UNITED STATES – LAWS, REGULATIONS AND METHODOLOGY FOR CALCULATING DUMPING MARGINS ("ZEROING")
Document: Recourse to Article 22.6 of the DSU by the United States Communication from the Arbitrator
Date: 10 February 2012
Document codes: WT/DS294/44
Complainant: EU
Respondent: U.S.
Third parties: Argentina, Brazil, China, Taiwan, Hong Kong, India, Japan, South Korea, Mexico, Norway, Thailand, Turkey
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2.1, 2.4, 5.8, 9.1, 9.3, 9.5, 11  Anti-dumpingArt. VI  GATT 1994Art. 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade OrganizationArt. 3  Anti-dumping

UNITED STATES – LAWS, REGULATIONS AND METHODOLOGY FOR
CALCULATING DUMPING MARGINS ("ZEROING")

Recourse to Article 22.6 of the DSU by the United States

Communication from the Arbitrator

 The following communication has been receive d on 10 February 2012, from the Chairman of
the Arbitrator, with the request that it be circulated to the Dispute Settlement Body.

In a communication dated 6 February 2012, the European Union and the United States have
jointly requested the Arbitrator to suspend its work for a further period of four months and 22 days
and informed the Arbitrator of their Memorandum with respect to the dispute (see the request
attached).

 On the basis of this request, the Arbitrator has decided to suspend its work for a further
period.

 The suspension can be terminated at any time at the written request of either Party. The
suspension will be limited to four months and 22 days, and absent any contrary written
communication from the European Union within that period, the suspension will be automatically
terminated and the work of the Arbitrator will resume on 29 June 2012.

 The last date at which a "contrary written communication" from the European Union referred
to above may be received by the Arbitrator is 28 June 2012.

 In the event that no such "contrary written communication" or written request for resumption
from either party has been received by the Arbitrat or by 28 June 2012, it will resume its work on
29 June 2012 and circulate its Decision on 12 July 2012.

ATTACHMENT

Mr. Felipe Jaramillo
Chairman of the Arbitration Panel/Arbitrator
1
United States – Laws, Regulations and Methodology
for Calculating Dumping Margins (“Zeroing”) - Recourse
to Article 22.6 of the DSU by the United States (DS294)

Centre William Rappard
Rue de Lausanne 154
1211 Geneva 21

 6 February 2012

Dear Mr. Jaramillo,

 The United States and the European Union (the "Parties") wish to thank you and the other
Members of the Arbitration Panel/Arbitrator for be ing available to serve in the above-referenced
proceeding.

 The United States and the European Union reca ll their joint communication to the Arbitration
Panel/Arbitrator dated 13 January 2012, and the subsequent communication from the Arbitration
Panel/Arbitrator dated 16 January 2012 by which th e Arbitration Panel/Arbitrator decided to extend
the suspension of its work until 6 February 2012.

 The Parties would like to inform the Arbitrator/Arbitration Panel of the attached
Memorandum with respect to this dispute. In that context, the United Stat es respectfully requests the
Arbitrator/Arbitration Panel to suspend its work for a further period of four months and 22 days (that
is, until Thursday 28 June 2012) – on the same terms. In light of that, and having regard to Article
12.12 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) ,
2
the European Union joins the United States in making such request, subject to the following
conditions.

 The Parties hereby agree the following matters, to be incorporated expressly or by reference
in any decision by the Arbitration Panel/Arbitrator to extend suspension:

 the suspension can be terminated at any time at the written request of either Party;
 the extension of the suspension will be limited to four months and 22 days, and absent any
contrary written communication from the European Union within that period, the suspension
will be automatically terminated and the work of the Arbitration Panel/Arbitrator will resume
on the day following the expiry of the four months and 22 days;

1 The Parties recall that they have different views co ncerning what is the correct terminology to use in
these proceedings, but are resolved that this joint letter should not imply that either Party relinquishes its
position of principle with respect to that matter.
2 The European Union recognizes that the Parties may have different views on whether Article 12.12 of
the DSU applies or applies by analogy in these proceedings, or whether the Arbitration Panel/Arbitrator has an
implied or inherent power to suspend, and that the Parties are resolved that this joint letter should not imply that
either Party relinquishes its position of principle with respect to that matter.

 the suspension is without prejudice to any of the Parties' claims and arguments in these
dispute settlement proceedings, including the question of whether or not nullification or
impairment during any period of suspension is to be accounted for in the suspension of
concessions or other obligations;
 this joint request is conditional upon the Arb itration Panel/Arbitrator not deciding that its
authority has lapsed pursuant to Article 12.12 of the DSU or otherwise as a result of a further
suspension. If the Arbitration Panel/Arbitrator considers that will occur then neither Party
makes this request for further suspension;
 neither Party will ever claim or argue that the o ccurrence of a suspension period equal to or in
excess of 12 months in this dispute results in a lapse of the authority of the Arbitration
Panel/Arbitrator, or otherwise extinguishes or diminishes any right enjoyed by the other Party
pursuant to the covered agreements; and
 suspension will not otherwise affect the rights and obligations of either Party under the
Marrakesh Agreement Establishing the World Trade Organization or in these dispute
settlement proceedings.

For the United States

David P. Shark
Chargé d'affairs a.i.
For the European Union

Detlev Brauns
Chargé d'affairs a.i.

Attachement

MEMORANDUM

THE UNITED STATES AND THE EUROPEAN COMMISSION

The United States and the European Commissi on envisage a roadmap addressing the disputes

(WT/DS294) and United States – Continued Existence and Application of Zeroing Methodology
(WT/DS350) which is annexed as an integral part to this document.

This document is not an international agreemen t between the United States and the European
Commission; it does not change the rights and oblig ations of the United States and the European
Union under the WTO Agreement; and it does not othe rwise create any legal obligations between the
United States and the European Union or between the signatories.

Signed at Geneva on this 6
th day of February 2012

(signed)
FOR THE UNITED STATES
(signed)
FOR THE EUROPEAN COMMISSION

ROADMAP

In order for the United States and the Eur opean Commission to address the disputes

(WT/DS294) and United States – Continued Existence and Application of Zeroing Methodology
(WT/DS350), the United States and the European Commission envisage the following roadmap.

 This roadmap, or the taking of any of the st eps contemplated by this roadmap by the United
States or the European Commission, is without prejudice to either side's position of principle
regarding the remedies available under WTO dispute settlement:

 The European Commission understands its position of principle to be based on the text of the
Dispute Settlement Understanding (DSU), and findings and r ecommendations of the Dispute
Settlement Body (DSB) in WT/DS294 and WT/DS 350. The European Commission considers that
compliance with these DSB findings and recommendations is required with effect from the end of the
respective reasonable period of time, and that all anti-dumping duties assessed or collected with
zeroing after the end of the reasonable period of tim e are subject to implementation. The European
Commission considers that under the DSU the level of suspension of concessions or other obligations
shall be based on the level of nullification or im pairment suffered as from the end of the reasonable
period of time.

 The United States understands its position of princi ple to be based on the text of the DSU,
recommendations and rulings of the DSB in numerous disputes, including WT/DS294 and
WT/DS350, and prior awards in arbitrations held under the DSU. The Unite d States considers that
every WTO Member is required to comply with its WTO obligations not just from the end of the
reasonable period of time, but from the time it beco mes a Member of the WTO. The United States
considers that under the DSU the level of suspension of concessions or other obligations in any period
of time must be equivalent to the nullification or impairment in the corresponding period of time, and
that the level is not to include an additiona l amount based on prior or cumulative levels of
nullification or impairment.

I. OPERATIONAL ASPECTS

It is envisaged that:

1. By no later than 7 days after the start date of this roadmap (defined as the signature date of the
cover memorandum), and subject to U.S. domestic legal requirements, the United States completes
the process under Section 123 of the Uruguay Round Agreements Act to modify its methodologies, as
described in the notice Antidumping Proceedings: Calculation of the Weighted Average Dumping
Margin and Assessment Rate in Certain Antidumping Duty Proceedings, 75 FR 81533
(Dec. 28, 2010), by signing the final modification.

2. By no later than 12 days after the star t date, the United States begins the Section 129
proceedings listed in the Annex by transmittal of a written request from the Office of the United
States Trade Representative to the Department of Commerce.

3. By no later than 4 months after the start date, the United States Department of Commerce
issues final determinations in the Section 129 proceedings listed in the Annex.

4. So long as no later than 12 days after the st art date the United States begins the Section 129
procedures listed in the Annex and no later than 4 months after the start date the United States
Department of Commerce issues final determinations in the Section 129 proceedings listed in the

Annex, the European Union and the United States continue the suspension of the work of the
Arbitrator/Arbitration Panel until, as described belo w, the Arbitrator/Arbitration Panel notifies the
DSB that it is not necessary for the Arbitrator/Arbitration Panel to issue an award.

5. Within 15 days after the United States comp letes the Section 129 proceedings listed in the
Annex:

(a) The European Union, by letter to the chai r of the Dispute Settlement Body, withdraws its
request to the DSB made pursuant to Article 22.2 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes in document WT/DS294/35; and

(b) The European Union and the United States submit a joint letter to the Article 22.6
Arbitrator/Arbitration Panel noting that the Europ ean Union has withdrawn its Article 22.2 request;
informing the Arbitrator/Arbitration Panel that the United States accordingly no longer makes
objections under Article 22.6 of the DSU; and requ esting that the Arbitrator/Arbitration Panel notify
the DSB that it is not necessary for the Arbitrator/Arbitration Panel to issue an award.

II. CONTINUING DISCUSSIONS

Further discussions with respect to issues related to the disputes are envisaged, including:

1. Monitoring and periodically review ing the operation of this roadmap.

2. Carrying out additional bilatera l consultations regarding the ope ration of this roadmap within
15 days after the receipt of a request for consultations by either side.

3. Consulting on any remaining issues with respect to the disputes with a view to reaching and
notifying to the DSB a mutually agreed solution to the disputes.

III. OTHER MATTERS

1. Except as specified above, the European Un ion takes no further action under the DSU with
respect to the disputes WT/DS294 and WT/DS350.

ANNEX

It is envisaged that:

1. The United States conducts proceedings pur suant to section 129 of the Uruguay Round
Agreements Act to revise current cash deposit rate s established on the basis of prior administrative
review determinations for the following exporte rs/producers covered by the associated antidumping
duty orders. Implementation of the results of the sec tion 129 determinations is effective for subject
merchandise entering the United States from the relevant exporter/producer for all unliquidated
entries that enter the United States on or after th e date the United States completes the section 129
proceedings.

2. For the purposes of this roadmap, the section 129 proceedings are completed on the date by which
the U.S. Trade Representative has directed the U.S. Department of Commerce to implement each and
every section 129 determination listed below that would result in a change in th e current cash deposit
rate. Completion of the section 129 proceedings will occur within 7 days of the Department of
Commerce issuing its final determinations in the section 129 proceedings.

3. No additional section 129 determinations are necessary.

4. The United States Department of Commerce issues final determinations in the following
Section 129 determinations within 4 months after the start date of this roadmap.

1. Stainless Steel Plate in Coils from Belgium

A-423-808

ArcelorMittal Stainless Belgium N.V.

2. Steel Concrete Reinforcing Bars from Latvia

A-449-804

Joint Stock Company Liepajas Metalurgs

3. Carboxymethylcellulose from Finland

A-405-803

CP Kelco

4. Pasta from Italy

A-475-818

09-10

Garofalo

Tomasello

Agritalia

Erasmo

Indalco

Labor

PAM

P.A.P.

Afeltra

Fabianelli

Riscossa

Rustichella

07-08

PAM (for non-selected rate)

Garofalo (for non-selected rate)

IAPC/Pasta Lensi

Pagani

06-07

Divella

Pasta Zara

Gaetano

Felicetti

04-05

Atar

Corticella

Combattenti

03-04

Barilla

02-03

Russo

Di Nola

98-99

LaMolisana

5. Carboxymethylcellulose from the Netherlands

A-421-811

Azko Nobel BV

CP Kelco BV

6. Stainless Steel Wire Rod from Spain

A-469-807

Roldan S.A.

7. Granular Polytetrafluoroethylene Resin from Italy

A-475-703

Solvay Solexis SpA (formerly Ausimont SpA)

8. Certain Cut-to-Length Carbon Quality Steel Plate from Italy*

A-475-826

Palini & Bertoli SpA

* The United States and the European Commission e nvisage that a section 129 determination will be
unnecessary for any administrative reviews covered by this order if there is no domestic court
challenge to the determination of the U.S. Intern ational Trade Commission leading to the revocation
of the order.