WT/DS577/R W/Add.1  
 
20 February  2024 
(24-1542) Page: 1/53 
  Original: English  
 
  
UNITED STATES – ANTI -DUMPING AND COUNTERVAILING   
DUTIES ON RIPE OLIVES FROM SPAIN  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY THE EUROPEAN UNION  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS577/R W. 
 
 
_______________  
 
 
 
 
 
 
 
 
 
 WT/DS577/ RW/Add.1  
 
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LIST OF ANNEXES  
ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures of the Panel concerning Business Confidential 
Information  11 
Annex  A-3 Additional Working Procedures for the Panel: Open Meeting  13 
Annex  A-4 Interim Review  14 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the European Union  21 
Annex  B-2 Integrated executive summary of the arguments of the United States  28 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  42 
Annex  C-2 Integrated executive summary of the arguments of Canada  43 
Annex  C-3 Integrated executive summary of the arguments of Japan  47 
Annex  C-4 Integrated executive summary of the arguments of the Russian Federation  52 
 
 
 
 
 WT/DS577/R W/Add.1  
 
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  ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures of the Panel concerning Business Confidential 
Information  11 
Annex  A-3 Additional Working Procedures for the Panel: Open Meeting  13 
Annex  A-4 Interim Review  14 
 
 WT/DS577/R W/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 14 August 2023  
General  
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify these procedures, as well as any additional 
working procedures, as necessary, after consultation with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as co nfidential.  
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public. A party should endeavour 
to promptly provide a non -confidential summary to any Member requesting it, and if possible 
within 10 days of receiving the request.  
(4) In the event Business Confidential Information ("BCI") is submitted, the parties and 
third parties shall treat such BCI in accordance with the procedures set forth in the Ad ditional 
Working Procedures of the Panel Concerning Business Confidential Information.  
Submissions  
3. (1) Before the substantive meeting of the Panel with the parties, each party shall transmit 
to the Panel a first written submission, and subsequently a w ritten rebuttal, in which it 
presents the facts of the case and its arguments, and counter -arguments, respectively, in 
accordance with the timetable adopted by the Panel.  
(2) Each third party that chooses to make a written submission before the substantiv e 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(3) The Panel may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for p reliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If the United States considers that the Panel should make a ruling before the issuance 
of the Report that certain measures or claims in the panel request or the complainan t's first 
written submission are not properly before the Panel, the following procedure applies. 
Exceptions to this procedure shall be granted upon a showing of good cause.  
a. The United States shall submit any such request for a preliminary ruling at the  earliest 
possible opportunity and in any event no later than in its first written submission to the WT/DS577/R W/Add.1  
 
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  Panel. The European Union shall submit its response to the request before the substantive 
meeting of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during or after the substantive meeting, or the Panel may defer a ruling 
on the issues raised by a preliminary ruling request until it issues its Rep ort to the parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Report.  
d. Any request for such a preliminary ruling by the respondent before the meeting, and any 
subsequent submissions of the parties in relation thereto before the meeting, shall be 
served on all third parties. The Panel may provide all third parties with an opportunity to 
provide comments on any such request, either in their submissions as provided for in the 
timetable or separately. Any preliminary ruling issued by the Panel before the substantive 
meeting on whether certain measures or claims are properly before the Panel shall  be 
shared with all third parties.  
(2) This procedure is without prejudice to the parties' right to request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such reques ts. 
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the substantive 
meeting, except evidence necessary for purposes of rebuttal, or evidence necessary for 
answers to questions or comments on answers provided by the ot her party. Additional 
exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submi tted. 
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language of the subm ission. The Panel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably as soon as it is identified and no later than the next submission or the meeting 
(whichever occurs earlier) following the submission which contains the translation in question. 
Any objection shall be accompanied by an explanation of the grounds for the objection and an 
alternative transl ation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhibits submitted by the European Union should be numbered EU -1, EU -2, etc. 
Exhibits submitted by the United States should be numbered USA -1, USA -2, etc. If the last 
exhibit in connection with the first submis sion was numbered EU -5, the first exhibit in 
connection with the next submission thus would be numbered EU -6. If a party withdraws an 
exhibit or leaves one or more exhibits intentionally blank, it should indicate this on the cover 
page that provides the nu mber of the blank exhibit.  
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submit ted as an exhibit by the 
other party, it should explain why it is submitting that document again.  WT/DS577/R W/Add.1  
 
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  (4) Insofar as a party considers that the compliance panel should take into account a 
document already submitted as an exhibit in the original panel proceedin g, it should resubmit 
that document as an exhibit for the purpose of this proceeding. In its list of exhibits, it should 
refer to the number of the original exhibit in the original panel proceedings (OP) (example: 
EU-1 (EU -21-OP)).  
(5) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit along with an indication of the date that it was acce ssed. 
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions.  
Questions  
9. (1) The Panel may pose questions to the part ies and third parties at any time.  
(2) Before the meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.  
(3) The Pa nel may put questions to the parties and third parties orally during the meeting, 
and in writing following the meeting, as provided for in paragraphs 16 and 21 below.  
Substantive meeting  
10. The Panel may open its meetings with the parties to observation by the public, subject to 
appropriate procedures to protect confidential information to be adopted by the Panel after 
consulting with the parties.  
11. The parties shall be present at the meet ings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility for all members of its delegation and s hall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
13. Each party shall provi de to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request by a party for interpretation from one WTO language to another should be made  to 
the Panel as early as possible, preferably at the organizational stage, to allow sufficient time to 
ensure availability of interpreters.  
15. There shall be one substantive meeting with the parties.  
16. The substantive meeting of the Panel with the par ties shall be conducted as follows:  
a. The Panel shall invite the European Union to make an opening statement to present its 
case first. Subsequently, the Panel shall invite the United States to present its point of view. 
Before each party takes the floor,  it shall provide the Panel and other participants at the 
meeting with a provisional written version of its statement. If interpretation is needed, each 
party shall provide additional copies for the interpreters before taking the floor.  WT/DS577/R W/Add.1  
 
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  b. Each party shou ld avoid lengthy repetition of the arguments in its submissions. Each 
party is invited to limit the duration of its opening statement to not more than 75 minutes. If 
either party considers that it requires more time for its opening statement, it should inf orm 
the Panel and the other party at least 10 days before the meeting, together with an estimate 
of the expected duration of its statement. The Panel will accord equal time to the other party.  
c. After the conclusion of the opening statements, the Panel s hall give each party the 
opportunity to make comments or ask the other party questions.  
d. The Panel may subsequently pose questions to the parties.  
e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief  closing statement, with the European Union presenting its statement first. 
Before each party takes the floor, it shall provide the Panel and other participants at the 
meeting with a provisional written version of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall submit a final written version of its opening statement no later than 
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version o f any prepared closing 
statement that it delivered at the meeting.  
ii. Each party shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the other party to which it wishes to receive 
a response  in writing.  
iii. The Panel shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to t he questions from the Panel, and to any 
questions posed by the other party, within the timeframe established by the Panel 
before the end of the meeting.  
Third party session  
17. Each third party may present its views orally during a session of the substant ive meeting with 
the parties set aside for that purpose. The Panel may open the third -party session to the public for 
those third parties wishing to make their statement public, subject to appropriate procedures to 
protect confidential information to be ad opted by the Panel after consulting the parties.  
18. Each third party shall indicate to the Panel whether it intends to make an oral statement during 
the third party session three weeks in advance of this session.  
19. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in  accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
(3) Each third party shall provide, no later than three working days before the third-party 
session, a list of members of its delegation who will attend the session.  
20. To ensure the availability of interpreters, the third parties shall also indicate at least 
three  weeks before the third -party session whether they intend to make thei r statement in a WTO 
language other than English, which is the language in which these panel proceedings are being 
conducted, and whether they would require interpretation from English to any other WTO language.  WT/DS577/R W/Add.1  
 
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  21. The third -party session shall be conduc ted as follows:  
a. All parties and third parties may be present during the entirety of this session.  
b. The Panel shall first hear the oral statements of the third parties, who shall speak in 
reverse alphabetical order. Each third party making an oral sta tement at the third -party 
session shall provide the Panel and other participants with a provisional written version of 
its statement before it takes the floor. If interpretation of a third party's oral statement is 
needed, that third party shall provide ad ditional copies for the interpreters before taking 
the floor.  
c. Each third party should limit the duration of its statement to 15 minutes. If a third party 
considers that it requires more time for its opening statement, it should inform the Panel 
and the  parties at least 10 days before the meeting, together with an estimate of the 
expected duration of its statement. The Panel will accord equal time to all third parties for 
their statements.  
d. After the third parties have made their statements, the parti es shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in 
that third party's submission or statement.  
e. The Panel may subsequently pose questions to any third party.  
f. Following the third -party ses sion: 
i. Each third party shall submit the final written version of its oral statement, no later 
than 5.00  p.m. on the first working day (Geneva time) following the meeting.  
ii. Each party may send in writing, within the timeframe to be established by the  Panel 
before the end of the meeting, any questions to one or more third parties to which it 
wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, an y questions to one or more third parties to which it 
wishes to receive a response in writing.  
iv. Each third party choosing to do so shall respond in writing to written questions from 
the Panel or a party, within a timeframe established by the Panel befor e the end of the 
meeting.  
Descriptive part and executive summaries  
22. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third part ies, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way serve 
as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case.  
23. Each party shall submit one integra ted executive summary, which shall summarize the facts 
and arguments as presented to the Panel in the party's first written submission, second written 
submission, oral statement, and may also include a summary of its responses to questions and 
comments the reon following the substantive meeting.  
24. Each integrated executive summary shall be limited to 15 pages.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions t o the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This WT/DS577/R W/Add.1  
 
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  integrated executive summary may also include a summary of responses to questions. The executive 
summary to be provided by each third party shall not exceed six  pages. If a third -party submission 
and/or oral statement does not exceed six pages in total, this shall serve as the executive summary 
of that third party's arguments unless that third party indicates that it does not wish for the 
submission and/or oral statement to serve as its executive summary, in which case it shall submit 
a separate  executive summary.  
Interim review  
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such  a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
28. If no meeting is requested, each party may submit written comments on the other party's 
written request for review in accordance with the timetable ad opted by the Panel. Such written 
comments shall be limited to the other party's written request for review.  
29. If a meeting is requested, the Panel shall consult with the parties on the timing of the meeting 
and any further written comments.  
Interim and F inal Report  
30. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed by the parties.  
Service of documents  
31. The following procedures regarding service of documents  apply to all documents submitted by 
parties and third parties during the proceeding:  
a. Each party and third party shall submit all documents to the Panel by submitting them via 
the Disputes On -Line Registry Application (DORA) https://dora.wto.org  by 5:00  p.m. 
(Geneva time) on the due dates established by the Panel. The electronic version uploaded 
into DORA shall constitute the official version for the purposes of submission deadlines 
and the record of the dispute. Upload of a document into DORA shall constitute electronic 
service on the Panel, the other party, and the third parties.  
b. By 5:00 p.m. (Geneva time) the next working day following the electronic submission, 
each party and th ird party shall submit one paper copy of all documents it submits to the 
Panel, including the exhibits, with the DS  Registry (office No. 2047). The DS  Registrar 
shall stamp the documents with the date and time of the submission. If an exhibit is in a 
forma t that is impractical to submit as a paper copy, then the party may submit such 
exhibit in electronic format only. In this case, the cover page of the exhibit should indicate 
that the exhibit is only available in electronic format.  
c. The Panel shall provi de the parties with the Descriptive Part of the Report, the Interim 
Report and the Final Report, as well as all other documents or communications issued by 
the Panel during the proceeding, via DORA.  
d. If the parties or third parties have any questions or  technical difficulties relating to DORA, 
they are invited to contact the DS Registry (DSRegistry@wto.org ).  
e. If any party or third party is unable to meet the 5:00 p.m. deadline  because of technical 
difficulties in uploading these documents into DORA, the party or third party concerned 
shall inform the DS Registry ( DSRegistry@wto.org ) without delay and pro vide an electronic 
version of all documents to be submitted to the Panel by email including any exhibits. The 
email shall be addressed to DSRegistry@wto.org , the Panel Secretary, th e other party 
and, if appropriate, the third parties. The documents sent by email shall be submitted no 
later than 5:30 p.m. on the due date established by the Panel. If the file size of specific 
exhibits makes transmission by email impossible, or it would  require more than five email WT/DS577/R W/Add.1  
 
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  messages, owing to the number of exhibits to be filed, to transmit all of them by email, 
the specific large file size exhibits, or those that cannot be attached to the first five email 
messages, shall be filed with the DS Regi stry (office No. 2047) and provided to the other 
party and, if appropriate, the third parties by no later than 9:30 a.m. the next working 
day on an electronic medium acceptable to the recipient. In that case, the party or 
third party concerned shall send a  notification to the DS Registrar, copying the Panel 
Secretary, the other party, and the third parties, as appropriate, via email, identifying the 
numbers of the exhibits that cannot be transmitted by email.  
f. In case any party or third party is unable to  access a document filed through DORA because 
of technical difficulties, it shall promptly, and in any case no later than 5 p.m. on the next 
working day after the due date for the filing of the document, inform the DS Registrar, the 
Panel Secretary, and th e party or third party that filed the document, of the problem by 
email and shall, if possible, identify the relevant document(s). The DS Registrar will 
promptly try to identify a solution to the technical problem. In the meantime, the party or 
third party  that filed the document(s) shall, promptly after being informed of the problem, 
provide an electronic version of the relevant document(s) to the affected party or third 
party by email, with a copy to the DS Registry ( DSRegistry@wto.org ) and the Panel 
Secretary to allow access to the document(s) while the technical problem is being 
addressed. The DS Registrar may provide an electronic version of the relevant 
document(s) by email if t he affected party or third party so requests. The DS Registrar 
shall in that case copy the party or third party that filed the document(s) on the email 
message.  
g. Parties and third parties are responsible, through their DORA account administrators, for 
creating and updating their DORA accounts. The DS Registry is available to provide 
assistance with managing the DORA accounts.  
Correction of clerical errors in submissions  
32. The Panel may grant leave to a party or third party to correct clerical errors in  any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
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  ANNEX A -2 
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING  
BUSINESS CONFIDENTIAL INFORMATION  
Adopted on 14 August 2023  
The following procedures apply to any business confidential information (BCI) submitted in the 
course of the compliance panel proceedings in DS577.  
1.  For the purposes of these Panel proceedings, BCI includes:  
a. any information designated as such by the pa rty submitting it that was previously treated 
as confidential by the investigating authority in the anti -dumping and countervailing duty 
investigations at issue in this dispute unless the Panel decides it should not be treated as 
BCI for purposes of these Panel proceedings based on an objection by a party pursuant to 
paragraph 4 below.  
b. any other information designated as such by the party submitting it, unless the Panel 
decides it should not be treated as BCI for purposes of these Panel proceedings base d on 
an objection by a party pursuant to paragraph 4 below.  
2.  Any information that is available in the public domain may not be designated as BCI. In addition, 
these procedures cease to apply to any BCI if the person that provided the information makes the 
information publicly available or agrees in writing to make the information publicly available.  
3.  If the United States intends to submit BCI from the anti -dumping and countervailing duty 
investigations at issue to the Panel it shall, at the earliest possible date, obtain an authorizing letter 
from the entity that submitted the BCI and provide such authorizing letter to the Panel, with a copy 
to the other party. If the European Union requires BCI from the anti -dumping and countervailing 
duty investigat ions at issue for the purpose of preparing its submissions or to submit that BCI to the 
Panel, the United States shall, at the earliest possible date after being requested by the 
European  Union, obtain an authorizing letter from the entity that submitted t he BCI, provide such 
authorizing letter to the Panel with a copy to the European Union, and provide the BCI to the 
European Union.  
4.  If a party or third party considers that information submitted by the other party or a third party 
should have been desi gnated as BCI and objects to its submission without such designation, it shall 
forthwith bring this objection to the attention of the Panel, the other party, and, where relevant, the 
third parties, together with the reasons for the objection. Similarly, if  a party or third party considers 
that the other party or a third party designated information as BCI which should not be so 
designated, it shall forthwith bring this objection to the attention of the Panel, the other party, and, 
where relevant, the third parties, together with the reasons for the objection. The Panel, in deciding 
whether information subject to an objection should be treated as BCI for purposes of these Panel 
proceedings, will consider whether disclosure of the information in question could  cause serious 
harm to the interests of the originator(s) of the information.  
5.  No person may have access to BCI except a Panelist, member of the Secretariat assisting the 
Panel, an employee of a party or third party, or an outside advisor to a party or  third party for the 
purposes of this dispute. Where a third party receives written submissions pursuant to the 
Working  Procedures, the third party shall receive a redacted version of any written submission 
containing BCI and redacted versions of exhibits thereto. The redacted versions of the parties' 
written submissions received by third parties pursuant to the Working Procedures and redacted 
versions of exhibits thereto shall be sufficient to convey a reasonable understanding of the nature 
of the informat ion at issue. A third party may request access to BCI submitted to the Panel. A party 
requested by a third party to provide that third party with access to BCI must provide such access 
promptly.  WT/DS577/R W/Add.1  
 
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  6.  A party or third party having access to BCI in these Pan el proceedings shall not disclose that 
information other than to persons authorized to have access to it pursuant to these procedures. Any 
information designated as BCI under these procedures shall only be used for the purposes of this 
dispute. Each party and third party is responsible for ensuring that its employees and/or outside 
advisors comply with these procedures to protect BCI. BCI obtained under these procedures may be 
used only for the purpose of providing information and argumentation in this disp ute and for no 
other purpose.  
7.  An outside advisor of a party or third party is not permitted access to BCI if that advisor is an 
officer or employee of an enterprise engaged in the production, sale, export, or import of the 
product(s) that was/were the subject of the anti -dumping and countervailing duty investigations at 
issue in this dispute, or an officer or employee of an association of such enterprises.  
8.  A party submitting BCI shall mark the cover and/or first page of the document containing BCI,  
and each page of the document, to indicate the presence of such information. The specific 
information in question shall be placed between double brackets, as follows: [[xx,xxx.xx]]. The first 
page or cover of the document shall state "Contains Business Co nfidential Information", and each 
page of the document shall contain the notice "Contains Business Confidential Information" at the 
top of the page. A party submitting BCI in the form of, or as part of, an Exhibit shall, in addition to 
the above, so indica te by putting "BCI" next to the exhibit number (e.g., Exhibit EU -1 (BCI), 
Exhibit  USA-1 (BCI)).  
9.  Documents previously submitted to or created by the investigating authority of the party 
complained against containing information that has been designated as confidential or business 
proprietary information for purposes of the anti -dumping and countervailing duty investigations at 
issue in this dispute, and marked as business proprietary information, or words to that effect 
(including headers and bracketing) , that have also been designated as BCI in this dispute, shall be 
deemed to comply with the requirement set out in paragraph 8. When a party submits a document 
previously submitted to or created by the investigating authority concerned, that party shall ma rk 
on the cover of the document "This document was submitted to or created by the [name of 
investigating authority] and retains its original confidentiality markings."  
10.  Any BCI that is submitted in binary -encoded or other electronic form shall be clear ly marked 
with the statement "Business Confidential Information" on a label of the storage medium, and clearly 
marked with the statement "Business Confidential Information" in the binary -encoded or other 
electronic files.  
11.  In the case of an oral state ment containing BCI, the party or third party making such a 
statement shall inform the Panel before making it that the statement will contain BCI, and the Panel 
will ensure that only persons authorized to have access to BCI pursuant to these procedures are  in 
the room to hear that statement. The written versions of such oral statements submitted to the 
Panel shall be marked as provided for in paragraph 8.  
12.  Any person authorized to have access to BCI under the terms of these procedures shall store 
all documents and electronic storage media containing BCI in such a manner as to prevent 
unauthorized access to such information.  
13.  The Panel will not disclose BCI, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI. The Panel may, however, make statements of 
conclusion drawn from such information. Before the Panel circulates its final report to the Members, 
the Panel will give each party an opportunity to review the report to ensure that it does not con tain 
any information that the party has designated as BCI.  
14.  Submissions, exhibits, and other documents or recordings containing BCI will be included in the 
record forwarded to the Appellate Body in the event of an appeal of the Panel's Report.  WT/DS577/R W/Add.1  
 
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  ANNEX A -3 
ADDITIONAL WORKING PROCEDURES FOR THE PANEL: OPEN MEETING  
Adopted on 20 September 2023  
1. The Panel will start its substantive meeting with the parties (on the date of its substantive 
meeting provided for in its Timetable) with a session open to the public at which no confidential 
information shall be referred to or disclosed ("non -confidential session").  
2. At such a session, each party will be asked to make opening and closing statements which 
shall not include confidential information. After both parties have made their opening statements, 
each party will be given the opportunity to pose questions or make comments on the other party's 
statement, as described in paragraph 16 of the Working Procedures adopted by t he Panel. The Panel 
may pose any questions or make any comments during such session. Such questions shall not 
include confidential information.  
3. To the extent that the Panel or either of the parties considers it necessary, the Panel shall 
proceed to a c losed session ("confidential session"), during which the parties will be allowed to make 
additional statements or comments and pose questions that involve confidential information. The 
Panel may also pose questions during the confidential session.  
4. The Panel will start the third party session of its substantive meeting with the parties by 
opening a portion of this session to the public ("non -confidential third party session"). At this portion 
of the third party session, no confidential information shall be referred to or disclosed. Each 
third party wishing to make its statement in the non -confidential third party session shall do so, but 
shall ensure that its statement does not include confidential information. After such third parties 
have made their sta tements, the Panel or parties may pose questions or make comments concerning 
these statements, as foreseen in paragraph 21 of the Working Procedures adopted by the Panel. 
Such questions or comments shall not include confidential information. To the extent that the Panel 
or any of the other third parties considers it necessary, the Panel shall then conclude this portion of 
the third party session and proceed to a third party closed session ("confidential third party session") 
during which other third parties  shall make their statements. The Panel or parties may also pose 
questions during this confidential session.  
5. During the confidential sessions referred to above, the following persons shall be admitted 
into the meeting room:  
• Members of the Panel;  
• Members of the delegations of the parties;  
• Members of the delegations of the third parties throughout the third party session;  
• WTO Secretariat staff assisting the Panel.  
6. As set out below in paragraph 7, a live closed -circuit television broa dcast of the Panel meeting 
to a separate viewing room in the WTO shall be used to allow other WTO Members, Observers, staff 
members, and registered members of the public to observe the non -confidential sessions.  
7. The viewings will be open to officials o f WTO Members, Observers and staff members of the 
WTO Secretariat upon presentation of their official badges. Accredited journalists and 
representatives of relevant non -governmental organizations (NGOs) may indicate to the Secretariat 
(Information and Exte rnal Relations Division) their interest in attending the viewing. No later than 
three weeks before the substantive meeting, the WTO Secretariat will place a notice on the 
WTO website informing the public of the non -confidential sessions. The notice shall i nclude a link 
through which members of the public can register directly with the WTO. The date of the deadline 
for public registration will be informed to the parties as soon as it has been established.  WT/DS577/R W/Add.1  
 
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  ANNEX A -4 
INTERIM REVIEW  
1  INTROD UCTION  
1.1.  The Panel issued its Interim Report to the parties on 21 December 2023. On 18 January 2024, 
the United States submitted a written request for review of precise aspects of the Interim Report. 
The European Union did not make any request to revie w the Interim Report. The European Union 
submitted written comments on the United States'  written request on 30 January  2024. Neither 
party requested the Panel to hold an interim review meeting.  
1.2.  In accordance with Article  15.3 of the DSU, this Annex responds to the issues raised by the 
parties in the context of the interim review. Apart from the specific changes described in the following 
section, we have also corrected typographical errors and other non -substantive errors throughout 
the Report, inclu ding those identified by the United States, which are not referred to specifically 
below. The footnote numbers in the Final Report have changed due to these revisions. The paragraph 
numbers in the Final Report remain unchanged.  
2  SPECIFIC REQUESTS FOR REVIEW SUBMITTED BY THE UNITED STATES  
2.1  Paragraph 7.3  
2.1.  The United States requests the Panel to revise paragraph 7.3, arguing that, as originally 
drafted, it does not reflect the United States' argument regarding the appropriate standard of review 
with respect to factual and legal aspects of the dispute. The United States refers to its description 
of the Panel's standard of review as "to examine whether the conclusions reached by the USDOC 
were ones that any unbiased and objective authority could hav e made, in the light of the evidence 
on the record."1 According to the United States, recent panel reports have expressed the appropriate 
standard of review as whether an investigating authority reached a conclusion that an objective and 
unbiased investig ating authority could have reached given the same evidence and information.2 
2.2.  The European Union objects to the United States' request, arguing that paragraph 7.3 is not 
intended to reflect the parties' positions regarding the appropriate standard of  review but instead 
the applicable standard of review as set out in previous WTO reports. The European Union notes 
that this paragraph does not refer to the European Union's views concerning the standard of review.3 
Furthermore, footnote 31 of the Interim  Report refers to prior Appellate Body reports reflecting the 
applicable standard of review neither of which has been called into question by the panel reports 
cited to by the United States in its comments. Lastly, the European Union submits that the 
United States' position does not fundamentally differ from the standard of review applied by the 
Panel in the present case and, thus, the change requested by the United States is unnecessary.4 
2.3.  We have decided to reject the United States'  request. As curr ently drafted, the text emphasizes 
that the standard of review this Panel must apply in an Article  21.5 proceeding requires it to evaluate 
whether the measures found to be inconsistent with the WTO Agreement have been brought into 
conformity. In addition, as concerns actions taken by an investigating authority to bring a Member 
into compliance, the Panel explained that it is required to evaluate whether the competent authorities 
provided a reasoned and adequate explanation as to  (a) how the evidence on the record supported 
its factual findings, and (b) how those factual findings supported the overall determination. This 
description reflects the Panel's assessment of the relevant standard of review applicable in the 
 
1 United States'  request for interim review, para.  4 (quoting United States' second written submission, 
para. 3).  
2 United States'  request for interim review, para.  4 (referring to Panel Reports, US – Countervailing 
Measures on Certain EC Products (Article 21.5 – EC), paras.  7.78-7.83;  US – Softwood Lumber VII , appealed 
28 September 2020, paras.  7.150 and 7.260).  
3 European Union's comments on the United States' request for interim review, para.  2 (referring to 
European Union's first written submission, paras.  50-55). 
4 European Union's comments on the United States' request for interim review, para.  2. WT/DS577/R W/Add.1  
 
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  original proceeding. In our view the change  requested by the United States is not substantially 
different. We have, however, removed the statement that the Panel "do[es] not understand the 
parties to take a different view", in the light of the United States' concern that the Panel's description 
of its standards of review does not reflect the arguments that the United States made in its 
submissions.  
2.2  Paragraph 7.6  
2.4.  The United States requests the Panel to revise the first and second sentences of paragraph 7.6 
to more accurately reflect actio ns taken by the United States to implement the recommendations of 
the DSB in the original proceeding. In particular, the United States requests that we first specify 
that the United States Trade Representative requested that the USDOC issue determinations as 
necessary, after which the USDOC initiated proceedings under Section 129 of the Uruguay Rounds 
Agreement Act.5 The European Union did not comment on this request.  
2.5.  We have made the requested change to enhance clarity.  
2.3  Paragraph 7.8  
2.6.  The United States requests the Panel to delete the language "maintains that it carefully 
reviewed the DSB recommendations and rulings from the original proceeding" from paragraph 7.8 
to more accurately restate assertions made by the United States in its first written submission related 
to the domestic implementation process that was undertaken.6 
2.7.  The European Union partially objects to the deletion suggested by the United States, requesting 
that the words "maintains that it" are not deleted in o rder to make clear that this paragraph concerns 
assertions made by the United States in this proceeding. The European Union does not object to the 
deletion of the remainder of the text that the United States identified.7 
2.8.  We decline the United States ' request as the paragraph directly draws on the language used 
by the United States in the first paragraph of its first written submission.  
2.4  Paragraph 7.9  
2.9.  The United States requests the Panel to revise the second sentence of paragraph 7.9 to more  
accurately restate arguments by the United States related to the USDOC's discretion to interpret 
Section 771B.8 The European Union did not comment on this request.  
2.10.  We have made the minor changes that were requested by the United States.  
2.5  Parag raph 7.23  
2.11.  The United States requests the Panel to revise the second sentence of paragraph 7.23 to more 
accurately describe the adjustments made to the subsidy attribution where growers grew more than 
olives.9 The European Union did not comment on this request.  
2.12.  To enhance clarity, we have modified the second sentence to indicate that the USDOC 
attributed the benefit of such subsidies attributable to the olives grown by olive growers.  
2.6  Paragraph 7.24  
2.13.  The United States requests the Panel to revise the first sentence of paragraph 7.24 to state 
that Section 771B applies in certain cases where the requirements of the statute are satisfied and 
 
5 United States'  request for interim review, para.  5. 
6 United States'  request for interim review, para.  6. 
7 European Union's comments on the United States' request for interim review, para.  3. 
8 United States'  request for interim review, para.  7. 
9 United  States'  request for interim review, para.  8. WT/DS577/R W/Add.1  
 
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  not in all countervailing duty investigations involving a n agricultural product processed from a raw 
agricultural product.10 
2.14.  The European Union argues that the United States' proposed change would give the 
misleading impression that Section 771B may or may not apply in cases involving agricultural 
product s, whereas Section 771B applies to an agricultural product processed from a raw agricultural 
product if the conditions in Section 771B are met. Alternatively, the European Union proposes 
rewording the first sentence of paragraph 7.24 to state that Section 771B applies in the 
United  States' countervailing duty investigations involving an agricultural product processed from a 
raw agricultural product when the requirements of the statute are satisfied.11 
2.15.  To avoid confusion regarding situations in which Section 771B applies, we have modified the 
first sentence to state that Section 771B applies in US countervailing duty investigations involving 
an agricultural product processed from a raw agricultural product when the requirements of 
Section  771B are sati sfied.  
2.7  Footnote 79  
2.16.  The United States requests the Panel to revise footnote 79 to reflect that the USDOC's analysis 
and determinations in the Section 129 proceeding are supplemented by and based upon the 
information contained in the administrat ive record of the proceeding conducted by the USDOC.12  
2.17.  The European Union objects to the United States' proposed change, arguing that 
paragraph  7.34 refers to the USDOC's analysis and determinations, not to the evidence on which 
the USDOC relied. T he European Union further submits that paragraph 7.38 reflects that the USDOC 
relied on record evidence.13 
2.18.  We do not consider the United States' requested change is necessary as the basis for the 
USDOC's analysis is reflected in subsequent paragraph s in section 7.2.3.2 of the Report.  
2.8  Footnote 85  
2.19.  The United States requests the Panel to modify the citation in footnote 85 to accurately reflect 
the relevant range of pages in the cited document.14 The European Union did not comment on this 
request. 
2.20.  We have made the requested change.  
2.9  Paragraph 7.41  
2.21.  The United States requests the Panel to revise the second sentence of paragraph 7.41 to 
reflect that the USDOC applied the described methodology in the Section 129 proceeding to rea ch 
its conclusions "based on the facts and evidence presented in the Section 129 proceeding".15 
2.22.  The European Union objects to the requested change, arguing that the proposed additional 
language could be misunderstood to suggest that relevant facts o r evidence beyond the 
two conditions in Section 771B may be considered by the USDOC for determining pass -through. The 
European Union maintains that such an understanding is incompatible with the findings in this 
proceeding that the pass -through methodology  in Section 771B is exclusively based on the 
presumption contained in the two conditions referred to in Section 771B.16 In addition, the 
European  Union argues that the proposed use of the term "presented" is misleading because it would 
suggest that the USD OC's analysis depended on the information actively "presented" by interested 
 
10 United States'  request for interim review, para.  9. 
11 European Union's comments on the United States' request for interim review, para.  4. 
12 United States'  request for interim review, para.  10. 
13 European Uni on's comments on the United States' request for interim review, para.  5. 
14 United States'  request for interim review, para.  11. 
15 United States'  request for interim review, para.  12. 
16 European Union's comments on the United States' request for interim rev iew, para.  6 (referring to 
Interim Report, paras.  7.51 and 7.54).  WT/DS577/R W/Add.1  
 
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  parties. The European Union contends that the interested parties were not given the opportunity to 
present relevant additional evidence in the Section 129 proceeding.17 
2.23.  We do not consider the United States' requested change is necessary as the basis for the 
USDOC's analysis, including the consideration of evidence, is reflected in subsequent paragraphs in 
section 7.2.3.2 of the Report.  
2.10  Paragraph 7.42  
2.24.  The United States requests the Panel to revise the third sentence of paragraph 7.42 to clarify 
that "[t]he USDOC considered the interested parties' comments and rejected their arguments that 
a statutory change was required for the USDOC to be able to consider all rel evant information". 
According to the United States, this additional language would avoid suggesting that the USDOC did 
not consider the arguments made by interested parties during the Section 129 proceeding.18 
2.25.  The European Union asks the Panel to partially reject the change proposed by the 
United  States, arguing that interested parties made numerous different arguments that were 
rejected by the USDOC, and thus it would be misleading to focus solely on the  argument that "a 
statutory change was required".19 Accordingly, the European Union submits that the proposed 
language "[t]he USDOC considered the interested parties' comments and rejected their arguments" 
could be retained but the remainder of the text (" that a statutory change was required for the USDOC 
to be able to consider all relevant information") should not be incorporated.20 
2.26.  In the light of the parties' comments, we have modified the third sentence of paragraph 7.42 
to state that "[t]he USDO C considered the interested parties' comments and rejected their 
arguments, including  the comment  that a statutory change was required for the USDOC to be able 
to consider all relevant information, notwithstanding the provisions of Section 771B". In this w ay, 
the sentence clarifies that the USDOC considered the interested parties' comments before rejecting 
their arguments that a statutory change was required for the USDOC to be able to consider all 
relevant information.  
2.11  Paragraph 7.44  
2.27.  The Unite d States requests the Panel to revise paragraph 7.44 to include arguments (a) that 
it disagrees with assertions by the European Union that the United States made no relevant changes 
with respect to Section 771B and (b) that the USDOC's revised interpretati on constitutes the 
"measure taken to comply" and is a change in US law, given that the USDOC is the US authority 
charged with administering US countervailing duty law. The United States submits that paragraph 
7.44 omits the United States' arguments regardi ng the existence of a measure taken to comply. The 
United States additionally requests that we include a new footnote citing paragraph 5 of the 
United  States' opening statement at the substantive meeting with the Panel and paragraphs  64 and 
65 of the United States' response to Panel question No. 25, in connection with the proposed 
revision.21 
2.28.  The European Union submits that the United States' proposed change is unnecessary, arguing 
that it is apparent from the existing text that the United State s considers that a measure taken to 
comply exists and that the United States disagrees with the European Union's argument that the 
United States "made no relevant change with respect to Section 771B". The European Union 
additionally submits that the propos ed language that the USDOC is the authority charged with 
administering the US countervailing duty law, is not reflected in the references cited by the 
United  States and, therefore, the United States' request should also be rejected for this reason.22 
2.29.  To enhance clarity, the Panel has included language in paragraph 7.44 indicating that the 
United  States disagrees with the European Union's assertion that the United States made no relevant 
 
17 European Union's comments on the United States' request for interim review, para.  6. 
18 United States'  request for interim review, para.  13. 
19 European Union's comments on the United States ' request for interim review, para.  7 (referring to 
Final Section 129 determination (Exhibit EU -2), pp.  15-16). 
20 European Union's comments on the United States' request for interim review, paras.  7-8. 
21 United States'  request for interim review, para.  14. 
22 European Union's comments on the United States' request for interim review, paras.  9-11. WT/DS577/R W/Add.1  
 
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  change with respect to Section 771B and that the USDOC's revised  interpretation is the measure 
taken to comply and constitutes a change in US law. We have also included a new footnote 98 and 
citation to paragraph 5 of the United States' opening statement. We decline, however, to include 
additional language proposed by the United States that the USDOC is the US authority charged with 
administering the US countervailing duty law as we do not consider this language is relevant to our 
analysis in section 7.2.3.3 of the Report.  
2.12  Paragraph 7.47  
2.30.  The United States requests the Panel to revise paragraph 7.47 which addresses the 
USDOC's  reconsideration of the meaning of the terms "raw agricultural product" and "prior stage 
product". The USDOC's evaluation is contained in the section of the preliminary Section  129 
determination entitled "Statutory Interpretation". The United States asks us to reflect that this 
section must be read together with the supporting memoranda and the explanation provided in the 
USDOC's final determination, and to also indicate that the USDOC a lso addressed the meaning of 
the statutory terms "shall" and "deemed" in the preliminary determination. The United States 
contends that without these revisions, the paragraph could be misunderstood as suggesting that 
there was no further discussion of the USDOC's statutory interpretation of Section 771B elsewhere 
in the preliminary and final determinations.23 
2.31.  The European Union objects to the United States' proposed change, arguing that the 
United  States is attempting to amend the Panel's finding in preceding paragraph 7.46, that the legal 
interpretation of the terms "raw agricultural product" and "prior stage product" is the extent of the 
statutory interpretation contained in the section of the preliminary determination entitled "Statutory 
Interpreta tion". The European Union further submits that the United States' request to add a 
reference to supporting memoranda and the explanation provided in the USDOC's final determination 
is inapposite because these documents do not contain an interpretation as c orrectly established by 
the Panel in paragraphs 7.46 and 7.47 of the Interim Report. Lastly, the European Union argues that 
the United States' request to add a reference to the USDOC's alleged interpretation of the terms 
"shall" and "deem" is misplaced sin ce paragraph 7.47 is limited to addressing the interpretation of 
the terms "raw agricultural product" and "prior stage product", while the USDOC's consideration of 
the terms "shall" or "deemed" is discussed separately in section 7.2.3.3.2.2.24 
2.32.  We re ject the United States' request. We disagree with the United States' proposed revision 
characterizing this section of the preliminary determination as an "introductory section". In addition, 
we disagree with the United States' proposal to indicate in this paragraph that the preliminary 
Section 129 determination needs to be read together with supporting memoranda and explanation 
provided in the Section 129 final determination, and that the USDOC also addressed the meaning of 
the terms "shall" and "deemed". T hese aspects of the USDOC's evaluation are addressed by the 
Panel in section 7.2.3.3.2 of the Report that immediately follows. However, to enhance clarity, we 
have added language to paragraph 7.47 indicating that this part of the analysis is limited to 
addressing the USDOC's statutory interpretation in the section of the preliminary Section 129 
determination entitled "Statutory Interpretation".  
2.13  Paragraph 7.55  
2.33.  The United States requests the Panel to revise the language of the second sentence of 
paragraph 7.55 to track the language used by the United States in its submissions, namely that the 
analysis from the ripe olives Section 129 proceeding would "serve as guidance" in future 
determinations, not that it would be "mandated" in future determinat ions.25 The European Union did 
not comment on this request.  
2.34.  We decline to make the requested change. The language in the second sentence reflects the 
Panel's assessment of how the USDOC may undertake an analysis pursuant to Section 771B in future 
determinations.  
 
23 United States'  request for interim review, para.  15. 
24 European Union's comments on the United States' request for interim review, paras.  12-14. 
25 United States'  request for interim review, para.  16. WT/DS577/R W/Add.1  
 
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  2.14  Paragraph 7.59  
2.35.  The United States requests the Panel to change the fifth sentence of paragraph 7.59 to the 
past tense to avoid suggesting that the United States has continued to make arguments from the 
original proceeding in this compliance proceeding.26 The European Union did not comment on this 
request.  
2.36.  We have made the requested change to enhance clarity.  
2.15  Paragraph 7.66  
2.37.  The United States requests the Panel to modify language in the first sentence of 
paragraph  7.66 to avoid implying that the USDOC only had discretion to interpret Section 771B in 
the Section 129 proceeding. The United States contends that the USDOC has always had the 
discretion to interpret relevant statutory provisions, but such discretion had not previously been 
exercised in the manner it was in the ripe olives Section 129 proceeding with respect to 
Section  771B.27 The European Union did not comment on this request.  
2.38.  We decline to make the requested changes. The language in paragraph 7.66 reflects the 
Panel's assessment that Section 771B does not allow for such discretion. Nor did the United States 
provide evidence that the USDOC exercised such discretion in the  case at hand.  
 
_______________  
 
 
 
 
 
26 United States'  request for interim review, para.  17. 
27 United States'  request for interim review, para.  18. WT/DS577/R W/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the European Union  21 
Annex  B-2 Integrated executive summary of the arguments of the United States  28 
 
 WT/DS577/ RW/Add.1  
 
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  ANNEX  B-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
I. INTRODUCTION  
1. The United States is under a legal obligation to comply with the Panel 's finding that Section 771B 
is "as such" inconsistent with WTO rules because it presumes the exist ence and degree of 
pass-through based on only two conditions (substantial dependence and limited added value) and 
excludes the possibility for the USDOC to take into account other relevant factors. The Panel found 
that Section  771B in its current form is i nconsistent "as such" because it "requires" the USDOC to 
act inconsistently with Article VI:3 of the GATT and Article 10 of the SCM Agreement each time 
Section 771B is affirmatively applied. For the same reason, the Panel found that the application 
of Sect ion 771B in the Spanish ripe olive CVD investigation was inconsistent "as applied."  
2. It is undisputed that the United States did not amend Section 771B following the adoption of the 
Panel Report. The text of Section 771B today is the same as the text pr ior to the adoption of the 
Panel Report. The only U.S. measure taken to comply both with the "as such" and with the "as 
applied" findings in the Panel Report is the alleged "revised interpretation" by the USDOC in the 
Section 129 determination of the terms  "prior stage product" and "raw agricultural product" 
applied in the context of the USDOC 's substantial dependence analysis in Section 771B. According 
to the United States, this alleged "re -interpretation" would have allowed the USDOC to consider 
additiona l factors for the pass -through analysis.  
3. As a general matter, because the "as applied" finding of inconsistency in the Panel Report is based 
on "the same reasons" as the "as such" finding of inconsistency and because the Panel expressly 
found that every  affirmative application of Section 771B "requires" the USDOC to act 
inconsistently, the European Union takes the position that the United States can only achieve "as 
applied" compliance after having achieved "as such" compliance.  
4. The USDOC 's alleged " revised interpretation" of the terms "prior stage product" and "raw 
agricultural product" in Section 771B did not result in "as such" compliance and hence could not 
result in "as applied" compliance either.  
II. THE ALLEGED "REVISED INTERPRETATION " OF THE "PRIOR STAGE PRODUCT " DOES NOT EXIST  
5. The alleged "revised interpretation" of the "prior stage product" and the "raw agricultural product" 
is nowhere reflected, let alone explained, in the Section 129 determination and does not exist. 
What the United St ates refers to, in a misleading manner, as a legal interpretation of 
Section  771B, is nothing but a run -of-the-mill factual application  of those terms by the USDOC, 
taking into account the specific facts of the ripe olive case. The USDOC simply determined  the 
"prior stage product" to be five certain raw olive varietals in view of the factual information it 
considered. It did not undertake any relevant change to Section 771B.  
6. This is evidenced, for example, by the USDOC 's conclusion on page 14 of the prel iminary 
determination concerning the "prior stage product": "Thus, we are narrowing our definition of the 
"prior stage product" and "raw agricultural product" to table and dual -use raw olive varietals that 
are biologically distinct from other raw olive var ietals." This modified definition follows a lengthy 
factual analysis of the substitutability of certain raw olive varietals. It is not the result of a legal 
interpretation of "prior stage product". Similarly, on page 18 of the preliminary determination the  
USDOC writes that "[w]e examined the totality of the information on the record, and subsequently 
determined to adjust our definition of the "prior stage product" to be the five [relevant] varietals." 
The United States, for example in paragraph 38 of its f irst written submission, also refers to a 
determination, not to a legal interpretation.  
7. The absence of a legal interpretation is also evidenced by the fact that the United States 
throughout the proceedings has avoided (or has been unable) to identify th e exact location of the 
alleged "interpretation", or to explain how the interpretation changed compared to the situation WT/DS577/ RW/Add.1  
 
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  prior to the adoption of the Panel Report. In response to the Panel 's question as to where the 
alleged "interpretation" could be found,  the United States alleged that the "interpretation" would 
be set forth over a total of 13 pages in the Section 129 determination. In short, the United States 
cannot find the "interpretation" because it does not exist.  
8. The non -existence of any "interpr etation" of the terms "prior stage product" and "raw agricultural 
product" that would be relevant for the consideration of additional factors (and hence for 
compliance) is further confirmed by the fact that the USDOC simply re -applied the same 
inconsistent  presumption in the Section 129 determination as it had done in the original 
determination, despite the alleged "interpretation" of Section 771B. In particular, the USDOC 
made clear on page 18 in the preliminary determination that "[t]he two prongs of Sect ion 771B 
are fulfilled", "[t]herefore " we apply a 100% pass -through. Similarly, the USDOC stated that it is 
"directed " by Section 771B to presume 100% pass -through. Therefore, the Section 129 
determination also confirms that no legal interpretation of "pri or stage product" relevant for 
pass-through exists.  
9. The non -existence of any legal interpretation of "prior stage product" relevant for pass -through 
compliance is further supported by the fact that the USDOC even failed to gather any information 
that could be relevant for the consideration of additional fac tors relevant for pass -through. The 
USDOC merely placed "certain documents" onto the record from the original CVD investigation 
which could not contain relevant information since the USDOC applied the WTO -inconsistent 
presumption for that investigation. If  the USDOC did not even collect information relevant for 
additional pass -through factors, why would the USDOC "revise its interpretation" in order to be 
able to consider additional factors in the first place?  
10. The non -existence of any legal interpretat ion of "prior stage product" relevant for pass -through 
compliance is also demonstrated by the express U.S. acknowledgment in its Responses to the 
Panel's Questions that the "prior stage product" is irrelevant for the determination of direct benefit 
in the present case . Since indirect benefit is a corollary, full or partial, of direct benefit, this means 
that the "prior stage product" is also irrelevant for pass -through compliance in the present case. 
Why would the USDOC re -interpret the terms "prior stage p roduct" if, as acknowledged by the 
United States, these terms are irrelevant for direct benefit and hence for indirect benefit?  
11. The United States never specifically contested, let alone rebutted, the EU 's arguments concerning 
the non -existence of a le gal interpretation of "prior stage product". The United States limited its 
defence to merely asserting  that the USDOC 's alleged "revised interpretation" would have led to 
compliance without ever even identifying, let alone explaining, the alleged "interpre tation".  
12. The non -existence of the alleged "interpretation" suffices to establish U.S. non -compliance.  
III. THE ALLEGED "REVISED INTERPRETATION " OF "PRIOR STAGE PRODUCT " IS IRRELEVANT FOR 
PASS-THROUGH BEYOND SUBSTANTIAL DEPENDENCE  
13. The terms "prior  stage product" are located within the substantial dependence prong of 
Section  771B. These terms are therefore relevant for the USDOC 's analysis as to whether the 
demand for the "prior stage product" is substantially dependent  on the demand for the latter stage 
product. The substantial dependence analysis under Section 771B was not the subject of the 
WTO proceedings. Compliance does not concern the USDOC 's substantial dependence analysis 
but, on the contrary, concerns the USDOC 's legal obligation to conside r relevant factors other 
than substantial dependence.  
14. The United States throughout these proceedings has mostly been asserting the relevance of "prior 
stage product" for pass -through compliance without providing any explanation. At times, the 
United S tates asserted that the "prior stage product" would be relevant for "a more accurate 
substantial dependence analysis which would result in a more accurate pass -through", or has 
asserted that the factors relevant for "prior stage product" would be relevant for the "ripe olives 
market" or would be relevant for the "overall market of ripe olives and raw olives" or would be 
relevant for "attribution" or "pass -through". In none of its assertions did the United States explain 
how the factors that are relevant for  the USDOC 's factual substitutability analysis concerning the 
"prior stage product" could be relevant for the USDOC 's consideration of additional factors for 
determining the existence and degree of pass -through which is an entirely different analysis. WT/DS577/ RW/Add.1  
 
- 23 - 
 
  Nowh ere did the United States rebut the detailed EU arguments as to the irrelevance of the "prior 
stage product" for pass -through. This suffices on its own to establish U.S. non -compliance.  
15. Importantly, the United States in none of its submissions referre d to any analysis by the USDOC 
in the Section 129 determination as to why and how the factors relevant for the "prior stage 
product" would also be relevant as additional considerations for pass -through. The United States 
repeatedly provided ex post  asserti ons to the effect that the factors relevant for the "prior stage 
product" "may speak to" pass -through or would be "relevant" for pass -through. However, 
compliance in the present case requires the consideration of additional relevant factors specifically 
for pass -through by the USDOC. This U.S. acknowledgment that the USDOC failed to consider the 
relevant factors specifically  in the context of pass -through in combination with the glaring absence 
of any USDOC analysis of such factors regarding pass -through de monstrates that the USDOC did 
not consider additional factors for pass -through. This suffices to confirm, on its own, U.S. 
non-compliance.  
16. The U.S. ex post  rationalization that the modification of the "prior stage product" would result in 
a more accur ate substantial dependence analysis which in turn would result in a more accurate 
pass-through analysis is factually incorrect. The substantial dependence analysis is a mere "yes 
or no" analysis. Either the condition is met (together with the condition of limited added value) 
and then there is 100% pass -through, or the condition is not met, in which case there is no 
pass-through. The substantial dependence analysis, by its very nature, is therefore irrelevant for 
the degree of pass -through.  
17. The U.S. ex post rationalization that the factors considered by the USDOC for the determination 
of the "prior stage product" also "may speak to" pass -through or attribution are not backed up by 
any substantiation or evidence, let alone by references to the Section 12 9 determination. The 
factors considered for the "prior stage product" are in fact entirely irrelevant for pass -through. 
The USDOC carried out a highly fact -intensive substitutability analysis in the Section 129 
determination and determined to limit the "pr ior stage product" to certain raw olive varietals 
(whereas the "prior stage product" in the original determination had included all ripe olives). The 
USDOC 's analysis was based on factors which speak to the product characteristics of specific raw 
olive var ietals such as e.g. different pruning practices, different watering requirements, or 
different insurance premiums. However, a pass -through analysis is not based on product 
characteristics. A pass -through analysis is a rather complex economic assessment tha t relates, 
inter alia , to elements such as conditions of competition and pricing conditions as also established 
by the Panel in the Panel Report. It does not relate to factors such as a particular pruning practice 
for olive varietal X. And it is certainly not sufficient to merely assert such relevance as the 
United  States did.  
18. The United States ex post  also asserted, without substantiation, that the factors considered for 
the "prior stage product" would speak to the element "nature of the market and all  the conditions 
of competition in that market" which was one of the elements identified by the Panel in the Panel 
Report as relevant for a pass -through analysis. However, the USDOC did not determine any 
"market" in the Section 129 determination, it merely determined the "prior stage product" which 
is a narrower concept than "market". In addition, the USDOC only defined the "prior stage 
product", it did not further analyse it. Lastly and in any event, the USDOC completely failed to 
consider the conditions of  competition in a market which is an integral part of the element that 
the Panel considered as relevant. In other words, out of the four elements that the Panel identified 
as relevant examples for a pass -through analysis, the USDOC did not consider a singl e one in its 
Section 129 determination.  
19. The fact that the modification of the "prior stage product" is irrelevant for pass -through is also 
evidenced by the fact that the USDOC re -applied the same presumption under Section 771B that 
had been found to be inconsistent by the Panel in the original p roceedings as evidenced in 
particular on pages 11 (Section 771B " directs " the USDOC to deem) and on 18 ("the two prongs 
of Section 771B are met, therefore  there is pass -through"). Evidently therefore, the modification 
of "prior stage product" had no bearin g on the pass -through analysis in the Section 129 
determination.  
20. Importantly, the United States in its Responses to the Questions of the Panel explicitly 
acknowledged that the "prior stage product" is irrelevant for the determination of direct benefit 
and hence also for indirect benefit .  WT/DS577/ RW/Add.1  
 
- 24 - 
 
  21. Since the alleged "revised interpretation" of "prior stage product" is the only U.S. measure taken 
to comply, its demonstrated irrelevance for a consistent pass -through analysis suffices, on its 
own, to establish U .S. non -compliance.  
IV. THE USDOC'S ALLEGED "REVISED INTERPRETATION " CANNOT CONSTITUTE COMPLIANCE IN THE PRESENT 
CASE 
1. The Panel 's "as such" finding excludes "interpretation" of Section 771B as means of 
U.S. compliance  
22. Previous panel reports that addressed compliance options other than formal amendments of 
inconsistent legal provisions emphasized that "compliance must entail a change relevant to the 
measure that was found to be inconsistent in the original proceedings ." In the present case, the 
Panel in the Panel Report explicitly found that Section 771B " requires " the USDOC to act 
inconsistently. It found that the "as such" inc onsistency follows "from the operation of the law 
itself". The Panel therefore did not only find that the discretion of the USDOC under Section 771B 
was "materially restricted." The Panel found that its discretion was "excluded" and no consistent 
interpret ation was possible. In such a scenario, the relevant measure to be changed cannot be 
the interpretation  of Section 771B. This is because, according to the very findings of the adopted 
Panel Report in this case, there exists no possible interpretation  of Section 771B that could allow 
the USDOC to act consistently under its terms. That is, in fact, the very essence of an "as such" 
finding that "requires" inconsistent administrative action like in the present case. The "as such" 
finding by the Panel concerning  Section 771B therefore, by its very nature, is not a finding that 
can be remedied through a mere "interpretation" of Section 771B by the USDOC since the 
"relevant measure" to be changed in this case is not the "interpretation" or "application" of 
Section  771B by the USDOC. The relevant measure is the very text of Section 771B . 
23. Therefore, even if there is no formal textual amendment of Section 771B, any measure taken to 
comply by the United States must ensure that the relevant measure, i.e. the law (the  text of 
Section 771B), no longer stands in the way of the USDOC acting in a consistent manner. The 
United States must "modify the legislative authority" of Section 771B in some form. How the 
United States could achieve such a "change" of legislative autho rity of Section 771B without 
modifying the actual text of Section 771B is very difficult to imagine in the circumstances of an 
"as such" finding that "requires" inconsistent action.  
24. It is undisputed that the alleged "revised interpretation" of Section  771B constitutes the only 
measure taken to comply by the United States for the "as such" and "as applied" findings of 
inconsistency. Since the mere "interpretation" of Section 771B by the USDOC cannot constitute 
compliance for the adopted "as such" findin g according to which Section 771B "requires" the 
USDOC to act inconsistently, the United States failed to comply with the "as such" finding (and, 
consequently, with the "as applied" finding).  
2. The compliance Panel and the United States are bound by the a dopted DSB finding that 
Section 771B cannot be interpreted in a consistent manner  
25. The Panel found in the Panel Report that Section 771B "requires" the USDOC to act inconsistently. 
In other words, the Panel found that there is no room for the USDOC wha tsoever to interpret 
Section 771B in a consistent manner. Both the compliance Panel and the United States are bound 
by this adopted DSB finding and hence, necessarily, the United States cannot based its compliance 
claims on an alleged "interpretation" of S ection 771B.  
26. With respect to the required acceptance of adopted findings by the compliance Panel, the panel 
in US – Carbon Steel (India) (Article 21.5 – India) stated : "Under no circumstance can a 
compliance panel revisit "as such" findings of violati on from the original proceedings that have 
been adopted by the DSB." This means that the compliance Panel cannot revisit the Panel 's finding 
that the USDOC cannot "interpret" Section 771B in a consistent manner.  
27. With respect to the required acceptance of adopted findings by the parties, the Appellate Body 
clarified, for example, in EC – Bed Linen  that "an adopted DSB finding must be accepted by the 
parties." Similarly, the Appellate Body in US – Upland Cotton (Article  21.5 – Brazil)  found that 
"allowing  a party in an Article  21.5 proceeding to re -argue a claim that has been decided in 
adopted reports would provide an unfair 'second chance '." In the original proceedings the WT/DS577/ RW/Add.1  
 
- 25 - 
 
  United  States had accepted that the USDOC has no discretion under Section 771B. Th e 
United  States should have made its argument in the original proceedings, it cannot argue in the 
compliance proceedings that the USDOC may "interpret" Section 771B in a consistent manner.  
28. In the circumstances of the present case, the adopted DSB find ings therefore exclude 
"interpretation" as a means of U.S. compliance.  
3. Previous reports establish that the mere "interpretation" of Section 771B cannot 
constitute "as such" compliance and hence cannot constitute "as applied" compliance 
either in the pr esent case  
29. The panel report in US – Carbon Steel (India) (Article 21.5 – India)  confirms that the mere "revised 
interpretation" of Section 771B by the USDOC cannot constitute compliance for the "as such" 
finding in this case. The panel recalled that Ar ticle 3.7 of the DSU expresses a clear preference 
for the "withdrawal" of the measure and made clear that any other measure taken to comply 
would need to have an " equivalent effect ". Withdrawal in the present case would be a repeal or a 
formal amendment of  Section 771B which would have binding effect also for the future. This is 
important because the Appellate Body clarified that the nature of "as such" compliance requires 
that the root of the inconsistent behaviour is eliminated in order to prevent future trade disputes, 
avoid multiple litigation and to ensure the predictability and security of future trade in line with 
Article 3.2 of the DSU. The "re -interpretation" of Section 771B would not be a measure with 
"equivalent effect" because the USDOC 's "interp retation" of Section 771B would not be binding 
for the future. Hence it would not ensure the predictability and security of future trade in a manner 
equivalent to a formal amendment of Section 771B. The non -binding nature of the USDOC 's 
"interpretation" fo llows from the USDOC 's nature as administrative body: The USDOC can neither 
enact laws (only U.S. Congress can), nor can it decide what the law says (only U.S. Courts can). 
The non -binding nature of the USDOC 's alleged "interpretation" was also expressly c onfirmed by 
the United States in these proceedings.  
30. The United States expressly  acknowledged that the USDOC 's alleged "interpretation" would not 
be binding for the future. The "interpretation" would merely constitute "useful guidance" for future 
investigations that would be "considered" by the USDOC.  
31. The United States further acknowledged that under U.S. law an "interpretation" by the USDOC 
does not govern , i.e. does not have any legal relevance, if such interpretation contradicts the 
unambiguous language of the relevant legal provision. This would be the case if the USDOC would 
interpret Section 771B to the effect that the USDOC may consider other relevant  factors for 
pass-through ( quod non ) since the unambiguous wording of Section 771B does not allow for the 
consideration of factors other than substantial dependence and limited added value ("shall be 
deemed") – as also established by the Panel. In other wo rds, compliance through consistent 
interpretation would be legally impossible under U.S. law in the present case even according to 
the United States.  
32. The United States also acknowledged that the USDOC  would be "allowed" or would have 
"discretion" to consider additional factors but it would not be obliged to do so. This confirms that 
the USDOC is not bound by its alleged "interpretation".  
33. The non -binding nature of a USDOC interpretation is further c onfirmed by the alleged 
"re-interpretation" of the terms "prior stage product" in the Section 129 determination (assuming 
it were an interpretation). If the USDOC could "re -interpret" Section 771B in the Section 129 
determination, nothing would stop it fro m doing so in a future determination.  
34. The non -binding nature of the USDOC 's "interpretation" means that it is not a measure with an 
effect that is "equivalent" to a formal amendment or repeal.  
35. For the same reason, the mere "interpretation" by the U SDOC would not "modify the legislative 
authority of Section 771B"  as required by the panel in US – Carbon Steel (India) (Article 21.5 – 
India)  for "as such" compliance. The USDOC as an administrative authority is unable to modify 
the legislative authority of Section 771B. Only U.S. Congress or U.S Courts can do so. The 
USDOC 's non -binding "re -interpretation" does not modify the legislative authority of Section 771B.  WT/DS577/ RW/Add.1  
 
- 26 - 
 
  36. The panel in US – Carbon Steel (India) (Article 21.5 – India)  also made clear that the mere change 
in application of a legal provision cannot constitute "as such" compliance . However, the USDOC 's 
"re-interpretation" of Section 771B would only constitute a mere change in application.  
37. If the mere "interpretation" of Section 771B would be sufficient in the present case for "as such" 
compliance, it would mean that the measure for "as applied" compliance would also achieve "as 
such" compliance. This in turn would mean that the Panel 's "as such" finding of inconsistency 
would not have any lega l relevance and would be deprived of any meaning. Also the 
European  Union would be deprived of the legal relevance and practical effects of the Panel 's "as 
such" finding.  
38. A previous panel found in US – Section 129(c)(1) URAA  that a Section 129 determin ation cannot 
constitute compliance for an "as such" finding as a matter of principle because it cannot modify 
statutes such as Section 771B. The Section 129 determination in the present case therefore 
cannot constitute "as such" compliance.  
39. The third p arties in this dispute  supported the EU 's position that the USDOC 's "interpretation" of 
Section 771B cannot constitute "as such" compliance.  
V. THE UNITED STATES ' ARGUMENTS ARE WITHOUT MERIT 
40. During the proceedings the United States invoked on several occasions the alleged failure by 
interested parties to provide facts or arguments concerning alternative attribution methods. As a 
result, the United States contends that the USDOC 's pass -through analysis was "appropriate" 
based on the "facts on the record ". This argument is circular, self -serving and without any merit 
for a number of reasons.  
41. First, the USDOC had made sure that the Section 129 record would not contain any information 
that could be relevant for pass -through beyond the two conditions in  Section 771B on which 
interested parties could comment. Contrary to the WTO -inconsistencies regarding specificity and 
calculation error for which the USDOC sent out questionnaires, the USDOC did not carry out any 
investigative measures concerning pass -through. It merely "placed certain relevant documents" 
from the CVD investigation onto the Section 129 record. Since the USDOC had applied the 
inconsistent presumption in the CVD investigation, there could not be any relevant information on 
the record of the CVD investigation concerning pass -through compliance.  
42. Second, the USDOC only permitted comments by interested parties in a very narrowly defined 
manner, namely on the "analysis and issues discussed in the preliminary determination". Since 
the USDOC ap plied the inconsistent pass -through presumption under Section 771B in the 
preliminary determination and did not discuss or analyse any other attribution method, the 
interested parties had no opportunity to comment on alternative methodologies.  
43. Third, t he interested parties strongly opposed the re -application of the presumption under 
Section  771B in their comments. The USDOC simply disregarded those objections.  
44. At the very last stage of the proceedings (in its Responses to the Questions of the Panel) , the 
United States for the very first time argued that the USDOC was able to consider additional factors 
for pass -through because it interpreted the term "deemed" in the Section 129 determination. In 
none of its previous submissions the United States had relied on the "interpretation" of "deemed", 
it had only invoked the alleged "interpretation" of the "prior stage product". This novel 
U.S. argument (and related evidence) was presented too late in these compliance proceedings 
under the Panel 's Working Procedures and under due process considerations.  
45. In any event, the U.S. argument is plainly without merit. The United States expressly decided not 
to challenge the lack of the USDOC 's discretion embodied in the terms "shall be deemed" in the 
original proceedings. It is therefore precluded  from doing so in the compliance proceedings. In 
addition, it is not the term "deemed" in isolation that prevents the USDOC from considering 
relevant factors for pass -through, it is the terms "shall be deemed" i n combination which "direct" 
the USDOC to base its 100% presumption on the two conditions in Section 771B. Lastly, there is 
no "interpretation" of "deemed" in the Section 129 determination. In the very next paragraph 
following the alleged "interpretation" of the term "deemed" by the USDOC (to the effect that the WT/DS577/ RW/Add.1  
 
- 27 - 
 
  USDOC may consider additional factors), the USDOC quotes Section 771B and states that 
"because the two prongs are fulfilled, therefore  there is 100% pass -through." The USDOC thereby 
acknowledges tha t it has no discretion and that no "re -interpretation" of Section 771B exists.  
 WT/DS577/ RW/Add.1  
 
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  ANNEX  B-2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
I. EXECUTIVE SUMMARY OF THE U.S.  FIRST WRITTEN SUBMISSION  
1. The original panel report also found that Section 771B of the Tariff Act of 1930, as amended 
("Section  771B"), is "as such" inco nsistent with Article  VI:3 of the General Agreement on Tariffs and 
Trade 1994  ("GATT 1994") and Article  10 of the Agreement on Subsidies and Countervailing 
Measures  ("SCM  Agreement"). Specifically, the original panel found that Section 771B requires the 
USDOC to presume the entire benefit of a subsidy provided with respect to a raw agricultural input 
product passes through to the downstream processed agricultural product, based on a consideration 
of only two factors. The panel report found that Section 771B  did not permit the United States 
Department of Commerce ("USDOC") to take into account other factors that may be relevant to 
determining whether there is any pass -through and, if so, its degree.  
2. Because of this "as such" inconsistency, the original pan el report also found the USDOC's final 
determination in the investigation was "as applied" necessarily inconsistent with Article  VI:3 of the 
GATT  1994 and Article  10 of the SCM Agreement. The panel considered that because the USDOC 
had applied Section 771B  in a way that presumed (on the basis of only two factors) that the entire 
benefit of the subsidy to producers of raw olives was attributable to downstream processed olives, 
the findings were "as applied" inconsistent. The panel also concluded that this ap plication did not 
take into account all facts and circumstances relevant to the attribution analysis.  
3. To bring the challenged U.S. measures into conformity with WTO rules and address the "as 
such" findings, the USDOC re -evaluated the meaning of certain ambiguous provisions of Section 
771B that had rarely been applied at the time of the original panel proceeding. The USDOC 
determined that, as a matter of U.S. law, the USDOC is able to exercise its discretion to consider all 
case-specific and relevant info rmation on the record of the proceeding when making its 
determination of whether, and to what extent, to attribute subsidies granted to an upstream raw 
agricultural product to the downstream minimally processed agricultural product.  
4. The USDOC in fact th en exercised this discretion in this case in the proceeding it conducted 
under Section 129 of the Uruguay Round Agreements Act ("URAA"). The USDOC provided a detailed 
and reasoned attribution analysis of benefits of the subsidies at issue in this case in i ts preliminary 
and final determinations under Section 129 of the URAA. The USDOC in its Section 129 proceeding 
properly reviewed the evidence on the record before it and considered the facts, evidence, and 
arguments submitted by interested parties.  The USD OC thereby properly addressed the "as applied" 
findings of the panel.  
5. In its first written submission, the European Union ("EU") erroneously argues that the United 
States has failed to implement the recommendations adopted by the DSB in this dispute be cause it 
"did nothing to address the 'as such' inconsistency" . The EU also mistakenly argues that there only 
a few options available for the United States to implement the DSB recommendation to bring Section 
771B into conformity with WTO rules – that the t ext of Section 771B must have been either 
amended, repealed, not applied, or otherwise changed in some way. However, there is no basis in 
the DSU for this argument; nothing in the DSU text requires a specific type of action to bring a 
measure into conformi ty with WTO rules.  
6. The EU also challenges the USDOC's application of Section 771B in the Section 129 proceeding, 
arguing that any application of the statute must also be inconsistent. However, the EU's "as applied" 
arguments fail for the same reasons a s the "as such" arguments fail. Further, the EU's arguments 
disregard the specific findings of the original panel itself.  
7. As purported evidence of the non -compliance of the United States, the EU focuses on selective 
statements from the USDOC in its Fin al Section 129 Determination, but ignores the greater context: 
the USDOC commenced the Section 129 proceeding to gather information, analyzed record evidence, 
reexamined Section 771B and revised its understanding of that provision, and made those WT/DS577/ RW/Add.1  
 
- 29 - 
 
  determina tions as necessary to bring the measures at issue in the original dispute into conformity 
with WTO rules.  
8. Finally, the EU argues that the USDOC took into consideration factors that are not relevant to 
the underlying proceedings and that it addressed iss ues that were not addressed by the underlying 
panel report. In fact, the USDOC evaluated all relevant factual information available as well as the 
unique circumstances of the ripe olives from Spain investigation in the Section 129 proceeding to 
determine t he appropriate manner to attribute the subsidies. The EU again ignores the fact that the 
panel in the underlying WTO proceedings did not find the United States was required to take specific 
types of factors into account when conducting its attribution anal ysis.  
9. The record shows that the United States has implemented the DSB recommendations and 
brought its measure, Section 771B, into conformity with the GATT 1994 and the SCM Agreement. 
The Panel, therefore, should reject the EU's claims of non -compliance . 
A. The United States has taken appropriate measures to implement the "as 
such" findings of the panel through the USDOC's revised analysis of the 
meaning of Section 771B in its Section 129 proceeding  
10. Contrary to the EU's argument, the United States ha s taken very specific measures to address 
the findings of the panel. The USDOC reexamined the applicability and interpretation of Section 771B 
in light of the original panel's findings, and came to an understanding that consistent implementation 
is permiss ible under the terms of Section 771B. Specifically, the USDOC determined that Section 
771B may be reasonably interpreted as allowing the USDOC to "consider all case -specific and 
relevant record information" and to "determine the appropriate manner to attri bute the subsidies to 
the manufacture, production, or exportation of the processed product" . On that basis, the USDOC 
then carried out an evaluation of the attribution of upstream subsidies to address the core issue of 
the need to "provide an analytical ba sis" for its findings, and to address the statute's apparent 
presumption of a benefit to the downstream processors to consider relevant information beyond that 
related to the factors specifically enumerated in the two provisions of Section 771B.  
11. In the  Section 129 Preliminary and Final determinations, the USDOC explains in detail how it 
reexamined and revised its understanding of Section 771B and then properly applied Section 771B 
in response to the findings of the panel in the underlying WTO proceeding .  
12. As noted in the Section 129 Preliminary and Final Determinations, implementing the DSB 
recommendations in light of the original panel's findings did not require an amendment to the 
statute.  
13. First, the USDOC reconsidered the meaning of the terms  "raw agricultural product" and "prior 
stage product" as used in Section 771B. In narrowing these definitions, the USDOC considered 
significant record information to determine whether, and how, benefits received by the olive growers 
could be attributed to the olive processors.  
14. In addition, the USDOC relied on information from various other sources, including Spain's 
Ministry of Agriculture, the AICA, Interaceituna, and the International Olive Council. The USDOC also 
found that it has discretion to dete rmine the appropriate manner to attribute the subsidies to the 
manufacture, production, or exportation of the processed product. And the USDOC's revised 
understanding is further demonstrated through its application of the statute in the revised Section 
129 determinations, which take into account additional unique aspects of the table olives market.  
B. The EU's Arguments That the United States Must Repeal, Amend, Or 
Otherwise Change the Text Or Applicability of Section 771B to Implement 
the Recommendations of the DSB Lack Merit  
15. The EU erroneously argues that the only way for the United States to implement the 
recommendations of the DSB  would be to amend, repeal, stop applying, or otherwise materially 
change the text of Section 771B. The EU attaches undue significance to Article  3.7 of the DSU, which 
expresses a preference for the "withdrawal" of a WTO -inconsistent measure. However, Arti cle 3.7 
does not define "withdrawal", which itself reflects that a range of actions may be appropriate. And 
such a preference does not negate a Member's right to determine what type of compliance measure WT/DS577/ RW/Add.1  
 
- 30 - 
 
  best addressed the DSB recommendations, nor does it imply that a measure "remains" inconsistent 
if a Member determines that another approach brings its measures into compliance. Multiple panels 
have recognized that the DSU text affords Members discretion in determining how to bring a measure 
that has been f ound to be inconsistent into conformity with a covered agreement, including the 
original panel in the underlying WTO proceedings.  
16. In its submission, the EU also alleges that, "under no circumstance can a compliance panel 
revisit 'as such' findings of v iolation from the original proceedings that have been adopted by the 
DSB". But whatever the merit generally, that assertion has no relevance to this compliance 
proceeding, because here, the USDOC's redetermination reflects an interpretation and application  
of Section 771B that brings that law into compliance with the WTO covered agreements.  
17. In these proceedings, the United States is not asking the compliance panel to revisit or 
disagree with the original panel's "as such" findings, based on the record i n the underlying 
proceedings. Instead, the compliance panel must evaluate whether the USDOC's revised  
understanding and application of Section  771B, in the context of the Section 129 determinations, 
adequately addresses the DSB's recommendations.  
18. The U SDOC's understanding of Section 771B is that it may take "all potentially relevant data 
and information that is on the record" into account. With that revised understanding and approach,  
the measure does not require WTO -inconsistent action or preclude WTO -consistent action. W here a 
Member country may apply a measure in a WTO -consistent manner, there is no basis to find that 
the Member has, through that measure, already  breached its WTO obligations because of the 
potential for a future  WTO-inconsistent application. Instead, it would only be if the Member chooses 
to act in a WTO -inconsistent manner in a particular circumstance that WTO -inconsistent action would 
be taken and in which a WTO breach would arise.  Any breach in the latter case would stem from the 
Member's decision  in that specific case on how to apply the underlying measure, not from the 
underlying measure itself.  
19. The USDOC observed that the legislative history of Section 129 indicates that "any d ispute 
settlement findings that a U.S. statute is inconsistent with an agreement … cannot be implemented 
except by legislation approved by Congress unless consistent implementation is permissible under 
the terms of the statute ". Section 129 thus permits th e USDOC to implement DSB recommendations 
relating to a statute if the USDOC determines that implementation is permissible under the text of 
the statute.  
20. The USDOC's revised understanding of Section 771B is supported by the guiding principle that 
applies in all USDOC proceedings to consider all relevant data and information on the record of the 
proceeding. This principle is consistent with the findings of the original panel, which also considered 
that an investigating authority is required to examine al l potentially relevant data when conducting 
its subsidies benefit calculation.  
C. The United States appropriately implemented the "as applied" 
recommendations of the DSB by considering information related to 
additional factors when conducting the Section 129 determinations.  
21. The USDOC's analysis of attribution of benefit is not based on an interpretation of 
Section  771B that presumes a benefit. Rather, USDOC correctly considered additional factors or 
considerations beyond the two  specifically enumerate d in Section 771B. The original panel provided 
limited analysis as to why the USDOC's original benefit determination was "as applied" inconsistent 
with Article  VI:3 of the GATT 1994 and Article  10 of the SCM Agreement. The panel noted simply 
that the deter mination was inconsistent "for the same reasons that Section 771B is inconsistent 'as 
such.'" It follows that the inconsistency "as applied" may be remedied by the same types of measures 
that remedied the inconsistency "as such" .  
22. In this case, the USD OC interpreted the text of Section 771B in a way that is fully compliant 
with the requirements of the GATT 1994 and the SCM Agreement. Accordingly, the USDOC then 
applied the text of Section 771B in a way that is fully compliant with the requirements of th e 
GATT  1994 and the SCM  Agreement.  WT/DS577/ RW/Add.1  
 
- 31 - 
 
  D. The EU's argument that the USDOC's revised analysis focuses only on the 
definition of "prior stage product" and the exclusion of benefit from crops 
other than raw olives is erroneous.  
23. The EU erroneously argues th at the USDOC's revised analysis focuses only on the definition 
of "prior stage product" and the exclusion of benefit from crops other than raw olives. This argument 
clearly fails in light of the USDOC's extensive and thorough examination of the evidence, i ts 
engagement with the interested parties' arguments and its well -reasoned conclusions. It is clear the 
USDOC reached a determination that an unbiased and objective investigating authority could have 
reached in light of the totality of the facts and record  information analyzed as part of its revised 
attribution analysis.  
24. The USDOC took into consideration several additional facts and record information in addition 
to information related to the two prongs of the statute when making its revised determinati on and 
conducting its calculation of benefits analysis. This information was directly relevant to the question 
of whether a subsidy benefit received by the olive growers may be attributed to the olive processors, 
and to the question of how much  of the subs idy benefit may be attributed to the olive processors.  
25. The United States notes that, in implementing the DSB recommendations based on the 
findings of the panel under Section 129, the U.S. analysis is not limited by the arguments raised by 
the EU befor e the panel. The United States is also not limited to applying factors other than those 
that may have been specifically described by the panel. However, in the Section 129 proceeding and 
determinations the USDOC did specifically address the arguments raise d by the EU and other 
interested parties in the Section 129 determinations, since the facts and information it took into 
account address unique aspects of the Spanish olives market.  
26. Ultimately, the USDOC's calculation methodology was guided by the fac ts and evidence 
available on the record of the Section 129 proceeding, as well as arguments presented by interested 
parties. Importantly, no interested party that participated in the Section 129 proceeding presented 
an alternative calculation methodology, nor facts, evidence, or arguments to support that a different 
amount should be attributed under the facts of this case.  
II. EXECUTIVE SUMMARY OF THE U.S.  SECOND WRITTEN SUBMISSION  
27. The issue before the Panel in these Article  21.5 proceedings is a narro w one – whether the 
United  States took appropriate measures to comply with the recommendations of the DSB to address 
the "as such" and "as applied" findings related to Section 771B. In both its written submissions, the 
EU has repeatedly tried, and failed, to establish that the measures taken by the USDOC were 
insufficient to address the recommendations of the DSB.  
28. The Panel's task here is to examine whether the conclusions reached by the USDOC were ones 
that any unbiased and objective authority could h ave made, in the light of the evidence on the 
record. This analysis should include an examination of the information discussed by the authority in 
its published report. Thus, the Panel here must evaluate whether the USDOC's revised analysis and 
reasoned ap plication of Section 771B in the Section 129 determinations constitute "measures taken 
to comply" that sufficiently address the recommendations of the DSB. This analysis should carefully 
consider all information available on the record, including the USDOC 's reasoning and explanation 
behind its findings.  
29. The United States has implemented the DSB recommendations and brought the inconsistent 
measure into conformity with Article  VI:3 of the GATT 1994 and Article  10 of the SCM Agreement. 
Therefore, the Unit ed States reiterates its assertion that the Panel should reject the EU's claims of 
non-compliance.  
A. The EU's claims that the United States has failed to take appropriate 
measures to implement the DSB's findings are meritless  
30. In conducting the Sectio n 129 proceeding and explaining the reasoning behind the USDOC's 
revised interpretation of Section 771B and revised benefits calculation methodology, the United 
States implemented the recommendations and rulings of the DSB. It is a matter of U.S. law that 
agencies have a level of discretion in interpreting ambiguous statutory language. In revisiting the WT/DS577/ RW/Add.1  
 
- 32 - 
 
  meaning of Section 771B, and providing a revised interpretation of certain undefined statutory terms 
such as "prior stage product" and "raw agricultural pro duct", the USDOC  was able to conduct a more 
specific substantial dependence analysis, thus enabling it to more accurately calculate whether the 
demand for the upstream product (raw olives) is substantially dependent on the demand for the 
downstream processed product (tabl e olives). This, in turn, resulted in a more accurate evaluation 
of whether the subsidy benefits afforded to raw olives may be attributed to table olives.  
31. As the USDOC noted in the Section 129 final determination, "any dispute settlement findings 
that a U.S. statute is inconsistent with an agreement also cannot be implemented except by 
legislation approved by Congress unless consistent implementation is permissible under the terms 
of the statute ". The USDOC determined that consistent implementation is permissible under the 
current terms of Section 771B – thus, the Section 129 determinations are an appropriate compliance 
measure.  
i. The United States addressed the Panel's "as such" findings in a 
WTO -consistent manner  
32. Neither the Panel nor the broader rules of the DSU require a specific methodology to 
implement the rulings and recommendations of the DSB. Thus, Members are able to exercise their 
discretion in choosing the appropriate way to implement the recommendations of the DSB as the 
United States has done here. A statute need not preclude WTO -inconsistent action to be considered 
consistent with a Member's WTO  obligations. Consistent with the original Panel's findings, a measure 
must necessarily lead to WTO -inconsiste nt action to breach a Member's WTO obligations. Here, the 
USDOC interpreted and applied the U.S. statute in a manner consistent with U.S. WTO obligations. 
In this way, the USDOC rendered the U.S. statute consistent with the recommendations of the DSB, 
and no further action is needed.  
ii. The United States conducted a proceeding that is consistent with 
WTO rules, thereby implementing the Panel's "as applied" findings  
33. The USDOC's analysis in the Section 129 proceeding was consistent "as applied" because t he 
determination was made based on an interpretation of the meaning of Section 771B that is consistent 
with the WTO obligations of the United States. The facts the USDOC considered related to the 
definition of the prior stage product are relevant to the qu estion of whether  and how much  of the 
BPS subsidy payment may be allocated to olives specifically, but these facts are also relevant to the 
question of benefits to the processed product because they speak to the overall nature of the table 
olives market. A n objective and reasoned analysis under Section 771B would include an analysis of 
the facts and circumstances that are relevant to the nature of the input product.  
34. Additionally, it is important to re -emphasize that, although the Panel provided examples  of 
possible factors that would be relevant to the question before us, the Panel was also clear that there 
is no specific or prescribed methodology that must be followed to perform a pass -through analysis 
where one is required. Previous WTO panels have lik ewise not prescribed a particular calculation 
methodology, focusing instead on the importance of analyzing the extent  that a subsidy bestowed 
on the producer of an input product flows down to processed products. The USDOC used a holistic 
approach when cond ucting its analysis. The factors considered by the USDOC that support the 
analysis of benefits to the input product also speak to the attribution of benefits to the processed 
product . Thus, the Panel should reject the EU's arguments.  
B. The USDOC objectiv ely considered additional information and record 
evidence relevant to the issue of benefit to the processed product in 
conducting the Section  129 proceeding  
35. The USDOC's reasoning in the Section 129 proceeding clearly explains how the information on 
the record speaks to the attribution of benefit to the processed product. In providing examples of 
factors that could be considered when conducting a WTO -consistent analysis, the Panel focused on 
factors that speak to the whole nature of the olives market. Th e factors considered by the USDOC 
are all factors related to the nature of the specific market for the input product at issue and all of 
the conditions of competition in that market, and thus of the kind endorsed by the Panel.  WT/DS577/ RW/Add.1  
 
- 33 - 
 
  36. Implicit in the EU's arg uments seems to be the idea that a valid analysis will necessarily result 
in less than 100% of attribution of benefits from the input product to the processed agricultural 
product – and therefore that 100% of attribution of benefits is necessarily WTO -inconsistent. 
However, this would not be an accurate interpretation of the provisions of the text of Article  VI:3 of 
the GATT 1994 and Article  10 of the SCM  Agreement. The record does not support an alternative 
level of attribution, nor have the parties identified any such information on the record of the 
proceeding. Dissatisfaction with the results of such a valid attribution analysis is not a sufficient or 
compelling enough argument for finding that the analysis in this case is WTO -inconsistent, or for 
withdrawing the resulting countervailing duty order.  
III. EXECUTIVE SUMMARY OF THE U.S.  OPENING STATEMENT AT THE SUBSTANTIVE MEETING OF THE 
PARTIES  
37. The E U's principal argument is that the United States has done nothing to bring Section 771B 
into compliance with Article  VI:3 of the GATT 1994 and Article  10 of the SCM Agreement. This is 
clearly not the case. The USDOC revisited its interpretation of Section 771B, keeping in mind the 
original Panel's findings, and reached a new determination on the basis of its revised interpretation. 
The USDOC's new determination is a permissible interpretation of Section 771B under U.S. law and 
further permits U.S. law to be  understood in a WTO -consistent manner. Thus, the compliance Panel 
should consider the measure to be consistent with U.S. WTO commitments.  
38. Further, implicit in the EU's arguments is the idea that the United States must necessarily 
amend, repeal, or re frain from applying Section 771B in order to implement the recommendation of 
the DSB. However, there is no requirement that a Member implement the recommendations of the 
DSB in any one particular way, and the EU concedes that compliance need not always inc lude a 
formal amendment of the legal provision at issue.  
39. The EU also claims that, to bring a measure into conformity with the WTO Agreements, a 
Member must "ensure that this legal provision is interpreted in a WTO -consistent manner also in the 
future" . The EU seems to expect a level of complete certainty and consistency in the USDOC's 
application of Section 771B that neither aligns with the original Panel's findings nor is supported in 
the WTO Agreements. Nothing in the DSU, nor the WTO Agreements gene rally, requires that a 
measure expressly prohibit  WTO-inconsistent  action. Instead, a Member needs to ensure that its 
measure does not preclude  WTO-consistent  action.  
40. Because the original Panel noted that Section 771B was inconsistent "as applied" for the same 
reasons as it was found to be inconsistent "as such" , it is logical that the "as applied" inconsistences 
may be remedied by the same type of measure that remedied the inconsistency "as such" . Thus, 
the USDOC's interpretation of Section 771B in a W TO-consistent manner in the Section 129 
proceeding resulted in a WTO -consistent application of Section 771B as applied to the facts of the 
new determination.  
41. The original Panel's findings focused on the fact that a consistent analysis would depend on 
an examination of all potentially relevant facts and circumstances, including those that speak to the 
nature of the specific market for the input product at issue and all the conditions of competition on 
that market. As demonstrated throughout the United S tates' written submissions, the USDOC 
correctly evaluated additional facts and considerations beyond the two factors specifically 
enumerated in Section 771B to conduct its attribution of benefits analysis. The USDOC reached a 
determination that an unbiased  and objective investigating authority could have reached in light of 
the totality of the facts and record information.  
42. As we have demonstrated, the EU's claims that Section 771B, the Section 129 determinations, 
and the countervailing duty order remain  inconsistent with Article  VI:3 of the GATT 1994 and 
Article  10 of the SCM Agreement are without merit. The United States respectfully requests that the 
Panel reject them.  WT/DS577/ RW/Add.1  
 
- 34 - 
 
  IV. EXECUTIVE SUMMARY OF THE U.S.  NOVEMBER 14 RESPONSES TO THE PANEL'S QUESTIONS  
Summary of U.S. Responses to Panel Questions 1 -2 
43. It would be legal error for the Panel to conclude that there has been a failure to comply with 
the DSB's recommendation with respect to the "as such" findings solely on the grounds the statutory 
language  of Section 771B has not been changed. A legislative measure can be brought into 
conformity through various methods, and multiple panels have recognized that the DSU text affords 
Members discretion in determining how to bring a measure into conformity with  a covered 
agreement.  
44. In arguing that the U.S. approach in the Section 129 proceedings was a "one time 
interpretation" and a "further developed understanding of Section 771B" that applies only "in this 
case" , the EU concedes the core of the U.S. argume nt: that the United States was capable, as a 
matter of domestic law, of revising its understanding of Section 771B and giving effect to that 
statutory interpretation. The preliminary and final determinations of the Section 129 proceeding are 
administrative  determinations by the USDOC. Prior determinations are relevant and instructive on 
how the USDOC would consider evaluating and applying Section 771B in future proceedings. The 
USDOC would not depart from prior interpretations or determinations unless there  were a reasonable 
justification to do so.  
45. Although the EU appears to want a list of specific factors that will always be considered in 
every case, and continues to look for a specific formula in how the USDOC explains its analysis and 
consideration o f those factors, such a rigid approach is not required by or contemplated under the 
text of Article  VI:3 of the GATT 1994 or Article  10 of the SCM Agreement, and the original panel did 
not suggest this in its findings.  
46. The text of the statute has not changed, but the U.S. understanding has. The Panel should, 
as a matter of fact, understand the statute as now interpreted by the USDOC because that 
interpretation has legal effect – and is the measure taken to comply.  
Summary of U.S. Responses to Panel Qu estions 4 -6 
47. The U.S. agrees that the original panel's findings are that Section 771B creates a presumption 
based "only" on consideration of two factual circumstances and does not "leav[e] open the possibility 
of taking into account any other factors". It is incorrect that the United States is "legally precluded" 
from re -interpreting its own law in domestic proceedings relating to this dispute. The EU is 
improperly characterizing this as a situation where the United States is presenting new arguments 
in a WTO compliance dispute without having taken any action under U.S. municipal law to implement 
the recommendations of the DSB. That is not the case here, where the United States did take actions 
under U.S. law to bring its measures into conformity with the  GATT 1994 and the SCM Agreement.  
48. The original panel's report does not suggest particular ways in which the United States could 
implement the recommendation in the report with respect to the "as such" findings. The DSU 
mandates a panel to make a speci fic recommendation in case of a finding of breach — to bring the 
measure into conformity with the covered agreements. Previous panels have agreed that Members 
have the right to determine which measures would implement the recommendation of the DSB. The 
factors highlighted by the original panel are also not directly relevant to the question of the manner 
of implementation of the "as such" findings, and speak more to the possible ways to address the "as 
applied" findings.  
Summary of U.S. Responses to Panel Qu estion 9  
49. As explained in the Section 129 determination, the USDOC considered the totality of the 
information on the record and additional information beyond the two factors in section 771B. Based 
on these facts, the USDOC determined the attribution of benefit provided by the BPS program to the 
downstream processed product. The factors the USDOC examined are inherently neutral and the 
USDOC does not work backward from a particular conclusion when conducting its analysis, as the 
EU seems to suggest. Inste ad, the USDOC conducts an objective analysis based on the factors and 
all relevant information on the record.  WT/DS577/ RW/Add.1  
 
- 35 - 
 
  50. The information on the record, including the additional circumstances and factors the USDOC 
considered, did not support an alternative level of attribution of benefits from the olive growers to 
the ripe olive processors. Importantly, neither did the interested parties identify any such 
information  on the record of the proceeding. To the extent the Panel is asking about whether there 
conceivably  could have been different conclusions, the answer would be yes, but it would depend on 
whether there were different facts presented. However, the GATT 1994 and the SCM Agreement do 
not require that an investigating authority engage in alternative attribut ion analyses or hypotheticals 
with different attribution level results for comparison.  
Summary of U.S. Responses to Panel Questions 11 -22 
51. The USDOC did not merely modify "the determination of benefit to the direct recipients, the 
olive growers". The a pplication of Section 771B depends on the facts and circumstances in each 
case, and the USDOC used a holistic approach when conducting its analysis. Thus, the factors it 
considered that support the analysis of benefits speak to the analysis as a whole.  
52. Reconsideration of the prior stage product was relevant to attribution, but did not have 
implications on the calculation of benefit received by raw olive growers. The Section 771B analysis 
is distinct from the benefit calculation. The Section 771B analys is informs whether the USDOC can 
attribute the subsidy to the grower to the processed product. Section 771B does not provide how to 
calculate the benefit. The EU's arguments related to the calculation of benefits imply that an 
investigating authority must necessarily take a qualitative factor and convert it into a quantitative 
coefficient in the calculation. That is not a requirement of Section 771B, nor is it required by the 
GATT 1994 or the SCM Agreement.  
53. The USDOC  acknowledged that its substantial dependence analysis in the Section 129 
proceeding is substantially similar as the one used in its second remand redetermination before the 
United States Court of International Trade ("CIT") (November 2021), and that the C IT sustained 
that analysis as supported by substantial evidence (September 2022). Some of the statutory 
ambiguities were identified before the DSB's adoption of the DS577 Panel Report. The Section 129 
determination is the first time that the USDOC addresse d all the ambiguities of Section 771B together 
and explained how its revised interpretation allows for a Section 129 determination that is not 
inconsistent with the original panel's adverse findings.  
54. The United States does not agree with the propositi on that Section 771B continues to 
"materially restrict any USDOC discretion". USDOC is also not materially restricted from determining 
the extent to which subsidies on input products may have been indirectly bestowed upon the 
processed investigated product s.  
55. When a statute does not define a term or prescribe the manner in which the USDOC must 
effectuate its determination, i.e., is ambiguous, this may be referred to informally as a "gap" in the 
statute. When a statute is ambiguous, general principles of  U.S. domestic law permit the USDOC to 
exercise its authority to interpret the statute.  
56. Given the numerous kinds of agricultural products that could be the subject of a proceeding, 
and the unforeseen facts that may be before the USDOC, we cannot specu late on what circumstances 
could lead to less than 100% of a subsidy provided to a raw agricultural product being attributed to 
a processed product in a countervailing duty investigation; this analysis would depend on the facts 
and information available on  the record and would be determined on a case -by-case basis.  
57. Interested parties had several opportunities to comment on the Section 129 determination 
and place additional information on the record. These were opportunities for interested parties to 
submit evidence or argument about the particular attribution methodology and benefit calculation 
the USDOC used in the preliminary Section 129 determination, including to provide alternative 
methodologies and data in support of such alternatives.  
58. In the original investigation, the USDOC determined that eight percent of raw olives (the prior 
stage product as defined in the investigation) were processed into table olives (the latter stage 
product). The USDOC determined in the original investigation that the  demand for the prior stage 
product was substantially dependent on the demand for the latter stage product for purposes of 
Section 771B(1). In the Section 129 proceeding, the USDOC revised the definition of the prior stage WT/DS577/ RW/Add.1  
 
- 36 - 
 
  product to be certain distinct bi ological varietals of raw olives that the Government of Spain and the 
Spanish olive industry consider to be suitable for table olive production (the revised prior stage 
product). It then determined that 55.28 percent of these varietals were processed into table olives 
(the latter stage product), and thus, that the demand for these varietals was substantially dependent 
on processed table olives.  
59. The prior and latter stage products within the substantial dependence calculation do not 
necessarily define th e benefit attribution calculation. The USDOC did not modify the benefit 
calculation after redefining the prior stage product in the substantial dependence calculation because 
the information reported by growers allowed for a calculation of the benefit attr ibutable to the 
production of subject merchandise and the benefit calculation already used this data. Therefore, the 
countervailing subsidy amount did not change.  
60. The United States does not agree that the modification of the definition of the "prior s tage 
product" speaks only to the question of benefits to the raw agricultural product. The definition is 
also relevant for the analysis of attribution of benefit to the processed product, in that it relates to 
the question of substantial dependence, and is  one part of the holistic analysis the USDOC used in 
the Section 129 proceeding.  
61. The relevant issue is the measure taken to bring Section 771B into conformity with Article  VI:3 
of the GATT 1994 and Article  10 of the SCM Agreement. The fact that the ac tions the United States 
took may also touch on issues of benefit to the raw agricultural product do not negate the fact that 
these actions are also relevant to the question of benefit to the processed product. Instead, this 
simply highlights the holistic n ature of the analysis conducted by the USDOC.  
62. The Section 129 proceeding is conducted like other antidumping and countervailing duty 
proceedings, in which the USDOC may request information from interested parties, issues a 
preliminary determination, a llows for parties to comment and submit written arguments, and issues 
a final determination responding to party comments and arguments. Together, the information and 
facts gathered and evaluated at each of these stages comprises the "record" of the proceed ing. In 
all its administrative proceedings, including under Section 129, the USDOC bases its determinations 
on the facts and information on the record.  
Summary of U.S. Responses to Panel Questions 24 -32 
63. A negative conclusion regarding the application of the law would not implicate the ripe olives 
Section  129 determination as evidence of "as such" compliance. While it is logical that the same 
actions that bring Section 771B into conformity with Article  VI:3 of the GATT 1994 and Article  10 of 
the SCM Agreement "as such" would also bring the measure into conformity "as applied" , the two 
questions should nevertheless be examined separately.  
64. In principle, any agency action, including an interpretation such as the revised interpretation 
of Section 771B in the ripe olives Section 129 proceeding, may be subject to review in U.S. domestic 
court proceedings. However, under U.S. law, the USDOC interpretation of the U.S. countervailing 
duty ("CVD") law is the governing interpretation unless reversed  by a final decision of a U.S. court. 
This supports the conclusion that the USDOC's interpretation has legal effect under U.S. law and 
does not pose any obstacle to complying with U.S. WTO commitments.  
65. Additionally, a review by a U.S. domestic court do es not affect whether the USDOC's 
re-interpretation of Section 771B in the Section 129 determinations suffices to achieve compliance 
regarding the "as such" violation. As a basic principle of U.S. law, U.S. courts generally have the 
ability to review acts and omissions of both the legislative and executive branches of our 
government.  
66. The United States agrees that this compliance Panel should carry out an objective assessment 
pursuant to DSU Article  11 of whether the United States has revised its interp retation of Section 
771B and the content of that re -interpretation. Because these are matters of U.S. domestic 
(municipal) law, they are issues of fact for purposes of this WTO proceeding.   
67. A panel is not required to "accept the reasoning" of any prior  panel as providing any guidance 
or to carry any weight. It should be understood that precedent is not created under the DSU and is WT/DS577/ RW/Add.1  
 
- 37 - 
 
  not part of the WTO dispute settlement system. Only authoritative interpretations adopted by the 
WTO Ministerial Conference must be accepted by Members and adjudicators.  
68. The revised U.S. interpretation of Section 771B evidenced by the Section 129 determination 
demonstrates the U.S. understanding of its CVD law and its capacity in future proceedings to take 
other factors, a nd all relevant information on the record, into account in conducting an attribution 
analysis for downstream processed agricultural products. The United States argued that the factors 
expressly listed in Section 771B would be enough to conduct a WTO -consis tent attribution of benefits 
analysis. The original panel disagreed with this reasoning and, given this finding and the 
recommendation of the DSB, the USDOC has reinterpreted the statute and found that it has 
discretion to take into account additional fact ors, and that it is appropriate to do so .  
V. EXECUTIVE SUMMARY OF THE U.S.  COMMENTS ON EUROPEAN UNION RESPONSES TO THE PANEL'S 
QUESTIONS  
Summary of U.S. Comments on EU Responses to Panel Question 1  
1. The EU's reasoning is flawed for several reasons. Fir st, the original panel was clear that 
Article  VI:3 of the GATT 1994 and Article  10 of the SCM Agreement do not require a particular pass -
through methodology. In fact, the original panel declined to issue findings related to whether a 
particular pass -throug h methodology was required. Instead, the original panel focused on whether 
Section 771B precluded the USDOC  from considering additional relevant facts and circumstances 
when conducting its analysis.  
2. The EU's focus on the manner in which the USDOC conduc ted its investigation reveals the 
weakness in the primary legal arguments the EU relied on in its earlier submissions. The EU further 
suggests that the United States revised its interpretation of Section 771B in the form of an "advisory 
opinion." However, the USDOC's statutory interpretation in the Section 129 proceeding is legally 
operative under U.S. law and therefore not an advisory opinion.  
3. There is no support for the EU's position and the EU is again unable to provide any references 
beyond the cases it has previously cited. The EU also concedes that prior panel reports have not 
taken the position that only a textual amendment of an inconsist ent legal provision can lead to 
compliance for an "as such" finding. A change in the way a measure is interpreted and applied is 
relevant for compliance proceedings, including this one, irrespective of the form of that change. 
There is nothing in the origi nal panel report to suggest that the fact that Section 771B "required" a 
presumption of a finding of pass -through means the USDOC cannot undertake a revised 
interpretation to allow it to consider other relevant factors.  
4. The EU misunderstands the author ity delegated to U.S. administrative agencies with respect 
to the administration and interpretation of laws passed by Congress. The interpretation contained in 
the preliminary and final Section 129 determinations has legal effect; this does not mean that t he 
USDOC is modifying the legislative authority of Section 771B. Rather, this interpretation is relevant 
for future applications of the statute.  
5. Finally, the EU argues that the USDOC's interpretation does not constitute compliance because 
"third  partie s also express a preference for 'as such' compliance through textual amendment of 
Section  771B" . It would be inappropriate for the Panel to accept the EU's arguments, setting aside 
the fact that Japan's arguments do not in fact support the EU's stated posi tion. The WTO agreements 
do not prescribe a specific manner through which compliance must be achieved.  
Summary of U.S. Comments on EU Responses to Panel Question 3  
6. The EU's characterization of what might constitute a "breach" of the statute under U.S. l aw 
(an issue which is not before the Panel and irrelevant to these compliance proceedings) is erroneous 
and does nothing to further its arguments. The USDOC can – as it did here – evaluate all relevant 
facts and circumstances without  breaching the terms of  Section 771B. As a matter of US municipal 
law, and therefore of fact for this WTO proceeding, the USDOC's interpretation has legal effect under 
U.S. law. That any given measure might be challenged in municipal courts in the future is not 
relevant to and d oes not alter the content of a Member's municipal law in the present. The EU's WT/DS577/ RW/Add.1  
 
- 38 - 
 
  arguments that Section 129 cannot be used to modify statutes are also irrelevant for these 
compliance proceedings and unresponsive to the Panel's question.  
Summary of U.S. Comm ents on EU Responses to Panel Question 3  
7. The EU suggests in its response that the panel report in the original proceeding expressly 
excludes  a revised interpretation of Section 771B as a possible compliance option. This is an incorrect 
and misguided rea ding of the original panel's findings and recommendation. T he USDOC determined 
that a reasonable interpretation of the statute allows the USDOC to consider those factors in addition 
to any other relevant information and facts available to it during the cou rse of its investigation. The 
EU also suggests that it would be sufficient for the Panel to conclude that the interpretation of Section 
771B could not constitute compliance "as such" . However, the question of whether the Section 129 
determinations and the USDOC's interpretation and application of Section 771B, constitute a valid 
measure to comply is precisely the issue before the Panel. The reinterpretation is a valid compliance 
measure because it allows the USDOC to take into consideration all relevant fac ts and circumstances 
when conducting its attribution of benefits.  
Summary of U.S. Comments on EU Responses to Panel Questions 7 -8 
8. The accuracy of the analysis of the benefit to the input product is logically relevant to the 
question of the attribution of benefit to the processed product. The EU disagrees, but fails to provide 
compelling rebuttal arguments. The original panel agreed that substantial dependence is one factor 
relevant to the attribution of benefits analysis, and the USDOC's reinterpretatio n, including the 
analysis of the benefit to the input product, was more accurate as a result of the reinterpretation.  
9. The factors identified by the panel in the original panel report as examples of factors that 
could be relevant for the analysis of attr ibution of benefits to the processed product are all qualitative 
factors. The USDOC examined the same type of qualitative factors in the Section 129 proceedings. 
The EU argues that the factors identified in this Question 8 are irrelevant for the element re ferenced 
by the original panel. The EU further argues that the United States did not define a "market" in its 
Section 129 determination. The EU is incorrect for several reasons.  
10. First, here the EU suggests that the United States' analysis must take a specific structure and 
format, including setting out a specific definition of the "market." However, this is not required under 
the text of Article  VI:3 of the GATT nor under Article  10 of the SCM Agreement. Second, for the EU 
to say that there is no defin ed "market" ignores the fact that processed table olives differ very little 
from the input product – raw olives. Third, by arguing that the factors analyzed that are relevant to 
substantial dependence are irrelevant to the question of attribution of benefi ts, the EU ignores the 
fact that the panel specifically agreed that substantial dependence may be one factor that is relevant 
to pass -through.  
Summary of U.S. Comments on EU Responses to Panel Question 10  
11. The EU references one sentence from the Section  129 preliminary determination in support of 
its argument that there is no evidence to support 100% attribution of benefits. However, the USDOC 
undertook a holistic analysis, and the sentence summarizing the calculation of benefits should be 
read in the br oader context of the entire attribution of benefits analysis, generally discussed on 
pages 17 -19 of the preliminary determination, and pages 20 -24 of the final determination. The 
USDOC gave parties the opportunity to submit factual information to rebut, co rrect, or clarify the 
factual information the USDOC placed on the record. The EU is therefore incorrect in saying that the 
USDOC failed to take any investigative steps with a view to gathering relevant information regarding 
pass-through.  WT/DS577/ RW/Add.1  
 
- 39 - 
 
  Summary of U.S. Comments on EU Responses to Panel Question 15  
12. The USDOC is not restricted from providing an analytical basis for its findings that takes 
into account the relevant facts and circumstances . The USDOC is also not materially restricted 
from determinin g the extent to which subsidies on input products may be attributed to the 
downstream investigated products. As the USDOC stated in the final Section 129 determination, "the 
ambiguity in the term 'deemed' is not necessarily about what the term itself means , but that the 
statute does not explain in what way [the USDOC] is to conduct the benefit calculation (i.e., what 
amounts to include or not include, and what adjustments to make)" . 
Summary of U.S. Comments on EU Responses to Panel Question 17  
13. In its response, the EU again attempts to mischaracterize the U.S. explanations as ex post 
rationalization. Although the two factors in Section 771B remain relevant to the question of 
attribution of benefits to the downstream product, they are not the only  factors considered by the 
USDOC, and Section  771B is silent as to how to calculate benefits in any one instance. It is 
reasonable to expect that there will be some variations in the methodology used to calculate the 
grower benefits attributable to the res pondents and in the factors used by the USDOC in any 
particular proceeding in which Section 771B is applied.  
14. That the USDOC did not issue questionnaires to interested parties specifically related to 
attribution of benefits does not mean that the analy sis excluded relevant facts and circumstances. 
Interested parties did have opportunities to comment on the method of attribution of benefits, and 
as explained, offered no alternatives to the USDOC's methodology.  
Summary of U.S. Comments on EU Responses to  Panel Question 23  
15. Instead of providing an example of what sort of "formal commitment" would satisfy the EU, it 
only states that a commitment based on the revised interpretation of Section 771B is "irrelevant" 
for an attribution of benefits analysis. E vidently, the EU is now concerned that the reinterpretation 
and application of Section 771B in the Section 129 determinations has legal effectiveness within the 
U.S. municipal law system – specifically, a legal effect with which the EU disagrees – and one which 
has effect beyond this proceeding.  
Summary of U.S. Comments on EU Responses to Panel Questions 28 -30 
16. Japan's arguments support the U.S. position – that reinterpretation is one way to comply with 
the recommendation of the DSB – and that, therefor e, a panel must examine whether the claimed 
compliance measure – including a reinterpretation of a measure at issue – exists. The United States 
agrees that this calls for an objective assessment. In this case, such an assessment would be 
whether the USDOC has reinterpreted and applied Section 771B according to that revised 
understanding. Because this is a matter of the content of U.S. municipal law, it is an issue of fact in 
this compliance proceeding, and the United States has demonstrated those facts. The  EU in effect 
concedes this point by arguing that the U.S. reinterpretation might  be challenged in court and that 
the U.S. had no discretion to change its interpretation.  
17. The EU asserts that the USDOC's reinterpretation cannot constitute compliance be cause it 
may be changed by the USDOC in the future or may be overturned by U.S. courts. However, the 
USDOC would not depart from prior interpretations or determinations unless there was a reasonable 
justification to do so. Taken to its logical conclusion, the EU's approach would result in the 
inappropriate finding that any action taken by the United States to bring the measure to compliance 
would fail to do so merely because the legal system allows for judicial review.  
18. The EU argues in its response tha t the Panel should provide thorough and convincing reasoning 
if it were to deviate from the basic compliance findings of the panel report in US – Carbon Steel 
(India) (Article  21.5 – India) . However, the Panel is not required to "accept the reasoning" of a ny 
prior panel report, and thus need not provide a reasoned explanation for any deviation from the 
findings of that panel. Even if the Panel were to accept the reasoning in US – Carbon Steel (India) 
(Article  21.5 – India) , the facts in this case differ.  WT/DS577/ RW/Add.1  
 
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  19. The United States reiterates that providing an "adequate and reasoned" explanation is not the 
standard that is applicable in these proceedings. The Panel should instead evaluate whether the 
Section 129 determinations reflect conclusions that an objectiv e and unbiased investigating authority 
could have reached under the circumstances and in light of the evidence on the record. In its 
third party submission, Japan also agreed with this approach, explaining that a revised interpretation 
of the offending dom estic law may constitute a relevant change, and noting that it would be desirable 
if the revised interpretation were supported by objective evidence, such as a written administrative 
instrument or " instances of actual application ". The United States applic ation of Section 771B in the 
Section 129 proceeding is such objective evidence of the revised US interpretation of Section 771B.  
 
_______________  
 
  
 
 WT/DS577/RW/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  42 
Annex  C-2 Integrated executive summary of the arguments of Canada  43 
Annex  C-3 Integrated executive summary of the arguments of Japan  47 
Annex  C-4 Integrated executive summary of the arguments of the Russian Federation  52 WT/DS577/RW/Add.1  
 
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  ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF  BRAZIL  
1. Brazil appreciates the opportunity to provide responses to the Panel's questions to 
the third parties. Brazil does not take a position regarding the facts of this dispute, but 
will present its views on the first question posed by the Panel regarding the co nsideration 
of unadopted panel reports.  
1. The European Union, in its written submissions, cites US – Carbon Steel (India) 
(Article  21.5 - India)  on a number of occasions. That panel report was not adopted by the 
DSB. In your opinion, must a panel accept t he reasoning contained in an unadopted panel 
report as "useful guidance", even though it has not come before the DSB for adoption?  
2. In Brazil 's view, any legal dispute in the WTO relates to specific matters and takes 
place between two or more particular  Members. Therefore, adopted (or unadopted) panel 
reports are not binding precedentes for other disputes, even if these disputes relate to 
the same questions of WTO law. In other words, the panel is not obliged to follow previous 
reports even if they have elaborated interpretation of exactly the provisions which are 
now before the panel.  
3. Nevertheless, if the analysis and reasoning developed in previous reports to 
interpret certain WTO rules are considered relevant and persuasive from the panel 's point 
of view, even though those reports were not adopted by the DSB, and therefore lack a 
formal legal status in the WTO, the panel may accept them as useful guidance1. 
2. Also with respect to US – Carbon Steel (India) (Article 21.5 - India) , the proposition is 
expressed that, to comply with an "as such" finding of non -compliance, a Member is 
expected to change its domestic laws and cannot comply otherwise. Do you agree with 
this or are there other ways?  
 
 
1 Panel Report, Guatemala – Cement II , para.  8.15, and Appellate Body Report, Japan – Alcoholic 
Beverages II , para.  32. WT/DS577/RW/Add.1  
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF  CANADA  
I. INTRODUCTION  
1. Canada participates in this compliance proceeding because it has a substantial systemic 
interest in the proper interpretation of the provisions of the Agreement on Subsidies and 
Countervailing Measures ("SCM Agreement") that deal with the existence and extent of pass -through 
of benefits of indirect subsidies, and in compliance with related DSB rulings and recommendations.  
2. The original WTO proceeding concerns a U.S. Department of Commerce ("USDOC") 
investigation on imports of ripe olives that presumed that 100% of the subsidies granted to Spanish 
olive growers, as allocated over their raw olives passed through to three Spanish ripe olive producers 
when the raw olives were sold to them. The USDOC had rea ched this conclusion on the basis of 
Section 771B of the Tariff Act of 1930 , a statute outlining the method by which the benefit of a 
subsidy passes through from agricultural commodities to processed products.  
3. The Panel concluded that Section 771B violated Article VI:3 of the GATT and Article 10 of the 
SCM Agreement "as such" . The Panel further found that the affirmative application of Section  771B 
in the Spanish ripe olive investigation infringed the same provisions because the USDOC had illegally 
presumed both the existence and a 100% degree of pass -through benefit and did n ot take into 
account all relevant factors.1 
4. As a result of the Panel's findings, the United States carried out administrative proceedings 
under Section 129(b)(2) of the U.S. Uruguay Round Agreements Act  ("URAA") and issued its 
Section  129 Determination  on 20 December 2022.2  
5. As indicated by the European Union, the United States did nothing in the Section 129 
proceedings to address the "as such" and "as applied" violations concerning the flawed pass -through 
methodology in Section 771B.3 Below, Canad a provides comments on how the United States' 
measure to comply fails to address the "as such" and "as applied" violations.  
II. THE UNITED STATES TAKES NO MEASURE TO PROPERLY ADDRESS THE "AS SUCH" 
VIOLATION AND THEREFORE DOES NOT COMPLY WITH THE RECOMMENDA TIONS 
AND RULINGS OF THE DSB  
6. The focus of a compliance proceeding is to verify whether a Member, after the DSB 
recommendation has been adopted, has taken steps to bring a measure that was previously found 
to be WTO -inconsistent into conformity with the  covered agreements. Canada agrees with the 
United  States and the European Union who both correctly point out that "there are no rigid 
requirements in the DSU that specify what form 'the measure taken to comply' must take".4 
However, the critical element is actual compliance with the DSB's rulings and recommendations.  
7. The only measure taken by the United States in response to the DSB recommendations and 
rulings was a USDOC determination under Section 129(b)(2) of the URAA. The Panel in this 
compliance proceeding must determine whether the U.S. measure, in this case the U.S. Section 129 
Determination, "complies" with the original Panel's findings of an "as such" violation. When the Panel 
in the original proceedings analyzed the pass -through of indirect s ubsidies, it found an "as such" 
violation of Article 10 of the SCM Agreement. The Panel held that Section 771B is as such 
inconsistent:  
 
1 Panel Report, US – Ripe Olives from Spain , paras. 7.176, 8.1.b.i, and 8.1.b.ii.  
2 Ripe Olives from Spain: Final Section 129 Determination Regarding the Countervailing Duty 
Investigation, C -469-818, Exhibit EU -2. 
3 European Union's first written submission, para. 3.  
4 United States' first written submission, para. 9; European Union's fir st written submission, para. 57 
and European Union's second written submission, para. 16.  WT/DS577/RW/Add.1  
 
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  […] because it requires the USDOC to presume that the entire benefit of a subsidy 
provided in respect of a raw agricultu ral input product passes through to the 
downstream processed agricultural product, based on a consideration of only 
two factual circumstances, without leaving open the possibility of taking into account 
any other factors that may be relevant to the determi nation of whether there is any 
pass-through and, if so, its degree.5 
As the U.S. itself acknowledges, "in the panel's view, the primary inconsistency of Section 771B was 
the fact that it did not leave open the possibility for the USDOC to consider other f actors that may 
be affecting the market for the investigated product, beyond those specifically enumerated in the 
statute".6 Yet the USDOC proceeded to do exactly that in the Section 129 Determination which it 
claims as its measure taken to comply.  
8. The United States argues that the USDOC Section 129 Determination remedies the "as such" 
inconsistency by interpreting Section 771B to allow for the consideration of additional factors. 
According to the U.S., "in the Section 129 Preliminary and Final determi nations, the USDOC explains 
in detail how it re -examined and revised its understanding  of Section 771B and then properly applied 
Section 771B in response to the findings of the panel in the underlying WTO proceeding".7 The 
United  States actions through its Section 129 Determination and its arguments in this compliance 
proceeding, which suggest that it can now interpret or re -examine Section 771B as allowing for a 
consideration of additional factors, run directly counter to the Pane l's decision in the original 
proceeding.  
9. To accept this U.S. position, this compliance Panel would effectively revisit the original Panel's 
"as such" findings. As the panel held in US – Carbon Steel (India) (Article 21.5 - India) , under no 
circumstance can a compliance panel revisit "as such" findings of violation from the original 
proceedings that have been adopted by the DSB .8 Canada considers that US – Carbon Steel (India) 
(Article 21.5 - India)  is relevant to the present case. In that case, as in this case, the statute itself 
was found to be "as such" inconsistent and the United States had done nothing to effect compliance. 
Instead, the United States had simply taken the position that the statute was not "as such" 
inconsistent, claiming that the investigating authority maintained some discretion —a position which 
was directly contrary to the original panel's finding. Because of this position, the United States 
argued that there was compliance by virtue of its "re -interpretation" o f the provision that was found 
to be an "as such" violation of WTO law. The panel in US – Carbon Steel (India) (Article 21.5 - India)  
reasoned that "[i]n the case of a finding of WTO inconsistency in respect of a legislative act 'as such', 
we would normall y expect the alleged 'measure taken to comply' to modify the legislative authority 
of that measure in respect of the WTO inconsistency at issue".9 It further held that "even where a 
Member seeks to cure an 'as such' inconsistency 'without a change to the text of the measure itself', 
compliance must nonetheless entail a change relevant to the measure that was found to be 
inconsistent in the original proceedings".10  
10. The United  States is making essentially the same argument in the present case as in US – 
Carbon Steel (India) (Article 21.5 – India)  when it claims that its investigating authority has 
reinterpreted a statutory provision as providing for discretion, even though a panel had already 
found the statute to be "as such" inconsistent with WTO law. T he Panel has concluded that 
Section  771B violated Article VI:3 of the GATT and Article 10 of the SCM Agreement "as such".  
 
5 Panel Report, US – Ripe Olives from Spain , para. 8.1.b.i. (Emphasis added)  
6 United States' first written submission, paras. 31 and 33. Panel Report, US – Ripe Oliv es from Spain , 
para. 7.167.  
7 United States' first written submission, para. 50. (Emphasis added)  
8 Panel Report, US – Carbon Steel (India) (Article 21.5 – India) , para. 7.301 (Emphasis added). Canada 
notes that this panel report has not been adopted by th e DSB. However, while a panel's task is to make an 
objective assessment of the specific matter put before it by the disputing parties, pursuant to Article 11 of the 
DSU, Canada submits that, when discharging its duty, a panel should take into account previ ous adopted panel 
or Appellate Body reports that are relevant to its analysis. In Canada's opinion, the fact that a relevant panel 
report mentioned by a party has not come before the DSB for adoption does not prevent a panel from taking 
such report into ac count. The reasoning contained in an unadopted panel report may be useful to the panel's 
analysis. Ultimately though, a panel's assessment must be rooted in the facts of the case before it and the 
applicability of and conformity with the covered agreements . 
9 Panel Report, US – Carbon Steel (India) (Article 21.5 – India), para. 7.308 . 
10 Panel Report, US – Carbon Steel (India) (Article 21.5 – India), para. 7.306.  WT/DS577/RW/Add.1  
 
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  11. Canada agrees  with the European Union that the "re -interpretation" of Section 771B in the 
Section 129 proceedings by the USDOC in the present case "neither modifies the legislative authority 
of Section 771B nor does it entail a change relevant to this legal provision" and therefore cannot be 
considered compliance. As the European Union argues in its second written submission, "irresp ective 
of the precise manner in which compliance may be achieved for 'as such' violations, […] [a] 'change' 
or 'modification' of Section 771B with legally binding effect for the future is essential in order to 
prevent future WTO inconsistencies through the  application of this inconsistent legal provision".11 
12. In line with the Panel 's reasoning, Canada submits that compliance requires "a change of some 
kind to the offending provision, whether by legislative amendment, repeal, or changing Section  771B 
in any other relevant way such that its application no longer automatically results in actions on the 
part of the USDOC that are WTO -inconsistent".12 In this case, the USDOC simply re -applied the same 
statute, which had already been found to be an "as such" vi olation, and its application was in violation 
of the WTO rules. Such a measure cannot constitute compliance with a finding of an "as such" 
violation.  
III. THE UNITED STATES' MEASURE TO ADDRESS THE "AS APPLIED" VIOLATION DOES 
NOT COMPLY WITH THE RECOMMENDAT IONS AND RULINGS OF THE DSB  
13. Regarding the "as such" violation, the Panel in the original proceedings explained that it 
"follows from the operation of the law itself" when it held that the USDOC's determination "is 
inconsistent with Article VI:3 and Ar ticle 10 for the same reasons that Section 771B is inconsistent 
"as such" with those same provisions".13 Thus, the "as applied" violation follows from the "as such" 
violation, with the Panel concluding "that through the application of Section 771B of the T ariff Act of 
1930 in the Spanish ripe olives investigation the United States acted inconsistently with its 
obligations under Article VI:3 of the GATT 1994 and Article 10 of the SCM Agreement to establish 
the existence and extent of indirect subsidization ( i.e. pass -through) taking into account all relevant 
facts and circumstances".14  
14. The European Union argues that "since every affirmative application of Section 771B 'requires' 
(as the Panel specifically determined) the USDOC to violate WTO rules, the f ailure by the United 
States to address the "as such" inconsistency has as a necessary legal consequence that the 
affirmative application of Section 771B in the Section 129 proceedings also violates Article VI:3 of 
the GATT and Article 10 of the SCM Agreeme nt".15 
15. Canada agrees that if a statute found to be an "as such" violation continues to be applied, it 
follows that this application must also violate the WTO rules. Moreover, when one examines the 
USDOC's application of Section 771B in its Section 129 Determination it becomes clear that the 
U.S. claim that it has taken a measure to comply with respect to pass -through of indirect  subsidies 
must necessarily fail because it only considered additional factors relevant to direct  subsidies.  
16. Before the original Panel, both parties agreed that the dispute was about " how to determine 
the existence and extent of the pass -through of ind irect subsidies ", i.e. the benefit conferred to ripe 
olive producers as indirect recipients. The USDOC claims in the Section 129 Determination that it 
considered "additional factors and information beyond the two factors in Section 771B". The USDOC 
then co ntends that it did so by modifying the definition of the "prior stage product" and by eliminating 
crops other than raw olives when calculating the benefit received by olive growers.16 However, both 
these aspects concern the determination of benefit conferr ed to direct recipients (olive growers).17 
Thus the USDOC did not address the "as applied" violations as they related to pass -through for 
indirect subsidies.  
 
11 European Union 's first written submission, para. 19.  
12 Canada 's Third Party Oral Statement, para. 11.  
13 Panel Report, US – Ripe Olives from Spain , paras. 7.175 and 8.1.b.ii.  
14 Panel Report, US – Ripe Olives from Spain , paras. 7.176 and 8.1.b.ii.  
15 European Union's first written submission, para. 4.  
16 European Union's first written subm ission, para. 11. Ripe Olives from Spain: Final Section 129 
Determination Regarding the Countervailing Duty Investigation, C -469-818, Exhibit EU -2, p. 20; Ripe Olives 
from Spain: Preliminary Section 129 Determination Regarding the Countervailing Duty Inves tigation, C -469-
818, Exhibit EU -1, p. 17.  
17 European Union's first written submission, para. 4.  WT/DS577/RW/Add.1  
 
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  17.  As the European Union noted in its first written submission, it is important in these complia nce 
proceedings to make a distinction between the benefit conferred to raw olives growers as direct  
recipients and the benefit conferred to ripe olive producers as indirect  recipients. The Appellate Body 
explained this distinction in US – Softwood Lumber I V: 
Where a subsidy is conferred on input products, and the countervailing duty is 
imposed on processed products, the initial recipient of the subsidy and the producer 
of the eventually countervailed product, may not be the same. In such a case, there 
is a direct recipient of the benefit —the producer of the input product. When the input 
is subsequently processed, the producer of the processed product is an indirect 
recipient of the benefit —provided it can be established that the benefit flowing from 
the inpu t subsidy is passed through, at least in part, to the processed product.18  
18. The United States did not implement the DSB's recommendations and rulings with respect to 
indirect  benefit conferred to ripe olive producers. Thus, the U.S. claim that it has t aken a measure 
to comply with the "as applied" violation as it relates to pass -through of indirect subsidies must 
necessarily fail.  
IV. CONCLUSION  
19. For the reasons outlined above, Canada considers that the United States failed to take an 
appropriate measure to address the "as such" violation in Section 771B and, consequently, to 
address the "as applied" violations concerning the flawed pass -through methodology in the 
Section  129 Determination.  
 
18 Appellate Body Report, US – Softwood Lumber IV , para. 143.  WT/DS577/RW/Add.1  
 
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  ANNEX C -3 
INTEGRATED EXECU TIVE SUMMARY OF THE ARGUMENTS OF  JAPAN  
I. How a panel should treat the reasoning contained in a panel report unadopted by 
the DSB  
1. Regarding whether a panel must accept the reasoning contained in an unadopted panel report 
as "useful guidance",  Japan recalls that the Appellate Body in Japan – Alcoholic Beverages II  
found  
Adopted panel reports are an important part of the GATT acquis . They are often 
considered by subsequent panels. They create legitimate expectations among WTO 
Members, and, there fore, should be taken into account where they are relevant to any 
dispute. However, they are not binding, except with respect to resolving the particular 
dispute between the parties to that dispute.  
… 
{U}nadopted panel reports "have no legal status in the GATT or WTO system …. {A} 
panel could nevertheless find useful guidance in the reasoning of an unadopted panel 
report that it considered to be relevant" .1 
2. Thus, a panel is not obliged  to accept as "useful guidance" the reasoning contained in previous 
panel reports, whether they are adopted or unadopted, and this conclusion follows for 
two reasons. First, the WTO agreements, including the DSU, do not impose any such 
obligation. Second, a panel report does not have binding effects beyond the context of a 
particular dispute in which it was issued, even if it has been adopted by the DSB.  
3. However, as to how a panel should treat the reasoning that it is not legally obliged to accept 
as "useful guidance", a panel may still refer to the reasoning in its own findings, even when 
the previous panel report was unadopted. As the panel said in EU – Footwear (China) : "While 
we recognize that the unadopted report of a panel does not bind the parties, we nonetheless 
consider that we may take it into account in our own  deliberations, and, to the extent we find 
the analysis, reasoning, and conclusions of that report persuasive on the issues before us, 
may follow it" .2 
4. In Japan's view, a panel may refer to the reasoning from a previous unadopted panel report, 
to the e xtent that the panel finds the reasoning to be sound and persuasive, and relevant to 
the case at hand, because such reference would contribute to and support the panel's 
objective assessment of the matter (including an objective assessment of the facts of the 
case and the applicability of and conformity with the relevant covered agreements) under 
Article 11 of the DSU.  
II. How to determine whether measures taken to comply with the DSB's 
recommendations and rulings that a measure is "as such" inconsistent wi th the 
covered agreements exist  
5. As to the issue of whether the United States has taken measures to comply with the DSB's 
recommendations and rulings on "as such " inconsistency, the parties disagree on whether 
the USDOC's revised interpretation of Sectio n 771B of the Tariff Act of 1930 ("Section 771B"), 
in the context of USDOC's Section 129 determination on Ripe Olives from Spain, may be a 
"measure taken to comply" with the DSB's finding under Article 21.5 of the DSU, without 
changing any of the text of S ection 771B itself.  
 
1 Appellate Body Report, Japan – Alcoholic Beverages II , pages 14 -15 (emphasis and footnotes in the  
original omitted) ( quoting Panel Report, Japan – Alcoholic Beverages II , para.  6.10).  
2 Panel Report, EU – Footwear (China) , para.  7.83.  WT/DS577/RW/Add.1  
 
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  6. Before presenting its view, Japan would like to reiterate that "[a] compliance panel 
proceeding is not an opportunity to 're -litigate'  issues that were addressed, or that could have 
been addressed, in the original proceedings "3, as a previous panel correctly explained. 
Prohibition of re -litigation in the compliance stage has been repeatedly confirmed because 
re-litigation would, in principle, provide an unfair second chance to the party and compromise 
the finality of the DSB's recomm endations and rulings.4 
7. In the current case, the United States argues that, while Section 771B itself has not been 
amended, the USDOC's  revised interpretation of Section 771B constitutes a "measure taken 
to comply" for "as such" inconsistency, because it now allows the consideration of all 
case-specific and relevant record information to determine whether upstream subsidies pass 
through t o a downstream processor, consistent with the requirements of the GATT 1994 and 
SCM Agreement.5 
8. This compliance Panel must carefully consider the United States' argument so as to avoid 
re-litigation. In Japan's view, WTO inconsistent measures, including those that constitute "as 
such" violations, may be brought into compliance through various methods6, including without 
a change in the text of the measure itself.7 Both the European Union and the United  States 
agree on this general point.8 In this regard, the panel in US – Gambling (Article  21.5 – Antigua 
and Barbuda) has implied that a revised interpretation of domestic law could constitute a 
"measure taken to comply " for "as such" violations.9 
9. However, as a previous panel stated, "even wh ere a Member seeks to cure an 'as such' 
inconsistency 'without a change to the measure itself', compliance must nonetheless entail a 
change relevant to the measure that was found inconsistent in the original proceedings ".10 
An assessment of whether there is such a change logically depends on what the panel found 
to be inconsistent and recommended in the original proceeding.  
10. Therefore, Japan disagrees with the proposition expressed in US – Carbon Steel (India) 
(Article 21.5 – India) that, to comply with  an "as such" finding of non -compliance, a Member 
is expected to change its domestic laws and cannot comply otherwise, to the extent that it 
 
3 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines) , para.  7.10.  
4 See, e.g.,  Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , paras.  210-211; Panel 
Report,  US – Large Civil Aircraft (2nd Complaint) (Article 21.5 – EU), para.  7.25.  
5 See United States' first written submission , para. 50. See also United States' fi rst written submission, 
paras.  5 ("re -evaluate"), 9 ("revisit"), and 37 ("reexamination"); United States' second written submission, 
para. 9 ("revisiting" and "revised") . 
6 Panel Report, US – Carbon Steel (India) (Article 21.5 – India) , para. 7.305  ("There are no rigid 
requirements in the DSU  that specify what form the 'measure taken to comply ' must take. "). (emphasis added)  
7 Panel Report, US – Carbon Steel (India) (Article 21.5 – India) , para. 7.306  ("[W]e do not exclude that 
there may be ways of rem edying [an 'as such '] inconsistency which do not involve changing the text  of a 
measure itself  ….") (citing Panel Report, US – Gambling (Article 21.5 – Antigua and Barbuda), para. 6.22) . 
(emphasis added)  
8 See European Union's first written submission, par a. 57; United States' first written submission, 
para. 64. 
9 Panel Report, US – Gambling (Article 21.5 – Antigua and Barbuda) , para. 6.27 ("There has been no 
change to any of these three measures since the original proceeding. There has been no change in the 
application of these three measures, or even their interpretation , since the original proceeding . There is no 
evidence of any changes in the factual or legal background bearing on these measures or their effects since the 
original proceeding that might have brought them into compliance. This indicates that they remain inconsistent 
with the United States ' obligations under the GATS. "). (emphasis added)  
10 Panel Report, US – Carbon Steel (India) (Article 21.5) , para. 7.306.  (emphasis added)  See also  Panel 
Report, US – Gambling (Article 21.5 – Antigua and Barbuda) , paras.  6.15 and 6.22 ("Therefore, the 
recommendation requires a change  that eliminates the inconsistency of those measures  with the covered 
agreements "; "For example, a measure may lapse, or satisfy a requirement in a covered agreement, due to 
the subsequent occurrence of a relevant circumstance. If changes to the measure 's factual or legal background 
modified the effects  of that measure sufficiently to bring about a si tuation in which it complied with the 
relevant covered agreement , there seems to be no reason why this should not fulfil the aim of the 
recommendation of the DSB, which is to achieve a satisfactory settlement of the matter in accordance with the 
rights and  obligations under the DSU and the covered agreements, as provided in Article  3.4 of the DSU. The 
essential point is that there needs to be compliance . However, even in these cases, compliance would entail a 
change relevant to the measure  since the origina l proceeding ".). (emphasis added; footnote omitted)  WT/DS577/RW/Add.1  
 
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  means that a Member cannot comply with an "as such" finding of non -compliance unless the 
Member changes the text of  the domestic law(s) found to be non -compliant.  
11. In the current case, the original panel, agreeing with previous panel and Appellate Body 
reports, found an "as such" violation occurs when a provision of domestic law " requires  the 
responding Member to v iolate its obligations under the relevant covered agreement or 
otherwise restricts, in a material way, the responding Member's discretion  to act in a manner 
that is consistent with those obligations" .11 The original panel then found that Section 771B 
satisfies this standard and is accordingly "as such" inconsistent.12 
12. Thus, to determine whether the United States took a measure to comply with this "as such" 
violation, this compliance Panel must determine: (i) whether the USDOC's revised 
interpretation of Section 771B, without any change to the text, may nonetheless constitute 
a relevant change  to Section 771B; and (ii) whether such change eliminated the WTO 
inconsistency of the measure. In this case, this compliance Panel must determine whether 
Section 771B, with USDOC's revised interpretation, does NOT require  the United States to 
violate its WTO obligations, or does NOT restrict, in a material way, the United States' 
discretion to act in a manner that is consistent with its WTO obligations. If the meas ure entails 
such a change, an argument based on such change should not be regarded as re -litigating 
the original panel's findings, and a measure taken to comply should be found to exist.  
13. That said, while the prerogative of WTO Members to interpret thei r own domestic laws should 
be fully respected, the question of whether the United States' revised interpretation of 
Section  771B constitutes a relevant "change" to comply with the DSB's finding of an "as such" 
violation still needs an objective assessment by this compliance Panel, and a mere assertion 
of such a change by the United States should not suffice.  
14. In this regard, the compliance Panel should ensure that the United States had not and could 
not have asserted its current interpretation in the ori ginal proceeding, because to recall, the 
compliance Panel may not review the original panel's findings.  
15. In addition, the compliance Panel should take into account whether the USDOC has provided 
a sufficient and reasoned explanation on how its revised i nterpretation of Section 771B has 
made the measure consistent with the WTO Agreements, without making any change to the 
statutory text. For this purpose, it would be desirable if the USDOC's revised interpretation 
were supported by certain objective eviden ce, such as a written administrative instrument or 
actual applications.  
III. Whether the USDOC's Section 129 determination cures the "as applied" 
inconsistency  
16. The second issue in this case is whether the USDOC's Section 129 determination addressed 
the original panel's finding of an "as applied" inconsistency with Article VI:3 of the GATT  1994 
and Article 10 of the SCM Agreement in the Ripe Olives from Spain CVD investigation when 
the USDOC presumed pass -through of benefit from an upstream input suppli er to a 
downstream processor based on consideration of only the two factual circumstances specified 
in Section 771B, without consideration of other relevant factors.  
17. The United States argues the USDOC's Section 129 determination addressed this concern,  
and accounted for additional factors making the table olives market unique, by specifically 
narrowing the definition of the "raw agricultural product" and "prior stage product" under 
Section 771B to include only those few varietals of raw olives that are suitable for table olive 
production.13 
18. In turn, the European Union argues that this modification concerns only the determination of 
the direct benefit to the upstream raw olive growers, and does not address the analysis of 
 
11 Panel Report , para. 7.146. (emphasis added)  
12 Panel Report , para. 7.170 . 
13 See United States' first written submission , paras.  38-41, 53-54, and 61;  United States' second 
written submission, para.  26. WT/DS577/RW/Add.1  
 
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  the indirect benefit passed through to the downstream ripe olive producers that the original 
panel found to be WTO -inconsistent.14  
19. An assessment of whether the USDOC addressed the "as applied" inconsistency again 
logically depends on what the original panel found to be WTO -inconsistent, including the 
analysis it found to be required for a WTO -consistent pass -through determination.  
20. Here, the original panel found that, for a WTO -consistent determination of pass -through, "an 
investigating authority must analyse to what extent subsidies on inputs may be included in 
the determination of the total amount of subsidies bestowed upon processed products" .15 For 
that purpose, "an investigating authority must take into account facts and circumstances that 
may be relevant to that  determination and is not entitled to exclude from its determination 
factors that are potentially relevant ".16  
21. The question then is: what factors are potentially relevant for the pass -through analysis? 
Section 771B prescribes only two factors, which the original panel found to characterize 
"perfect competition" in the subject market, in the sense that products are undifferentiated 
and market -entry is unrestricted, and the producers of the raw products have no choice but 
to accept the pr evailing market price.17 However, the original panel found that "it is 
reasonable to believe that variations may exist in the competitive conditions  of different 
product markets, including in those for raw agricultural commodities, such that any given 
market may or may not be perfectly competitive."18 The factors that are potentially relevant 
for the pass -through analysis include, therefore, "the nature of the specific market for the 
input product at issue and all of the conditions of competition in that market ," especially 
those factors that may affect the input product pricing.19 
22. The original panel gave some examples of such other factors that may be relevant, namely, 
"the degree to which raw input sellers face pricing pressure" , and "the market pow er of the 
different producers and processors, or the extent to which national or international 
competition could potentially affect the reliability of input product pricing" .20 
23. Japan agrees with the original panel's findings regarding the need to anal yse factors relevant 
to the conditions of competition in the market, especially those that may affect input product 
pricing. This is because the essence of the pass -through analysis in a CVD case is to 
determine whether and to what extent the subsidies gra nted to the input (raw) product led 
to a decrease in the level of prices for the input product paid by the processors below the 
level they would have to pay for the input product from other commercial sources of supply. 
Considering that the benefit of upst ream subsidies would be conferred to downstream 
producers only through the lowered price of the input, an estimated quantification of how 
much the input price is lowered by the upstream subsidy is logically required to assess the 
benefit conferred to the d ownstream producers, so the downstream producers can lower the 
price of their products by using such benefit. Accordingly, factors regarding the conditions of 
competition in the market that may affect input product pricing are highly relevant to the 
pass-through determination, and should not be neglected.  
24. For example, even when the subsidized inputs are commodities, depending on how the price 
of such commodities are formed in the market, pass -through of the benefit may not be lightly 
inferred. If downs tream producers have access to low -priced imports that are substitutable 
for the domestic input produced by subsidized upstream producers, then an upstream subsidy 
may not change the input price to be paid by the subject downstream producers. In that 
case, the benefit of the upstream subsidy would not pass through to the downstream 
producers.  
 
14 See European Union's first written submission , para. 71; European Union's second  written submission , 
para. 23. 
15 Panel Report, para.  7.162.  
16 Panel Report, para.  7.162.  (emphasis added)  
17 Panel Rep ort, par as. 7.163 and 7.167.  
18 Panel Report, para.  7.166. (emphasis added)  
19 Panel Report, para.  7.166. (emphasis added)  
20 Panel Report, para.  7.167.  WT/DS577/RW/Add.1  
 
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  25. In light of the original panel's findings just described, this compliance Panel should assess 
whether the USDOC's Section 129 determination at issue actually addr essed all relevant 
factors regarding the competitive conditions in the input product market, especially those 
affecting input product pricing.  
26. Narrowing the upstream products for the pass -through analysis to those that have a direct 
link to the downstr eam products makes demand for the upstream products more dependent 
on demand for the downstream products, and thus further supports the existence of the first 
factor under Section 771B, which may be relevant to the pass -through determination. 
However, the compliance Panel needs to carefully consider whether the USDOC's Section 129 
determination addressed relevant factors affecting input product pricing other than  the 
two circumstances under Section 771B, such as "the extent to which national or internationa l 
competition could potentially affect the reliability of input product pricing" .21 
 
21 Panel Report, para.  7.167.  WT/DS577/R W/Add.1  
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF  THE RUSSIAN FEDERATION  
Mr. Chairman, distinguished Members of the Panel:  
1. The Russian Fede ration would like to thank the Panel for the opportunity to present this Oral 
Statement as a Third Party in the current proceedings.  
2. The Russian Federation takes note on the positions of the parties with respect to bringing the 
measure into compliance,  in case when the specific legislative provision is recognized "as such" 
as WTO -inconsistent. Proper interpretation of Article  21.5 as well as other provisions of the DSU 
in this regard is determinative for the proper functioning of the WTO dispute resolut ion system. 
Accordingly, the issues that are before this Panel have enormous systemic importance.  
3. To begin with, the Russian Federation recalls Article  21.1 of the DSU which establishes that 
"[p]rompt compliance with recommendations or rulings of the DS B is essential in order to ensure 
effective resolution of disputes to the benefit of all Members." To this end, having said that the 
prompt compliance  is essential for the effective resolution of the dispute, the "compliance" in 
itself is the indispensable  part for it.  
4. The first sentence of Article  21.5 of the DSU prescribes that: "where there is disagreement as 
to the existence  or consistency  with a covered agreement of measures taken to comply with the 
recommendations and rulings such dispute shall be decided through recourse to these dispute 
settlement procedures, including wherever possible resort to the original panel" .1Thus, the 
analysis of the panel shall focus on whether the measure taken to comply exists and if such 
measure exists, whether it is in conformity with the covered agreements. This approach is 
confirmed by the WTO  jurisprudence.2 
5. Further, the first sentence of Article  19.1 of the DSU states:  
Where a panel or the Appellate Body concludes that a measure is inconsistent with a 
covered agreement, it shall recommend that the Member concerned  bring the measure 
into conformity with that agreement.  
6. Hence, it is necessary to bring into conformity specifically the measure, with regard to which a 
recommendation wa s issued under Article 19.1 of the DSU, i.e. it necessary to do something 
with respect to such measure. As a result the measure shall become consistent with the 
corresponding WTO agreement.  
7. In this regard, it is hard to imagine the situation where a me asure recognized as WTO -
inconsistent in itself would be considered as not WTO -inconsistent if it remains in its original 
form and original status.  
8. Russia acknowledges the existence of the diverged legal systems of different WTO members. 
Russia also ack nowledges that the DSU does not prescribe for the specific mode of bringing the 
measure into compliance, leaving the adjudicators the possibility only to make recommendations 
in this regard.3 Nevertheless, the thesis that a measure is brought into conform ity by a measure 
taken to comply without corresponding legal consequences for the original measure is very 
difficult to pursue.  
9. Finally, Article  3.2 of the DSU proclaims that "the dispute settlement system of the WTO is a 
central element in providing s ecurity and predictability to the multilateral trading system". Russia 
believes that the rules on compliance with recommendations and rulings of panels and the 
Appellate Body are the core features of this dispute settlement. In this regard, when the 
 
1 Emphasis added.  
2 See, for instance, Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para.  79. 
3 Article  19.1 of the DSU, second sentence.  WT/DS577/R W/Add.1  
 
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  compla inant brings "as such" claim with respect to the "laws …. of the Member that have general 
and prospective application", it asserts that that other "Member's conduct —not only in a 
particular instance that has occurred, but in future situations as well —will necessarily be 
inconsistent with that Member's WTO obligations".4 Thus, "the complaining parties bringing 'as 
such' challenges seek to prevent Members ex ante  from engaging in certain conduct" .5 
10. Yet, the sense of challenging the measure of "as such" character additionally to the measure of 
"as applied" character and recognizing them as WTO -inconsistent separately becomes 
meaningless, if at the compliance stage the changes made exclusively to the "as applied" 
measure would be deemed also the compliance  with respect to "as such" measure while leaving 
the original form and status of the last unchanged.  
11. This concludes our statement. Thank you again for this opportunity to express the views of the 
Russian Federation.  
__________  
 
4 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  172 
5 Ibid.