Document: WT/DS267/RW Page E-1 ANNEX E COMMUNICATIONS FROM PARTIES Contents Page Annex E-1 Letter of the United St ates dated 7 November 2006 E-2 Annex E-2 Letter of the United St ates dated 20 November 2006 E-5 Annex E-3 Letter of the United St ates dated 21 November 2006 E-8
Date: 7 November 2006
Document codes: WT/DS267/RW
Complainant: Brazil
Respondent: U.S.
Third parties: Argentina, Australia, Benin, Canada, Chad, China, Taiwan, EU, India, New Zealand, Pakistan, Paraguay, Venezuela, Japan, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 3, 5, 6  Subsidies and Countervailing Measures (SCM)Art. 3.3, 7.1, 8, 9.1, 10.1  AgricultureArt. III:4, XVI  GATT 1994

ANNEX E

COMMUNICATIONS FROM PARTIES

Contents Page
Annex E-1 Letter of the United St ates dated 7 November 2006 E-2
Annex E-2 Letter of the United St ates dated 20 November 2006 E-5
Annex E-3 Letter of the United St ates dated 21 November 2006 E-8
Annex E-4 Letter of Brazil dated 22 November 2006 E-10
Annex E-5 Letter of Brazil dated 24 November 2006 E-13
Annex E-6 Letter of Brazil dated 18 December 2006 E-15
Annex E-7 Letter of the United St ates dated 19 December 2006 E-16
Annex E-8 Letter of Brazil dated 22 January 2007 E-19
Annex E-9 Letter of Brazil dated 7 February 2007 E-21
Annex E-10 Letter of the United St ates dated 12 February 2007 E-22

ANNEX E-1

LETTER OF THE UNITED STATES

(7 November 2006)

The United States is in receipt of Brazil's communication dated 1 November 2006, and the
Panel's 2 November 2006 invitation to comment on this communication. My authorities have
instructed me to submit the following comments pursuant to the Panel's invitation.

In Brazil's 1 November communication, Brazil asks the Panel to seek all of the documents
and information listed in Annex 1 to the communicat ion – comprising more than 35 data or document
requests1 – because "Brazil considers that it is 'necessary and appropriate' for the compliance Panel to
seek [these] documents and information." 2 For the reasons below, the United States respectfully
requests that the Panel decline Brazil's request.

Brazil's request appears to be premised on th e incorrect assumption that Article 13.1 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU") authorizes
panels to collect for a complaining party inform ation that the complaining party deems to be
"necessary and appropriate." This incorrect assump tion is evident both in the assertion that "Brazil
considers that it is 'necessary and appropriate' fo r the compliance Panel to seek [these] documents and
information"3 and in the requests that Brazil outlines in Annex 1 of it 1 November communication. 4
Contrary to Brazil's assumption, however, Article 13.1 is not intended for the convenience or use of
the parties to a dispute. Rather, as the Appella te Body has emphasized, DSU Article 13.1 allows a
panel "to seek information and advice . . . to help it to understand and evaluate the evidence
submitted and the arguments made by the parties."5 Indeed, the Appellate Body has cautioned against
using this authority under DSU Article 13.1 "t o make the case for a complaining party." 6 The
United States notes the timing of Brazil's request – made even before Brazil has presented a single
argument or piece of evidence, and therefore without possibly having established a prima facie case –
and the sheer volume of documents and information that Brazil is asking the Panel to seek from the
United States. In light of the foregoing, it is diffi cult to conceive of Brazil's request as anything but
an effort to have the Panel make Brazil's case for it.

In any event, the United States notes that DS U Article 13.1 provides that Members should
respond promptly and fully to any request by a panel for "such information as the panel considers

1 Brazil lists 23 separate questions that it asks the Panel to pose to the United States, many of which are
comprised of numerous parts and sub-parts (for example, Question 1 requesting information about the "Direct
and Counter-Cyclical Payment Program[s]" has 4 parts, (A) through (D), many of which are themselves
comprised of multiple sub-parts). By the U.S. count, th ere are at least 35 separate data or document requests,
taking into account just the major parts of the questions in the Annex.
2 Brazil's 1 November 2006 Communication, para. 3 (emphasis added).
4 In Part A of the Annex, for example, Brazil states that "Brazil requests updated information on upland
cotton planted and base acres under the Direct and Counter-Cyclical Payment Program for each the 2003, 2004,
2005, and 2006 marketing years." Similarly, " Brazil also requests information on base acreage and planted
acreage for other 'program crops'." And " Brazil requests this information in the format outlined by the Panel."
Brazil's 1 November 2006 Communication, Annex 1, Part A, para. 1 (emphasis added).
5 Appellate Body Report, Japan – Measures Affecting Agricultural Products , WT/DS76/AB/R,
para. 129 (adopted 19 March 1999) ("Japan – Varietals (AB)") (emphasis added).
6 Japan – Varietals (AB), para. 129.

necessary and appropriate" (emphasis added). It is , thus, within "the sound discretion of a panel" 7 –
and not a complaining party – to decide wh at information is "necessary and appropriate" for the
panel's purposes8 within the meaning of DSU Article 13.1. "Necessary" means "[t]hat which cannot
be dispensed with or done withou t; requisite, essential, needful,"9 and "appropriate" means "specially
suitable . . . proper, fitting." 10 Brazil fails to explain how the Panel can assess whether any of the
documents and information listed in Annex 1 is " essential" or "suitable" for the Panel's objective
assessment of the matter before it, and not to be used to make Brazil's prima facie case for it, before
either party has even had the opportunity to presen t any arguments or any evidence in support of its
case.

The United States notes that similar, premature requests by Brazil relating to DSU
Article 13.1 have been rejected in other disputes. In Canada – Aircraft (DS70) – much like in this
proceeding – Brazil submitted a letter before eith er party submitted its first written submission,
requesting that the panel seek detailed information from Canada pursuant to DSU Article 13.1. The
panel declined saying it would be "absurd" to re quest information "before receiving at least the
first written submissions of both parties . . . si nce it would at once defeat the very purpose of the
parties making written submissions."
11 The same consideration applies with equal force here.

The panel in Canada – Aircraft II (DS222) also rejected a similar request by Brazil to seek
information from the responding party submitted before either party had filed any written
submissions. That panel responded to Brazil's request saying that it "d[id] not consider it appropriate
to seek any documents or information from either party until it has at least had an opportunity to
review both parties' fi rst written submissions." 12 Though it did ask both Brazil and Canada for

7 Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel, and
Other Items, WT/DS56/AB/R, para. 84 (adopted 22 April 1998) (" Argentina – Textiles (AB) "). In that dispute,
the Appellate Body rejected Argentina's claim that the Panel erred by "not acceding to the request of the parties
to seek information from, and consult with, the IMF so as to obtain its opinion on specific aspects of the matter"
before it. Recalling its reasoning in earlier disp utes – in particular, Appellate Body Report, EC – Measures
Concerning Meat and Meat Products (Hormones) , WT/DS26/AB/R, para. 147 (adopted 13 February 1998) –
the Appellate Body explained that "Article 13 of the DSU enables a panel to seek information and technical
advice as it deems appropriate in a particular case, and that the DSU leaves 'to the sound discretion of a panel
the determination of whether the establishment of an expert review group is necessary or appropriate.' Just as a
panel has the discretion to determine how to seek expert advice, so also does a panel have the discretion to
determine whether to seek information or expert advice at all." Argentina – Textiles (AB) , para. 84. See also
European Communities – Trade Description of Sardines , WT/DS231/AB/R, para. 302 (adopted
23 October 2002) (explaining that "[o]ur statements in EC – Hormones , [Argentina – Textiles ], and US –
Shrimp, all support the conclusion that, under Article 13.2 of the DSU, panels enjoy discretion as to whether or
not to seek information from external sources.") (emphasis in original).
8 A panel's purpose is to conduct an objective assessment of the matter before it and make such
findings as will assist the DSB, as provided in Article 11 of the DSU. Contrary to Brazil's apparent belief,
nowhere is a panel's purpose to make the case for one of the parties. Rather, information requested by a panel
under Article 13 of the DSU could assist the Panel to understand the evidence and arguments that have been
presented.
9 The New Shorter Oxford English Dictionary, p. 1895 (Clarendon Press 1993).
10 The New Shorter Oxford English Dictionary, p. 103.
11 Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/R, para. 9.50
(adopted 20 August 1999, as upheld by Appellate Body Report) (" Canada – Aircraft (Panel)"). In that dispute,
the panel did not request any information from Canada pursuant to DSU Article 13.1 until after the panel
received the parties' second written and oral submissions, by which time the panel had identified certain specific
information it needed to address the issues before it. Canada – Aircraft (Panel), para. 9.53.
12 Panel Report, Canada – Export Credits and Loan Guarantees for Regional Aircraft , WT/DS222/R

information pursuant to DSU Article 13.1 after revi ewing the parties' first written submissions, the
panel explained that "[s]ince we are not a commission of enquiry, we did not consider it appropriate to
seek additional information and/or documentation on the basis of Brazil's general request [filed before
the parties had made any written submissions]. We only considered it appropr iate to seek additional
information/documentation from Canada on the basis of specific information and/or arguments
submitted by Brazil."
13 By contrast, in this dispute, Brazil has yet to submit any "specific information
and/or arguments" that could form the basis of a request by the Panel for information.

Indeed, Brazil's sole argument is that the in formation sought in Annex 1 is "necessary and
appropriate . . . in light of the importance accorded to this information by the panel in the original
proceeding."14 Brazil fails to show that this assertion is even factually accurate. Brazil does not
explain, for example, when the panel in the orig inal proceeding allegedly asked for or received each
of the documents and items of information to wh ich Brazil asserts the panel "accorded importance,"
the context in which the panel allegedly considered this information, or the specific import it allegedly
accorded to the information. Indeed, given that th e bulk of the information sought by Brazil relates to
periods after the original panel proceeding, it is unclear how this information could even have been
before that panel.

Even leaving that aside, the United States notes th at the issues in an Article 21.5 proceeding
are not the same as those in an original proceeding. In this proceeding, the Panel is tasked with
deciding disagreements between the United States and Brazil "as to the existence or consistency with
a covered agreement of measures taken to comply with the recommendations and rulings" of the
DSB.15 These issues were not before the panel in th e original proceeding; indeed, they could not
have been as there were no DSB recommendations or ru lings at that time and thus there was no basis,
during the original panel proceeding, to evaluate whether "measures taken to comply" with those
recommendations and rulings existed or were WTO-consistent. Accordingly, even if the panel in the
original proceeding had accorded importance to particular piece s of information in Annex 1, that
would not mean that the same information would necessarily be "necessary and appropriate" in this
Article 21.5 proceeding. The Panel could only ma ke such a determination after considering the
parties' evidence and arguments in this dispute.

Finally, Brazil argues that the Panel must collect the information in Annex 1 "at an early stage
. . . given the shortened timeframe for the pa nel procedure, provided for in Article 21.5 of the
DSU."16 However, there is nothing in the DSU that suggests that an Article 21.5 panel may abdicate
to the parties its discretion to seek information it considers to be "necessary and appropriate" simply
because an Article 21.5 proceeding involves a shorter ti meframe than an original proceeding. Brazil's
premature request provides no valid basis for the Panel to determine to exercise that discretion.

 In light of the foregoing, the United States re spectfully requests the Panel to decline Brazil's
request. If Brazil were to make a request at a more appropriate time in this proceeding, Brazil would
still need to explain why, in light of the evidence and arguments presented by the parties in this
proceeding, the Panel should consider the information requested to be "necessary and appropriate" for
the Panel's objective assessment of the matter. The United States has difficulty understanding how
the information in the current request go es to anything other than evidence that Brazil is interested in
having (because it hopes it may help to make Brazil's prima facie case for it).

13 Canada – Aircraft II (Panel), para. 7.136 (emphasis added).
15 DSU, Article 21.5.

ANNEX E-2

LETTER OF THE UNITED STATES

(20 November 2006)

The United States is in receipt of Brazil's 17 November 2006 first written submission. The
United States notes that Brazil's submission compri ses 173 pages in the main submission, a further
89 pages of argument in annexes, and 144 exhibits . Based upon an initial review over the weekend,
these materials also include an econometric model th at, on first impression, is substantially different
from the model submitted by the same economist in th e original proceeding in support of Brazil's
arguments. In light of the enormous volume of the Brazilian submission, the complexity of the issues
raised, and the econometric analyses advanced by Br azil, the United States respectfully requests that
the time to prepare its first written submission be revised to 29 December 2006. This date is not only
appropriate given the unique circumstances of this di spute, but is necessary to avoid prejudice to the
United States.

Article 12.4 of the Understanding on Rules and Proce dures Governing the Settlement of
Disputes ("DSU") provides that "[i]n determining the tim etable for the panel process, the panel shall
provide sufficient time for the parties to the di spute to prepare their submissions." Further,
Article 12.2 of the DSU provides that "[p]anel pro cedures should provide sufficient flexibility so as to
ensure high-quality panel reports, while not unduly delaying the pa nel process." Both provisions
support the U.S. request.

First, in light of the complexity, length, a nd volume of the materials Brazil submitted as part
of its first submission, the three-week period set out in the current timetable for the U.S. first written
submission does not "provide sufficient time" for the United States to prepare that submission.
Indeed, the U.S. ability to defend itself against Braz il's claims would be seriously prejudiced without
additional time to review and prepare a response to Brazil's first written submission.

To put the U.S. request in perspective, a re view of the submissions in all but two of
20 proceedings under DSU Article 21.5 reveals that Br azil's submission in this dispute is the most
voluminous first written submission ever filed in su ch a proceeding. Indeed, as shown in the table
below, there have been at least three Article 21.5 proceedings in which the responding party was
given more time to prepare its first written submission than the timetable currently affords the
United States. In each of those disputes, however , the complaining party's first written submission
was approximately one-fifth or less the size of Brazil's first submission.

Dispute Complaining Party
First Sub (Pages)
Time for Responding Party
First Sub (Days)
United States – Lumber (21.5 – Canada) (DS277) 55 30
Japan – Apples (21.5 – United States) (DS245) 34 24
United States – Shrimp (21.5 – Malaysia) (DS58) 46* 23
United States – Upland Cotton (21.5 – Brazil) (DS267) 262* 21
 * main submission plus annex(es)
 Just as significantly, none of those disputes in which the responding party was given more
time to prepare its first written submission than th e timetable currently affo rds the United States

involved the diversity and complexity of claims, the volume of exhibits, or the complex economic
issues (including econometric analyses) that have been put forward by Brazil in its first submission in
this dispute.

Indeed, Brazil's first written submission is more comparable, both in size and complexity, to
the first submission recently filed by the Un ited States, as the complaining party, in European
Communities – Measures Affecting Trade in Large Civil Aircraft (DS316). That U.S. submission
involved 249 pages of text and, as in this disput e, involved claims of both prohibited and actionable
subsidies.
1 In the DS316 dispute, however, the European Communities has more than 12 weeks to
prepare its first written submission. It is the firm belief of the United States that both parties – and,
further, all Members that have a systemic interest in the dispute – gain when panels have access to the
full facts and arguments from the parties, and the arguments of each party are subjected to proper
scrutiny. The United States expects that Brazil agre es and, therefore, finds it difficult to understand
Brazil's opposition in this proceeding to the United States being given a reasonable opportunity for
response.
2

This U.S. request is the minimum period that w ould afford "sufficient time" for each party to
prepare its submissions, which in turn would assist the Panel in its task to make an objective
assessment of the matter (DSU Article 11) a nd produce a high-quality panel report (DSU
Article 12.2). Further, the U.S. request woul d "not unduly delay[] the panel process." The
United States is not requesting 12 weeks as the r esponding party received in DS316; it is requesting
less than half that time.

The U.S. request would also not affect the overa ll timetable of the proceeding. Indeed, even
if the subsequent filing dates are modified to accommodate the U.S. request while maintaining the
time periods set out in the current timetable, there will still be two weeks between the last submission
and the meeting with the Panel, permitting the latter to remain as scheduled.3

In addition, as the Panel will recall, by a communication dated 1 November 2006, Brazil
asked the Panel to make more than 35 data and document requests of the United States, ostensibly
pursuant to Article 13.1 of the DSU, asserting th at "Brazil considers that it is 'necessary and
appropriate' for the compliance Panel to seek [these] documents and information." 4 Upon
consideration of that request, and U.S. comments in response, the Panel indicated that it would not
decide on Brazil's request until it had an opportuni ty to review Brazil's first written submission. 5
Upon a preliminary review of that submission, th e United States notes that Brazil has not explained
why the Panel should consider that each of the ite ms listed in Brazil's November 1 communication is
"necessary and appropriate" within the meaning of DSU Article 13.1. Indeed, Brazil has not even

1 However, Brazil in this dispute also advances claims under the Agreement on Agriculture.
2 For example, Brazil argued in the organizational meeting that the United States should be limited only
to two weeks to respond, even though it must have known (or had a very good sense) at that time of the size and
scope of its first written submission. It is difficult to reconcile Brazil's position with its statement at the same
meeting that it wishes to assist the Panel in producing a high-quality panel report. By contrast, the United States
did not object to Brazil's request for additional time to prepare its first submission, even though Brazil has
always been in control of the timing of the commencement of this proceeding.
3 The new dates would be as follows: (a) U.S. first written submission (29 December); (b) Third Party
submissions (5 January); (c) Brazil's rebuttal submission (11 January); and (d) U.S. rebuttal submission
(30 January). The meeting with the Panel would remain as scheduled on 13 and 14 February. In the event the
WTO is not able to receive a submi ssion on 29 December, the U.S. first written submission could be due on the
next WTO working day.
5 7 November 2006 Communication from the United States.

referred to most of the items it has requested that the Panel seek. 6 Given that Brazil has not
considered these items as important to its own prima facie case, the United States assumes that Brazil
has abandoned its request with respect to them.

On that basis alone, Brazil's requests can be rejected or dismissed. In addition, the
United States expects to have in the U.S. first written submission further comments relevant to the
documents and information requested by Brazil. The United States respectfully submits that these
comments, and the evidence and arguments that th e United States will itself submit, will assist the
Panel in determining whether any information is "necessary and appropriate" for the Panel's purposes
within the meaning of DSU Article 13.1.

This is precisely what the panels noted in the two Canada – Aircraft disputes (DS70 and
DS222) in which Brazil submitted similarly prematur e requests relating to DSU Article 13.1. For
example, in Canada – Aircraft (DS70), the panel explained that it would be "absurd" to request
information "before receiving at least the first written submissions of both parties . . . since it would
at once defeat the very purpose of the parties making written submissions."
7 Similarly, the panel in
Canada – Aircraft II (DS222) stated that it "d[id] not consider it appropriate to seek any documents or
information from either party until it has at least had an opportunity to review both parties' first
written submissions."8 The reasoning of those panels – that there is no basis to use Article 13.1 of the
DSU to preempt the normal briefing process – is equally compelling in this proceeding.

6 Indeed, the only reference that Brazil makes to its request to the Panel to collect data under DSU
Article 13.1 is in respect of a few of the items in Part A of the Annex to its 1 November communication
(regarding base and planted acres). Brazil does not even mention the 25 data and document requests in Part B of
the Annex to its 1 November communication.
7 Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft , WT/DS70/R, para. 9.50
(adopted 20 August 1999, as upheld by Appellate Body Report) (italics added).
8 Panel Report, Canada – Export Credits and Loan Guarantees for Regional Aircraft , WT/DS222/R
and Corr.1, para. 7.134 (adopted 19 February 2002) (italics added).

ANNEX E-3

LETTER OF THE UNITED STATES

(21 November 2006)

The United States is in receipt of the 8 November 2006 communication from the Panel
inviting the United States to comment on possible l ogistical arrangements for opening to the public a
portion of the panel meeting at which parties are invited to appear.
1 My authorities have instructed
me to submit the following comments pursuant to the Panel's invitation.

As a threshold matter, the United States continu es to invite Brazil to join the United States in
its request that the panel meeting be made open to the public. In the meantime, the United States has
invoked its right under Article 18.2 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes to make statements of its own positions public and, as an appropriate means to
do this, has requested that the Panel exercise its authority to open to the public the U.S. statements and
U.S. answers to questions presented in the panel meeting.

The United States believes that the logistical arrangements to accomplish this could be
relatively straightforward while providing meaningful access to other Members and the public. As the
United States noted in the 6 November 2006 organiza tional meeting, open meetings have successfully
been held in the current Hormones Compliance disputes brought by the European Communities
against the United States (DS320) and Canada (DS321) . In those disputes, the first and second panel
meetings with the parties, and the meeting with sci entific experts, utilized a closed-circuit television
broadcast of the panel meetings to a separate viewing room in the WTO where WTO Members and
the public were able to observe th e proceeding. The United States believes that the procedures used
in those disputes could be adapted and used effectively in this dispute as follows:

• The logistical approach in the Hormones Compliance disputes required two rooms
(one for the panel meeting, one for viewi ng the broadcast), a camera in the meeting
room, a broadcast link between the two rooms, and technical support.

• In the first panel meeting with the parties in the Hormones Compliance dispute,
room W was used for the panel meeting, and room CR was used as the viewing room.
For the second panel meeting with the parties and the meeting with scientific experts,
room CRI was used for the panel meeting, and room CRII was used as the public
viewing room. The United States understands, based on its preliminary inquiries, that
rooms CRI and CRII are available for use on 13-14 February 2007, the days on which
the panel meeting in this dispute is currently scheduled.

• In the Hormones Compliance meetings, a camera was used to send video and audio
feed (including audio feed of simultaneous translations) via closed-circuit from the
meeting room to the public viewing room. The United States envisions that the same
modalities could be used here.2

1 The panel meeting at which parties are invited to appear is referred to in paragraph 2 of the Panel's
working procedures.
2 Video and audio recording was not allowed in the Hormones Compliance disputes. The United States
envisions that they would also not be permitted here.

• As Brazil has not yet agreed to open to th e public its own statements and answers to
questions, the audio and video feed would be turned off when Brazil makes its
presentations. One option would be to link the audio and video feed to a single switch
that could be turned on and off as necessary. The Panel could request that a member
of the Secretariat assist in performing this task during the meeting.

• It is not yet clear that any confidential inform ation will be at issue in this proceeding.
To the extent that it is, any portions of th e U.S. statements or answers to questions
dealing with confidential information woul d not be open to the public. Additional
safeguards to provide against the disclosur e of confidential information could be
undertaken. For example, it may be possible to include a delay in the broadcast to
ensure that there would be no inadvertent disclosure of confidential information.

• The United States envisions that third parties would retain their ability to decide
whether their submissions and statements are public. Any confidential statements
would not be broadcast.

• In the Hormones Compliance disputes, the Secretariat ensured that at least two seats
were reserved for each WTO Member delegation in the viewing room. It is the U.S.
understanding that a number of delegati ons, including that of Brazil, availed
themselves of the opportunity to view one or both of the panel meetings or the
meeting with scientific experts. Delegations interested in reserving additional seats
were requested to indicate this to the Secretariat. A certain number of additional seats
were reserved for the public and allocated by the Secretariat on a first-come-first-
serve basis upon receipt of a completed registration form. The Secretariat advertised
the open meeting on its website and also made available on-line the forms for
registration using the same notice and re gistration methods of the WTO's Public
Symposium. Some days before the event the WTO External Affairs Office processed
attendee applications that were received an d issued badges to attendees. A similar
approach could be used in this dispute.

As noted, these proposed logistical arrangements are based on those used successfully in the
Hormones Compliance disputes. The United States remains prepared to continue to work with Brazil,
the Panel, and the Secretariat to develop furt her any necessary arrangements for purposes of this
dispute.

ANNEX E-4

LETTER OF BRAZIL

(22 November 2006)

1. Brazil is in receipt of a letter dated 20 November 2006 from the United States seeking to
delay this panel proceeding by requesting additiona l time to file its First Written Submission. The
United States also requests that the Panel not exercise its discretion, under Article 13 of the
Understanding on Rules and Procedures Governing th e Settlement of Disputes ("DSU"), to request
the United States to produce information set out in Brazil's letter dated 1 November 2006.

2. Brazil strongly opposes these two request s for the reasons set forth below.

Request to Delay Filing of U.S. First Written Submission

3. Brazil objects to the United States attempt to seek more than three weeks to produce its
First Written Submission.

4. First, Brazil notes that the Panel indicated in its communication of 8 November 2006 that it
might change its timetable "in light of unforeseen developments." However, neither the length nor the
substance and content of Brazil's First Written Su bmission are an "unforeseen development," within
the meaning of that footnote. Indeed, the core i ssues raised in the Brazil's First Written Submission
are not new. As the Panel and the Secretariat are well aware, the United States and Brazil already
exhaustively briefed the key legal, factual, and eco nomic issues raised before the original panel and
the Appellate Body during the period 2003-2004. In particular, the United States and Brazil filed
many hundreds of pages of submissions addressing in detail numerous aspects relating to the nature
and economic effects of the price-contingent subsidy measures at issue in this compliance proceeding
− the Step-2 program, the marketing loan program, and the counter-cyclical payment program in the
Farm Security and Rural Investment Act ("FSRI Act") of 2002, as they apply to upland cotton.
Similarly, in these submissions, the United States and Brazil exhaustively briefed issues relating to the
U.S. export credit guarantee programs that constitute export subsidies circumventing the United States
export subsidy reduction commitments and that are, therefore, prohibited export subsidies

5. That extensive briefing resulted in detailed findi ngs by the original panel that were upheld by
the Appellate Body. The numerous cross-references in Brazil's First Written Submission to the report
of the original panel and its findings of fact attest to the similar, if not identical, nature of most
questions at issue in this compliance proceeding.

6. Second, the United States has been on notice of the issues that Braz il would raise in its
First Written Submission for many months. Before the Dispute Settlement Body ("DSB"), Brazil
emphasized several times that it considered that the marketing loan and counter-cyclical payment
programs of the FSRI Act of 2002 were unchanged by the U.S. implementation measures and that it
considered that they were continuing to cause serio us prejudice to the interests of Brazil. Brazilian
and United States trade officials held a number of informal discussions in Washington and Brasilia
related to specific Brazilian concerns with the failu re of the United States to implement the specific
measures set out in Brazil's First Written Submis sion. If there were any doubts, the extensive
questions submitted to the United States prior to th e informal consultation held on 19 July provided
additional notice to the United States that Brazil wa s focusing its attention on U.S. marketing loan,
counter-cyclical payment and Step-2 programs, as well as the U.S. agricultural export credit guarantee
programs. There is, therefore, nothing "unforeseen" in Brazil's First Written Submission that warrants
granting the United States additional time.

7. Third, Brazil recalls that this panel ope rates under Article 21.5 of the DSU. While
Article 12.9 of the DSU normally accords panels 6 months from the date of composition to issue a
final report to the parties, Article 21.5 of the DSU provides that compliance panels "shall circulate its
report within 90 days after the date of referral of th e matter to it." Article 21.5 provides for fast-track
proceedings aimed at the rapid resolution of a disp ute that is already subject to recommendations and
rulings of the DSB. Brazil agreed (along with the United States) at the time the Panel's procedures
were adopted that the proceeding would take longer than 90 days, However, Brazil also emphasized at
that time that this proceeding continues to operate under the fast-track rules consistent with the goal of
an expedited resolution of the matter in this dispute.

8. In fact, the object and purpose of the acceler ated panel proceeding under Article 21.5 of the
DSU is to provide relief to complaining Members from the continued violation of WTO commitments
by a defending Member following the expiry of the time period for implementation of the
recommendations and rulings of the DSB. As Brazil's First Written Submission indicates, the
United States has continued to heavily subsid ize upland cotton and has actually increased the
magnitude of marketing loan and counter-cyclical pa yments since the original panel's determination
as well as increased the production, export and U.S. world export share of upland cotton. It also
continues to provide export credit guarantee export subsidies in violation of its commitments under
the Agreement on Agriculture and the Agreement on Subsidies and Countervailing Measures.
The United States' request for further time seeks solely to prolong this situation of non-compliance.

9. In the course of these procedures, the United States will have multiple opportunities to present
extensive arguments in response to Brazil's argument s set out in its First Written Submission. In
addition to the U.S. First Written Submission due on 8 December 2006, the United States also has an
opportunity to file a rebuttal submission on 9 January 2007. Further, the United States has the right to
present a detailed oral statement at the hearing on 13 February 2007. The United States also will be
given the opportunity to make a closing statement on 13 or 14 February 2007 before the Panel.
Further, based on past experience, it is highly lik ely that United States will be asked a number of
questions by the Panel and be given an opportunity to provide written answers to such questions after
the panel meeting. These numerous opportunities to address arguments fully protect the U.S. (and
Brazil's) due process rights in these expedited Article 21.5 proceedings.

10. It should also be noted that the timetable established by the Panel has guided the parties
planning and scheduling. Based on the legitimate expectations that it will be followed, Brazil has
planned and organized its particip ation in the different stages of this proceeding in accordance with
this timetable. Any changes in the timetable would be particularly disruptive and would have a very
negative impact on Brazil's participation, as they would require a rescheduling of activities over the
end of the year period.

11. For the reasons set out above, Brazil request s that the Panel maintain the timetable as
provided to the parties on 8 November 2006.

Production of Information Pursuant to Article 13.1 of the DSU

12. Brazil also disagrees with the United States asser tion that it is not appropriate for the Panel to
request the United States to produce certain in formation, as detailed in Brazil's letter of
1 November 2006. The Panel indicated in its communication of 8 November 2006 that it would
communicate its decision on this matter following the re ceipt of Brazil's First Written Submission. In
its First Written Submission of 17 November 2006, Brazil has presented its prima facie case that the
United States' measures taken to comply either do not exist or, to the exte nd they exist, result in
inconsistency with the covered agreements.

13. Based on the evidence and arguments presented by Brazil in its First Written submission
1, the
Panel can confirm that the information requested in Brazil's letter dated 1 November 2006 will assist
the Panel to make an objective assessment of the matt er before it, in accordance with Article 11 of the
DSU. The Panel is therefore in a position, as in dicated in its 8 November 2006 communication to the
parties, to decide on Brazil's request.

14. Moreover, and contrary to the United States assertion, Brazil does not ask the Panel to make
its case for it. Rather, following the receipt of the information from the United States, Brazil will
analyze these data and documents and present their relevance to the Panel.

15. In sum, Brazil continues to consider that it is appropriate and necessary for the Panel to
exercise its discretion to request the United States to produce the information referenced in Brazil's
1 November 2006 letter. Brazil's First Written Subm ission provides a more than sufficient basis for
the Panel to evaluate, in light of the findings by the original panel and the Appellate Body and the
rulings and recommendations of the DSB, the lik ely relevance of this information in these
proceedings. Given the expedited timeframes under Article 21.5 of the DSU, the Panel should not
delay the exercise of its discretion to request th e United States to produce the information. Any
postponement of a decision might lead to an unwarranted delay of the circulation of the Panel's report.

1 See for example para. 117 of Brazil's First Written Submission.

ANNEX E-5

LETTER OF BRAZIL

(24 November 2006)

 Brazil is in receipt of a letter from the Un ited States, dated 21 November 2006, commenting
on potential logistical arrangements to open the mee ting of the compliance Panel with the Parties to
the public. In a communication dated 22 November 2006, the compliance Panel invited Brazil to
submit comments on the U.S. letter, by close of business on 24 November 2006. Brazil thanks the
compliance Panel for the opportunity to comment on the U.S. letter.

 At the outset, Brazil recalls its position, noted by the compliance Panel in its communication
of 8 November 2006, that it does not agree to the opening of the compliance Panel's meeting with the
Parties to the public. Brazil's position remains unchanged. Therefore, Brazil cannot accept the
proposal set out by the United States in its letter of 21 November 2006.

 Brazil notes that in the dispute mentioned by the United States – DS320 and DS321 – the
decision by the panel to open the hearing to the p ublic followed a "common" request from the parties
to the dispute (the European Co mmunities, United States and Canada). 1 As pointed out above,
however, this is distinctly not the case in the presen t dispute. Brazil objects to allowing public access
to any part of the proceedings, by closed-circuit television broadcast or otherwise.2

 In addition, Brazil wishes to draw the complian ce Panel's attention to the fact that in DS320
and DS321 the meeting of the panel with third par ties remained closed, as not all the third parties
agreed to have it open for observation by the public.3

 Thus, where any objection to opening the meeti ng to the public remained, the panel in DS320
and DS321 kept that portion of the hearing closed. The Panel did not allow broadcast while delegates
from third parties agreeing to public access spoke, and switched off broadcast while delegates from
third parties not agreeing to public access spoke. Rather, it kept the third party session closed
altogether, given objections from some of the third parties.

 The panel report in DS320 and DS321 has not yet been circulated, and we do not, therefore,
have the benefit of its detailed reasoning on the legal basis for its decision to open its meeting with the
parties to the public. Nonetheless, it is evident that the assent of all interested parties to the opening
of the relevant portions of the meeting was a centr al element for that panel's decision to open the
meeting with the parties. Where unequivocal consensu s did not exist with respect to the meeting with
the third parties, that panel elected not to open the meeting to the public, and, instead, followed the
practice of every other panel to date, under paragraph 2 of the standard panel Working Procedures.
4

1 WT/DS320/8 and WT/DS321/8.
2 Moreover, Brazil notes that paragraph 2 of the compliance Panel's Working Procedures provides that
the compliance Panel "shall meet in closed session," other than when it invites the parties and third parties to
appear.
3 WT/DS320/8 and WT/DS321/8.
4 The panel in EC – Aircraft (DS316), again following an agreement between the parties to the dispute,
has also accepted to open its hearings to the public. As of today, however, the only practical experience with
opening WTO panel meetings to the public remains the meeting of the DS320 and DS321 panel with the parties
in that dispute.

 The United States evokes Article 18.2 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes ("DSU") to clai m a right to have at least some portions of the
meeting with the Panel open to the public. Furthe rmore, the United States characterizes its proposal
as "an appropriate means" to disclose statements of its own positions to the public. Brazil disagrees
with the United States on both accounts.

 First, nothing in Article 18.2 mandates or implie s that to effect a Member's right to disclose
its own positions or statements, panels must agree to open meetings to public observation. Members
have at their disposal a myriad of "transparenc y" tools to make their positions known to the public,
such as publicly-available webpages and press conferences or releases. Members are not dependent
on open panel meetings to achieve any transparency goals.

 Second, a Member's right to disclose its own positions cannot prejudice another Member's
right to confidentiality. Such prejudice would ar ise were the compliance Panel to accept the U.S.
proposal. A partial opening, as suggested by the United States, is not "appropriate", as it would
compromise Brazil's interest in retaining confidenti ality of the proceedings and, at the same time,
would lead to an unbalanced and biased picture of the parties' arguments. By contrast, Brazil's
position would not deprive the United States of reso rting to other (and more "appropriate", given
Brazil's objection) means to make its statements and submissions available to whomever the
United States deems appropriate, while preserving Brazil's right to protect the confidential nature of
this compliance proceeding.

ANNEX E-6

LETTER OF BRAZIL

(18 December 2006)

As with the majority of its submissions in the initial proceedings in this dispute and,
increasingly, its submissions to panels and the Appe llate Body in other disputes, the United States has
failed once again to file its submission to the compliance Panel by the deadline of 5:30 p.m. on
Friday, 15 December. The United States instead filed the electronic version of its submission
12 hours late, on Saturday, 16 December at 5:24 a.m. Moreover, as filed, the electronic version of the
submission is corrupt; it does not include paragraph numbers, and, critically, ends 1.5 pages into its
rebuttal arguments concerning Brazil's actionable subsidies claims.
1

 Despite the compliance Panel's generosity in gr anting the United States an extension to file its
submission (from 8 December to 15 December), the Unite d States failed to respect a deadline that it
has known about for many weeks. Moreover, when the United States finally decided to file 12 hours
after the deadline, it filed an unreadable document.
2 Neither in the letter covering the submission, nor
in the email in which it transmitted the electronic version of the submission, does the United States
offer any explanation or show good cause for untimely filing. In Brazil's view, the only explanation
available for this increasingly common U.S. prac tice is hubris. The United States has essentially
claimed for itself the right to decide when to file submissions in dispute settlement proceedings, in
flagrant and unacceptable defiance of the Panel's authority.

 In addition, such contemptuous behaviour ser iously prejudices Brazil's rights. Because the
time granted to prepare Brazil's rebuttal submissi on straddles a holiday period, the importance of
preserving every day on either side of the holiday peri od is particularly paramount. The United States
has exacerbated the problem not only by failing to file on time, but, additio nally, by failing even
belatedly to file a readable electronic version of its submission (or electronic versions of its exhibits)
that could be transmitted to Brasilia. Cutting short th e available time in advance of the holiday period
prejudices Brazil's right to prepare a response; merely granting Brazil additional time to file its
rebuttal submission will not resolve this problem. There is, obviously, no way to add additional days
between now and the holiday period.

 For these reasons – and as would be the case in virtually any domestic judicial or
administrative proceedings of which Brazil is aware – Brazil requests that the compliance Panel reject
the United States' submission as not timely filed. The deadline was clear and is expressed both in the
compliance Panel's 28 November 2006 timetable and in paragraph 17(b) of the compliance Panel's
Working Procedures. Panels have previ ously rejected evidence as not timely filed
3; Brazil sees no
reason why the same principle should not apply to th e more egregious failure to file a submission by
the deadline. In our view, this would be the only fair remedy under the present circumstances.

1 Brazil opened the file using Word Perfect, Microsoft Word and Interwoven Viewer, none of which
were able to repair the file. At Brazil's request, the United States, notwithstanding the assertion that the problem
to read the electronic version of th e document sent on 16 December would be attributable to Brazil's word
processing program, sent an electronic version of its first submission in PDF format on Sunday, 17 December.
2 Nor did the United States extend Brazil the now common courtesy of providing its exhibits in
electronic form, despite the fact that Brazil provided the exhibits for its own first written submission to the
United States on time and electronically – an error of judg ment that Brazil will not repeat in future. The U.S.
exhibits are surely available electronically, as they were likely tr ansferred electronically from USTR in
Washington, D.C. to the U.S. Mission in Geneva.
3 See Panel Report, Canada – Wheat, para. 6.140; Panel Report, Australia – Salmon, para. 8.4.

ANNEX E-7

LETTER OF THE UNITED STATES

(19 December 2006)

My authorities have instructed me to offer the following response to Brazil's 18 December
2006 letter requesting that the Panel reject the first written submission of the United States.

The United States sincerely regrets any inconven ience caused to the Panel, Brazil, or the
third parties by the delay in providing its first written submission from the close of business on Friday
to the early hours on Saturday morning. At the sa me time, the United States notes that Brazil's letter
continues what has unfortunately become a familiar approach in this dispute. Brazil continually
resists providing the United States sufficient time to prepare a response to Brazil's lengthy and
multiply-flawed submissions and then, when the United States has nonetheless made extreme efforts
to meet the very tight deadlines, Brazil complain s in inaccurate and overheated rhetoric if the
submission is not filed by 5:30 pm. It is very difficu lt to resist the conclusion that Brazil is doing this
as a litigation tactic rather than any genuine effort to assist the Panel's work.

Brazil has repeatedly sought to deny the Un ited States even the minimum time needed to
present the Panel with the U.S. response. In its 20 November 2006 letter, the United States provided a
detailed explanation of the size and complexity of th e task before it in preparing a response to Brazil's
first submission. Brazil, as the complaining party, had many months to pr epare its 173 page first
submission, which contained an additional 89 page s of argument in annexes and 144 exhibits, and
included an econometric model that was substantia lly different from the model submitted in the
original proceeding.
1 Brazil objected to the United States having even one additional day to prepare
its response. The United States appreciates that the Panel agreed to provide additional time, and the
United States can assure the Panel that the United States sought to make the most of the time
available.

Officials of the United States worked nights a nd weekends to prepare the first U.S. written
submission, including working all through the night on Thursday and Friday. 2 Brazil cannot seriously
be suggesting that the United States expended this effo rt at sacrifice of families and health in order to
"defy" a deadline.

To the contrary, Brazil once more seeks to di stort or misrepresent events and deny the
United States the opportunity to present facts and argument to respond to Brazil. In this latest
iteration, Brazil argues that the Panel should simply summarily reject the U.S. submission. 3
Apparently for Brazil, it is Brazil and Brazil alone th at should be able to present its case to the Panel
and it is important for Brazil to block the United States from being able to respond.4

1 Brazil filed its panel request on 18 August 2006, 3 months before its first submission was due, and of
course Brazil was able to work on preparing its submission well before that.
2 In light of the effort required of the United States to seek to meet the dead line, the United States has
substantial difficulty with Brazil's complaint that r eceiving a submission early on Sa turday morning rather than
at 5:30 pm on Friday has affected Brazil's ability to enjoy a holiday.
3Letter from Brazil at 3 (18 December 2006).
4 Brazil does not seem to want the Panel to know important facts that would help it to resolve the issues
in dispute; for example, that contra ry to Brazil's claims U.S. producers and exporters respond to market signals
in the same way as their foreign counterparts; that U. S. producers and exporters ar e not "insulated" from these
signals by the marketing loan and counter-cyclical payments programs; that the inflated results of Brazil's

Despite this, the United States has attempted to cooperate with Brazil. Brazil informed the
United States that it was having difficulty opening the electronic version of the first U.S. submission
on Saturday, 16 December. The problem Brazil rais es appears only to occur when using a different
word processing program (Microsoft Word) to ope n the document than was used to create it
(WordPerfect).
5 Separate tests have shown that ther e was nothing wrong with the version as
transmitted by the United States. Nonetheless, the Un ited States copied the U.S. submission into a
format requested by Brazil and resent the document to Brazil, the Panel, and the third parties, on
Sunday, 17 December.

In addition, although the United States did not provide copies of exhibits to anyone
electronically, Brazil asked on 16 December whether it c ould obtain an electronic version of exhibits.
The U.S. representative in Geneva responded that he would pass Brazil's question back to capital for
confirmation and immediately did so. However, in the morning of Monday, 18 December, shortly
after opening of business in Washington and before U.S. authorities even had an opportunity to
arrange to provide electronic versions to Brazil, Brazil submitted its 18 December letter accusing the
United States of denying Brazil this "common courtesy"
6 and asserting that it would no longer repeat
the "error in judgement" of submitti ng its own exhibits electronically. 7 Leaving aside Brazil's
unfounded accusations, the United States notes that it is willing to provide electronic copies of its
exhibits if the Panel considers that this would be helpful.

In any event, contrary to Brazil's request, the DSU does not authorize the "rejection" of
submissions for the inability of a Member to meet precisely the time by which parties "should provide
their submissions" according to a panel's working procedures.
8 To the contrary, the DSU provides
that "[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports,
while not unduly delaying the panel process." Ther e is, thus, no basis for Brazil's request that the
Panel "reject" the U.S. first submission. Indeed, th e panel rejected similar requests by Brazil even in
the original proceeding in this dispute.9

Nor is there any logic behind Brazil's allegation that it has been "seriously prejudice[d]" by
the delay in receiving the U.S. submis sion and, thus, "the only fair remedy" is for the Panel to reject
the U.S. written submission. To the extent th at Brazil does consider it has been "seriously
prejudice[d]" by not having the U.S. submission by close of business on Friday, 15 January, but

econometric modeling result from assumptions that are not generally accepted and are out of line even with
Brazil's own assumptions in the model used in the orig inal proceeding; or that Brazil ascribes planting,
production, export and price effects to the U.S. marketing loan and counte r-cyclical payment programs that are
"the effect" of other factors, including, inter alia, China's net cotton trade and its trade policy. These arguments
and more are supported at length in the U.S. first written submission.
5 The United States has opened without difficulty th e document as sent to Brazil using WordPerfect.
Accordingly, the United States is perplexed by Brazil's claim that the document was unreadable in WordPerfect.
6 The United States is not certain of the basis for Brazil's characterizati on of this as "common
courtesy." In the multiple disputes in which the United States has been involved, practice has varied
considerably in this regard. Indeed , in the original proceedin g in this dispute, the parties did not exchange
electronic versions of all of their exhibits. Nor had the parties discussed exchanging electronic versions of
exhibits in this proceeding.
7 Letter from Brazil at 3, n. 2 (18 December 2006).
8 This explains why Brazil is not able to point to any previous panel that has rejected altogether a
submission made after the time for filing. Brazil instead relies on panel reports relating to untimely submission
of evidence, for example, at the interim review stage, long after written submissions and oral presentations have
been completed.
9See Communication from the Panel to Parties, para. 3 (13 October 2003).

rather, early Saturday morning, it would seem that an appropriate "remedy" could be to extend by an
equivalent period Brazil's time to file its rebuttal submission.

The United States thanks the Panel for its cons ideration. The United States is providing a
copy of this letter directly to Brazil and is provi ding a version of this letter with certain Brazilian
confidential information redacted to the third parties.

ANNEX E-8

LETTER OF BRAZIL

(22 January 2007)

 Brazil is in receipt of the United States re sponses to questions from the Panel, dated
19 January 2007. In its responses, the United States asserts that it provided data, in Exhibit US-64,
that is fully responsive to Brazil's request for certain data, as set forth in Part A of Annex 1 of Brazil's
communication to the Panel of 1 November 2006 ("1 November Request").

 In this letter, Brazil corrects an error in its o m 19 January 2007 responses to the compliance
Panel's questions, and corrects misstatements in the United States' responses.

 First, Brazil notes that it inadvertently identifie d the relevant period for its data request as
encompassing marketing years ("MY'') 2002-2005.
1 In fact, Brazil's 1 November Request asked the
compliance Panel to seek data for MY 2003-2006. Brazil asks that the compliance Panel seek the
relevant data from the United States, in electronic form, for MY 2003-2006.

 Second, Brazil directs the compliance Panel to certain misstatements in the United States'
responses, submitted on 19 January 2007.

 Contrary to its assertion in its 19 January r esponses, the United States has not provided data
that is sufficiently responsive to Brazil's 1 Nove mber Request. While the United States appears to
have given up its objection to providing this data 2, there are numerous deficiencies in the format and
scope of the data in Exhibit US-64, rendering them incomplete and largely unusable (Brazil notes that
the United States did not explicitly cite Exhibit US -64 anywhere in its First Written Submission.).
Brazil brings three deficiencies to the attention of the compliance Panel:

 1. Data provided for MY 2005 only

 To begin, the data included in Exhibit US-64 are incomplete, as they are limited to marketing
year ("MY") 2005. Brazil requested that the United States provide data for MY 2003-2006.
Providing data for one out of four years hardly constitutes a complete response on the part of the
United States to Brazil's 1 November Request.

 Further, it appears that the United States wit hheld the requested data for MY 2003 and 2004,
despite the fact that it had collected the data and presented selective summary information for these
years in its First Written Submission. Brazil notes that the U.S. table in Section VI.A.(c) of its

1 Brazil's Answers to Questions from the Panel Regarding Brazil's Request for Data Pursuant to
Article 13.1 of the DSU, 19 January 2007, para. 10.
2 Brazil originally requested the data on 29 June 2006. See Question 3 of Annex 2 b of Brazil's data
request submitted on 1 November 2006. The United States' 19 January 2007 responses mark some progress,
compared to the United States' refusal to provide such data in consultations with Brazil nearly six months ago,
and in its initial reaction to Brazil's 1 November Requ est. See U.S. Communication to the Panel, dated
7 November 2006, para. 2.

First Written Submission
3 demonstrates that the United States has collected information on base and
planted acreage in MY 2003 and 2004.

 2. Data not provided in electronic form

 Second, the document in Exhibit US-64 was printed out from an Excel file
4, demonstrating
that the United States easily could have provided th e data electronically, for use and analysis by the
Panel, the Third Parties and Brazil.

 Brazil requested that the United States provide th e data in the same format as in the original
proceedings.
5 As noted by the United States, the data pr esented to the original panel were included in
an electronic spreadsheet on a CD-ROM. 6 The U.S. assertion that it "submitted precisely the same
data in precisely the same format as that submitted in response to the original panel's Article 13
request"7 is, therefore, inaccurate.

 3. Data partially unreadable

 Third, even on the paper version of the MY 2005-only data provided by the United States,
information in certain cells is not readable, as the United States failed to accommodate the width of
the column to the size of the number in these cells.
8 These problems could have been avoided had the
United States provided the data in electronic format.

 In sum, the data in Exhibit US-64 are deficien t in both scope and form. Brazil reiterates its
request of 19 January 2007 that the Panel requ est the United States to provide data on base and
planted acreage fully responsive to Brazil's 1 November Request.
9 Brazil requests that the compliance
Panel ask the United States to provide data in electronic form for MY 2003-2006.

3 U.S. First Written Submission, para. 224.
4 The document lists its file name in the bo ttom right hand corner of each page as "US-64
REPLACEMENT dcp 2005 sub sum.xls." The file name ending on ''.xls" indicates that the source file is an
Excel spreadsheets. See Exhibit US-64 (2005 Crop Year Subcategories)
5 Part A of Annex 1 of Brazil 1 November Request, para. 1.
6 U.S. Communication to the Panel, dated 17 January 2007, para. 2, footnote 3.
7 U.S. Communication to the Panel, dated 17 January 2007, para. 2.
8 See, e.g., page 3 of Exhibit US-64 (2005 Crop Year Subcategories).
9 Brazil's Answers to Questions from the Panel Regarding Brazil's Request for Data Pursuant to
Article 13.1 of the DSU, 19 January 2007, para. 10.

ANNEX E-9

LETTER OF BRAZIL

(7 February 2007)

Consistent with its prior submissions in the above-referenced disputes, the United States has
failed once again to file a submission (i.e., its Rebuttal Submission) to the compliance Panel by the
deadline of 5:30 p.m. on Monday 5 February. The United States instead filed the electronic version of
its submission more than 6 hours late - at 11:39 p. m. on Monday 5 February. Neither in the letter
covering the submission, nor in the email in wh ich it transmitted the electronic version of the
submission, does the United States offer any expl anation or show good cause for untimely filing.
This late filing is particularly egregious in view of the compliance Panel's 20 December 2006
Communication reminding the United States of its obligation under paragraph 17(b) of the Working
Procedures to file all submissions to the Secretariat by 5:30 p.m., and in view of the extension granted
the United States in the compliance Panel's 22 December 2006 Communication.

Unfortunately, the United States continues to act in a unilateral fashion in disregard of the
rules and procedures of the DSU and in defiance of the compliance Panel's authority. As a result of
various U.S. requests for extensions, the amount of time allotted Brazil to prepare a response to the
U.S. rebuttal submission for the upcoming meetin g with the compliance Panel has already been
reduced from five weeks, under the original timetab le, to three weeks, under the version of the
timetable currently in effect. The late filing of the U.S. rebuttal submission has eliminated yet another
day from the time allotted Brazil to prepare for the meeting.

For these reasons - and as would be the case in virtually any domestic judicial or
administrative proceedings of which Brazil is aware - Brazil requests that the compliance Panel reject
the United States' submission as not timely filed. The deadline was clear, and is expressed both in
paragraph 17(b) of the compliance Panel's Work ing Procedures, and reiterated in the Panel's
20 December 2006 Communication. Indeed, Panels have previously rejected evidence as not timely
filed
1; Brazil sees no reason why the same principle shoul d not apply to the more egregious failure to
file a submission by the deadline. In our view, th is would be the only fair remedy under the present
circumstances. Given the systemic implications of the recurring United States' refusal to respect the
timetable established by the Panel, I would like to info rm you that it is Brazil's intention to raise this
issue before the Dispute Settlement Body.

1 See Panel Report, Canada - Wheat, para. 6.140; Panel Report, Australia -Salmon, para. 8.4.

ANNEX E-10

LETTER OF THE UNITED STATES

(12 February 2007)

My authorities have instructed me to offer th e following response to Brazil's 8 February 2007
letter requesting that the Panel "reject" the rebuttal submission of the United States. The
United States respectfully requests that the Panel reject Brazil's request.

The United States sincerely regrets any inconveni ence caused by the delay in transmission of
the U.S. submission from 5:30 p.m. to 11:30 p.m. on Monday, 5 February 2006. The United States
was required to respond in a very limited time 1 to close to 220 pages of argumentation by Brazil 2 and
over 1,000 pages of exhibits (in 61 separate exhibits ). While staff in Geneva and Washington worked
intensively during that time, including all weekend and around the clock on Sunday and Monday to do
so, the United States was, regrettably, unable to compile and transmit the submission – including
providing courtesy electronic copies of all 43 exhi bits filed with the submission (as requested by
Brazil) – precisely by 5:30 p.m. on 5 February.
3

Nonetheless, Brazil's complaints in this rega rd are unfounded and ironic when one considers
that, even with almost 4 weeks to respond to the U.S. first written submission, Brazil asked for an
additional 8 days (i.e., for a total of almost 5 weeks) to respond to the U.S. 11-page preliminary ruling
request. And even more ironic is Brazil's complain t that: "As a result of various U.S. requests for
extensions, the amount of time allotted Brazil to prepare a response to the U.S. rebuttal submission for
the upcoming meeting with the compliance Panel h as already been reduced from five weeks, under
the original timetable, to three weeks, under the version of the timetable currently in effect." Not only
were the extensions requested by Brazil (not the United States) 4, but that three-week period is the
same amount of time that the United States had to respond to Brazil's rebuttal submission.
Apparently, Brazil's view is that Brazil should be a fforded more time than th e United States at every
stage of this proceeding. In addition, Brazil's requ est for the Panel to disregard the U.S. submission
makes it once again apparent that Brazil considers that it should be the only party with the opportunity
to present its views in this proceeding.

In any event, Brazil has no basis for its requ est that the Panel reject the U.S. rebuttal
submission. Moreover, the United States regrets this la test effort by Brazil to divert the attention of
the Panel and the United States and to deny the Unite d States a meaningful opportunity to respond.
As the meeting with the Panel and the close of this proceeding draw near, the United States hopes that
Brazil will consider a more cooperative approach.

1 The United States had slightly more than three weeks (25 days) to respond to the main submission
and annex and less than three weeks (20 days) to respond to Brazil's reply to the U.S. requests for preliminary
rulings.
2 Including a main submission, annex, and separate reply to U.S. requests for preliminary rulings.
3 The United States has not only attempted to ensure that the Panel (and Brazil) have the most complete
arguments well in advance of the meeting with the Panel but has also attempted to address the various
complaints that Brazil has made along the way in this process, including co mplaints about receiving all exhibits
in an electronic medium simultaneously with submissions. See Letter from Brazil, para. 2, n. 2
(18 December 2006).
4 Indeed, the deadline for the U.S. rebuttal submission was shifted from 30 January to
5 February 2007, to accommodate the additional time granted to Brazil, at its request, which cut into the period
available for the U.S. rebuttal submission, not becaus e the United States sought additional time for that
submission, as Brazil suggests.

ANNEX F

COMMUNICATIONS FROM THE PANEL TO PARTIES

Contents Page
Annex F-1 Communication of 8 November 2006 F-2
Annex F-2 Communication of 27 November 2006 F-3
Annex F-3 Communication of 28 November 2006 F-4
Annex F-4 Communication of 20 December 2006 ∗ F-5
Annex F-5 Communication of 17 January 2007 F-6
Annex F-6 Communication of 22 January 2007 F-7
Annex F-7 Communication of 16 February 2007 F-8
Annex F-8 Communication of 21 March 2007 F-9

∗ This communication was sent to the Parties as well as to the Third Parties.

ANNEX F-1

COMMUNICATION TO BRAZIL AND THE UNITED STATES

(8 November 2006)

Please find attached the Panel's final working procedures and timetable. [ Attachment
omitted.]
The Panel takes this opportunity to clarify the following:
1. The Panel has noted Brazil's request made in its letter dated 1 November as well as the comments
of the United States, contained in the letter dated 7 November, on this request. The Panel declines
to make a decision on Brazil's request at this point of time. The Panel will communicate to the
parties its decision on this request after having r eceived and considered Brazil's first submission.
In this connection, the Panel reserves its ri ght to amend the timetable (and the working
procedures, as necessary) in relation to this issue.
2. The Panel has also noted that the United States st ated in the organizational meeting that it may
request a special procedure for the protection of certain information if the Panel decides to pose
the questions requested by Brazil. We will revert to that issue if we actually decide to pose the
questions.
3. In relation to paragraph 2 of the working proce dures, the Panel has noted that the United States
wishes to open up the portion of the meeting where it presents its own views and statements,
while Brazil opposes opening the meeting to the pub lic. The Panel draws the attention of the
parties that opening up of any portion of the Panel meeting entails logistical considerations. The
Panel invites the United States to submit comm ents, by close of business of Tuesday 21
November, on how exactly it envisages such opening to be logistically meaningful. The Panel
reserves its right to amend the working procedures in relation to this matter.
4. In relation to paragraph 13 of the working proce dures, the Panel has noted that Brazil proposed at
the organizational meeting that the exhibits be numbered sequentially starting from the last
exhibit number of the original panel proceeding. While the Panel does not oppose this idea, we
do not find it necessary to oblige parties to do so. We will leave it up to the discretion of parties
how to abide by paragraph 13 of the working procedures on the condition that any references to
exhibits of the original panel proceeding will not create confusion with references to exhibits in
this proceedings. 1 At any rate, the Panel clarifies that if parties intend to refer the Panel to an
exhibit submitted in the original panel proceeding, it expects parties to attach such exhibits in its
submission, and not just cite the exhibit number.

1 For example, if the United States chooses not to follow Brazil's suggestion, it could number their
exhibits in this proceeding starting from US (21.5)-1, or the US could ensure that whenever it refers to exhibits
in the original proceedings, it is always clearly stated that the exhibit is from the original proceedings.

ANNEX F-2

COMMUNICATION TO BRAZIL AND THE UNITED STATES

(27 November 2006)

 The Panel refers to the communication of Br azil dated 1 November asking the Panel to
exercise its discretion under Article 13 of the DSU, and to the communication of the United Stated
(dated 7 November) commenting on this request, as well as the communication of Brazil (dated
22 November) referring to this issue. The Panel notes that in the context of its argument regarding the
significance of the magnitude of the marketing lo an and counter-cyclical payments as a factor
supporting the existence of a causal link between these two subsidies and significant price suppression
for upland cotton, Brazil, in its first submission, re iterates its request originally submitted in a letter
dated 1 November that the Panel ask the United St ates to provide certain information needed to
allocate counter-cyclical payments to upland cotton production in MY 2003-2005.
1 In the same
context, Brazil provides an estimate of the "counte r-cyclical payments allocated to current upland
cotton producers growing upland cotton on upland cotton or other crop base acreage" based on the
MY 2002 ratio of allocated upland cotton counte r-cyclical payments to total upland cotton
counter-cyclical payments, multiplied by the tota l upland cotton counter-cyclical payments in
MY 2003-2005.2 The Panel is of the view that it cannot conc lude at this stage that it is necessary and
appropriate within the meaning of Article 13 of the DSU to seek the information requested by Brazil
before the Panel has had the opportunity to review th e arguments and supporting evidence, if any, that
will be presented by the United States in res ponse to Brazil’s argument regarding the causal
relationship between certain subsidies and price suppression for upland cotton.

 In addition, the Panel refers to the requ est of the United States, dated 20 November,
concerning the change of certain deadlines in the Panel's current timetable as well as Brazil's
comments on this request, received 22 November. After carefully considering the request of the
United States and the comments of Brazil, the Pane l has decided to change the first portion of the
timetable as follows. The Panel will inform the parties of the rest of the timetable in due course.

First submission of the United States: 15 December 2006
Submission of the Third Parties: 5 January 2007
Rebuttal submission of Brazil: 11 January 2007
Rebuttal submission of the United States: 30 January 2007

ANNEX F-3

COMMUNICATION TO BRAZIL AND THE UNITED STATES

(28 November 2006)

 The Panel refers to, and follows up its communication sent to parties yesterday
(27 November). Attached please find the full timetable containing all the relevant dates, which the
Panel will now follow. [Attachment omitted.]

 In addition, the Panel refers to the letter da ted 21 November submitted by the United States,
in response to the invitation from the Panel, offe ring its explanation to the request to open up the
Panel's meeting to the public those parts that relate to US statements and US answers to questions.
After carefully considering this letter as well as the letter from Brazil dated 24 November commenting
on this US's letter, we inform parties as follows.

 The Panel notes, first, that there is no pr ecedent in WTO dispute settlement practice for a
decision to open a (portion of) a panel meeting to the public based on a request by one party to a
dispute that is opposed by another party.
1 Second, the Panel has carefully considered the argument of
the United States in its letter dated 21 November th at in requesting the Panel to open to the public
US statements and US answers to questions presented in the panel meeting the United States is
exercising its right under Article 18.2 of the DSU, second sentence. The Panel considers that there
are various possible ways in which a party can di sclose its statements to the public and that the
United States has not explained why procedures the United States normally uses to disclose its
statements in WTO dispute settlement proceedings to the public would not be adequate in this case.
Furthermore, the right of party to disclose its statem ents of its positions must also be reconciled with
the obligation of confidentiality in the third sentence of Article 18.2. Finally, the Panel considers that
the practical arrangements proposed by the Unite d States in its letter of 21 November 2006 pose
serious practical and logistical difficulties.

 For the above reasons, we decline to gran t the request made by the United States.

 1 In the disputes in United States – Continued Suspension of Obligations in the EC – Hormones Dispute
(WT/DS320) and Canada – Continued Suspension of Obligations in the EC – Hormones Dispute (WT/DS321),
the Panels decided that its meeting with the parties would be open for observation by the public through a
closed-circuit broadcast based on a common request receive d from the parties to thos e disputes. Significantly,
the Panels in those disputes also decided that their meetings with third parties would remain closed as not all
third parties had agreed to open those meetings for observation by the public.

ANNEX F-4

COMMUNICATION TO THE PARTIES AND THE THIRD PARTIES

(20 December 2006)

 The Panel confirms receipt of the letter fro m Brazil dated 18 December on the late timing of
the US submission, as well as the letter from the US dated 19 December commenting on this Brazil's
letter. The Panel confirms that the electronic version of the US submission was, according to the
record on the computer, sent at 5:25 am
 on Saturday 16 December. 1 Parties will recall that
paragraph 17(b) of the Working Procedures provides that the submission be made "by 5:30 pm on the
due date[]". The due date for this particular US submission was Friday 15 December.

 The Panel notes that Brazil requests the Panel to "reject the United States' submission as not
timely filed". The Panel declines to do so. Ho wever, the Panel regrets this delay by the
United States, and requests the United States to abide by the deadlines established by the Panel
concerning its future submission(s).

 The Panel also notes that Brazil pointed out th e issue about the readability of the electronic
version of the submission initially sent ( i.e. sent 5:25am).
2 On this matter, the Panel would like to
inform the United States that it had the same problem as Brazil did.

 The Panel does not expect any more communica tions from the Parties on this specific issue.

1 While there is no record as to when the paper vers ion was received, the Panel secretary confirms that
the submission had not arrived as of 22:00 on Friday 15 December.
2 The Panel further notes that Brazil regrets the lack of electronic version of exhibits.

ANNEX F-5

COMMUNICATION TO BRAZIL AND THE UNITED STATES

(17 January 2007)

 The Panel has noted that Brazil reiterates, in its rebuttal submission submitted on
11 January 2007, its request that the Panel requ est, pursuant to Article 13.1 of the DSU, the
United States to provide certain data.1

 Mindful of our communica tions dated 8 November 2006 2 and 27 November 2006 3, before
informing the Parties of the Panel's views on this issue, the Panel poses the following questions to the
Parties:

Question 1 (to Brazil): Does Brazil deem that the questions posed in Part B4 of Annex 1 of its
request submitted on 1 November 2005 ("1 November request" hereafter) are now
unnecessary?

Question 2 (to Brazil): Is Brazil asking the United States to respond to all of the questions
posed in Part A of its 1 November request?

Question 3 (to the United States): If the United States is of the view that the Panel should not
pose to the United States any or all of the questi ons in Part A of Brazil's 1 November request,
please cite the reasons for that view.

Question 4 (to the United States): If the United States is of the view that the United States
cannot respond to any or all of the questions (or any part thereof) in Part A of Brazil's
1 November request, please explain that view, bearing in mind the fact that the United States
did provide the data to the original Panel.
5

 The Panel invites Parties to submit their respon ses to the above questions by close of business
on 19 January 2007 . Parties are free, if they so wish, to submit comments on a question posed to the
other Party.

 This communication from the Panel is without prejudice to the position of the Panel on the
US request that the Panel make a preliminary rulin g that the claims of Brazil against the marketing
loan program and the counter-cyclical payment program are outside the scope of this dispute.

1 See paragraph 514 of Brazil's rebuttal submission, referring to Sections 2. 3.1.3.3 and 2.3.2 of the
same submission.
2 Paragraph 1 of the communication to the Parties dated 8 November.
3 First paragraph of that communication.
4 Concerning Export Guarantee Programs.
5 See section VII A 4 of the report of the original panel (WT/DS267/R).

ANNEX F-6

COMMUNICATION TO BRAZIL AND THE UNITED STATES

(22 January 2007)

 The Panel has carefully considered the United States' request for preliminary rulings and the
arguments it makes in support of its view that some of Brazil's claims are outside the scope of this
proceeding.
1 The Panel has also considered the arguments submitted by Brazil 2 and by the
third parties3 in response to the United States' request.

 The Panel considers that the United States' request for preliminary rulings will be more
appropriately addressed in our final report, after we have had the benefit of further submissions by the
parties and third parties on the issues raised by the United States.

 Thus, we do not consider that this is a case where the panel proceedings would be better
served by an early ruling from the Panel on the Unite d States' request. We therefore decline to grant
the United States' request for preliminary rulings at this point.

1 United States' First Submission and Request for Preliminary Rulings of 15 December 2006,
paras. 22-56. The United States indicates in paras. 30, 44, 48 and 56 the specific findings it seeks from the
Panel.
2 In particular, Brazil's submission dated 16 January 2007.
3 Australia, Canada, China, Japan and New Zealand addressed this issue in their submissions submitted
on 5 January 2007.

ANNEX F-7

COMMUNICATION TO BRAZIL AND THE UNITED STATES

(16 February 2007)

 In this communication, the Panel addresses two is sues: (a) the issue raised by Brazil in its
letter dated 7 February 2007 and (b) the conveying of the Panel's questions.

1. Brazil's letter dated 7 February 2007
 The Panel acknowledges receipt of Brazil's letter dated 7 February, concerning the late filing
of the United States submission on 5 February. The Panel has noted, inter alia, that Brazil requests
that the Panel "reject the United States' submission as not timely".
1 The Panel has also taken note of
the United States' letter dated 12 February asking the Panel to reject Brazil's request.

 The Panel regrets that the United States has missed the deadline for th e second time in this
Article 21.5 proceeding. The Panel finds it extraord inary that the United States has missed so many
deadlines in the original proceeding as well as in this Article 21.5 proceeding.
2

 On the other hand, the Panel considers that th ere is no provision in the DSU that allows a
panel to simply reject an entire submission as not timely. The Panel does not consider that the
two cases cited by Brazil support Brazil's request. T hus, we decline to grant the request made by
Brazil.

2. Questions from the Panel
In accordance with paragraph 7 of the Worki ng Procedures, the Panel poses the attached
questions [attachment omitted ] to the parties. The deadline for written responses is the morning of
27 February
3 for questions in sections A-C, and close of business of 6 March for the remaining
questions. Please note that the Panel may pose some of the attached questions orally during the panel
meeting.

 Each party is free to respond to or comment on questions posed to the other party.

1 Para. 3 of Brazil's letter dated 7 February.
2 Section VII:A:5(a) of the original panel report (WT/DS267/R) describes this issue in detail.
3 That is, when the meeting with the parties starts.

ANNEX F-8

COMMUNICATION TO BRAZIL AND THE UNITED STATES

(21 March 2007)

 The Panel refers to the communication of Br azil dated 1 November 2006 requesting the Panel
to exercise its discretion under Article 13 of the DSU to seek certain information and to the
communications of the Panel on this issue dated 8 and 27 November 2006 and 17 January 2007. The
Panel notes that Brazil's request was made prior to the filing of the written submissions in this case
and that information on certain items identified in th at request has since been provided to the Panel.
The Panel also expects to receive information on is sues raised in Brazil's request in response to the
questions posed by the Panel on 15 March 2007. The Panel considers that at this juncture it is not
necessary to seek more information in respect of is sues identified in Brazil's request. The Panel may,
however, decide to request this information at a la ter stage of this proceeding and may ask questions
to the parties at any time, in accordance with paragraph 7 of the Panel's working procedures.

ANNEX G

WORKING PROCEDURES AND TIMETABLE OF THE PANEL

Contents Page
Annex G-1 Working Procedures G-2
Annex G-2 Timetable (Final) G-5

ANNEX G-1

WORKING PROCEDURES FOR THE PANEL

1. In its proceedings, the Panel shall follow the relevant provisions of the Dispute Settlement
Understanding (DSU). In addition, the following working procedures shall apply.
2. The Panel shall meet in closed session. The parti es to the dispute, and interested third parties,
shall be present at the meetings only when invited by the Panel to appear before it.
3. The deliberations of the Panel and the documents submitted to it shall be kept confidential.
Nothing in the DSU shall preclude a party to a dispute from disclosing statements of its own
positions to the public. Members shall treat as confidential information submitted by another
Member to the Panel which that Member has d esignated as confidential. Where a party to a
dispute submits a confidential vers ion of its written submissions to the Panel, it shall also, upon
request of a Member, provide a non-confidential summary of the information contained in its
submissions that could be disclosed to the public.
4. Before the substantive meeting of the Panel with the parties to the dispute, the parties shall
transmit to the Panel first written submissions, a nd subsequently written re buttals, in which they
present the facts of the case, and their arguments and their counter-arguments, respectively. Third
parties may transmit to the Panel written submi ssions after the first written submissions of the
parties have been submitted but before the rebuttals of the parties have been submitted.
5. All third parties which have notified their interest in the dispute to the Dispute Settlement Body
shall be invited in writing to present their views during a session of the substantive meeting of the
Panel set aside for that purpose. All such third parties may be present during the entirety of that
session.
6. At its substantive meeting with the parties, the Panel will ask Brazil to present its case.
Subsequently, and still at the same meeting, th e Panel will ask the United States to present its
point of view. The Panel thereafter will ask thir d parties to present their views at the separate
session of the same meeting set aside for that pur pose. The parties will then be allowed an
opportunity for final statements, with Brazil presenting its statement first.
7. The Panel may at any time put questions to the par ties and to the third parties, and ask them for
explanations either in the course of the substan tive meeting with the parties or in writing.
Answers to questions shall be submitted in writing by the date specified by the Panel.
8. The parties to the dispute and any third party inv ited to present its views shall make available to
the Panel and the parties and other third parti es a written version of their oral statements,
preferably at the end of the meeting with the Pane l, and in any event not later than the day after
the meeting. Parties and third parties are encour aged to provide the Panel and other participants
at the meeting with a provisional written version of their oral statements at the time that the
statements are made.
9. In the interest of full transparency, the oral pr esentations shall be made in the presence of the
parties. Moreover, each party's written submissi ons, including responses to questions put by the
Panel, shall be made available to the other party. Third parties shall receive copies of the parties'
first written submissions and rebuttals.

10. The parties shall provide the Secretariat with an executive summary of the claims and arguments
contained in their written submissions, and, if necessary, oral presentations and answers to
questions. These executive summaries shall not serve in any way as a substitute for the
submissions of the parties. The summaries of the first written submission and rebuttal submission
shall be limited to ten (10) pages each. The Panel will determine the page limit for executive
summaries of parties' oral presentations and responses to questions, if necessary and as
appropriate. The executive summaries shall be submitte d to the Secretariat within one week of
the original submission, or, if necessary, presentation and/or written replies concerned. Paragraph
17 shall apply to the service of executive summaries.
11. Parties shall submit any requests for preliminary rulings not later than in their first written
submissions to the Panel. If Brazil requests su ch a ruling, the United States shall submit its
response to the request in its first written submi ssion. If the United States requests such a ruling,
Brazil shall submit its response to the request prior to the substantive meeting of the Panel, at a
time to be determined by the Panel in light of the request. Exceptions to this procedure will be
granted upon a showing of good cause.
12. Parties shall submit all factual evidence to the Panel no later than in their first written submissions
to the Panel, other than evidence necessary for pur poses of rebuttals and answers to questions.
Exceptions to this procedure will be granted upon a showing of good cause. In such cases, the
other party shall be accorded a period of time for comment on the newly submitted evidence, as
the Panel deems appropriate.
13. To facilitate the maintenance of the record of the dispute, and to maximize the clarity of
submissions, in particular, the references to exhibi ts submitted by parties, it is suggested that
parties sequentially number their exhibits throughout the course of the dispute.
14. The descriptive part of the Panel's report will include the procedural and factual background to the
present dispute. There will be no description of the main arguments of the parties and third parties
as such. Instead, the Panel will attach to its re port the parties' submissions (executive summaries
thereof, as appropriate) including first writte n submissions and rebu ttal submissions, written
versions of the oral statements, and each partie s' replies to questions from the other party and
from the Panel. Upon request of a party, speci fic portions of a submission designated by that
party as confidential at the time of its submission will not be included in the submission attached
to the Panel's report.
15. The parties and third parties to this proceeding have the right to determine the composition of
their own delegations. The partie s and third parties shall have responsibility for all members of
their delegations and shall ensure that all member s of their delegations act in accordance with the
rules of the DSU and the Working Procedures of this Panel, particularly in regard to
confidentiality of the proceedings. Each party a nd third party shall provide a list of the members
of its delegation before or at the beginning of the meeting with the Panel.
16. Following issuance of the interim report, the par ties shall have the time, as established by the
timetable of the Panel, to submit written requests to review precise aspects of the interim report.
Following receipt of any written requests for review , each party shall have the opportunity, within
a period specified by the timetable of the Panel, to submit written comments on the other party's
written requests for review. Such comments shall be strictly limited to commenting on the other
party's written request for review.
17. The following procedures regarding service of documents shall apply:

(a) Each party shall serve its submissions directly on the other party. Each party shall, in
addition, serve its first written submission a nd rebuttal submission on the third parties.
Each third party shall serve its submission on the parties and other third parties. Each
party and third party shall confirm in writing that copies have been served as required, at
the time it provides each submission to the Panel.
(b) The parties and third parties should provide their submissions to the Secretariat
by 5:30 p.m. on the due dates established by the Panel, unless a different time is set by the
Panel.
(c) The parties and third parties shall provide th e Panel with eight (8) paper copies of their
submissions. All of these copies shall be f iled with the Dispute Settlement Registrar,
Mr. Ferdinand Ferranco (office number 2150).
(d) At the time that they provide the paper versi ons of their submissions, the parties and third
parties also shall provide to the Panel, the other party and, as appropriate, third parties
electronic versions of all submissions, in a format compatible with that used by the
Secretariat, either on a diskette or as an e-mail attachment. E-mail attachments shall be
sent to the Dispute Settlement Registry (DSRegistry@wto.org) with a copy to
Mr. Hiromi Yano (hiromi.yano@wto.org).

ANNEX G-2

TIMETABLE FOR THE PANEL1

Panel established on 28 September 2006
Panel composed on 25 October 2006

a. First written submissions of the parties:

 1. Complaining party (Brazil)

17 November 2006
 2. Party complained against (United States)

15 December 2006
 3. Third parties

 5 January 2007
b. Rebuttal submission from Brazil
2

11 January 2007
c. Rebuttal submission from the United States

5 February 2007
d. Date of meetings with the parties and third party session

27 February 2007
(28 February, if necessary)

e Issuance of the interim report, including descriptive part,
findings and conclusions, to the parties

27 July 2007
f Written comments on the interim report

3 September 2007
g Parties' comments on each other's comments on the interim
report

17 September 2007

h. Issuance of the report to the parties 15 October 2007
i. Circulation of the final report to the Members after translation

1 As actually followed.
2 Brazil's responses to the US request for preliminary ruling was due 16 January 2007.

ANNEX H

REQUEST FOR THE ESTABLISHMENT OF A PANEL

Contents Page
Annex H-1 Request for the Establis hment of a Panel by Brazil H-2

ANNEX H-1

21 August 2006

(06-3966)
 Original: English

UNITED STATES – SUBSIDIES ON UPLAND COTTON

Recourse to Article 21.5 of the DSU by Brazil

Request for the Establishment of a Panel

 The following communication, dated 18 August 2006, from the delegation of Brazil to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU.

Upland Cotton, WT/DS267.2

A. Relevant Findings, and Recommendations and Rulings

2. Brazil summarizes below the findings of the Appellate Body and the Panel, and the
recommendations and rulings of the DSB, that are relevant to this communication. Those findings,
and recommendations and rulings, relate to (i) actionable subsidies and (ii) prohibited export
subsidies.

3. The Panel and Appellate Body found, inter alia, that the price-contingent US marketing loan,
counter-cyclical and Step 2 programs in the Farm S ecurity and Rural Investment Act ("FSRI Act") of
2002 caused significant price suppression in the worl d market for upland cotton in violation of
Articles 5(c) and 6.3(c) of the Agreement on Subsidies and Countervailing Measures ("SCM
Agreement").3 In paragraph 8.1(g)(i) of its report, the Panel found that:

"[T]he effect of the mandatory price-contingent United States subsidy measures –
marketing loan programme payments, u ser marketing (Step 2) payments, MLA
payments and CCP payments – is significant price suppression in the same world
market within the meaning of Article 6.3(c) of the SCM Agreement constituting
serious prejudice to the interests of Brazil within the meaning of Article 5(c) of the
SCM Agreement."

1 WT/DS267/AB/R ("Appellate Body Report, US – Upland Cotton "); WT/DS267/R ("Panel Report,
US – Upland Cotton").
2 WT/DSB/M/186.
3 Panel Report, US – Upland Cotton, paras. 8.1(g)(i) and 7.1416.

The recommendations and rulings adopted by the DSB directed the United States, under Article 7.8 of
the SCM Agreement , to remove the adverse effects caused by these subsidies, or to withdraw the
subsidies, by 21 September 2005.4

4. The Panel found that three export credit guarantee ("ECG") programs maintained by the
United States to support the export of US agricu ltural products – the Gene ral Sales Manager 102
("GSM 102"), General Sales Manager 103 ("GSM 103") and Supplier Credit Guarantee ("SCGP")
Programs
5 – constitute export subsidie s under Article 10.1 of the Agreement on Agriculture . The
Panel further found that these three ECG programs are export subsidies applied in a manner that
results in actual circumvention of US export s ubsidy commitments for rice, and other products –
including upland cotton – for which the United St ates has not undertaken export subsidy reduction
commitments ("unscheduled" products) and which we re supported by the ECG programs. The Panel
therefore concluded that these three ECG programs ar e inconsistent with Articles 10.1 and 8 of the
Agreement on Agriculture.

5. Having found that these three ECG programs c onstitute export subsidies for purposes of its
analysis of Brazil's claims under the Agreement on Agriculture, the Panel also found that for purposes
of Brazil's claims under Part II of the SCM Agreement, the programs are similarly prohibited subsidies
under Articles 3.1(a) and 3.2 of the SCM Agreement.6

6. As a result of these findings, the Panel r ecommended that the United States bring these three
ECG programs, with respect to upland cotton and other unscheduled supported products, and to rice,
into conformity with the Agreement on Agriculture.
7 Pursuant to Article 4.7 of the SCM Agreement,
the Panel additionally recommended that the Unite d States withdraw these prohibited subsidies
without delay, and by no later than 1 July 2005.8

7. The Appellate Body affirmed these recommendations. 9 In addition, the Appellate Body
reversed the Panel's finding that Brazil had failed to make a prima facie case that the United States
had applied ECGs in a manner that resulted in actual circumvention of its export subsidy
commitments with respect to pig meat and poultry meat, within the meaning of Article 10.1 of the
Agreement on Agriculture; however, the Appellate Body was unable to complete the analysis for this
claim.10

B. Measures Taken by the United States to Comply

8. To implement the recommendations and rulings of the DSB, the United States took the
following actions:

 (i) On 3 February 2006, the United States Congress approved a bill that repeals the
Step 2 subsidy program for upland cotton.
11 The bill was signed into law on
8 February 2006,12 and took effect on 1 August 2006.

4 Panel Report, US – Upland Cotton, para. 8.3(d).
5 See 7 U.S.C. § 5622; 7 CFR Part 1493.
6 Panel Report, US – Upland Cotton, para. 8.1(d)(i).
7 Panel Report, US – Upland Cotton, para. 8.3(a).
8 Panel Report, US – Upland Cotton, para. 8.3(b).
9 Appellate Body Report, US – Upland Cotton, paras. 763, 764.
10 Appellate Body Report, US – Upland Cotton, para. 763(f)(i).
11 Deficit Reduction Act of 2005, US Public Law 109-171, Section 1103.

 (ii) The US Department of Agriculture (" USDA") announced that as of 1 July 2005, it
would no longer take applications for ECGs under GSM 103;
13

 (iii) As of 1 July 2005, USDA amended th e fee schedules for EC Gs issued under the
GSM 102 and SCGP programs.
14

C. Non-existence of Measures, and Omissions/Deficiencies of Existing Measures

9. Brazil believes that measures taken by the Un ited States to comply with the recommendations
and rulings of the DSB in some respects do not exist, and to the extent they do exist, are not consistent
with the Agreement on Agriculture and the SCM Agreement . Brazil identifies below instances in
which US measures do not exist, as well as omissions and deficiencies with respect to those measures
taken to comply that do exist.

 1. Non-existence and omissions/defici encies regarding the actionable subsidy-
related recommendations and rulings of the DSB

10. With respect to the actionable subsidy-re lated recommendations and rulings of the DSB,
Brazil believes that the United States has failed to take appropriate steps to remove the adverse effects
or withdraw the subsidies found to cause adverse effects. The United States' failure to take these steps
results in US subsidies for upland cotton causing serious prejudice to the interests of Brazil, within the
meaning of Articles 5(c) and 6.3 of the SCM Agreement.

11. Brazil divides its concerns regarding the US fa ilure to take appropriate steps to remove the
adverse effects or withdraw the subsidies into tw o parts: the non-existence of measures taken to
comply, and the consistency of those measures taken to comply with the covered agreements.

 (a) Non-existence of measures taken to comply

12. First, the only measure taken by the United States to comply with the adverse effects-related
recommendations and rulings of the DSB ( i.e., the repeal of the Step 2 program, cited as measure
taken to comply (i) in Section B above), did not ta ke effect until 1 August 2006, or over 10 months
following the expiry of the implementation period, on 21 September 2005. At least during the period
21 September 2005 through 31 July 2006, measures taken to comply did not exist, within the meaning
of Article 21.5 of the DSU.

13. Second, the United States has taken no measures whatsoever to comply with the
recommendations and rulings of the DSB concerni ng the US marketing loan and counter-cyclical

12 WT/DSB/M205, 17 February 2006, para. 91.
13 See "USDA announces changes to export credit guarantee programs to comply with WTO Findings,"
USDA FAS Online News Release, 30 June 2005, available at
http://www.fas.usda.gov/scriptsw/PressRelease/pressrel_dout.asp?PrNum=0092-05
. See also "Notice to GSM-
103 Program Participants", USDA FAS Program Announcement, 30 June 2005, available at
http://www.usda.gov/documents/0094GSM103Notice.doc.
14 See "USDA announces changes to export credit guarantee programs to comply with WTO
Findings," USDA FAS Online News Release, 30 June 2005, available at
http://www.fas.usda.gov/scriptsw/PressRelease/pressrel_dout.asp?PrNum=0092-05. See also "USDA changes
its fees to risk-based method for the GSM-102 and Supplier Credit Guarantee programs", USDA FAS Online
News Release, 30 June 2005, available at
http://www.fas.usda.gov/scriptsw/PressRelease/pressrel_dout.asp?PrNum=0093-05. See also GSM-102 Fee
Schedule, available at www.fas.usda.gov/excredits/gsm102fees.html . and SCGP Fee Schedule, available at
www.fas.usda.gov/excredits/scgpfees.html.

payment programs under the FSRI Act of 2002, as ame nded, as well as paym ents made under these
programs. In this respect, measures taken to comply do not exist, within the meaning of Article 21.5
of the DSU.

14. As a consequence of these two failures, the United States has failed, as directed by the
recommendations and rulings of the DSB, to take appropriate steps to remove the adverse effects of or
to withdraw the subsidies from the US marketing loan, counter-cyclical and Step 2 payment programs
under the FSRI Act of 2002, as amended, as well as payments made under these programs. These
failures mean that, as in previous marketing years, the US marketing loan, counter-cyclical and Step 2
payment programs under the FSRI Act of 2002, as amende d, taken alone and/or considered together,
as well as payments made under these programs, cause:

• significant price suppression in the world market for upland cotton, within the
meaning of Article 6.3(c) of the SCM Agreement; and

• an increase in the US share in the world ma rket for upland cotton in marketing year
2005, within the meaning of Article 6.3(d) of the SCM Agreement.

(b) Inconsistency of measures taken to comply with the covered agreements

15. The measure taken by the United States to comply with the adverse effects-related
recommendations and rulings of the DSB, identifie d as item (i) in Section B above, is deficient,
because it fails to remove the adverse effects or wit hdraw the subsidies, and results in inconsistencies
with Articles 5 and 6.3 of the SCM Agreement. Specifically, the deficiency manifests itself in three
inconsistencies:
 (i) Serious prejudice, with Step 2

16. Brazil believes that the US marketing loan , counter-cyclical and Step 2 payment programs
under the FSRI Act of 2002, as amended, taken alon e and/or considered together, as well as payments
made under these programs, cause:

• significant price suppression in the world market for upland cotton within the
meaning of Article 6.3(c) of the SCM Agreement; and

• an increase in the US share in the world ma rket for upland cotton in marketing year
2005, within the meaning of Article 6.3(d) of the SCM Agreement.

 (ii) Serious prejudice, without Step 2

17. Notwithstanding the US measure taken to comply with the actionable subsidy-related
recommendations and rulings of the DSB ( i.e., the repeal of the Step 2 program effective 1 August
2006, cited as measure taken to comply (i) in S ection B above), Brazil considers that the US
marketing loan and counter-cyclical payment progr ams under the FSRI Act of 2002, as amended, as
well as payments made under those programs, cause serious prejudice to the interests of Brazil, within
the meaning of Article 5(c) and 6.3 of the SCM Agreement.

18. Specifically, irrespective of the effects of the Step 2 program or payments thereunder, the US
marketing loan and counter-cyclical payment progr ams under the FSRI Act of 2002, as amended, as
well as payments made under those programs, cause:

• significant price suppression in the world market for upland cotton within the
meaning of Article 6.3(c) of the SCM Agreement; and

• an increase in the US share in the world ma rket for upland cotton in marketing year
2005, within the meaning of Article 6.3(d) of the SCM Agreement.

 (iii) Threat of serious prejudice

19. Finally, Brazil believes that the United Stat es threatens to cause serious prejudice to the
interests of Brazil, within the meaning of Articles 5(c) and 6.3 of the SCM Agreement , and
footnote 13 thereto, by failing to take appropriate steps to remove the adverse effects or withdraw
WTO-inconsistent subsidies for upland cotton.

20. Specifically, Brazil believes that the US marketing loan and counter-cyclical payment
programs under the FSRI Act of 2002, as amended, as well as payments mandated to be made
thereunder, threaten to cause significant price suppression in the world market for upland cotton in
marketing years 2006
15 and until the expiry or repeal of these programs.

 2. Non-existence and omissions/deficiencies regarding the ECG-related
recommendations and rulings of the DSB

21. Brazil believes that despite the measures take n to comply cited as items (ii) and (iii) in
Section B above, the United States has failed to implement the DSB's recommendation that it
withdraw the prohibited ECG-related e xport subsidies without delay, under the SCM Agreement, and
otherwise bring itself into conformity with its obligations, under the Agreement on Agriculture .
Specifically, Brazil believes that measures taken to comply with the recommendations and rulings of
the DSB with respect to the ECG programs do not exist in some respects, and to the extent they exist,
are not consistent with the Agreement on Agriculture and the SCM Agreement . In either case, the
United States has failed to withdraw fully the ECG-related prohibited s ubsidies subject to the
recommendations and rulings of the DSB.

22. Brazil divides its concerns regarding the US failure to withdraw fully the ECG-related
prohibited subsidies into two parts: the non-ex istence of measures taken to comply, and the
consistency of those measures taken to comply with the covered agreements.

 ( a) Non-existence of measures taken to comply

23. Brazil believes that with respect to ECGs issued under the GSM 102, GSM 103 and SCGP
programs prior to 1 July 2005, but still outstanding subsequent to 1 July 2005, the United States has
taken no action whatsoever to withdraw the subsidy and otherwise bring itself into conformity with its
obligations. With respect to these outstanding ECGs , measures taken to comply do not exist, within
the meaning of Article 21.5 of the DSU.

24. In this respect, Brazil's concerns with the US failure to take measures to comply extend to
ECGs issued under the GSM 102, GSM 103 and SCGP programs prior to 1 July 2005, but still
outstanding subsequent to 1 July 2005, to suppor t the export of: upland cotton and other unscheduled
products; and, rice.

15 Marketing year 2006 lasts from 1 August 2006 until 31 July 2007.

(b) Inconsistency of measures taken to comply with the covered agreements

25. Brazil believes that the United States provides export subsidies (under Articles 1, 3.1(a) and
3.2 of the SCM Agreement , as well as under item (j) to the Illustrative List of Export subsidies
included as Annex I to the SCM Agreement (the "Illustrative List")) through the GSM 102 and SCGP
programs, and ECGs provided under these program s, and has applied those export subsidies
subsequent to 1 July 2005 in a manner that results in circumvention of the United States' export
subsidy commitments. In this respect, the United Stat es' measures taken to co mply are not consistent
with Articles 10.1 and 8 of the Agreement on Agriculture and Articles 3.1(a) and 3.2 of the SCM
Agreement.

26. Specifically, and notwithstanding the US measures taken to comply cited as items (ii) and (iii)
in Section B above, the GSM 102 and SCGP program s, and ECGs provided thereunder, are export
subsidies under the Agreement on Agriculture and the SCM Agreement, based on the following two
grounds:

• The programs and ECGs provided there under provide and c onstitute financial
contributions (loan guarantees) that confer be nefits on recipients, within the meaning
of Article 1 of the SCM Agreement, and that are contingent upon export performance,
within the meaning of Article 3.1(a) of the SCM Agreement ; and, separately and
independently,

• The programs do not levy premium rates ade quate to cover the long-term operating
costs and losses of the GSM 102 and SCGP pr ograms, within the meaning of item (j)
of the Illustrative List.

27. Further, subsequent to 1 July 2005, ECGs under the GSM 102 and SCGP programs have been
applied to circumvent US export subsidy commitme nts, within the meaning of Article 10.1 of the
Agreement on Agriculture . Brazil is concerned that ECGs under the GSM 102 and SCGP programs
have been provided subsequent to 1 July 2005 to support the export of: upland cotton and other
unscheduled products; and, rice, pigmeat and pou ltry meat, in excess of US reduction commitment
levels for those products.
16

28. As a result and to the extent of this violati on of Article 10.1 (and, as a consequence, Article 8)
of the Agreement on Agriculture, the GSM 102 and SCGP programs, and ECGs provided thereunder,
are subject to the prohibition against export subsidies included in Articles 3.1 and 3.2 of the
SCM Agreement. On the grounds cited in paragraph 26 above, Brazil believes that the GSM 102 and
SCGP programs, and ECGs provided thereunder, are prohibited export subsidies, within the meaning
of Articles 3.1(a) and 3.2 of the SCM Agreement.

D. Conclusion

29. Accordingly, because there is disagreement as to the existence and consistency with a covered
agreement of measures taken to comply with the r ecommendations and rulings of the DSB, within the
meaning of Article 21.5 of the Understanding on Ru les and Procedures Governing the Settlement of

16 Exports that benefited from GSM 102 and SCGP ECGs subsequent to 1 July 2005 are currently
reflected in the July 2005 and Sept ember 2005 (fiscal year end), as we ll as July 2006 "Monthly Summary of
Export Credit Guarantee Activity," USDA FAS Online, available at
http://www.fas.usda.gov/excredits/Monthly/ecg.html.

Disputes ("DSU"), Brazil seeks recourse to dispute settlement under this provision.
17 Brazil requests
that the DSB refer the matter to the original panel, if possible, pursuant to Article 21.5 of the DSU.

Procedures Governing the Settlement of Disputes ("DSU") were not held.