Statements by the United States at the July 20, 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.104)

The United States provided a status report in this dispute on July 7, 2011, in accordance with Article 21.6 of the DSU.

Several legislative proposals have been introduced in the current 112th U.S. Congress that would implement the recommendations and rulings of the DSB.

The U.S. Administration will continue to work on solutions 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.104)

The United States provided a status report in this dispute on July 7, 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.

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.79)

The United States provided a status report in this dispute on July 7, 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.42)

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

At the past several meetings, the United States has noted concern with delays in the EU approval system affecting dozens of pending biotech applications.  These pending applications include products covered by the findings of the Dispute Settlement Body (DSB) that the EU breached its obligations under the SPS Agreement by unduly delaying the consideration of 21 individual product applications.[1]

At this meeting, the United States would like to return to another set of important DSB recommendations and rulings in this dispute.

In particular, the DSB ruled that six EU member States had adopted nine separate measures that banned biotech products approved by the EU prior to the EU’s moratorium on biotech approvals.  The DSB ruled that all of these member State bans breached the EU’s obligations under the SPS Agreement because the measures were not based on risk assessments.[2]

Unfortunately, elements of the member State bans subject to the DSB recommendations and rulings remain in place.

Most notably, Austria continues to ban the cultivation of Mon 810 maize, which is the only biotech maize currently approved to be grown in the EU.  Not only has this Austrian  ban remained in place since the adoption of the DSB recommendations and rulings, but several other member States, including France, Germany, and Hungary, have gone on to adopt cultivation bans on the same product.

For well over a year, the EU has been considering proposals to amend its biotech approval laws to address the issue of whether EU member States should respect EU-wide approvals based on scientific risk assessments.  The issue is directly related to the implementation of the DSB recommendations and rulings in this dispute.

Earlier this month, the consideration of legislative proposals reached an important milestone.  On July 5, the EU Parliament adopted a proposed amendment that, according to the Parliament spokesman, “backs [the] national right to [adopt] cultivation bans.”  The adoption of this proposed amendment does not appear to move the EU toward implementation of the DSB recommendations and rulings on member State bans.

The United States will follow these developments closely as the proposed amendment proceeds through additional steps of the EU’s co-decision process.

And aside from these troubling developments, the United States notes that the EU appears to be taking no other actions to address member State bans on products approved at the EU-level.

E.         UNITED STATES – MEASURES RELATING TO ZEROING AND SUNSET REVIEWS:  STATUS REPORT BY THE UNITED STATES (WT/DS322/36/ADD.22)

The United States provided a status report in this dispute on July 7, 2011, in accordance with Article 21.6 of the DSU.

As the United States explained in its status report, in December 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. At this time, the U.S. Department of Commerce is continuing with its ongoing work on the December proposal.

F.         UNITED STATES – CONTINUED EXISTENCE AND APPLICATION OF ZEROING METHODOLOGY:  STATUS REPORT BY THE UNITED STATES (WT/DS350/18/ADD.19)

The United States has addressed the issue of compliance with the findings in this dispute in the status report provided on July 7, 2011, and earlier in today’s discussion of agenda item 1.E.  We refer Members to that report and statement for further details.

G.        UNITED STATES – LAWS, REGULATIONS AND METHODOLOGY FOR CALCULATING DUMPING MARGINS (“ZEROING”):  STATUS REPORT BY THE UNITED STATES (WT/DS294/38/ADD.13)

The United States has addressed the issue of compliance with the findings in this dispute in the status report provided on July 7, 2011, and earlier in today’s discussion of agenda item 1.E.  We refer Members to that report and statement for further details.

H.        CHINA – MEASURES AFFECTING TRADING RIGHTS AND DISTRIBUTION SERVICES FOR CERTAIN PUBLICATIONS AND AUDIOVISUAL ENTERTAINMENT PRODUCTS:  STATUS REPORT BY CHINA (WT/DS363/17/ADD.6)

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

The United States remains concerned by the lack of progress by China in bringing its measures relating to films for theatrical release into compliance with the DSB recommendations and rulings.

We also have significant concerns about the incomplete progress relative to China’s measures relating to audio visual home entertainment products, reading materials, and sound recordings.

The United States is conferring with China on these matters.  We hope that China will take steps to resolve this matter soon

I.          EUROPEAN COMMUNITIES AND ITS MEMBER STATES – TARIFF TREATMENT OF CERTAIN INFORMATION TECHNOLOGY PRODUCTS: STATUS REPORT BY THE EUROPEAN UNION (WT/DS375/18 – WT/DS376/18 – WT/DS377/16)

The United States thanks the European Union for its status report and its statement today.

We welcome the progress the EU has made to date in attempting to address the duties EU and member State customs authorities have applied to certain information technology products, contrary to their WTO obligations.  These products are covered by the Information Technology Agreement (ITA), and the EU committed to provide duty-free treatment to them.

Regrettably, the measures adopted thus far do not at this time allow us to share the EU’s assessment that it has in fact brought itself into compliance with the DSB recommendations and rulings.  Accordingly, the United States and the EU have entered into a sequencing agreement, which has been circulated in document WT/DS375/17.

First, some aspects of the measures do not appear to conform to the panel findings. For example, with respect to multifunction machines, the EU has provided for a new tariff of 2.2 percent on any device with the “principal function” of “digital copying.” The recommendations and rulings do not appear to support a new tariff on these products.

Second, for all three products at issue, the measures are ambiguous in important respects and raise real concerns for the United States. It is simply not clear how customs authorities in the EU will interpret them, and whether, as a result, they will in fact provide duty free treatment to the products at issue.  Furthermore, even if some EU customs authorities in some member States provide duty?free treatment to some of the products, others may subject the same products to duties.

This concern is not without foundation.  Many EU member States have themselves already indicated that the measures are unclear, and that they do not provide adequate guidance on how to treat the products at issue.

We also recall that, before the measures complained of in this dispute were adopted, there was considerable divergence in the classification of flat panel displays in the EU.  The DSB at that time ruled that the EU had failed to live up to its obligations, and, approximately four and a half years ago, the EU came before the DSB and informed it that it was rectifying the problem by adopting the very measures that it has now repealed. Without any new measures to take their place, we remain deeply concerned that the EU system will again be plagued by inconsistencies.  More fundamentally, for purposes of this case, those inconsistencies may mean that ITA products will, depending on the port of entry, continue to be subject to duty when entering the EU.

The ITA is an important achievement for developed and developing country Members alike.  The duty?free obligations that resulted from it have expanded trade and spurred innovation and economic development across the globe.  In the coming months we will be closely monitoring the situation in the EU to ensure that it adheres to the DSB’s recommendations and rulings and honors the core principles of the ITA.

[Second intervention:]

In response to the EU’s statement that it may adopt clarifications to its measures, we welcome the acknowledgment by the EU and EU member States that additional clarity is needed.  The United States urges the EU to act expeditiously to address all the concerns identified.

 

2.         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 in this matter, the U.S. 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.

The United States notes that the EU has made a similar statement under the previous agenda item.  We will therefore be interested to see whether the EU provides further status reports on the ITA dispute[3] at future DSB meetings.


[1] European Communities – Measurers Affecting the Approval and Marketing of Biotech Products, WT/DS291/R (adopted Nov. 21, 2006), para. 8.18.

[2] European Communities – Measurers Affecting the Approval and Marketing of Biotech Products, WT/DS291/R (adopted Nov. 21, 2006), paras. 8.21 to 8.30.

[3]European Communities and its Member States – Tariff Treatment of Certain Information Technology Products (WT/DS375, WT/DS376, WT/DS377).