead to confusion in future cases where there is an issue about the burden of proof. For example, if India had only cited to one clause of the Enabling Clause in its panel request, would that have meant that the EC only needed to bear the burden of proof to show it complied with that one clause? If India had cited to each and every clause of the Enabling Clause, would that have changed the EC’s burden? It seems odd that the complaining party gets to set the burden of proof for the responding party, yet that would appear to be the consequence of the Appellate Body’s approach. In any event, the United States takes note that the Appellate Body’s approach applies only to the Enabling Clause and nothing in this report would affect the burden under other WTO provisions. Further, the United States is troubled that the reports do not properly consider that the parameters for a GSP program include that it be “mutually acceptable.” Indeed, the United States does not understand why the Appellate Body omitted this text when describing in paragraph 145 the conditions for preferential treatment under paragraph 2(a) of the Enabling Clause. In our view, this is a key element in understanding how the Enabling Clause fits into the balance of rights and obligations agreed to in the GATT 1994 and the WTO Agreement. Nevertheless, the Appellate Body’s findings reversing the panel were important, and will help maintain the viability of GSP programs.
Madam Chairperson, Members will recall that the DSB adopted the reports of the panel and the Appellate Body in dispute WT/DS213, entitled United States - Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany. The dispute involved a sunset review of an outstanding countervailing duty order on corrosion-resistant carbon steel flat products from Germany. By and large, the EC’s claims were rejected. However, the panel did make one finding of a WTO inconsistency concerning the countervailing duty order that the United States did not appeal. As a result, the DSB recommended that the United States take corrective action with respect to this one adverse finding. On April 1, 2004, the United States revoked the countervailing duty order on corrosion-resistant carbon steel flat products from Germany. The notice of revocation was published in the April 1 edition of the Federal Register, volume 69, page 17,131. By this action, the United States has implemented the recommendations and rulings of the DSB in this dispute.
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