Document: WT/DS382/R Page G-1 BCI deleted, as indicated [[XX]] ANNEX G REQUESTS FOR CONSULTATIONS AND THE ESTABLISHMENT OF A PANEL Contents Page Annex G-1 Request for Consultations by Brazil G-2
Document codes: WT/DS382/R
Complainant: Brazil
Respondent: U.S.
Third parties: Argentina, EU, Japan, South Korea, Mexico, Taiwan, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2.1, 2.4.2, 2.4, 2  Anti-dumpingArt. VI:1, VI:2, II:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade OrganizationArt. 9.3  Anti-dumping

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ANNEX G

REQUESTS FOR CONSULTATIONS AND THE
ESTABLISHMENT OF A PANEL

Contents Page
Annex G-1 Request for Consultations by Brazil G-2
Annex G-2 Request for Consulta tions by Brazil - Addendum G-4
Annex G-3 Request for the Establis hment of a Panel by Brazil G-7

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ANNEX G-1

REQUEST FOR CONSULTATIONS BY BRAZIL

UNITED STATES – ANTI-DUMPING ADMINISTRATIVE REVIEWS AND OTHER
MEASURES RELATED TO IMPORTS OF CERTAIN ORANGE JUICE
FROM BRAZIL

Request for Consultations by Brazil

 The following communication, dated 27 Novemb er 2008, from the delegation of Brazil to the
delegation of the United States and to the Chairman of the Dispute Settlement Body, is circulated in
accordance with Article 4.4 of the DSU.

Upon instructions from my authorities, I hereby request consultations with the Government of
the United States pursuant to Article 4 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), Article XXII:1 of the General Agreement on Tariffs and Trade 1994
("GATT 1994"), and Articles 17.2 and 17.3 of the Agreement on Implementation of Article VI of
GATT 1994 ("Anti-Dumping Agreement"), with regard to the matters listed hereunder:
The following determinations of the United States Department of Commerce (USDOC)
concerning the imports of certain orange juice from Brazil, case nº A-351-840:
• the antidumping administrative review for the period from 24 August 2005 to
28 February 2007, and the final results thereof, in " Certain Orange Juice from Brazil:
Final results and Partial Rescission of Antidumping Duty Administrative Review" ,
published in 73 Fed. Reg. 46,584 (11 August 2008), as well as any assessment
instructions and cash deposit requirements issued pursuant to them (the "Issues and
Decision Memorandum", dated 5 August 2008, which discusses issues raised in this
review, confirms that "zeroing" was app lied by the USDOC in this review and
specifically rejects the relevance of WTO A ppellate Body precedents for administrative
reviews conducted by the USDOC);

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• any on-going or future antidumping administrativ e reviews, and the final results thereof,
related to the imports of certain orange juice from Brazil (case nº A-351-840), as well as
any assessment instructions and cash deposit requirements issued pursuant to them.
Any actions taken by United States Customs and Border Protection (USCBP) to collect
definitive anti-dumping duties at duty assessment rate s established in periodic reviews covered by the
preceding paragraph, including through the issuance of USCBP liquidations instructions and notices.
The following US laws, regulations, administrative procedures, practices and methodologies:
• the Tariff Act of 1930, as amended, (the "A ct"), in particular sections 736, 751,
771(35)(A) and (B), and 777A(c) and (d);
• the US Statement of Administrative Action that accompanied the Uruguay Round
Agreements Act, H.R. Doc. No. 103-316, vol. I;
• the implementing regulations of USDOC, codified at Title 19 of the United States Code
of Federal Regulations, 19 CFR Section 351, in particular sections 351.212(b),
351.414(c), and (e);
• the Import Administration Antidumping Manual (1997 edition), including the computer
program(s) to which it refers;
• the general procedures and methodology employed by the United States to determine
dumping margins in administrative reviews, whereby USDOC, in comparing weighted
average normal value with transaction price of individual export transactions, treats as
zero negative intermediate comparison results (i.e. situations in which the individual
export price is greater than the weighted average normal value). Such methodology is
commonly referred to as "simple zeroing" and/or the US "zeroing procedures."
Brazil is concerned that the laws, regulations, administrative procedures, practices and
methodologies described above are as such, and as a pplied in the determina tions and actions listed
above, inconsistent with the obligations of the United States under the Marrakesh Agreement
Establishing the World Trade Organization ("WTO Agreement") and the Agreements annexed
thereto. The provisions with which these measures appear to be inconsistent include, but are not
limited to, the following:
• Articles II, VI:1 and VI:2 of the GATT 1994;
• Articles 1, 2.1, 2.4, 2.4.2, 9.1, 9.3, 11.2 and 18.4 of the Anti-Dumping Agreement;
• And Article XVI:4 of the WTO Agreement.
Brazil reserves the right to raise additional claims and legal matters during the course of the
consultations. It looks forward to receiving the Un ited States Government’s response and to setting a
mutually convenient date for consultations.
Please accept, Excellency, the assurances of my highest consideration.

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ANNEX G-2

REQUEST FOR CONSULTATIONS BY BRAZIL – ADDENDUM

27 May 2009

(09-2552)
 Original: English

UNITED STATES – ANTI-DUMPING ADMINISTRATIVE REVIEWS AND OTHER
MEASURES RELATED TO IMPORTS OF CERTAIN ORANGE JUICE
FROM BRAZIL

Request for Consultations by Brazil

Addendum

 The following communication, dated 22 May 2 009, from the delegation of Brazil to the
delegation of the United States and to the Chairman of the Dispute Settlement Body, is circulated in
accordance with Article 4.4 of the DSU.
Rules and Procedures Governing the Settlement of Disputes (the "DSU"), Article XXII:1 of the
General Agreement on Tariffs and Trade 1994 (t he "GATT 1994"), and Articles 17.2 and 17.3 of the
Agreement on Implementation of Article VI of GA TT 1994 (the "Anti-Dumping Agreement"). The
present request complements, constitutes an addendum to , and must be read with, the original request
for consultations presented on 27 Novemb er 2008 (Document WT/DS382/1, G/L/872,
G/ADP/D75/1).
2. On 27 November 2008, the Government of Brazil requested consultations with the
Government of the United States of America (the "United States") under Article 4 of the
Understanding on Rules and Procedures Governi ng the Settlement of Disputes (the "DSU");
Article XXII:1 of the General Agreement on Tari ffs and Trade 1994 (the "GATT 1994"); and
Articles 17.2 and 17.3 of the Agreement on Impl ementation of Article VI of GATT 1994 (the
"Anti-Dumping Agreement"), with regard to th e laws, regulations, administrative procedures,
practices and methodologies for calculating dumping margins in administrative reviews, involving the
use of "zeroing", and their application in antidum ping duty administrative reviews regarding imports
of certain orange juice from Brazil (case nº A-351-840).
1

1 WT/DS382/1, G/L/872, G/ADP/D75/1.

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3. The consultations, held on 16 January 2009, c overed the Antidumping Duty Administrative
Review for the period from 24 August 2005 to 28 Februa ry 2007 (the "First Administrative Review")
and the Antidumping Duty Administrative Review from 1 March 2007 to 29 February 2008 (the
"Second Administrative Review"), pursuant to the orig inal request for consultations, which included,
among others: the First Administrative Review, the final results thereof, and any assessment
instructions and cash deposit requirements issued pur suant thereto; and, any on-going or future
antidumping administrative reviews related to the im ports of certain orange juice from Brazil (case
nº A-351-840), the final results thereof, a nd any assessment instructions and cash deposit
requirements issued pursuant thereto.
4. In addition to the above matters, Brazil would like to consult with the United States with
regard to the complementary matters listed hereunder:
(a) The Antidumping Duty Investigation on certain orange juice from Brazil (case
nº A-351-840), for the period from 1 October 2003 to 30 September 2004, and the
final results thereof, in " Notice of Final Determination of Sales at Less Than Fair
Value and Affirmative Final Determination of Critical Circumstances: Certain
Orange Juice from Brazil" , published in 71 Fed. Reg. 2183 (13 January 2006); the
corresponding antidumping order, entitled "Antidumping Duty Order: Certain
Orange Juice from Brazil", published in 71 Fed. Reg. 12183 (9 March 2006); as well
as any cash deposit requirements issued pursuant to them. In this measure, the United
States Department of Commerce (the "USDOC") employed a methodology whereby
it aggregated intermediate comparison r esults between weighted average normal
value and weighted average export price for sub-groups of products within the
product under investigation ("averaging groups"), treating as zero negative
intermediate comparison results (i.e., situations in which the weighted average export
price was greater than the weighted average normal value of an "averaging group").
Such methodology is commonly referred to as "model zeroing" and/or US zeroing
procedures; and
(b) The continued use of the US zeroing procedures ("model" or "simple" zeroing) in
successive antidumping proceedings, in rela tion to the antidumping order issued in
respect of imports of certain orange jui ce from Brazil (case nº A-351-840), including
the original investigation and subsequent ad ministrative reviews, by which duties are
imposed and maintained in place at a le vel in excess of the antidumping margin
which would result from the correct app lication of the Anti-Dumping Agreement
(whether duties or cash deposit rates or other form of measure).
5. Furthermore Brazil would like to further consu lt with the United States with regard to the
following matter:
(c) The Antidumping Duty Administrative Review from 1 March 2007 to
29 February 2008 (the "Second Administrativ e Review"), related to the imports of
certain orange juice from Brazil (case nº A-351-840).
6. Brazil is concerned that these measures are inc onsistent with the obligations of the United
States under the Marrakesh Agreement Establishi ng the World Trade Organization (the "WTO
Agreement") and the Agreements annexed thereto. The provisions with which these measures appear
to be inconsistent include, but are not limited to, the following:
• Articles II, VI:1 and VI:2 of the GATT 1994;
• Articles 1, 2.1, 2.4, 2.4.2, 9.1, 9.3, 11.2 and 18.4 of the Anti-Dumping Agreement;
• And Article XVI:4 of the WTO Agreement.

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7. Brazil reserves the right to raise additional claims and legal matters during the course of the
consultations. It looks forward to receiving the United States Government's response and to setting a
mutually convenient date for consultations.

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ANNEX G-3

REQUEST FOR THE ESTABLISHMENT OF
A PANEL BY BRAZIL

21 August 2009
 (09-3998)
 Original: English

UNITED STATES – ANTI-DUMPING ADMINISTRATIVE REVIEWS AND OTHER
MEASURES RELATED TO IMPORTS OF CERTAIN ORANGE JUICE
FROM BRAZIL

Request for the Establishment of a Panel by Brazil

 The following communication, dated 20 August 2009, from the delegation of Brazil to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 Upon instructions from my authorities, I hereby request the establishment of a panel pursuant
to Articles 4.7 and 6 of the Understanding on Ru les and Procedures Governing the Settlement of
Disputes (the "DSU"), Article XXIII of the Gene ral Agreement on Tariffs and Trade of 1994 (the
"GATT 1994") and Article 17.4 of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade of 1994 (the "Anti-Du mping Agreement"), with regard to the matters
listed hereunder:

Consultations

 On 27 November 2008, the Government of Braz il ("Brazil") requested consultations with the
Government of the United States of America (the "United States") under Articles 4 of the DSU,
Article XXII:1 of the GATT 1994 and Articles 17.2 a nd 17.3 of the Anti-Dumping Agreement, with
regard to the laws, regulations, administrative procedures, practices and methodologies for calculating
dumping margins in administrative reviews, involving the use of "zeroing", and their application in
anti-dumping duty administrative reviews regarding im ports of certain orange juice from Brazil (case
No A-351-840). On 22 May 2009, Brazil requested furt her consultations with the United States with
regard to the use of "zeroing" in the anti-dumping duty investigation and in the second administrative
review related to case No A-351-840 as well as to the continued use of the US "zeroing procedures" in
successive anti-dumping proceedings regarding imports of certain orange juice from Brazil. The
consultations were held on 16 Ja nuary 2009 and 18 June 2009, respectively. They allowed a better
understanding of the parties' positions but failed to resolve the dispute.

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Measures and claims

 The measures at issue are the following:

 (a) The anti-dumping duty investigation on certain orange juice from Brazil (the
"Original Investigation")

 This anti-dumping proceeding concerns th e imposition of anti-dumping duties on certain
orange juice for transport and/or further manufactur ing produced in two different forms: (1) Frozen
orange juice in a highly concentrated form, sometime s referred to as frozen concentrated orange juice
for further manufacturing (FCOJM); and (2) pasteurized single-strength orange juice which has not
been concentrated, referred to as Not-From-C oncentrate (NFC) (case No A-351-840). The final
results of this Original Investigation were publis hed in 71 Fed. Reg. 2183 on 13 January 2006 and the
amended final results were published in 71 Fed. Re g. 8841 on 21 February 2006. The anti-dumping
duty order was published in 71 Fed. Reg 12183 on 9 Ma rch 2006. The period of investigation is 1
October 2003 through 30 September 2004, and the amended rate of the ad valorem anti-dumping duty
was 12.46% for Fischer S.A.Comércio, Indústria, e Agricultura ("Fischer") and 19.19% for
Sucocítrico Cutrale S.A. ("Cutrale").

 In this Original Investigation, the United States Department of Commerce (the "USDOC")
employed a methodology whereby it aggregated inte rmediate comparison results between weighted
average normal value and weighted average expor t price for sub-groups of products within the
product under investigation ("averaging groups"), treating as zero negative intermediate comparison
results (i.e., situations in which the weighted av erage export price was greater than the weighted
average normal value of an "averaging group"). Brazil refers to such methodology as "model
zeroing" and/or US "zeroing procedures".

 (b) The 2005-2007 anti-dumping duty administrative review on certain orange juice
from Brazil (the "First Administrative Review")

 This anti-dumping proceeding concerns the administrative review of anti-dumping duties on
certain orange juice from Brazil (case No A- 351-840) for the period of 24 August 2005 through
28 February 2007. The final results of this First Administrative Review were published in
73 Fed. Reg. 46584 on 11 August 2008. The rate of the ad valorem anti-dumping duty was 4.81% for
Fischer and 0.45% for Cutrale.

 In this First Administrative Review, in order to assess the importers' final liability for
payment of anti-dumping duties and the going-forward cash deposit rates, the USDOC employed a
methodology whereby it aggregated intermediate comparison results between weighted average
normal value for each "averaging group" with the transaction price of individual export transactions,
treating as zero negative intermediate comparison r esults (i.e., situations in which the individual
export price was greater than the weighted averag e normal value of an "averaging group"). Brazil
refers to such methodology as "simple zeroing" and/or U.S. "zeroing procedures".

 (c) The 2007-2008 anti-dumping duty administrative review on certain orange juice
from Brazil (the "Second Administrative Review")

 This anti-dumping proceeding concerns the administrative review of anti-dumping duties on
certain orange juice from Brazil (case No A- 351-840) for the period of 1 March 2007 through
29 February 2008. The final results of this Second Administrative Review were published in
74 Fed. Reg. 40167 on 11 August 2009. The rate of the ad valorem anti-dumping duty was 0% for
Fischer and 2.17% for Cutrale.

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 In this Second Administrative Review, the USDOC applied again "simple zeroing" and/or US
"zeroing procedures".

 The measures at issue also include any asse ssment instructions issued by the USDOC and
cash deposit requirements imposed pursuant to the measu res listed in items (a), (b) and (c) above, as
well as any measures taken by the United States Customs and Border Protection (USCBP) to collect
definitive anti-dumping duties at the duty assessment rates established in those measures, including
through the issuance of USCBP liquidations instructions and notices.

 (d) The continued use of the U.S. "zeroin g procedures" in successive anti-dumping
proceedings, in relation to the anti-dumping duty order issued in respect of
imports of certain orange juice from Brazil

 This measure concerns the continued use by the United States of "zeroing procedures" in
successive anti-dumping proceedings, in relation to the anti-dumping duty order issued in respect of
imports of certain orange juice from Brazil (case No A-351-840), including the original investigation
and any subsequent administrative reviews, by whic h duties are applied and maintained over a period
of time. In particular, the use of zeroing continues in the most recent administrative review, identified
under item (c) above, by which duties are currently applied and maintained.

Claims

 Brazil considers that the measures described above are inconsistent with the following
provisions:

• Article 2.1 of the Anti-Dumping Agreemen t and Articles VI:1 and VI:2 of the
GATT 1994 because the United States did not determine a margin of dumping for the
product as a whole;
• Article 2.4.2 of the Anti-Dumping Agreement because the United States' use of "zeroing
procedures" precluded a determination for the product as a whole in the Original
Investigation;
• Article 2.4 of the Anti-Dumping Agreement because the comparison of normal value and
export price using "zeroing procedures" is unfair;
• Article VI:2 of the GATT 1994 and Article 9. 3 of the Anti-Dumping Agreement insofar
as the imposition and collection of anti-dumping duties is made in excess of the margin
of dumping properly determined pursuant to Article 2 of the Anti-Dumping Agreement;
• Article II:1(a) and II:1(b) of the GATT 1994 insofar as the United States subjects the
importation of certain orange juice to duties in excess of the duties permitted by the
United States' Schedule of Concessions; and
• Article XVI:4 of the Marrakesh Agreemen t establishing the World Trade Organization
and Article 18.4 of the Anti-Dumping Agreem ent insofar as the United States has not
taken all necessary steps, of a general or particular character, to ensure the conformity of
its laws, regulations and administrative pr ocedures with the provisions of GATT 1994
and the Anti-Dumping Agreement.

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Request

 Brazil hereby respectfully requests that a panel be established pursuant to Article XXIII of the
GATT 1994, Articles 4.7 and 6 of the DSU and Article 17.4 of the Anti-Dumping Agreement, with
standard terms of reference. Brazil asks that this request be placed on the agenda of the next meeting
of the WTO Dispute Settlement Body that will take place on 31 August 2009.