(c) Discretion not to consider that non-implementation has occurred/Discretion with respect to timing of consideration

4.917 The European Communities argues that when the USTR "shall" determine "what" action she "shall" take, she is constrained by the closed list under section 301(c). That list requires either to withdraw concessions or other benefits (and therefore the publication of a "retaliation list") or to enter into a binding agreement (whose content is pre-determined). This second leg of the alternative open for the USTR constitutes the only escape for the targeted WTO Member in order to avoid the (explicitly threatened) retaliation.

4.918  The European Communities notes that in the Bananas III case, the USTR published a notice on the Federal Register⁴⁴⁷ where, inter alia, it explicitly indicated the following

"Section 306 (c) of the Trade Act provides that the USTR shall allow an opportunity for the presentation of views by interested parties prior to the issuance of a determination pursuant to section 306 (b)" (emphasis added)

4.919  The European Communities also recalls that on 10 November 1998, USTR published a second notice on the Federal Register⁴⁴⁸ concerning a proposed "determination of action" with an attached list of selected EC products on which the imposition of prohibitive (100 per cent ad valorem) duties was envisaged. The notice in question was published "in accordance with section 304 (b) of the Trade Act".

4.920  The European Communities considers that there can be no doubt that the Korean statement is correct as it is the immediate consequence of the text, design, structure and architecture of Sections 301-310 in their present form. Moreover, the implementation and the public statements by the USTR concerning the interpretation of Sections 304 and 306 come as further confirmation of the EC's claims, which are supported by Korea and several other WTO Members.

4.921  The European Communities then argues that the mechanics of the mandatory determinations and actions that the US executive authorities are mandated to implement together with the ensuing explicit threat against the other WTO Members resulting from this legal situation is more than sufficient⁴⁴⁹ evidence to prove the full disregard that Sections 301-310 have for the US obligations under the WTO Agreements, in particular under Article XVI:4 of the Marrakech Agreement, Article 23 of the DSU and Article 26 of the Vienna Convention on the Law of Treaties.

4.922  The United States points out that nothing in Section 306(b) obligates the USTR to conclude that another Member has failed to implement DSB recommendations. This is a purely discretionary decision, and the European Communities has failed to meet its burden of demonstrating why it would not be possible for the USTR to conclude that no action need be taken because implementation has been satisfactory, because adequate progress is being made, or because further dispute settlement proceedings are necessary to achieve satisfactory implementation.

4.923  In rebuttal, the European Communities recalls that the United States further claims that the USTR is not required to determine that United States' rights under a WTO agreement are being denied and that a failure to implement DSB recommendations occurred and that, consequently, Sections 301-310 do not mandate determinations inconsistent with Article 23 of the DSU. However, these determinations must be based on the investigation initiated by the USTR under Section 302 or the monitoring conducted by the USTR under Section 306(a).

4.924  In the view of the European Communities, there is nothing in Sections 301-310 that would permit the USTR to make her determinations on any other basis, for instance on the basis of a delay in the WTO dispute settlement proceedings. The United States in effect makes the astonishing claim that the USTR may determine under Sections 301-310 that no denial of rights and no failure to implement DSB recommendation occurred because the WTO dispute settlement have not been completed.

4.925  The European Communities submits that it would not be logical to interpret Sections 301-310 to authorize determinations on the WTO-consistency of measures on the basis of factors that are entirely outside the plain language of the law and, as such, irrelevant to such a determination.

4.926  The United States argues that there are no "specified time frames" for "considerations". Inasmuch as a consideration is no more than a belief, the USTR may, at any time – before, during or after the reasonable period of time – consider that another Member has not implemented DSB rulings and recommendations, just as a Member may consider, may believe, that another Member has violated its WTO obligations before, during and after the deadline for submitting a request to establish a panel at a given DSB meeting. Section 306 provides only that if, during the 30 days following the reasonable period, the USTR considers that non-implementation has occurred, she shall determine whether to avail herself of Article 22 procedures. Indeed, as Article 22 is currently drafted, she must avail herself of these procedures within this time frame if the United States is to preserve its WTO rights. However, nothing prevents her from not considering during that 30-day period that non-implementation has occurred.

(d) Practice

4.927  In response to a Panel question, the United States explains that to date, the USTR has considered that an agreement was not being satisfactorily implemented in two cases involving the GATT or a WTO agreement. In January 1999, the USTR considered that it would be necessary to pursue Article 22 proceedings in the Bananas dispute, and proposed suspension of concessions on certain products. On April 19, 1999 the DSB authorized suspension in accordance with an arbitrator's report. In May 1999, the USTR considered that it would be necessary to pursue Article 22 proceedings in the EC – Hormones dispute. Those Article 22 proceedings are now in progress.

4.928  The United States explains that in January 1999, the USTR considered that it would be necessary to pursue Article 22 proceedings in the Bananas dispute, and proposed suspension of concessions on certain products. On April 19, 1999 the DSB authorized suspension in accordance with an arbitrator's report. There is no copy of the USTR's decision to pursue Article 22 procedures because it was not a determination. In May 1999, the USTR considered that it would be necessary to pursue Article 22 proceedings in the EC – Hormones dispute. Article 22 proceedings are now in progress. There is no copy of the decision to pursue Article 22 procedures because it was not a determination. However, attached please find a notice issued on March 25, 1999 requesting comments on implementation of WTO recommendations in Hormones (US Exhibit 17). That notice stated that it likely would be necessary to pursue Article 22 procedures in light of the EC's having indicated at the March DSB meeting that it did not expect to be in compliance by the end of the reasonable period of time in May.

4.929  In response to the Panel's question as to the EC – Banana III, the United States states that it is difficult to respond to the question of when a "consideration" is "actually taken" because it reflects no more than a belief on the part of the USTR. As such it is not "taken". At any given point in time, she may believe that implementation has occurred, that it has not occurred as of that time, or that it may occur if certain steps are taken or commitments made. The first formal written record that the USTR considered that the European Communities had not implemented DSB rulings and recommendations by the end of the reasonable period of time is the January 14, 1999 request of the United States for authorization to suspend concessions.⁴⁵⁰

4.930  The United States explains that the initial determination of what action to take, made on January 14, 1999, was that the United States should, in accordance with Article 22, suspend concessions if authorized at the DSB meeting of January 29, 1999 or, if the European Communities requested arbitration pursuant to Article 22.6 regarding the level of suspension, then to suspend concessions thereafter in accordance with the arbitrators' decision, and upon DSB authorization pursuant to Article 22.7. This determination is reflected in the Federal Register notice of April 19, 1999 announcing DSB authorization to suspend concessions.⁴⁵¹ The domestic legal basis for this determination was: (1) Section 301(c)(1)(A), which provides for suspension of concessions; (2) Section 301(a)(3), which provides that action affecting goods or services will be in an amount equivalent in value to the burden or restriction on US commerce (requiring that the USTR not suspend concessions in an amount in excess of the level of nullification and impairment found by the arbitrators and authorized by the DSB); (3) Section 304(a)(1), requiring that determinations be based on dispute settlement proceedings; (4) Section 301(a)(2)(A)(ii)(II), specifying that the USTR need not take action if dispute settlement proceedings indicate no nullification or impairment; (5) Section 302(a)(2)(B)(i), specifying that the USTR need not take action if the foreign country has taken satisfactory measures, which participation in and compliance with DSU proceedings and rules would constitute.⁴⁵²

4.931  The United States argues that the consideration was not a determination, and was not published. The Section 304 determination of action taken under Section 301 is reflected in the Federal Register notice of April 19, 1999. As discussed at the second substantive meeting, the publication requirement in Section 304(c) is not time limited. The United States explained that the determination of action was made within the 30-day time frame.

4.932  In response to the Panel's question on EC – Hormones, the United States further explains that the first formal written record that the USTR considered that the European Communities had not implemented DSB rulings and recommendations by the end of the reasonable period of time is the May 18, 1999 request of the United States for DSB authorization to suspend concessions.⁴⁵³

4.933  The United States further indicates that the initial determination of what action to take, made on May 18, 1999, was that the United States should, in accordance with Article 22, suspend concessions if authorized at the DSB meeting of January 29, 1999 or, if the European Communities requested arbitration pursuant to Article 22.6 regarding the level of suspension, then to suspend concessions thereafter in accordance with the arbitrators' decision, upon DSB authorization pursuant to Article 22.7. This determination is reflected in the Federal Register notice of July 27, 1999 announcing DSB authorization to suspend concessions.⁴⁵⁴ The consideration was not a determination, and was not published. The determination is reflected in the Federal Register notice of July 27, 1999. The determination of action was made within the 30-day time frame.

4. Sections 306 and 305

(a) Overview

4.934  The European Communities claims that Section 306(b) provides that the USTR shall determine what further action to take under Section 301(a) no later than 30 days after the expiration of the reasonable period of time if in its view the compliance is not satisfactory. The use of the terms "determine what further action [will be taken]" (rather than "whether" or "when" further action will be taken) and the reference to the part of Section 301 dealing with "mandatory actions" implies that the USTR is required to announce at this stage which of the retaliatory trade measures that the USTR is authorized to take under Section 301(c) will be applied in response to what the United States unilaterally considers to be unsatisfactory compliance.

4.935  The European Communities argues that Section 305 regulates when the announced action must be implemented.  Here again the USTR must observe strict time limits. According to Section 305(a)(1) the action must be implemented in principle "no later than the date that is 30 days after the date on which such determination is made". If the USTR considers that the compliance is unsatisfactory, the USTR must thus determine, at the latest 60 days after the expiration of the reasonable period of time, the level of suspension of concessions or other obligations and the sector to which the suspension shall apply, and impose discriminatory duties, fees or restrictions on the trade of the Member concerned.

4.936  The European Communities further states that in cases where disagreement exists between the parties as to the existence or the conformity of the implementing measures, the procedure of Article 21.5 DSU must be applied before any suspension of concessions can be authorized by the DSB. In such cases, the 60-day time frame of section 306(b) will not normally be sufficient to carry out the dispute settlement procedure, since the procedure of Article 21.5 foresees 90 days for the panel ruling alone. But even where there is no disagreement between the parties to the dispute as to the existence or the conformity of the implementing measures, the 60-day time limit will still be insufficient for the following reasons.

4.937  In the view of the European Communities, Article 23.2(c) of the DSU obliges the United States to follow "the procedures set forth in Article 22 to determine the level of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations". According to those procedures, both the level of suspension and the sector chosen may be challenged and referred to arbitration.

4.938  The European Communities considers that under Article 22.6 of the DSU, "concessions or other obligations shall not be suspended during the course of the arbitration".

4.939  The European Communities asserts that Article 22.7 stipulates that the "DSB shall … upon request grant authorization to suspend concessions or obligations where the request is consistent with the decision of the arbitrator", which implies that the DSB must await the completion of the arbitration proceeding before authorizing a suspension of concessions or obligations.

4.940  The European Communities notes that according to Article 22.6 of the DSU, the arbitration on the level or nature of the suspension of concessions or obligations "shall be completed within 60 days after the date of the expiry of the reasonable period of time".

4.941  The European Communities explains that when an arbitration decision is issued, the request to suspend concessions is subject to two compulsory conditions:

1. it must be consistent with the decision of the arbitrator; and
2. pursuant to Rule 1 of the rules of procedure governing the meetings of the DSB referring to the rules of procedure governing the meetings of the General Council, and in particular Rules 2 and 4, it must be submitted at least ten days before the meeting of the DSB.

4.942  The European Communities then considers that after the end of the reasonable period of time, a period of at least 70 days is foreseen to carry out the several actions (i.e. inter alia, request for compensation, request for authorization, arbitration on the level of the requested suspension) which must precede the authorization of suspension of concession by the DSB. This period of 70 days is not at the disposal of the party wishing to be authorized to suspend concessions.

4.943  The European Communities argues that the USTR is nevertheless required under Section 305 to determine unilaterally the level and the nature of the suspension of concessions or other obligations within 60 days. This statutory requirement is inconsistent with United States' obligations under Article 23:2(c) of the DSU and Article XVI:4 of the WTO Agreement.

4.944  In the view of the European Communities, the operation of Section 306 can be illustrated by the USTR's determinations and actions in the case of the dispute between the United States and the European Communities on the banana regime.

4.945  The European Communities further maintains that on the basis of a unilateral determination that the European Communities had failed to implement the DSB's recommendations on this regime, the USTR announced on 3 March 1999 that the US Customs Service would begin as of that date withholding liquidation and reviewing the sufficiency of bonds on imports of selected European products covering trade in an amount of $520 million. The arbitration on the level and nature of the announced suspension requested by the European Communities under Article 22.6 of the DSU should have been completed on 2 March 1999, that is 60 days after 1 January 1999 when the period of implementation accorded to the Communities had expired. However, because of the novelty and complexity of the issues involved, the arbitrators' decision was submitted only on 9 April 1999 and the DSB could therefore act on the United States' request for an authorization of sanctions only on 19 April 1999. This authorization covered trade in an amount of US $191.4 million.

4.946  The European Communities considers that the decision to withhold customs liquidation on 3 March 1999 exposed importers of selected European products to a contingent duty liability of 100 percent, while importers of like products of other origins were only exposed to a duty liability corresponding to the normal customs tariff. The bonds on imports from Europe corresponded to that higher contingent duty liability.

4.947  In the EC's view, these discriminatory rules and formalities in connection with the importation of European products are inconsistent with Article I of the GATT 1994. Moreover, the requirement to submit bonds entailed additional costs for importers that constitute "other charges" imposed in connection with importation that are prohibited by Articles II.2(a) and VIII.1 of the GATT 1994. Finally and most importantly, the real purpose and effect of the measure was to deter imports altogether, as importers would logically be very reluctant to accept a risk of having to pay 100% duties retroactively. As the USTR indicated at a press conference held on 3 March, "we retaliated by effectively stopping trade as of March 3 in response to the harm caused by the EC's WTO-inconsistent banana regime".⁴⁵⁵

4.948  The European Communities then concludes that this measure therefore created a de facto import prohibition or restriction within the meaning of Article XI of GATT. There can for these reasons be no doubt that the United States suspended on 3 March 1999 its obligations under, inter alia, Articles I, II, VIII and XI of the GATT 1994 towards the European Communities without prior authorization by the DSB.

4.949  The European Communities notes that the USTR made clear in a public notice requesting comments on the planned 3 March 1999 action that it was required under Sections 301-310 to implement that action on that date:

"Given that the reasonable period of time for the EC's implementation of the WTO recommendations concerning the EC banana regime expires on January 1, 1999, the USTR must make the determination required by section 306(b) no later than January 31, 1999, and, in the event of an affirmative determination, must implement further action no later than 30 days thereafter".⁴⁵⁶

4.950  According to the European Communities, the USTR thus considers itself bound to take retaliatory action 60 days after the expiry of the implementation period in response to a perceived failure to implement rulings or recommendations of the DSB. The USTR added " these time frames permit the USTR to seek recourse to the procedures for compensation and suspension of concessions provided in Article 22 of the DSU".⁴⁵⁷

4.951  The European Communities nevertheless argues that when it turned out that the Article 22 procedures were not completed on 3 March 1999 and that the United States could therefore not obtain the necessary DSB authorization at the time required by its domestic legislation, the USTR nevertheless imposed trade sanctions "effectively stopping trade". This course of events confirms what the text of Section 306(b) indicates, namely that the USTR must implement the further action decided upon irrespective of whether that action conforms to the requirements of Article 22 of the DSU.

4.952  In the view of the European Communities, the United States has accepted an unqualified obligation to impose trade sanctions only with DSB approval but has maintained domestic legislation that explicitly requires the unilateral imposition of such sanctions. It is sufficient for the Panel to note these facts and to rule that Sections 306(b) and 305 do not constitute a good faith performance of the obligations under Articles 21.5 and 22 of the DSU and therefore of Article 23 DSU and Article XVI:4 of the WTO Agreement.

4.953  The United States responds that Sections 301-310 of the Trade Act provide the USTR and the President with broad discretion both with respect to determinations under those provisions and the timing of any action taken in accordance with those determinations. Nothing in these provisions mandates action inconsistent with US WTO obligations.

4.954  The United States recalls that the European Communities asks the Panel to find that Section 306(b) is inconsistent with Article 23.2(c),

"because it requires the USTR to determine what further action to take under Section 301 in the case of a failure to implement DSB recommendations and to implement that action, irrespective of whether the procedures set forth in Article 22 of the DSU have been completed and the DSB authorized such action".

4.955  In the US view, the EC case rests entirely on inaccurate and unsupported assumptions regarding whether action need be taken, the nature of the action, and the timing of such action. Section 306(b) commands no action, let alone action inconsistent with Article 23.2(c).

4.956  The United States considers that turning again to the text, Article 23.2(c) requires Members to "follow the procedures set forth in Article 22 to determine the level of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations" when a Member has failed to implement DSB rulings and recommendations. Again, no actual case involving the suspension of concessions is before this Panel. It is thus not possible to determine whether the United States in such a concrete case actually complied with the requirements of Article 22. The only question, then, is whether Section 306(b) commands the USTR not to follow Article 22 procedures or to suspend concessions without DSB authorization.

4.957  The United States indicates that it manifestly does not. Nothing in Section 306(b) or in Section 305(a) prevents the USTR from complying to the letter with Article 22 procedures, including DSB authorization. As the United States has noted before, the EC's arguments rest on a series of unsupported assumptions and unfounded speculation. If the USTR considers that another Member has not implemented DSB rulings and recommendations, and if she disregards Article 22 procedures, and if she decides to take action, and if that action involves the suspension of concessions, and if she or the President choose not to exercise the discretion available to them not to take action, or to await the outcome of Article 22 proceedings, then, the European Communities asserts, there would be a violation of DSU Article 23.2(c). However, Section 306(b) commands none of this, and the European Communities is not entitled to establish its prima facie case based on speculation and an assumption of bad faith regarding how the USTR will exercise discretion.

4.958  The United States considers that it has explained the numerous unsupported assumption underlying the EC's Article 23.2(c) claim. The European Communities has failed to rebut these explanations, or otherwise meet its burden in this dispute. Its claim under Article 23.2(c) therefore also fails.

4.959  The United States recalls that the European Communities argues that Sections 306(b) and 305(a) violate DSU Article 23.2(c), which requires that a Member follow the procedures set forth in Article 22 before suspending concessions or other WTO obligations when another Member has failed to implement DSB recommendations.⁴⁵⁸ According to the European Communities, the language of Section 306(b) "implies" that the USTR must announce that she will take mandatory retaliatory action when she considers that another Member has not implemented DSB recommendations. The European Communities further contends that the time frames in Sections 306(b) and 305(a) require the USTR to suspend concessions no later than 60 days following the reasonable period of time, while the soonest that the DSB could authorize the suspension of concessions would be 70 days.

4.960  In the view of the United States, the EC argument flagrantly disregards the broad discretion provided for in Sections 306(b), 301(a) and 305(a) both with regard to the nature of any action taken under those provisions and the timing of that action.

4.961  The United States first points out that nothing in Section 306(b) obligates the USTR to conclude that another Member has failed to implement DSB recommendations. This is a purely discretionary decision, and the European Communities has failed to meet its burden of demonstrating why it would not be possible for the USTR to conclude that no action need be taken because implementation has been satisfactory, because adequate progress is being made, or because further dispute settlement proceedings are necessary to achieve satisfactory implementation.

4.962  The United States also notes that even if the USTR were required under Section 306(b) to conclude in all cases that another Member has not complied with DSB recommendations, and to take action in response, the 210-day time frame set forth in Section 305(a) is more than sufficient to allow any such action to reflect the results of completed Article 22 proceedings, and to be implemented after DSB authorization. The European Communities claims that under Section 305(a)(1), the USTR must take action no later than 30 days after its determination under Section 306(b), which itself will follow the expiration of the reasonable period by no more than 30 days.

4.963  According to the United States, this EC argument completely disregards the fact that the 30-day period in Section 305(a)(1) is applicable "[e]xcept as provided in paragraph (2)".⁴⁵⁹ Paragraph 2 of Section 305 provides that the 30-day period set forth in paragraph (1) may be extended for an additional 180 days:

"(2) (A) Except as otherwise provided in this paragraph, the Trade Representative may delay, by not more than 180 days, the implementation of any action that is to be taken under section 301 –

….

(ii) if the Trade Representative determines that substantial progress is being made, or that a delay is necessary or desirable, to obtain United States rights or a satisfactory solution with respect to the acts, policies, or practices that are the subject of the action".⁴⁶⁰

4.964  The United States further explains that Section 305(a)(2)(A)(ii) explicitly authorizes the USTR to delay action by an additional 180 days, among other reasons, in order "to obtain U.S. rights". Thus, the USTR may delay any action pursuant to Section 306(b) until the United States has obtained the right to suspend concessions based upon completion of Article 22 proceedings and receipt of DSB authorization.

4.965  The United States indicates that the USTR has, in fact, exercised her discretion under Section 305(a)(2)(A)(ii) to delay action by 180 days for the specific purpose of obtaining GATT rights. On May 24, 1989, a GATT panel issued a report finding that Korea's import restrictions on beef were inconsistent with Article XI:1 of the GATT 1947.⁴⁶¹ However, at meetings of the GATT Council on June 21 and July 19, 1989, Korea declined to agree to adoption of the panel report. USTR's target date for action pursuant to Section 305(a)(1) was October 28, 1989. Nevertheless, citing Section 305(a)(2), the USTR determined that "a delay in implementation of such action is necessary and desirable to obtain US rights under the General Agreement on Tariffs and Trade".⁴⁶² The USTR further explained that the delay in action beyond October 28, 1989 was desirable "to allow additional time for proceedings in the GATT".⁴⁶³ Korea allowed the panel report to be adopted on November 8, 1989, and the United States and Korea initialed an agreement on implementation on March 21, 1990.⁴⁶⁴

4.966  The United States further explains that when the 180 days is added to the 60 days provided for in Sections 306(b) and 305(a)(1), it is clear that, in all cases, the USTR has more than enough time to await DSB authorization to suspend concessions consistent with an Article 22 arbitrator's award, regardless of whether this would require 60 or 70 days. Moreover, the 240-day time frame for implementation would even allow the USTR to first complete Article 21.5 proceedings (a 90-day process), were this necessary to obtain the US right to suspend concessions. However, the DSU as currently drafted neither requires nor permits⁴⁶⁵ completion of the Article 21.5 panel process before seeking and receiving authorization to suspend concessions under Article 22.

TO CONTINUE WITH UNITED STATES – SECTIONS 301-310 OF THE TRADE ACT OF 1974

⁴⁴⁷ Vol. 63, No 204, 22 October 1998, page 56689

⁴⁴⁸ Vol. 63, No 217, page 63099

⁴⁴⁹ According to G. Schwarzenberger, International Law, 3^rd Edition, page 614, "[s]uficient relevant dicta of the World Court exist to permit the conclusion that the mere existence of such legislation may constitute a sufficiently proximate threat of illegality to establish a claimant's legal interest in proceedings for at least a declaratory judgement".

⁴⁵⁰ WT/DS27/43 (14 January 1999).

⁴⁵¹ Implementation of WTO Recommendations Concerning the European Communities' Regime for the Importation, Sale and Distribution of Bananas, 64 Fed. Reg. 19209 (1999).

⁴⁵² See response to Question 33.

⁴⁵³ WT/DS26/19 (18 May 1999).

⁴⁵⁴ Implementation of WTO Recommendations Concerning EC-Measures Concerning Meat and Meat Products (Hormones), 64 Fed. Reg. 40638 (1999).

⁴⁵⁵ Quoted from notes prepared for the press by the staff of the Office of the USTR entitled "March 3 Action on Bananas".

⁴⁵⁶ Federal Register, Vol.63. No.204, Thursday, October 22, 1998, pages 56688 and 56689.

⁴⁵⁷ Ibid., page 56689.

⁴⁵⁸ Article 23.2(c) provides that Members seeking redress of violations must:

"follow the procedures set forth in Article 22 to determine the level of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations under the covered agreements in response to the failure of the Member concerned to implement the recommendations and rulings within that reasonable period of time".

⁴⁵⁹ Section 305(a)(1), 19 U.S.C. � 2415(a)(1).

⁴⁶⁰ Section 305(a)(2)(A), 19 U.S.C. � 2415(a)(2)(A).

⁴⁶¹ Panel Report on Republic of Korea � Restrictions on Imports of Beef ("Korea - Beef"), adopted 7 November 1989, BISD 36S/268.

⁴⁶² Determinations Under Section 304 of the Trade Act of 1974, as Amended, Regarding the Republic of Korea's restrictions on Imports of Beef, 54 Fed. Reg. 40769 (1989) (US Exhibit 4).

⁴⁶³ Ibid.

⁴⁶⁴ See Termination of Section 302 Investigation Regarding the Republic of Korea's Restrictions on Imports of Beef, 55 Fed. Reg. 20376 (1990) (US Exhibit 5).    The United States notes that similarly, in the 1989 dispute between the United States and the European Communities over oilseeds, the Trade Representative delayed action for 180 days pursuant to Section 305(a)(2)(A)(ii) on the basis that substantial progress was being made in GATT dispute panel proceedings which had not yet finished as of the 18-month target date.  Moreover, the Trade Representative made a determination that US agreement rights had been denied under Section 304(a)(1)(A)(i) only after the Oilseeds panel report had been adopted, even though this was well after the 18-month target date.  See Determinations Under Section 304 of the Trade Act of 1974, as Amended:  European Community Policies and Practices With Respect to, Inter Alia, Production and Processing Subsidies on Oilseeds, 55 Fed. Reg. 4294 (1990) (US Exhibit 6).

⁴⁶⁵ If a complaining party wishes to have the benefit of the negative consensus rule in Articles 22.6 and 22.7.