Statement by the United States at the January 25, 2011 DSB Meeting

1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB

A. UNITED STATES SECTION 211 OMNIBUS APPROPRIATIONS ACT OF 1998: STATUS REPORT BY THE UNITED STATES (WT/DS176/11/ADD.98)

• Mr. Chairman, the United States provided a status report in this dispute on January 13, 2011, in accordance with Article 21.6 of the DSU.

• As has been noted, a number of legislative proposals that would implement the DSB’s recommendations and rulings in this dispute were introduced in the 111th Congress.

• The U.S. Administration will continue to work with Congress to implement the DSB’s recommendations and rulings.

B. UNITED STATES ANTI DUMPING MEASURES ON CERTAIN HOT ROLLED STEEL PRODUCTS FROM JAPAN: STATUS REPORT BY THE UNITED STATES (WT/DS184/15/ADD.98)

• The United States provided a status report in this dispute on January 13, 2011, in accordance with Article 21.6 of the DSU.

• As of November 2002, the U.S. authorities had addressed the DSB’s recommendations and rulings with respect to the calculation of antidumping margins in the hot-rolled steel antidumping duty investigation at issue in this dispute. Details are provided in the document numbered WT/DS184/15/ADD.3.

• With respect to the recommendations and rulings of the DSB that were not already addressed by the U.S. authorities, the U.S. Administration will work with the U.S. Congress with respect to appropriate statutory measures that would resolve this matter.

C. UNITED STATES SECTION 110(5) OF THE US COPYRIGHT ACT: STATUS REPORT BY THE UNITED STATES (WT/DS160/24/ADD.73)

• The United States provided a status report in this dispute on January 13, 2011, in accordance with Article 21.6 of the DSU.

• The U.S. Administration will continue to confer with the European Union, and to work closely with the U.S. Congress, in order to reach a mutually satisfactory resolution of this matter.

D. EUROPEAN COMMUNITIES MEASURES AFFECTING THE APPROVAL AND MARKETING OF BIOTECH PRODUCTS: STATUS REPORT BY THE EUROPEAN UNION (WT/DS291/37/ADD.36)

• The United States thanks the EU for its status report and its statement today.

• At the December meeting of the DSB, the United States highlighted that since July 2010, the EU had not approved any of the dozens of pending biotech product applications. Now, another month has passed without an approval.

• In early February, the EU regulatory committee with the responsibility for approving biotech products is scheduled to meet to consider four product applications, as my colleague noted this morning. The EU’s scientific authority issued positive safety assessments for each product. Two of the products are varieties of maize grown in the United States that received their positive assessments over 8 months ago, in May 2010.

• The regulatory committee consists of representatives of the 27 EU member States, and it operates by rules of qualified majority voting. The United States looks forward to the regulatory committee fulfilling its responsibility and approving the products in accordance with the EU’s own scientific opinions. If the regulatory committee fails to do so, the result will be additional delays in the approvals.

• As the United States has noted, such delays result in substantial barriers to international trade in biotech products.

E. UNITED STATES MEASURES RELATING TO ZEROING AND SUNSET REVIEWS: STATUS REPORT BY THE UNITED STATES (WT/DS322/36/ADD.16)

• Mr. Chairman, the United States provided a status report in this dispute on January 13, 2011, in accordance with Article 21.6 of the DSU.

• The United States has made clear its significant concerns with the rulings on zeroing in past disputes. We will not repeat our concerns here today. We continue to believe that those rulings go beyond what the text of the agreements provides and what negotiators agreed to in the Uruguay Round, and that such issues should be of concern to all Members.

• As we have stated many times in the DSB, the United States recognizes the systemic importance of compliance with dispute settlement findings. To that end, we have devoted significant resources to comply with the recommendations and rulings in this and other zeroing disputes.

• In response to the findings in this and other zeroing disputes, on December 28, 2010, the U.S. Department of Commerce announced a proposal to change the calculation of weighted average dumping margins and assessment rates in certain antidumping proceedings, including administrative reviews, new shipper reviews, and original antidumping investigations using transaction-to-transaction comparisons, and to address the findings made in connection with sunset reviews.

• First, with respect to reviews, the Department of Commerce proposes to compare monthly weighted average export prices with monthly weighted average normal values, and to grant an offset for comparisons that show an export price that exceeds normal value in the calculation of the weighted average margin of dumping and assessment rate. This would parallel the methodology that the Department now applies in original investigations and would apply to administrative reviews as well as new shipper reviews.

• Second, with respect to the transaction to transaction approach in original investigations, it should be noted that the Department of Commerce has rarely applied this approach in investigations. However, in light of findings by the Appellate Body with respect to this approach in this dispute, to the extent that any prior application of the transaction-to-transaction approach in an investigation could be considered as establishing a practice with respect to the granting or denial of offsets for non-dumped comparisons, the Department proposes to withdraw any such practice.

• Third, and finally, the modifications that the Department is proposing with respect to reviews, and the modifications that the Department has already made with respect to investigations, would address the findings in this dispute with respect to sunset reviews.

• Details of the proposal have been published in the Federal Register (see 75 Fed. Reg. 81,533 (Dec. 28, 2010)). Under U.S. law, there will be a period for public comment on the proposal and for consultations with appropriate committees in the U.S. Congress.

• Mr. Chairman, because of our concerns about the findings regarding zeroing in this and other disputes, responding to those findings in a proposal has presented substantial challenges for the United States and required significant resources. The proposal discussed today reflects that effort and, if successful, would address adverse findings on zeroing in reviews, sunset reviews, and transaction-to-transaction comparisons in investigations.

[Second intervention:]

• We take note of Japan’s comments and will convey Japan’s questions to capital. With respect to the issue of past reviews, at this point, Commerce has issued a proposal. The proposal is not final and does not prejudge what might happen in any specific past review. The proposal is subject to comment, including by WTO Members.

• We will continue to work with interested parties, including Japan, on a solution to this dispute as we move forward with what I think everyone would agree is a very challenging domestic implementation process.

F. UNITED STATES CONTINUED EXISTENCE AND APPLICATION OF ZEROING METHODOLOGY: STATUS REPORT BY THE UNITED STATES (WT/DS350/18/ADD.13)

• Mr. Chairman, the United States provided a status report in this dispute on January 13, 2011. The United States addressed the issue of compliance with the findings in this dispute in that status report, and earlier in today’s discussion of agenda item 1.E. We refer Members to the written status report and the statement just made for further details.

[Second intervention:]

• We take note of the EU’s comments, and as with Japan’s questions, will refer the EU’s questions to capital. We will briefly comment on two issues raised by the EU, however.

• With respect to past reviews, as noted under the previous subitem, the Department of Commerce has issued a proposal. The proposal is not final, does not prejudge what might happen in any specific past review, and is subject to comment.

• The EU has also raised the issue of duties “imposed and collected after the expiry of the reasonable period of time.” With respect to the issue of duties already collected, we would be interested in hearing more explanation from the EU on its position on this issue.

• We are not aware of any other instances in which a Member has refunded duties in response to an adverse finding in a WTO dispute. For example, we had understood that the EU took a very different approach in the Bananas dispute. However, the EU’s statement today would appear to indicate a different position. We would therefore like to ask the EU to explain how it refunded duties in Bananas where my understanding is that the reasonable period of time expired in January 1999.

• In conclusion, the United States will continue to work with interested parties, including the EU, on a solution to this dispute as we move forward with this very challenging domestic implementation process.

G. UNITED STATES LAWS, REGULATIONS AND METHODOLOGY FOR CALCULATING DUMPING MARGINS (“ZEROING”): STATUS REPORT BY THE UNITED STATES (WT/DS294/38/ADD.7)

• Mr. Chairman, the United States provided a status report in this dispute on January 13, 2011. The United States addressed the issue of compliance with the findings in this dispute in that written status report, and earlier in today’s discussion of agenda item 1.E and 1.F. We refer Members to the written status report as well as those earlier interventions for further details.

[Second intervention:]

• The United States thanks the EU for the efficiency of its statement. In the same spirit, the United States refers Members to its interventions under the previous two sub-items in response to the EU’s concerns.

H. CHINA MEASURES AFFECTING TRADING RIGHTS AND DISTRIBUTION SERVICES FOR CERTAIN PUBLICATIONS AND AUDIOVISUAL ENTERTAINMENT PRODUCTS: STATUS REPORT BY CHINA (WT/DS363/17)

• The United States thanks China for its status report and its statement today.

• The reasonable period of time in this dispute expires on March 19, 2011, as noted by my Chinese colleague. We look forward to China’s implementation of the recommendations and rulings of the DSB in connection with this matter by that date.

• In that regard, we welcome China’s statement today reaffirming its intention to comply within the reasonable period of time.

3. UNITED STATES CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB

A. STATEMENTS BY THE EUROPEAN UNION AND JAPAN

• As the United States has already explained at previous DSB meetings, the President signed the Deficit Reduction Act into law on February 8, 2006. That Act includes a provision repealing the Continued Dumping and Subsidy Offset Act of 2000. Thus, the United States has taken all actions necessary to implement the DSB’s recommendations and rulings in these disputes.

• We recall, furthermore, that Members, including the EU and Japan, have acknowledged during previous DSB meetings that the 2006 Deficit Reduction Act does not permit the distribution of duties collected on goods entered after October 1, 2007.

• We therefore do not understand the purpose for which the EU and Japan have inscribed this item today.

• With respect to comments regarding further status reports the United States fails to see what purpose would be served by further submission of status reports repeating, again, that the United States has taken all actions necessary to implement the DSB’s recommendations and rulings in these disputes.