Document: WT/DS334/R Page C-1 ANNEX C REPLIES BY THE PARTIES AND THIRD PARTIES TO THE QUESTIONS POSED BY THE PANEL AFTER THE FIRST SUBSTANTIVE MEETING Contents Page Annex C-1 Replies by the United States to the questions posed by the Panel after the first substantive meeting (30 November 2006) C-2 Annex C-2 Replies by Turkey to the ques tions posed by the Panel after the first
Date: 30 November 2006
Document codes: WT/DS334/R
Complainant: U.S.
Respondent: Turkey
Third parties: Argentina, Australia, China, Egypt, EU, South Korea, Pakistan, Thailand
Dispute stage: Panel
Agreements cited: Art. XI:1, X:1, X:2, III:4, X:3(a)  GATT 1994Art. 4.2  AgricultureArt. 1.4, 3.3, 3.5(e), 3.5(f), 3.5(b), 3.5(d), 3.5(g), 3.5(h), 1.2, 1.3, 1.5, 1.6, 3.2, 3.5(a), 5.1, 5.2, 5.3, 5.4  Import LicensingArt. 2.1, Annex 1  Trade-Related Investment Measures (TRIMs)

ANNEX C

REPLIES BY THE PARTIES AND THIRD PARTIES TO THE QUESTIONS
POSED BY THE PANEL AFTER THE FIRST SUBSTANTIVE MEETING

Contents Page
Annex C-1 Replies by the United States to the questions posed by the Panel
after the first substantive meeting (30 November 2006)
C-2
Annex C-2 Replies by Turkey to the ques tions posed by the Panel after the first
substantive meeting (30 November 2006)
C-33
Annex C-3 Replies by Australia to the questions posed by the Panel after the
first substantive meeting (21 November 2006)
C-73
Annex C-4 Replies by Egypt to the questions posed by the Panel after the first
substantive meeting (21 November 2006)
C-74
Annex C-5 Replies by the European Communities to the questions posed by
the Panel after the first substantive meeting (21 November 2006)
C-75
Annex C-6 Reply by Korea to the questions posed by the Panel after the first
substantive meeting (21 November 2006)
C-77

ANNEX C-1

REPLIES BY THE UNITED STATES TO QUESTIONS POSED BY THE PANEL
AFTER THE FIRST SUBSTANTIVE MEETING
(30 November 2006)

Q1. (Both Parties) The United States has provided statistics on, inter alia , Turkish
production, consumption and imports of milled rice in Exhibit US-45 attached to its first
submission. Could the United States confirm the so urce of this data. The statistics provided by
the United States go from 2001/2002 to 2006/2007. Can the United States confirm which of these
figures correspond to actual events and which are projections.

1. The United States Department of Agriculture (USDA) official production, supply, and
demand (PSD) is the source for the data provided in Exhibit US-45. For production numbers, USDA
takes into account official Turkish production estim ates; satellite imagery; weather (precipitation and
temperatures) information and models; analysis fro m USDA personnel who travel to production areas
within Turkey; and other sources of crop information. For trade numbers, USDA analyzes, evaluates,
and cross-checks a variety of data sources, including customs data from the Turkish Statistics
Corporation (TUIK) and independent trade specia lists. For consumption and stocks numbers, USDA
utilizes a network of assessments from specialists in the Office of Agricultural Affairs at the US
Embassy in Ankara, agricultural economists in Washington, and international organizations (i.e. FAO,
International Grains Council). The USDA official PSD numbers are reviewed and updated monthly
by a US interagency committee chaired by USDA' s World Agricultural Outlook Board (WAOB), and
consisting of: the Foreign Agricultural Service (F AS), the Economic Research Service (ERS), the
Farm Service Agency (FSA), and the Agricultural Marketing Service (AMS).
2. The data provided by the United States for 2001/2002 through 2005/2 006 is based on actual
historical events. The data provided for 2006/20 07 are projected forecasts. Most of the data
correspond to the Turkish marketing year (MY), whic h is September/August. The data provided in
the seventh and eighth rows of the chart, however , correspond to the International Trade Year (TY),
which is January/December. In cases where TY data is used, the data corresponds to the second year
of the split year listed at the top of each column.
Q3. (Both Parties) Can the Parties also provide monthly information on imports into Turkey
of, separately, paddy, brown and milled rice, for the period from July 2003 to the end of 2006
(including estimates, as appropriate), by country of origin.

3. The United States provides monthly import data from the Turkish Statistics Corporation
(formerly the Turkish State Institute of Statistics) in Exhibit US-53. The data, which is provided in
both numerical and graphical form ats, covers imports up to and including September 2006. For
USDA's estimates of total Turkish imports in 2006, please see the seventh row of the last column of
the chart provided by the United States in Exhi bit US-45 (300,000 metric tons on a milled rice
equivalent basis). The United States provides an anal ysis of the data, which confirms the existence of
an import ban covering MFN trade, in the answer to Question 26(b).
Q4. (Both Parties) In paragraph 26 of its first submission, Turkey asserts that "from 2003 to
date, Turkey has approved a total of 2,223 Certific ates of Control, allowing a total importation
of 2,264,857 tonnes of foreign rice (paddy, brow n and milled). Of the aforementioned quantity,
497.469 tonnes of rice equivalent have been a llocated under the TRQ system since January
2004." In paragraph 65, Turkey asserts that "a high number of Certificates of Control (i.e.,
2,223 between 2003 and 2006) were approved by MARA, corresponding to large amounts of

imported rice (i.e., 939.013 tonnes of rice equivalent between 2003 and 2006), both in relation to
MFN and TRQ trade."

(a) Could the United States comment on the figures provided by Turkey. Can the
United States also contrast these figures with the assertion contained in
paragraph 1 of the United States' first submission that "[w]ith respect to the
over-quota rate, Turkey's Ministry of Agriculture and Rural Affairs ('MARA')
simply fails to issue licenses."

4. The figures provided by Turkey in its first submission asserting that Turkey's Ministry of
Agriculture and Rural Affairs (MARA) issues Cont rol Certificates for MFN trade have not been
substantiated and are contradicted by the exte nsive documentary evidence presented by the United
States. MARA fails to issue Certificates of Contro l at the over-quota rates of duty through the use of
Letters of Acceptance. Letters of Acceptance ar e instruments in which the Turkish Grain Board's
General Directorate of Protection and Control recomme nds to the Minister of Agriculture that MARA
"delay" the start date for issuing Certificates of Control for rice to importers who do not purchase
domestic paddy rice. Thus, the only way an importer may import rice into Turkey is through the TRQ
system, under which the importer is obliged to purchase domestic paddy rice as a condition upon
importation. The Letters often differentiate between Certificat es of Control for paddy rice and
Certificates of Control for "rice," which refers to milled rice.
5. The Minister's signature at the bottom of th e document indicates that the Minister has
"accepted" the Turkish Grain Board's recommendation. At this juncture, the United States is aware of
Letters of Acceptance that cover the period September 1, 2003 through August 1, 2006:
– In Letter 964, dated September 10, 2003, the Minister of Agriculture accepted a
recommendation to delay the start date for issuing Certificates to import rice until
March 1, 2004;

– In Letter 107, dated January 23, 2004 (E xhibit US-12), Minister Guclu accepted a
recommendation to delay the start date for issuing Certificates until July 1, 2004;

– In Letter 905, dated June 28, 2004 (Exhib it US-13), Minister Guclu again accepted a
recommendation to delay the start date for issuing Certificates until January 1, 2005;

– In Letter 1795, dated December 30, 2004 (Exhibit US-14), Minister Guclu again
accepted a recommendation to delay the start date for issuing Control Certificates
until July 30, 2005;

– In Letter 1304, dated July 29, 2005, the Minister of Agriculture accepted a
recommendation to delay the start date for issuing Certificates "until a new policy is
in place;" and

– In Letter 390, dated Ma rch 24, 2006 (Exhi bit US-36), Minister Eker accepted a
recommendation to delay the start date for issuing Certificates until April 1, 2006.
The panel in this dispute was established on March 17, 2006.
1

1 Despite this Letter, MARA apparently has continue d to deny Certificates to importers who apply for
them ( see Exhibits US-22, US-39, US-40, US-41, US-42, and US-44). The continued denial of Control
Certificates is likely due to the objections of Turkish producers ( see Exhibits US-21 and US-24) decrying the
intended change in policy announced by Minister Tuzmen in his March 24, 2006 letter to USTR Portman
(Exhibit US-35). Further, Letter 390 asserts that MARA would continue denying the issuance of Certificates
during the Turkish rice harvest (Exhibit US-36).

Thus, under the plain terms of the Letters of Ac ceptance, MARA officials are unable to grant
Certificates of Control outside the TRQ regime, wh ich was confirmed by a legal brief submitted by
MARA's counsel in Turkish court.
2

6. Turkey has asserted that this is not the case and that it does grant Certificates of Control, but it
has not provided any documentary evid ence to substantiate its claim. Further, as discussed in the US
first submission and oral statement, Turkey has failed to rebut the documentary evidence presented by
the United States in this regard, including the Lette rs of Acceptance, rejection letters to importers
issued by MARA officials, and MARA's brief to the 1 st Administrative Court of Ankara, in which
MARA relied on the Letters of Acceptance as the sole legal basis for denying a Certificate of Control
to a petitioning importer. Instead of providing documentary evidence of Certificates of Control
granted for imports outside of the TRQ, Turkey h as provided the chart contained in Annex 20. This
chart raises several questions.
7. As an initial matter, the Letters of Acceptance only provide that MARA will not grant Control
Certificates to importers who do not purchase domestic paddy rice. So, if MARA grants Control
Certificates for importation under the TRQ, that fact would not rebut the US evidence that Turkey has
imposed a ban on MFN trade.
8. Second, there is a vast discrepancy between th e amount of Control Certificates Turkey claims
it granted this year through September 21, 2006, fo r imports of US rice (400,000 metric tons) and the
amount of US rice that US trade data shows has ac tually been shipped to Turkey in 2006 (about
18,000 tons through October 26, 2006). The United States cannot explain this discrepancy. It is
notable that Turkey's chart shows a surge in C ontrol Certificates in 2006, that is, when the DSB
established the Panel. In addition, Turkey's chart s hows that the vast majority of Control Certificates
that Turkey allegedly granted in 2004 and 2005 were under the TRQ. Given that Turkey has alleged
that the TRQ (with a domestic purchase requirement) provides a benefit to imported rice, it is unclear
why importers would have sudde nly decided in 2006 that the TRQ (with domestic purchase) no
longer provided them an advantage, such that importers switched en masse from importing under the
TRQ to importing at the MFN rates. It is also unclear from Turkey's chart whether the Control
Certificates that MARA allegedly granted in 2006 were for outstanding applications that had been
made in previous years or for new applications that were made after Minister Tuzmen's announced
change in policy on Control Certificates "as of Ap ril 1, 2006." The chart also fails to indicate when
the Certificates allegedly were granted – prior to Ap ril 1, 2006, which is when the alleged change in
Turkish policy on Control Certificates began and wh ich post-dates panel establishment, or after that
date.
9. Third, even under Turkey's own revised chart, at least 96 per cent of the approved Control
Certificates in 2004 and 83 per cent of the approve d Control Certificates in 2005 were for entry under
the TRQ, for which domestic purchase is required. Given how much more expensive it is to import
rice under the TRQ regime, 3 such an overwhelming majority of importers would only "choose" to
import rice under the TRQ if there were severe r estrictions or a ban on importing at the over-quota
rates.
10. Fourth, Annex 20 does not appear to account for imports of EU-origin rice. According to
Turkish import data, Turkey imported approximately 25,000 and 32,000 tons of milled rice from Italy
in 2004 and 2005, respectively. 4 Yet according to Annex 20, Turkey only granted Certificates of
Control for approximately 7,000 tons of out-of-quota rice in 2004 and approximately 24,000 tons of

2 Exhibit US-31.
3 See paragraphs 32-37 of the US oral statement and Exhibit US-52.
4 See Exhibit US-53.

out-of-quota rice in 2005. The validity period of Certificates of Control is no longer than twelve
months – the Communiqués reserve MARA's right to shorten the validity periods of the Certificates –
so Certificates obtained in prior years could not acc ount for much of this apparent shortfall. This
raises the question as to where EU rice imports can be found in Turkey's chart, as Turkey has asserted
that all rice imports need to obtain Control Certificates.
11. Fifth, as previously noted, Annex 20 does not est ablish when the Certificates were allegedly
granted, which creates particular problems interp reting the data for 2003 because the United States is
not aware of any restrictions n importation prior to September 2003. MARA did not implement the
import ban until September 10, 2003. That is wh en Turkey's Minister of Agriculture provided
Ministerial approval to stop issuing Control Certificates. It is clear that there were no in-quota
imports during the last four months of 2003, even though the first opening of the TRQ technically
began on September 1, 2003, because Turkey did not announce the TRQ duty rates and domestic
purchase requirement until late-April 2004. But th ese figures raise the obvious question as to when
these Control Certificates for out-of-quota imports were allegedly granted.
12. Lastly, every Turkish importer the United St ates has spoken with has provided the same
information: Turkey does not grant Control Certificates without the purchase of domestic paddy rice.
The importers that have applied for Control Certifi cates outside the TRQ have been rejected or their
applications have not been acted upon. Turkey has defended against relate d lawsuits brought by
Torunlar and Mehmetoglu in Turkish court and has ar gued in court that it is bound by the Letters of
Acceptance not to grant Control Certificates. In these circumstances, the figures in Annex 20 do not
rebut the US evidence that MARA is not granti ng Control Certificates outside the TRQs, unless
Turkey is willing to make copies of the Control Certificates available to review.
Q5. (Both Parties) Can the Parties provide monthly information on Turkey's domestic
production of, separately, paddy, brown and milled rice, for the period from July 2003 to the
end of 2006 (including estimates, as appropriate).

13. In Exhibit US-45, the United States provi ded this data for Se ptember 2003/August 2004,
September 2004/August 2005, September 2005/August 2006, and a forecast for the current year
which began in September 2006. USDA is unable to provide this data on a monthly basis. USDA
annual production estimates are based on a Turkis h marketing year (MY). Paddy production
estimates are converted to milled rice production estimates based on an annual milling rate.
Q6. (Both Parties) Can the Parties provide monthly information on Turkey's domestic
consumption of, separately, paddy, brown and mille d rice, for the period from July 2003 to the
end of 2006 (including estimates, as appropriate).

14. In Exhibit US-45, the United States provi ded this data for Se ptember 2003/August 2004,
September 2004/August 2005, September 2005/August 2006, and a forecast for the current year
which began in September 2006. USDA was unable to obtain this data on a monthly basis. USDA
annual consumption estimates are based on a Turk ish marketing year (MY). All consumption
estimates are based on a milled equivalent basis sin ce nearly all rice consumed in Turkey is milled
white rice.
Q7. (Both Parties) Can the Parties provide th e following information regarding Turkey's
monthly average domestic prices of, separately, paddy, brown and milled rice, for the period
from July 2003 to the end of 2006 (including est imates, as appropriate): (i) average prices for
domestic production in the Turkish market; (ii) landed CIF prices; and, (iii) prices quoted by
the Turkish Grain Board. Please indicate the source of your estimates and provide evidence, as
appropriate.

 (i) average prices for domestic production in the Turkish market

15. The United States was able to obtain prices for milled rice in Turkey, wholesale and retail,
from Turkish representatives of the USA Rice Federa tion, the primary association of US producers
and exporters, but was unable to obtain such prices for paddy and brown rice. Exhibit US-54 shows
prevailing prices of imported rice (U.S. Calrose and Egyptian), as well as Turkish rice (Baldo and
Osmancik), in March, July, and November for the four years requested.
 (ii) landed CIF prices

16. Please see Exhibit US-55. These prices were obtained from the Turkish Statistics
Corporation.
 (iii) prices quoted by the Turkish Grain Board

17. Please see Exhibit US-56. The 2003/2004 data was obtained from the Turkish Rice Millers
Association. The remainder of the data was obtai ned from the website of the Turkish Grain Board
(TMO). The paddy procurement prices presented in this exhibit are for paddy rice with a milling
yield rate of 59-60 per cent whole kernels which is the average milling rate for Turkish rice. The
United States was unable to obtain paddy rice sales prices for osmancik for all four years, so that has
not been included in the chart. The United States was unable to obtain monthly pricing data, so only
annual pricing data is presented, although the Un ited States understands that the prices quoted by
TMO do not change on a monthly basis.
Q11. (United States) Can the United States please provide the source of data that it has used
to determine relative average import cost of a tonne of rice as set out in paragraph 52 of its
submission.

18. The $295 per metric ton price cited in paragra ph 52 was a spot price for US Calrose paddy
rice in late 2005 in the US market.
5 Upon further reflection, the United States decided it would be
more accurate to use average prices for US exports and Turkish domestic rice in 2005, as explained in
the US oral statement and presented in Exhibit US-52.
Q13. (Both Parties) In paragraph 4 of its closing statement during the first substantive
meeting with the Panel, the United States ref erred to "a bilateral agreement between the
European Union and Turkey [under which] the European Union has an annual quota of 28,000
tons of milled rice".

 (a) Please provide the provisions of that agreement, relevant to the importation of
rice into Turkey.

19. Please see Exhibit US-58 ("Decision Regarding Tariff Quota Imposition on Import of Certain
Agricultural Products of European Community Origin," Official Gazette No. 23225, January 9, 1998).
As provided in the EC Quota Arrangement, Turkey permits the duty free importation of 28,000 metric
tons of milled rice from the European Communities in to Turkey each year. Article 3 provides that
Turkey's Foreign Trade Undersecretariat will issue an import permit that an importer must submit to
Turkish Customs for the shipment to be admitted in to Turkey, but it is unclear whether this is a
reference to the Certificates of Control or to some other document.
 (b) Explain whether European imports of rice into Turkey are treated differently
from other imports.

5 Exhibit US-57.

20. It is the understanding of the United States that in-quota imports of EC-origin rice are not
subject to the restrictions and requirements impo sed on imported rice and are permitted entry at any
time during the year. The United States spoke w ith a representative of the Italian Rice Millers
Federation this week, who confirmed that there are no restrictions on EC-origin rice that enters under
the EC quota but that importers are required to purchase domestic paddy rice with respect to any
imports of EC rice over the 28,000 metric ton annual cap . It is clear from Turkish import data that in-
quota EC imports are treated differently because impo rts of EC-origin rice occur during periods when
other imports have ceased. For example, during the three periods of time since September 10, 2003
when the TRQ has been closed (and thus only ou t-of-quota imports are possible) – September 10,
2003 through April 27, 2004, September-October 2004, and September-October 2005 – EC-origin
rice has been able to enter Turkey, whereas imports from other major rice exporters, such as Egypt
and the United States, suddenly cease completely or, at best, plummet to de minimis levels.6 7
 (c) More specifically, explain whether impo rters of European rice are required to
obtain Certificates of Control in order to import rice into Turkey.

21. It is unclear to the United States from the terms of the EC Quota Arrangement whether
importers of EC-origin rice are required to obtain Cer tificates of Control in order to import rice into
Turkey.
Q14. (Both Parties) Can the Parties describe, in chronological order, the steps that are
necessary to import rice into Turkey, in terms of the different documents that must be obtained
and other formalities that have to be complete d, identifying the authorities involved in each
step. Please make reference to the relevant legal instruments and provide evidence where
appropriate.

22. Imports of Rice Generally: An importer must complete a multitude of steps in order to
import rice.8 First , the importer must obtain a Certificate of Control from MARA, specifically from
the Provincial Agricultural Directorate office in A nkara. To obtain the Certificate, pursuant to
Article 2 of the 2006 Communiqué the importer must submit the Certificate application form, the pro
forma invoice or invoice, and "other documents which may be asked for, depending on product, by
the Ministry."
9 Further, the FTU website provides that "if the product to be imported is found to meet
the criteria required," MARA will grant the Certificate.10
23. It is unclear to what specific documents th e phrases "other documents which may be asked
for, depending on the product" and "the criteria required" refer. Article 3 of the 2006 Communiqué
appears to refer to the possibility that MARA may need to determine the compatibility of a product
with human health and safety or animal and plan t health. However, Article 2 of the Communiqué
does not refer specifically to Article 3; rather, it is much broader. 11 As a result, Article 2 provides

6 Turkish import data shows what appears to be a large shipment of Chines e rice in December 2003,
which appears to be the lone instance where significan t quantities of non-EC origin rice has entered Turkey
while the TRQ was closed.
7 In addition, Turkish import data reveals that, in September 2006, which was just after the TRQ
"expired" and which marks the beginning of the Turkish rice harvest, rice imports once again fell to zero.
8 This step-by-step outline of the importation process was provided to the United States by Turkish
importers.
9 Annex TR-1.
10 General Assessment of the Regime Regarding Technical Regulations and Standardisation for Foreign
Trade (27 May 2005) (www.dtm.gov.tr) (Exhibit US-43).
11 And, as discussed below, Turkish importers clai m that MARA does not request the phytosanitary
certificate at the stage when it decides whether or not to grant the Cont rol Certificate. Rather, MARA does not
require the presentation of a phytosanitary certificate un til the Provincial Agricultural Directorate that has

Turkey with sufficient flexibility to permit MARA to deny the Certificate if an importer does not
provide with its Control Certificate applicati on documentation from MARA demonstrating that the
importer has purchased domestic paddy rice.
24. Second
, assuming that the importer has actually obtained a Certificate of Control from
MARA, it then would present the Certificate to the specific Turkish Customs office at the port where
the importation is to take place and complete th e required Customs form using the information
contained in the Control Certificate.
25. Third, the importer then goes back to MARA a se cond time – specifically, to the Agricultural
Provincial Directorate from the region where the port is located – and presents the Customs form and
a phytosanitary certificate. If the Provincial Ag ricultural Directorate approves the importation
(through analysis of product samples), the Directorate writes a letter granting permission for the
importation.
26. Fourth, assuming that MARA approves the importati on, the importer goes back to Turkish
Customs a second time with the following docume ntation: the approval letter from the Provincial
Agricultural Directorate, the invoice, the receipt fo r payment of the merchandise, a value declaration
form from the exporter, the Control Certificate, the phytosanitary certificate, and if the payment for
the merchandise has not been made in full, some documentation from the importer that it is acceptable
to pay in instalments. All of these documents must be originals. Turkish Customs then gives the
importer an invoice for the total duties owed. The importer can pay the duty at that time or through a
wire transfer.
27. With the receipt of payment of the duties and the Customs form, the importer can go to the
port and secure the release of the product.
28. Importers have informed the United States th at Turkish Customs will not let the importer
begin the process if it does not present a Control Certificate. If an importer decides to make
contractual arrangements for the shipment before obta ining a Certificate of Control, as Torunlar did,
the importer is taking a risk. If MARA does not issu e a Certificate, the shipment will not be allowed
to clear Customs and is destined for a bonded warehouse.
29. Imports of Rice under the TRQ Regime: Under the TRQ regime, the importation process is
even lengthier. First
, the importer must purchase domestic paddy rice. 12 This requirement has been
tweaked over time but, as a general matter, the im porter needs to purchase domestic paddy rice in
specified quantities and obtain a receipt from the Tu rkish Grain Board documenting that the purchase
has been made. The domestic purchase requirement h as been modified over time in several respects.
In the first TRQ opening (April 27, 2004 through August 31, 2004), importers could only purchase
domestic paddy rice from TMO, and the amount of domestic paddy rice that was required to be
purchased was not specified, at least not in the regulation. 13 In both the second (November 1, 2004

jurisdiction over the port where the importa tion is to be realized asks for it. But this step only takes place after
MARA has already granted the Control Certificate.
12 The documents published in the Official Gazette allow importers to purchase domestic rice of any
variety, but Letter of Acceptance 1795 confirms that the domestic purchase requirement can only be satisfied
through the purchase of domestic paddy rice. Turkey did not appear to dispute this fact at the first substantive
meeting. In this regard, the United States is submitting a revised translation of Letter 1795 to replace the current
document labeled as Exhibit US-14. The language quoted by the United States in its first written submission
was taken from this revised translation, which was done by a translator at the United States Department of State,
Division of Translating Services. The United States in advertently attached a diff erent translation of this
document with its first written submission, which is why the language quoted by the United States from Exhibit
US-14 did not match the language in the exhibit as originally submitted. The United States regrets the error.
13 Article 1 of the April 2004 Notification (Exhibit US-3).

through July 31, 2005) and third (November 1, 20 05 through July 31, 2006) TRQ openings, importers
could purchase domestic paddy from either TMO or Turkish producers and producer associations.
While the precise quantities of rice that had to be purchased were specified, those amounts varied
depending on the identity of the Turkish province from which the rice was purchased.14
30. Second, the importer needs to request that TMO provide a receipt documenting that the
importer has purchased domestic paddy rice from e ither TMO or Turkish producers or producer
associations.15
31. Third, the importer must apply to Turkey's Fore ign Trade Undersecretariat (FTU) for an
import permit and attach the TMO receipt to the application. 16 If FTU approves the importation, it
will provide an import permit, which the importe r must present to MARA when it applies for a
Control Certificate.
32. Fourth, the importer must apply to MARA for a Certificate of Control.
33. Fifth, assuming that FTU grants an import permit a nd MARA issues a Certificate of Control,
the importer would need to proceed through all the same steps outlined in the previous section
("Imports of Rice Generally"), with the addition of presenting the import permit to Turkish Customs.17
Q16. (Both Parties) Does Turkey's import sy stem for rice affect imports from the United
States in particular, or does it apply to all imports in the same way?

34. Turkey's import system for rice appears to affect all non-EC origin rice imports in the same
way although, as the largest exporters of rice to Turkey, Egypt and the United States, are primarily
affected by Turkey's restrictions on the importation of rice.
Q17. (United States) Please identify the main im porters in Turkey of rice originating from the
United States. Please also provide information as to the volumes these importers were
importing, specifying whether they are importing (or attempting to import) at the MFN rate or
under the TRQ and the problems they have faced when accessing the Turkish market.

35. The main importers of U.S.-origin rice are Torunlar, Akel, and Goze, but they may also
import rice from other sources. All three of these companies have a large milling capacity, so they
prefer to import US paddy rice.
18 Two other Turkish importers, Erdogan and Multigrain, import small
quantities of U.S.-origin rice as well, and both comp anies have milling facilities. The United States
was unable to obtain further information regarding ETM. Importers agreed that they would rather
import US rice at the MFN rate if Turkey permitted it , which is confirmed by the repeated attempts of
Torunlar, Mehmetoglu, and other importers to obtain Control Certificates outside the TRQ. However,
the United States is unable to provide further info rmation with respect to the remainder of the
question. Please see the US answer to Question 62 for more information in this regard.

14 Article 1 of the September 2004 Regulation (Exhibit US-6) and Articles 1 and 2 of the September
2005 Notification (Exhibit US-11).
15 Application Form Sample In Order to Benefit From the Tariff Quota and Receive Import License for
the Imports of Domes Types of Paddy Rice and Rice, Items 8 and 9 (Exhibit US-11).
16 See Article 2 of the April 2004 Notification (Exhib it US-3), Article 4 of the August 2004 Decision
(Exhibit US-5), Article 4 of the September 2005 Decision (Exhibit US-10), and the Application Form (contained
in Exhibit US-11).
17 See Article 3 of the April 2004 Decree (Exhibit US-2), Article 4 of the August 2004 Decision
(Exhibit US-5), and Article 4 of the September 2005 Decision (Exhibit US-10).
18 The United States previously was a large exporter of milled rice to Turkey. It is our understanding
that US rice exporters switched their ex ports from milled rice to paddy rice when Turkey lowered the tariff rate
on paddy rice significantly below the tariff rate for milled rice.

Q18. (Both Parties) It would seem that in so me respects Turkey's import regime for rice has
changed since the initiation of this dispute before the WTO in November 2005. If this is correct,
could the Parties specify:

 (a) The nature of those changes, in cluding their dates and relevant legal
instruments.

 (b) The specific reasons for these changes.

 (c) The potential effects of these changes.

36. With respect to the TRQ regime, the most recent TRQ opening covered the period
November 1, 2005, through July 31, 2006. (T he United States requested consultations on
November 2, 2005.) The relevant legal instruments for the third TRQ opening are the following:
– Decision of the board of ministers: Decree No. 2005/9315 related to the
implementation of a tariff contingent on th e import of certain types of paddy rice and
rice types (Official Gazette, No. 25935, 13 September 2005);
19 and

– A notification related to the implementati on of a tariff contingent on the import of
certain paddy rice and rice types, from the Foreign Trade Undersecretariat (Official
Gazette, No. 25943, 21 September 2005).20

Further, the Decision of the board of ministers: Decree No. 2004/7333 related to the management of
quota and tariff contingent on import (Official G azette, No. 25473, 26 May 2004) provided FTU with
the legal authority to make this and earlier openings of the TRQ and is still in force.
21

37. Turkey claims that the TRQ "expired" on July 31, 2006, and will not be re-opened. Yet the
TRQ already has "expired" and been re-opened on tw o occasions, despite Turkey's statements to the
contrary.22 The advent of these panel proceedings may also help explain why Turkey has not yet
re-opened the TRQ with domestic purchase since July 31, 2006. 23 In addition, the United States has
been informed by the trade that MARA is orally informing importers that the MFN tariffs will
henceforth be calculated based upon government-det ermined reference prices for paddy, brown, and
milled rice, respectively, rather than on the actual customs value of the merchandise.
38. With respect to imports outside the TRQ, the 2006 Communiqué was issued on December 31,
2005 to replace the 2005 Communiqué. According to the trade, the Communiqué is re-published in
the Official Gazette every year, and the provisions of the 2005 and 2006 versions of the Communiqué
are essentially the same.
39. Re-issuance of the Communiqué did not affect MARA's decision not to grant Control
Certificates outside the TRQ. In Letter of Acceptance 1304, dated July 29, 2005, Turkey's Minister of
Agriculture accepted a recommendation to delay the star t date for issuing Control Certificates "until a
new policy is in place."
24 Turkey began to formulate its "new policy" in March 2006. In his
March 24, 2006, letter to then-USTR Rob Portman, which was prompted by the establishment of this

19 Exhibit US-10.
20 Exhibit US-11.
21 Exhibit US-4.
22 See, e.g., G/AG/R/41, para. 23 (February 17, 2005).
23 See Exhibits US-21, 24, and 35-37.
24 The United States was unable to obtain a copy of this document, but its contents are discussed in
Letter of Acceptance 390 (Exhibit US-36).

Panel on March 17, 2006, Turkish Minister of State Ku rsad Tuzmen stated that "the control certificate
will be issued as of April 1, 2006." 25 On the same day of Minister Tuzmen's letter to Ambassador
Portman, MARA issued Letter of Acceptanc e 390, in which Minister Bakan accepted a
recommendation to delay the start date for issuing Certificates until April 1, 2006 for both paddy and
milled rice.
26 Thus, the ban on imports of rice outside the TRQ scheme was still in place on
March 17, 2006 – the date the DSB established this Panel.
40. Based on Minister Tuzmen's letter and Letter of Acceptance 390, it appeared that, as of
April 1, 2006, MARA would begin issuing Cont rol Certificates without requiring importers to
purchase domestic paddy rice under the TRQ. Howeve r, MARA apparently has continued to deny
Certificates to importers who have applied for them. 27 This is likely due to the objections of Turkish
producers decrying the intended change in policy. 28 (Such objections may have been what prompted
Turkey's apparent reliance on a reference price syst em, but the United States is unable to provide the
Letter of Acceptance establishing th e reference price regime, and im porters are apparently being
informed orally by MARA of the new reference prices.)
41. Further, Letter 390 states that the "closing date" to issue Control Certificates will be August 1,
2006, and that the ban on issuing Control Certificates to import rice during the harvest season "will be
suitable to be kept in place." This is borne out by Turkish import data, which show that in September
2006, rice imports into Turkey ceased.29
Q21. (United States) In paragraphs 100 and 101 of its first submission, the United States has
argued that Turkish regulations restrict the issuance of import licenses under the tariff-rate
quotas (TRQs) to certain categories of persons, with the result that only domestic rice
producers, and principally those with milling capaci ty, are eligible to import rice. The United
States has referred to this as the "eligibility cri teria". Can the United States clarify whether it
views this argument as an additional and separate claim.

42. Turkey's requirement that only those entities who purchase domestic paddy rice may import
rice into Turkey is an "other measure" imposing a "rest riction . . . on importation" that is inconsistent
with Article XI:1 of the GATT 1994. This claim of inconsistency is separate from the US claims
regarding the domestic purchase requirement itself, wh ich are concerned with the disparate treatment
of imported and domestic products.
43. Specifically, Turkey restricts to the class of persons or entities that may import rice into
Turkey; only those importers who purchase domestic paddy rice are eligible to import under the TRQ
regime. First, the requirement is an "other measur e" under Article XI:1. As noted in paragraph 57 of
the US first written submission, the term "other meas ure" has been interpreted quite broadly by past
panel and Appellate Body reports. The India – Autos panel called it a "broad residual category" that
was reflective of the broad scope of coverage of Arti cle XI:1. The limitation on eligible importers to
those who purchase domestic paddy rice acts as a r estriction on importation, and it is not a quota,
export or import license, duty, tax, or charge.
44. In practice, this limitation on eligibility restrict s eligible importers to Turkish rice millers.
Paddy rice cannot be eaten. It must be milled befo re it can be consumed. Packers, retailers, and
consumers do not have milling capacity. As they cannot mill the rice, it would be useless for them to
purchase it. Only those with milling capacity purc hase paddy rice; thus, millers are the only entities

25 Exhibit US-35 (emphasis added).
26 Exhibit US-36.
27 See Exhibits US-22, US-39, US-40, US-41, US-42, and US-44.
28 See Exhibits US-21 and US-24.
29 See the chart in Exhibit US-53.

likely to be eligible to import rice, given the domestic purchase eligibility criterion. Not
coincidentally, Torunlar, Akel, and Goze, the three largest Turkish importers of US rice, all have large
milling facilities, and the United States is unaware of any Turkish importers of US rice that do not
have milling facilities. Thus, the limitation on who may import rice into Turkey to those importers
who purchase paddy rice acts as a restriction on importation and, as a result, breaches GATT 1994
Article XI:1.
Q22. (United States) For each of the measures that the United States has challenged in the
current proceedings, please identify the relevant ti me periods that the Panel should consider in
its analysis.

45. With respect to the measures that the United St ates has challenged in this proceeding, the key
point in time is the state of the measures as they existed on March 17, 2006, when the DSB
established this Panel and the Pane l's terms of reference. The Panel should consider evidence from
any time period that would aid its analysis of the measures as they existed on that date.
46. With respect to Turkey's failure to grant impor t licenses, or Control Certificates, at the over-
quota rates of duty, the United States has presente d evidence of Letters of Acceptance covering the
period September 10, 2003 through August 1, 2006. With respect to the domestic purchase
requirement, the United States has presented evid ence that the TRQ regime, which features the
domestic purchase requirement, was first instituted on April 20, 2004. The TRQ regime is still in
place, as the 1995 Decree and the May 2004 Decree remain in force,
30 and thus far has been opened
on three separate occasions, the most recent opening covering the time period November 1, 2005
through July 31, 2006. The United States also has presented evidence in the form of court documents,
Control Certificate rejection letters, and press clippi ngs dating from this period, all of which the panel
should consider in its analysis of the WTO-consis tency of the measures as they existed on March 17,
2006.
Q25. (Both Parties) Can the "letters of acceptan ce" constitute a valid legal basis to override
provisions contained in Decrees and Communiqués issued by the Turkish Foreign Trade
Undersecretariat (FTU)?

47. The Letters of Acceptance do not necessarily override the terms of the FTU Communiqués. It
is not clear that importation is supposed to be au tomatic even under the Communiqués. Pursuant to
the 2006 Communiqué, an importer wishing to obtai n a Certificate of Control from MARA must
submit the Certificate application form, the pro forma invoice or invoice, and "other documents which
may be asked for, depending on product, by the Ministry."
31 The 2005 Communiqué uses the same
language, as noted in paragraph 20 of the US first written submission. 32 Further, the FTU website
provides that "if the product to be imported is f ound to meet the criteria required," MARA will grant
the Certificate.33
48. This language is broad enough to provide MARA with the flexibility to "ask for" other
documents on a product-by-product basis. There is nothing in the FTU Communiqués limiting the
type of documents that MARA can request. Lette r of Acceptance 1795 makes clear that MARA will
not grant Control Certificates to importers who do not purchase domestic paddy rice. Under the TRQ
regime, importers need to document such purchases to FTU by presenting proof of purchase issued by
the Turkish Grain Board in their applications fo r an FTU import permit. Receipts documenting the

30 See paragraphs 39 and 42 of the US first written submission and Exhibit US-4.
31 See Article 2 of the 2006 Communiqué (Annex TR-1).
32 The US translation of this phrase is "other documents that may be required."
33 General Assessment of the Regime Regarding Technical Regulations and Standardisation for Foreign
Trade (27 May 2005) (www.dtm.gov.tr) (Exhibit US-43).

purchase of domestic paddy rice certainly constitute "other documents which may be asked for,
depending on product, by the Ministry."
49. Further, paragraph 11 of the 2005 and 2006 Comm uniqués, which are identical, provide that,
"provisions of other applicable ordinances shall pr evail on all other matters not treaded [sic] in the
present Notification." FTU has no role in the issuan ce of Control Certificates, which is administered
by MARA, or in the mechanics of fulfilling the domestic purchase requirement, which is overseen by
the Turkish Grain Board. The Letters of Accepta nce are Ministerial approvals that are directly
applicable to these matters and, therefore, prevail over the Communiqués.
50. Even if the Letters of Acceptance were in c onflict with the Communiqués, the Letters bar the
issuance of Control Certificates on their face. Therefore, the Letters constitute a prohibition or
restriction on importation under Article XI:1 of the GATT 1994 whether or not Turkey treats the
Letters as legally binding and overriding the Communiqués. Moreover, the United States has
provided ample evidence that MARA interprets the Letters as overriding the Communiqués. As
shown in Exhibit US-31, counsel for MARA argue d in Turkish domestic court that the Letters
precluded MARA from issuing any Control Certificates for the periods specified and cited the Letters
as the sole basis under which MARA could not gran t a Certificate to Torunlar. When another
importer, Mehmetoglu, requested a Control Certificate in April 2006, a MARA official responded that
"it is not possible to prepare a control certif icate according to our laws and regulations." 34 T h i s
language can be interpreted in no other manner than as a general statement referring to the issuance of
Control Certificates as a whole, not to the denial of a Control Certificate in that particular instance.
51. Letters of Acceptance 1304 and 390 confirm that this is the case. Letter 390, the subject of
which is "[i]mport of rice and paddy rice," notes that, pursuant to Letter 1304, "it was decided not to
issue any control certificate until a new policy is in place." The Letter stated that it was necessary to
"finalize the new policy on rice/paddy rice impor t as soon as possible" and this document, dated
March 24, 2006, apparently contained that new polic y. The DSB established the panel in this dispute
on March 17, 2006, or one week prior to the date that Minister Eker signed the Letter.
Q26. (United States) In paragraph 80 of its first submission, the United States states that the
so-called "letters of acceptance", "apply to all importers seeking a Certificate of Control from
MARA in order to import rice" and that they are "Ministerial Decisions taken by the Turkish
Minister of Agriculture [that] are binding under Turkish law".

 (a) Can the United States elaborate on it s assertion that the so-called "letters of
acceptance" "apply to all importers seek ing a Certificate of Control from
MARA in order to import rice".

52. At the time of the US first submission, the United States understood that MARA only
required importers to obtain a Control Certificate for rice imports outside the TRQ regime. Thus, this
statement was made in the context of discussing th e import ban with respect to MFN trade. The
United States has presented substantial evidence, including the Letters of Acceptance, rejection
letters, court documents, and press reports, establishi ng that such a ban exists, and that there was a
conscious decision by Turkey's Minister of Agricu lture to implement such a ban. Turkey has not
provided any documentary evidence to rebut these documents.
53. In its first written submission, Turkey has asser ted that importers also are required to obtain
Control Certificates for in-quota imports, and that it is issuing such documents freely. As mentioned
in its oral statement at the first substantive m eeting, the United States appreciates the clarification
from Turkey, but notes that this requirement makes the TRQ regime more discretionary than the

34 Exhibit US-22.

United States previously had understood, as importers are required to obtain two import licenses and
appear before four Turkish government agencies in order to import rice.
54. In any event, Letter of Acceptance 1795 clarifi es that MARA will not issue Certificates to
importers who do not purchase domestic paddy rice, wh ich is a requirement for in-quota importation,
so the Letters only prohibit Control Certificate issuance outside the TRQ regime. And Turkey's
Annex 20 confirms that Turkey distinguishes be tween Certificates issued for MFN trade and
Certificates issued under the TRQ regime by laying out raw numbers of Certificates that allegedly
have been granted and distinguishing between Certif icates granted for in-quota trade and Certificates
granted for out-of-quota trade. Therefore, even if Turkey is issuing Control Certificates under the
TRQ, this has no bearing on the issue of Control Certificate issuance at the over-quota rates of duty.
55. The United States also is awaiting clarificati on from Turkey as to whether importers of EC-
origin rice need to obtain Control Certificates, as such imports are subject to a separate quota regime
established pursuant to a bilateral agreement between Turkey and the European Communities.
 (b) Can the United States provide evidence to support its assertion that the so-called
"letters of acceptance" "are binding under Turkish law".

56. In the first US written submission, oral statem ent, and answers to previous questions, the
United States has provided evidence that the Letters of Acceptance are binding under Turkish law.
The Letters constitute Ministerial approvals of Tu rkey's Minister of Agriculture, who signs each
document to indicate his assent, and are clear on their face that no Control Certificates are to be
granted for specified periods of time.
57. MARA's interpretation of these documents has conformed with the plain meaning of the text
of these documents. As previously mentioned, MA RA's lawyer, arguing in Turkish domestic court to
deny a Control Certificate to a petitioning importe r, cited the Letters of Acceptance as precluding
MARA from issuing any Control Certificates for the periods specified and as the exclusive legal basis
under which MARA could not grant a Certificate to th e importer. The importer in question, Torunlar,
which is one of the primary importers of US rice, petitioned MARA unsuccessfully for a Control
Certificate on three separate occasions in 2003 an d 2004 before finally ta king its case to court.
MARA's interpretation of the Letters of Acceptance, as reflected in its arguments before a Turkish
tribunal, was not case specific but applied to all impor ters applying for Control Certificates. MARA
confirmed this interpretation in April 2006 when, in responding to another importer's request for a
Control Certificate, it stated that "it is not possi ble to prepare a control certificate according to our
laws and regulations."
35 As discussed in the answer to Qu estion 25, Letters of Acceptance 390 and
1304 confirm that the denial of Control Certificat es is a blanket prohibition covering all imports of
rice.
58. Turkey's own import data confirms the existe nce of an import ban covering MFN trade.
Since September 10, 2003, there have been three periods of time where the TRQ was closed: (1)
September 10, 2003 through April 27, 2004; (2) September-October 2004; and (3) September-October
2005. Thus, during those periods of time, the only wa y to import rice into Turkey would have been at
the MFN rates. The import data clearly shows four clear trends:
– With one exception, imports of non-EC origin rice during those periods were either
zero or at de minimis levels;

35 Exhibit US-22.

– Rice imports were at high levels and/or rising in the months immediately preceding
these periods, bottomed out during these periods, and resumed immediately following
those periods at high levels;

– The TRQ is closed every year over the September/October period. Not
coincidentally, these are the first two months of the Turkish rice harvest and,
therefore, the time when Turkey would mo st want to protect its domestic producers
by prohibiting importation; and

 – During these periods, rice imports from Egyp t, the United States, and other countries
appeared to be at de minimis levels or, more commonly, zero, whereas rice imports
from the European Communities continue una bated. EC imports are governed by a
separate quota regime and are not subject to the restrictions challenged by the United
States in these panel proceedings.

The import data thus also supports that the Letters of Acceptance are binding under Turkish law. To
the extent Turkey is claiming that it ignores the Le tters of Acceptance, the United States would note
that, even if that were accurate (and the evidence indicates that it is not accurate) a failure to enforce a
measure does not render that measure consistent with the WTO Agreement.
36 The Letters of
Acceptance are on their face import restrictions and as such inconsistent with the WTO Agreement.

Q38. (Both Parties) In paragraph 25 of its first written submission, Turkey asserts that "[a]n
approved Certificate of Control for rice importatio n will be valid, contrary to the claims from
the United States, for a period of twelve months on the basis of Article 9(c) of the Communiqué
No. 2006/05."

 (b) Can the United States comment on this assertion.

59. The United States appreciates Turkey's clarificati on that "chapters" in Article 9(c) refers to
HTS chapters, and not to chapters within the indivi dual Annexes, and thus, that Control Certificates
for rice importation can be valid for up to twelve m onths, not four months. Nevertheless, the validity
period – be it twelve months or twelve years – is irrelevant as Turkey's Minister of Agriculture has
ordered that Certificates are not to be granted to importers that do not purchase domestic paddy rice.
Further, Turkish regulations do not preclude MARA from altering th e validity periods for Control
Certificates. Article 9 of the Communiqués states th at the validity periods "shall not be extended."
However, Article 9 is silent on the question of whether MARA can shorten the validity periods.
Q42. (United States) In paragraph 62 of its first submission, the United States claims that
"the 2005 Communiqué is clear that the Certificat e is a document that Turkey's Ministry of
Agriculture and Rural Affairs (MARA) requires as a condition for permitting importation;
there is no mention of Turkish customs in the Communiqué." Could the United States address
the situation before the entry into force of "the 2005 Communiqué" (Communiqué 25687).

60. The United States was unable to obtain a copy of the 2003 Communiqué, but the 2004
Communiqué appears to be essentially the same as th e later Communiqués. We are in the process of
translating this document, and will provide it with our rebuttal submission.
Q43. (United States) In paragraph 55 of its first submission, the United States asserts that the
Turkish Foreign Trade Undersecretariat (FTU) "... will grant an import licence to import under
the TRQ ... without requiring that an importer obta in a Certificate of Control". In contrast,

36 Appellate Body Report, United States – Anti-Dumping Act of 1916 , WT/DS136/AB/R,
WT/DS162/AB/R, adopted September 26, 2000.

Turkey states in paragraph 33 of its first submission that "[i]n addition to the import licences
obtained for purposes of quota allocation, of course, importers also had to comply with all other
customs obligations and requirements, in particular the presentation and approval by MARA of
the required Certificates of Control".

 (a) Can the United States demonstrate that Certificates of Control were not
required to import rice inside the TRQ?

 (b) Can the United States please provide evidence that imports inside the TRQ did
not require a Certificate of Control?

61. In order to answer more fully the panel's qu estions, the United States has attempted to obtain
additional evidence regarding in-quota trade. Howe ver, as discussed in the answer to Question 62,
importers in Turkey have, for the most part, b een unwilling to provide any documentation on this
matter since the panel meeting.
62. The United States has not been able to identify provisions in any of the documents comprising
the TRQ regime mandating that importers obtai n Certificates of Control as a condition upon
importation, but Turkey has now clarified that a C ontrol Certificate is required under the TRQ. As
previously discussed, this raises additional concerns about the discretionary nature of the TRQ regime
because importers need to obtain two import licenses – a Control Certificate from MARA and an
import permit from FTU – and obtain approval from four different Turkish government agencies –
TMO, FTU, MARA, and Customs – in order to import rice into Turkey. Further, as previously
discussed, the fact that importers may be required to present a Certificate of Control for imports
within the TRQ does not rebut the US evidence that Turkey does not grant Certificates for imports at
the over-quota rates of duty.
Q45. (Both Parties) In paragraph 72 of its first submission, the United States asserts that
"Turkey fails to grant Certificates of Control 100 per cent of the time" and, similarly, that
"Turkey never grants Certificates of Control."

 (a) Can the United States provide argument s to support its assertion and specify the
exact period to which it refers.

63. Pursuant to Ministerial approvals known as Letters of Acceptance, Turkey does not grant
Control Certificates to import rice outside the TRQ. The cited statements were made in the context of
the over-quota rates of duty and under the belief that MARA did not require Control Certificates for
in-quota imports. Turkey has stated that it does, in fact, require Control Certificates under the TRQ
regime and the EC Quota Arrangement. However, this does not alter the fact that Turkey's Minister
of Agriculture repeatedly has ordered MARA perso nnel not to grant any Control Certificates which,
as clarified by Letter of Acceptance 1795, refers to situations where importers attempt to import
without purchasing domestic paddy rice, i.e., outside the TRQ.
64. The time period to which the United States refers is September 10, 2003, through the present.
The first Letter of Acceptance of which the United States is aware was issued on September 10, 2003.
In that Letter, the Minister of Agriculture acc epted a recommendation from TMO to delay the start
date on which MARA would grant Control Certificat es. Following that Letter were at least five
additional Letters of Acceptance with similar terms, which ensured that Certificates of Control would
not be granted until April 1, 2006, or two weeks after the DSB established the panel in this dispute.
The experiences of Mehmetoglu and ETM confirm that Turkey has continued to deny Certificates of
Control since April 1.

Q46. (United States) In paragraph 67 of its first submission, the United States notes that a
Minister of State from Turkey, in a letter to the US Trade Representative, dated 24 March 2006
pledged that "the control certificate will be issued as of April 1, 2006". Could the United States
please elaborate on its related claim according to which, by this phrase, the Minister from
Turkey would have "acknowledged that Certific ates of Control were not being granted" and
would have "confirmed that Turkey had not been issuing Certificates of Control up to that
point in time".

65. In his March 24, 2006 letter, Minister Tuzmen stated that Control Certificates " will be issued
as of April 1, 2006" (emphasis added). The logical implication of Minister Tuzmen's statement is that
Control Certificates were not being issued at th at time, but that Turkey would begin ("will be")
issuing such Certificates beginning on ("as of") April 1, 2006. This is confirmed by the context in
which this letter was provided to the United States.
66. As discussed in the US first written submissi on, the United States has been expressing, in
bilateral discussions as well as in WTO committee meetings, its concern that MARA did not issue
Control Certificates for some years. On November 2, 2005, the United States requested WTO
consultations with respect to Turkey's restricti ons on the importation of rice, including Turkey's
failure to grant import licenses to import rice outside the TRQ. Consultations failed to resolve the
dispute. As a result, on February 17, 2006 the Unite d States made its first request to establish a panel
to review the matter, which included Turkey's fa ilure to issue licenses outside the TRQ. The DSB
established the panel on March 17, 2006. On Marc h 24, 2006 – one week after the DSB established
the panel in this dispute – Minister Tuzmen pr esented Ambassador Portma n with the cited letter
stating that Turkey would, "as of April 1, 2006," issue Control Certificates.
67. Also on March 24, 2006, Letter of Acceptance 390 was issued. The Letter noted that on
July 29, 2005, "it was decided not to issue any control certificate un til a new policy is in place." The
Letter further noted that it had been necessary to soli cit the views of the Turkish Grain Board in order
to finalize a new policy as soon as possible. This Le tter was apparently that new policy, meaning that
control certificates were not being issued as of that date. The last paragraph of the Letter provided the
following:
Taking into account the developments at WTO, I am asking your approval to
rearrange the dates to issue control certificates to import rice/paddy rice . The start
date to issue certificates will be April 1, 2006 ... .37
68. This alleged "start date" to issue certificates is consistent with Minister Tuzmen's statement of
the same day that "the control certificate will be issu ed as of April 1, 2006." Moreover, the use of the
term "start date" further confirms that MARA was not issuing Control Certificates at the time of
Minister Tuzmen's letter. Lastly, an April 28, 2006, letter from Mehmetoglu to MARA requesting a
Control Certificate notes that a "letter numbere d 14060 and dated 25.04.2006" – perhaps another
Letter of Acceptance – noted that the "preparation period of control certificate for rice imports has
started ."38
69. The United States has presented evidence that , in fact, MARA did not start issuing
Certificates as of April 1, 2006, as it had stated it would, perhaps because of intense domestic industry
and importer opposition. Nonetheless, MARA's stated in tent to "start" issuing Control Certificates as
of April 1, 2006, makes clear that MARA was not issuing Control Certificates to import outside the
TRQ prior to that date.

37 Exhibit US-36 (emphasis added).
38 Exhibit US-42 (emphasis added).

Q47. (United States) In paragraph 72 of its first submission, referring to Turkey's alleged
failure to grant Certificates of Control, the Unit ed States refers to the case of an importer who
attempted to obtain a Certificate of Control back in 2003 and was still waiting for a response
from Turkey's Ministry of Agriculture and Ru ral Affairs (MARA). Could the United States
identify other cases in which MARA has denied or not approved importers' applications for
Certificates of Control to import rice outside the TRQ?

70. As discussed further in response to Question 63, four Turkish importers – Torunlar,
Mehmetoglu, Goze, and Akel – account for approxi mately 90 per cent of all imported rice into
Turkey. The United States and Egypt are the two largest exporters of rice to Turkey.
71. Torunlar is one of the major importers of US rice into Turkey. The case referenced in
paragraph 72 of the US first written submission, and elaborated upon in para graphs 28-31 of that
submission, relates to Torunlar. As discussed in th e US submission, Torunlar applied to MARA for a
Control Certificate to import rice outside th e TRQ three times between August 2003 and January
2004, but MARA would not grant the Certificate. Torunlar was forced to file suit in Turkish Court to
try to obtain the Certificate.
72. The United States understands that Mehmetoglu is the major importer of Egyptian rice into
Turkey. As discussed in paragraphs 35-36 of th e US first written submission, Mehmetoglu heard
about Minister Tuzmen's announcement that Control Certificates would be issued as of April 1, 2006,
and decided to submit an application on April 10, 2006. After not hearing back from the Provincial
Agriculture Directorate, Mehmetoglu sent several le tters to MARA complaining about the lack of
action on its application, noting that provincial offi cials had informed the company that they had been
orally instructed not to provide Certificates, a nd requesting an explanation for why its application
would not be granted. On May 1, 2006, the Provincial Agriculture Directorate provided the
explanation that Mehmetoglu had requested, namely that "it is not possible to prepare a control
certificate according to our laws and regulations."
73. Subsequent to the first panel meeting in this dispute, the United States has learned that
Mehmetoglu had applied to MARA for Control Certif icates to import milled rice outside the TRQ on
three other occasions in 2005 and 2006. When MARA refused to grant its applications, Mehmetoglu
filed three separate lawsuits in Turkish court in or der to obtain a Control Certificate. Two of those
lawsuits remain pending but, in one case, the cour t issued a decision in favor of the government's
position that it could not issue Control Certificates . The court's opinion cites as grounds for its
decision two Letters of Acceptance: Letter of Acceptance 1795, dated December 30, 2004 (Exhibit
US-14), and Letter of Acceptance 1304, dated July 29 , 2005, which provided that Control Certificates
would not be issued during the time periods in whic h Mehmetoglu requested them. The United States
has obtained the relevant court documents, but is still in the process of translating them. We will
provide the translated documents and further detail on their contents with the US rebuttal submission.
74. A representative from Akel, another Turkish importer that imports rice mostly from the
United States, informed US officials that it also ap plied for Control Certificates, but its applications
were not granted. A representative of Goze, another importer of US rice, informed US officials that it
did not apply for a Control Certificate because it knew that MARA was not granting any Control
Certificates without domestic purchase. Finally, as discussed in paragraph 37 of the US first written
submission, another Turkish importer, ETM, also tr ied to obtain a Control Certificate in April 2006
after Minister Tuzmen's announcement that it would begin issuing Certificates, with the same result as
Mehmetoglu and Akel.
Q48. (United States) In paragraph 2 of its first submission, the United States alleges that
"[i]mporters who have applied for licenses often wa it for months or even years for a response to
their applications, and if they do receive a respon se, their license applications are denied with

little reason (e.g., spelling errors) or denied with no reason provided at all." Please provide
additional information relating to the factual claim that importers who have applied for
Certificates of Control often wait for months or even years for a response to their applications,
as well as other instances where this treatment has occurred.

75. Torunlar, one of the primary importers of US rice into Turkey, applied for a Control
Certificate in August 2003. More than two years later, on December 12, 2005, Torunlar sent a letter
to the Provincial Directorate of Agriculture in which it continued to plead is case for a Control
Certificate. During the intervening period, Torunlar made three attempts to apply for a Certificate.
As discussed in paragraph 28 of the US first subm ission, MARA rejected the first request because
certain documents allegedly were missing. MARA rejected the second request due to alleged spelling
errors. MARA rejected the third request in Septem ber 2004 – more than eight months after Torunlar
first applied for a Certificate – without providing any explanation for the rejection.
76. Mehmetoglu, one of the primary importers of Egyptian rice, has applied for a Control
Certificate to import outside the TRQ at least three times in 2005 and 2006, and none of those
applications have been granted. MARA reject ed one of Mehmetoglu's requests on May 1, 2006, but
only after Mehmetoglu sent three letters to MARA demanding an explanation for the delay in the
issuance of the Control Certificate. As noted in the US response to Question 47, the United States has
obtained additional documentation with respect to Mehmetoglu's other requests for Control
Certificates, and subsequent lawsuits, and will pr ovide that information a nd additional argumentation
in the US rebuttal submission.
77. The United States is aware of other instances where MARA has not acted on importer
applications for Control Certificates, some of which are discussed in the answer to Question 47.
However, as elaborated upon in response to Question 62, most of the importers that the United States
has contacted have been unwilling to provide additi onal documentation since the first panel meeting.
Thus, the United States is unable to provide additio nal documentary evidence with respect to other
importers' experiences with the Control Certificate application process. Nevertheless, the general rule
appears to be that, if an importer does apply for a Control Certificate, MARA will not respond to the
application, either at all, or in a timely fashion, and if it does respond, the application will be rejected.
Q49. (Both Parties) During the first substa ntive meeting, Turkey asserted that once an
importer obtains a Certificate of Control, the actual importation depends on market-related
factors, such as relative exchange rates, demand, prices, etc.

 (a) Can the United States comment on this point?

78. Turkey's Minister of Agriculture provides that no Control Certificates are to be granted at the
over-quota rates of duty. However, assuming that Control Certificates were granted, Turkey's
assertion would have been correct. Market-related factors would have been a part of importers'
decision making if trade were not restricted. For example:

– The United States had a record high medium grain crop during the August
2004/September 2005 marketing year. These a bundant supplies and lower US prices
coincided with a continued drought in Austra lia resulting in nearly record US exports
of medium grain rice over this period. The US stocks to use ratio of 22 per cent for
medium grain rice during that marketing year indicates that the United States could
have exported even larger volumes than it did if importation was not de facto
restricted to a small group of importers and if entities in Turkey could have made
purchasing decisions based on market-related factors. Turkey showed no import

response to lower prices because importers could not obtain the necessary Control
Certificates.

– Australia had been a regular supplier to Turkey prior to the imposition of the import
ban in mid-September 2003. In 2005/ 2006, Australian exports rebounded from
drought the previous marketing year. However, Turkey did not return as a customer.

– Egypt also had significantly larger exportable supplies during the time period under
examination by the Panel, due to expanded area planted paired with the highest field
yields of any rice producing country in the wo rld. Nevertheless, Turkish imports still
showed months of zero imports from one of their largest suppliers.

79. The fact that Turkey's Annex 20 shows a wide differential in 2003 and 2006 between Control
Certificates granted and actual imports is not reflective of a lack of competitiveness but rather the
existence of the import restrictions raised by the United States in these panel proceedings. In Exhibit
US-59, the United States has presented the data from Annex 20 in graphical form. In 2003, the pace
of Turkish imports was tracking the volume of outstanding Control Certificates at pace – at least in
January through early-September 2003 – before imports were halted. The most likely explanation as
to why realized imports fell short of Control Certificate volumes in 2003 was Turkey's decision,
pursuant to Letter of Acceptance 964, to prohibit th e issuance of Control Certificates as of September
10, 2003. Thus, rice imports were prohibited for nearly four months, or one third of the calendar year.
In 2004 and 2005, realization rates were very high because, according to Turkey's import data,
virtually all imports were within the TRQ regime. By contrast, Control Certificates covering nearly 1
million tons in 2006 are grossly out of line w ith actual imports through September 2006 and outpace
trade-to-date by nearly 500 percent. The United States cannot explain this discrepancy and agrees
with Korea that Turkey needs to provide an explanation.
Q50. (Both Parties) Under what circumstances, or on what grounds, if any, would Turkey's
Ministry of Agriculture and Rural Affairs (MARA) not issue a Certificate of Control?

80. Pursuant to the Letters of Acceptance, MARA does not have any legal authority to issue
Certificates of Control to importers who do not purch ase domestic paddy rice. Each Letter spells out
explicitly that Turkey's Minister of Agricultu re accepts a recommendation from TMO not to grant
such Certificates for a particular period of time and provides Ministerial approval to "delay" the start
date for issuing such Certificates. MARA considers itself to be bound strictly by these Letters. When
Torunlar petitioned the 1
st Administrative Court of Ankara to force MARA to issue a Control
Certificate, MARA's counsel cited these Letters as the sole legal basis for its failure to issue a
Certificate. When Mehmetoglu applied for a Cert ificate in April 2006, the Provincial Agriculture
Directorate replied that it was not possible to issu e a Certificate under Turkish laws and regulations.
When Mehmetoglu sued MARA in Turkish court to fo rce the Ministry to issue a Control Certificate
without domestic purchase, the Court issued an opin ion in favor of the government, citing the Letters
of Acceptance as the legal basis for rejecting th e Control Certificate applications. Letter of
Acceptance 1795 confirms that the failure to issu e Control Certificates only applies to importers
attempting to import rice outside the TRQ regime, i.e., without purchasing domestic paddy rice.
81. Turkey has clarified that it does, in fact, gr ant Control Certificates under the TRQ regime and
to importers of rice from the European Communities, which is governed by a separate quota regime
than rice from other sources. Nonetheless, this does not alter the fact that Turkey's Minister of
Agriculture has ordered officials of his ministry not to grant any Control Certificates to importers who
do not purchase domestic paddy rice, i.e., outside the TRQs. And, as the United States mentioned in
paragraph 24 of its oral statement, if Turkey requires importers under the TRQ regime to obtain a
Control Certificate, in addition to the import permit already required by FTU, the TRQ regime is even
more discretionary than the United States previously understood.

Q51. (United States) In paragraph 71 of its first submission, the United States claims that
"Turkey did not grant [Certificates of Control] at all for a period of over 2 ½ years and is still
not granting them." Could the United States please specify the exact period(s) during which
Turkey allegedly did not grant any Certificates of Control. Please identify the reason provided
in each case when there was a formal rejection.

82. The time period referenced in paragraph 71 – "over 2 ½ years" – is September 10, 2003
through April 1, 2006. The first Letter of Acceptan ce of which the United St ates is aware was issued
on September 10, 2003. In that Letter, the Mi nister of Agriculture accepted a recommendation from
TMO and provided Ministerial approval to delay the start date on which MARA would begin to grant
Control Certificates. Following that Letter were at least five additional Letters of Acceptance with
similar terms, which ensured that Certificates of Control would not be gran ted until April 1, 2006, or
two weeks after the DSB established the panel in this dispute.
83. The United States has been informed by the tr ade that importers knew that MARA was not
granting Certificates so many did not bother applying for them. Those who did apply for Certificates
either had their applications rejected or did not r eceive a response after waiting months or even years.
As elaborated upon in the US response to Question 62, most of the importers that the United States
has contacted have been unwilling to provide add itional documentation on this matter since the panel
meeting. However, the evidence the United States has provided thus far makes clear that Turkey does
not, consistent with the plain language of the Letters of Acceptance, grant Certificates of Control for
imports outside the TRQ (i.e., without domestic purchase):
– In Torunlar's case, MARA rejected Torunl ar's first request because certain documents
allegedly were missing, the second request due to alleged spelling errors, and the
third request without explanation.

– One of Mehmetoglu's requests was rejected on the grounds that "it is not possible to
prepare a control certificate according to our laws and regulations." In the
correspondence with MARA, Mehmetoglu mak es reference to conversations between
the importer and MARA in which MARA offi cials said that they had been orally
instructed not to provide Control Certificat es. As previously mentioned, the United
States will provide further information on Mehmetoglu's other Control Certificate
requests and related court documentation in the rebuttal submission.

– ETM's request for a Control Certificate was not granted, but was never formally
rejected. The company says that it was in formed orally that no documents were
missing, yet "based on the verbal instructions of the Ministry's Undersecretariat, the
preparation of documents were stopped."
39

84. Turkey has clarified that it does, in fact, gr ant Control Certificates under the TRQ regime and
to importers of rice from the European Communities. (Imports of EC-origin rice are governed by a
separate quota regime than is rice from other sources, and a representative of the Italian Rice Millers
Association has confirmed that in-quota imports are not subject to any of the restrictions and
requirements being imposed by Turkey on other imports.) Again, this information does not alter the
fact that Turkey's Minister of Ag riculture repeatedly has ordered offi cials of his ministry not to grant
any Control Certificates which, as clarified by Letter of Acceptance 1795, applies to importers
attempting to import without purchasing domestic paddy rice, i.e., outside the TRQs.

39 Exhibit US-44.

Q52. (United States) In paragraph 26 of its first written submission, Turkey asserts that
"Certificates of Control have been syst ematically and regularly approved on a
non-discriminatory basis since the entering into force of 'The Regime for Technical Regulations
and Standardization for Foreign Trade' in 1996." Can the United States comment on this
assertion.

85. The United States has only presented docum entation concerning this matter from
September 10, 2003, to the present. Rice exporters had raised concerns regarding Turkey's seasonal
import ban prior to that date, but the United Stat es has not submitted evidence on this point. From
September 10, 2003, onward, however, the United States has provided evidence contradicting
Turkey's assertion that it is granting Control Certif icates. As previously discussed, pursuant to the
explicit terms of the Letters of Acceptance, Turkey does not grant Control Certificates to import rice
outside the TRQ.
40 It did not grant Certificates from September 10, 2003, through the date of panel
establishment and has yet to provid e any evidence that it is granting such Certificates now. In fact,
the United States presented eviden ce in the form of correspondence between importers (Mehmetoglu
and ETM) and news reports demonstrating that Turkey has continued to deny Certificates of Control
since April 1, and the court documents from the Mehmetoglu litigation will provide further
confirmation that MARA is not issuing Control Certificates.
Q56. (United States) In paragraph 63 of its first submission, the United States asserts that the
Certificates of Control would in any event be a prohibition or restriction on importation that is
made effective by an "other measure" within the meaning of Article XI:1 of GATT 1994. Please
elaborate on what grounds the United States argues that the Certificates of Control and the
alleged denial thereof can be considered an "oth er measure" for purposes of the application of
Article XI:1 of GATT 1994.

86. As noted by the United States in its first s ubmission, the range of measures covered by
Article XI:1 of the GATT 1994 is broad.
41 Other than duties, taxes, or other types of charges, WTO
Members are not permitted to employ any prohibit ion or restriction on imports whether through
quotas, import licenses, or "other measures." Past panels have also interpreted Article XI:1 as
covering a broad scope of measures.
87. Turkey's prohibition on MFN trade in rice is ma de effective through MARA's decision not to
grant import licenses, or Control Certificates, for importers who do not purchase domestic paddy rice.
The blanket prohibition on the issuance of Control Certificates is operationalized through the Letters
of Acceptance (which are Ministerial approvals to delay the start date for issuance of Control
Certificates), substantiated by the court documents, rejection letters, and newspaper articles submitted
by the United States, and borne out by Turkey's own import data.
88. If the panel were to find that Control Certificates are not import licenses for purposes of
Article XI:1 of the GATT 1994, the United States believes that MARA's failure to issue Control
Certificates constitutes an "other measure" for such purposes. On its face, th e term "other measures"
is extremely broad and covers any measure other than quotas, import or export licenses, duties, taxes,
or other charges. Read in context, the term "other measures" covers any other type of measure that a
Member could take that would prohibit or restrict imports, other than those measures specifically
mentioned in Article XI:1.
89. In order to import rice at the over-quota rates of duty, an importer must obtain a Control
Certificate from MARA. Turkey's Minister of Agricu lture decided not to issue such Certificates, as

40 As previously mentioned, Turkey has clarified th at Control Certificates are granted under the TRQ
regime and the EC Quota Arrangement.
41 See paragraphs 57 and 63 of the US first written submission.

evidenced by the Letters of Acceptance and the re st of the documentary evidence presented by the
United States. MARA's failure to issue such Certificates blocks imports of rice outside the TRQ
regime. Accordingly, Turkey's failure to provide importers with Control Certificates outside the TRQ
is an "other measure" amounting to a prohibition or restriction on importation, and thereby is in
breach of Article XI:1 of the GATT 1994.
Q57. (United States) In footnote 90 to paragra ph 58 of its first submission, the United States
claims that "even if Turkey did issue Certificates of Control, the conditions of use associated
with such Certificates would constitute a 'restriction' on importation for purposes of
Article XI:1." Could the United States provide detailed arguments for this claim.

90. Turkey has stated that Control Certificates to import rice – assuming they were granted – are
valid for twelve months and can be utilized for more than one shipment. Regardless of whether or not
that is the case, as previously discussed, the United States is not planning to pursue this claim further.
Q58. (United States) As noted by the United States in paragraph 19 of its first submission,
according to Article 1 of the Turkish Foreign Trade Undersecretariat's (FTU) Communiqué No.
2005/5, Turkey's Ministry of Agriculture and Rural Affairs (MARA) de termines the "fitness
and compatibility" of certain products, including rice, with respect to human health and safety
and other concerns. Accordingly, rice importers must present a Certificate of Control from
MARA to Turkish Customs upon importation. Subsequently, in paragraph 62 of its
submission, the United States argues that MARA's requirement that importers obtain a
Certificate of Control is consistent with the definition of "import licensing" for purposes of
Article 1 of the Agreement on Import Licensing. In the United States' view, is verification of
the fitness and compatibility of imported agricul tural products with relevant human health and
safety regulations an administrative procedu re that goes beyond what is required for customs
purposes?

91. The Import Licensing Agreement covers "administrative procedures used for the operation of
import licensing regimes requiring the submission of an applica tion or other documentation (other
than that required for customs purposes) to the relevant administrative body as a prior condition for
importation into the customs territory of the impor ting Member" (emphasis added). With respect, the
United States believes that the relevant inquiry is whether a particular administrative procedure "used
for the operation of an import licensing regime" goes beyond what is required for customs purposes.
92. Verification of the fitness and compatibility of ag ricultural products with the relevant health
and safety regulations is a procedure that is so metimes required with respect to both imported and
domestic products. So there is not necessarily any linkage between obtaining a phytosanitary
certificate and importation. And, in the United St ates' view, it is unnecessary for the panel to decide,
for purposes of resolving this dispute, whether th e verification of the fitness and compatibility of
agricultural products is an administrative proce dure that goes beyond what is required for customs
purposes. Rather, what matters is how a measure – whether it be a requirement to obtain a Control
Certificate, a receipt for domestic purchase, or a phy tosanitary certificate – is "used for the operation
of an import licensing regime."
93. Here, Turkey is using the denial of the Control Certificate, which has all of the characteristics
of an import license, as a WTO-inconsistent trade ba rrier. Turkey is not, to our knowledge, using the
issue of "fitness and compatibility" to block or restrict rice importation. In fact, importers have
informed US officials that MARA's Provincial Agricultural Directorates do not even ask for the
phytosanitary certificate until after the Provincial Agricultural Directorate in Ankara has granted the
Control Certificate. The US claim is that MARA is simply not granting the Certificates as the key
factor in its operation of its import licensing regime , and that Turkey is using its failure to issue
Control Certificates – irrespective of the individua l elements comprising the Certificates – as an

import barrier. Because the United States is not argui ng that Turkey is using the verification of the
fitness and compatibility of imported rice as an import barrier, the Panel does not need to reach the
issue of whether an analysis of fitness and comp atibility is an administrative procedure that goes
beyond what is required for customs purposes.
Q60. (Both Parties) In paragraph 26 of the provisional version of its oral statement, Australia
indicates that "the measure at issue is Turkey's alleged blanket denial of Certificates of
Control." Could the Parties comment on this st atement. If appropriate, provide evidence to
support your statements.

94. To be more precise, one of the measures bei ng challenged by the United States is Turkey's
blanket denial of Certificates of Control outside the TRQ regime, which amounts to a prohibition or
restriction on importation that is in breach of Ar ticle XI:1 of the GATT 1994. As discussed in the
answer to Question 4, the instrument used by MARA to effectuate the denial of Control Certificates is
the Letter of Acceptance. There are other measures being challenged, including the Control
Certificates themselves.
95. Turkey has clarified that it grants Control Ce rtificates under the TRQ regime and to importers
of rice from the European Communities under a separate quota regime.
Q61. (Both Parties) In paragraph 27 of the provisional version of its oral statements,
Australia indicates that "[i]f the Panel finds th at Turkey has in fact adopted a practice of
denying Certificates of Control altogether... th is could constitute a 'measure of general
application' for the purposes of Article X:2 [of the GATT 1994], whether or not the Letters of
Acceptance themselves can be enforced". Could the Parties comment on this statement.

96. Turkey's decision not to issue Control Certificat es at the over-quota rates of duty, which were
operationalized through the Letters of Acceptance, is a "measure of general application" for purposes
of Article X:2 of the GATT 1994. In United States – Restrictions on Imports of Cotton and Man-
made Fibre Underwear , the Appellate Body upheld the panel's finding that a country-specific
safeguard was a "measure of general application" under Article X:2 because it "affects an unidentified
number of economic operators, including domestic and foreign producers."
42
97. In this dispute, each Letter of Acceptance applies to all non-TRQ rice trade, with the
exception of trade governed by the EC Quota Arra ngement, and Letter of Acceptance 390 confirms
that the Letters are part of a policy governing all imports of paddy and milled rice outside the TRQ.
Thus, the ban on the issuance of Control Certificates applies to all trade outside the TRQ regime, and
it affects an unknown number of potential rice exporters from Egypt, the United States, and other
WTO Members, as well as Turkish importers, millers , producers, wholesalers, packers, retailers, and
consumers.
98. With regard to Australia's second point, the United States has provided ample documentary
evidence that the Letters are being enforced – which will be further supplemented by the Mehmetoglu
court documents – and that such Letters amount to more than individual instances of denial, but rather
to a blanket ban. In any event, the Appellate Body in the 1916 Act dispute found that mere non-

42 United States – Restrictions on Imports of Cotton and Man-made Fibre Underwear,
WT/DS24/AB/R, adopted February 25, 1997, page 21. The Appellate Body further noted that "[t]he essential
implication [of Article X:2] is that Members and ot her persons affected, or likely to be affected, by
governmental measures imposing restraints, requirements and other burdens, should have a reasonable
opportunity to acquire authentic info rmation about such measures and accord ingly to protect and adjust their
activities or alternatively to seek modification of such measures." See also United States – Restrictions on
Imports of Cotton and Man-made Fibre Underwear, WT/DS24/R, adopted February 25, 1997, para. 7.65.

enforcement of a measure does not preclude a finding of WTO-inconsistency. In that dispute, the
measure at issue had never been enfo rced by the United States. By c ontrast, in the instant dispute the
United States already has provided several instances where MARA has enforced the ban.
Q62. (United States) In its first submission the United States refers to three importers who
were allegedly denied Certificates of Control to import rice into Turkey (Torunlar,
Mehmetoglu, and ETM). Could the United States indicate additional cases where the
importation of rice into Turkey was denied.

99. Prior to the first substantive meeting of the pane l with the parties, Turkish importers had been
extremely open and helpful in discussing Turkey's import licensing regime for rice and providing
illustrative documentation.43 After the first substantive meeti ng, the United States contacted several
importers to solicit further documentation that w ould help to answer the panel's questions.
Unfortunately, since the panel meeting most of th e importers have become unwilling to provide such
information. One importer contacted by US offici als already had been provided with a copy of the
panel's confidential questions from an unknown source. Thus, the United States is not able to provide
further elaboration on this question or questions 64 through 66.
Q63. (Both parties) During the first substantiv e meeting with the Panel, Turkey asserted that
the case of the difficulties faced by Torunlar in trying to import rice was exceptional.

 (c) Can the United States specify the origin s of rice imported by the three importers
identified in its first submission (Torunlar, Mehmetoglu, and ETM).

 (e) Can the Parties provide information regarding the importance and share of
these three importers (Torunlar, Mehmetoglu, and ETM) in total imports of rice
into Turkey and, more specifically, in impo rts of US rice into Turkey during the
relevant period.

100. Torunlar, Mehmetoglu, Goze, and Akel are the top Turkish rice importers. Torunlar, Goze,
and Akel import paddy rice from the United States , and Mehmetoglu imports Egyptian milled rice.
According to officials at the US Embassy in Anka ra, these four companies account for approximately
90 per cent of the imported rice in Turkey. The United States is unable to provide more detailed
information (see answer to question 62).
Q64. (United States) In paragraph 28 of its first submission, the United States asserts that one
importer, Torunlar, has been trying since 2003, without success, to import rice - and to get
previously imported rice out of the warehouse - on the strength of a Certificate of Control. Was
Torunlar seeking to import rice at the MFN rate of duty, under the tariff quota system, or both?

101. See answer to question 62.
Q65. (United States) In paragraph 30 of its first submission, the United States asserts that
Torunlar had previously had no problems obtainin g a Certificate of Control to import rice into
Turkey. Can the United States clarify when, and how many times, had Torunlar obtained
Certificates of Control for the importation of rice.

102. See answer to question 62.

43 See, e.g., Exhibits US-22, US-23, US-28, US-29, US-30, US-31, US-32, US-33, US-34, US-39,
US-40, US-41, US-42, and US-44.

Q66. (Both Parties) In paragraph 31 of its first submission, the United States asserts that
Torunlar's lawsuit against the Ministry of Ag riculture and Rural Affairs (MARA) "is still
pending", making reference to a letter from th e Ankara Governorship Province Agriculture
Department (Exhibit US-33). What is the current status of the lawsuit to date?

103. See answer to question 62.
Q69. (United States) In paragraph 41 of its first submission, the United States notes that
Article 2 of Communiqué No. 25445 ("Application of Tariff Quota for the Importation of Some
Species of Paddy Rice and Rice"), concerning the domestic purchase requirement, "... specified
that the sources of the rice that had to be purchased in order to benefit from the reduced tariff
rates under the TRQ were TMO, Turkish produ cers, or Turkish producers associations, and
rice imports would be allocated according to the amount of rice one wanted to import". Can
the United States identify the specific section of Article 2 where this is stated.

104. Article 1, rather than Article 2, of Communiqué No. 25445 provides that rice imports would
be allocated according to the amount of rice an impor ter wished to import. As the United States notes
in paragraph 41 of its first written submission, this first opening of the TRQ, as contrasted with the
two most recent TRQ openings, does not provide the precise quantities of domestic rice that an
importer must purchase in order to import. It appears that the amount of rice that must be purchase
domestically is left to the discretion of TMO.
105. Furthermore, the United States was incorrect in asserting that "the sources of the rice that had
to be purchased in order to benefit from the reduc ed tariff rates under the TRQ were TMO, Turkish
producers, or Turkish producers associations." Unde r this first opening of the TRQ, importers were
required to purchase domestic rice from TMO. FT U did not provide importers with the option of
purchasing rice from Turkish producers or producer associations until the second and third openings
of the TRQ.
Q70. (United States) In paragraph 100 of its first submission, the United States asserts that
the category of persons who purchase rice from the Turkish Grain Board would "undoubtedly
be domestic producers as well". Turkey responds, in paragraph 100 of its first submission, that
the United States "fails to argue or prove the validity of this assertion and its factual
occurrence". Please provide the basis for asserting that those who purchase rice from the
Turkish Grain Board would necessarily be domestic producers.

106. Letter of Acceptance 1795 clarifies that MARA will not grant Control Certificates to
importers who do not purchase domestic paddy rice from the Turkish Grain Board or Turkish
producers or producer associations. In the most recent opening of the TRQ, an importer wishing to
import rice needed to purchase a larger quantity of domestic paddy rice than the amount of rice the
importer wanted to import in order to realize the importation. Under this scheme, as a theoretical
matter anyone can import rice who purchases paddy rice. The domestic purchase requirement in
effect restricts importation to those entities with milling capacity. Thus, for greater precision, the
reference to domestic producers in paragraph 1 00 was meant to refer to producers of rice for
consumption (i.e., millers), not to growers.
107. As an initial matter, the domestic purchase requireme nt is more onerous for importers that are
trying to import milled rice than paddy rice. This is most likely by design as Turkey wants to develop
its milling capacity so it attempts to discourage im ports of milled rice. Turkey's domestic tariff
schedule, which provides for a much higher MFN rate for milled rice (45 per cent ad valorem) than
for paddy rice (34 per cent ad valorem), confirms that intention.

108. In any event, non-millers would have no reas on or desire to purchase paddy rice, not to
mention the large quantities of paddy rice that ar e necessary to import milled rice under the TRQ.
Paddy rice needs to be further processed and would not be sold to consumers in raw form. For an
entity without milling capacity, this rice is useless, and milling facilities are not a minor investment.
Building and maintaining a rice milling facility requi res the investment of several hundred thousand
to several million US dollars to e ngineer a system of sophisticated equipment in an adequate building
with storage capacity. It would require the perm anent installation of bulky machinery, such as:
shellers to remove the husk; destoners to remove small foreign material; millers to remove bran
layers; polishers to whiten the kernel; sorters to remove the broken pieces; and a host of conveyers
and holding tanks to keep the system running smoot hly. As a consequence, Turkish packagers,
retailers, and consumers would not have the capacity or the desire to purchase paddy rice and,
therefore, it is hardly surprising that the three ma in importers of US rice – Torunlar, Akel, and Goze –
have large milling facilities.
109. Given these factors, it is clear that the requirement to purchase domestic paddy rice imposes a
significant impediment to those entities wanting to import rice, thereby ensuring that only importers
with milling capacity would actually import rice into Turkey.
Q72. (Both Parties) Can Turkey comment on the United States' assertion contained in
paragraph 123 of its first submission, that "Tur key ensures that the full amount of the quotas
cannot be reached by setting the domestic purchase requirement so high that the entire Turkish
domestic production of rice would be purchased by importers before the in-quota amount was
reached" and that, "[b]ased on the levels of domestic purchase set forth thus far, there is no way
for importers to be able to import anywhere approaching the 300,000 metric ton limit on milled
rice imports." If that were the case, please refer in particular to the reasons Turkey would
have, if any, in setting the import quotas above the actual level of possible realisation of imports.
Does the United States have any comments on the matter?

110. Turkey's total rice imports in MY 2001/200 2 and 2002/2003 were approximately 300,000
metric tons and 325,000 metric t ons, respectively. However, the domestic purchase requirement is so
large that the alleged 300,000 metric ton (milled rice equivalent) cap (or 500,000 metric tons of paddy
rice under the conversion factor) cannot be reached.
111. Total paddy rice production in Turkey was 415,000 metric tons in MY2003/2004, 500,000
metric tons in MY2004/2005, and 600,000 metric tons in MY2005/2006, for an average of 505,000
metric tons per marketing year.
44 The most generous domestic purchase requirement in the most
recent TRQ opening was for importers who wanted to import paddy rice and purchased domestic
paddy rice from Turkish producers or producer asso ciations in certain designated provinces.
Pursuant to the first row of the chart contained in the September 2005 Notification, such importers
could import 800 kilograms of paddy rice for every ton of domestic paddy rice they purchased, for a
ratio of 1:1.25. 45 Assuming that no milled rice was importe d and all paddy rice could be imported
using the least onerous ratio available, importers would have to purchase 62 5,000 metric tons of
paddy rice in order to import 500,000 tons of paddy rice. Turkey's average paddy rice production in
the past three marketing years is 505,000 metric tons. The 625,000 metric ton figure is not only much
larger than the average, but it is larger than the 600,000 metric tons of paddy rice produced in
MY2005/2006, Turkey's largest harvest to date.

44 Turkish paddy rice production was 360,000 metric tons in both MY2001/2002 and MY 2002/2003,
before increasing rapidly overt the past three years. This is probably not a coincidence, but the intended effect
of Turkey's import licensing system. Because Turkish producers know that their entire crop will be purchased at
prices that are significantly higher than the world pri ce, they are encouraged to produce larger quantities of
paddy rice each year, thereby diminishing the need for imports over time.
45 See Exhibit US-11.

112. In fact, it is not possible to even approach the cap, because the scenar io outlined above is
unrealistic. Egypt exports milled rice to Turkey, and the domestic purchase ratio for importing milled
rice is much more onerous than the ratio for impor ting paddy rice: importers need to purchase two or
three times the quantity of domestic rice than the amount of milled rice they want to import. Second,
there is a footnote to the first row of the chart contained in the September 2005 Notification. The
footnote provides that the domestic purchase requirement is much larger with respect to imports from
certain other enumerated provinces which, inter estingly enough, account for approximately 80-85
per cent of Turkish paddy rice production. For those purchasing paddy rice from these provinces –
most likely the majority – importers would need to purchase nearly two times as much domestic
paddy rice as the amount of paddy rice they wanted to import, and nearly three times as much
domestic paddy rice as the amount of milled rice they wanted to import.
Q73. (Both Parties) In paragraph 23 of the written version of its oral statements, Australia
indicates that "... WTO jurisprudence supports th e view that the imposition of an 'additional
requirement' or an 'extra hurdle' on imported products, when compared to like domestic
products, constitutes less favourable treatment ..." Australia adds that "these 'extra hurdles'
need not be onerous in commercial and/or practical terms to be inconsistent with Article III:4 of
GATT 1994". Could the Parties comment on this statement.

113. The United States agrees with Australia. In pa ragraph 97 of its firs t written submission, for
example, the United States noted that the Canada – Wheat panel found that measures are inconsistent
with Article III:4 of the GATT 1994 if they impos e requirements on foreign products that are not
imposed on domestic products.
46 The panel noted that Article III:4 did not contain a de minimis
exception, and the fact that an extra requirement on an imported product might not be onerous in
commercial and/or practical terms did not change the fact that it was still an additional requirement to
which the like domestic product was not subject and thus was inconsistent with Article III:4.
47
114. Previous reports lend support to this interpretation of Article III: 4. First, the Appellate Body
in the Section 211 dispute found that a provision imposing an additional hurdle on foreign successors-
in-interest that was not imposed on domestic successor s-in-interest was inconsistent with US national
treatment obligations in Article 2(1) of the Pa ris Convention (1967) and Article 3.1 of the TRIPS
Agreement.48 The panel noted that, although these were not the same provisions as Article III:4 of the
GATT 1994, the Appellate Body's reasoning was nevert heless persuasive since the issue was national
treatment.49 Second, the GATT panel in the Malt Beverages dispute found a US requirement that only
imported beer had to be distributed through an "additional level of distribution" – in that case, in-state
wholesalers or other middlemen – constituted less fa vorable treatment for imports and was in breach
of Article III:4 of the GATT.50
Q74. (Both Parties) In pages 2 and 3 of the written version of its oral statements, Korea
indicates that "[n]o matter how much the cost of buying domestic rice was lowered by virtue of
the so called domestic purchase requirement, it can not be denied that importers had to
resource additional funds to purchase domestic ri ce, and foreign rice could be imported more if
such funds were not forced to be used to buy dom estic rice. The main focus in this issue is not

46 Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain , WT/DS276/R,
adopted September 27, 2004, para. 6.185 ("Canada – Wheat (Panel)").
47 Canada – Wheat (Panel), para. 6.190.
48 Canada – Wheat (Panel) , para. 6.185, citing United States – Section 211 Omnibus Appropriations
Act of 1998, WT/DS176/AB/R, adopted February 1, 2002, para. 268.
49 Canada – Wheat (Panel), para. 6.185.
50 Canada – Wheat (Panel), para. 6.185, citing United States – Measures Affecting Alcoholic and Malt
Beverages, adopted June 19, 1992, BISD 39S/206, paras. 5.32 and 5.35.

the price of domestic rice but the additional obligation imposed on the importers". Could the
Parties comment on this statement.

115. Korea is correct that the domestic purch ase requirement imposes an additional cost on
importers seeking to import rice. Importers cannot purchase as much imported rice as they would like
because some of their resources that would have been devoted to purchasing imported rice have to be
expended to satisfy the domestic purchase requirement. This requirement is therefore a restriction on
imports inconsistent with Article XI:1 of GATT 1994.
116. The United States disagrees with Turkey's argumen t that the cost of buying domestic rice is
lowered by the domestic purchase requirement. In orde r to reach this conclusion, Turkey completely
ignores the domestic purchase requirement and focuses on the average costs of each ton of rice that is
part of the transaction. But that misses the point . An importer only cares about the total cost of the
transaction, not the average cost of each ton, and no importer, if given the choice, would choose to
purchase two tons of rice to import one ton of rice, if it was possible to import that one ton of rice
without domestic purchase.
Q75. (Both Parties) Two of the Third Parties in their oral statements have presented views on
the applicability of the Agreement on Trade-Related Investment Measures (TRIMs Agreement).
China in paragraphs 4 and 5 of the provisional version of its oral statement, asserted that
"Turkey ignores the fact that the US fails to defi ne what 'trade-related investment measure' is
and to prove Turkey's measure constitutes a TRIM"; and adds that "[i]n no case it is proper to
bring a measure out of the coverage of TRIMs Ag reement under the jurisdiction of it." Korea,
in page 3 of the written version of its oral statement, noted that the TRIMs Agreement can only
be applied to investment measures, which must h ave both a trade and an investment element.
In the case of the domestic purchase requirement, it asserted that "there does not appear to be
an investment element", and if so, "it can not be an investment measure, therefore the TRIMs
Agreement could not be applied." Could the Parties please commen t on the assertions made by
China and Korea in their oral statements.

117. The proposed interpretation of China and Korea is not consistent with the text of the TRIMs
Agreement. As the United States explains in pa ragraphs 110-112 of its fi rst written submission, the
TRIMs Agreement does not define what are "invest ment measures related to trade in goods" that
would breach Article III:4; instead, it provides a non-exhaustive "Illustrative List" of such measures in
the Annex to the Agreement. A ccordingly China is wrong to claim that the United States has an
obligation to define a TRIM. Nor does the TRIM s Agreement impose a separate requirement that a
measure must satisfy in addition to the illustrativ e list in order to be in breach of the TRIMs
Agreement. To satisfy the requirements of paragr aph 1(a) of the Annex, and thereby prove that a
measure is inconsistent with Article 2.1, the United States must demonstrate that the domestic
purchase requirement mandates that importers purchase domestic products and that importer
compliance with the domestic purchase requirement is necessary to obtain an advantage. Turkey's
domestic purchase requirement satisfies both elements: Turkey requires importers to purchase
domestic rice in certain specified quantities, a nd fulfilling the domestic purchase requirement is
necessary to obtain an advantage, namely importi ng rice under the lower rates of duty under the TRQ
regime. Thus, Turkey has breached Article 2.1 and paragraph 1(a) of Annex 1 of the TRIMs
Agreement.
118. And in any event, the TRIMs Agreement does not li mit the type of "investment" at issue in an
"investment measure." A definition of the term "i nvest" is: to "expend (money, effort) in something
from which a return or profit is expected, now esp. in the purchase of proper ty, shares, etc., for the
sake of interest, dividends, or profits accruing from them."
51 Thus, an investment is an expending of

51 The New Shorter Oxford English Dictionary, Volume I, p. 1410.

money in order to realize a profit. The definition confirms the traditional identification of investing in
property or the stock market, but recognizes that such are only examples how one may "invest." Any
productive activity will involve investment.
119. Taking the ordinary meaning of the term "t rade-related investment measure," Turkey's
domestic purchase requirement is a TRIM that is inconsistent with Article 2.1 of the TRIMs
Agreement. It requires importers to expend money in Turkey to purchase domestic rice as a condition
for importation, which importers must do to make a profit. And the requirement is related to trade
because it is a condition that importers must fulfill in order to import rice into Turkey. The domestic
purchase requirement is really no different than a local content requirement, where an auto
manufacturer is required to source a certain percen tage of parts and components domestically as a
condition for being able to build automobiles in the host country (and ostensibly turn a profit). Both
domestic purchase and local content requirements affect investments in a country's industry and affect
trade flows and, therefore, both are subject to the disciplines of the TRIMs Agreement.
Q76. (United States) Can the United States identify which are the trade-related investment
measures it is challenging in the current proceedings.

120. As discussed in the answer to Question 75, the domestic purchase requirement is the trade-
related investment measure that the United States is challenging in this proceeding.
Q77. (Both Parties) In paragraph 122 of it s first submission, Turkey asserts that the
deadlines for the submission of applications for import licenses was extended twice in 2005, as
"evidence that Turkey did not intend to discourage full utilization of the quotas."

 (a) Can the United States comment on this assertion.

121. Turkey's assertion is incorrect. As discussed in the US answer to Question 72, it is not
possible for the 300,000 metric ton (milled rice equivalent) cap to be reached, given the current size of
Turkey's crop of paddy rice and the large quantities of domestic paddy rice that importers are required
to source domestically as a condition for importing ri ce into Turkey. Turkey claims that the TRQ
provides a benefit to imported rice and actually pr ovides an advantage to foreign rice over domestic
rice (despite the fact that Turkey requires an impor ter to purchase a larger quantity of domestic paddy
rice than the amount of rice the importer wishes to import). If that were the case, one would expect
that importers would use up the quota well before the end of the application period. The fact that
Turkey has been forced to exte nd the deadlines for importers to apply for a portion of the TRQ
demonstrates the fallacy of that argument.
Q78. (United States) Can the United States comment on Turkey's assertion contained in
paragraph 125 of its first submission, that it has provided "relevant data and trade statistics
clearly indicating that MFN trade in rice has ef fectively occurred throughout the operation of
the TRQ regime."

122. The only information that Turkey has provided on MFN trade is the chart contained in
Annex 20. The United States noted in its response to Question 4 that the chart raises many more
questions than it answers and has not been substantia ted with documentary evidence. Further, Turkey
has not rebutted any of the documentary evidence pr ovided by the United States, including the Letters
of Acceptance, rejection letters, court documents, and newspaper articles, which indicate that MARA
has imposed a ban on rice trade outside the TRQ regime.
Q81. (Both Parties) In its oral statement, Th ailand has raised the issue of "the inconsistency
of Turkey's rice TRQ regime with its obligations under Article II of GATT 1994 with respect to
its Schedule of Concessions". Further, in par agraph 5 of the written version of its oral

statement, it based its argument on "the factual evidence submitted by the United States,
[according to which] the treatment actually a ccorded by Turkey under its TRQ regime is 'less
favourable' than that provided in its Schedule to all Members." Can the Parties comment on
the issue raised by Thailand in its oral statement.

123. The United States did not make an Article II cl aim in its request for the establishment of a
panel. Therefore, this issue is outside the panel's terms of reference.
Q83. (Both Parties) In page 1 of the written version of its oral statements, Korea indicates
that "the disproportionate number of certificates for out-quota imports should be explained by
Turkey in order to avoid the suspicion that the issuance of out-quota certificates have been
deliberately controlled". In page 2, Korea al so notes that "the proportion of out-quota
certificates to in-quota certificates in 2006 is much higher than it is for the years 2004 and 2005"
and states that "[a]n explanation for this should be sought so as to avoid the assumption that
Turkey loosened its grip on out-quota certificat es only after having been challenged in the
WTO". Could the Parties comment on these statements.

124. If Korea's statement on page 1 refers to the di sproportionate number of Control Certificates
that MARA purportedly granted in 2006, the United St ates agrees that there is no obvious explanation
for why out-of-quota trade in rice would have dramatically increased sometime in 2006, which is
when the DSB established this pa nel, whereas trade in 2004-2005 w as largely confined to the TRQ
regime. In any event, as noted by the United States in paragraphs 19-21 of its oral statement as well
as in its response to Question 4, the numbers provided in Annex 20 for 2006 do not appear to make
sense, and no conclusions can be drawn without examining the actual Control Certificates. For
instance, Turkey's assertion that it has granted Cont rol Certificates for 400,000 metric tons of US rice
as of September 2006 does not correspond with the fact that the United States has thus far exported
approximately 18,000 metric tons of rice to Turkey in 2006 and has never exported anywhere close to
400,000 metric tons of rice to Turkey.
Q84. (Both Parties) In the hypothetical case that Certificates of Control do not qualify as
import licenses under the Import Licensing Agreemen t, would it automatically flow that such
documents cannot qualify as import licenses under GATT 1994 either?

125. No. The definition of "import licensing" in Article 1 of the Import Licensing Agreement
provides relevant context for interpreting the term "import license" in Article XI:1 of the GATT 1994
but Article 1, by its very terms, limits the de finition set forth therein to the Import Licensing
Agreement. As the United States discussed in para graphs 59-63 of its firs t written submission, the
ordinary meaning of the term "import license" is formal permission from an authority to bring in
goods from another country. A Certificate of Control from MARA constitutes formal written
permission from the Government of Turkey to import goods from another country. Thus, a Certificate
of Control is an "import license" within the ordinary meaning of those terms.
Q91. (Both Parties) Is the Turkish Grain Board a state trading enterprise as defined in GATT
Article XVII and the Understanding on the Interpretation of Article XVII of the GATT 1994?

126. Yes. Paragraph 1 of the Understanding on th e Interpretation of Article XVII of the GATT
1994 provides the following "working definition" of a state-trading enterprise:
Governmental and non-govern mental enterprises, including marketing boards, which
have been granted exclusive or special rights or privileges, including statutory or
constitutional powers, in the exercise of which they influence through their purchases
or sales the level or direction of imports or exports.

127. The Turkish Grain Board (TMO) is an entity of the Turkish government that has been granted
exclusive rights and privileges through various Mini sterial Decrees. By exercising those rights and
privileges, TMO is able to influence directly th e importation of rice into Turkey. TMO administers
all trade in rice under the TRQ regime and, as MARA has banned MFN trade in rice, TMO
administers all trade in rice in the Turkish market.
128. TMO possesses a myriad of tools with which to in fluence and control the Turkish rice trade.
All importers need a receipt from TMO documen ting that the domestic purchase requirement under
the TRQ has been satisfied. If an importer does not present that documentation to FTU, FTU will not
grant a license to import under the TRQ. The dom estic purchase requirement can be met by an
importer purchasing domestic paddy rice from Turkis h producers or producer associations or from
TMO itself. TMO determines the procurement pr ices at which it purchases paddy rice from Turkish
producers and also determines the prices at which it sells such rice to importers as a condition upon
importation, and the TMO prices influence rice pr ices in the Turkish market. Additionally, the
domestic purchase requirement itself is set each year by TMO officials after TMO holds discussions
with Turkish producers on the projected size of the impending rice crop.

129. Lastly, under the TRQ regulations TMO is perm itted to import 50,000 metric tons of milled
rice in order to help stabilize the domestic market in the event that prices increase.
52 A July 13, 2006,
Turkish newspaper article entitled "T MO is given priority to import rice to prevent extra high import
prices" discusses TMO's ability to influence domestic prices by, among other things, importing rice.
The article, which discusses the possi bility that TMO would be given priority by FTU to import the
28,000 metric tons of milled rice under the EC Quota Arrangement, summarizes a conversation with
Mr. Sukru Yildiz, the General Manager of TMO. In that conversation, Mr. Yildiz stated that FTU's
decision to grant permission to TMO to import duty free rice was expected to stabilize prices in the
market. Mr. Yildiz added that TMO did not plan to import at that time since the market appeared to
be stable, but it would do so on an expedited basis if prices increased during Ramadan.
53

52 Exhibits US-5 and US-10.
53 Exhibit US-20.

ANNEX C-2

REPLIES BY TURKEY TO QUESTIONS POSED BY THE PANEL
AFTER THE FIRST SUBSTANTIVE MEETING
(30 November 2006)

Q1. (Both Parties) The United States has provided statistics on, inter alia , Turkish
production, consumption and imports of milled rice in Exhibit US-45 attached to its first
submission. Could the United States confirm the so urce of this data. The statistics provided by
the United States go from 2001/2002 to 2006/2007. Can the United States confirm which of these
figures correspond to actual events and which a re projections. Can Turkey confirm the figures
provided by the United States.

Turkey does not confirm the import figures provided in Exhibit US-45 to the first submission of the
United States. Turkey's actual yearly import figures for milled rice are attached in Annex TR-23. The
actual production and consumption figures for milled rice in Turkey are attached in Annex TR-24.

Q2. (Turkey) In paragraph 11 of its first s ubmission, the United States asserts that "Turkey
produced 234,000 metric tonnes of milled rice in 2003, 270,000 metric to nnes of milled rice in
2004, and 300,000 metric tonnes of milled rice in 2005". In paragraph 12 of its submission, the
United States adds that "Turkish consumption was 545,000 metric tonnes in 2003, 550,000
metric tonnes in 2004, and 560,000 metric tonnes in 2005". Could Turkey comment on the
figures provided by the United States.

Turkey draws the attention of the Panel to Annex TR -24. Turkey submits that the difference between
the figures is not great. With respect to the increase in production over time, reference should be made
to the answer provided by Turkey to question 49(c) below.

Q3. (Both Parties) Can the Parties also provide monthly information on imports into Turkey
of, separately, paddy, brown and milled rice, for the period from July 2003 to the end of 2006
(including estimates, as appropriate), by country of origin.

Turkey's rice import figures, by month and organized by country of origin, types of rice, years,
quantity and value, are provided in Annex TR-25.

Q4. (Both Parties) In paragraph 26 of its first submission, Turkey asserts that "from 2003 to
date, Turkey has approved a total of 2,223 Certific ates of Control, allowing a total importation
of 2,264,857 tonnes of foreign rice (paddy, brow n and milled). Of the aforementioned quantity,
497.469 tonnes of rice equivalent have been a llocated under the TRQ system since January
2004." In paragraph 65, Turkey asserts that "a high number of Certificates of Control (i.e.,
2,223 between 2003 and 2006) were approved by MARA, corresponding to large amounts of
imported rice (i.e., 939.013 tonnes of rice equivalent between 2003 and 2006), both in relation to
MFN and TRQ trade."

 (b) Could Turkey specify the quantities of each type of imported rice (i.e., milled,
paddy and brown) that correspond to the figure of 497,469 tonnes of rice
equivalent, which would have been allocated under the TRQ system since
January 2004. Could Turkey also specify the corresponding quantities imported
under this period outside of the TRQ.

Turkey's in-quota and over-quota importation figures are provided in Annex TR-8.

 (c) Could Turkey specify the quantities of each type of imported rice (i.e., milled,
paddy and brown), broken-down into MFN and TRQ imports, that correspond
to the figure of 939,013 tonnes of rice equivalent imported between 2003 and
2006.

The import data, broken down into types of rice and into MFN and TRQ imports for the years 2004 to
2006, are provided in Annex TR-8. The data for 2003 broken down into types of imported rice are
provided in Annex TR-26 herewith.

As shown in Annex TR-8, the total imports of milled rice equivalent between 2004 and 2006 amount
to 568,650 tonnes. Since there was no tariff-rate-quot a in 2003, adding the 2003 figure of milled rice
equivalent import of 370,363 tonnes to the figure for 2004 to 2006 (i.e., 568,650 tonnes), the result is
a total milled rice equivalent importation of 939,013 tonnes between the years 2003 and 2006.

Q5. (Both Parties) Can the Parties provide monthly information on Turkey's domestic
production of, separately, paddy, brown and milled rice, for the period from July 2003 to the
end of 2006 (including estimates, as appropriate).

The Turkish harvest season begins in mid-Septembe r and lasts until the end of November each year.
Therefore, production figures are available only on a yearly basis. They are provided in Annex
TR-24.

Q6. (Both Parties) Can the Parties provide monthly information on Turkey's domestic
consumption of, separately, paddy, brown and mille d rice, for the period from July 2003 to the
end of 2006 (including estimates, as appropriate).

The consumption figures are provided on an annual b asis in Annex TR-24. The consumption levels
do not change considerably on a monthly basis. Therefore, average monthly consumption can be
calculated by total consumption divided by 12.

Q7. (Both Parties) Can the Parties provide th e following information regarding Turkey's
monthly average domestic prices of, separately, paddy, brown and milled rice, for the period
from July 2003 to the end of 2006 (including est imates, as appropriate): (i) average prices for
domestic production in the Turkish market; (ii) landed CIF prices; and, (iii) prices quoted by
the Turkish Grain Board. Please indicate the source of your estimates and provide evidence, as
appropriate.

In relation to point (i) of the question, reference should be made to Annex TR-27.

With respect to point (ii) of the question, the monthly landed CIF prices are provided by Turkey in
Annex TR-28. Turkey submits, however, that some recorded CIF prices may not be indicative of the
real CIF values due to some importers under-declar ing value for purposes of tax avoidance or tax
minimization.

Finally, in relation to point (iii) of the question, reference should be made to Annex TR-29. As the
TMO functions to regulate the market, the price decl ared by the TMO is the ceiling price determined
for the best quality product. It is not necessarily the purchase price through which the TMO buys rice
from the producers. In fact, the average TMO pur chase price ends up being close to the commercial
market price.

Q8. (Turkey) In addition to the information re quested in the previous question, can Turkey
also indicate the volume of imports of, separ ately, paddy, brown and milled rice, for the

indicated period (July 2003 to 2006), by country of origin, which were made within the tariff-
rate quota (TRQ) and those that were made outs ide the TRQ, specifying the periods for which
the TRQ was opened in each of these years.

In-tariff quota and over-tariff quota importation figur es by volumes, values, and countries of origin
are provided by Turkey in Annex TR-8.

Q9. (Turkey) Can Turkey provide detailed data on rice sales and purchase by the Turkish
Grain Board since September 2003, in particular the prices and customers involved in the
individual transactions, and whether the transact ions in question were linked to imports in any
way?

Turkey submits that, in this respect, reference should be made to its Annexes TR-29 and TR-30.

Q10. (Turkey) Can Turkey please provide the so urce of data that it has used to determine
relative average import cost of a tonne of rice as set out in paragraph 95 of its submission.

The FOB value of paddy rice is taken as 295 US$/MT from paragraph 51 of the first submission by
the United States. To reach the CIF value of 370 US $/MT, the cost of insurance and freight from the
USA to Turkey amounting to 75 US$/MT, which is taken from importers' declarations, is added to the
FOB value. Moreover, to be able to calculate th e average mixed cost of importation and domestic
purchase to the importer, the average price (640 YTL/MT or 457 US$/MT) of domestic paddy sales is
provided by TMO (reference must be made to Anne x TR-27). The relative average import costs for
both MFN and TRQ trade have been calculated on the basis of these data.

Q12. (Turkey) In the course of the first subs tantive meeting, Turkey has indicated that the
figures used by the United States in its calculations ( inter alia , in Exhibit US-52) are not an
adequate reflection of Turkey's domestic prices fo r rice. Can Turkey indicate a source that, in
its view, would provide a more adequate estimate of the monthly domestic prices of milled,
paddy and brown rice in its market.

Turkey considers that the data provided in its A nnex TR-27, which indicates the average price that
emerged in the market (i.e., 640 YTL/MT), is a mo re accurate and reliable source. In fact, although
the price that emerged from the domestic purchase involving the TMO is 612 YTL/MT, Turkey
submits that the average price of 640 YTL/MT better reflects the actual market price, since the share
of TMO only represents 2.4% of purchases.

Q13. (Both Parties) In paragraph 4 of its closing statement during the first substantive
meeting with the Panel, the United States ref erred to "a bilateral agreement between the
European Union and Turkey [under which] the European Union has an annual quota of 28,000
tonnes of milled rice".

 (a) Please provide the provisions of that agreement, relevant to the importation of
rice into Turkey.

Under Article 3 of Decision No: 1/98 of the EC -Turkey Association Council of 25 February 1998 on
the trade regime for agricultural products,
1 Turkey commits to open annually a tariff quota for 28,000
tonnes of rice originated in the EC.2

1 Decision No. 1/98 of the EC-Turkey Association Council of 25 February 1998 on the trade regime for
agricultural products, Official Journal of the European Communities, 20.3.98, L 86/15.
2 See Annex TR-31.

 (b) Explain whether European imports of rice into Turkey are treated differently
from other imports.

Imports of rice from the EC are treated like all othe r MFN rice imports into Turkey. However, for the
volumes of rice imported from the EC under the TRQ provided by the B ilateral Agreement, a
preferential tariff applies.

 (c) More specifically, explain whether impo rters of European rice are required to
obtain Certificates of Control in order to import rice into Turkey.

Yes. Certificates of Control are required for all rice imports, irrespective of the country of origin,
type of rice, MFN or TRQ trade, and nature of importer.

Q14. (Both Parties) Can the Parties describe, in chronological order, the steps that are
necessary to import rice into Turkey, in terms of the different documents that must be obtained
and other formalities that have to be complete d, identifying the authorities involved in each
step. Please make reference to the relevant legal instruments and provide evidence where
appropriate.

In general Turkey points out that all products set out in Annex VI-A
3 of the Communiqué No. 2006/5
on the Standardization in Foreign Trade4 are subject to Certificates of Control. The products set out in
Annex VI-A of Communiqué No. 2006/5 are products wh ich are considered to be risky from a health
and safety or environmental perspective. On the food side, these products include animal products,
fresh and dried fruits and vegetables, cereals, proc essed products, etc. Certificates of Control are not
required for products set out in Annex VI-B of the Communiqué on the Standardization in Foreign
Trade. The reason for this difference is that, in genera l, the products indicated in this latter list are not
considered to pose a risk for health or the envir onment. On this point, see in more detail the answers
to question 35 below.

Certificates of Control for agricultural and food pr oducts are approved by MA RA and, subsequently,
are required by the Customs Administration for the importation of food and feed products of animal
and non-animal origin in accordance with Commun iqué No. 2006/5 on Standardization of Foreign
Trade.

The steps for the approval of Certificates of Cont rol for products agriculture and food products are
outlined in Communiqué No. 31 on the Approval of Control Certification at the Importation of
Foodstuffs and Packaging Materials that come into Contact with Foodstuffs and on Control
Procedures at Importation Stage. Turkey wishes to emphasize that Certificates of Control are not
import licences. These certificates are approved as a part of process of customs control and
verification. They pursue, inter alia, sanitary and phytosanitary objectives.

According to Communiqué No. 2006/5 on Standardization of Foreign Trade, Certificates of Control
approved by MARA should be presented to the Custom s Offices at the point and time of importation.
Turkey considers that the relevant procedures can be divided into two stages: the "approval of the
Certificate of Control" stage and the "importation of the products" stage.

3 See Annex TR-3.
4 See Annex TR-1.

(i) Approval of the Certificate of Control

For the products set out in Annex VI-A of the Communiqué No. 2006/5 on the Standardization in
Foreign Trade, the procedures requested at the appr oval stage of the Certificate of Control are the
following:

Step 1: The owner/authorized person of the importing company must present the following
documents to the Ministry of Agriculture and Rural Affairs (MARA) during the application:

• Form of the Certificate of Control, duly compiled ( i.e., properly typed or filled-out by
computer), containing no erasures or abrasions, signed and sealed by the authorized
person/persons of the company under their name/names and surname/surnames;

• Proforma invoice;

• Legal entity form: the company must declare, in its first application after 30 June
2002 and upon the request by MARA, that it is officially carrying-out activities in
relation to the product it wishes to import;

• Other documents that must be presented according to the type of the product: no other
additional documentation is required at this stage for the approval of the Certificate of
Control for importation of rice.

 In practice, the form of the Certificate of Control must be filled by the importing company. A
proforma invoice, together with other eventual additional documents, must be attached
therewith. The form, together with the proforma must be put forward to MARA for approval.

Step 2: If all information and documentation put forw ard by the importer to MARA complies with
the requirements set by the law ( inter alia , the product name, the CN code of the product,
relevant information about impor ting and exporting companies, country of origin, etc.), the
Certificate of Control is automatically approved by MARA.

 Should the form and/or its attachments miss any the required information, the importing
company is notified of this shortcoming by MA RA. This importing company is then granted
additional time to complete and submit again its application (if it so chooses). In these cases,
the file and its attachments are inspected again by MARA's officials. If all documentation and
information comply with the requirements set by the law, the Certificate of Control is
automatically approved. If the documentation and the information required do not comply
with the requirements set by the law the application is again rejected.

(ii) Importation of the Product

After the approval of the Certificate of Control, im porters must submit to the provincial directorate of
MARA the following documents.

• Approved Certificate of Control and the attachments thereof;

• Customs Entry Declaration;

• Sanitary or Phytosanitary Certificate, as applicable (this is the phytosanitary
certificate for rice provided by exporters).

For products that are not subject to the Certif icates of Control listed in Annex VI-B of the
Communiqué on the Standardization in Foreign Trade, when the importation of a product is desired,
importers must submit to the provincial directorate of MARA the following documents.

• Customs Entry Declaration;

• List of Ingredients;

• Sanitary or Phytosanitary Certificate

• Legal entity form: the Company establish es, in its first application after the
publication of the Communiqué and upon the request of the Ministry that it is
officially carrying-out activities in relation to the product it wishes to import.

Control procedures at import stage are conducted in a three-step process for products falling within
both Annex VI-A and Annex VI-B . This control is conducted on the basis of Sanitary and
Phytosanitary requirements. These steps are:

• Documentation control: Customs authorities will control the documentation required
by the legislation, which accompanies th e products. However, the control of the
documentation is a process which, for th e products listed in Annex VI-A, already
starts from the approval of the Certificate of Control;

• Identity checks: Customs authorities will compare whether the imported product is
identical and corresponds to the customs declaration;

• Physical inspections: MARA's officials will operate controls on the products,
including organoleptic controls up to the laboratory analyses.

During the importation stage all products are examined according to a process of risk assessment.
Imported products can be subjected to laboratory anal yses, on the basis of Turkish food legislation.
Furthermore, the safety of products is assessed on the basis of quarantine procedures as provided by
Turkey's laws on Plant Protection and Agricultural Qu arantine. If the results of the analyses are in
compliance with the relevant legislation, the products are released for free circulation.

Importation under the TRQ regime

When an importer wishes to import within the TR Q, the relevant documents (including the document
showing purchase of domestic rice) had to be submitted to the Under-Secretariat for Foreign Trade in
order to obtain the import licence and import at reduced duty rates. Obviously, importers also had to
submit all relevant documentation to MARA for approval of the Certificate of Control. The rest of the
import procedure followed what explained in detail above.

Turkey submits that the import procedure which applies for imports at both MFN and TRQ rates is
described in the scheme provided in Annex TR-32.

Q15. (Turkey) Regarding the current status of Turkey's import regime for rice,

 (a) Can Turkey describe the current status of that import regime.

Communiqué No. 2006/05, which provides the legal b asis for the current system, entered into force
on 1 January 2006 and repealed Communiqué No. 2005/ 05. The legal basis of this Communiqué is

Decree No. 2005/9454 on " The Regime for Technical Regulations and Standardization for Foreign
Trade"5 (published on 13 October 2005 in the Offi cial Gazette and numbered 25965). Communiqué
No. 2006/05 is currently in force.

 (b) Are Certificates of Control being issued at present (after September 2006)?

Yes. Certificates of Control have always been approved, including in and after September 2006.

 (c) If so, can Turkey provide any evidence of Certificates of Control issued after
September 2006.

Reference must be made to Annex TR-33, which c ontains the available data compiled by MARA in
relation to the Certificates of Control that ha ve been approved between 2003 and 9 November 2006.
These data have been organized on the basis of count ry of origin, individual Certificate of Control
code, date of application, date of approval, HS code, requested amount of rice for which the
Certificate of Control was approved, date of importation, actual amount of imported rice (i.e., realized
imports), type of rice, and applicable import regime (i.e., MFN and TRQ).

Turkey submits a "coded" version where the compan y-specific references are encrypted in order to
comply with Turkish legislation protecting privacy and secrecy of sensitive commercial information.

 (d) Can Turkey provide any relevant information on whether it has plans to modify
its import regime of rice in the future.

Turkey has no plans to modify its import regime fo r rice. In particular, Turkey wishes to remind the
Panel that is has not opened a new tariff rate quota for rice in 2006 and has stated both in
consultations and before this Panel that it has no intention to do so in the future.

Q16. (Both Parties) Does Turkey's import syst em for rice affect imports from the United
States in particular, or does it apply to all imports in the same way?

Turkey's import system for rice applies to all imports in the same way. In particular, Turkey's MFN
and applied rates of duty apply to imports of rice of any origin in a non-discriminatory fashion.
Importers are free to import from any source at the bound and applied rates, and to market the rice
into Turkey, provided that a Certificate of Cont rol has been approved. The relevant Turkish law
requires importers to obtain a Certificate of Control i rrespectively of the country of origin of the rice
they wish to import.

With respect to the TRQ regime, Turkey has alr eady pointed out that its automatic import licensing
regime, while in force, also applied in a strictly non-discriminatory fashion and that any person, firm
or institution importing rice from any source was equally eligible to apply for, and obtain, an import
license.

Turkey therefore submits that the relevant legisl ation (i.e., the one envisaging the MFN and applied
rates, the Certificate of Control and the TRQ) applies and/or applied to imports of rice from any origin
in a non-discriminatory fashion. In any event, Tu rkey's import regime for rice, as evidenced by the
trade statistics and import data, has not been shown to have been put in place to affect any specific
country exports. Trade flows and imports have alwa ys been dictated by business considerations and
free market choices.

5 See Annex TR-2.

Q18. (Both Parties) It would seem that in so me respects Turkey's import regime for rice has
changed since the initiation of this dispute before the WTO in November 2005. If this is correct,
could the Parties specify:

 (a) The nature of those changes, in cluding their dates and relevant legal
instruments.

 (b) The specific reasons for these changes.

 (c) The potential effects of these changes.

Turkey submits that no change was introduced into its import regime for rice in November 2005 or as
a consequence of the initiation of WTO dispute settlement proceedings.

The only aspect of Turkey's import system for rice that has undergone changes between 2006 and the
present is that of the TRQ regime. This lapsed on 31 July 2006. The TRQ regime was opened only
for a limited amount of time and served a market-s tabilization role. The TR Q regime was naturally
phased-out. It was not repealed as a consequenc e of the initiation of WTO dispute settlement
proceeding. The validity periods of the TRQ system s were always clearly indicated in the relevant
decrees and communiqués.

Q19. (Turkey) Could Turkey specify the reason s for the following statement, formulated in
paragraph 72 of its first submission: "Having conclusively demonstrated that there is no
violation of GATT Article XI, Turkey believes that no further scrutiny should be conducted
under the Agreement on Agriculture."

Turkey believes that the United States has failed to establish a prima facie violation of Article 4.2 of
the Agreement on Agriculture for two reasons. Firs t, Turkey believes that caution is needed in
establishing an automatic violation of Article 4.2 of the Agreement on Agriculture in every instance
where a violation of GATT Article XI:1 is f ound. According to Turkey, a violation of GATT
Article XI:1 does not automatically constitute a violation of Article 4.2 of the Agreement on
Agriculture, unless it is positively established that the measure at stake falls within the scope of, and is
inconsistent with, footnote 1 of Article 4.2 of the Agreement on Agriculture.

Turkey believes that the appropriate legal met hodology should require a se parate scrutiny of the
measures under the Agreement on Agriculture. A vi olation cannot simply be assumed. Turkey
submits that the United States has failed to prove or even adequately argue in which way Turkey's
measures would be inconsistent with Article 4.2 of the Agreement on Agriculture, other than by
means of an automatic extension of their GATT Article XI arguments.

Turkey is not in violation of Article 4.2 of th e Agreement on Agriculture. Turkey noted that the
United States' arguments are based on the incorrect assumption that Turkey's alleged denial of
Certificates of Control and the operation of its TR Q regime amounted, individually or jointly, to
violations of GATT Article XI:1. On this basis, th e United States further argued that the measures
resulted into quantitative restrictions, discretionary import licensing and non-tariff barriers maintained
through state trading enterprises within the meaning of Article 4.2 of the Agreement on Agriculture.

Turkey believes that it has shown that there has never been a denial of Certificate of Controls, that its
TRQ regime was not based on discretionary import licen sing, and that it is not correct to claim that
non-tariff measures were maintained through state tr ading enterprises. Turkey believes it has shown
to the Panel that there is no violation of GATT Ar ticle XI:1. Therefore, even following the reasoning
put forward by the United States, according to wh ich a violation of Article XI:1 in relation to
agricultural products constitutes ipso facto a violation of Article 4.2 of the Agreement on Agriculture,

Turkey believes that no further scrutiny of the specific claim should be conducted and that, on the
basis of the factual evidence that has been offered, the Panel s hould reject these claims, both in
relation to the individual instruments and in their joint operation.

Q20. (Turkey) In paragraph 62 of its first s ubmission, Turkey states that: "[t]he essential
element to establish whether or not any measur e introduced by a WTO Member results in a
quantitative restriction, is the existence of a 'prohibi tion' or 'restriction' of imports. This must
be analyzed and proved both in terms of the de jure and de facto operation of the measure being
reviewed. Only when a de jure and de facto 'p rohibition' or 'restriction' of imports can be
demonstrated, the specific measure being considered would amount to an 'other measure' of the
type that GATT Article XI:1 considers illegal because it institutes or maintains a quantitative
restriction." Does Turkey argue that determining the existence of both
 de jure and de facto
"prohibition" or "restriction" is a necessary precondition to find a violation of Article XI:1 of
GATT 1994?

Turkey argues that, in order for a measure to be in violation of GATT Article XI:1, it is necessary to
establish whether that measure causes a de jure or de facto "prohibition" or "restriction". Clearly, if
there is no de jure or de facto "prohibition" or "restriction", the nature of the measure is of no
relevance and a violation of GATT Article XI:1 cannot be found.

Turkey believes that the test under GATT Article XI :1 is twofold and requires a proper assessment of
the existence of either a de jure or a de facto "prohibition" or "restriction." In particular, Turkey
believes that, alternatively, a de jure or a de facto "prohibition" or "restriction" must be found in order
to establish a violation of GATT Article XI:1. Turkey does not believe that the cumulative
determination of both de jure and de facto "prohibition" or "restriction" is necessary.

In any event, Turkey believes to have provided ample evidence showing that neither a de jure nor a de
facto "prohibition" or "restriction" is to be found in relation to the approval of Certificates of Control,
or its TRQ regime, or their joint operation. In particular, Turkey rejects the existence of a de jure or a
de facto "prohibition." With respect to the de jure scrutiny, Turkey believes that the United States
failed to prove that anything in the relevant Turk ish law institutes or mainta ins an import prohibition.
With respect to the de facto scrutiny, Turkey has provided conclusive evidence in relation to the high
number of Certificates of Control that were a pproved by MARA, both in relation to MFN and TRQ
trade. Turkey has also shown that, while the TRQ was providing an advantage to Turkey's trading
partners, MFN trade was never impaired.

Similarly, Turkey rejects all claims put forward by the United States in relation to the existence of a
de jure or de facto "restriction." Again, under the de jure scrutiny there is nothing in the relevant
Turkish legislation which restricts or affects importation of rice. Under a de facto perspective, Turkey
submits that Certificates of Control were always approved and rejects any instance of inconsistency
with GATT Article XI:1. Turkey also wishes to resp ectfully remind this Panel that the scrutiny with
respect to the existence of a de facto restriction must be particularly balanced.

The United States has not provided any factual evidence supporting its claims. The number of
Certificates of Control approved, together with the lack of any factual evidence provided by the
United States in support of its complaint, suggests that the case brought by the United States is largely
centred on individual rejections, perfectly compatib le with Turkish legislation and with Turkey's
obligations under the WTO.

Q23. (Turkey) In paragraphs 22 and 23 of its first submission, the United States has identified
the existence of documents that it calls "lette rs of acceptance", which would "follow a standard
template, in which Turkey's Minister of Agriculture accepts recommendations from MARA's
General Directorate of Protection and Control to 'd elay' the start date for the period in which

Certificates of Control will be granted." Could Turkey explain what is the legal nature of the
"letters of acceptance" referred to in the United States' first submission?

As indicated in its First Submission
6, Turkey wishes to reaffirm that these documents are mere
instruments of internal communication among Turkish administrators and public officials. These
communications often contain confidential positions a nd/or political statements which are aimed at
developing unofficial policy recommendations.

There is no "standard template" through whic h the so-called "Letters of Acceptance" are
recommended or accepted. Nor is there any rule, pr ocedure or hierarchical legal value that, under
Turkish law, makes the "Letters of Acceptance" enfo rceable by any party within the Turkish legal or
administrative system. Turkey believes that this is a key aspect which should be given adequate
consideration.

The so-called "Letters of Acceptance" are intern al communications which are aimed at developing
unofficial policy recommendations. They are not the official policy measures and should not even be
used to interpret or imply a certain de facto attitude by Turkish authorities. The official trade policy
measures of the Turkish Government are alwa ys duly made public and transparent. The de facto
attitude of the Turkish Government in relation to trade must be determined and judged on the basis of
actual trade figures and volumes. Turkey believes that the trade data and statistics which have been
offered
7 clearly indicate that there has never been a de facto restriction (let alone a prohibition) to rice
imports, which was mandated by the Government. Lower imports may have occurred during certain
times, but that was always consequence of private choices made by importers on the basis of their
commercial considerations and calculations.

The fact that the existence and alleged legal valu e of the so-called "Letters of Acceptance" were
claimed by certain parts of the Turkish admini stration during the course of domestic judicial
proceedings doesn't change their nature of uno fficial, unenforceable and informal communications
which are internal to the administration and aimed at developing or debating policy recommendations.

Q24. (Turkey) If Turkey's Ministry of Agriculture and Rural Affairs (MARA) is the
competent authority to issue Certificates of Control for the importation of rice,

 (a) What purpose do the "letters of acceptance" serve?

Turkey confirms that these documents are mere instruments of internal communication among
Turkish administrators and public officials. They are aimed at developing unofficial policy
recommendations both at intra-ministerial and inter-ministerial levels.

 (b) What is the rationale for the Director ate General of MARA sending such a letter
to the Minister?

The rationale is that of an internal admini strative communication and policy recommendation which
in no way reflects actual policy measures. Internal administrative communications occur
predominantly in written form and follow hierarchical and administrative protocol.

 (c) What legal consequence, if any, would arise from the fact that the Minister signs
such a "letter of acceptance"?

6 See paragraph 78 of Turkey's First Submission.
7 See Annex TR-33.

No legal consequence ensues. There is only an ad ministrative consequence, namely that a certain
administration has put forward a policy recommendation by means of a ministerial-level
communication. This may or may not provide grea ter strength to the actual communication, but it
does not change the nature of the communicati on from that of an informal, unofficial and
unenforceable administrative policy recommendation to that of a binding legal act and enforceable
trade measure.

Q25. (Both Parties) Can the "letters of acceptan ce" constitute a valid legal basis to override
provisions contained in Decrees and Communiqués issued by the Turkish Foreign Trade
Undersecretariat (FTU)?

No, the so-called "Letters of Acceptance" do not cons titute valid legal basis to override any legal act,
including the Decrees and Communiqués issued by UFT.

For purposes of this question, Turkey wishes to reca ll that the legislation regulating foreign trade,
which is issued by the Foreign Trade Undersecret ariat, sets out the general principles which are
applicable. The legislation prepared by MARA in relation to foreign trade sets out specific rules of
conduct and control. This legislation is then issued by UFT. Therefore, the two sets of legislation can
never "override" each other. In any event, as alrea dy indicated, the so-called "Letters of Acceptance"
are neither legislation nor regulation, but simply internal communications within the administration.

Q27. (Turkey) In paragraph 78 of its first s ubmission, referring to the documents identified
by the United States as "letters of acceptance" , Turkey has stated that "[t]hese communications
often contain confidential positions and/or polit ical statements which are aimed at developing
unofficial policy recommendations".

 (a) Can Turkey elaborate on this statement.

Please see reply to question 23.

 (b) More specifically, could Turkey elaborate on the reasons why its "letters of
acceptance" cited by the United States should qualify as confidential.

The confidential nature of these internal communica tions derives from their character of informal,
unofficial and unenforceable policy recommendations. Any country's administration needs to have
the ability to communicate internally on the basis of confidentiality in order to circulate, discuss,
question, evaluate and ultimately suggest policy recommendations that the Government may decide to
adopt into formal, official and enforceable legislation or executive measures.

These internal communications must remain, as much as possible (and particularly so when politically
and/or commercially desirable), outside of the reach of the media, of market speculators, and of
powerful commercial lobbies. Only confidentiality may offer this protective shield.

 (c) Could Turkey also specify in what sense the policy recommendations contained
in the "letters of acceptance cited by the United States would be "unofficial".

These policy recommendations are mere internal communications among MARA or UFT
administrators and public officials. As long as they do not become policy decisions or legal acts
which are enforceable, they remain "unofficial" communications and policy recommendations.

When (and only if) they become "official", they must be duly and timely published, they must be
consistent with domestic law and international co mmitments, and they can be challenged. The so-

called "Letters of Acceptance" lack this "official " and binding nature both vis-à-vis the public and the
other parts of the administration.

Q28. (Turkey) In paragraphs 22 and 23 of its first submission, the United States has asserted
that the so-called "letters of acceptance" would "follow a standard template, in which Turkey's
Minister of Agriculture accepts recommendations from MARA's General Directorate of
Protection and Control to 'delay' the start date for the period in which Certificates of Control
will be granted." Turkey has responded that th e so-called "letters of acceptance" are only
"mere instruments of internal communication among Turkish administrators and public
officials".

 (a) Can Turkey indicate how many Cert ificates of Control have been granted
despite a contrary recommendation contained in the "letters of acceptance"
cited by the United States in its first submission.

 (b) Can Turkey provide the dates of the Certificates of Control granted despite a
contrary recommendation contained in th e "letters of acceptance" cited by the
United States in its first submission.

During period of existence of the alleged "contrary recommendation" contained in the first "Letter of
Acceptance" referred to by the United States
8 in its submission, 214 Certificates of Control were
approved by Turkey. This information can be clearl y evidenced by a review of the confidential table
provided in Annex TR-33.

In particular, Turkey submits that this information is clear and conclusive testimony to the following
three issues:

• Despite the existence of a "contrary recommendation" contained in a so-called "Letter
of Acceptance", 214 Certificates of Control were, in fact, approved between 10
September 2003 and 30 June 2004. This is furt her proof that the so-called "Letters of
Acceptance" were (and are) only internal communications suggesting policy
recommendations and not formal trade policy measures binding on the
administration. The fact that the administration did, in fact, approve 214 Certificates
of Control during that period underlines the weak and non-binding value of the policy
recommendations contained in the so-called "Letters of Acceptance". This is contrary
to the allegations and assumptions made by the United States.

• 214 Certificates of Control were, in fa ct, approved between 10 September 2003 and
30 June 2004. Evidence shows that their approval always followed, by very minimal
delays, the applications for approval of Cer tificates of Control made by importers.
This is contrary to what the United States claimed in its First Submission at paragraph
24 thereof, where it stated that "the le tter then recommends that the MARA once
again 'delay' the period for issuing Certificates of Control until July 1, 2004".

• The fact that the compiled data show that Certificates of Control were not approved
during certain periods (i.e., between 26 December 2003 and 20 May 2004) does not
prove that the approval of the Certificates of Control was being delayed (certainly not
until 1 July 2004) and does not prove that trade did not take place. It only proves
that, during certain periods, Certificates of Control were not approved. This may
have been the result of the combination of two factors, namely the absence of

8 See paragraph 24 and Exhibit US-12.

applications for approval and/or the existe nce of considerable "left-over" approved
volumes in the hands of the importers as a result of the difference between the
approved and realized quantities of rice imports. It should be noted, in particular, that
the applications for approval of Certificat es of Control were, and remain, formal acts
made by importers on the basis of business considerations and commercial
calculations (i.e., profit margins, competitiveness of imported over domestic rice,
speculative positions, currency fluctuations, etc.). These business determinations
may have resulted in the lack of requests for approval of Certificates of Control
during certain periods, but were never the result of specific policy decisions by the
Government of Turkey.

Q29. (Turkey) In paragraph 84 of its first s ubmission, Turkey asserts that the "letters of
acceptance" are never enforced, a nd in fact, cannot be legally enforced by any party (i.e. the
importers, the administration, or the courts)." However, the United States, in paragraph 69 of
its first submission, asserts that officials from Turkey's Ministry of Agriculture and Rural
Affairs (MARA) followed the wordin g of the letters of acceptance. In support of its assertion,
the United States argues that, in a letter to a Turkish importer of US rice (dated 1 May 2005), a
Provincial Agriculture Directorate denied the impo rter's request for a Certificate of Control on
the grounds that "... it is not possible to prepa re a control certificate according to our laws and
regulations" (see, United States' Exhibit US-22).

 (a) In Turkey's understanding, which were the laws and regulations the Provincial
Directorate was referring to? Was the Di rectorate referring to the "letters of
acceptance"?

The laws and regulations mentioned in US Exhi bit 22 refer to the Communiqués stipulating the
specifications of rice and paddy rice and those whic h set the rules and procedures for the approval of
the Certificates of Control. The Provincial Agricu lture Directorate was not referring to the so-called
"Letters of Acceptance" as "law and regulations", but to specific shortcomings and procedural
deficiencies that individual importers' applications for approval of Certificates of Control may have
shown.

 (b) If so, how can this be reconciled with Turkey's statement that the "letters of
acceptance" are never enforced by the administration?

This is perfectly in line with the statement that the so-called "Letters of Acceptance" are never
enforced by the Administration. It would not be possible (and not legally valid) for the
Administration to provide, as a ground for rejection of an application for approval of a Certificate of
Control, an internal policy recommendation which is not official, not published, and not enforceable.

Q30. (Turkey) In paragraph 3 of its first submission, Turkey refers to the documents known
as "Certificates of Control".

 (a) Can Turkey provide the formal definiti on of the "Certificates of Control" under
the relevant Turkish legislation.

No formal definition of the Certificate of Contro l is provided under Communiqué of Standardization
for Foreign Trade No. 2006/5 where the Certificat e of Control is introduced and its purpose and
approval conditions are clearly stated.
9 According to Communiqué No. 2006/05, the Certificate of

9 A definition is provided under Article 4(d) of Co mmuniqué No.31, according to which: "Certificates
of Control means the model (i.e., a form) which is given in the annex of the relevant Communiqué on
Standardization of Foreign Trade in force" (see Annex TR-21).

Control is an official document through which the importer submits certain information to MARA in
relation to the particular product that it wishes to import into Turkey. It is a reference document
needed to process the customs clea rance of any particular consignment of produce and, it is ensuring
that imported products will meet the legitimate st andards for the protection of human health and
safety, animal or plant life or health, and the environment.

 (b) Can Turkey identify the appropriate domestic legislation under which Turkey's
Ministry of Agriculture and Rural A ffairs (MARA) is empowered to issue
Certificates of Control.

The relevant legal instrument providing for MARA's competence to issue Certificates of Control is
the Communiqué No. 2006/05. In partic ular, according to Article 1 thereof, " […] the conformity of
the substances which are on the annex lists of this Communiqué and which are subject to the Entry
into The Free Circulation Regime, The Internal Process Regime, The Regime On The Process Under
The Customs Control and The Temporary Import Regi me, in respect of human health and safety,
animal and plant existence and health shall be det ermined by the Ministry of Agriculture and Rural
Affairs."

 (c) Does every import of rice require a sepa rate Certificate of Control? Could more
than one shipment of rice be imported under a single Certificate of Control?
Could shipments of rice from different origins be imported under a single
Certificate of Control? Please make ref erence to the appropriate legislation to
support your response.

The duration of an approved Certificate of Contro l for imports of rice is 12 months. Once a
Certificate of Control is approved by MARA, a trad er can import the full quantity of rice in different
instalments within that period of time without havi ng to apply for a new Certificate of Control for
each instalment. The importation must be realised from the country stated in the Certificate of
Control. See Annex TR-33 for evidence of the fact that often Certificates of Control were approved
for amounts larger than what the importers later cl eared customs with. This is an indication that
actual importation (i.e., realised importation) was conducted on the basis of business determinations
that belonged solely to the traders and were not imposed or influenced by the Government.

Q31. (Turkey) Once a Certificate of Control ha s been issued, what additional actions and
formalities, if any, would be needed from Turkis h authorities, in order to allow the importation
of a particular shipment of rice?

The approval procedure of the Certificates of Control is part of process of customs control and
verification to be conducted at the stage of importa tion. Once a commodity is brought to customs for
clearance, MARA and the customs authorities are co mpetent for carrying-out certain customs control
procedures.

In particular, as Turkey mentioned in its reply to question 14 above, control procedures taking place at
the stage of importation are conducted in a thre e-step process for products falling within both
Annex VI-A and Annex VI-B. The control is conducted on the basis of sanitary and phytosanitary
requirements. These steps are:

• Documentation control: customs authorities will control the documentation required
by legislation, which accompanies the products. However, the control of the
documentation is a process which, for th e products listed in Annex VI-A, already
starts from the approval of the Certificate of Control;

• Identity checks: customs authorities will compare whether the imported product is
identical and corresponds to the customs declaration;

• Physical inspections: MARA's officials will operate controls on the products,
including organoleptic controls up to the laboratory analyses.

As also mentioned in Turkey's reply to questi on 14, during the importation stage all products are
examined according to a process of risk assessment. Imported products can be subjected to laboratory
analyses, on the basis of Turkish food legislation. Furthermore, the safety of products is assessed on
the basis of quarantine procedures as provided by Tu rkey's laws on Plant Protection and Agricultural
Quarantine. If the results of the analyses are in compliance with the relevant legislation, the products
are released for free circulation.

Q32. (Turkey) If an importer can demonstrate the fulfilment of the separate requisites that
are normally verified through a Certificate of Cont rol, would the import be allowed, even in the
absence of a Certificate of Control?

No. The relevant Turkish legislation currently in force (i.e., Communiqué No. 2006/05) requires
importers to present a valid Certificate of Control approved by MARA in order for the necessary
control and inspection procedures to be carried-out at point of entry.

Q33. (Turkey) Could Turkey explain how, on the one hand, Certificates of Control and, on
the other hand, what Turkey claims are separat e import licenses, interact in relation to rice
imports under the tariff-rate quotas? Is obtainin g a Certificate of Control a precondition for
obtaining an import license?

As Turkey submitted in reply to question 14 above, importers that wish to import under the TRQ must
present the relevant documents to the Undersecretaria t for Foreign Trade in order to obtain the import
licence and import at the reduced duty rates. These importers must also submit all relevant
documentation to MARA for approval of the Certificat e of Control. As detailed by Turkey in Annex
TR-32, importation under the TRQ requires importers to submit an application to the UFT to obtain
the import license at reduced rates and then present all the documentation to MARA for the automatic
approval of the Certificate of Control.

Q34. (Turkey) What is the difference, in terms of their legal regime (requirements,
procedures, etc.) between a Certificate of Contro l for an agricultural product and a Certificate
of Control for a non-agricultural product?

Turkish legislation does not envisage any differe nce between agricultural and non-agricultural
products in terms of the procedures necessary for the automatic approval of a Certificate of Control.
In both cases, importers are required to present to the competent authority (i.e., MARA for
agricultural products) all necessary documentation before the actual importation of the products.

Q35. (Turkey) In paragraph 8 of its closing statement during the first substantive meeting
with the Panel, Turkey asserted that "To the exte nt that they [relate to] agricultural products,
[Certificates of Control] are approved by MARA ". Can Turkey identify what agencies would
be involved in the approval of Certificates of Control for other products.

Turkey respectfully provides few examples of other Ministries involved in the approval of Certificates
of Control for other products.

Under Communiqué of Standardization for Foreign Trade No. 2006/3, the Ministry of Environment
and Forestry is the competent authority for the appr oval of Certificates of Control for the importation
of wastes and scrap metal. This Communiqué is based on the Basel Convention on the Control of
Trans Boundary Movements of Hazardous Wastes a nd Their Disposal. Under this Communiqué, the
importer is required to present to the Ministry of Environment and Forestry certain documents, such
as the certificate of analysis and certificate of radiation, for the importation of the products.

The importation of chemical products, listed at th e Annexes of Communiqué on Standardization for
Foreign Trade No. 2006/6, requires the Ministry of Environment and Forestry to approve either the
Certificate of Control or the Certificate of Cont rol for the Import of Chemical Products, depending on
the products. The documents that importers are requi red to present for approval of the Certificate of
Control, inter alia , the pro forma invoice, the certificate of analyses, the label of the products, are
listed under the Communiqué mentioned above. The Cer tificate of Control or the Certificate for the
Import of Chemical Products must be submitted to the customs authorities.

Similarly, importers wishing to import certain (sol id) fuels, listed in Annex 1 of Communiqué of
Standardization for Foreign Trade No. 2006/7, must obtain approval of the Certificate of Control from
the Ministry of Environment and Forestry. The Communiqué specifies which documents, inter alia,
the pro forma invoice and the certificate of analyses, mu st be presented for the approval of the
Certificate of Control. The Certificate of Control should be submitted to the customs authorities.

Finally, under Communiqué of Standardization fo r Foreign Trade No. 2006/4, the importation of
certain goods such as pharmaceutical products, medi cines, certain chemicals, etc., requires the
approval of Certificates of Control by the Ministry of Health. For the importation of these goods, the
importer shall submit certain documents, such as the pro forma invoice, or the invoice, the health
certificate and the certificate of analysis, to the Ministry of Health before the import stage.

Q36. (Turkey) What are the specificities that justify, in the case of certain products, the
requirement for a Certificate of Control, which is not required for other products? Why would
the customs authorities not be able to process th e same information included in a Certificate of
Control for certain agricultural products through the ordinary procedures applicable to other
products?

Turkey respectfully notes that the products the importation of which requires approval of the
Certificates of Control are determined on the basis of legitimate concerns such as their sanitary and
phytosanitary risk potential. These concerns justify the requirement for a Certificate of Control to be
approved in relation to specific products.

For the same reasons, and in light of the often complex and time-consuming procedures that these
specific products must undergo at time of customs clearance, the early approval by MARA (or by the
other competent authorities) of a Certificate of Control acts to facilitate and render uniform the control
exercised at customs.

Q37. (Turkey) In paragraph 19 of its first written submission, Turkey asserts that the
Certificate of Control "allows customs authoritie s to verify, on a single document, all required
customs information, including the product's co mpliance with relevant standards and technical
regulations". If that is the case, why is it that Turkey's Ministry of Agriculture and Rural
Affairs (MARA) "is the competent [authority] to certify compliance of the imported goods [in
this case rice] with the applicable requireme nts" (see paragraph 17 of Turkey's first
submission), rather than the Turkish customs authorities?

The Certificate of Control is a document that is mean t to ensure that the product being imported is in
compliance with the relevant legislation. This doc ument contains all the information which is meant

to provide the basis of the evaluation carried-out by the customs authorities for clearance. Customs
authorities work in close cooperation with MARA.

Turkey respectfully submits that the system is designed to centralize the competence and the
responsibility of the products' compatibility in th e agency (i.e., MARA for agricultural products)
which is best suited to verify compliance with all the relevant legislation, and which will ultimately be
liable for the products' safety. The approval by MARA of the Certificates of Control is, therefore,
meant to grant a safe, uniform and consistent ap plication of the requirements envisaged by the
relevant legislation for food products, pursuing, at the same time, trade facilitation objectives through
the predictability of customs inspections, at the benefit of the importers. Turkey would like to
emphasize that the approval of the Certificates of Control has always been and is automatic in all
required information is provided by importers at time of application. As indicated above, this is
clearly evidenced in the data compiled in Annex TR-33.

Q38. (Both Parties) In paragraph 25 of its first written submission, Turkey asserts that "[a]n
approved Certificate of Control for rice importat ion will be valid, contrary to the claims from
the United States, for a period of twelve months on the basis of Article 9(c) of the Communiqué
No. 2006/05".

 (a) Can Turkey identify the legal support fo r this assertion, identifying the relevant
domestic legislation.

Turkey submits that Article 9 of Communiqué No. 2006/05
10 provides that:

"The duration of the control certificate is,
(a) 4 months for the substances within the scope of the annex lists (Annex I,
Annex II/A-B),
(b) 6 months for the substances within the scope of the annex lists (Annex III,
Annex IV, Annex V/A-B),
(c) 4 months for the substances with 04t h and 16th customs code chapter within
the scope of the annex list (Annex VI-A); and 12 months for the other
substances in the same list."

The reference made by Article 9(c) of Communi qué 2006/5 to the products listed in Annex VI-A
thereof, clearly provides that the validity of all Ce rtificates of Control is of 12 months, except for
products falling within Chapters 04 and 16 of the Turkish Customs Code. Certificates of Control
approved for products falling under Chapters 04 and 16 have a validity period of 4 months.

Therefore, given that rice is classified under Chap ter 10 of the Turkish Customs Code, it is legally
incorrect and misleading for the United States to al lege that the duration of the approved Certificates
of Control for rice imports is limited to 4 months. It is also wrong and misleading to allege, as the
United States did during the oral hearing, that th e 12-month validity rule is the result of a recent
amendment transposed into the 2006/5 Communiqué. In reality, the same rule and the same wording
are to be found in Article 9(c) of Communiqué No. 2005/5 (i.e., the previous legal instrument).11

10 See Annex TR-1.
11 See Exhibit US-7 of the First Submission by the United States.

Q39. (Turkey) In paragraph 54 of its first submission, Turkey asserts that, through the
Certificates of Control, the domestic authorit ies determine the compliance of importers with
"standards and technical regulations (i.e., human health and safety, animal or plant life or
health, environmental protection, fitness for use, product safety, public policies, etc.)". Do any
additional procedures take place to verify co mpliance of importers with the same "standards
and technical regulations"? Do physical insp ections of imported products take place upon
importation, i.e., after the Certificates of Contro l have been approved? If so, then what is the
purpose of the pre-approval of the Certificates of Control, vis-à-vis a later physical inspection?

As already explained by Turkey in its replies to questions 14 and 31 above, the process of customs
control procedures includes physical inspections of the products carried-out by customs authorities.
The statement that "domestic authorities determine the compliance of importers with standards and
technical regulations" can be used to summarize bot h the initial review carried-out by MARA for
purposes of approval of the Certificates of Control and the verifications and inspections conducted at
customs point of entry on the physical consignments being imported.

It is not correct, however, to refer to "additional pro cedures". In fact, the procedures that take place at
central level (i.e., with MARA in order to successfu lly apply for a Certificate of Control) and the ones
that are exhausted at border level (i.e., the phys ical checks on the rice being imported which must
show compliance "in practice" with all requirements, standards and technical regulations certified "in
theory" by MARA when approving the Certificate of Control on the basis of the information provided
by the importers) are all part of the same process of certification, verification, inspection and customs
clearance.

Physical inspections of imported products do take place upon importation (i.e., after the Certificates of
Control have been approved), but this must be seen as a legitimate and perfectly normal right of any
Government. In particular, Turkey would like to em phasize that this is a reasonable process that must
not be interpreted as trade distortive or administrativ ely burdensome. On the contrary, this regulatory
set-up must be seen against the backdrop of a count ry where leaner customs procedures for control
and inspections cannot yet be administered because a strong system of market surveillance is missing.
The process of early certification by MARA and the actual verifications and inspections at customs
level are the only effective instruments for Turk ey to guarantee that the products placed in free
circulation on its market are safe and fit for consumption.

Q40. (Turkey) In paragraph 54 of its first submission, Turkey states that the Certificates of
Control serve the purpose of determining "com pliance with all relevant specifications,
standards and technical regulations (i.e., human health and safety, animal or plant life or
health, environmental protection, fitness for use, product safety, public policies, etc.)".

 (a) Do domestic rice producers or distributo rs also need to obtain a Certificate of
Control in order to trade rice in the Turkish market, or are Certificates of
Control only applicable to imported rice?

Turkish legislation requires domestic producers to obtain from MARA a "permission of production"
for the domestically-produced rice before the dist ribution, marketing and sale of the products.
Furthermore, Turkish legislation provides that th e products' label must cont ain "the number of the
permission of production" if the marketed rice is domestic rice. For imported rice, the law requires the
label to indicate "the date and number of the Certif icate of Control." The relevant Turkish legislation
is embodied in the Turkish Food Codex Communiqué on Rules for General Labelling and Nutritional
Labelling for Foodstuffs.
12 On required labelling information, Ar ticle 6 of the Communiqué provides,
in relevant part, that:

12 Communiqué No. 2002/58, Official Gazette, 25.08.2002, No. 24857.

"Compulsory information which must be incl uded in the labelling of the foodstuffs is
indicated below:
(a) Name of the foodstuff
(b) List of ingredients
(c) Net quantity
(d) Names, registered mark, addresses of the manufacturer and packager and
place of production
(e) Expiry date
(f) Lot number and/or serial number
(g) Date and number of production perm ission, registration number or date and
number of import control certificate
(h) Country of origin
(ı) Instructions for use and / or storage conditions if necessary
(j) Quantity of alcohol for beverages containing more than 1.2 % alcohol by
volume
Information covered by subparagraphs (a), (c ), (e) and (i) must be on the same place
of the labelling of the foodstuffs."
 (b) How and under what rules does Turkey ensure that domestically-produced rice
fulfils the minimum conditions in regar d to the same aspects addressed by the
Certificates of Control?

Turkey respectfully submits that Article 13 of the Turkish Food Codex Communiqué of paddy rice
No. 2002/11
13 and of brown rice and milled rice No. 2001/10 14 both provide that " the establishments
producing and selling the products covered in this Co mmuniqué are obliged to obey the provisions of
this Communiqué during registration, authoriz ation, importation, control and inspection ". Therefore,
under Turkish legislation, the same specificati ons are required for imported and domestically-
produced rice and are evaluated in the light of the same requirements.

 (c) During the first substantive meeting wi th the Panel, Turkey asserted that all
domestic producers undergo a registration system, which has been in place for
the past three years. In this respect, can Turkey: (i) Provide the relevant legal
instrument upon which that registration is based; (ii) Detail the requirements
domestic producers need to comply with in order to be registered; (iii) Specify
the objectives and purpose behind that system of registration; and, (iv) Identify
the system in place before the enactment of the registration system.

13 See Annex TR-6.
14 See Annex TR-5.

Turkey respectfully submits that, in relation to point (i) of the question, the relevant legal instrument
envisaging the registration system for farmers is embodied under Regulati on on National Farmers'
Registration System
15 and included in Annex TR-34.

In relation to point (ii), reference should be made to Article 6 and 7 of the relevant Regulation
included in Annex TR-34.

In relation to point (iii), Turkey submits that the Farmers' Registration System was introduced in 2001
with the purposes of: setting-up the necessary infrast ructure in view of harmonization with the
relevant EC legislation; establishing a more efficient and effective distribution system for the direct
income support payments and other subsidies; and assuring an accurate supply of data to be taken into
consideration during the agricultural policy formul ation process. The Farmers' Registration System
contains information on products; on the land regist ration; on the land ownership, on the irrigation
status of the land; on the farmer; on the village dist rict, city and regions. Turkey submits that 90% of
all the farmers and 91% of all the farm areas are registered within the system.

Finally, in relation to point (iv), Turkey submits that all farmers are obliged to be registered with the
Union of Turkish Chambers of Agriculture. Before the Farmers' Registration System was in place,
the major source of information for MARA was the r ecord kept by the Union of Turkish Chambers of
Agriculture.

 (d) Can Turkey identify what are some of the "public policies" – different from
human health and safety, animal or plant life or health, environmental
protection, fitness for use and product safety – for which the Certificates of
Control would serve the purpose of determining compliance.

Turkey respectfully submits that there are no ot her legitimate public policies other than the ones
mentioned by the Panel in the question that the Certif icate of Control is aimed at pursuing. In general
terms, however, as indicated above, the approval of Ce rtificates of Control also aims at guaranteeing
consistency and uniformity in the customs clearance procedures, it provides greater commercial
predictability and legal certainty to importers (in re lation to what they can expect to happen at border
control), and it reduces the possibility for goods to be blocked at customs with the potential for costly
and time-consuming customs litigation. All these are clearly trade-facilitation benefits that Turkey
considers to be provided by the Certificate of Control.

Q41. (Turkey) What is the analysis of "fitness and compatibility" with respect to human
health and safety and other concerns that Turkey 's Ministry of Agriculture and Rural Affairs
(MARA) conducts when deciding to issue a Certific ate of Control? Is that analysis limited to
the declaration made by the applicant? Otherwis e, when does this analysis take place and how
is it done? When and where does a physical inspection of the imported products take place, if it
does?

MARA's analysis of the "fitness and compatibility" of the product is made on the basis of the
documents which must be attached to the Certificate of Control. The documents required for the
approval of the Certificate of Control varies according to the specifications required by law for the
product. The importer declares that the product is in compliance with legislation by filling out the
relevant parts on the form of the Certificate of Cont rol. For example, importers of rice must declare
that the product conforms, inter alia , to the relevant legislation on Production, Consumption and
Inspection of Foodstuffs, to the relevant legisla tion on Agricultural Pest Control and Agricultural
Quarantine, to the specifications of the EC, th e World Health Organization and the FAO Codex
Alimentarius.

15 Official Gazette, 16.04.2005, No. 25778.

As already explained in the reply to question 14, the approval of the Certificate of Control is part of a
process of customs control and verification. The " documentation control," which represents the first
of the three-step process for customs control proc edures, already starts from the approval of the
Certificate of Control for products which are subject to it.

Once they have verified that the documents presen ted by the importer comply with the requirements
established by the law, customs authorities and MARA 's officials will carry-out the identity checks
and the physical inspections. As Turkey menti oned above, at the importation stage products are
examined according to a process of risk assessment. Imported products can be subjected to laboratory
analyses, on the basis of Turkish food legislation. Furthermore, the safety of products is assessed on
the basis of quarantine procedures as provided by Tu rkey's laws on Plant Protection and Agricultural
Quarantine. Products will be released for free circ ulation if the results of the analyses are in
compliance with the relevant legislation.

Q44. (Turkey) Turkey has provided informat ion on the 2,223 approved Certificates of
Control between 2003 and September 2006 in Exhibit 20 attached to its first submission.

 (a) Can Turkey provide information on th e number of monthly applications filed
for Certificates of Control to import rice, during the same period, by country of
origin, indicating for each month the amounts requested and countries of origin.

 (b) Can Turkey provide a monthly break- down of the Certificates of Control
approved during the same period, indicating for each month the amounts
requested and countries of origin.

 (c) Can Turkey clarify whether all of the 2,223 approved Certificates of Control
were issued for rice.

 (d) Can Turkey provide an official list of each of the 2,223 Certificates of Control
approved between 2003 and September 2006, in dicating the date of request, the
date of approval, the beneficiary (indicating whether it is a trader, a miller, a
retailer or a final consumer), and the amount and type of rice (paddy, brown
and milled).

 (e) Can Turkey provide a copy of each of the 2,223 Certificates of Control approved
between 2003 and September 2006.

 (f) Can Turkey indicate the number of applications for Certificates of Control
received between 2003 and September 2006, and how many of those were
rejected and approved. Can Turkey iden tify the reason for rejection in each
case. Can Turkey identify the country of origin and the amounts requested in
the Certificates of Control that were rejected.

Reply to question 44(a), (b) and (d):

Firstly, Turkey respectfully wishes to clarify to the Panel that the total number of approved
Certificates of Control has increased and is therefor e higher than the one specified in the previous
submissions (i.e., 2,223) due to the fact that the figures presented in the table included in Annex TR-
33 have been updated to 9 November 2006. The nu mber of approved Certificates of Control until 9
November 2006 is of 2,244.

In relation to the data requested under questions 44(a) , (b) and (d), Turkey refers to Annexes TR-33,
35 and 36, where all the information on Certificates of Control can be found.

Reply to question 44(c):

This is correct. The number of approved Certificates of Control that was indicated refers to
consignments of milled, paddy and brown rice.

Reply to question 44(e):

Turkey respectfully confirms to the Panel that phot ocopies of Certificates of Control are available.
The relevant Ministries are not, however, authorized to provide all the copies to the Panel. In any
event, Turkey submits that it will be able to provi de to the Panel in strict confidence copies of any
individual Certificate of Control listed in Annex TR-33 upon request from the Panel.

Reply to question 44(f):

Turkey refers to Annex TR-35 for the percentage of approved and rejected Certificates of Control and
to Annex TR-36 for the list of rejected Certificates of Control, including the reasons for denial.
Turkey would like to clarify to the Panel that the statistics provided in Annexes 35 and 36 cover the
period until 21 September 2006.

Q45. (Both Parties) In paragraph 72 of its first submission, the United States asserts that
"Turkey fails to grant Certificates of Control 100 per cent of the time" and, similarly, that
"Turkey never
 grants Certificates of Control."

 (b) If Turkey disputes this assertion, can it provide evidence of Certificates of
Control granted in the last three years (since July 2003).

Turkey categorically rejects the United States' as sertion, and it respectfully refers, for the necessary
evidence, to Annex TR-33 and to the available c opies of the approved Certificates of Control, as
specified in its reply to question 44(e).

Q49. (Both Parties) During the first substa ntive meeting, Turkey asserted that once an
importer obtains a Certificate of Control, the actual importation depends on market-related
factors, such as relative exchange rates, demand, prices, etc.

 (b) Can Turkey confirm that the discrepan cy between the quantity of rice imports
addressed in approved Certificates of Control and actual rice imports may be
exclusively due to the above market-relat ed factors? Or could an importer
holding a valid Certificate of Control still be prevented from importing rice in
full compliance with the relevant Certific ate for reasons not related to market-
related factors, such as not holding so me additional document or permission
from Turkish administration or not complying with some additional
requirement? If that is the case, could Turkey specify the proportion of
unrealized imports that can be accounted to such non market-related factors?

Turkey wishes to confirm that the discrepancy between the quantity of rice imports addressed in
approved Certificates of Control and actual rice imports is due exclusively to market-related factors.
In relation to this, Turkey submits that the system allows importers to use the Certificates of Control
for the importation of the total amount indicated therein or just for a part of it. In this latter case, the
importers are free to use the same Certificate of Control several times, up to the approved amount of
rice, within the period of the duration of the Cer tificate of Control (i.e., 12 months from approval).

Turkey also confirms that, once the importers s how to the customs authorities the Certificate of
Control, there is no other additional documen t or permission required from any other public
administration to realize the importation of the remain ing part of the quantity stated therein. Importers
may also choose not to use the Certificate of Control at all, according to their commercial evaluations,
based on the market conditions for rice imports.

Products that fail to be in full conformity with the specifications cited in the Certificate of Control,
and products which are found, during the physical in spections conducted at the customs, not to be in
compliance with the SPS requirements, are rejected . Therefore, rejection of the consignments at
border control can constitute anothe r reason for the discrepancy between the quantity of rice imports
addressed in the approved Certificates of Control and actual rice imports.

 (c) Can Turkey provide the average monthly exchange rates applicable from July
2003 to September 2006. In addition, can Turkey indicate any other events,
which in its opinion affected trading of rice in Turkey during that period.

In relation to the average monthly exchange rate per 1 US Dollar, Turkey refers to the Annex TR-37
herewith.

Turkey wishes to explain that the Turkish rice market is shaped by supply and demand, as for any free
market economy. The main factors determining the demand side are domestic and world prices of
rice, domestic consumption, and exchange rates. On the supply side, the level of domestic and world
production and the level of the stocks are the subs tantial elements. Turkey has always been a net
importer of rice. Although these data largely vary in the years depending on market conditions,
Turkey submits that, for the last ten years, 33-62% of its total rice supply originated from foreign
sources.

Despite the fluctuations in the total supply deri ved from the domestic production and rice imports, the
general trend for total supply shows an increase. In particular, while the total supply in 1997
amounted to 436,092 tonnes, it has increased up to 643, 436 tonnes in 2006. The increase in the total
supply can be explained by the increase in domestic production and importation. On the other side,
since there is no significant export of rice, this fi gure indicates also an incr ease in the total demand.
The increase in population size and the changes in consumption attitudes have been main reasons
behind this increase of the demand.

The increasing demand for imports of rice is not limited to the factors mentioned above. The
proximity to the market, consumer choices and raisi ng income levels are also important elements of
the demand function. As for the first factor menti oned, the exporting countries closer to Turkey, such
as Egypt, are far more advantaged than countries su ch as the United States and Thailand in terms of
delivery. As for the second factor, since rice is not a homogeneous product in taste and quality, certain
types of rice are preferred by consumers. Moreover, in Turkish market the domestic types of rice are
sold at higher prices. Consumers can pay approximately US$100-US$150 more for higher quality
rice. Finally, as per capita income has been gradually increasing since the 2001 financial crisis, the
demand for importation of goods, including rice, has also increased.

A review of the production figures between 1997 and 2006 reveals a continuous increasing trend. The
relatively steeper increase between 2004 and 2006 can be explained by several factors such as the
renewal and modernization of fa rming systems and technologies ( inter alia, more efficient irrigation
systems, the utilization of high- quality seed, rehabilitation of the cu ltivated lands and seeds) in rice
production, the change in the methods of estimat ion of production because of the new farmers
registration system and agricultural policies of MARA. Although there is a continuous increase in the
domestic rice production, generally, we also observe an increasing trend in total imports despite the
fluctuations occurring in certain years. For inst ance, in the period between 2004 and 2006, in which

the TRQ regime was in force, rice equivalent imports have increased from 146,458 tonnes to 253,436
tonnes,
16 while the rice equivalent production has increased from 294,000 tonnes to 390,000 tonnes.

As for import fluctuations over the years, they can be partly attributed to the exchange rates of both
Turkey and exporting countries, and to the producti on levels and stocks at the end of the previous
year. For example, the decrease of imports in 2004 is to be explained by the increase in imports in
year 2003, which amounted to 371,000 tonnes. This amount was the highest level of importation over
the last 10 years and resulted in considerable am ounts of stocked rice being carried-over to 2004. On
the other hand, the 2003 increase of imports was partly due to the appreciation of the Turkish Lira and
to the improvement of domestic purchase power after the 2001 financial crisis.

As for the imports by country of origin, while the milled rice imports from the United States
continuously decreased, the paddy rice imports fr om the United States show a pattern relatively
similar to that of total imports. Rice imports from Egypt maintained a rather stable and increasing
curve. Turkey believes that the competitiveness of Egyptian rice accounts for this general trend. For
example, the unit prices of US paddy rice was US$447/ton in 2004 and US$260/ton
17 in 2005, while
the unit prices of milled rice in Egypt was US$305/ton in 2004 and US$310/ton in 2005. That's why
the market share of rice from the United States has decreased and that of Egyptian rice has increased
in recent years. Turkey submits that this has nothi ng to do with the TRQ. On the contrary, the TRQ
boosted the importation of paddy rice (in which the Un ited States maintains 98% of the market share)
due to the lower rates of duty.

Q50. (Both Parties) Under what circumstances, or on what grounds, if any, would Turkey's
Ministry of Agriculture and Rural Affairs (MARA) not issue a Certificate of Control?

Turkey submits that grounds for non-approval of the Certificates of Control may be found in cases of
deficient information in the Certificate of Control form, or deficient documentation, as attached to the
Certificate of Control form. Turkey provides below few examples of deficient/incorrect/incompatible
information indicated in the Certificate of Control form and in the attached documentation:

Missing and/or wrong information on the Certificate of Control form, such as, inter alia:

• The incompatibility of the imported products with the customs code indicated in the
Certificate of Control;
• Inappropriate or missing indication of the customs point of entry;
• Missing or inaccurate reference to the country of origin;
• Other missing information which is required on the Certificate of Control form.

Inconsistent information stated on the documents provided such as, inter alia:

• Name of the firm;
• Address;
• Indication of the product.

As already mentioned above, the relevant importer is promptly notified of the deficiencies and it is
granted the right to remedy in the stated time fram e. When the deficiencies notified by MARA to the
importer are not addressed or are not properly corr ected, the application will be returned to the
importer, together with the official rejection. Other reasons for rejection are, obviously, the non

16 Expected values.
17 Although this price is not rea listic because of the low declara tions lodged by im porters for tax-
avoidance or tax-minimization purposes.

compliance of the product with the relevant legislation and the importer's withdrawal of its application
for approval of the Certificate of Control.

Q53. (Turkey) In the case of rejected applications for a Certificate of Control:

 (a) Does the importer have an opportunity to request some administrative or
judicial review of the rejection?

Turkey submits that the importer can at any time request the administration (i.e. MARA) to review the
application which was rejected. Turkey also s ubmits that in Turkey all the acts of the public
administration are subject to judicial review. In pa rticular, this principle is set out in Article 125 of
the Turkish Constitution, wh ich also states that " [t]he Administration shall be liable for damages
caused by its own acts and actions. " In addition, Article 138 of the Turkish Constitution, also
provides that " legislative and executive organs and the admin istration shall comply with court
decisions; these organs and the administration shall ne ither alter them in any respect, nor delay their
execution."

 (b) If a process for an administrative or judicial review is in fact available to the
importer, please explain the procedure and provide the relevant legal basis.

The administration is obliged to redress the act wh ich has been found in breach of the relevant
legislation as a result of the litigation process initia ted by the importer. The administration must
comply with Court decisions and take all necess ary and proper steps and actions within 30 days.
(Article 28/1 of the 2577 numbered Law on the Administrative Procedure Law).

 (c) Under what circumstances and on what grounds can an importer request an
administrative or judicial review of the rejection of a Certificate of Control.

Turkey submits that under Turkish law the importe r may always initiate the litigation process against
any act of the administration.

 (d) Can an importer resubmit its application for the same Certificate of Control,
after having corrected the alleged failin gs? If so, under what circumstances
would an importer choose to resubmit its application instead of requesting an
administrative or judicial review of the rejection of the first application?

Turkey submits that the importer has the right to apply again for the Certificate of Control after
having corrected its failings and/or having filled the requirements missing in the first application. If,
however, the importer claims that the first applicat ion was in line with the requirements set in the
legislation, it may choose to resort to litigation.

 (e) Please provide statistics to illustrate th e results of the administrative or judicial
review and of the submission of new applications of rejected Certificates of
Control.

Turkey submits that since 2003, 14 importers have resorted to litigation against MARA. Five of these
trials were concluded with decisions in favour of MARA. For the remaining 9, the litigation before
the Courts is currently ongoing.

Q54. (Turkey) In paragraph 67 of its first s ubmission, Turkey states that "nothing in the
relevant Turkish law imposes any 'denial' of the approval of Certificates of Control, with the
exceptions of those legitimate instances in wh ich the necessary customs purposes requirements
have not been met by importers." Could Tu rkey specify which necessary customs purposes

were not met by the importers in the specific inst ances referenced by the United States in its
first submission.

Turkey submits that reasons for the denial of the Certificates of Control have been, inter alia ,
incomplete administrative requirements, multiple us ages of the invoices and failure to present all the
necessary documentation.

For greater detail on the reasons for rejection, Tu rkey respectfully refers to Annex TR-36, which
illustrates the specific reasons for denial of the single rejections of the Certificates of Control.

Q55. (Turkey) Do the Turkish customs authorities have the legal authority to reject the
importation of a shipment of goods even if a Certificate of Control has been issued and
approved by Turkey's Ministry of Agriculture and Rural Affairs (MARA)? Please explain.

Yes, Turkish customs authorities have the legal aut hority to reject the importation of a shipment of
goods, even if a Certificate of Control has been issu ed and approved by MARA. In particular and as
explained above, the Certificate of Control is a document required for the first (i.e., documentation
control) of the three-step process through which c ontrol procedures at import stage take place.
Following the "documentation control" phase, custom authorities and MARA's officials will carry-out
identity checks and inspections. If the imports fail to comply with the specifications cited in the
Certificate of Control, and if the inspections re veal that the imports are not consistent with SPS
requirements, these imports are rejected.

Q59. (Turkey) In paragraph 17 of the provision al version of its oral statements, Australia
indicates that "Turkey's submission ... that its Ce rtificates of Control deal solely with customs
matters -and so are not import licences- gives t oo great a scope to the carve out for 'customs
purposes' and restricts the meaning of 'import licences' beyond that intended by either
Article XI of GATT 1994 or the Import Licensin g Agreement." Could Turkey comment on this
statement.

Turkey notes that Article 1.1 of the Agreement on Import Licensing Procedures reads as follows:

For the purpose of this Agreement, import licensing is defined as administrative
procedures18 used for the operation of import licensing regimes requiring the
submission of an application or other doc umentation (other than that required for
customs purposes) to the relevant admi nistrative body as a prior condition for
importation into the customs territory of the importing Member.
Turkey considers that, under this provision, the definition of import license for the purpose of the
Agreement on Import Licensing Procedures exclud es administrative procedures which are required
for customs purposes. Turkey submits that the Ce rtificates of Control are forms required for customs
purposes and therefore fall outside the scope of the Agreement on Import Licensing Procedures and
the definition of 'import license.'

As a preliminary remark, Turkey considers that the actual scope of the so-called "carve-out" for
"customs purposes" can only be clarified by an anal ysis of what "customs purposes" actually consist
of. There is no 'narrow' or 'large' scope of the " carve-out," once it is assessed that a certain form is
meant to comply with "customs purposes." The application of concept of "customs purposes" must be
neutral in nature and cannot be expanded or diminished for interpretative needs, particularly in
relation to the meaning of import license.

18 Those procedures referred to as "licensing" as well as other similar administrative procedures.

This is to say that the so-called "carve-out" is not indented to provide an exception to the requirements
of import licensing procedures that must be interpre ted, like all exceptions, in the most restrictive
way. It is also not meant to narrow the defin ition of import license, be it for the purposes of the
Agreement on Import Licensing Proc edures or for the application of the term 'import license' under
GATT Article XI:1. Rather, the reference to "custo ms purposes" is designed to confine the scope of
the rules on import licensing procedures so to avoi d any interference and possible confusion between
the application of those rules and the enforcement of legitimate customs policies. Turkey fails to
understand how Australia would draw the boundaries of the scope of application of this so-called
"carve-out".

In relation to this, Turkey wishes to emphasize that it is not the scope and the content of the
information requested by MARA for approval of th e Certificate of Control that can change an
administrative document used for customs purposes in to an import license. Turkey believes that the
distinguishing factor between an "import license" and other documentation (s uch as that used for
"customs purposes") is a matter of procedures and not of content of the documentation. In addition,
Turkey already submitted that the "customs purposes" of the Certificates of Control are evident both
de jure and de facto. Turkey's customs regime shows nothing considerably different from the customs
regimes of other WTO Members in that the process of importation and customs clearance is more
than just compliance with the obligation to pay the applicable duty and other charges.

Q60. (Both Parties) In paragraph 26 of the provisional version of its oral statements,
Australia indicates that "the measure at issue is Turkey's alleged blanket denial of Certificates
of Control." Could the Parties comment on this statement. If appropriate, provide evidence to
support your statements.

Turkey believes that it has already conclusively demonstrated, through the provision of factual
evidence,
19 that there has never been a de jure or de facto "blanket denial" in the approval of
Certificates of Control. Individual instances of denial of approval in relation to specific applications
made by individual importers cannot be used to imply a "blanket denial" that would amount to a
measure of general application.

Turkey also believes that, in this respect, th e United States has failed to prove that, either de jure or
de facto Turkey ever imposed a measure of general app lication that resulted in a "blanket denial" in
the approval of Certificates of Control.

Q61. (Both Parties) In paragraph 27 of the provisional version of its oral statements,
Australia indicates that "[i]f the Panel finds th at Turkey has in fact adopted a practice of
denying Certificates of Control altogether ... th is could constitute a 'measure of general
application' for the purposes of Article X:2 [of the GATT 1994], whether or not the Letters of
Acceptance themselves can be enforced". Could the Parties comment on this statement.

Turkey would like to respectfully reite rate that there has never been a de facto "practice of denying
Certificates of Control altogether ". Therefore, there was never a " measure of general application "
within the meaning of GATT Article X:2. In ad dition, Turkey would like to emphasize that, in
relation to individual instances of rejection of approval of Certificates of Control, the affected
importers were always systematically notified of the reasons for rejection. This is clear evidence of
the specificity of the measures (i.e., the individual rejections). These individual rejections were not,
as argued by the United States, measures of general application and never amounted to a de facto
"blanket denial". Had Turkey wi shed to introduce a measure of ge neral application, it would have
duly published it as it does with all its measures of general application (for example, the TRQ or the
rules on the Certificates of Control).

19 See Annexes TR-8 and TR-20 and Annex TR-33 herewith.

Q63. (Both Parties) During the first substantiv e meeting with the Panel, Turkey asserted that
the case of the difficulties faced by Torunlar in trying to import rice was exceptional.

 (a) To the extent possible, could Turkey further develop this assertion and explain
on what grounds the difficulties faced by Torunlar in trying to import rice were
exceptional.

 (b) Can Turkey also explain to what extent the cases of the other importers cited by
the United States (Mehmetoglu and ETM) were also exceptional?

 (d) Can Turkey refer to the other two im porters mentioned by the United States in
its first submission, who were allegedly denied Certificates of Control to import
rice into Turkey (Mehmetoglu, and ETM).

 (e) Can the Parties provide information regarding the importance and share of
these three importers (Torunlar, Mehmetoglu, and ETM) in total imports of rice
into Turkey and, more specifically, in impo rts of US rice into Turkey during the
relevant period.

Turkey preliminarily submits that, despite the ex ceptional problems faced in the approval of certain
Certificates of Control requested by these firms, a considerable number of Certificates of Control
were approved for Torunlar, Mehmetoglu and ETM. In relation to this, Turkey refers to Annex TR-38
for detailed information on the approval of Certificates of Control for these companies.

The relevant Provincial Directorate of MARA states that the rejected applications filed by these firms
were due to missing documents and incorrect information.

Turkey also refers to Annex TR-39 for deta iled import figures regard ing the above-mentioned
importers and their relative shares of total imports.

Q66. (Both Parties) In paragraph 31 of its first submission, the United States asserts that
Torunlar's lawsuit against the Ministry of Ag riculture and Rural Affairs (MARA) "is still
pending", making reference to a letter from th e Ankara Governorship Province Agriculture
Department (Exhibit US-33). What is the current status of the lawsuit to date?

Turkey respectfully submits that the lawsuit has been concluded in favour of the Ministry of
Agriculture and Rural Affairs. The firm chose not to appeal it at the High Court.

Q67. (Turkey) In paragraph 35 of its first s ubmission, the United States asserted that "[i]n
early April, forty rice producers visited MARA to protest that one company (Mehmetoglu
Domestic and Foreign Trade) had allegedly received a Certificate of Control without procuring
domestic rice". Can Turkey comment on this information.

It is evident that this information was provided from a newspaper article. Just as it happens in every
other WTO Member country where freedom of expression is allowed, in Turkey interest groups meet
with the relevant governmental authorities to di scuss or present their concerns and problems in
relation to their area of operation. These meetings may naturally lead to certain sensational media
statements which do not necessarily reflect the trut h or that may be used for political or demagogical
ends. Turkey believes that a newspaper article, th e accuracy of which is doubtful, should not be used
as an evidentiary element to build a WTO dispute settlement case.

Q71. (Turkey) Can Turkey provide detailed figu res on the operation of its domestic purchase
requirement under the TRQ, in particular as regards to:

 (a) The date, value, price and type of domestic rice purchases under the TRQ;

 (b) The origin of the specific rice imports; and

 (c) The specific Certificates of Control in connection with which such domestic rice
purchases have been made.

In relation to question 71(a), Turkey respectfully refers to Annex TR- 27. In relation to
question 71(b), Turkey refers to Annex TR-8, which also includes reference to the origin of both in-
quota and out-quota imports from January 2004 to August 2006. Finally, in relation to question 71(c),
Turkey refers to Annex TR-33, wh ich lists all the approved Certificates of Control, for both in-quota
and out of quota imports.

Q72. (Both Parties) Can Turkey comment on the United States' assertion contained in
paragraph 123 of its first submission, that "Tur key ensures that the full amount of the quotas
cannot be reached by setting the domestic purchase requirement so high that the entire Turkish
domestic production of rice would be purchased by importers before the in-quota amount was
reached" and that, "[b]ased on the levels of domestic purchase set forth thus far, there is no way
for importers to be able to import anywhere approaching the 300,000 metric ton limit on milled
rice imports." If that were the case, please refer in particular to the reasons Turkey would
have, if any, in setting the import quotas above the actual level of possible realisation of imports.
Does the United States have any comments on the matter?

Turkey submits that the total amount of the tariff quota was determined on the basis of the production
projections of each year and the conversion coefficients indicated in related Communiqués.

Turkey's estimate for 2005-2006 crop season (Septe mber – November 2005) in Turkey was about
620.000-630.000 tons of paddy rice. If all the domestic pr oduction had been purchased under the
TRQ, 500.000 tons of paddy or 300.000 tons of ri ce equivalent would have been imported only via
TRQ in 2005. These were the exact quantities, which the quota opened for.

Q73. (Both Parties) In paragraph 23 of the written version of its oral statements, Australia
indicates that "... WTO jurisprudence supports th e view that the imposition of an 'additional
requirement' or an 'extra hurdle' on imported products, when compared to like domestic
products, constitutes less favourable treatment ..." Australia adds that "these 'extra hurdles'
need not be onerous in commercial and/or practical terms to be inconsistent with Article III:4 of
GATT 1994". Could the Parties comment on this statement.

Turkey respectfully recalls that GATT Article III:4, as interpreted by WTO case law, requires
imported products to be accorded 'competitive opportunities' no less favourable as compared to
domestic products. Turkey acknowledges that the imposition of additional requirements on imported
products may result in granting less favourable treatment.

However, Turkey respectfully recalls that the scope and the meaning of GATT Article III:4, as
described by Australia in its oral statements, must necessarily find application within the context of
Turkey's WTO MFN commitments. Turkey disagr ees that such reasoning should also apply to
volumes of trade within the TRQ, which provides an advantage to imported rice over domestic rice. In
particular, Turkey cannot support the view that the obligations provided under GATT Article III:4
would apply beyond the scope of Turkey's actual commi tments and within an advantage that Turkey
was spontaneously granting to imported over domestic ri ce. In this respect, Tu rkey considers that, if

MFN trade is not impaired, hampered or otherwise affected, it is a matter for the importers' business
determinations (and not a matter of governments' ev aluations) whether or not the domestic purchase
requirement constitutes an "extra hurdle." In relation to this, Turkey considers that within the TRQ the
essence of the advantage is ultimately determined by the choice of the importers. It is the importers
that must assess the convenience of the TRQ and its domestic purchase requirement. The fact that
importers made great use of the TRQ and benefite d of its tariff rate advantage, while MFN trade
remained available, represents a clear testimony of the existence of a considerable advantage for
imported products, in spite of the domestic purchase requirement.

Q74. (Both Parties) In pages 2 and 3 of the written version of its oral statements, Korea
indicates that "[n]o matter how much the cost of buying domestic rice was lowered by virtue of
the so called domestic purchase requirement, it can not be denied that importers had to
resource additional funds to purchase domestic ri ce, and foreign rice could be imported more if
such funds were not forced to be used to buy dom estic rice. The main focus in this issue is not
the price of domestic rice but the additional obligation imposed on the importers". Could the
Parties comment on this statement.

The calculations made on the average prices and the scenarios provided clearly indicate that importers
autonomously decided on the basis of purely commercial considerations whether or not it was
advantageous to purchase domestic rice in order to benefit of the tariff preference within the TRQ.

Turkey disagrees that greater amounts of foreign ri ce would have been imported had there not been a
domestic purchase requirement. At any time, as conclusively demonstrated on the basis of factual
evidence, importers could have destined unlimited fu nds to purchase rice at the MFN or applied rates.
The fact that most importers preferred to impor t within the TRQ, despite the domestic purchase
requirement, was entirely an individual business decision made on the basis of purely commercial
calculations.

Q75. (Both Parties) Two of the Third Parties in their oral statements have presented views on
the applicability of the Agreement on Trade-Related Investment Measures (TRIMs Agreement).
China in paragraphs 4 and 5 of the provisional version of its oral statement, asserted that
"Turkey ignores the fact that the US fails to defi ne what 'trade-related investment measure' is
and to prove Turkey's measure constitutes a TRIM"; and adds that "[i]n no case it is proper to
bring a measure out of the coverage of TRIMs Ag reement under the jurisdiction of it." Korea,
in page 3 of the written version of its oral statement, noted that the TRIMs Agreement can only
be applied to investment measures, which must h ave both a trade and an investment element.
In the case of the domestic purchase requirement, it asserted that "there does not appear to be
an investment element", and if so, "it can not be an investment measure, therefore the TRIMs
Agreement could not be applied." Could the Parties please commen t on the assertions made by
China and Korea in their oral statements.

Turkey notes that China and Korea raised interes ting points with respect to the application and the
necessary methodology for interpretation of the TR IMs Agreement. The United States seem to argue
that, as the domestic purchase requirement appears to fall within the defin itions provided in the
Illustrative List under subparagraph 1(a), the measure constitutes ipso facto a trade-related investment
measure, in violation of Article 2.1 of the TRIMs Agreement.

China believes that the United States has failed to identify which aspect of Turkey's domestic
purchase requirement constitutes a TRIM. Basically, China argues that the United States failed to
prove that the measure is a TRIM in the first place and simply made this assumption on the basis of
the Illustrative List. Korea rightly points out that, for the TRIMs Agreement to apply, a measure must
be a TRIM (i.e., have both a trade and an invest ment element). Korea believes that the Turkey's
domestic purchase requirement lacked the investment element. In addition, Korea considers that a

cross-border financial movement stands out as an essential element of any investment measure. In
practice, both China and Korea consider that the fu ndamental requirement of the existence of a TRIM
has been overlooked by the United States in its claim.

Turkey shares these views and considers that the correct methodology for interpretation of the TRIMs
Agreement should require a preliminary assessment of the existence of both the trade and the
investment elements of an alleged TRIM. This appear s to be reinforced by the reading of Article 1 of
the TRIMs Agreement, according to which " [t]his Agreement applies to investment measures related
to trade in goods."

Turkey is aware of the fact that the Panel in Indonesia – Autos did not consider necessary to decide
"whether any requirement by an enterprise to purcha se or use a domestic product in order to obtain
an advantage, by definition falls within the Illust rative List or whether the TRIMs Agreement requires
a separate analysis of the nature of a measure as a trade related investment measure before
proceeding to an examination of whether the me asure is covered by the Illustrative List ."
20 Turkey
wishes to observe, however, that in the same case the Panel felt it appropriate to determine fist
whether Indonesian measures were trade-related investment measures. 21 Turkey invites the Panel to
proceed in the same way, as it seems more consistent with the provision of Article 1 of the TRIMs
Agreement.

Should the Panel engage in such analysis, which Turkey considers necessary, it would indeed find that
Turkey's domestic purchase requirement is not, as Korea also argued, a trade-related investment
measure. Turkey considers that, so far, neither the TRIMs Agreement nor any Panel or the Appellate
Body provided a definition of what a trade-related investment measure is for the purposes of the
application of the TRIMs Agreement. It is clear, however, that despite not having yet been defined, a
TRIM necessarily requires a trade element and an investment element.

With respect to the investment element, Turkey wi shes to recall that, without intending to provide an
overall definition of what constitutes an 'investment measure', the Panel in Indonesia – Autos has
found the Indonesian measures to meet the 'investment requirement' because they " aimed at
encouraging the development of a local manufac turing capability for finished motor vehicles and
parts and components in Indonesia . Inherent to this objective is that these measures necessarily have
a significant impact on investment in these sectors. For this reason, we consider that these measures
fall within any reasonable interpretatio n of the term "investment measures. " According to the Panel,
the review of the legislative provisions related to those measures revealed " investment objectives and
investment features and which refer to investment programmes."
22

The Panel in Indonesia – Autos was encouraged to identify inv estment measures from few revealing
expressions and words included in the Indonesian legislation, such as, inter alia, "effort to promote
the growth of the domestic automotive industry", "a decree for the regulation of investment in the
national automobile industry", "to realise the de velopment of the national automobile industry,"
"within the framework of promoting the developmen t of the automotive industry in the increased use
of domestically produced automotive components. " Indonesia had also argued that its programmes
were aimed at, inter alia, improving the competitiveness of local companies and strengthen overall
industrial development; encourage the developmen t of the automotive industry and the automotive
component industry, encourage car companies to increase their local content, resulting in a rapid
growth of investment in the automobile industry.23

20 Indonesia – Certain Measures Affecting the Automobile Industry, Panel Report, para.14.71.
21 Indonesia – Certain Measures Affecting the Automobile Industry, Panel Report, paras. 14.71-14.72.
22 Indonesia – Certain Measures Affecting the Automobile Industry, Panel Report, para. 14.80
23 Indonesia – Certain Measures Affecting the Automobile Industry, Panel Report, paras. 14.77-14.78.

Turkey notes that nothing in its expired TRQ le gislation revealed or even implied 'investment
objectives'. Turkey also emphasises that, if a re lation to investment is the key element that
characterises a measures as an "investment measur e," it is clear that Turkey's domestic purchase
requirement could never have been an "investment measure" because it had no relation with
investment. In addition, Turkey has repeatedly stated that the TRQ, and its domestic purchase
requirement, aimed at achieving the necessary supp ly of rice into Turkey and at stabilizing the
domestic market. The TRQ has even done so providing foreign rice with an advantage. It was never
aimed at protecting or distorting trade, let alone at promoting the development of the national
industry. Turkey also fails to understand how the TRQ and its domestic purchase requirement could
have had a significant impact on investment in th e rice sector and development of a domestic rice
industry. Therefore, Turkey wishes to underline that its expired TRQ system, and the domestic
purchase requirement in particular, lacked any of the investment elements necessary for them to fall
within the scope of the TRIMs Agreement.

Turkey also wishes to make a statement in rela tion to the application of the TRIMs Agreement.
Turkey believes that this statement is of particul ar importance to further clarify its own previous
statements in relation to the TRIMs Agreement, not only in the light of China's and Korea's
submissions, but also in the light of the considera tions made by the EC concerning the idea of the
"order of analysis."

This directly calls into question the relationship between the TRIMs Agreement and the GATT, which
has been the object of few Panel and Appellate Body Reports leading to mixed results. In EC –
Bananas III , the Panel, faced with a an EC measure claimed to be inconsistent with both GATT
Article III:4 and Article 2.1 of the TRIMS stated that: " the TRIMs Agreement essentially interprets
and clarifies the provisions of Article III where tr ade-related investment measures are concerned.
Thus the TRIMs Agreement does not add to or su btract from those GATT obligations, although it
clarifies that Article III:4 may cover investment-related matters ."
24 On this basis, once it found the
measures inconsistent with GATT Article III:4, the Pa nel decided to resort to judicial economy with
respect to the claims related to the TRIMs.

The Panel in Indonesia – Autos came, instead, to a different conclusion. On the relationship between
the TRIMs Agreement and GATT Article III:4, the Panel had this to say: "we note first that on its face
the TRIMs Agreement is a full fledged agreement in th e WTO system. The TRIMs Agreement is not an
'Understanding to GATT 1994', unlike the six Understandings which form part of the GATT 1994. The
TRIMs Agreement and Article III:4 prohibit local co ntent requirements that are TRIMs and therefore
can be said to cover the same subject matter. But when the TRIMs Agreement refers to 'the provisions
of Article III', it refers to the substantive aspects of Ar ticle III; that is to say, conceptually, it is the ten
paragraphs of Article III that are referred to in Article 2.1 of the TRIMs Agreement, and not the
application of Article III in the WTO context as su ch. Thus if Article III is not applicable for any
reason not related to the disciplines of Article III its elf, the provisions of Article III remain applicable
for the purpose of the TRIMs Agreemen t. This view is reinforced by the fact that Article 3 of the
TRIMs Agreement contains a distinct and explicit ref erence to the general exceptions to GATT. If the
purpose of the TRIMs Agreement were to refer to Artic le III as applied in the light of other (non
Article III) GATT rules, there would be no need to refer to such general exceptions."
25

On this basis, and referring to the Appellate Body Report on EC – Bananas III in relation to the order
of examination, the Panel began its analysis of the consistency of the measures from the TRIMs
Agreement, as more specific than Article III:4, as far as the particular claims were concerned. The
Panel, having found the measures at issue inconsis tent with Article 2.1 of the TRIMs Agreement,

24 European Communities – Regime for the Importation, Sale and Distribution of Bananas , Panel
Report, para.7.185.
25 Indonesia – Certain Measures Affecting the Automobile Industry, Panel Report, paras. 14.60-14.61.

bearing in mind the principle of judicial economy and considering that action to remedy the
inconsistencies found under the TRIMs Agreement w ould also remedy any inconsistency found under
the GATT Article III:4, did not consider necessary to address the claims under GATT Article III:4.

Such latter approach was, however, not followed by the Panel in the Canada – Autos dispute.
26 As for
the other disputes cited, certain measures were claimed to be inconsistent under both GATT
Article III:4 and the TRIMs Agreement. The Panel reve rted to the approach followed by the Panel in
EC – Bananas III and decided to analyse the claims under GA TT Article III:4 first. This Panel was in
fact not "persuaded that the TRIMs Agreement can be pr operly characterized as being more specific
than Article III:4 in respect of the claims raised by the complaints."27 Therefore the Panel, considering
that from the order in which the complainants ha d presented their claims it was implicit that the
claims under GATT Article III:4 were to be addr essed first, started its analysis from the GATT
Article III:4 and found the measures to be inconsistent with the obligations set therein. The Panel did
not further investigate the consistency of the me asures with the TRIMs Agreement, aligning its
reasoning with what previously stated in the EC-Bananas III Panel Report.

Conversely, the same Panel found that certain othe r requirements were not inconsistent with GATT
Article III:4. In the light of this latter finding the Panel also rejected the claim under Article 2.1 of the
TRIMs Agreement.

A similar approach was followed by the Panel in India – Autos . Here the Panel clarified that
"[a]lthough the TRIMs Agreement has an autonomous le gal existence, independent from the relevant
GATT provisions, as noted in the Indonesia – Autos Panel, the substance of its obligations refers
directly to Articles III and XI of the GATT, and clarifies their meaning, inter alia, through an
Illustrative list. On one view, it simply provides additional guidance as to the identification of certain
measures considered to be inconsistent with Articles III:4 and XI:1 of the GATT […] ."28 The Panel
considered that in this case the order of analysis was of not much relevance and, following the order
of the complaints' claims, cons idered the claims under GATT firs t. In relation to the TRIMs
violations, the Panel again resorted to judicial economy.

Turkey considers this statement of the Panel of particular importance: " The order selected for
examination of the claims may also have an impact on the potential to apply judicial economy. It
seems that an examination of the GATT provisions in this case would be likely to make it unnecessary
to address the TRIMs claims, but not vice-versa. If a violation of the GATT claims was found, it
would be justifiable to refrain from examining the TRIMs claims under the principle of judicial
economy. Even if no violation was found under the G ATT claims, that also seems an efficient starting
point since it would be difficult to imagine that if no violation has b een found of Articles III or XI, a
violation could be found of Article 2 of the TRIMs Agreement, which refers to the same provisions "
29

Turkey has previously stated that , in order to establish the existence of a violation of the TRIMs
Agreement, its domestic purchase requirement must first be found to be inconsistent with the
provisions of GATT Article III. Turkey believes th at the United States has not established that the
domestic purchase requirement is in consistent with GATT Article III:4. For this reason, the Panel
should dismiss also the United States' claim in relation to the TRIMs Agreement.

To conclude, Turkey invites the Panel to reject the claims in relation to the alleged violations of the
TRIMs Agreement on the basis of the fact that the United States has not proved how Turkey's

26 Canada – Certain Measures Affecting the Automotive Industry, Panel Report.
27 Canada – Certain Measures Affecting the Automotive Industry, Panel Report, para 10.63.
28 India – Measures Affecting the Automotive Sector, Panel Report, para. 7.157.
29 India – Measures Affecting the Automotive Sector, Panel Report, para. 7.161.

domestic purchase requirement would result in a trade-related investment measure and if so whether it
would violated GATT Article III.

Q77. (Both Parties) In paragraph 122 of its first submission, Turkey asserts that the deadlines
for the submission of applications for import licenses was extended twice in 2005, as "evidence
that Turkey did not intend to discourage full utilization of the quotas."

 (b) Can Turkey indicate whether any import licences have been granted during
these extensions.

Turkey submits that 95 import licenses were issued by UFT within the extended period.

Q79. (Turkey) In paragraph 32 of its first submission, Turkey asserts that the tariff-rate
quota system (TRQ) "was not introduced as an instrument to protect or distort trade, but
rather as a tool to achieve the necessary supply of rice to Turkey and to stabilize the domestic
market". Can Turkey confirm whether alternat ive mechanisms, such as a lower MFN tariff,
would, in its opinion, not be capable of achieving the same objectives.

Turkey notes that through the TRQ it pursued, at the same time, two legitimate objectives, i.e., that of
a greater market supply and that of market stabilization. Turkey submits that through the TRQ system,
not only the supply of rice has increased, but also market and price stability was achieved.

In this respect Turkey notes that lower MFN rates would have achieved the desired increase in supply
without contributing to market stabilization. In an y event, Turkey submits that recourse to lower
MFN rates was made as lower rates were applied within the TRQ system. Recourse to lower MFN
rates would have also limited Turkey's ability to manage the market. It is well known that actual rates
cannot be continuously modified (i.e., increased or lowered, as need may be) even if this occurs
within the bound rate. Turkey believed that a TRQ would give greater stability, commercial
predictability and legal certainty to all stakeholders, including importers or third country exporters.

Q80. (Turkey) In paragraph 50 of its first written submission, the United States asserts that
"Turkey re-opens the TRQ with a domestic purch ase requirement that has been adjusted to
ensure that all domestically-produced rice is pu rchased and imports are effectively capped at
the difference between projected domestic consumption and projected domestic production."
Can Turkey comment on this assertion.

Turkey rejects these allegations and considers these assertions to be untrue and misleading. Turkey
also submits that imports could have never been capped, given that importa tion at MFN and applied
rates always remained available to importers.

Q81. (Both Parties) In its oral statement, Tha iland has raised the issue of "the inconsistency
of Turkey's rice TRQ regime with its obligations under Article II of GATT 1994 with respect to
its Schedule of Concessions". Further, in par agraph 5 of the written version of its oral
statement, it based its argument on "the factual evidence submitted by the United States,
[according to which] the treatment actually a ccorded by Turkey under its TRQ regime is 'less
favourable' than that provided in its Schedule to all Members." Can the Parties comment on
the issue raised by Thailand in its oral statement.

Turkey believes that Thailand's analysis of the effects of the TRQ regime in relation to GATT
Article II:1(a) is legally incorrect for two main reasons.

Turkey points out that GATT Article II:1(a) reads, in relevant part, that: "Each contracting party shall
accord to the commerce of the other contracting parties treatment no less favourable than that
provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement."

In order to find a violation of GATT Article II: 1(a), therefore, a comparison between the tariff
commitments included in the Schedules and the tr eatment actually granted to trade with other
contracting parties is required. To comply with the relevant GATT obligations, the treatment actually
granted must not be less favourable than what indicated in the Schedules.

First, it appears that Thailand based its consider ations on "the factual evidence submitted by the
United States." Turkey maintains that, rather than on circumstantiated factual evidence, many of the
United States' arguments rest on unproven assertions.

In particular, Thailand's arguments that the TRQ regime would be inconsistent with the obligations set
forth under GATT Article II:1(a) must follow from the paramount assumption that MFN trade of rice
is prohibited, restricted or otherwise impaired. Tu rkey has always rejected any allegation of this kind
and repeatedly submitted that the TRQ regime was only an advantageous option available to
importers. These importers have always been free to choose to import at the MFN and applied rates.
Turkey has brought ample evidence, expressed inter alia through data on approved Certificates of
Control
30 for MFN imports, which sharply contradicts "the factual evidence submitted by the United
States" on which Thailand's arguments appear to be based.

Second, Thailand seems to have overlooked that the calculations submitted by Turkey in its First
Submission and in its Oral Statements
31 have shown that, for both paddy and milled rice importation,
the TRQ regime provided a substantial advantage vi s-à-vis imports of rice at the MFN and applied
rates. Remarkably, Turkey demonstrated in its Firs t Submission and Oral Statements that this was at
times even the case with respect to the average cost of the TRQ imports, had they occurred without
the application of the domestic purchase requirement.

For these reasons, Turkey fails to understand wher e, according to Thailand, Turkey would have
granted less favourable treatment than the one committed under the Schedules. Turkey therefore
rejects the idea that its TRQ regime resulted into a violation of GATT Article II:1(a). In any event,
Turkey submits that the review of an alleged viol ation of GATT Article II:1( a) was never included in
the claims put forward by the United States and falls outside of the terms of reference of this dispute.

Q82. (Turkey) Both Parties have introduced cl aims concerning the intended and actual effects
of the TRQ regime, including the domestic purc hase requirement. In the light of Turkey's
claim that the TRQ is no longer in force and Tu rkey's statement that it does not intend to
reintroduce the TRQ, can Turkey specify whethe r and, if so, through what instruments the
intended and actual objectives under the TRQ might be achieved in the future.

Turkey submits that the TRQ regime, and its domest ic purchase requirement, had been introduced as
temporary measures. Turkey wishes to point out that the TRQ regime provided and advantage to
importers as compared to the importation at MFN rat es, which always remained available. Turkey
has used the TRQ regime for two years (i.e., in 2004 and 2005) after which it automatically expired.
Turkey has already expressed that it has in no inten tion to reintroduce the TRQ regime or any similar
system.

The domestic and international economic indicators al so lead Turkey to the assumption that there will
not be, at least for the foreseeable future, needs fo r market intervention and stabilization of the types

30 See Annex TR-33.
31 See First Written Submission of Turkey, para. 95, and Oral Statement from Turkey, paras. 27 and 28.

that the TRQ helped address. In particular, the Turk ish Lira is no longer weak and unstable, plenty of
rice is available internationally, and domestic rice remains competitive with predictable production
forecasts.

In any event, Turkey wishes to em phasize that it will no longer have recourse to the TRQ system, if
anything to lower its administrative costs and to avoid misunderstandings of the type that may have
triggered this dispute settlement proceeding. The only real market stabilization instruments will
remain the action of the TMO coupled with the use of appropriate MFN actual rates of duty.

Q83. (Both Parties) In page 1 of the written version of its oral statements, Korea indicates
that "the disproportionate number of certificates for out-quota imports should be explained by
Turkey in order to avoid the suspicion that the issuance of out-quota certificates have been
deliberately controlled". In page 2, Korea al so notes that "the proportion of out-quota
certificates to in-quota certificates in 2006 is much higher than it is for the years 2004 and 2005"
and states that "[a]n explanation for this should be sought so as to avoid the assumption that
Turkey loosened its grip on out-quota certificat es only after having been challenged in the
WTO". Could the Parties comment on these statements.

Turkey does not consider that the number of out-of quota Certificates of Control for 2004 and 2005 is
"disproportionate," given that the advantage pr ovided by the TRQ rendered in-quota importation far
more appealing. In addition, the comparison between out-of-quota and in-quota Certificates of
Control in 2005 shows no disproportion at all, as fi gures show that 394 Certificates of Control were
approved for out-of-quota imports and 432 for in-quota imports.

Turkey also submits that the different trends of 2006 are easily explained by the fact that the TRQ
regime expired in July 2006, so that after this da te all importations have been realized on out-of-quota
basis. In any event, Turkey wish es to respectfully submit that the Certificates of Control were always
approved on the basis of the requests for approval put forward by importers. The choices of importers
were only ever dictated by business considerations and commercial calculations.

Q84. (Both Parties) In the hypothetical case that Certificates of Control do not qualify as
import licenses under the Import Licensing Agreemen t, would it automatically flow that such
documents cannot qualify as import licenses under GATT 1994 either?

Article 1.1 of the WTO Agreement on Import Licensi ng Procedures circumscribes the coverage of the
Agreement by stating that:

For the purpose of this Agreement, import licensing is defined as administrative
procedures used for the operation of import licensing regimes requiring the
submission of an application or other doc umentation (other than that required for
customs purposes) to the relevant admi nistrative body as a prior condition for
importation into the customs territory of the importing Member.
GATT Article XI:1 and the Agreement on Import Licensing Procedures cover different issues and
pursue different objectives. In particular, the Appellate Body in EC – Bananas clarified that the
Agreement on Import Licensing Procedures " concerns import licensing procedures. The preamble of
the Licensing Agreement indicates clearly that this agreemen t relates to import licensing procedures
and their administration, not to import licensing rules. Article 1.1 of the Licensing Agreement defines
its scope as the administrative procedures used for the operation of import licensing regimes".
32

32 European Communities – Regime for the Importation, Sale and Distribution of Bananas , Appellate
Body Report, para. 197.

However, Turkey notes that the Agreement on Import Licensing Procedures was endorsed by WTO
Members, inter alia, with the aim of furthering the objectives of the GATT and ensuring that import
licensing procedures are not utilized in a manner cont rary to the principles and obligations of the
GATT. These principles and obligations are, inter alia, those included in Article XI:1 of the GATT,
so that it can be concluded that the Agreemen t on Import Licensing Procedures shows a substantial
link with GATT Article XI:1 by aiming at further developing and clarifying the provisions therein
included in a manner which is consistent with the wording and the scope of GATT Article XI:1.

In light of these considerations, Turkey believes th at, in the absence of a precise definition of the
concept of "import license" under GATT Article XI:1, Article 1.1 of the Agreement on Import
Licensing Procedures must necessarily provide an element of interpretative guidance. Therefore,
Turkey submits that, while the non-applicability of GATT Article XI:1 cannot be an automatic result
of the inapplicability of the Agreement on Import Li censing Procedures, the practical result should be
the same as a consequence of the recourse to the interpretative guidance on the meaning of the term
"import license" offered by the Agreement on Import Licensing Procedures for purposes of the
application of the GATT 1994.

Q85. (Turkey) In paragraph 28 of its first s ubmission, Turkey explained that "Turkish law
does provide for the use of import licenses [tha t] are required for imports of rice within the
TRQ". Turkey added that these import licen ses "do not serve a customs purpose, but rather
aim at allocating the available quota among traders and guaranteeing predictability of the
market supply". Is the approval of these import licenses the only intervention that customs
authorities would have in relation with the importation of rice into Turkey?

Importers wishing to import through the TRQ, have to submit to the customs authorities the import
license and their Certificate of Control in order to benefit from the reduced rates of duty. The customs
authorities are not the authorities competent for th e approval of import licenses. This competence
belongs to UFT. Customs authorities merely check the licenses for the imposition of the duty and for
dual usage prevention.

Q86. (Turkey) In relation to paragraph 2 of the United States' first submission, please
provide information establishing the average time importers must wait for a response to their
license applications at the MFN tariff rate.

Turkey would like to emphasize that no import licen ce has ever been requested for imports at the
MFN rates of duty. Import licences have always only applied to TRQ in-quota trade (when this
system was in force).

If the Panel is referring to the administrative delay for purposes of the approval of Certificates of
Control, Turkey submits that a general administrati ve rule applicable to all instances of interaction
between the Turkish administration and the world at large provides for a maximum delay of 15 days
for a decision to be taken. In relation to the appr oval of Certificates of Control, Turkey wishes to
refer to the dates provided in the table contained in Annex TR-33 herewith.

A general overview will clearly show that the gene ral administrative delay is well below 15 days.
Often the Certificates of Control were (and are) ad opted within 1 or 2 dates from the date of first
application. Other times, this delay has been up to 25 days, but those instances show repeated
applications to correct mistakes or fill gaps in the first application.

Q87. (Turkey) Under the WTO Agreement on Import Licensing Procedures one of the
requirements for automatic import licences to be deemed as not having trade-restricting effects

is that "applications for licences may be submi tted on any working day prior to the customs
clearance of the goods" (Article 2.2(a)(ii)). Could Turkey explain how the deadlines for
submitting applications for import licences unde r its tariff-rate quota regime as contained in
various communiqués from its Foreign Trade Undersecretariat (FTU) comply with this
requirement?

Turkey believes that its TRQ system and the pro cedures for import licensing were always well within
the rules and provisions of the WTO system, including those of the Agreement on Import Licensing
Procedures. In particular, its licenses always ha d a validity which corresponded to the duration of the
TRQ. Applications for licences were admitted with in a time frame that ranged from three to six
months from the opening of the TRQ and was ofte n extended to ensure full utilization of quotas.
33
Finally, licences did not entail the deposit of bonded securities.

The result of such a permissive system was always one of great quota utilization. Importers never
applied, in practice, at such short notice (i.e., one day from customs clearance) simply because rice
trade and rice importation cannot be improvised at such short notice, but require early planning to
order the rice, load it, transport it, unload it, etc.

Q88. (Turkey) In paragraph 43 of its first submission, Turkey states that the requirements
for the application and evaluation procedures of the import licenses under its tariff-rate quota
regime have always been clear, transparent and easy to implement for all importers.

 (a) Can Turkey elaborate on what are these evaluation procedures?

The evaluation procedure consists in controllin g the documents provided by the applicant and
comparing them with the information required in th e relevant legal instruments (i.e., the relevant
communiqués). In addition, a calculation of the qu antity of imported rice which the import licence
should be granted for is carried-out. This calcu lation is based on the quantity of domestic rice
purchased and the applicable coefficients.

 (b) Does the application of evaluation pro cedures imply that the import licenses will
not be granted in all cases?

 (c) If so, in which cases will they not be granted?

Turkey submits that import licenses have always b een granted, provided that the quota is available
and all the documents and information required are duly completed.

Q89. (Turkey) In paragraph 51 of its first submission Turkey states that: "[t]here is no
import licensing regime applicable to imports of rice into Turkey under MFN trade. There is
an import licensing regime only in relation to rice imports under TRQ trade." To support this,
in the same paragraph Turkey points out that "[t]he rules in relation to these licenses are set out
in Decree No. 2005/9315 on the 'Application of Tariff Quota for the Importation of Some
Species of Paddy Rice'." Could Turkey specify the relevant situation and legal rules applicable
to import licences for rice prior to the entry into force of Decree No. 2005/9315.

Turkey wishes to clarify that Decree No. 2005/9 315 is only related to TRQ opened in year 2005.
There are two other Decrees (i.e., Decree No. 2004/7135 and Decree No. 7756, which relate to the

33 See, in particular, Article 2 of Communiqué on Application of Tariff Quota For the Importation of
Some Species of Paddy rice and Rice No. 25943, Annexe TR-13 of Turkey's First Submission and Article 2 of
Communiqué on Application of Tariff Quota For the Importation of Some Species of Paddy rice and Rice
No. 25577 and further amendments, in Annexes TR-17, TR-18 and TR-19 of Turkey's First Submission.

TRQ openings in 2004). For a detailed chronology of the history of the TRQ regime, reference
should be made to the factual background provided by Turkey in its First Submission.34

Q90. (Turkey) Regarding the Turkish Grain Board:

 (a) Can Turkey provide more information on the nature and role of the Turkish
Grain Board.

 (b) Can Turkey provide copy of the relevant legal instruments that regulate the
functions and composition of the Turkish Grain Board.

 (c) Can Turkey explain what are the functions of the Turkish Grain Board as
regards to the production and sale of domestic rice and the importation of rice.

Turkey refers to Annex TR-40 herewith for all re levant information regarding the nature, functions
and composition of the TMO.

Q91. (Both Parties) Is the Turkish Grain Board a state trading enterprise as defined in GATT
Article XVII and the Understanding on the Interpretation of Article XVII of the GATT 1994?

Turkey respectfully submits that the TMO is not a state trading enterprise in that it was never granted
any exclusive or special right or privilege throug h which it could exercise influence on the level of
imports and exports. The TMO merely acts as an in tervention agency to prevent grain prices from
excessively falling or increasing.

Q92. (Turkey) During the first meeting with the Panel, Turkey asserted that the Turkish
Grain Board plays a role, inter alia, in stabilising the domestic rice market. In this regard,

 (a) Under what legal basis does the Turkish Grain Board perform this function?

Turkey submits that the relevant information is to be found in Annex TR-40.

 (b) How is the Turkish Grain Board financed in order to participate in the market
in this manner?

TMO's activities are financed by its own resources as well as by credits obtained from domestic
and/or foreign financial markets.

 (c) If the Turkish Grain Board buys rice at a more expensive price than that of the
market, why would a domestic producer sell rice to an importer, at market
price, instead of to the Turkish Grain Board, at a higher price?

Turkey submits that while it is correct that TM O declares purchasing prices which are higher than the
market prices (the ceiling price is for the best qua lity product), received prices are much lower than
what is declared (please note Turk ey's reply to question 7-iii). Turkey also submits that it is received
prices that must be compared with the market prices. Such comparison would indicate that TMO
prices received by rice producers are similar to tho se formed in the domestic market. For instance, in
2005, although the TMO's declared price was 720 YTL/TON, the received price ended up being 612
YTL/TON, which is even lower than the market pr ice, i.e. 640 YTL/TON. On the other hand, most
rice producers are usually in need of receiving immediate payment for their deliveries. TMO
sometimes declares purchasing with a certain amount of delay and growers in such a position seek for

34 See paras. 35-42 of the First Submission by Turkey.

buyers other than TMO. Another factor which expl ains why rice producers prefer to sell to importers
rather than to the TMO relates to the fact that deliveries to the TMO can be difficult and sometimes
take long time, especially for those rice producers th at suffer from the lack of transportation means.
For all these reasons, rice producers tend to sell to the importers instead of selling to the TMO.

 (d) If the Turkish Grain Board sells rice at a price above that of the market, in
order to comply with the domestic purchase requirement to import under the
TRQ, why would an importer purchase rice from a Turkish Grain Board
instead of from a domestic producer, at the lower market price?

Since Turkey is a net importer of rice, once the harvesting season is finished, supply from the market
is quite limited. Therefore, it is frequently TMO ra ther than domestic growers that meets the demand
of rice importers. Additionally, TMO offers forwar d sales option to attract potential rice buyers. And
this also affects buyers' preference for TMO rice.

Q93. (Turkey) The Panel has noted Turkey's letter dated 30 August 2006, in which Turkey
informs the Panel that it has designated as "c onfidential" all its submissions concerning the
current proceedings and that it would provide the United States with a non-confidential
summary of its submissions in accordance with Article 18.2 of the DSU. Is the executive
summary of Turkey's first submission, dated 18 October 2006, to be considered as the non-
confidential summary of the information contained in Turkey's first written submission under
the terms of Article 18.2 of the DSU?

Yes.

ANNEX C-3

REPLIES BY AUSTRALIA TO QUESTIONS POSED BY THE PANEL
AFTER THE FIRST SUBSTANTIVE MEETING
(21 November 2006)

Q94. (For all third parties) Have any of the Th ird Parties who have exported rice to Turkey
encountered difficulties entering the Turkish mark et similar to the ones described by the
United States, and in particular with respect to the requirement of Certificates of Control? If
so, please describe the nature of such difficulties.

Australia last exported rice to Turkey in 2003. Many of the problems the US claims to have
encountered appear to date from late 2003. However, Australian exporters' experience was that import
certificates were often unavailable from the start of harvest to the completion of new crop marketing
so that imports were often effectively banned during the critical harvest period.

Q95. (For all third parties) In the case of Th ird Parties who have exported rice to Turkey,
have their exports entered the Turkish market within or outside the TRQ?

The US submission states (at paragraph 39) th at the TRQ was applied from April 2004. This
post-dates Australia's last export of rice to Turkey.

Q96. (For all third parties) In the case of Thir d Parties who are at least potential exporters of
rice, but have not exported rice to Turkey, what are the reasons for not exporting rice to
Turkey?

Australia only exports rice to Turkey when Aust ralia has surplus production. Australia does not
normally export to Turkey as the tariff schedule rates for rice favour imports of paddy rice above
milled rice. Australian exporters prefer to export branded processed and milled rice, so Turkey's tariff
rates make it an unattractive export market. Since 2003, drought has constrained the Australian rice
crop and Australian exporters have not had enough surplus rice to export to Turkey.

ANNEX C-4

REPLIES BY EGYPT TO QUESTIONS POSED BY THE PANEL
AFTER THE FIRST SUBSTANTIVE MEETING
(21 November 2006)

Q94. (For all third parties) Have any Third Parties who have exported rice to Turkey
encountered difficulties entering the Turkish market similar to the ones described by the United
States, and in particular with respect to the require ment of Certificates of Control? If so, please
describe the nature of such difficulties.

Turkish authorities have provided different explana tions to Turkish importers of Egyptian rice when
refusing their applications for Certificates of Cont rol. As can be noted from the attached copies of
letters that were provided to us by Egyptian ri ce exporters, the explanations given by Turkish
authorities to support their decisions were not always clear.

In two letters dated 1 May 2005, the Province Agricu ltural Directorate of the Ankara Governership
returned the applications submitted by Mehmeto ğlu Iç Ve Dis Ticaret A.S. and Helin Gida Pazarlama
Sanayi Ve Ticaret Ltd. Sti on 21 April and 29 Ma rch 2006 respectively. In both letters, the following
laconic reason was given for not accepting the appli cations submitted by the Turkish importers of
Egyptian rice: "Your application file for importing middle grained rice from Egypt has been returned
to you because any control document can not be arranged according to the laws".

In another letter dated 1 May 2005, the Province Ag ricultural Directorate of the Ankara Governership
indicated to Mehmetoğlu Iç Ve Dis Ticaret A.S. that " Rice control document can not be arranged for
your company mentioned in your wr itten application according to the laws ". The company was then
invited to submit an application for imports of paddy rice.

In a letter dated 26 May 2005, the Directorate General of Protecting and Controlling of the Ministry
of Agriculture and Rural Affairs appears to conf irm that the Ankara Governership rejected the
application for a Certificate of Control lodged by Mehmeto ğlu Iç Ve Dis Ticaret A.S. and that the
importation of Egyptian rice into Turkey is, thus, impossible.

Q95. (For all third parties) In the case of Third Parties who have exported rice to Turkey,
have their exports entered the Turkish market within or outside the TRQ?

Egyptian exporters of rice to Turkey have indicated to us that the great majority, if not all, imports of
Egyptian rice into Turkey in the most recent years were made under the TRQ.

ANNEX C-5

REPLIES BY THE EUROPEAN COMMUNITIES TO QUESTIONS
POSED BY THE PANEL AFTER THE FIRST SUBSTANTIVE MEETING
(21 November 2006)

Q94. (For all third parties) Have any of the Third Parties who have exported rice to
Turkey encountered difficulties entering the Turk ish market similar to the ones described by
the United States, and in particular with respect to the requirement of Certificates of Control?
If so, please describe the nature of such difficulties.

The European Communities have no evidence of sim ilar difficulties to the ones encountered by the
United States, when exporting rice to Turkey.

Q95. (For all third parties) In the case of Th ird Parties who have exported rice to Turkey,
have their exports entered the Turkish market within or outside the TRQ?

1. During the marketing year 2004/2005 (September 2004-August 2005) the European
Communities exported to Turkey 41248 tonnes of semi-milled and wholly milled rice. During the
marketing year 2005/2006 (September 2004-Augu st 2005), the quantities exported to Turkey
amounted to total 31428 tonnes of rice, out of which 28864 of semi-milled and milled rice; 2533 of
husked rice and 32 tonnes of paddy rice.

2. The European Communities enjoy a preferen tial TRQ of 28000 tonnes at 0 duties for semi-
milled and milled rice. Rice exports outside the quota are applied MFN tariff rates.

3. The European Communities' exports of rice ha ve entered the Turkish market both within the
preferential tariff rate quota and outside the tariff rate quota.

Q96. (For all third parties) In the case of Thir d Parties who are at least potential exporters of
rice, but have not exported rice to Turkey, what are the reasons for not exporting rice to
Turkey?

The European Communities exports rice to Turkey.

Q97. (European Communities) In the course of these proceedings, the United States has
referred to a bilateral agreement, under whic h the European Communities would enjoy an
annual quota of milled rice into Turkey.

Please provide the provisions of that agreement, relevant to the importation of rice into Turkey.

The Agreement establishing an Association between the European Economic Community and Turkey
establishes, inter alia, a preferential trade regime for agricultural products.

Trade preferences between Turkey and the European Communities are consolidated in Decision 1/98
of the EC/Turkey Association Council of 28 Februa ry 1998. In particular, the preferential régime
applied by Turkey to products originating in the Co mmunities is specified in Protocol 2, Annex II to
Decision 1/98. Under Protocol 2, Article 2, par.2 st ates that "For certain products listed in the annex,
the import charges shall be eliminated within the limit of the tariff quotas listed in column "D" thereof
for each of them. For quantities in excess of th e quotas, the import charges of the Turkish import
regime to third countries shall apply". The list of pr oducts referred to in Article 2, par. 2 includes a
tariff rate quota of 28 000 tonnes at 0 duty for semi-milled and wholly milled rice.

Explain whether European imports of rice into Turkey are treated differently from other
imports.

Within the framework of the EC/Turkey Associa tion Agreement, the European imports of rice
entering the Turkish market enjoy preferential treat ment within a tariff rate quota of 28 000 tonnes
at 0 duty. Imports outside the quota are submitted to the import charges which the Turkish import
regime applies to third countries.

More specifically, explain whether importers of European rice are required to obtain
Certificates of Control in order to import rice into Turkey.

The European Communities confirm that importers of European rice are required to obtain
Certificates of Control in order to import rice into Turkey.

Q98. (European Communities) In paragraph 5 of the written version of its oral statements, the
European Communities has referred to Egypt' s comments in its Third Party submission
regarding the "unpublished Letters of Acceptance". In this regard, the EC expresses its view
that "the issue is more subtle than as expressed by Egypt as it is important to establish whether
a measure exists in the first place", adding that "the fact that a given document has not been
published is relevant". Can the EC expand its co mments. Can it indicate in what manner the
fact that the so-called Letters of Acceptance may have not been published is relevant, in order to
determine whether they may be considered as "laws, regulations, judicial decisions or
administrative rulings" within the meaning of Article XI:1 of the GATT.

It would appear to the EC that the question of the Panel refers to the wording of Article X:1 of the
GATT whereas the oral submission on the point referred to by the Panel related to Article XI:1.

The EC did not intend to suggest that the indivi dual Letters of Acceptanc e could not qualify as
"measures" within the meaning of Article XI:1of the GATT.

In its first written submission the United States consid ers that "Turkey's denial of import licenses to
import rice at or below the bound rate of duty cons titutes a prohibition or restriction on imports other
than in the form of duties, taxes or other charges and thus is inconsistent with Article XI:1 of the
GATT 1994". In other words, it would appear that the "measure" the US is challenging is the denial of
import licences, the existence of which is demonstr ated allegedly by (inter alia) the individual and
unpublished "Letters of Acceptance".

The EC considers that challenging the regime as such is different from challenging the individual
Letters of Acceptance addressed to individual importers of rice. It is the unpublished nature of this
general denial or "unofficial ban" (see US submission paragraph 14) that the EC considers relevant to
the issue of proving its existence. The Letters of Acceptance seem to be presented as evidence of the
existence of the measure the US is challenging rather than as the challenged measure itself.

In deciding whether the challenged measure i.e. the de nial of import licences exists in the first place,
the EC considers it important whether it is manifested in some public way.

In contrast, should the US be challenging the applic ation of the Turkish rice import regime as applied
in certain instances, it could be that the individu al Letters of Acceptance would qualify as "measures"
within the meaning of Article XI:1 of the GATT.

ANNEX C-6

REPLY BY KOREA TO QUESTIONS POSED BY THE PANEL
AFTER THE FIRST SUBSTANTIVE MEETING
(21 November 2006)

Q94. (For all third parties) Have any of the Third Parties who have exported rice to Turkey
encountered difficulties entering the Turkish market similar to the ones described by the United
States, and in particular with respect to the requirement of Certificates of Control? If so, please
describe the nature of such difficulties.

Q95. (For all third parties) In the case of Th ird Parties who have exported rice to Turkey,
have their exports entered the Turkish market within or outside the TRQ?

Q96. (For all third parties) In the case of Thir d Parties who are at least potential exporters of
rice, but have not exported rice to Turkey, what are the reasons for not exporting rice to
Turkey?

 With respect to questions 94, 95 and 96, Korea would like to inform the Panel that Korea has
never exported rice to any country, including Turkey, and has no meaningful potential to export rice
in the near future.