RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/291 
8 March 2011 
 (11-1142) 
Dispute Settlement Body 
25 January 2011  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 25 January 2011  
 
Chairman:  Mr. Yonov Frederick Agah (Nigeria) 
 
 Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................5  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........5  
(d) European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union .........................................................................6  
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States .............................................................................................................. ...........7  
(f) United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States.................................................................................................... ......8  
(g) United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status repor t by the Unite d States........................................................................10  
(h) China – Measures affecting trading righ ts and distribution services for certain 
publications and audiovisual entertainment products:  Status report by China ........................10  
2. Australia – Measures affecting the importation of apples from New Zealand..................11  
(a) Implementation of the recommendations of the DSB...............................................................11  
3. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ..........................................12  
(a) Statements by the European Union and Japan ..........................................................................12  
4. Dominican Republic – Safeguard measures on imports of polypropylene bags 
and tubular fabric............................................................................................................. ......13  
(a) Request for the establishment of  a panel by Costa Rica ...........................................................13  
(b) Request for the establishment of  a panel by Guatemala ...........................................................13  
                                                      
1 On 1 December 2009, the Treaty of Lisbon amendi ng the Treaty on Europe an Union and the Treaty 
establishing the European Community (done at Lisb on, 13 December 2007) en tered into force.  On 
29 November 2009, the WTO received a verbal note (WT /L/779) from the Council of the European Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the European Union replaces and succeeds the European Community. WT/DSB/M/291 
Page 2  
 
(c) Request for the establishment of a panel by Honduras.............................................................13  
(d) Request for the establishment of  a panel by El Salvador..........................................................13  
5. European Communities
1 – Definitive anti-dumping measures on certain iron or 
steel fasteners from China..................................................................................................... .15 
(a) Joint request by the European Union an d China for a decision by the DSB.............................15  
6. Proposed nominations for the indicative list of governmental and 
non-governmental panelists ...................................................................................................15  
 
 1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appr opriations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.98) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.98) 
 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.73) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.36) 
 
(e) United States – Measures relating to zeroi ng and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.16) 
 (f) United States – Continued existence and app lication of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.13) 
 (g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.7) 
 (h) China – Measures affecting trading rights a nd distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17) 
  1. The Chairman
 recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establis hment of the reasonable 
period of time and shall remain on the DSB's Agenda  until the issue was resolved.  He proposed that 
the eight sub-items under Agenda item 1 be considered separately.  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.98) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.98, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US Section 211 Omni bus Appropriations Act of 1998.  WT/DSB/M/291 
 Page 3 
 
 
3. The representative of the United States  said that his country had provided a status report in 
this dispute on 13 January 2011, in accordance with Article 21.6 of the DSU.  As had been noted, a 
number of legislative proposals that would implem ent the DSB's recommendations and rulings in this 
dispute had been introduced in the 111th Congress.  The US administration would continue to work 
with Congress to implement the DSB's recommendations and rulings. 
4. The representative of the European Union  said that the EU thanked the United States for its 
status report but noted that, at the present meeting,  the United States was presenting yet another status 
report in this dispute.  The EU hoped that the US authorities would very soon take steps towards 
implementing the DSB's ruling and resolve this matter. 
5. The representative of Cuba  said that twelve years had passed since the Appellate Body found 
that Section 211 was inconsistent with the princi ples of national treatment and most-favoured-nation 
treatment.  Since then, every month, Cuba had con tinued to denounce the US practice of blocking the 
registration of intangible assets, such as the Havana Club trademark, on the grounds that it was prohibited under Section 211.  This famous C uban trademark, which was recognized as such 
worldwide except in the United States, had been registered in the United States since 1976 by the 
company CUBA EXPORT.  Havana Club was made by Cuban master rum makers using techniques 
that dated back more than half a century.  This proved how old the trademark was.  Section 211 undermined the rights of holders of Cuban tradem arks and enabled Bacardi to engage in the 
fraudulent sale of its products as the Havana Club ru m.  She noted that Cuba had demonstrated its 
commitment to, and respect for, international intellectual property treaties, agreements and 
arrangements to which it was party.  On the co ntrary, the United States had failed to bring its 
legislation into compliance with its WTO obliga tions.  As Cuba had already stated and would 
continue to do so for as long as necessary, the US  conduct was not only unlawful and brazen, it was 
totally absurd in terms of intellectual property right s.  Moreover, the US lack of compliance and its 
inaction in the Section 211 dispute encouraged US  citizens who benefitted from politicized, spurious, 
arbitrary and biased rulings by their courts agains t Cuba to push their claims at the cost of the 
intellectual property rights of Cuban owners, whic h were duly registered and recognized in the 
United States under international legal instruments and US legislation.  Should this misappropriation 
be allowed to continue, it woul d create another negative precedent with global trade implications. 
Furthermore, one would witness another serious viola tion by the United States of its legally binding 
obligations under international in tellectual property treaties, which required it to grant protection to 
the trademarks and patents of companies and in stitutions of all countries, including Cuba.  The 
United States, therefore, had full authority under its ow n laws to intervene in judicial proceedings that 
affected its national interests.  All Cuba wanted was justice. 
6. The representative of the Dominican Republic
 said that his country thanked the United States 
for its status report on compliance with th e DSB's recommendations and rulings regarding 
Section 211, which was inconsistent with Article 42 of the TRIPS Ag reement.  In that respect, the 
Dominican Republic, once again, urged the United States to accelerate its internal procedures in order 
to comply with the DSB's recommendations and rulings.  In particular, the Dominican Republic was concerned that the US lack of implementation over a long period of time undermined the credibility of 
WTO and its decisions.   
7. The representative of the Bolivarian Republic of Venezuela
 said that, despite the DSB's 
recommendations made almost nine years ago, the Un ited States continued to apply legislation that 
was inconsistent with the TRIPS Agreement and th e Paris Convention for the Protection of Industrial 
Property.  Venezuela thanked the United States for its status report, but regretted that, once again, that 
report was merely a repetition of its previous reports  with different date and document symbol.  In 
Venezuela's view, this constituted "action without results".  This situation not only continued to 
undermine Cuba, but it also showed the US lack  of commitment towards the DSB, WTO Members 
and the multilateral trading system.  She said that her country continued to support Cuba and called WT/DSB/M/291 
Page 4  
 
upon the United States to comply with the DSB's re commendations and to put an end to the economic, 
commercial and financial embargo policy which Venezuela condemned.   
8. The representative of Nicaragua
 said that her country thanked the United States for its most 
recent status report on implementation of the DSB's recommendations in this dispute.  Nicaragua, 
once again, regretted that the US status report reflected no progress on compliance.  Nicaragua 
supported the statement made by Cuba and, once again, urged the United States to implement the 
DSB's recommendations and rulings as soon as possible. 
9. The representative of Zimbabwe  said that her country thanked the United States for its status 
report and wished to join previous speakers on this matter.  Zimbabwe was concerned about the continued failure by the United States to implemen t the DSB's recommendations and rulings in this 
dispute and supported the statement made by Cuba.  The US failure to comply in this long-standing 
dispute undermined the credibility of the dispute settlement system.  The measures imposed by the 
United States on Cuba were illegal and served no purpose other than to hurt the most vulnerable 
groups, in particular women and children.  This had a negative impact on Cuba's development and 
well-being.  Zimbabwe urged the United States to  undertake the necessary steps that would yield a 
speedy and constructive resolution of the matter and comply with the DSB's recommendations and 
rulings. 
10. The representative of Brazil
 said that his country thanked the United States for its status 
report.  Brazil reiterated its concerns about th e lack of progress repeatedly reported by the 
United States with regard to the implementation of the DSB's recommendations and rulings in this 
dispute.  Thus, Brazil wished to join previous  speakers in urging the United States to bring its 
measures into conformity with its multila teral obligations without further delay. 
11. The representative of the Plurinational State of Bolivia  said that his country wished to 
reiterate its concerns about the st atus of this dispute and the US failure to comply with its WTO 
obligations.  The US failure to comply had a nega tive impact on the credibility of the multilateral 
trading system and the DSB, as it affected the balance of Members' rights and obligations.  Bolivia, 
once again, urged the United States to comply with  the DSB's rulings and recommendations and to lift 
the restrictions imposed under Section 211. 
12. The representative of Mexico  said that his country thanked the United States for its status 
report.  Mexico urged the parties to resolve this  dispute through the legal remedies provided for under 
the DSU and to comply with the recommendations.  Mexico noted that any Member was free to 
initiate its own dispute if it considered that it was a ffected by the failure of another Member to resolve 
a dispute or to comply with rulings.  Mexico noted that the discussion under Agenda item 1 of the 
present meeting could provide useful input towards th e discussions currently carried out in the context 
of the DSU negotiations.  
13. The representative of China  said that his country thanked the United States for its ninety-
eighth status report in this dispute and for its stat ement made at the present meeting.  However, China 
regretted that the United States had, once again, reported non-compliance.  Almost nine years had 
passed since the adoption of the DSB's rulings and r ecommendations pertaining to the dispute.  This 
situation was not in line with the principle of prompt implementation stipulated in the DSU and 
caused systematic concerns.  Chin a considered that it was also highly inappropriate for a developed-
country Member to maintain a WTO-inconsistent measu re for a long period of time, in particular if 
the interests of a developing-country Member were  involved.  China, therefore, strongly supported 
Cuba and urged the United States to implement the DSB's rulings without any further delay. 
14. The representative of Viet Nam  said that her country thanked the United States for its status 
report and wished to express its concern regarding th e lack of progress in this dispute.  Viet Nam  WT/DSB/M/291 
 Page 5 
 
 
wished to join other speakers in urging the Un ited States to take concrete measures to promptly 
implement the DSB's recommendations and rulings. 
15. The representative of Ecuador  said that his country supported Cuba's statement and recalled, 
once again, that Article 21 of the DSU made speci fic reference to prompt compliance with DSB's 
recommendations and rulings.  Ecuador hoped that th e United States would intensify its efforts to 
ensure immediate compliance with the DSB's recommendations and rulings. 
16. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.98) 
17. The Chairman  drew attention to document WT/DS184/ 15/Add.98, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
18. The representative of the United States  said that his country had provided a status report in 
this dispute on 13 January 2011, in accordance with Ar ticle 21.6 of the DSU.  As of November 2002, 
the US authorities had addressed the DSB's recommendations and rulings with respect to the 
calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty inv estigation at issue in 
this dispute.  Details were provided in documen t WT/DS184/15/Add.3.  With respect to the DSB's 
recommendations and rulings that had not already been addressed by the US authorities, the US 
administration would work with the US Congress with respect to appropriate statutory measures that would resolve this matter. 
19. The representative of Japan
 said that his country thanked the United States for its statement 
and its most recent status report.  Japan took note  of the US report that the United States had taken 
certain measures to implement part of the DSB's recommendations in November 2002.  With respect 
to the remaining part of the DSB's recommendations , Japan hoped that the Un ited States would soon 
be in a position to report to the DSB on more ta ngible progress.  Full and prompt implementation of 
the DSB's recommendations and rulings was "essenti al to the effective functioning of the WTO and 
the maintenance of a proper balance of the rights and obligations of Members" (Article 3.3 of the 
DSU).  Japan called on the United States to fully im plement the DSB's recommendations in this long-
standing dispute without further delay. 
20. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.73) 
21. The Chairman  drew attention to document WT/DS160/ 24/Add.73, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
22. The representative of the United States  said that his country had provided a status report in 
this dispute on 13 January 2011, in accordance with Ar ticle 21.6 of the DSU.  The US administration 
would continue to confer with the EU, and to work  closely with the US Congress, in order to reach a 
mutually satisfactory resolution of this matter. WT/DSB/M/291 
Page 6  
 
23. The representative of the European Union
 said that his delegation had noted that the 
United States was again reporting non-compliance.  The EU remained keen to work with the US 
authorities towards the complete resolution of this case. 
24. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.36) 
25. The Chairman  drew attention to document WT/DS291/ 37/Add.36, which contained the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning its measures affecting the a pproval and marketing of biotech products. 
26. The representative of the European Union  said that, once again, his delegation noted that EU 
regulatory procedures on biotech prod ucts continued to work as foreseen in the legislation.  The 
number of GMOs authorized since the date of establishment of the Panel was thirty-four.  In 2010, 11 applications had been authorized, more than doubl e the number of authorizations in 2009, including 
one authorization for cultivation.  Progress had also been made on other applications for authorization 
or renewal.  Draft decisions on two appli cations (cotton GHB614, maize MON89034×MON88017) 
and a draft decision on the renewal of a GM maize (1057) would be sent soon to the Council 
following the vote in the Standing Committee.  Four more draft applications were expected to be 
discussed in the Standing Committee in February 2011 (MIR604×GA21 maize, BT11×MIR604 maize, 281-24-236/3006-210-23 cotton, Bt11×MIR604× GA21 maize).  Furthermore, the European 
Food Safety Agency had delivered a favourable opinion on the renewal of a GM soy bean (MON 
Ø4Ø32-6).  The EU hoped that the United States and the EU would continue their constructive 
technical dialogue on which they had re-engaged in July 2010.  The EU hoped that this constructive 
approach, based on dialogue, would allow the parties to leave litigation aside.  
27. The representative of the United States
 said that his country thanked the EU for its status 
report and its statement.  The United States recalled that, at the December 2010 DSB meeting, it had 
highlighted that, since July 2010, the EU had not approved any of the dozens of pending biotech 
product applications.  Now, another month had passed without an approval.  In early February 2011, 
the EU regulatory Committee with the responsibility fo r approving biotech pro ducts was scheduled to 
meet to consider four product a pplications, as had been noted by the EU at the present meeting.  The 
EU's scientific authority had issued positive safety assessments for each product.  Two of the products 
were varieties of maize grown in the United St ates that had received their positive assessments over 
eight months ago, in May 2010.  The regulatory Co mmittee consisted of representatives of the 27 EU 
member States, and it operated by rules of qualified majority voting.  The United States looked forward to the regulatory committee fulfilling it s responsibility and approving the products in 
accordance with the EU's own scientific opinions.  If the regulatory Committee failed to do so, the 
result would be additional delays in the approvals.  As the United States had noted, such delays 
resulted in substantial barriers to inte rnational trade in biotech products. 
28. The representative of the European Union
 said that the GMO regulatory regime was not the 
subject of the original Panel's findings and neither was its "operation", nor was the status of specific 
applications not dealt with in the original Panel c overed by this Agenda item.  In any event, the GMO 
regulatory regime was working normally.  Its f unctioning should not be rigidly assessed purely 
quantitatively and in the abstract, in terms of the nu mber of authorizations per year, since this was 
dependent on various product and case-specific el ements and in particular on the quality of 
applications and on the time needed by appli cants to answer requests from EFSA on additional 
scientific information.  In 2010, eleven GMOs ha d been authorized in the EU, more than double the 
number of authorizations in 2009.  A vote in th e Council on two other app lications and a renewal 
were expected to take place soon.  The EU noted that  allegations by the biotech industry of delays in  WT/DSB/M/291 
 Page 7 
 
 
authorization procedures for GMOs were not exclusive to the EU.  According to an article in the Wall 
Street Journal (April 2010), the biotech industry w as also complaining about the alleged "logjam" at 
the US Department of Commerce.  
29. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.16) 
30. The Chairman  drew attention to document WT/DS322/ 36/Add.16, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US measures relating to zeroing and sunset reviews. 
31. The representative of the United States  said that his country had provided a status report in 
this dispute on 13 January 2011, in accordance with Article 21.6 of the DSU.  The United States had 
made clear its significant concerns with the rulings  on zeroing in past disputes and would not repeat 
its concerns at the present meeting.  The United St ates continued to believe that those rulings went 
beyond what the text of the agreements provided an d what negotiators had agreed to in the Uruguay 
Round and that such issues should be of concern to all Members.  As it had stated many times in the 
DSB, the United States recognized the systemic importance of compliance with dispute settlement 
findings.  To that end, the United States had devot ed significant resources to comply with the DSB's 
recommendations and rulings in this and other zeroing disputes.  In response to the findings in this 
and other zeroing disputes, on 28 December 2010, th e US Department of Commerce had announced a 
proposal to change the calculation of weighted  average dumping margins and assessment rates in 
certain anti-dumping proceedings, including administrative reviews, new shipper reviews, and 
original anti-dumping investigations  using transaction-to-transaction comparisons, and to address the 
findings made in connection with sunset reviews.   
32. First, with respect to reviews, the Departme nt of Commerce proposed to compare monthly 
weighted average export prices with monthly weighted  average normal values, and to grant an offset 
for comparisons that showed an export price th at exceeded normal value in the calculation of the 
weighted average margin of dumping and assessment rate.  This would parallel the methodology that 
the Department now applied in original investiga tions and would apply to administrative reviews as 
well as new shipper reviews.   
33. Second, with respect to the transaction-to-transac tion approach in original investigations, it 
should be noted that the Department of Commerce had rarely applied this approach in investigations.  
However, in light of findings by the Appellate Body with respect to this approach in this dispute, to 
the extent that any prior application of the tran saction-to-transaction approach in an investigation 
could be considered as establishing a practice with re spect to the granting or denial of offsets for non-
dumped comparisons, the Department proposed  to withdraw any such practice.   
34. Third, and finally, the modifications that the Department proposed with  respect to reviews, 
and the modifications that the Department had alre ady made with respect to investigations, would 
address the findings in this dispute with respect to sunset reviews.  Details of the proposal had been 
published in the Federal Register (75 Fed. Reg. 81,533 (28 December 2010)).  Under US law, there 
would be a period for public comment on the proposal  and for consultations with appropriate 
committees in the US Congress.  Because of its concer ns about the findings regarding zeroing in this 
and other disputes, responding to those findings in  a proposal had presented substantial challenges for 
the United States and had required significant resources.  The proposal discussed at the present 
meeting reflected that effort and, if successful, w ould address adverse findings on zeroing in reviews, 
sunset reviews, and transaction-to-tran saction comparisons in investigations. WT/DSB/M/291 
Page 8  
 
35. The representative of Japan
 said that his country thanked the United States for its statement 
and its most recent status report.  Japan welcom ed the fact that the United States had announced a 
proposal to amend certain procedures on anti-dumpi ng, and had commenced an internal process to 
ensure compliance with the DSB's recommendations .  While welcoming this positive development, 
Japan noted that the proposal did not make it clear whether implementation of the proposal sufficed to 
implement the DSB's recommendations and rulings fully.  For example, the proposal did not indicate 
how intermediate weighted average comparisons, made  on a monthly basis, would be aggregated for a 
one-year review period.  While Japan understood that it was not the intention of the United States to 
leave room for the use of the methodologies that ha d been found to be WTO-inconsistent, it wished to 
obtain assurance on this point.  In addition, Jap an recalled that the DSB's recommendations and 
rulings covered several "as applied" measures that did not appear to be addressed by the proposal.   
36. First, several period reviews had been found to  be WTO-inconsistent.  Since the end of the 
reasonable period of time more than three years ago, the United States had continued to collect duties at unchanged WTO-inconsistent rate s established in the "as applied" periodic reviews.  For a number 
of those reviews, many entries remained unliquida ted, and the United States was still to collect final 
anti-dumping duties, but had yet to calculate assess ment rates without zeroing.  Second, a sunset 
review had also been found to be WTO-inconsiste nt and had not yet been brought into conformity 
with the Anti-Dumping Agreement.  Japan, therefore,  had a keen interest in how those "as applied" 
measures would be treated in the internal process of the United States.  Japan continued to seek 
prompt and full compliance by the United States in th is matter with respect to all of the measures at 
issue.  With that in mind, Japan looked forward to the US clarification of its proposal in light of 
Japan's comments, which were provisional and not exhaustive.  Japan would continue to closely 
monitor developments and might ta ke appropriate action if necessary. 
37. The representative of the United States
 said that his country took note of Japan's comments 
and would convey Japan's questions to capital.  W ith respect to the issue of past reviews, the 
Department of Commerce had issued a proposal whic h was not final and did not prejudge what might 
happen in any specific past review.  The propo sal was subject to comment, including by WTO 
Members.  The United States would continue to work  with interested parties, including Japan, on a 
solution to this dispute as it moved forward with what everyone would agree was a very challenging 
domestic implementation process. 
38. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.13) 
39. The Chairman  drew attention to document WT/DS350/ 18/Add.13, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning the existence and application of zeroing methodology by the United States. 
40. The representative of the United States   said that his country had provided a status report in 
this dispute on 13 January 2011.  The United St ates had addressed the issue of compliance with the 
findings in this dispute in that status report, an d earlier during the discussion under Agenda item 1(e) 
of the present meeting.  The United States referred Members to the written status report and the statement it had just made for further details. 
41. The representative of the European Union
 said that his delegation welcomed the publication 
by the US Department of Commerce (USDOC) on 28 December 2010, of a proposal, which should, if 
adopted and implemented correctly, contribute to ending the practice of zeroing in administrative 
reviews.  The EU believed that the proposed we ighted average-to-weighted average methodology 
could satisfy WTO requirements only if:  (i) the new methodology was used so as to establish one  WT/DSB/M/291 
 Page 9 
 
 
single dumping margin for the whole review peri od, for the purposes of both the duty assessment and 
the cash deposit rate;  (ii) the US offset "negative" monthly amounts of dumping (i.e. where the weighted-average export price exceeded normal value) against "positive" monthly amounts of 
dumping, in all cases;  and, (iii) the amount of duty collected from importers under the new 
methodology never exceeded the exporter's dumping ma rgin.  The EU also noted that, despite what 
seemed like a move away from zeroing, the USDOC re tained the possibility, pursuant to the proposal, 
to use a different approach in reviews besides the weighted average-to-weighted average approach in 
some instances ("except where the Department determ ines that applications of a different comparison 
method is more appropriate.").  In that respect, the EU wished to ask the Unite d States to clarify what 
criteria the USDOC would use to vary from the "normal" method outlined in the proposal, and 
whether zeroing would be used in connection with  any alternative methods.  While the proposal by 
the USDOC was a step in the right direction it shoul d be clear that the proposal, even if adopted and 
implemented correctly, would not bring about fu ll implementation, unless it was supplemented by 
additional measures.   
42. Much to the EU's disappointment, the reasona ble period of time for implementation had 
expired over a year ago in the DS350 case and nearly four years ago in the DS294 case, without the 
United States having brought itself into full complia nce.  Since then duties calculated with zeroing 
had been imposed and liquidated contrary to US co mpliance obligations.  Even more worryingly, they 
continued to be imposed and collected.  The Appella te Body had made it clear that compliance in the 
context of zeroing implied not only cessation of zero ing in the assessment of duties, but also in 
consequent measures that, in the ordinary course of the imposition of anti-dumping duties, derived 
mechanically from the assessment of duties.  Conseque ntly, to the extent that a measure of this kind 
remained based on zeroing, the United States had fa iled to comply with the DSB's recommendations 
and rulings by applying that measure after th e end of the reasonable period of time.   
43. The US proposal of 28 December 2010 was not proposing to do anything with regard to 
duties imposed and collected contrary to the US compliance obligations, after the expiry of the 
reasonable period of time.  To the EU's knowledge, the United States had not yet taken any action to 
bring itself into compliance with its WTO obligations .  This raised serious concerns as to the US 
intention to fully implement the DSB's rulings an d recommendations.  The EU wanted to know how 
the United States intended to deal with excess duties paid.  Did the United States intend to correct the 
original review calculations by removing zeroing in each of the outstanding cases and would the United States do so immediately?  The EU urge d the United States to complete the process for 
adoption of the proposal swiftly and to address the is sue of excess duties paid, after the deadline for 
implementation had expired, without further delay.  The EU recalled that compliance in this and other 
zeroing disputes was already long overdue and that further delays and inco mplete implementation 
could not be acceptable. 
44. The representative of the United States
 said that his country took note of the EU's comments, 
and as with Japan's questions, would refer the EU's questions to capital.  However, the United States 
wished to briefly comment on two issues raised by th e EU.  With respect to past reviews, as had been 
noted under the previous sub-item, the Department of Commerce had issued a proposal.  The proposal 
was not final, did not prejudge what might happen in any specific past review, and was subject to comment.  The EU had also raised the issue of dutie s "imposed and collected after the expiry of the 
reasonable period of time".  With respect to the issue of duties already co llected, the United States 
would be interested in hearing more explanatio n from the EU on its position on this issue.  The 
United States was not aware of any other instan ces in which a Member had refunded duties in 
response to an adverse finding in a WTO dispute.  For example, the United States had understood that 
the EU had taken a very different approach in the Bananas dispute.  However, the EU's statement at 
the present meeting appeared to indicate a different position.  The United States wished, therefore, to 
ask the EU to explain how it refunded duties rela ted to the Bananas dispute where the reasonable 
period of time had expired in January 1999.  Th e United States would continue to work with WT/DSB/M/291 
Page 10  
 
interested parties, including the EU, on a solution to this dispute as it moved forward with the very 
challenging domestic implementation process. 
45. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(g) United States – Laws, regul ations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.7) 
46. The Chairman  drew attention to document WT/DS294/ 38/Add.7, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US laws, regulations and me thodology for calculating dumping margins. 
47. The representative of the United States  said that his country had provided a status report in 
this dispute on 13 January 2011.  The United St ates had addressed the issue of compliance with the 
findings in this dispute in that written status report, and earlier in the discussion under Agenda 
item 1(e) and 1(f).  The United States referred Memb ers to its written status report as well as those 
earlier statements for further details. 
48. The representative of the European Union  said that his delegation would refer Members to its 
statement under Agenda item 1(f) regarding the DS350 di spute.  All concerns raised in relation to 
implementation in that dispute only applied more fo rcefully in relation to this dispute, where the 
deadline for implementation had expired on 9 April 2007.  Once again, the EU urged the United States to work swif tly towards full compliance. 
49. The representative of the United States
 said that his country thanked the EU for the efficiency 
of its statement.  In that same spirit, the United States referred Members to its statements under the 
previous two Agenda sub-items in response to the EU's concerns. 
50. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17) 
51. The Chairman  drew attention to document WT/DS363/ 17, which contained the status report 
by China on progress in the implementation of th e DSB's recommendations in the case concerning 
China's measures affecting trading rights and distribution services for certain publications and 
audiovisual entertainment products. 
52. The representative of China  said that her country was presenting its status report, in 
accordance with Article 21.6 of the DSU.  On 19 January 2010, the DSB had adopted the Appellate 
Body Report and the Panel Report on this dispute and, on 12 July 2010, China and the United States 
had informed the DSB that the reasonable period  of time for implementation was 14 months.  
Accordingly, the reasonable period of time would expire on 19 March 2011.  China again reiterated 
its intention to implement the DSB's recommendati ons and rulings.  Following the DSB's adoption of 
the Appellate Body Report and the Panel Report, relevant Chinese agencies had begun to actively 
study various possible ways of implementation.  Co nsidering that this dispute concerned a number of 
Chinese administrative measures on cultural products and was embodied with more complexity and sensitivity than other disputes, China was actively e ngaged in its internal procedures on how to amend 
the relevant measures at issue to make them compliant with the DSB's rulings and recommendations. 
53. The representative of the United States
 said that his country thanked China for its status report 
and its statement.  As had been noted by China, the reasonable period of time in this dispute would  WT/DSB/M/291 
 Page 11 
 
 
expire on 19 March 2011.  The United States looked fo rward to China's implementation of the DSB's 
recommendations and rulings in connection with this  matter by that date.  In that regard, the 
United States welcomed China's statement at the pr esent meeting reaffirming its intention to comply 
within the reasonable period of time.   
54. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. Australia – Measures affecting the importation of apples from New Zealand 
(a) Implementation of the recommendations of the DSB 
55. The Chairman  recalled that, in accordance with the DS U provisions, the DSB was required to 
keep under surveillance the implementation of reco mmendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In that respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  He recalle d that at its meeting on 17 December 2010, the 
DSB had adopted the Appellate Body Report and th e Panel Report, as modified by the Appellate 
Body Report, in the case on:  "Australia – M easures Affecting the Importation of Apples from 
New Zealand".  The 30-day period in this case had expired on 16 January 2011 and, on 
10 January 2011, Australia had informed the DSB, in writing, of its intentions in respect of 
implementation.  The relevant communication was contained in document WT/DS367/18.  He invited 
the representative of Australia to make a statement. 
56. The representative of Australia  said that, at its meeting of 17 December 2010, the DSB had 
adopted the recommendations and rulings in the di spute:  "Australia – Measures Affecting the 
Importation of Apples from New Zealand".  New Zeala nd had agreed that Australia would inform the 
DSB of its intentions regardi ng implementation of the DSB's recommendations and rulings by written 
notification, rather than at a special meeting of the DSB, within the 30 da y time-frame required by 
Article 21.3 of the DSU.  As stated in its written communication circulated on 13 January 2011 
(WT/DS367/18), Australia intended to implement th e DSB's recommendations and rulings in this 
dispute in a manner consistent with its WTO obligat ions.  The Australian Government Department of 
Agriculture, Fisheries and Forestry, through Biosecu rity Australia, would conduct a review of the 
existing policy for New Zealand apples for the three pest s at issue in this dispute.  The review would 
be conducted to the standard of an import risk analysis, and would take into account the DSB's 
recommendations and rulings.  Australia would need  a reasonable period of time in which to conduct 
this review and implement the DSB's recommendati ons and rulings.  Australia was in discussions 
with New Zealand on this matter, in accorda nce with Article 21.3(b) of the DSU.  
57. The representative of New Zealand  said that her country thanked Australia for its written 
notification of its intentions date d 13 January 2011, indicating that it intended to implement the DSB's 
recommendations and rulings in this dispute, an d for its statement at the present meeting.  
New Zealand looked forward to further discussions with Australia on a reasonable period of time, 
under Article 21.3(b) of the DSU, for the implem entation of the DSB's rulings and recommendations 
in this dispute. 
58. The DSB took note  of the statements, and of the inform ation provided by Australia regarding 
its intentions in respect of implementation of the DSB's recommendations and rulings.  WT/DSB/M/291 
Page 12  
 
3. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Union and Japan 
59. The Chairman
 said that this item was on the Agenda of the present meeting at the request of 
the European Union and Japan.  He then i nvited the respective representatives to speak. 
60. The representative of the European Union  said that, as it had done many times before, the EU 
wished to ask the United States when it would e ffectively stop the transfer of anti-dumping and 
countervailing duties to the US industry, and hence, put an end to the condemned measure.  The fact 
that the United States had stopped disbursing duties collected after a certain period in time did not achieve full compliance.  Every disbursement that still took place was clearly an act of non-
compliance with the DSB's recommendations.  Once again, the EU renewed its call on the 
United States to abide by its clear obligation unde r Article 21.6 of the DSU and to submit status 
reports pertaining to this dispute. 
61. The representative of Japan
 said that the CDSOA disbursements for FY 2010 announced the 
previous month2 showed that the CDSOA remained opera tional.  As US Customs and Border 
Protection had explained, "the distribution pr ocess will continue for an undetermined period".3  Japan 
urged the United States to stop the illegal distributions  and repeal the CDSOA, not just in form but in 
substance, so as to resolve this dispute.  Accord ing to Article 21.6 of the DSU, the United States was 
under obligation to provide the DSB with a status report pertaining to this dispute. 
62. The representative of India  said that his country thanked the EU and Japan for regularly 
bringing this issue before the DSB.  India remain ed highly disappointed at the US continued operation 
of the CDSOA and shared the concerns of both Japan and the EU.  As stated on earlier occasions, 
India was concerned that non-compliance by Members led to a growing lack of credibility of the WTO dispute settlement system.  India agreed wi th the EU and Japan that the Byrd Amendment 
should continue to remain under the surveilla nce of the DSB until the United States ceased to 
administer it. 
63. The representative of Brazil
 said that his country thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  Brazil urged the United States to stop making disbursements pursuant to the CDSOA and to implement the DSB's recommendati ons and rulings pertaining to this dispute.  
Only then would the issue in this  dispute be "resolved" within the meaning of Article 21.6 of the DSU 
and the United States would no longer be required to provide status reports. 
64. The representative of Canada
 said that her country thanked the EU and Japan for placing this 
item on the DSB's Agenda.  Canada wished to reitera te its view that the CDSOA remained subject to 
the surveillance of the DSB until the Un ited States ceased to administer it. 
65. The representative of Thailand  said that his country thanked the EU and Japan for continuing 
to bring this item before the DSB and supported the statements made by previous speakers.  Thailand 
continued to urge the United States to fully comp ly with the DSB's rulings and recommendations on 
this matter. 
                                                      
2 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/tr ade/priority_trade/add_cvd/cont_dump/annual_report/ 
3 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trad e/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml  WT/DSB/M/291 
 Page 13 
 
 
66. The representative of China  said that her country thanked the EU and Japan for raising this 
matter at the DSB meeting.  China shared the conc erns expressed by previous speakers and joined 
them in urging the United States to fully comply with the DSB's rulings. 
67. The representative of the United States  said that, as his country had already explained at 
previous DSB meetings, the US President had signed the Deficit Reduction Act into law on 
8 February 2006.  That Act included a provisio n repealing the Continued Dumping and Subsidy 
Offset Act of 2000.  Thus, the United States had ta ken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes.  Furthermore, the United States recalled that Members, including the EU and Japan, had acknowl edged during previous DSB meetings that the 
2006 Deficit Reduction Act did not permit the distribu tion of duties collected on goods entered after 
1 October 2007.  The United States, therefore, di d not understand the purpose for which the EU and 
Japan had inscribed this item on the Agenda of the present meeting.  With respect to comments 
regarding further status reports, the United Stat es failed to see what purpose would be served by 
further submission of status reports repeating, ag ain, that the United States had taken all actions 
necessary to implement the DSB's recomme ndations and rulings in these disputes. 
68. The DSB took note
 of the statements. 
4. Dominican Republic – Safeguard measures on  imports of polypropylene bags and 
tubular fabric 
(a) Request for the establishment of a panel by Costa Rica (WT/DS415/7) 
(b) Request for the establishment of a panel by Guatemala (WT/DS416/7) 
(c) Request for the establishment of a panel by Honduras (WT/DS417/7) 
(d) Request for the establishment of a panel by El Salvador (WT/DS418/7) 
69. The Chairman  proposed that the four sub-items to wh ich he had just referred be considered 
together since they pertained to the same matter. First, he drew attention to the communication from 
Costa Rica contained in document WT/DS415/7 and i nvited the representative of Costa Rica to speak. 
70. The representative of Costa Rica  said that, on 5 October 2010, the Dominican Republic had 
announced the imposition of the safeguard measures on imports of polypropylene bags and tubular 
fabric from Costa Rica.  On 15 October 2010, Cost a Rica had responded by requesting consultations 
with the Dominican Republic, since it considered  the safeguard measures to be inconsistent, inter alia , 
with Article XIX of the GATT 1994 and with the Ag reement on Safeguards.  El Salvador, Honduras 
and Guatemala had also requested consultations on the same measure.  Those consultations had been 
held on 16 and 17 November 2010 but, unfortunately, they had not resulted in a mutually satisfactory 
solution.  Consequently, on 15 December 2010, Cost a Rica had requested the DSB to establish a panel 
to examine the matter.  As Costa Rica had explained in its request for the establishment of a panel, the 
measures imposed by the Dominican Republic viol ated its WTO obligations, and had caused its 
imports of polypropylene bags and tubular fabric from Costa Rica to cease entirely, thus having a negative effect on Costa Rica's industry.  Costa Ri ca wished to express its systemic concern about the 
growing number of occasions in the past few mont hs on which the Dominican Republic had resorted 
to the Article XIX safeguard mechanism to restrict  imports.  The ease and frequency with which the 
Dominican Republic had resorted to what was an  exceptional mechanism was a source of serious 
concern.  Since other Members had also requested  the establishment of a panel on the same matter, 
Costa Rica was requesting, pursuant to Article 9.1 of  the DSU, the establishment of a single panel, to 
examine the different complaints, with standard term s of reference as set out in Article 7 of the DSU. WT/DSB/M/291 
Page 14  
 
71. The Chairman
 drew attention to the communication from Guatemala contained in document 
WT/DS416/7 and invited the representative of Guatemala to speak. 
72. The representative of Guatemala  said that his country also considered the safeguard measures 
imposed by the Dominican Republic on imports of polypropylene bags and tubular fabric to be 
inconsistent, inter alia , with Article XIX of the GATT 1994 and the Agreement on Safeguards.  For 
that reason, Guatemala had requested consultations  with the Dominican Republic on the matter on 
15 October 2010.  The consulta tions had taken place on 16 and 17 November 2010.  Unfortunately, 
although the consultations had helped to narrow the gap between the parties and had enabled them to 
exchange views on the challenged measures, they had not resolved the dispute.  Consequently, 
Guatemala had requested that the DSB establish a pane l to examine this matter.  Since other Members 
had also requested the establishment of a panel on the same matter, Guatemala was requesting, 
pursuant to Article 9.1 of the DSU, the establishm ent of a single panel to examine the different 
complaints, with standard terms of refere nce, as set out in Article 7 of the DSU. 
73. The Chairman  drew attention to the communicati on from Honduras contained in document 
WT/DS417/7 and invited the representative of Honduras to speak. 
74. The representative of Honduras  said that, on 18 October 2010, Honduras had requested 
consultations with the Dominican Republic regard ing its safeguard measures imposed on imports of 
polypropylene bags and tubular fabric.  Honduras considered those measures to be inconsistent, inter 
alia, with Article XIX of the GATT 1994 and with the Agreement on Safeguards.  The consultations 
had been held on 16 and 17 November 2010, but unfor tunately, although the c onsultations had helped 
to narrow the gap between the parties and had en abled them to exchange views on the challenged 
measures, they had not resolved the matter.  Ther efore, Honduras had requested the establishment of a 
panel to examine this matter.  Since other Member s had also requested the establishment of a panel on 
the same matter, Honduras was requesting, pursuant to  Article 9.1 of the DSU, the establishment of a 
single panel to examine the different complaints w ith standard terms of re ference as set out in 
Article 7 of the DSU. 
75. The Chairman  drew attention to the communication fro m El Salvador contained in document 
WT/DS418/7 and invited the representative of El Salvador to speak. 
76. The representative of El Salvador  said that, on 19 October 2010, his country had requested 
consultations with the Dominican Republic regard ing its safeguard measures imposed on imports of 
polypropylene bags and tubular fabr ic.  El Salvador considered that those measures were inconsistent 
with, inter alia , Article XIX of the GATT 1994 and with th e Agreement on Safeguards.  El Salvador, 
together with other Members that had been affect ed by the safeguard measures on polypropylene bags 
and tubular fabric, had held cons ultations with the Dominican Republic on 16 and 17 November 2010.  
Unfortunately, although those consultations had help ed to narrow the gap between the parties and had 
enabled them to exchange views on the challenged measu res, they had not resolved the dispute.  Prior 
to the consultations, El Salvador had expressed concern regarding the measures at issue through 
various official channels, including the Committee on Safeguards.  Nevertheless, pursuant to a 
resolution of the Commission for the Regulation of Unfair Trade Practices and Safeguard Measures of 
the Dominican Republic, the definitive safeguard me asure on polypropylene bags  and tubular fabric, 
which had a negative impact on El Salvador's exports  to the Dominican Republic's market, had been 
in force since 18 October 2010.  Consequently, El  Salvador had requested the DSB to establish a 
panel to examine this matter.  Since other Member s had also requested the establishment of a panel on 
the same matter, El Salvador was requesting, pursuan t to Article 9.1 of the DSU, the establishment of 
a single panel to examine the different complaints with standard terms of reference as set out in 
Article 7 of the DSU. 
77. The representative of the Dominican Republic  said that his country thanked its Central 
American trading partners for their statements.  As  had been indicated, the consultations held on 16  WT/DSB/M/291 
 Page 15 
 
 
and 17 November had enabled the parties to the dis putes to exchange views.  However, one could not 
claim that this matter could have been resolved in  one round of consultations.  Therefore, at the 
present meeting, the Dominican Republic was not in  a position to agree to the establishment of a 
panel requested by Costa Rica, Guatemala, H onduras and El Salvador. The Dominican Republic 
believed that the parties' efforts to continue thei r dialogue should be pursued and was open to any 
such dialogue. 
78. The DSB took note  of the statements and agreed  to revert to these matters. 
5. European Communities – Definitive anti-dumping measures on certain iron or steel 
fasteners from China 
(a) Joint request by the European Union and Ch ina for a decision by the DSB (WT/DS397/6) 
79. The Chairman  drew attention to the communication from the European Union and China 
contained in document WT/DS397/6 and invited the representative of China to speak. 
80. The representative of China  said that, as had been stated in the procedural agreement between 
the EU and China, taking into account the current wo rkload of the Appellate Body, the parties to the 
dispute had agreed that the 60-day time period in Artic le 16.4 of the DSU as applicable to the dispute:  
"EC – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China", be 
extended to 25 March 2011.  China considered that a DSB decision for this purpose would provide greater flexibility in scheduling, given the heavy workload of the Appellate Body.  
81. The representative of the European Union
 said that, as it had already been stated by China, in 
order to take into account the current workload of th e Appellate Body, the parties to the dispute:  "EC 
– Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China", had concluded a 
procedural agreement regarding the time period unde r Article 16.4 of the DSU.  Therefore, at the 
present meeting, the EU was requesting the DSB to adopt the draft decision, as set out in document 
WT/DS397/6. 
82. The DSB took note  of the statements.  
83. The Chairman  proposed that:  "The DSB agree that, upon a request by China or the European 
Union, the DSB shall no later than 25 March 2011 a dopt the Report of the Panel in the dispute:  
"European  Communities – Definitive Anti-Dumping Measur es on Certain Iron or Steel Fasteners 
from China ", contained in document WT/DS397/R, unless (i) the DSB decides by consensus not to do 
so or (ii) China or European Union notifies the DS B of its decision to appeal pursuant to Article 16.4 
of the DSU". 
84. The DSB so agreed . 
6. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/440) 
85. The Chairman  drew attention to document WT/DSB /W/440, which contained additional 
names proposed for inclusion in the indicative lis t of governmental and non- governmental panelists, 
in accordance with Article 8.4 of the DSU.  He proposed that the DSB approve the names contained 
in document WT/DSB/W/440. 
86. The DSB so agreed . 
__________