RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/286 
22 October 2010 
 (10-5504) 
Dispute Settlement Body 
31 August 2010  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 31 August 2010  
 
Chairman:  Mr. Yonov Frederick Agah (Nigeria) 
 
  Prior to the adoption of the Agenda
, the item concerning the Pane l Report in the case on:  
"Australia – Measures Affecting the Importati on of Apples from New Zealand" (DS367) was 
removed from the proposed Agenda following Aust ralia's decision to appeal the Report.  
  Prior to the closure of the meeting
, the Chairman and many delegations made statements to 
pay tribute to the outgoing Director of the Lega l Affairs Division, Mr. Bruce Wilson, expressing 
appreciation for his invaluable contribution to the WTO.  
 
 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...................................................................................6  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........7  
(d) European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union .........................................................................7  
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by the United States .............................................................................................................. ...........8
 
(f) United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States.................................................................................................... ......9  
(g) United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status repor t by the Unite d States..........................................................................9  
                                                      
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/286 
Page 2  
 
  2.
 United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ..........................................10  
(a) Statements by the European Union and Japan ..........................................................................10  
3. United States – Anti-dumping measures on  polyethylene retail carrier bags from 
Thailand....................................................................................................................... ............11  
(a) Statement by the United States on implementation of the recommendations adopted 
by the DSB..................................................................................................................... ...........11  
4. Proposed nomination for the indicative list of governmental and 
non-governmental panelists ...................................................................................................12  
5. Amendments to the Working Procedures for Appellate Review........................................12  
(a) Statement by the Chairman...................................................................................................... .12 
 
 
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.93) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.93) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.68) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.31) 
 
(e) United States – Measures relating to zeroi ng and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.11) 
 (f) United States – Continued existence and app lication of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.8) 
 
(g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.2) 
  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 issu e was resolved.   
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.93) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.93, 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/286 
 Page 3 
 
 
  3. The representative of the United States  said that his country had provided a status report in 
this dispute on 19 August 2010, 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 First Session of the current, 111th Congress.  The Second Session 
of the 111th Congress had begun in January 2010.  Th e Committee on the Judiciary of the House of 
Representatives had held a hearing on certain of t hose proposals on 3 March 2010.  In addition, the 
US administration was working with Congress to implement the DSB's recommendations and rulings in this dispute. 
4. The representative of the European Union
 said that, at the present meeting, the United States 
was presenting yet another status report in this di spute.  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, each month, Members expected the parties to this 
dispute to provide new information to enable them  to understand what was be ing done, and what steps 
were being taken to comply with the Appellate Bo dy's ruling made more than eight years ago.  
However, once again, the US status report contained the same information, which had repeatedly been 
heard by Members.  Pursuant to Article 21.6 of th e DSU, status reports must provide information on 
progress in the implementation of the DSB's recommendations and rulings.  However, since there was not much real progress to report in this dispute, th e United States was not in a position to comply with 
its obligation under Article 21.6 of the DSU.  Th e implementing Member should inform the DSB of 
content, scope and progress of the legislative pr oposals relating to Section 211, and how it would 
bring itself into compliance with the DSB's recomme ndations and rulings.  In Cuba's view, disputes 
concerning legislations that were contrary to th e basic principles of the TRIPS Agreement questioned 
the very basis of the multilateral trading system  and undermined its effectiveness.  The multilateral 
trading system was designed to ensure that disputes were resolved rapidly in a structured manner and 
in such a way so as to rectify negative trade eff ects.  It was also designed to redress the imbalance 
between strong and weak Members by enforcing rules to ensure that "might does not make right" and 
that solutions were not unilateral.  Therefore, if  the DSB's recommendations were to be disregarded, 
the multilateral trading system would be seriously under mined.  The parties to this dispute were aware 
that many Members wished that this dispute be settled as soon as possible.  Certainly, Cuba was more affected than any other country by the parties' lack  of political will in finding a solution to this long-
standing dispute.  However, Cuba was not the only count ry interested in the resolution of this dispute.  
Article 21.2 of the DSU stipulated that particular attention should be paid to matters affecting the 
interests of developing-country Members.  This impor tant provision was being ignored by the parties, 
and in particular by the United States, which had a selective approach to compliance with its 
obligations under the TRIPS Agreement.  It was of serious concern that a Member put into place laws 
aimed at usurping a third party's registered intangible assets.  If the trademarks involved were to be US trademarks or European geographical indications , the situation would have been different.  The 
HAVANA CLUB trade mark had been registered according to US law by  the Cuban company 
CUBAEXPORT in 1976.  It was BACARDI's interest in appropriating that trademark that had led to 
the so-called Section 211.  As stated by the Appella te Body in its concluding remarks in paragraph 
363 of its Report pertaining to this dispute:  "where a WTO Member chooses not to recognize 
intellectual property rights in its ow n territory relating to a confiscation of rights in another territory, a 
measure resulting from and implementing that choice must, if it affects other WTO Members, comply 
with the TRIPS Agreement, by which all WTO Members are voluntarily bound".  Some Members 
might find the monthly reporting obligation to be tedious  and consider it to be an empty exercise.  At 
the same time, Members were awar e that there was no will to comply in this dispute and that 
discriminatory treatment was accorded to a small c ountry like Cuba.  Members were right that this 
Agenda item was a tiresome business.  However, ne ither Cuba nor the majority of Members were 
responsible for the violations committed by one pow erful country.  However, Members were wrong to 
question the value of denouncing US violations of international law.  Cuba  believed that the main WT/DSB/M/286 
Page 4  
 
  weapon against the use of force and the violation of  international law by more powerful countries was 
the ethical call for justice.  Thus, C uba would not waiver in that effort. 
6. The representative of India
 said that his country thanked the United States for its status report.  
India noted with disappointment that there was no change  in the status of compliance in this dispute.  
The continued non-compliance by the United States w as a matter of serious systemic concern as this 
non-conformity eroded the confidence and the cr edibility that Members placed in the dispute 
settlement system.  India urged the United States to  take immediate steps to comply with the DSB's 
rulings and the recommendations in this  dispute without any further delay. 
7. The representative of Ecuador  said that his country thanked the United States for its status 
report but regretted that the United States did not me ntion as to when it expected to comply with the 
DSB's recommendations and rulings.  Ecuador full y supported Cuba's stat ement and recalled that 
Article 21 of the DSU stated that prompt complia nce with the DSB's recommendations or rulings was 
essential, and that particular attention should be paid  to matters affecting the interests of developing-
country Members.  Ecuador, once again, urged the US administration and Congress to fully repeal Section 211 and asked the EU to provide more info rmation on the steps being taken to resolve this 
dispute. 
8. The representative of China
 said that his country thanked the United States for its status 
report.  China regretted that the report simply re iterated what had been stated at previous DSB 
meetings and that, after eight years since the adopti on of the relevant Reports by the DSB, there was 
no sign of compliance.  China believed that this situ ation was not in line with the principle of prompt 
implementation stipulated in the DSU provisions an d that it was highly inappropriate for a developed-
country Member to prolonge non-compliance in a dispute that involved the interests of a developing-
country Member.  China strongly supported Cuba a nd urged the United States to implement the DSB's 
decision as soon as possible. 
9. The representative of Brazil  said that his country thanked the United States for its status 
report.  As at previous DSB meetings, the Unite d States again failed to report on progress in the 
implementation of the DSB's recommendations in this dispute.  Thus, Brazil joined previous speakers 
in urging the United States to bring its measures into  conformity with the multilateral trade disciplines 
without further delay. 
10. The representative of the Bolivar ian Republic of Venezuela  said that her country, once again, 
supported Cuba on this matter.  This dispute, whic h had been initiated more than eight years ago, 
raised questions about the functioning of the multila teral trading system, due to the repeated and 
prolonged failure by the United States to comply with the Appellate Body's ruling, and the continued 
application by the United States of the legislation that was inconsistent with the TRIPS Agreement 
and the Paris Convention for the Protection of Intellect ual Property.  In its most recent status report, 
the United States stated that "the US Administratio n will continue to work with the US Congress with 
respect to appropriate statutory measures that would resolve this matter".  In Venezuela's view, this 
constituted "action without results", action which di d not yield any results.  Venezuela, therefore, 
requested the United States to provide further in formation on the work supposedly being carried out 
with Congress, so as to demonstrate that the US st atement was not merely a delaying tactic, but its 
genuine commitment towards compliance with the Appe llate Body's decision.  Venezuela, once again, 
urged the United States to comply with the DS B's recommendations so as to avoid calling into 
question the functioning of the WTO, and to ensure that the trademark concerned was returned to its 
original and rightful owners.  Venezuela called on the United States to repeal Section 211, thereby 
meeting its WTO obligations and restoring Cuba's  rights.  If not, the economic, commercial and 
financial embargo policy that ha d affected Cuba as a WTO Member since 1962 would remain in 
effect.  WT/DSB/M/286 
 Page 5 
 
 
  11. The representative of Viet Nam  said that his country thanked the United States for its status 
report and supported Cuba's statement.  The prompt  settlement of disputes and the compliance of the 
DSB's rulings and recommendations was essential fo r the effective functioning of the WTO.  
Viet Nam, therefore, urged the United States to co mply with the DSB's rulings and recommendations 
in this case as soon as possible. 
12. The representative of Uruguay  said that his country shared the systemic concerns expressed 
by previous speakers.  It was extremely important  for Members to comply promptly with the DSB's 
recommendations since this was essential for ensuring the smooth functioning of the dispute 
settlement system and its credibility, as well as for ma intaining legal certainty and effective balance of 
rights and obligations provided under the multilateral trading system.  Uruguay, once again, urged the 
United States to do its utmost to comply with the DSB's recommendations. 
13. The representative of Paraguay  said that her country thanked the United States for its status 
report.  Paraguay expressed concern that there had been no progress made to comply with the DSB's 
ruling in this dispute and that the United States had not repealed Section 211. 
14. The representative of Mexico  said that his country thanked the United States for its status 
report.  Mexico had taken note of the US status re port and urged the parties to resolve this dispute 
through legal remedies available under the DSU.  It was Mexico's understanding that any WTO 
Member that considered itself to be affected by the lack of compliance in this dispute could initiate its 
own dispute, in accordance with the DSU provisions.  
15. The representative of Argentina  said that his country thanked the United States for its status 
report and reiterated its concern about the lack of concrete progress in implementing the DSB's 
recommendations over a long period of time.  The delay in implementing the DSB's recommendations 
undermined the ability of the dispute settlement syst em to solve disputes.  Argentina, once again, 
called on the parties to the dispute, in particular the United States, to ensure full compliance with the 
DSB's ruling. 
16. The representative of Angola  said that her country thanked the United States for providing 
information on the implementation of the DSB's decision and the Appellate Body's Report of 
12 February 2002 on Section 211.  Angola recalled that the prompt compliance with the DSB's 
recommendations and rulings was essential to ensure an  effective resolution of disputes to the benefit 
of all WTO Members.  As was well known, the Pa nel Report had concluded in August 2001 that 
Section 211 was inconsistent with Article 42 of the TRIPS Agreement and the Appellate Report had 
confirmed, in February 2002, that Section 211 violated the national treatment and most-favoured-
nation principles under the TRIPS Agreement and the Paris Convention for the protection of industrial 
property and had requested the United States to bring this measure into confor mity with its obligation 
under the TRIPS Agreement.  The delay in the implem entation of the DSB's deci sion, despite the fact 
that the DSB had determined that Section 211 was inconsistent with the WTO rules and principles, 
affected the WTO dispute settlement system which was a central element in providing security and 
predictability for all Members and set a negative precedent for similar cases.  Angola believed that 
concrete actions by the parties in this dispute w ould send a positive signal of respect for WTO rules. 
17. The representative of Nicaragua  said that disputes between Members with different economic 
capacities tested their will to comply with WTO rules and the DSB's rulings and recommendations.  
However, Members' commitment to implemen t the DSB's rulings and recommendations was 
unequivocal.  Nicaragua regretted that this matter w as being permanently included under item 1 of the 
DSB's Agenda and that no progress had been reported at the present meeting regarding the steps taken 
to implement the DSB's rulings and recommendations  in this dispute.  Nicaragua hoped that the 
United States would make genuine efforts to re solve this long-running dispute and urged the 
United States to take the necessary steps without further delay. WT/DSB/M/286 
Page 6  
 
  18. The representative of the United States
 said that, in response to the statements made by some 
Members regarding systemic concerns about the di spute settlement system, as the United States had 
said on numerous occasions, the facts simply did not support Members' assertions or justify such systemic concerns.  The record was clear:  the Un ited States had come into compliance, fully and 
promptly, in the vast majority of its disputes.  As  for the remaining few instances where its efforts to 
do so had not yet been entirely successful, the Un ited States had been working actively towards 
compliance in furtherance of the purpose of the di spute settlement system.  In relation to efforts 
towards compliance in this dispute, the United States had previously noted that a number of 
legislative proposals had been introduced in the US House of Representatives and the US Senate.  
These included H.R. 188, H.R. 1530, H.R. 1531, H.R. 2272, S. 1089, H.R. 1103 and S. 1234.  These 
bills would repeal or clarify Section 211. 
19. The representative of Cuba
 said that, as had just been pointed out, the United States had 
complied in the vast majority of its disputes.  However, the United States was a defender of the 
dispute settlement system which protected its rights.  Therefore, this system did not take into account 
special and differential treatment, it did not promot e the right to development nor did it take into 
account concerns of the most vulnerable countri es.  The WTO system contained imbalances and 
inequalities and, for historical reasons as well, due to the international economic order, the 
United States had a privileged position under this sy stem.  As demonstrated by statistics, in the 
majority of disputes the United States tried to co nsolidate its interests and hegemonic dominance.  
One could look at the compliance record from various points of view.  One could argue that if Members did not comply within a short period of time, their compliance record was poor.  Cuba did 
not believe that the Section 211 dispute was the only dispute where the United States violated WTO 
rules.  However, even if this were the only dispute where no compliance had taken place over the 
period of eight years, it would be sufficient to c onclude that the United States was not in compliance 
with its obligations.  Cuba recognized that the US  representative had a difficult task of supporting a 
policy which was unfair and had to make its statemen t.  However, Cuba could not give any credibility 
to what had just been stated  by the United States.    
20. 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.93) 
21. The Chairman  drew attention to document WT/DS184/ 15/Add.93, 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. 
22. The representative of the United States  said that his country had provided a status report in 
this dispute on 19 August 2010, in accordance with Article 21.6 of the DSU.  As of 
23 November 2002, the US authorities had addresse d the DSB's recommendations and rulings with 
respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty 
investigation at issue in this dispute.  Details were provided in document 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 the appropriate 
statutory measures that would resolve this matter. 
23. 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  and rulings, Japan was still waiting for statutory 
action to be taken by the United States.  Japan ho ped that the United States would soon be in a  WT/DSB/M/286 
 Page 7 
 
 
  position to report to the DSB more tangible progress.  Full and prompt implementation of the DSB's 
recommendations and rulings was "essential to the effective functioning of the WTO and the 
maintenance of a proper balance of th e rights and obligations of Members".2  Japan called on the 
United States to fully implement the DSB's recommendations in this long-standing dispute without further delay.  
24. 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.68) 
25. The Chairman  drew attention to document WT/DS160/ 24/Add.68, 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. 
26. The representative of the United States  said that his country had provided a status report in 
this dispute on 19 August 2010, in accordance with Article 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. 
27. The representative of the European Union  said that the United States had again reported non-
compliance and the EU was again disappointed.  As it had been from the beginning, the EU remained 
ready to work with the US authorities towa rds the complete resolution of this case. 
28. 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.31) 
29. The Chairman  drew attention to document WT/DS291/ 37/Add.31, 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. 
30. The representative of the European Union  said that, once again, his delegation noted that the 
EU regulatory procedures on biotech products continued to work as foreseen in the legislation.  On 
28 July 2010, the Commission had adopted new authorizations for GM maize MON89034xNK603, 
Bt11xGA21, MON88017xMON810, 59122x1507xNK 603 and 1507x59122 and had renewed the 
authorization for maize Bt11.  Those five new au thorization decisions raised the number of GMOs 
authorized since the date of establishment of the Pa nel to thirty-four.  Progress had also been made on 
other applications for authorization.  For exampl e, the European Food Safety Agency had delivered 
favourable opinions on four GM events (GM maize MIR604xGA21, GM maize Bt11xMIR604 and 
GM maize Bt11xMIR604xGA21 and GM cotton 281-24-23 6 x 3006-210-23).  In an effort to further 
streamline EU authorization procedures, while taking into consideration legitimate concerns raised by 
EU member States, the European Commission ha d adopted, on 13 July 2010, a package proposal 
regarding cultivation of GM crops.  This proposal al lowed member States to decide on the cultivation 
of GM crops authorized at EU level in their te rritory, taking into consideration their specific 
conditions.  The proposal made clear  that any member State measure should be limited to cultivation 
itself and not impede marketing or trade in GM seeds,  and that it should be cons istent with obligations 
both under the EU Treaties and the WTO Agreements.  The EU welcomed the US decision to re-
                                                      
2 Article 3.3 of the DSU. WT/DSB/M/286 
Page 8  
 
  engage in a technical dialogue on biotechnology with  the EU.  A meeting between relevant services 
from the European Commission and the US authorities had taken place in July 2010.  The EU hoped that this was the first step towards a constructiv e approach based on dialogue which would allow the 
parties to leave litigation aside. 
31. The representative of the United States
 said that his country thanked the EU for its status 
report and its statement.  Although the EU had recen tly approved several biotech applications pending 
in its approval pipeline, the EU had not resolved the fundamental problems in the operation of its regulatory system for biotech products.  A number of  pending biotech applications were still affected 
by lengthy delays, including two of the products which the DSB had found to be unduly delayed in 
breach of the EU's WTO obligations.  In addition,  even though the DSB had found nine bans adopted 
by individual EU member States on products approved at the EU level to be in breach of the EU's 
WTO obligations, EU member States continued to a dopt and maintain such bans.  As the EU had 
noted in its status report, US and EU officials had held discussions in July 2010 to discuss matters 
related to the EU's regulation of biotech products.  The United States appreciated the efforts taken by 
the Commission in organizing the meeting and had found the discussions to be constructive.  The 
United States was reviewing the information recei ved during the discussions, and would continue to 
monitor developments regarding the EU's biotech approval system. 
32. 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.11) 
33. The Chairman  drew attention to document WT/DS322/ 36/Add.11, 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. 
34. The representative of the United States  said that his country had provided a status report in 
this dispute on 19 August 2010, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With respect to the outstanding issues, the United States would con tinue to consult with 
interested parties in order to address those issues. 
35. The representative of Japan  said that his country thanked the United States for its statement 
and its most recent status report.  The United States had stated in its status reports that it "will continue to consult with interested parties in orde r to address the findings contained in [the Appellate 
Body and the panel] reports" adopted by the DSB on 31 August 2009.  Japan took this statement as an 
expression of commitment by the United States to fully implement the DSB's recommendations and 
rulings.  Once again, Japan called on the United St ates to fulfil its commitment by taking immediate 
and concrete action so as to resolve this dispute. 
36. The representative of the European Union
 said that his delegation wished to reiterate its 
disappointment over the lack of any real progress by the United States on compliance with adverse 
rulings on zeroing in this dispute.  The EU recalled that immediate compliance with the DSB's recommendations and rulings was not an option, but an obligation under the DSU. 
37. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting.  WT/DSB/M/286 
 Page 9 
 
 
  (f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.8) 
38. The Chairman  drew attention to document WT/DS350/ 18/Add.8, 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. 
39. The representative of the United States  said that his country had provided a status report in 
this dispute on 19 August 2010, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With regard to the remaining issues, the United States would continue to consult with interested parties. 
40. The representative of the European Union
 said that his delegation's concerns about the lack of 
implementation in this case were well known and were recorded in th e minutes of past DSB meetings.  
Despite encouraging political statements, the fi nal determination in Section 129 proceeding of 
12 March 2010 left the EU perplexed as to the US in tentions on compliance with the ruling in this 
dispute.  The EU continued to urge the United States to reconsider its Section 129 determination 
immediately and to implement the DSB's ruling. 
41. 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.2) 
42. The Chairman  drew attention to document WT/DS294/ 38/Add.2, 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. 
43. The representative of the United States  said that his country had provided a status report in 
this dispute on 19 August 2010, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, the United States had already taken a number of steps to implement the DSB's 
recommendations and rulings in this dispute.  Th e United States would continue to consult with 
interested parties with regard to the remaining issues.  Finally, as mentioned in previous DSB 
meetings, the EU had requested authorization from the DSB to suspend concessions or other 
obligations in this dispute, and the United Stat es had objected to the EU's request.  Therefore, 
pursuant to Article 22.6 of the DSU, the matter had been referred to arbitration. 
44. The representative of the European Union  said that his delegation wished to reiterate its 
disappointment over the lack of any real progress by the United States on compliance with adverse 
rulings on zeroing in this dispute.  The EU recalled that immediate compliance with the DSB's recommendations and rulings was not an option, but an obligation under the DSU. 
45. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/286 
Page 10  
 
  2. 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 
46. 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. 
47. The representative of Japan  said that, on 2 June 2010, US Customs and Border Protection 
published "FY2010 Preliminary CDSOA Amount Available"3 and that a new round of distributions 
under the CDSOA appeared to be underway.  That latest action showed that the CDSOA remained 
operational.  As US Customs and Border Protecti on had explained, "the distribution process will 
continue for an undetermined period".4  Under these circumstances, Japan had decided to continue, as 
from 1 September 2010, to suspend concessions a nd related obligations under GATT 1994 for another 
year to induce full compliance by the United States.  Details of this determ ination were provided in 
Japan's notification to the DSB, dated 25 August 2 010, which would be circulated to all Members on 
31 August 2010 as document WT/DS217/58.  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 
once and for all.  According 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.  
48. The representative of the European Union  said that, as had previously been done on many 
occasions, the EU wished to ask the United States wh en it would effectively stop the transfer of anti-
dumping and countervailing duties to the US industry and, hence, put an en end to the condemned measure.  The EU, once again, renewed its call on the United States to abide by its clear obligation 
under Article 21.6 of the DSU and to submit status reports in this dispute. 
49. The representative of Brazil
 said that his country thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  As the United States c ontinued to make disbursements pursuant to the 
CDSOA, this dispute was not resolved.  Once again,  Brazil urged the United States to fully implement 
the DSB's recommendations and rulings in this dis pute and to provide regular status reports as 
required by Article 21.6 of the DSU. 
50. The representative of Canada  said that her country agreed with the EU and Japan that the 
Byrd Amendment remained subject  to the surveillance of the DS B until the United States ceased to 
administer it. 
51. The representative of India  said that his country appreciated the EU and Japan for constantly 
bringing this matter before the DSB.  India shared  their concerns and registered its disappointment 
over the US continued disbursement of WTO-inc onsistent payments under the CDSOA.  India was 
concerned that non-compliance by Members undermin ed the WTO dispute settlement system and the 
WTO's credibility.  India agreed with the EU and Ja pan that the Byrd Amendment remained subject to 
the surveillance of the DSB until the Un ited States ceased to administer it. 
52. The representative of Thailand  said that his country thanked Japan and the EU for continuing 
to bring this matter before the DSB and supporte d the statements made by previous speakers.  
Thailand urged the United States to cease the dis bursements, repeal the Byrd Amendment with 
                                                      
3 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trade/pr iority_trade/add_cvd/cont_dump/  
4 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/tr ade/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml   WT/DSB/M/286 
 Page 11 
 
 
  immediate practical effect, and resume the submissi on of status reports until such actions had been 
taken and this matter was fully resolved. 
53. The representative of China  said that his country thanked the EU and Japan for raising this 
matter at the DSB meeting.  China shared the con cerns expressed by previous speakers and wished to 
join them in urging the United States to  fully comply with the DSB's rulings. 
54. 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 in this matter, the United States failed to see what purpose would be 
served by further submission of status reports rep eating, again, that the United States had taken all 
actions necessary to implement the DSB's recommendations and rulings in these disputes.  With respect to Japan's renewal of measures suspending concessions, the United States would be reviewing 
carefully the measures taken by Japan.  As the United States had previously observed, the DSB only 
authorized the suspension of concessions or othe r obligations as provided in the Award of the 
Arbitrator. 
55. The DSB took note
 of the statements. 
3. United States – Anti-dumping measures on polyethylene retail carrier bags from 
Thailand 
(a) Statement by the United States on implementation of the recommendations adopted by the 
DSB 
56. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the United States.  He then invited the re presentative of the United States to speak.  
57. The representative of the United States  said that his country was pleased to report that it had 
implemented the DSB's recommendations and rulings in the dispute:  "US – Anti-Dumping Measures 
on Polyethylene Retail Carrier Bags from Thailand".  The United States and Thailand had agreed to a 
reasonable period of time of six months from the date of adoption of the Panel Report.  That 
reasonable period of time had e xpired on 18 August 2010.  The US Department of Commerce had 
recalculated the margins of dumping from the investigation for two respondents, providing offsets for non-dumped comparisons.  The recalculated margin  for one of the respondents was zero, and the 
Department had revoked the order with respect to th at respondent.  In addition, the Department had 
recalculated the all-others rate.  The implementati on of the Department's new determination, including 
the revocation with respect to one respondent, wa s effective from 28 July 2010.  Therefore, the 
United States had implemented the DSB's recommenda tions and rulings prior to the expiry of the 
reasonable period of time in this dispute. 
58. The representative of Thailand
 said that his country thanked the United States for its status 
report on the implementation of the recommendati on adopted by the DSB in this dispute on 
18 February 2010.  Thailand appreciated the United St ates for its continued co operation in this case, 
and in particular its timely determination under Section 129 of the Uruguay Round Agreement Act.  WT/DSB/M/286 
Page 12  
 
  Thailand would continue to monitor the implementation of this determ ination to ensure that traders 
benefited fully from the Panel's rulings and recommendations in this dispute. 
59. The DSB took note
 of the statements. 
4. Proposed nomination for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/432) 
60. The Chairman  drew attention to document WT/DSB/W /432, which contained an additional 
name proposed for inclusion in the indicative list of governmental and non-governmental panelists, in 
accordance with Article 8.4 of the DSU.  He propo sed that the DSB approve the name contained in 
document WT/DSB/W/432. 
61. The DSB so agreed . 
5. Amendments to the Working Procedures for Appellate Review  
(a) Statement by the Chairman 
62. The Chairman , speaking under "Other Business", said  that, as announced at the beginning of 
the meeting, he wished to make a statement rega rding the amendments to the Working Procedures for 
Appellate Review that had originally been proposed by the Appellate Body in its letter circulated to 
Members on 12 January 2010.  After having receive d and carefully considered comments made by 
Members during the regular DSB meeting on 18 May 2010, along with written comments received by 
the 26 May 2010 deadline, the Appellate Body had, on 27 July 2010, circulated a communication containing the final amendments to its Working Procedures, set out in document WT/AB/WP/W/11, 
which was available in the meeting room.  That w as followed by the circulation of the revised and 
consolidated version of the Working Procedures fo r Appellate Review on 16 August 2010, set out in 
document WT/AB/WP/6, which was also available in the meeting room.  He drew Members' attention 
to the fact that the modified rules would apply to appeals initiated on or after 15 September 2010.  Any appeals initiated before 15 September 2010 remain ed subject to the previous version of the 
Working Procedures, set out in document WT/AB/WP/5 .  He underlined that the Appellate Body had 
expressed its appreciation for the interest shown by  Members in the proposed amendments, and had 
found the comments received from Members to be extremely helpful in the process of finalizing the 
amendments. 
63. The DSB took note
 of the statement.  
__________