Comments of the united states on the answers of brazil to further questions from the panel to the parties following the second panel meeting
(c) Please provide any further available evidence of the USDA's long-standing policy that planted acreage information will not be released
Download 2.58 Mb.
|
- Navigate this page:
- 260. On 27 August 2003, in its response to Question No. 67 bis , the United States indicated that "
- 2 December 2003
(c) Please provide any further available evidence of the USDA's long-standing policy that planted acreage information will not be released. Brazil’s Comment: 19. Brazil notes that it is not USDA’s place to provide an authoritative interpretation of US law, including the Freedom of Information Act. Any “internal policy memorandum” cannot change the meaning of US law. Interpreting US laws is left to the US courts, which have issued rulings that would compel release of the planting, payment and contract payment base information. 20. Further, both Exhibits US-134 and US-144 refer to individual acreage information in connection with names that cannot be released. Brazil recalls that the Panel has requested farm-specific information with farm serial numbers (rather than names)563, or, alternatively, farm-specific information using “dummy” farm numbers.564 And Exhibit US-144 clarifies that “[a]creage, production data, and other producer-related information, without any personal identifier attached may be released”. This language would certainly cover farm-specific information using “dummy” farm numbers. 21. Finally, whether there is a long-standing practice by USDA of not releasing farm-specific acreage data to the public is irrelevant to a WTO dispute. First, under DSU Article 13, the United States is required to provide even confidential information.565 Second, any such information is not released to the public, and can – under WTO procedures – be protected as confidential information and be returned to the United States once this panel proceeding ends. Confidentiality procedures either under DSU Articles 13.1 and 18.1 or special confidentiality procedures under the Panel’s working procedures can address any US concern that Brazil could match data provided by the United States with data publicly available to unveil the names of specific farmers and their plantings. In addition, any such concern would not exist had the United States provided a single file containing both base acreage and yields as well as planting information. Under these circumstances, no identification number, whether farm serial number or “dummy” number, would be necessary. 260. On 27 August 2003, in its response to Question No. 67 bis, the United States indicated that "it does not maintain information on the amount of expenditures made under the cited programmes to US upland cotton producers". On 12 January 2004, the Panel requested the United States to provide information "to permit an assessment of the total expenditures of PFC, MLA, CCP and direct payments by the US Federal Government to upland cotton producers in the relevant marketing years". On 20 January 2004, the United States informed the Panel that "the data already provided by the United States to Brazil and the Panel would permit an assessment of total expenditures of decoupled payments to farms planting upland cotton." Is the latest statement responsive to the Panel's request? If so, how can it be reconciled with the first statement? Brazil’s Comment: 22. The US 11 February 2004 response to the Panel’s Question continues a pattern of misrepresentation that has tainted the US statements on this issue during this entire dispute.566 In its response, the United States draws the distinction between farms that plant upland cotton, for which the United States admits it has information, and farms that produce upland cotton, i.e., farms that harvest the planted upland cotton, for which the United States asserts it does not have information.567 Allegedly, this distinction between “planters” and “producers” of upland cotton explains the discrepancy between the two US statements referred to in the Panel’s question. It does not. 23. In fact, the United States in its 11 February 2004 response engages in a play with words that hides its non-cooperation in this panel proceeding. Contract payments made to “planters” of upland cotton support the production of upland cotton and are, thus, “support to” upland cotton. This is true even if the planted upland cotton is in the end abandoned and not harvested. Indeed, the 2002 FSRI Act defines a “producer” as someone who “shares in the risk of producing a crop and is entitled to share in the crop available for marketing from the farm or would have shared had the crop been produced”.568 Thus, a person remains a “producer” even if the chances were against him or her in a given year and a planted crop failed. 24. In sum, the terms “producer” and “planter” of a crop are synonyms for purposes of defining “support to” a specific commodity. Any contract payments paid to producers/planters of upland cotton must be considered in allocating the “support to” upland cotton from contract payments – whether the crop planted on that farm was harvested or not. 25. It follows that the two US statements referred to in the Panel’s question are irreconcilable.569 Unfortunately, Brazil has to note that the United States continues its approach of trying to mislead the Panel and Brazil on the question of the amount of contract payments that constitute support to upland cotton. In its 11 February 2004 Comments on Brazil’s 28 January 2004 Data Comments, the United States engages in a self-serving revisionist history.570 What is left after the US rhetoric is one clear fact: that the United States has engaged in a highly successful effort over sixteen months to deny Brazil and the Panel information giving a definitive amount of the four contract payments paid to and received by producers of upland cotton during MY 1999-2002. Brazil and the Panel are still waiting for data that would allow a precise calculation of this support, either in a farm-specific manner, as requested by the Panel on 8 December 2003 and 12 January 2004, or in the aggregate manner as requested by the Panel on 3 February 2004. Brazil notes that the Panel has granted the United States an extension until 3 March 2004 to provide this information.571 26. Brazil believes the Panel is well aware of the US refusal to provide payment information in the numerous forms in which that information has been requested.572 In an effort to assist the Panel with making factual findings in its report regarding this issue, Brazil sets forth a chronology of the facts relating to these various requests. These facts need little, if any, commentary or argument from Brazil, as they speak for themselves: 22 November 2002: Brazil files its First Set of Questions and Request for Production of Documents to the United States.573 Question 3.6 stated: “What was the annual amount of . . . (ii) production flexibility contract payments and (iii) direct payments (as relevant given the particular time period) made by the US Government in connection with upland cotton for each of the marketing years 1992 through 2002.” Question 11.1 stated: “Please state the total amount of market loss assistance payments made to the US upland cotton industry in marketing years 1998 through 2001.”574 3 December 2002: During the consultations, the United States responded orally to Question 3.6 by referring Brazil to the “Fact Sheet: Upland Cotton” (Exhibit Bra-4) and to www.fsa.usda.gov/dam/bud/bud1.htm. In response to Question 11.1, the United States similarly referred Brazil to www.fsa.usda.gov/dam/bud/bud1.htm. The data in these documents represented the total amount of payment data provided to holders of upland cotton base but did not provide any information about contract payments made to the US “upland cotton industry”, which Brazil defined in its consultation and panel requests as “US producers, users and/or exporters of upland cotton”. Brazil used the data included in Exhibit Bra-4 and the above-referenced web-site as the basis for its tabulation of the contract payment amount included in Table 1 of its 24 June 2003 First Submission. 1 April 2003: Brazil filed a questionnaire with the United States in the Annex V procedures.575 Question 11.1 states: “Please state the total amount of Market Loss Assistance payments made to the US upland cotton industry in marketing years 1998 through 2002.” Question 13.1 states: “Please state the total amount of Counter-Cyclical Payments made by the United States to US upland cotton farmers in marketing year 2002.” The United States provided no information in response to these questions. 24 June 2003: Brazil’s 24 June 2003 First Submission states, at paragraph 214, that “[i]n the absence of the requested information from the United States on actual DP and CCP payments related to the production of upland cotton or to farms holding upland cotton base, Brazil has used conservative methodologies to estimate the amount of 2002 DP and CCP payments received by upland cotton producers”. In addition, Brazil stated that it “reiterates its requests to the United States to provide it and the Panel with actual upland cotton base acreage for the DP and CCP programmes and will revise its estimates and levels of support for MY 2002 based on updated data”.576 22 July 2003: Brazil states in its 22 July 2003 Oral Statement at the first meeting with the Panel that “Brazil notes that it has presented the best available information that it has access to and that is not exclusively within the control of the United States.”577 Brazil further stated that “the United States never provided any answers to Brazil’s Annex V questions [and] [a]ccordingly, Brazil requests the Panel to rule on questions of fact based on the best information available as submitted by Brazil”.578 11 August 2003: Brazil provides an estimate of the total budgetary outlays of contract payment using its 14/16th methodology in its 11 August 2003 response to Question 60, as explained in paragraph 97 and notes 2-5 to the table accompanying paragraph 97. Brazil further states in response to Question 83 that “The list of Annex V questions provided to the United States by Brazil is included in Exhibit Bra-49. … [G]iven the United States’ failure to cooperate in the Annex V information gathering process, Brazil has and will present its case regarding peace clause issues and serious prejudice claims based on evidence available to it. If there are gaps in the evidence provided to the Panel by Brazil in support of its prima facie case, and those gaps are due to the United States’ failure to cooperate with and participate in the Annex V process, Annex V, paragraph 6 provides that ‘the panel may complete the record as necessary relying on the best information otherwise available.’”579 25 August 2003: The Panel requests the United States in Question 67bis to provide “the annual amount granted by the US Government in each of the 1999, 2000, 2001, and 2002 marketing years (as applicable) to US upland cotton producers . . . in total expenditures, under each of the following programmes: production flexibility contract payments, market loss assistance payments, direct payments and counter-cyclical payments.”580 27 August 2003: The United States provides a response to Question 67bis which states, inter alia, that the United States “does not maintain and cannot calculate this information”581 and that it “does not maintain information on the amount of expenditures made under the cited programmes to US upland cotton producers”.582 The United States stated in paragraph 21 of its 27 August 2003 response that “Thus, the United States did not track total expenditures with respect to base acres of [1996 FAIR Act covered commodities] under the expired production flexibility contract payments and market loss assistance payments and does not track total expenditure with respect to base acres of [contract commodities] under the direct payments and counter-cyclical payments.” Further, the United States stated in paragraph 28 of its 27 August 2003 response that “we are unable to provide to the Panel the total outlays under the cited programmes with respect to upland cotton base acreage.” 7 October 2003: The United States alleges that “Brazil has presented no evidence that the recipients of these decoupled payments on upland cotton base acres are, in fact, upland cotton producers”.583 And the United States alleges that Brazil’s methodology is “merely a guess because Brazil has failed to demonstrate that the acres currently being used for upland cotton production are, in fact, upland cotton base acres. That is, Brazil has presented no evidence that the recipients of these decoupled payments on upland cotton base acres are, in fact, upland cotton producers”.584 The United States further alleges that Brazil has not substantiated the amount of contract payments to US upland cotton producers (“[I]t is for Brazil to establish who are the recipients of the subsidies and that the subsidies are properly attributed to upland cotton.”585 “Nor has [Brazil] demonstrated how much of the subsidy … should be allocated to other products produced by the recipient, such as corn or soybeans.”586). 8 October 2003: The Panel orally asks the United States whether it collects or maintains information concerning the amount of contract payments received by upland cotton producers. The United States answered orally that it neither collected nor retained this information. 9 October 2003: Brazil stated in its closing statement that it had “requested this information [i.e., information concerning the amount of contract payments to upland cotton producers] more than a year ago in the consultation phase of this dispute but never received any information”.587 The United States, following its closing statement, informed the Panel and Brazil that the 2002 FSRI Act contained a reporting requirement for the United States to collect information on planted acreage, as a condition for recipients receiving direct payments and CCP payments. 13 October 2003: The Panel asks the United States in Question 125(9) how to calculate upland cotton contract payments made to cotton producers and how to account for non-upland cotton contract payments made to producers of upland cotton.588 27 October 2003: The United States responds to Question 125(9) by stating that it is for Brazil to prove the amount of contract payments (which the United States does not limit to upland cotton contract payments) that need to be allocated to upland cotton.589 While referring to Annex IV, the United States declines to provide any data.590 18 November 2003: Brazil requested the Panel to request the United States to produce information that would permit the calculation of a very precise amount of contract payment support to current producers of upland cotton.591 Brazil further set forth evidence that USDA collects and maintains in a centralized database base acreage data and planted acreage data for all farms for MY 2002 and for almost all farms for the period MY 1999-2001.592 21 November 2003: USDA’s Kansas City FOIA office delivered to a private US citizen a completed analysis of farm-specific contract acreage data and planted acreage data for MY 1996-2002 regarding rice. The FOIA documentation indicates that the request was received on 30 October 2003, and that work was completed on 14 November 2003. The rice data showed that between 99.52 and 99.90 per cent of the farms producing rice in MY 1999-2002 completed planted acreage reports. The rice data provided by USDA permitted the calculation of the exact amount of rice contract acreage that was planted to rice during MY 1996-2002.593 2 December 2003: Brazil requests the United States to provide farm-specific information as set out in Exhibit Bra-369. 3 December 2003: Brazil presented the results of the rice FOIA request to the Panel and provided a copy of the rice data to the Panel and the United States.594 8 December 2003: The Panel requests the United States to provide the farm-specific information set out in Exhibit Bra-369. In Question 195, the Panel asked whether “the United States wish to revise its response to the Panel's Question No. 67bis, in particular, its statement that “the United States ... does not maintain information on the amount of expenditures made under the cited programmes to US upland cotton producers?”595 18 December 2003: The United States produced scrambled farm-specific information for MY 1999-2001, contrary to Brazil’s and the Panel’s requested set out in Exhibit Bra-369. 19 December 2003: The United States produced scrambled farm-specific information for MY 2002, contrary to Brazil’s and the Panel’s requested set out in Exhibit Bra-369. 22 December 2003: The United States responds to Question 195 but does not “state the annual amount granted by the US government in each of the 1999, 2000, 2001 and 2002 marketing years to upland cotton producers … in total expenditures under the [four contract payment programmes]”, as requested by the Panel on 25 August 2003 in Question 67bis. The United States reasoned that it “does not collect production data based on actual harvesting figures reported by farmers”.596 The United States response did not offer any information regarding the amount of contract payments received by upland cotton farmers who planted upland cotton. Brazil indicated in its Answer to Question 196 that the scrambled information provided by the United States prevented it from calculating the amount of payments received by US upland cotton producers planting upland cotton on contract base acreage.597 12 January 2004: The Panel requested farm-specific information from the United States indicating that “it considers it both necessary and appropriate to seek this information in a suitable format in order to undertake its mandate to assist the DSB in discharging its responsibilities under the DSU and the covered agreements”.598 The Panel further stated that “disclosure is sought to permit an assessment of the total expenditures of PFC, MLA, CCP, and direct payments by the US Federal Government to upland cotton producers in the relevant marketing years”. The Panel requested the United States to produce the information by 20 January 2004. 20 January 2004: The United States filed a letter with the Panel stating it would not produce non-scrambled farm-specific data requested by the Panel on 12 January 2004.599 The United States did not provide total expenditure information for the four contract payments originally requested in Question 67bis and did not otherwise provide information that would “permit an assessment of the total expenditures” that constitute “support to” upland cotton under the four contract payments, as requested by the Panel on 12 January 2004. Brazil files a detailed description of its methodology allocating upland cotton and non-upland cotton contract payments as support to upland cotton.600 28 January 2004: Brazil filed a request that the Panel draw adverse inferences from the United States refusal during the period November 2002 through January 2004 to produce information relating to the amount of contract payments received by upland cotton producers who planted upland cotton.601 The United States provided revised scrambled farm-specific data.602 3 February 2004: The Panel requested aggregated farm-specific information from the United States in a format similar to the rice FOIA request set out Exhibit Bra-369, and further requested that the United States produce planted information on crops on cropland covered by the acreage reports. The Panel gave the United States until 11 February 2004 to provide the requested data.603 This aggregate data would allow a precise calculation of the amount of support to upland cotton from the US contract payments, whereas the US summary data produced on 18/19 December 2003 and the revised US summary data produced on 28 January 2004 does not.604 The Panel also asked the United States (Question 260) how it reconciled its 27 August 2003 response (that it did not maintain data on contract payments to upland cotton producers) with its 20 January 2004 Letter to the Panel stating that it had provided such information.605 11 February 2004: The United States indicated it was not in a position to respond to the Panel’s 3 February 2004 request and stated that it needed an additional four weeks to provide the aggregated data.606 13 February 2004: Brazil requested the Panel to deny the United States any additional time to respond to the Panel’s 3 February 2004 request, noting that this request represented the fifth time that the Panel had requested the United States to provide total expenditure information regarding the amount of contract payments made to upland cotton producers.607 16 February 2004: The Panel extended the deadline for the United States to provide the data requested on 3 February 2004 and clarified its request.608 3 March 2004: The deadline for the United States to produce the data requested by the Panel on 3 February 2004.609 27. Brazil hopes that the United States will finally live up to its obligation under the DSU and provide data that would permit the calculation of the support to upland cotton from the US contract payments. In one form or another, these figures have been at issue in all stages of this dispute – from the first round of consultations until the latest submissions to the Panel 16 months later. During all this time, it has been clear to the United States that what Brazil and the Panel sought was information that would enable a determination of the amount of contract payments that actually benefit upland cotton production. To be clear, that means support that benefits farms that plant upland cotton and support that can be allocated to this upland cotton planting/production. 28. In case the United States should fail to produce the information by 3 March 2004, Brazil maintains its 28 January 2004 request to the Panel to draw adverse inferences from this failure of cooperation. Drawing adverse inferences is clearly warranted given the history of his dispute settlement proceeding. Directory: english -> tratop e -> dispu e dispu e -> Annex g list of exhibits submitted by the parties dispu e -> World Trade Organization dispu e -> World Trade Organization Download 2.58 Mb. Share with your friends:
|