CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS
Document: Request for Consultations by the United States
Date: 25 June 2009
Document codes: WT/DS394/1; G/L/888
Complainant: U.S.
Respondent: China
Third parties: Argentina, Brazil, Canada, Chile, Colombia, Ecuador, EU, India, Japan, South Korea, Mexico, Norway, Taiwan, Turkey, Saudi Arabia
Dispute stage: Appellate Body
Agreements cited: Art. VIII:1, VIII:4, X:1, X:3, XI:1  GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, Part I, para. 8.2,   Protocol of Accession

CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS

Request for Consultations by the United States

 The following communication, dated 23 June 2009, from the delegation of the United States
to the delegation of China and to the Chairman of the Dispute Settlement Body, is circulated in
accordance with Article 4.4 of the DSU.

 My authorities have instructed me to request consultations with the Government of the
People's Republic of China ("China") pursuant to Articles 1 and 4 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes ("DSU") and Article XXII of the General
Agreement on Tariffs and Trade 1994 ("GATT 1994") with respect to China's restraints on the export
from China of various forms of bauxite
1, coke2, fluorspar3, magnesium4, manganese5, silicon carbide6,
silicon metal7, yellow phosphorus8, and zinc9 (the "materials").

 China imposes quantitative restrictions on the export of bauxite, coke, fluorspar, silicon
carbide, and zinc.

1 Bauxite includes but is not limited to items falling under the following HS numbers, as listed in
Attachment 1 of Notice "2009 Export Licensing Management Commodities List" (Ministry of Commerce and
General Administration of Customs, Notice (2008) No. 100, January 1, 2009) ("2009 Export Licensing List")
and/or Table 7 of Notice Regarding the 2009 Tariff Implementation Program (State Council Tariff Policy
Commission, shuiweihui (2008) No. 40, January 1, 2009) ("2009 Export Duty List"): 2508300000/25083000,
2606000000/26060000, 26204000.
2 Coke includes but is not limited to items falling under the following HS numbers, as listed in the 2009
Export Licensing List and/or the 2009 Export Duty List: 2704001000/27040010.
3 Fluorspar includes but is not limited to items falling under the following HS numbers, as listed in the
2009 Export Licensing List and/or the 2009 Export Duty List: 2529210000/25292100, 2529220000/25292200.
4 Magnesium includes but is not limited to items fa lling under the following HS numbers, as listed in
the 2009 Export Licensing List and/or the 2009 Export Duty List: 81041100, 81041900, 81042000.
5 Manganese includes but is not limited to items falling under the following HS numbers, as listed in
the 2009 Export Licensing List and/or the 2009 Export Duty List: 26020000, 8111001010/81110010,
8111001090/81110010.
6 Silicon carbide includes but is not limited to items falling under the following HS numbers, as listed
in the 2009 Export Licensing List and/or the 2009 Export Duty List: 2849200000, 3824909910.
7 Silicon metal includes but is not limited to items falling under the following HS numbers, as listed in
the 2009 Export Licensing List and/or the 2009 Export Duty List: 28046900.
8 Yellow phosphorus includes but is not limited to items falling under the following HS numbers, as
listed in the 2009 Export Licensing List and/or the 2009 Export Duty List: 28047010.
9 Zinc includes but is not limited to items falling under the following HS numbers, as listed in the 2009
Export Licensing List and/or the 2009 Export Duty List: 2608000001/26080000, 2608000090/26080000,
7901119000/79011190, 7901120000/79011200, 7901200000/79012000, 79020000, 26201100, 26201900.

 China also imposes export duties on bauxite, coke, fluorspar, magnesium, manganese, silicon
metal, yellow phosphorus, and zinc.

 China imposes additional requirements and pro cedures in connection with the export of the
materials, including, but not limited to, restricting the right to export based on, for example, prior
export experience; establishing criteria that foreign-invested enterprises must satisfy in order to export
that are different from those that domestic entities mu st satisfy; and requiring exporters to pay fees.
China administers these requirements and procedur es through its ministries and other organizations
under the State Council as well as chambers of commerce.

 China maintains a minimum export price sy stem for the materials and requires the
examination and approval of export contracts and export prices. China administers this system and
these requirements through its ministries and other organizations under the State Council as well as
chambers of commerce.

 The measures through which China imposes these restraints on exports include but are not
limited to
10:

• Foreign Trade Law of the People's Republic of China (adopted at the 8 th Session of the
Standing Committee of the Tenth Nationa l People's Congress on April 6, 2004,
promulgated on July 1, 2004)

• Customs Law of the People's Republic of China (adopted at the 19 th Meeting of the
Standing Committee of the Sixth Nationa l People's Congress on January 22, 1987,
amended July 8, 2000)

• Regulation of the People's Republic of China on the Administration of the Import and
Export of Goods (passed at the forty-sixth executive meeting of the State Council on
October 31, 2001, January 1, 2002)

• Measures for the Administration of License for the Export of Goods (Order of the
Ministry of Commerce (2008) No. 11, July 1, 2008)

• Measures for the Administration of Export Co mmodities Quotas (Order of the Ministry
of Foreign Trade and Economic Cooperati on No. 12, adopted on December 20, 2001,
January 1, 2002)

• Measures of Quota Bidding for Export Commodities (Decree of the Ministry of Foreign
Trade and Economic Cooperation No. 11, a dopted on December 20, 2001, January 1,
2002)

• Measures for the Administration of the Organs for Issuing the Licenses of Import and
Export Commodities (Ministry of Fore ign Trade and Economic Cooperation,
waijingmaopeiguanhanzi (1999) No. 68, September 21, 1999)

• Regulations of the People's Republic of China on Import and Export Duties (Order of the
State Council (2003) No. 392, adopted at the 26 th executive meeting of the State Council
on October 29, 2003, January 1, 2004)

10 There also appear to be unpublished measures through which China imposes these restraints on
exports.

• Provisional Measures on Customs Price Examinat ion for Exported Products (Order of
the General Administration of Customs (1995) No. 51, February 1, 1995)

• Implementing Regulations for the Measures on Customs Price Examination for Exported
Products (General Administration of Customs, February 1, 1995)

• Measures for the Administration over Foreign Trade and Economic Social Organizations
(Ministry of Foreign Trade and Economic Cooperation, February 26, 1991)

• Interim Regulations of the Ministry of Foreign Trade and Economic Cooperation on
Punishment for Conduct at Exporting at Lower-than-Normal Price (Ministry of Foreign
Trade and Economic Cooperation, March 20, 1996)

• Working Rules on Issuing Export Licenses (M inistry of Commerce, shangpeifa (2008)
No. 398, October 9, 2008)

• Rules on the Administration of Import and Export License Certificates (Ministry of
Foreign Trade and Economic Cooperation, wa ijingmaopeizi (1999) No. 87, December 6,
1999)

• Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of
Foreign Trade and Economic Cooperation, November 8, 2001)

• Charter of the China Chamber of Commerce of Metals, Minerals and Chemicals
Importers and Exporters

• Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial Products
(Ministry of Commerce, Notice (2008) No. 83, January 1, 2009)

• Notice Regarding Passing Down the 2009 Firs t Batch Regular Trade Coke Export Quota
(Ministry of Commerce, shangmaohan (2008) No. 140, January 1, 2009)

• 2009 Coke Export Quota Declaration Conditions and Declaration Procedures (Ministry
of Commerce, Notice (2008) No. 76, October 13, 2008)

• Notice "2009 Export Licensing Management Commodities List" (Ministry of Commerce
and General Administration of Customs, Notice (2008) No. 100, January 1, 2009)

• Announcement of the Ministry of Commerce Issuing the "2009 Graded License-Issuing
List of Commodities Subject to Export Licen se Administration" (Ministry of Commerce,
Notice (2008) No. 124, January 1, 2009)

• Announcement Regarding Printing "Working Rules on Issuing Export Licenses"
(Ministry of Commerce, shangpeifa (2008) No. 398, October 9, 2008)

• Announcement of Ministry of Commerce on Matters regarding the First Bidding for
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement
(2008) No. 85, October 30, 2008)

• Announcement of Ministry of Commerce on th e Notice for the Second Invitation for the
Bidding for Industrial Product Export Q uotas in 2009 (Ministry of Commerce,
Announcement (2009) No. 42, June 9, 2009)

• Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution of
the "Implementation Rules of Export Quota Bidding for Industrial Products" (Ministry of
Foreign Trade and Economic Cooperation, issued on November 8, 2001)

• Notice Regarding the 2009 Tariff Implemen tation Program (State Council Tariff Policy
Commission, shuiweihui (2008) No. 40, January 1, 2009)

• Notice Regarding the Trial Administration of 36 Types of Products such as Citric Acid
(Ministry of Commerce and General Administration of Customs, Notice (2003) No. 36,
November 29, 2003)

• Notice Regarding Printing and Distributio n of Several Regulations for Personnel
Management of Chambers of Commerce fo r Importers and Exporters (Ministry of
Foreign Trade and Economic Cooperation, September 23, 1994)

• Notice for the Adjustment of the Catalogue of Export Products Subject to Price Review
by Customs (Ministry of Foreign Trade and Economic Cooperati on and the General
Administration of Customs, waijingmaomaofa (2002) No. 187, May 1, 2002)

• Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for
Export Commodity Quotas, December 11, 2008)

• Quotas of Bauxite of 2009 (Committee for the Invitation for bid for Export Commodity
Quotas, December 10, 2008)

• Quotas of Silicon Carbide of 2009 (Committee for the Invitation for bid for Export
Commodity Quotas, December 11, 2008)

 as well as any amendments, replacements, related measures, or implementing measures.

China's measures appear to be inconsistent with the following provisions:

• Articles VIII, X, and XI of the GATT 1994; and

• Paragraphs 5.1, 5.2, 8.2, a nd 11.3 of Part I of the Prot ocol on the Accession of the
People's Republic of China ("Accession Prot ocol"), as well as China's obligations under
the provisions of paragraph 1.2 of Part I of the Accession Protocol (which incorporates
commitments in paragraphs 83, 84, 162, and 165 of the Report of the Working Party on
the Accession of China).

 China's measures also appear to nullify or impa ir the benefits accruing to the United States
directly or indirectly under the cited agreements.

 We look forward to receiving your reply to the present request and to fixing a mutually
convenient date for consultations.