– as delivered –
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.109)
• The United States provided a status report in this dispute on December 8, 2011, in accordance with Article 21.6 of the DSU.
• Legislative proposals have been introduced in the current 112th 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.109)
• The United States provided a status report in this dispute on December 8, 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.84)
• The United States provided a status report in this dispute on December 8, 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.47)
• The United States would like to thank the EU for its status report and its statement today.
• At this last regularly-scheduled meeting in 2011, the United States would like to take a moment to compare the record of the EU’s biotech approval system in 2011 as compared to the record in 2010.
• Members may recall that at the November DSB meeting, the EU stated that it had made 11 biotech approvals during 2010.
• Unfortunately, the record for 2011 indicates growing problems in the operation of the EU biotech approval system.
• In all of 2011, the EU has made final decisions on only two of the dozens of pending biotech product applications.
• As compared to 2010, this represents a substantial decline of over 80 percent in the number of final decisions.
• This decline in final decisions does not result from a reduction in the number of pending applications. To the contrary, the backlog in the EU biotech approval pipeline continues to grow. Currently, over 70 applications are awaiting a decision.
• The United States would also emphasize that delays in making decisions on biotech product applications have real world implications, resulting in substantial barriers to international trade in products derived from modern biotechnology that have been scientifically reviewed and found to be safe.
• The United States urges the EU to address the ongoing problems in the operation of its approval system for biotech products.
E. UNITED STATES – MEASURES RELATING TO ZEROING AND SUNSET REVIEWS: STATUS REPORT BY THE UNITED STATES (WT/DS322/36/ADD.27)
• The United States provided a status report in this dispute on December 8, 2011, in accordance with Article 21.6 of the DSU.
• In December 2010, the Arbitrator in the proceeding under Article 22.6 of the DSU in this dispute issued a communication stating that it had accepted a joint request by the parties to the dispute to suspend its work.
• On November 30, 2011, in response to a joint request of the United States and Japan, the Arbitrator issued a communication stating that it has decided to continue further the suspension. The communication of the Arbitrator has been circulated to the DSB in document WT/DS322/41.
• 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 proposal.
F. UNITED STATES – CONTINUED EXISTENCE AND APPLICATION OF ZEROING METHODOLOGY: STATUS REPORT BY THE UNITED STATES (WT/DS350/18/ADD.24)
• The United States has addressed the issue of compliance with the recommendations in this dispute in the status report provided on December 8, 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.19)
• The United States has addressed the issue of compliance with the findings in this dispute in the status report provided on December 8, 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.11)
• The United States thanks China for its status report and its statement today.
• As the United States has previously noted, we remain 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.
• The United States also has significant concerns about the incomplete progress relative to China’s measures on 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 CERTAIN MEMBER STATES – MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT: STATUS REPORT BY THE EUROPEAN UNION (WT/DS316/17)
• The EU delivered a long statement with a number of points that the United States will need to address.
• We would like to start by thanking the EU for its written notification and for its statement today. We have carefully reviewed the EU’s notification enumerating steps taken in relation to the recommendations of the DSB.
• Regrettably, our review indicates that these steps do not, in fact, bring the EU into compliance with the DSB’s recommendations and rulings.
• The areas of deficiency in the EU’s assertion of compliance are too large to present in this statement today. Therefore, we will mention but a few examples.
• First, the largest and most recent subsidy at the time of the panel report was launch aid for the A380, the largest and most recent aircraft produced by the EU’s subsidized large civil aircraft industry.
• Although the EU claims to have terminated launch aid agreements for certain older models, the EU has not indicated any changes to its financing of the A380. This fact alone calls into serious question any EU claim of compliance with the DSB recommendations and rulings.
• Second, with respect to subsequent large civil aircraft programs, the United States understands that EU member States have continued to grant the same form of financing covered by the DSB recommendations and rulings. And nothing in the EU’s notification indicates otherwise.
• In light of our serious questions regarding the EU’s compliance, and the many areas of deficiency in the EU notification, the United States has requested consultations with the EU and EU member States, as my EU colleague has already mentioned. That request has been circulated to the DSB in document WT/DS316/19.
• As my EU colleague has also mentioned, pursuant to Article 7.9 of the SCM Agreement and Article 22.2 of the DSU, the United States has requested DSB authorization to take commensurate countermeasures. That request, which was circulated in WT/DS316/18 is on the agenda of a DSB meeting scheduled for December 22nd, this week.
• In relation to the EU’s expression of systemic concern regarding this request, the EU’s concern does not appear to be consistent the clear text of relevant provisions of the DSU or with past practice.
• Under Article 22.6 of the DSU, the negative consensus rule applies within 30 days of the end of the period for compliance.
• By submitting the Article 22.2 request, the United States is preserving its negative consensus rights.
• Taking this step is neither surprising nor unusual. And similar actions have been taken by other Members in other disputes.
• In particular, the United States would draw Members’ attention to the EU’s own actions in the Foreign Sales Corporation (FSC) dispute. In that dispute, the United States claimed that it had fully complied on November 17, 2000. On that same date, the EU filed both a request for consultations pursuant to DSU Article 21.5 and a request for authorization to take countermeasures. The United States objected on November 27, automatically referring the matter to arbitration, and the EU left its request on the agenda of the DSB meeting on November 28. The parties subsequently requested that the arbitration be suspended.
• Thus, the EU as the complaining party in the FSC dispute made the same request for authorization as the United States has made in this dispute. Presumably, the EU did so to preserve its rights under the DSU in a dispute that was important to it.
• There is, of course, one difference between these two disputes. In FSC, the EU requested authorization to take approximately $4 billion in countermeasures whereas, in this dispute, the United States has requested authorization to take countermeasures that we estimate could range between $7-10 billion. Thus, this dispute is up to 250 percent the size of the FSC dispute.
• As the EU has noted in its statement, it has proposed a sequencing agreement to the United States. We are considering this proposal and will be responding shortly.
• In conclusion, as the United States has long said, we remain prepared to engage in any meaningful efforts, including through the formal consultations we have requested, that will lead to the goal of ending subsidized financing of large civil aircraft at the earliest possible date.
J. UNITED STATES – ANTI-DUMPING ADMINISTRATIVE REVIEWS AND OTHER MEASURES RELATED TO IMPORTS OF CERTAIN ORANGE JUICE FROM BRAZIL: STATUS REPORT BY THE UNITED STATES (WT/DS382/10)
• Madam Chair, the United States provided a status report in this dispute on December 8, 2011, in accordance with Article 21.6 of the DSU.
• As noted in the status report, the United States informed the DSB on June 17, 2011, of its intention to implement the DSB’s recommendations and rulings in this dispute. Brazil and the United States agreed that the reasonable period of time to implement would expire on March 17, 2012.
• 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 proposal.
Second intervention:
• The United States has taken note of Brazil’s questions and will refer those to capital.
2. UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB
A. STATEMENT 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 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, as we have previously explained numerous times, 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.
• Finally, in light of the EU’s statement today, we would expect to see the EU submit a further status report in DS316, the dispute on EU subsidies for large civil aircraft, at the January 2012 DSB meeting.
4. UNITED STATES – USE OF ZEROING IN ANTI-DUMPING MEASURES INVOLVING PRODUCTS FROM KOREA
A. STATEMENT BY THE UNITED STATES ON IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB
• The United States is pleased to report that it has implemented the recommendations and rulings of the DSB in this dispute within the reasonable period of time agreed by the United States and Korea.
• The parties agreed that the reasonable period of time with respect to the diamond sawblades investigation at issue in this dispute would end on October 24, 2011. With respect to this investigation, the Department of Commerce issued a revised determination in which it calculated the antidumping duty margins with offsets, effective October 24, 2011. The order with respect to diamond sawblades and parts thereof from Korea has been revoked.
• The parties also agreed that the reasonable period of time with respect to the investigations on stainless steel plate in coils and stainless steel sheet and strip in coils at issue in this dispute would end on November 24, 2011. With respect to these investigations, the Department issued a revised determination in which it calculated the antidumping duty margins with offsets, effective November 16, 2011. The order with respect to stainless steel plate in coils from Korea has been revoked, and the order with respect to stainless sheet and strip in coils from Korea has been revoked with respect to two respondents.
• Therefore, the United States has fully implemented the recommendations and rulings of the DSB in this dispute within the reasonable period of time agreed by the parties. The United States has circulated further information to Members in a written communication (WT/DS402/7).
6. CHINA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES ON BROILER PRODUCTS FROM THE UNITED STATES
A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE UNITED STATES (WT/DS427/2)
• On September 20, 2011, the United States requested consultations with China regarding China’s imposition of antidumping and countervailing duties on chicken broiler products from the United States.
• As noted in the U.S. request for consultations, China’s dumping and subsidy determinations appear to be inconsistent with China’s obligations under the GATT 1994, the Antidumping Agreement, and the Subsidies Agreement.
• The United States has attempted to resolve our concerns through dialogue with China both during and after the investigation at issue. Formal WTO consultations were held on October 28. Unfortunately these efforts failed to resolve the dispute.
• Accordingly, the United States is proceeding to request that the DSB establish a dispute settlement panel.
• As set out in the request for the establishment of a panel, U.S. concerns relate to every aspect of China’s investigation.
• It appears that China failed to apply the appropriate procedures and legal standards, including in finding injury to China’s domestic industry without objectively examining the evidence.
• It appears that China improperly calculated dumping margins and subsidization rates.
• And it appears that China failed to adhere to transparency and basic procedural requirements set out in the Antidumping Agreement and the Subsidies Agreement.
• Members may recall that similar issues are involved in DS414, another dispute the United States has brought, which concerns antidumping and countervailing duties China has imposed on a different product (grain-oriented electrical steel or GOES). This raises the concern that, not only may there be profound procedural and substantive deficiencies in these specific investigations, but there may be systemic issues in the way China is applying its trade remedy laws.
• The United States requests that the DSB establish a panel to examine the matter set out in the U.S. panel request, with standard terms of reference.
7. EUROPEAN UNION – ANTI-DUMPING MEASURES ON CERTAIN FOOTWEAR FROM CHINA
A. JOINT REQUEST BY CHINA AND THE EUROPEAN UNION FOR A DECISION BY THE DSB (WT/DS405/5)
• The United States thanks China and the EU for their communication to the DSB as well as their statements today. We are pleased that the Appellate Body has consulted with the parties regarding its scheduling concerns and that the parties have cooperated to propose the draft decision before the DSB today.
• As has been noted in several previous DSB meetings, the United States agrees that such a proposal should remain exceptional and made in response to the unusual circumstances in which Members and the Appellate Body find themselves today.
• We also would like to express our understanding that the procedural agreement between the parties that is appended to their communication to the DSB does not form any part of the DSB’s decision, which is limited to the draft text set out in the parties’ communication.