Statement by the United States at the May 24, 2012, DSB Meeting

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.114)

•           The United States provided a status report in this dispute on May 11, 2012, in accordance with Article 21.6 of the DSU.

•           Legislative proposals have been introduced in the current 112th Congress to 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.114)

•           The United States provided a status report in this dispute on May 11, 2012, 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.89)

•           The United States provided a status report in this dispute on May 11, 2012, 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.52)

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

•           As the United States has explained at past meetings of the DSB, the United States has substantial concerns regarding EU measures affecting the approval of biotech products.  The EU measures, including delays in approvals, have resulted in restrictions on the importation of U.S. agricultural products.   The affected commodities include corn and corn products from the current U.S. growing season.

•           At the April meeting, the United States recalled the DSB findings that EU member State bans on the corn variety Mon810 are inconsistent with the EU’s obligations under the SPS Agreement.1   The United States in particular noted its concern that in March 2012, France renewed its member State ban affecting this corn variety.

•           On May 21, the EU’s scientific authority published a scientific opinion on the renewed ban adopted by France. The opinion finds that France provided no scientific evidence in support of the ban.

•           This finding is not surprising.  For over 15 years, Mon810 corn has been grown safely in many countries around the world.

•           The United States urges the EU to act in accordance with the EU’s own scientific findings and to lift the EU member State bans on biotech products approved at the EU level.

 

E.         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/DS382/11/ADD.5)

•           The United States provided a status report in this dispute on May 11, 2012.

•           As previously noted, on February 14, 2012, the U.S. Department of Commerce published a modification to its procedures in order to implement the DSB’s recommendations and rulings regarding the use of “zeroing” in all antidumping reviews, including those concerning the products of Brazil covered in this dispute.

•           On April 20, 2012, as a result of a determination by the U.S. International Trade Commission, the U.S. Department of Commerce issued a notice revoking the antidumping duty order on the products covered in this dispute.

•           The revocation of the order is effective as of March 9, 2011.  As a result of the revocation, imports of orange juice from Brazil entered on or after March 9, 2011 are not subject to antidumping duties.  All antidumping duty cash deposits on entries on or after that date will be refunded.

  • Brazil and the United States have entered into an agreement designed to facilitate a final resolution of this dispute.  The agreement has been circulated to Members in document WT/DS382/11.  The United States looks forward to further discussions with Brazil, as provided in the agreement, on any outstanding issues involving this matter.

F.         UNITED STATES – DEFINITIVE ANTI-DUMPING AND COUNTERVAILING DUTIES ON CERTAIN PRODUCTS FROM CHINA: STATUS REPORT BY THE UNITED STATES (WT/DS379/12/ADD.4)

  • The United States provided a status report in this dispute on May 11, 2012, in accordance with Article 21.6 of the DSU.

•           On April 6, 2012, the U.S. Department of Commerce (“Commerce”) issued to interested parties a preliminary determination with respect to certain issues in the countervailing duty investigation of certain new pneumatic off-the-road tires.

•           On April 9, 2012, Commerce issued to interested parties a preliminary determination with respect to certain issues in the countervailing duty investigation of laminated woven sacks.

•           On May 18, 2012, Commerce issued to interested parties a preliminary determination with respect to the issues of the determination of public bodies and the use of facts available in the countervailing duty investigations of circular welded pipe, light-walled rectangular pipe and tube, certain new pneumatic off-the-road tires, and laminated woven sacks.

•           Commerce has provided an opportunity for interested parties to provide comments on those preliminary determinations and to provide rebuttal comments on any comments submitted by other interested parties.

•           On May 14, 2012, the United States and China notified the DSB that they had reached an  agreement on procedures under Articles 21 and 22 of the Dispute Settlement Understanding.  This document has been circulated to Members in WT/DS379/14.

•           The United States will continue to work on solutions to implement fully the DSB’s recommendations and rulings.

Second Intervention

We would like to respond to China’s comments regarding alleged delays in full implementation in this dispute.  The issues in this dispute are complex and involve several novel matters.  Chinese respondents, including the Government of China, also appear to recognize the complexity of the issues, as they have requested and received, on numerous occasions, additional time to provide complete responses to questionnaires from the Department of Commerce.

As China indicated earlier, the United States and China have agreed to extend the reasonable period of time for implementation, and this was due in significant part to China’s request for more time to respond to Commerce’s questionnaires.

H.        UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP FROM VIET NAM (WT/DS404/11)

 

The United States provided a status report in this dispute on May 11, 2012, in accordance with Article 21.6 of the DSU.

On October 31, 2011, the United States and Vietnam jointly notified the DSB of their agreement that the reasonable period of time for the United States to implement the recommendations and rulings of the DSB would end on July 2, 2012.  The notification has been circulated in document WT/DS404/10.

On February 14, 2012, the U.S. Department of Commerce published in the Federal Register, 77 FR 8101, a modification to its procedures in order to implement DSB recommendations and rulings regarding the use of “zeroing” in antidumping reviews.  This modification addresses certain findings in this dispute.

•           The United States will continue to consult with interested parties as it works to address the recommendations and rulings of the DSB.

 3.         UNITED STATES – MEASURES AFFECTING THE PRODUCTION AND SALE OF CLOVE CIGARETTES

A.        IMPLEMENTATION OF THE RECOMMENDATIONS OF THE DSB

∙           At the meeting held on April 24, the DSB adopted its recommendations and rulings in the dispute United States – Measures Affecting the Production and Sale of Clove Cigarettes (WT/DS406/R and WT/DS406/AB/R).

∙           This morning, as provided for in the first sentence of Article 21.3 of the DSU, the United States wishes to state that it intends to implement the recommendations and rulings of the DSB in a manner that protects public health and respects the obligations of the United States under the WTO Agreement.

  • In this regard, the United States would emphasize the DSB finding that the U.S. measure reflects the overwhelming view of the scientific community that banning clove and other flavored cigarettes benefits the public health by reducing the likelihood that youth will enter into a lifetime of cigarette addiction.
  • Accordingly, the DSB found that a ban on clove cigarettes meets the requirements of Article 2.2 of the TBT Agreement and is thus no more trade restrictive than necessary to fulfill a legitimate public health objective.

∙           The United States will need a reasonable period of time in which to implement in this dispute.

4.         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 explained at previous DSB meetings, the President signed the Deficit Reduction Act into law on February 8, 2006.  That law includes a provision repealing the Continued Dumping and Subsidies 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.

With respect to comments regarding further status reports in this matter, as we have explained at previous DSB meetings, the United States fails to see what purpose would be served by further submission of status reports repeating the progress the United States has made in the implementation of the DSB’s recommendations and rulings.

Finally, with regard to the recent action of the EU that the EU referred to today, the United States continues to review this action.  As we have observed previously, the DSB only authorized the suspension of concessions or other obligations as provided in the Award of the Arbitrator.

6.         INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS FROM THE UNITED STATES

A.        REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE UNITED STATES (WT/DS430/2)

The United States – and other WTO Members – have raised concerns with India’s avian influenza measures for several years.  These measures prohibit the importation of various agricultural products into India from those countries reporting outbreaks of Low Pathogenic Notifiable Avian Influenza (“LPAI”).

  • Such restrictions on imports have no basis in science.  And, consistent with the scientific evidence, the guidelines of the World Organization for Animal Health (OIE) do not provide for bans on shipment of these products when a country reports LPAI.

In the U.S. request for consultations, the United States raised its concerns that India’s avian influenza measures appear inconsistent with India’s obligations under the SPS Agreement and the GATT 1994.

While we appreciate India’s engagement in the consultations held on April 16-17, unfortunately these consultations failed to resolve the dispute.

As described in more detail in our panel request, the United States remains concerned that India’s measures are inconsistent with a number of India’s WTO obligations.  For example, it appears that India’s measures are not based on international guidelines, lack scientific justification, are not based on a risk assessment, and apply requirements that are not applied to India’s own domestic production.

Therefore, 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.

Second Intervention

In its statement, India has asserted that India’s measures do not currently prohibit imports from the United States because the United States has not had an outbreak of LPAI in the last few months.  In this regard, we would note that neither the measures nor any other document states this, and that we are not aware of any current U.S. shipments.

But regardless of that issue, India does not dispute that its measures impose nationwide import prohibitions on a Member as soon as it reports an outbreak of LPAI.  Further, India has made clear that its measures remain in force and that India intends to maintain them.

The restrictions imposed by India’s measures create a substantial impediment to trade, and the United States is requesting that a WTO panel be established to examine the consistency of these measures with India’s obligations under the WTO Agreement.

8.         OTHER BUSINESS

CHINA – MEASURES AFFECTING TRADING RIGHTS AND DISTRIBUTION SERVICES FOR CERTAIN PUBLICATIONS AND AUDIOVISUAL ENTERTAINMENT PRODUCTS (DS363)

The United States would like to call Members’ attention to a communication from the United States and China regarding a Memorandum of Understanding relating to films for theatrical release in China.  The communication was circulated as document WT/DS363/19.  The MOU constitutes important progress toward a resolution of the dispute China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products.

The United States was, however, surprised and disappointed that China did not submit a status report in connection with this dispute for this month’s DSB meeting.

While, as indicated above, China has made significant progress in its implementation in this dispute, the United States has repeatedly made clear that China has not completed the implementation process.  And indeed, China has not claimed that it has taken all actions necessary to comply in this dispute.

Accordingly, the United States has engaged in discussions with China regarding its future submission of status reports, as provided for in Article 21.6 of the DSU.

Second Intervention

In response to China’s comments, we would note that the recently concluded MOU does not represent a final resolution of the film-related issues in this case.  The MOU does represent important progress, however, and the United States expects to continue working with China on these issues.  In addition, with respect to products other than films, China’s implementation is not yet complete.

 


1  Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, adopted 21 November 2006, paras. 8.24, 8.28.