美国标准汽油案(共8页).doc

精选优质文档-倾情为你奉上RESTRICTEDWORLD TRADE WT/DS2/R29 January 1996ORGANIZATION (96-0326)United States - Standards for Reformulatedand Conventional GasolineReport of the PanelI. INTRODUCTION1.1 On 23 January 1995, the United States received a request from Venezuela to hold consultations under Article XXII:1 of the General Agreement on Tariffs and Trade 1994 ("General Agreement"), Article 14.1 of the Agreement on Technical Barriers to Trade ("TBT Agreement") and Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), on the rule issued by the Environmental Protection Agency on 15 December 1993, entitled "Regulation of Fuels and Fuel Additives - Standards for Reformulated and Conventional Gasoline" (WT/DS2/1). The consultations between Venezuela and the United States took place on 24 February 1995. As they did not result in a satisfactory solution of the matter, Venezuela, in a communication dated 25 March 1995, requested the Dispute Settlement Body ("DSB") to establish a panel to examine the matter under Article XXIII:2 of the General Agreement and Article 6 of the DSU (WT/DS2/2). On 10 April 1995, the DSB established a panel in accordance with the request made by Venezuela. On 28 April 1995, the parties to the dispute agreed that the Panel should have standard terms of reference (DSU, Art. 7) and agreed on the composition of the Panel as follows:Chairman: Mr. Joseph WongMembers: Mr. Crawford FalconerMr. Kim Luotonen1.2 On 10 April 1995, Brazil requested the United States to hold consultations under Article XXII:1 of the General Agreement, Article 14.1 of the TBT Agreement and Article 4 of the DSU on the rule issued by the Environmental Protection Agency on 15 December 1993 entitled "Regulation on Fuels and Fuel Additives - Standards for Reformulated and Conventional Gasoline" (WT/DS4/1). Consultations between Brazil and the United States were held on 1 May 1995 without resulting in a satisfactory solution of the matter. In a communication dated 19 May 1995, Brazil requested the DSB to establish a panel to examine the matter pursuant to Article XXIII of the General Agreement, Article 14 of the Agreement on Technical Barriers to Trade and Article 6 of the DSU. On 31 May 1995, the DSB established a Panel in accordance with the request made by Brazil.1.3 On 31 May 1995, pursuant to Article 9 of the DSU in respect of multiple complainants, the DSB decided, with the agreement of all the parties, that for practical reasons this matter be examined by the Panel already established at the request of Venezuela on 10 April 1995. The date of the constitution of the Panel, namely 28 April 1995, remained unchanged. 1.4 Due to the additional task given to the Panel, the DSB agreed upon, at the same meeting, the following terms of reference:"To examine, in the light of the relevant provisions of the covered agreements cited by Venezuela in document WT/DS2/2 and by Brazil in document WT/DS4/2, the matters referred to the DSB by Venezuela and Brazil in those documents and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements".1.5 The Chairman of the DSB recalled Article 9.2 of the DSU which provides that "the rights which the parties to the dispute would have enjoyed had separate panels examined the complaints are in no way impaired".1.6 Australia, Canada, the European Communities and Norway reserved their rights to participate in the Panel proceedings as third parties. Only the European Communities and Norway presented arguments to the Panel.1.7 The Panel met with the parties to the dispute from 10 to 12 July 1995 and from 13 to 15 September 1995. It met with the interested third parties on 11 July 1995.1.8 On 21 September 1995, the Chairman of the Panel informed the DSB that the Panel would not be able to issue its report within six months. The reasons for that delay are stated in document WT/DS2/5.1.9 The Panel issued its interim report to the parties on 11 December 1995. Following a request made by the United States pursuant to Article 15.2 of the DSU, the Panel held a further meeting with the parties on 3 January 1996. 1.10 The Panel issued its final report to the parties to the dispute on 17 January 1996.II. FACTUAL ASPECTSA. The Clean Air Act2.1 The Clean Air Act ("CAA"), originally enacted in 1963, aims at preventing and controlling air pollution in the United States. In a 1990 amendment to the CAA1, Congress directed the Environmental Protection Agency ("EPA") to promulgate new regulations on the composition and emissions effects of gasoline in order to improve air quality in the most polluted areas of the country by reducing vehicle emissions of toxic air pollutants and ozone-forming volatile organic compounds. These new regulations apply to US refiners, blenders and importers.2.2 Section 211(k) of the CAA divides the market for sale of gasoline in the United States into two parts. The first part, which covers approximately 30 percent of gasoline marketed in the United States, consists of the nine large metropolitan areas that experienced the worst summertime ozone pollution during the period 1987-1989, plus any areas that do not meet national ozone requirements and are added at the request of the governor of the state. These areas are referred to as ozone "nonattainment areas", and in this part of the United States only "reformulated gasoline" may be sold to consumers. In the rest of the United States, "conventional gasoline" may be sold to consumers.2.3 Section 211(k)(2)-(3) of the CAA established certain compositional and performance specifications for reformulated gasoline. The oxygen content must not be less than 2.0 percent by weight, the benzene content must not exceed 1.0 percent by volume and the gasoline must be free of heavy metals, including lead or manganese. The performance specifications of the CAA require a 15 percent reduction in the emissions of both volatile organic compounds ("VOCs") and toxic air pollutants ("toxics") and no increase in emissions of nitrogen oxides ("NOx"). These requirements are measured by comparing the performance of reformulated gasoline in baseline vehicles (representative model year 1990 vehicles) against the performance of "baseline gasoline" in such vehicles. Section 211(k)(10) of the CAA defines the specifications of baseline gasoline sold in the summer, which is the high ozone season, and leaves the specifications of winter baseline gasoline to be determined by EPA. It provides, however, that the specifications for winter gasoline shall be those of the industry average gasoline sold in 1990. For the year 2000 and beyond, the CAA requires that new reformulated gasoline requirements be developed that require a 20-25 percent reduction in emissions of VOCs and toxics, depending on EPA's considerations of feasibility and cost.2.4 The CAA also sets requirements for conventional gasoline, which ensure that each refiner's, blender's or importer's conventional gasoline sold in the rest of the country remains as clean as it was in 1990. This programme is known as "anti-dumping rules" because it is designed to prevent refiners, blenders or importers from dumping into conventional gasoline fuel components that are restricted in reformulated gasoline and that cause environmentally harmful emissions. To accomplish this, section 211(k)(8) of the CAA provides that no refiner, blender or importer of gasoline may sell conventional gasoline that emits VOCs, toxics, NOx or carbon monoxide ("pollutants") in greater amounts than the gasoline sold in the United States by that refiner, blender or importer in 1990. In order to implement this provision, separate individual baselines must be established for refiners, blenders or importers based on the gasoline they sold in 1990. That permits determination of whether the emissions from a refiner's, blender's and importer's conventional gasoline (post-1994 gasoline) are greater than the emissions from its 1990 gasoline. If, however, EPA determines that no adequate and reliable data exist regarding the composition of such 1990 gasoline sold by a refiner, blender or importer, the statutory baseline gasoline is applied. The statutory annual baseline values are calculated using a seasonal weighting of the statutory summer baseline, as defined in the CAA, and the statutory winter baseline, as determined by EPA.B. EPA's Gasoline Rule1. Establishment of Baselines2.5 The CAA directed EPA to determine the quality of 1990 gasoline, to which reformulated and conventional gasoline would be compared in the future: these determinations are known as "baselines". EPA set historic baselines for individual entities, and established a statutory baseline, intended to reflect average US 1990 gasoline quality, which would be used instead of the historic individual baselines for those entities who were determined to be lacking adequate and reliable data regarding the quality of the gasoline they produced in 1990.（注意！两个标准）2.6 EPA's final rule2 ("Gasoline Rule") requires any domestic refiner, which was in operation for at least 6 months in 1990, to establish an individual refinery baseline, which represents the quality of gasoline produced by that refiner in 1990. The rule establishes three methods for the purpose of determining a domestic refiner's individual historic baseline. Under Method 1, the refiner must use the quality data and volume records of its 1990 gasoline. However, as acknowledged by EPA at the time, it was not anticipated that many domestic refiners would have all the data necessary to establish an individual baseline based entirely on actual 1990 data. If Method 1 type data are not available, a domestic refiner must use its 1990 gasoline blendstock quality data and 1990 blendstock production records (Method 2). In the event that neither one of these two methods is available, a domestic refiner must turn to Method 3 type data which consist of its post-1990 gasoline blendstock and/or gasoline quality data modeled in light of refinery changes to show 1990 gasoline composition. Domestic refiners are not permitted to choose the statutory baseline.2.7 An importer which is also a foreign refiner must determine its individual baseline using Methods 1, 2 and 3 if it imported at least 75 percent, by volume, of the gasoline produced at its foreign refinery in 1990 into the United States in 1990 (the so-called "75 % rule")3. 2.8 Certain entities are, however, automatically assigned to the statutory baseline. Firstly, refineries which began operation after 1990 or were in operation for less than 6 months in 1990 are required to use the statutory baseline. Secondly, importers and blenders are assigned the statutory baseline unless they can establish their individual baseline following Method 1. If actual 1990 data are not available, which is, as for domestic refiners, anticipated by EPA, importers and blenders are assigned to the statutory baseline. EPA considers that blenders which produce gasoline by combining gasoline blendstocks purchased from many sources cannot determine with accuracy the quality of their 1990 gasoline using Methods 2 and 3. Similarly, EPA considers that importers cannot use Methods 2 and 3, because these methods inherently apply only to refineries and because of the extreme difficulty in establishing the consistency of their gasoline quality over time.2. Reformulated Gasoline2.9 Regarding the implementation of the regulations for reformulated gasoline, EPA proposes a two-step approach. From 1 January 1995 to 1 January 1998, EPA enforces an interim programme called the "Simple Model". Under this programme, reformulated gasoline sold in the United States by domestic refiners will be subject to requirements established with reference to the individual baseline for certain gasoline qualities and requirements specified in the Gasoline Rule for other gasoline qualities. More specifically, the parameters sulphur, olefins and T-90 are measured against each US refiner's individual 1990 baseline and must be maintained at or below these 1990 levels (these are called "non-degradation requirements"). The requirements regarding four other gasoline qualities (Reid Vapour Pressure, oxygen, benzene and toxics performance) are specified by EPA in the Gasoline Rule4. Importers of foreign gasoline also have to comply with the requirements set out in the final rule regarding Reid Vapour Pressure, oxygen, benzene and toxics performance. However, importers cannot use individual 1990 baseline for sulphur, olefins and T-90, but have to comply with levels specified in the statutory baseline for these parameters. Under the Simple Model, requirements for sulphur, olefins and T-90 must be met on an annual average basis. EPA adopted the individual baseline approach for these parameters in the Simple Model because at the time it was formulating its regulation, it considered that the available data regarding sulphur, olefins and T-90 did not permit an assessment of the precise effects of these components on the emissions level of gasoline. Given this uncertainty, EPA did not want to require refiners immediately to make refinery changes which might later prove to be unnecessary, given the greater flexibility provided by the Complex Model.2.10 As of 1 January 1998, EPA will enforce the "Complex Model", which will apply the same emissions reduction requirements to all producers of reformulated gasoline. The individual baselines for sulphur, olefins and T-90 will no longer apply. 3. Conventional Gasoline (or "Anti-Dumping Rules")2.11 The 1990 Amendment to the CAA requires that, as of 1 January 1995, each refiner's, blender's or importer's conventional gasoline sold in the United States be no more polluting than the gasoline sold by that refiner, blender or importer in 19905. EPA requires domestic refiners to measure non-degradation requirements for conventional gasoline against their individual baselines while importers of foreign gasoline are assigned to the statutory baseline. However, in this program, the non-degradation requirements apply to all conventional gasoline requirements, and not only to sulphur, olefins and T-90. Requirements must be met on an average annual basis. The Gasoline Rule limits ("caps") the volume of conventional gasoline that is subject to an individual baseline to the volume of gasoline produced in 1990 by that entity; all conventional gasoline produced in excess of the specific volume cap is measured against the statutory baseline.2.12 Domestic refiners and importers of conventional gasoline, unlike those of reformulated gasoline, will still be subject to different baselines after the entry into force of the Complex Model in 1998.C. The May 1994 Proposal2.13 In view of the comments made by interested parties during the rulemaking process of the fi